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Taking a pass on basic discretion


THERE'S SOMETHING very wrong in Baltimore County.

Nearly 70 percent of the state's death row inmates were prosecuted by Baltimore County attorneys, but the jurisdiction records fewer than 10 percent of the state's murders each year.

And at least four of the county's capital cases have wilted in the light of appeals that exposed insufficient proof of guilt or disclosure of evidence. Just last week, Clarence Conyers Jr. became the third Baltimore County death row inmate in the last year and a half to have his case or his sentence overturned.

The county's high number of capital prosecutions is easily explained by State's Attorney Sandra A. O'Connor's policy on the death penalty. She prosecutes any case that meets the bare minimum requirements for death. She says it's the only fair way to interpret the law, and that it indemnifies her office against any claims of discrimination.

But what explains the county's capital missteps? The number of cases that don't pass appellate muster? They suggest the county's policy is off base and may be about anything but fairness.

The county may be asking for death in cases that don't warrant the maximum, irreversible penalty because prosecutors aren't considering any factors beyond the minimum threshold for prosecution.

That may be legal -- but it's not right. And on such a morally charged issue, in a state where majority support for a death penalty moratorium suggests a general disquiet about the way in which ultimate justice is meted out, being just this side of legal isn't good enough.

Baltimore County legally prosecuted Kirk Bloodsworth, for example, and won a death sentence against him for the murder of a 9-year-old girl in 1984. But the case crumbled after DNA evidence proved Mr. Bloodsworth could not have been involved.

The county also legally prosecuted Eugene Colvin-el and Kevin Wiggins for murdering elderly women, and both were sentenced to death. But Gov. Parris N. Glendening commuted Mr. Colvin-el's sentence in 2000 because, he said, no moral certainty could be reached as to Mr. Colvin-el's guilt. (Prosecutors couldn't even prove he was in the house where the murder took place.)

Last year, a federal appeals court judge struck down Mr. Wiggins' conviction, saying boldly that no reasonable juror could have looked at the evidence presented and concluded he was guilty. Prosecutors had no direct evidence to show Mr. Wiggins was the killer, only circumstantial evidence and the assertion that no evidence pointed to anyone else. They said "common sense" pointed to Mr. Wiggins' guilt.

The judge blasted that logic, and questioned county prosecutors' ethical mettle. "Why isn't this case of moral concern to the state, or don't you care?" he asked.

Important words those are: Moral. Concern.

They suggest a higher calling and a higher standard that are appropriate when you're dealing with life and death in a legal matter. They reflect language that the Supreme Court has used time and again to insist that if anything, the system should go overboard in ensuring that when death is at stake, every precaution be taken.

But how can you reach that level using, as Baltimore County does, the lowest legal standard for capital prosecution?

In Clarence Conyers' case, it's possible that county prosecutors went even further below standard to obtain a conviction. By failing to disclose evidence that may have helped Mr. Conyers' lawyers argue for a lesser sentence, they violated a fundamental constitutional premise, and exposed what would be a very serious shortcoming of their office if it is determined to be anything but isolated to this case.

Ms. O'Connor's policy looks noble in its attempt to eliminate personal judgment from the process, but really it's an abdication of her responsibility to use all the information available to decide which crimes merit what penalties. It's a failure on her part to exercise the basic discretion you'd expect any prosecutor to use on the most routine cases -- let alone the most serious. The truth? It's a cop-out.

There's nothing fair about that. Or right. If anything, it is yet another reason to rethink why and for how much longer this state should continue to take life in the name of justice.

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