Capital case filled with doubt

NO EVIDENCE proves Eugene Colvin-el ever held the knife used to kill 82-year-old Lena Buckman at her daughter's Pikesville residence 20 years ago.

No fingerprints matching Colvin-el's were found in the room where Buckman was stabbed 28 times, in the bedroom ransacked after the murder or anywhere else in the house.


But Colvin-el is sentenced to death because his prints were found on broken glass outside the home.

He is going to die because he pawned two watches that could have been found among jewelry strewn across the lawn.


He is a condemned man, awaiting execution at the Maryland Correctional Adjustment Center in Baltimore, because he had a lawyer who put on no defense at trial, and because his appeals never adequately remedied that injustice.

Sometime during the week of June 12, state officials plan to strap Colvin-el to a gurney and fill his veins with drugs to stop his heart, making him the fourth Maryland prisoner executed since the death penalty was reinstated in 1978.

But to let him die would sanction the worst kind of premeditated killing.

The facts of Colvin-el's case simply don't lead to a moral certainty that he was Buckman's principal murderer, or that he received the "especially vigilant" attention to due process that the Supreme Court expects in capital cases.

His case doesn't meet the common-sense standard that death is reserved for the worst of the worst, convicted by the strongest evidence.

It's not even close.

The moral arc of Colvin-el's case bends toward injustice. It bends toward unfairness and a perilously low standard for state-sanctioned killings. Whether Colvin-el is "innocent" is not at issue. Whether the state has established his guilt as a killer with unwavering affirmation and probity is.

Gov. Parris N. Glendening -- who has a petition for Colvin-el's clemency awaiting his attention -- must stop Maryland from passing final judgment on Colvin-el. He should commute his sentence to life in prison.


It's thin.

Dig through the reams of paper that constitute Eugene Colvin-el's 20-year case file, and this is the conclusion that jumps out regarding the prosecution's case.

Overwhelmingly circumstantial, with a distressingly small amount of evidence to connect Colvin-el with the murder, the file makes for unsettling reading.

Prosecutors say most criminal trials turn largely on circumstantial evidence -- though Colvin-el's case sets a new low in that regard.

Prosecutors also say jurors were able to draw "reasonable inferences" from the evidence to conclude that Colvin-el wielded the knife. But those "inferences" seem more like great leaps.

The state says it happened like this:


On Sept. 9, 1980, between 1 p.m. and 2:45 p.m., Colvin-el broke into the house on Cherokee Drive in Pikesville where Lena Buckman was visiting her daughter, Marjorie Surrell, and her family.

They say he broke a pane of glass in an exterior basement door, entered and stabbed Buckman 28 times with a knife he found in the kitchen. He wiped his hands and the knife with a kitchen towel. Then he rummaged through the master bedroom and stole several thousand dollars' worth of jewelry.

At trial in 1981, the prosecution presented evidence that fingerprints found on the broken glass near the basement door matched Colvin-el's. Evidence was also presented that showed Colvin-el pawned two watches reported stolen from the Surrell home on Sept. 9.

The state's case raised more doubts than it erased:

* Investigators were unable to find any "comparison value" fingerprints (prints complete enough to use for identification) on the knife used to kill Buckman. Did Colvin-el handle it? Prosecutors could not say conclusively that he did. They asserted -- without any supporting evidence -- that the presence of the bloody towel proved Colvin-el wiped his prints off the knife.

* Of the three comparison-quality fingerprints found inside the house -- including a bloody partial palm print on the refrigerator -- not one matched Colvin-el's. Police found the broken glass with Colvin-el's fingerprints outside the home.


Was Colvin-el in the house or just at the scene? Prosecutors offered no conclusive evidence. Were there other people in the house at the time of the robbery and murder? The unidentified bloody palm print on the refrigerator suggests that's possible.

* In written reports, Baltimore County police investigators said the basement door Colvin-el used to gain access would only open "approximately four inches," because a cabinet placed against the basement wall blocked part of the door.

Colvin-el was approximately 5 feet 7 inches tall and 140 pounds at the time of the murder. Could he have slipped through such a small opening? Prosecutors did not offer conclusive evidence.

They found no fingerprints on the door or on items in the basement. The cabinet that partially blocked the door had not been moved.

* Pieces of jewelry were found on the driveway outside the Surrell home after the crime. Did Colvin-el obtain the watches he pawned from somewhere other than inside the home? The prosecution's evidence did not rule out that possibility.

Colvin-el's lawyer should have had an easy time challenging the evidence.


Even if he did not question the idea that Colvin-el was present at the scene, he had several avenues for assailing the prosecution's assertion that Colvin-el murdered Buckman. Only that assertion made the defendant eligible for the death penalty under Maryland law.

Questioning this assertion was especially critical in a case that dealt with a crime in Baltimore County, where prosecutors seek death in any eligible case, regardless of the circumstances or the weight of the evidence.

So what went wrong?

Enter the shortcomings of the legal system.

