Maryland's top lawyer asked an appeals court Monday to spare the life of one of the four men left in limbo on death row after state lawmakers abolished the death penalty last year.
Attorney General Douglas F. Gansler — for years a death penalty supporter — argued that even though the law repealing capital punishment wasn't meant to be retroactive, the state no longer has the authority to execute anyone. As a result, he told the Maryland Court of Special Appeals, death-row inmate Jody Lee Miles' sentence should be modified.
"He's only eligible to one sentence in our view: life without parole," Gansler said.
With less than a month left before he leaves office, Gansler made the rare appearance before Maryland's second-highest court because he believes Miles is now sentenced to a punishment that is unenforceable. The result is a violation of Miles' right to due process, he said.
Gansler was joined in the argument by lawyers for Miles, 45, who was convicted of the 1997 robbery and murder of musical theater director Edward Joseph Atkinson on the Eastern Shore.
"The sentence of death can no longer be carried out," said Robert W. Biddle, a Baltimore-based lawyer representing Miles.
Biddle said a jury should decide a new sentence for Miles, who he said was abused as a child and has become a model prisoner while incarcerated. The jury, he said, could decide between life in prison with or without the possibility of parole.
"He's the best of the best of the inmates," Biddle said. "Is that someone who should get life without parole?"
Gansler offered other scenarios: that the Court of Special Appeals could send the case to the Circuit Court with a directive to change the sentence to life without parole or that the appeals court could simply modify Miles' commitment order.
A circuit judge in Queen Anne's County, where Miles was originally convicted, denied Miles' request to change his sentence last year after lawmakers abolished the death penalty for future cases. The judge's denial led to the current appeal.
Appeals Court Judge Douglas R.M. Nazarian asked why the state can no longer carry out executions. He said they were legal sentences at the time they were imposed, and questioned the lawyers as to whether the state has "residual authority" to carry out its functions.
Gansler pointed out that a court in 2006 threw out Maryland's regulations governing executions, and the state never adopted new ones.
When Gov. Martin O'Malley and the General Assembly abolished the death penalty last year, Gansler and Miles' lawyers said, the legislation effectively stripped from state law the Division of Corrections' ability to issue new regulations for executions. Without those sections, the state can't come up with the protocol for executing Miles, said Brian Sancetti, a public defender who also represents Miles.
There's no indication when the appeals court will rule, and it may come well after Gansler leaves office Jan. 5 following his unsuccessful attempt this year to win the Democratic nomination for governor.
After Monday's 45-minute court hearing, Gansler said it could be months before a ruling is issued.
"Our view is Mr. Miles will be spending the rest of his life behind bars," he said.
Biddle disagreed, saying in a statement after the hearing that "Mr. Miles should have an opportunity to eventually leave prison other than in a pine box. He should not be required to die in prison."
O'Malley, meanwhile, has signaled that he may be weighing whether to commute the sentences of Miles and the other three men on death row. Maryland's governor can pardon or reduce an inmate's sentence, and the death penalty repeal law approved last year specifically allows the governor to change a death sentence to life without parole.
O'Malley has spoken with some of the victims' families in recent weeks, but he has not indicated whether he will take action.
Miles' lawyers said they have not filed a request for commutation with the governor's office.
A spokesman said O'Malley had no comment on Monday.
Gov.-elect Larry Hogan has not said what he would do about the men on death row should the matter remain unresolved when he takes office Jan. 21. Through a spokeswoman, he declined to comment Monday.
When Gansler was asked if it would be possible for Hogan and state lawmakers to pass a law allowing for the execution of the four men on death row, he said such a law would not be "constitutionally firm."