THE CASE FOR clemency is not about Eugene Sherman Colvin-el. It's about us. The immediate issue is not whether he deserves to die. It is whether our judgment to make that decision in this case is sufficiently certain, sufficiently infallible, and sufficiently free of our own human fears and needs to justify extinguishing his life forever. If we are wrong, we don't have the power to correct our mistake.
Within five days of June 12, 2000, Colvin-el will die - unless Gov. Parris Glendening grants him clemency. Here are facts the governor should consider:
If Colvin-el is executed, he will be the only man given a death sentence in Maryland based entirely on circumstantial proof since the Supreme Court declared the death penalty unconstitutional in 1973.
If Colvin-el is executed, his death will come after two judges of the Maryland Court of Appeals agreed that there was insufficient evidence showing that was the actual killer.
If Colvin-el is executed, he will be killed through a legal process that denied him competent representation.
If Colvin-el is executed, his death will be the outcome of proceedings in which the state failed to share exculpatory evidence with his lawyer.
If Colvin-el is executed, he will die through the working of a court process that disproportionately selects for death black men accused of killing white victims.
These circumstances are not just the opinions of a lawyer who wants to see his client live. They are facts. You can look them up.
People who believe in the death penalty say it is just to kill the killer because the law makes the proof certain and the process fair. As much as we may want to believe that the law works infallibly, human justice is still only human. In any circumstantial case, the truth of what happened reflects only the reality we are prepared to accept, on the one hand, or the doubts that may drive us to question, on the other.
Circumstantial proof is as much about the fact-finder as about the facts. Which truth do we reveal in sorting through the circumstances - what happened on a given occasion or what we feel about what happened, how it spurs our fears, or how a particular outcome may reflect our needs?
Our quest for certainty here leaves only questions we cannot answer. We know that Lena Buckman, 82, was killed, September 8, 1980, during a burglary at her daughter's Pikesville home. Approximately, $10,000 in jewelry was taken. We know that the police found fingerprints belonging to Colvin-el on broken glass outside the rear basement door of the house. We know that within 10 days of the killing Colvin-el was connected to one piece of pawned jewelry police said was taken in the burglary. But that's all we know.
We don't know how Buckman's killer got inside the home. Police said that Colvin-el entered the home through the rear basement door. But the jury in his murder trial was never told that the door only could have only opened "approximately four inches," because of items stacked in front of it. And those items showed no signs of having been disturbed.
The prosecutor argued that the one piece of jewelry tied to Colvin-el meant that he had to be inside the home where Buckman was killed. But two days after the slaying, police found other pieces of jewelry outside the house. So, it was possible to come across a piece of jewelry without being at the murder scene. Yet, the jury in his 1981 murder trial never heard this evidence.
The state contended that only Colvin-el could have killed Buckman. The jury never heard from neighbors who, just hours before this killing, saw strangers in the area whose description did not match Colvin-el. We don't know who these people were, or whether they killed Buckman. We do know that the witnesses saw one of these people riding a neighbor's black bicycle that the police found lying beside the home where the killing occurred. The jury was not told this when Colvin-el was tried.
There was no evidence placing Colvin-el at the murder scene - no fingerprints, no forensic evidence connecting him to the murder weapon or to Buckman. And there was no confession from Colvin-el or testimony from an eyewitness. But a fingerprint was found on a paper inside Buckman's open purse. The fingerprint did not match anyone in the household; it remains unidentified. But it did not belong to Colvin-el.
There are also questions about the stolen jewelry. Police said $10,000 worth of jewelry was taken, but pawn records linked Colvin-el to only one piece valued at $300.
How can we be certain of anything in a case where so many key questions remain unanswered? Such is the uncertainty on which Maryland seeks the life of Colvin-el - uncertainty resulting from a one-sided trial in which Colvin-el was represented by a lawyer who did little to defend him.
Because of the lawyer's failings, the 1981 jury never knew the police report revealed that the rear basement door could open only four inches. The lawyer never presented the witnesses who saw strangers in the area before the killing. The lawyer said nothing about the jewelry found outside the home where the murder occurred. He did not do his job to test the state's contention that Colvin-el was at the murder scene.
There have been more than 18 years of challenges to this death sentence. Two judges of the Maryland Court of Appeals, Judge Robert M. Bell, now its Chief Judge and most senior member, and John C. Eldridge said there was insufficient evidence showing that Colvin-el actually killed Buckman. Twice the death sentence was vacated, and it was reimposed once by a new jury and again on appeal.
We say that we want the death penalty to deter the epidemic of homicide that is ravaging our society. Here in Maryland, most homicide victims are black and the perpetrators are black. Yet the death penalty is often sought when blacks are accused of killing whites. The message is contradictory. Is capital punishment really meant to deter crime or is it a vehicle to quell unstated racial fears? This is a question that requires an honest answer.
If Colvin-el is not granted clemency, another question will linger. Did he die because he's guilty or because of the race of the victim he was convicting of killing?
With crucial questions about the crime still unanswered and with the fairness of the trial in doubt, why should we be so certain to demand a life in this case?
Clemency is a special remedy that invokes justice, not law. The face of justice is inescapably human. As judges and jurors, we remain human, uncertain, and fallible. The divine questions of life and death in this case should remain with God - not us. Clemency is the only just outcome.
John H. Morris Jr. is a lawyer representing Eugene Sherman Colvin-el.