Let's start with Colvin-el's first lawyer, Robert W. Payne, a private-practice attorney appointed by the public defender's office to represent Colvin-el at trial in 1981. Payne, who is now deceased, had handled only two murder cases before being assigned Colvin-el's case. He had never dealt with a death-penalty defense.

Baltimore County prosecutors and Colvin-el's current attorneys have different views about how well Payne represented Colvin-el. But certain things are clear in the court records.


Payne did very little pretrial preparation because he was "frustrated" by Colvin-el's refusal to cooperate. Colvin-el wouldn't allow Payne to put on the case he wanted, according to Payne's testimony in a 1985 post-conviction hearing. He wouldn't answer Payne's questions or respond to his requests.

In turn, Payne didn't inspect the prosecution's evidence until a month before trial. He didn't interview any witnesses Colvin-el asked him to interview, including at least one who Colvin-el said might offer an alibi.

Colvin-el himself entered pretrial motions, including one at the case's first hearing that got the trial moved from Baltimore County to Anne Arundel County.

At the same hearing, he filed a motion for a change of attorney; Payne concurred with an oral motion to remove himself from the case.

Both said Colvin-el was dissatisfied with Payne's work and that, because this was a death-penalty case, attorney and client needed a close working relationship. These motions were denied. The judge said there was insufficient cause to change attorneys.

Payne's poor preparation hobbled his performance at trial. He called no witnesses and introduced no evidence.


He put no questions to prosecution witnesses that exposed the lack of identifiable fingerprints on the knife or the absence of Colvin-el's fingerprints inside the house.

The trial lasted two days. The jury deliberated three hours and returned a guilty verdict.

At sentencing, the jury was asked to answer two questions: whether Colvin-el was the "principal" in the murder -- the knife-wielder -- and whether his crimes warranted death.

Lacking strong evidence, prosecutors attempted to prove Colvin-el was the knife-wielder by detailing his past convictions. Especially damaging was testimony about an eerily similar 1972 robbery incident, during which he threatened a woman with a knife while stealing jewelry from her home.

On the witness stand, Colvin-el testified that he was a drug addict who committed burglaries for money for his wife and two children. He said he never hurt anyone and offered wandering statements about everything from his faith to the prosecutor's nationality.

The entire sentencing phase lasted less than a day. By sundown, the jurors had deliberated again and returned a sentence of death.


In all of Colvin-el's appeals, his lawyers have focused -- with good reason -- on the inadequacy of his representation at trial and the grave doubts about Colvin-el's role in the murder. Those are the primary issues that make his planned execution indefensible.

Five judges in three proceedings found these problems significant enough to lodge serious objections to Colvin-el's execution. But the courts never saw fit to remedy either problem with a new trial: in essence, to start again from the beginning, presuming Colvin-el's innocence and introducing all of the evidence before deciding his guilt.

The closest he came was in 1992, when he was granted a resentencing after the Supreme Court found fault with Maryland's death penalty procedure. However, at the hearing, his guilt in a felony murder was not the issue. This was not a new trial, although it is often inaccurately referred to that way.

Even worse, problems arose at the resentencing over how evidence was presented.

Jurors first were supposed to decide if Colvin-el was the "principal" in the Buckman murder. If they found he was the killer, only then could they decide his punishment.

But the prosecution presented evidence for both questions at the same time. Thus, jurors heard damaging testimony about Colvin-el that they weren't supposed to hear unless they decided he was the principal killer.


The prosecutor talked about Colvin-el's prior convictions in his opening statement. Yet those records had nothing to do with establishing what did or did not happen on Sept. 9, 1980.

After opening statements, the prosecutor called Buckman's relatives to the stand and had them talk about the impact of her death on their lives. None of that evidence could be used by the jury to ascertain Colvin-el's role in the killing.

The judge told the jurors to disregard statements about Colvin-el's record and from the relatives in deciding if he was the primary murderer. The judge instructed them to stick to the prosecution's evidence against Colvin-el, as required by law.

But that's like telling someone to forget an elephant in the room and concentrate on a mouse instead. It was unreasonable.

A federal district judge said as much when he ruled that the resentencing violated Colvin-el's constitutional rights. But even he didn't find legal grounds to grant a new trial. He only ordered another sentencing hearing that separated the two questions and the evidence the jury heard.

His ruling was overturned by the federal Court of Appeals in Richmond, which determined that Maryland law didn't require separation of the proceedings. The Supreme Court refused to hear an appeal.


Prosecutors say they have met the legal standard for execution. They say Colvin-el has had his day in court, and has been condemned by two juries. His appeals were rejected on the basis of the laws of this state and this country.

But do technical legal judgments assure that "especially vigilant" attention to due process and fairness was given? Do they assure that Colvin-el actually did what he is accused of doing?


Governor Glendening, with whom Colvin-el's fate now rests, has an obligation to look beyond legal arguments to moral issues: Can the state end his life while serious doubts remain about his role in the murder and the fairness of his trials?

This process must be stopped before the state imposes the ultimate -- and irreversible -- penalty on Eugene Colvin-el.