Death penalty actions alarm

The Baltimore Sun

As a candidate for the top prosecutor's job in Baltimore County - a jurisdiction that has sent more men to death row than any in Maryland - Scott D. Shellenberger repeatedly told voters that he would bring a new approach to capital prosecutions.

And, since his election a year ago, he has created a protocol for deciding which crimes should be punished by death, and he has formed a panel of advisers to debate each eligible case.

But capital-defense attorneys say that Shellenberger's approach has, at times, been even less open than that of his predecessor and former boss, longtime county State's Attorney Sandra A. O'Connor. They expressed concern that Shellenberger's decision-making criteria remain secret and that, unlike prosecutors in other jurisdictions, he grants them a chance to weigh in only in writing, and often at a time when defense lawyers know little about their client or the crime that might lead to the ultimate punishment.

"He'd given me and others the impression that he genuinely wanted to change the way things were done in Baltimore County - that he wanted meaningful input from defense counsel and welcomed the opportunity to reflect on cases individually and not have a pat response," said Katy O'Donnell, chief of the capital defense division of the Maryland public defenders office.

Noting that Shellenberger filed death notices in two cases without informing defense counsel that he was contemplating doing so, O'Donnell added, "Even Sandy O'Connor would give us notice that she was considering death."

Shellenberger, a Democrat and an ardent supporter of capital punishment, said his protocols "aren't made in stone," and that his approach gives defense attorneys more say in whether a death sentence is sought than they've ever had in Baltimore County.

For most of her 32 years in office, O'Connor, a Republican, sought death sentences in almost every eligible murder case. Although designed to take the perceived arbitrariness and discrimination out of the administration of capital punishment, her policy drew national attention and criticism from death penalty opponents.

A state-funded study of Maryland's use of the death penalty released in 2003 found that Baltimore County accounted for 45 percent of all death sentences but only 12 percent of eligible murder cases between 1978 and 1999.

Since January, Shellenberger has filed notice of his office's intent to seek the death penalty in three of four eligible cases. He declined to seek death in a case in which the defendant, at the time of the crime, was 10 days past his 18th birthday - the minimum age to be eligible for a death sentence in the United States.

"It doesn't feel like a major policy shift," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "I would expect that if there was a new policy in place, there would be hardly any capital prosecutions."

Shellenberger expressed surprise at the criticism.

"It's just fascinating," he said. "For 20 years, they complained that there was no process, that death was always automatically filed, that they never had a say and that we were the only jurisdiction in the country that does it this way. So I turn around and say, 'It's not automatic,' I form a committee, I develop written protocol and I let them have input, and they're still criticizing."

Under Maryland law, prosecutors have discretion in seeking punishments but generally can pursue a death sentence for a convicted killer - not an accomplice - in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape.

Shellenberger, a former county prosecutor who took a job in 1993 with Peter G. Angelos' law firm, began shaping his approach to handling potential death penalty cases shortly after taking office.

He spoke with area state's attorneys about their procedures and appointed a committee of seven senior prosecutors to debate death-eligible cases. He declined to name the members of the group but said it includes a death penalty opponent "so that we're hearing different voices and different points of view."

He also drew up a list of criteria for the panel to consider.

Although he would not release the list, he said it includes such elements as whether the case would rely on testimony from a co-defendant or an informant, the wishes of the victim's family, the defendant's criminal record and age, and whether the crime was committed "in a particularly heinous or cruel way."

He said he also considers whether victims might have been killed because they were witnesses to other crimes and, in cases in which a defendant is charged with another felony in addition to murder, whether that crime could have been completed without a killing.

"Nothing is numerical and nothing is rote, but I think if we apply the same factors to every case, then hopefully we'll get relatively consistent results and answers," Shellenberger said.

He said he initially informed O'Donnell, the state public defender's chief of capital litigation, and Thelma J. Triplin, the county's head public defender, that he was "always willing to listen to what they have to say" regarding death-eligible cases.

But with no official mechanism in his protocol for seeking input from a defendant's lawyers, Shellenberger and his committee debated the first three cases without notifying the public defender's office that they were contemplating death notices.

Triplin declined to comment on Shellenberger's policy and referred all questions to O'Donnell.

After again speaking with O'Donnell, Shellenberger added to his process a 45-day period during which defense attorneys can submit in writing information they would like him to consider - an element that he said he borrowed from Glenn F. Ivey, Prince George's County state's attorney.

Ivey's office handles dozens of cases each year that could qualify for the death penalty. A form, which he shares with defense counsel, lays out the elements that a committee of senior prosecutors considers in forming a recommendation to Ivey.

In cases in which Ivey is leaning toward seeking a death sentence, he said he gives defense attorneys a chance to present information - in writing or in person.

"There is no more grave decision that certainly a state or local public official could make than to seek the death penalty," Ivey said. He files notice of his intent to seek death in a case about once a year - if that often, he said.

O'Donnell said she hopes that Shellenberger's approach will continue to evolve.

"We think that it's time that Baltimore County came in sync with the rest of the state and recognize that the decision to seek the ultimate sanction of execution is a weighty, extraordinary decision that requires thoughtful review and should be reserved for the worst of the worst - the worst crimes and the worst defendants," she said. "We can't very well say it's a new day in Baltimore County until we have some results that are different than they would have been."


Deciding on death sentences

How some top prosecutors in the area decide whether to seek death sentences for defendants eligible for the death penalty:

ANNE ARUNDEL COUNTY State's Attorney Frank R. Weathersbee says he reviews a death-eligible case with his two deputies and the prosecutors and victim's advocate assigned to the case. He permits lawyers for a defendant to offer input in writing or in person. He does not have written criteria for making his decision.

Of Anne Arundel's 20 or so homicides each year, fewer than half qualify for the death penalty. Those that do often occur in one of the five state prisons in the county. Weathersbee is seeking death sentences for two inmates accused of killing a correctional officer in Jessup.

HARFORD COUNTY State's Attorney Joseph I. Cassilly says he meets with the victim's family to hear their view on capital punishment and informs defense attorneys that he's considering seeking a death sentence, giving them a week or so to bring information to his attention - either in writing or in person.

Cassilly says he looks carefully at the strength of a case and what facts "go toward convincing a jury that this murder should be sentenced differently than other murders."

He sought the death penalty this year against a man whose previous death sentence was overturned in the 2002 kidnapping and stabbing death of the defendant's girlfriend's young daughter. In May, a jury sentenced the man to life in prison without parole.

PRINCE GEORGE'S COUNTY State's Attorney Glenn F. Ivey says he receives a recommendation from a committee of senior prosecutors. Working from a form that is shared with defense counsel, the committee considers a suspect's age at the time of the crime, any mental retardation issues, the views of the victim's family, the strengths and weaknesses of the case and the aggravating and mitigating factors that state law requires juries and judges to consider at capital sentencings.

In cases in which Ivey is leaning toward seeking death, he invites input from defense attorneys in writing or in person according to their schedules. Of the dozens of death-eligible murder cases prosecuted by his office each year, Ivey says he seeks death in about one case a year.

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