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Decision on family testimony reversed


After igniting a debate about the role of victims' relatives in death penalty cases, an Anne Arundel County judge reversed course yesterday and said she would allow victims' family members to testify in the sentencing hearing of a Glen Burnie man convicted of killing two women.

Judge Pamela L. North on Friday refused to allow victim impact statements until after she decides whether Kenneth E. Abend will be executed. Her action raised questions about the often-emotional testimony families have the right to give while a judge or jury is weighing the death penalty.

But yesterday, a day after family members moved to appeal her order, North reversed herself. The surprise move sets the stage later this week for statements from the relatives of Laverne M. and Tamie C. Browning, who were killed by Abend in 2002.

"I think the law was clear, and I respect Judge North for reversing her prior decision," said Russell P. Butler, executive director of the Maryland Crime Victims' Resource Center Inc. The group, representing the family, had asked Maryland's second-highest court to review North's decision immediately or stop the case until it could rule.

Attorneys for Abend said yesterday that the judge's decision to let the families testify earlier than expected would not affect the defense strategy. "It is something we will have to live with," said lawyer Harry Trainor.

Abend was convicted by North last month of three counts of capital murder, of committing a sexual offense against one of the victims and of related charges.

Family of the two murder victims said they were instructed by North yesterday not to speak to the media. They appeared distraught after listening to Karen Dungan, Abend's sister, detail the hardships he faced growing up and injuries he suffered as an adult.

The Maryland Constitution gives victims' families the right to be heard during the sentencing process in death penalty cases. But the judge or jury must weigh a set of specific factors, and the impact on victims isn't one of them. Defense lawyers say that's as it should be, because murder is a crime against the state, no matter who may be the victim.

Victims' advocates say that refusing to hear them before deciding on a sentence -- which North originally planned to do -- makes a mockery of the amendment they fought so hard to have passed in 1994. Although the family succeeded in this case, their experience shows how difficult it is for victims' rights to be considered by the courts, Butler said.

"While we're very happy with the results, we hope that somehow the [court] system would find ways of expediting victims' issues so they're decided before they become moot," Butler said.

North touched off the debate on Friday when she issued a ruling stating she first would decide whether to order the death penalty, then hear victims' impact statements and make the final sentencing decision.

In reversing that ruling, the judge said that, after reviewing a previous ruling by the Court of Appeals, she decided she was required to hear the victim impact statements before determining the sentence.

North did not say how she would weigh that testimony. In her original written decision, North noted that victim impact was neither an "aggravating" or "mitigating" factor. She stated that she "cannot fathom how victim impact evidence will assist" in weighing whether to impose the death penalty.

There is a huge philosophical divide about the value and influence of victim impact testimony, legal experts say.

After three decades of appeals court rulings, Maryland law is unclear about where victim impact fits in the death sentence process, said University of Baltimore law professor Jose F. Anderson, a former defense attorney in capital cases. Higher courts have twice struck down Maryland victim's rights statutes, adding to the confusion.

He said such statements put an "unpredictable factor" in the balanced process of accused-versus-state. "Certainly public policy of the state, at this point, is that victims get full participation in sentencing, as long as it doesn't violate the defendant's constitutional rights," Anderson said.

In capital cases in particular, judges must determine "how much, from whom and how are we going to instruct the jury," he said.

Abend chose to have a judge hear his case, and Maryland law requires North to follow the same strict procedure issued to juries weighing the death penalty. Criteria include whether the defendant committed the killing and whether there are aggravating factors spelled out in state law that meet the criteria for capital punishment. The judge or jury must weigh those criteria against mitigating factors such as youth or mental retardation.

But harm to relatives is not considered an aggravating factor, a point the judge made last Friday when she first put the victim impact statements on hold until late in the sentencing process. And judges are aware that any deviation from the procedure established in state law makes an appeal possible.

"You have to follow them carefully, even if a judge is making the ruling," Anderson said.

Anne Arundel County State's Attorney Frank R. Weathersbee said he was pleased by North's decision to change course.

Hearing victims' statements "levels the playing field," Weathersbee said. Since the defense has a right to bring witnesses sympathetic to the defendant, victims' families should be able to testify about the impact the loss of their loved ones has had on them.

"To present the other side is proper," Weathersbee said.

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