Death penalty gets another look Review began after Pam Basu's slaying

March 16, 1993|By Dennis O'Brien | Dennis O'Brien,Staff Writer

In a daylong hearing yesterday, attorneys used the language of their profession to politely argue a simple concept: when and how to kill a human being.

At its first meeting yesterday, Gov. William Donald Schaefer's Commission on the Death Penalty heard testimony focusing on what is delaying the execution of 13 people sentenced to Maryland's gas chamber.

As they often do in court, prosecutors and defense attorneys blamed each other for the delays.

Prosecutors said defense attorneys will frequently wait until the last minute -- often the day jury selection is to start -- before filing motions to change venue because of adverse publicity. That can delay a trial up to six months.

Defense attorneys said prosecutors will often wait until 30 days before trial to serve notice that they intend to seek the death penalty, which catches defense attorneys off-guard and can mean additional delays.

"It's gamesmanship, is what it is," Harford County State's Attorney Joseph Cassilly said.

Baltimore County State's Attorney Sandra A. O'Connor's office has convicted nine of the 13 inmates facing the gas chamber. Since being elected in 1974, Ms. O'Connor said, she has sought the death penalty in cases only where there were aggravating circumstances -- the killing of a police officer, for example -- and the state's case didn't depend on the testimony of a co-defendant.

Without those guidelines, her office would be deciding which defendants would get life and which a death sentence, she said. "I decided that it was absolutely wrong for a prosecutor to sit as a sentencer prior to trial."

She recommended banning automatic changes of venue for death penalty cases, allowing jurors to be brought in from other counties rather than shifting the trial to another county, and prohibiting a defendant from electing a judge for the trial and then a special jury to decide on life or a death sentence if convicted. The last requirement now means prosecutors must try their cases twice, adding to the delays.

Mrs. O'Connor also said Maryland should switch its method of execution, from the gas chamber to lethal injection. Although the gas chamber has yet to be ruled unconstitutional, it could be if appealed to a federal court, she said.

"Clearly lethal injection is the preferred method," said Sue Schenning, a Baltimore County assistant state's attorney.

The last defendant to die in the Maryland gas chamber was Daniel Lipscomb, who was executed June 10, 1961, for the murder of three women.

The seven-member commission was set up to address public frustrations with the Maryland court system vented last year in the wake of the carjack-murder of Pam Basu, a Howard County mother. It is charged with coming up with ways to streamline Maryland's 1978 death penalty statute, which has been amended several times. The statute allows for eight levels of judicial review, which means appeals that run an average of about five years.

Appeals may cost as much as $1.5 million each, according to the executive order setting up the commission.

Since the early 1980s, Mr. Cassilly said, public defenders intentionally have began running up the costs of death penalty cases, bringing in unnecessary experts from out-of-state, filing for unneeded changes of venue and filing endless post-conviction appeals.

But defense attorneys said prosecutors often seek the death penalty unnecessarily and that death penalty cases are usually dragged out for years because of mistakes by either prosecutors or trial judges.

Thomas Saunders, chief of the capital defense division of the public defender's office, said that since July 1, 1991, 32 cases in which the death penalty was sought have been resolved and only six have lead to death penalties.

The rest have either been acquittals, or ended with plea agreements, withdrawal of the death penalty notices or partial verdicts that negated the chance of a death penalty.

"Something is happening that is wrong," he said.

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