Md. high court to rule on photos Some believe victims' pictures can lead juries to convict


An article in yesterday's editions misspelled the name of the lawyer representing a defendant convicted in the death of a Buckeystown youth in a 1993 drunken driving accident. Paul E. Broberg's lawyer is Kevin Hessler of Rockville.

The Sun regrets the errors.

Thomas Blank broke down in tears when prosecutors showed him a photo of his 11-year-old son as the Buckeystown quarry worker testified against the drunken driver accused in the boy's death.

It didn't take long for the Frederick County jurors who saw the photograph and the father's reaction to convict Paul E. Broberg in the April 25, 1993, death.

Now, Maryland's highest court is to decide whether it is fair to use photos such as the one of Thomas Blank Jr. at trial.

Prosecutors and victims' rights advocates worry that the decision could take an important weapon out of their hands, while defense lawyers fear clients could be unfairly convicted.

"It's an outrageous tactic," said Timothy D. Murnane, an Annapolis defense lawyer. "The jury sees a picture like that and it makes them want to get even."

Mr. Broberg was convicted Nov. 15, 1993, of homicide by motor vehicle while intoxicated. His lawyer, Kevin G. Heller, argued on appeal that jurors were prejudiced by color pictures of the victim -- in his Little League uniform and in a sixth-grade class photo -- and unfairly convicted his client.

The Court of Special Appeals agreed.

"The photographs were used simply to arouse the passions of the jury," a three judge panel ruled Dec. 12, 1994, in an unreported, 10-page decision.

Maryland Attorney General J. Joseph Curran Jr. asked the Court of Appeals to review the decision in part because of the success of victims' rights legislation, said Gary I. Bair, chief of the attorney general's criminal appeals division.

"There's an interest here, that the state has in this case, because the legislature has specifically spoken out on victims' rights," he said.

Mr. Bair and Russell P. Butler, a Capitol Heights lawyer who filed a brief with the Court of Appeals on behalf of several victims' rights organizations, say the photo of a deceased victim is less prejudicial than having a victim appear to testify in a rape or child abuse case, which is routine.

"With the picture, you're just trying to show the judge and the jury that this was a person, not just a statistic," Mr. Butler said.

Mr. Butler said last year's ratification of a Maryland Victims Rights Amendment and recent laws allowing victims to give "impact statements" at sentencing are signals the legislature and public favor use of victim photos.

The Court of Appeals heard arguments this month, but there is no deadline for a decision.

Mr. Broberg, who served an 18-month jail term, declined through Mr. Heller to be interviewed.

Oregon and Utah have statutes that permit victim photos. In Pennsylvania, the state Supreme Court generally has barred their use since 1978.

In Maryland, the use of photos always has been left up to trial judges, who decide on a case by case basis. Victim photos are admitted into evidence occasionally, but only if the prosecutor convinces the judge that they help prove a point in the case.

"They have to show something that's relevant, like if you're trying to show how the victim was disfigured, it would help to know what they looked like before the crime," said Laura Mullally, an assistant state's attorney in Baltimore.

But defense lawyers argue that showing a victim's photo focuses jurors on punishing someone for the crime and distracts them from the main issue in a trial: whether the defendant did it.

The photos focus the jury's attention "where it doesn't belong," Mr. Heller said.

"What the victim looked like doesn't have anything to do with whether the person is guilty or innocent," he said.

Several lawyers predicted the court will not prohibit victim photographs nor uniformly allow them, but give some guidance on when they may be used.

"I don't think the court's going to bar their use entirely because there are times when they help the jury," said Sue A. Schenning, a Baltimore County deputy state's attorney.

Mr. Blank said he is more interested in seeing Mr. Broberg's conviction reinstated. He said he was angry that throughout the week-long trial, his son's personality and background never were allowed to enter into the case.

Jurors should learn during the trial who the victim was and should be able to see his photograph, Mr. Blank said.

"Whether it's a good person or a bad person, he's still dead and he's still a victim," he said. "The jury should know what he looked like."

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