Clemency cases: a tale of two governors

Had Robert L. Ehrlich Jr. won re-election as Maryland governor in 2006, it's highly likely that Mark Farley Grant would no longer be serving a life sentence in prison. Starting in the second half of 2008, Mr. Ehrlich would have reviewed the detailed report from the University of Maryland School of Law that establishes Mr. Grant's innocence of a murder in a 1983 street robbery in Baltimore. It's likely Mr. Ehrlich would have been persuaded — as others who've read the report have been — that Mark Farley Grant, convicted at 15, has no business being in prison at the age of 42.

"This [case] would be a prime candidate for my review," Mr. Ehrlich, a Republican candidate for governor again, said during an interview on Wednesday.

But, of course, Mr. Ehrlich is not governor. Martin O'Malley — who apparently can't be bothered with requests for clemency and who rejects parole for lifers — is.

The Justice Policy Institute looked at the record and found that 30 lifers have been recommended for parole during Mr. O'Malley's term, but the governor has denied all requests. That's part of the reason Mark Farley Grant is still in Hagerstown.

The report on the flawed prosecution of Mr. Grant and his request for clemency have languished in the governor's office (or somewhere between the governor's office and the Maryland Parole Commission) since the summer of 2008.

That a substantive request for clemency could be subject to the political priorities and whims of any particular governor should trouble everyone with a functioning sense of justice. Political calculus has no place in a governor's exercise of his powers to grant clemency or to approve recommendations of parole from the commission entrusted to review requests.

In Maryland, however, recent Democratic governors have taken the tough line on lifers by refusing to consider parole for any of them. That attitude, forged in the post-Willie Horton era when Democrats effectively appropriated the law-and-order theme from Republicans, has apparently carried over to all requests from lifers on any grounds — even innocence supported by an investigation by the professors and students of the state's own law school.

When Mr. Ehrlich was governor, between 2003 and 2007, things were not so.

A 2003 report from the University of Maryland Law School, similar in many respects to the one about Mark Farley Grant, convinced Mr. Ehrlich to commute the life sentence of Walter Arvinger. Mr. Arvinger had served 36 years in prison for a killing witnesses later said he did not commit. His case was one of six life sentences Mr. Ehrlich commuted during his term.

"The job of governor has a lot of component parts to it, and one is justice," Mr. Ehrlich said last week. "That sounds trite, that sounds like a cliché. But you have an enormous amount of power as governor — and you can't accomplish justice even on an ad hoc basis, an individual basis? That's part of how I view the job description."

Mr. Ehrlich assigned two staff attorneys to review cases and prepare reports. "We had a very formal process and we took this quite seriously," he said. "We would review all the evidence; we would review the trial transcripts, the appellate record …

"The system isn't perfect. Sometimes race played a part. Sometimes ineffective counsel played a part. Sometimes negligence — with respect to the prosecutor, the public defender or private attorney or judge — played a part. Some of these cases just stunk. Some of these cases, you look at the record and you have no eyewitness, or you have somebody who has changed his story, somebody who failed a lie-detector test, somebody who had a one-day, two-hour trial … and you start getting into these facts and you realize we have people behind bars who just shouldn't be."

Mr. Ehrlich said he reviewed the Mark Farley Grant report, the same one described in several of my columns since last August, the same one sent to Mr. O'Malley in the summer of 2008.

"I'm not governor," Mr. Ehrlich said. "I'm not going to tell you what I would do. I've not been critical of Governor O'Malley for not acting on these cases, because he didn't say he would; he's not lied about it. It's just not a priority for him. It was a priority for me."

Dan Rodricks' column appears Thursdays and Sundays in print and online, and Tuesdays online-only. He is host of the Midday talk show on WYPR-FM. His e-mail is