Prosecutor establishes death-penalty policy

March 08, 1995|By Alan J. Craver | Alan J. Craver,Sun Staff Writer

As Howard County prosecutors prepare for two high-profile murder trials, State's Attorney Marna McLendon has established the county's first formal policy to help decide when the death penalty should be sought.

The policy, which took effect March 3, allows relatives of victims and even defense attorneys to have a say in determining whether prosecutors should seek the death penalty in first-degree murder cases.

Advocates for victim's rights welcomed the new policy, although defense attorneys gave the procedures a mixed review.

Ms. McLendon will put the policy to immediate use in the cases of two men charged in slayings in Howard County:

* Daniel Scott Harney, a 40-year-old Owings Mills man accused of shooting his estranged wife at her Ellicott City home the day after Christmas, then fleeing Maryland with their two young sons. His trial is set for July 31.

* Curtis Aden Jamison, a 29-year-old Baltimore man indicted in December in the 1993 slaying of 15-year-old Tara Allison Gladden of Columbia. His trial starts Aug. 7.

Ms. McLendon declined to say whether the prosecution would seek the death penalty for Mr. Harney or Mr. Jamison. She said such a decision in those cases will be made within the next month.

The county becomes the second in Maryland -- after Prince George's County -- to have written guidelines to help prosecutors decide what punishment to seek.

In the past, Howard prosecutors decided to seek the death penalty using an informal, case-by-case process. The prosecution has sought the death penalty about a half-dozen times in the past 10 years.

Ms. McLendon said the policy is needed so the state's attorney's office has consistent procedures on how to handle murder cases.

"I think it's abundantly fair," said Ms. McLendon, who was TC elected in November. "The whole process is thoughtful and reasoned, and not arbitrary."

Under the policy, prosecutors must follow several steps when considering the death penalty in a particular case:

* They must review police reports, interview detectives who handled the case and seek a recommendation from the victim's family.

* The prosecution also must determine if each case meets Maryland's laws governing eligibility for the death penalty. State law sets out several factors, such as a defendant's age and mental condition.

* Finally, the state's attorney's office will weigh the facts of the case that strengthen as well as weaken the prosecution's chances of getting the death penalty at trial. These are called aggravating and mitigating circumstances.

Aggravating circumstances, which strengthen a death-penalty case, include such factors as whether the victim was a police officer or an abducted child.

Mitigating circumstances, which weaken prosecution cases, question whether a killer understood his or her actions and whether the person poses a continuing threat to society.

Prosecutors will ask defense attorneys why the death penalty shouldn't be sought. The attorneys must reply in writing, although they are not required to provide such information.

Ms. McLendon, who has the final say on whether to seek the death penalty, said this step will enable her staff to see the scope of a case before allocating a lot of time and money to lengthy court proceedings that may not end with a death sentence.

Some state's attorneys, such as Frank Weathersbee in Anne Arundel County, also seek input from defense attorneys.

Others, such as Baltimore County State's Attorney Sandra O'Connor, do not.

"I am not the trier of fact," Ms. O'Connor said.

"It's not a role in which I feel comfortable."

Columbia attorney Clarke Ahlers, who represents Mr. Harney, voiced concern about this part of Ms. McLendon's policy, particularly since the prosecution will not be providing defense attorneys with the aggravating circumstances.

"It presupposes guilt and says, 'Come to us on bended knee and say why we shouldn't execute your client,' " Mr. Ahlers said.

But Howard Public Defender Carol Hanson said she doesn't think the policy will pose a problem. She noted that defense attorneys have often informally met with prosecutors to outline why the death penalty should not be sought in certain cases.

"Unless I felt I would be tipping my hand, I certainly would be willing to give it a try," Ms. Hanson said.

Roberta Roper, founder of the Stephanie Roper Committee, a victims' rights group, said any policy that allows victims or their families a voice in the judicial process is a good idea.

"Every individual ought to have the right to express their opinions," Ms. Roper said.

Mr. Ahlers said he's concerned that there is no way to require Howard prosecutors to follow the policy in every case.

"The state's attorney traditionally has policies and then waives those policies when it favors the state's attorney's office," he said. "I don't know what the word policy means for the state's attorney's office."

Mr. Ahlers said it would be best to have a uniform, statewide policy to outline how prosecutors should decide whether to seek the death penalty.

Ms. McLendon acknowledged that defense attorneys do not have any recourse if the prosecution doesn't follow the policy, but she vowed that her office would abide by the new procedures.

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