Death and certainty

May 28, 2002

GOV. PARRIS N. Glendening halted all Maryland executions this month, saying no one should be put to death before a study he commissioned determines whether racial bias pollutes the capital system.

But the governor's not the only person with misgivings. Over the past few years, the courts that hear Maryland death penalty cases on appeal have been weighing in with serious doubts about how fairly this state seeks to take life -- and their concerns go far beyond matters of race.

Judges have questioned whether the state has adequately proved death row inmates' guilt. They've been critical of defense lawyers whose cases on behalf of death row inmates they found to be lacking.

And in an astonishing opinion issued this month, J. Harvie Wilkinson III, chief judge of the U.S. Court of Appeals for the 4th Circuit (which includes Maryland), even suggested that Mr. Glendening consider clemency for one death row inmate because the judge could not affirm his guilt with certainty.

Interestingly, even as the courts suggest something may be wrong with the system, they don't always overturn convictions or sentences. In particular, the 4th Circuit (one of the nation's most conservative benches) has been loath to take prisoners off Maryland's death row.

But the courts' concerns about fairness have become consistent reminders that something may be wrong with the state's capital system. Five judges suggested that Eugene Colvin-el was the victim of bad legal representation before the governor finally commuted his sentence two years ago.

Kevin Wiggins had his death sentence vacated by a federal district judge who said no reasonable juror could have found him guilty. The 4th Circuit reversed that decision because it found that Mr. Wiggins' journey through the courts violated no rule of law -- but Judge Wilkinson expressed his doubts about the case and issued his plea to the governor along with that decision.

And the evidence against Wesley Baker, who three weeks ago faced imminent execution, was described in an opinion upholding his conviction as "not overwhelming."

All of this points to a desperate need for a comprehensive look at the Maryland capital system, and perhaps comprehensive changes to go along with it. Certainty -- of both legal and moral propriety -- must accompany any decision by the state to take a life. And it has become clear through the courts that certainty too often evades Maryland death penalty cases.

The courts cannot fix this problem; that responsibility falls to the state's political leaders.

Governor Glendening took an important step in the right direction with his race study and the moratorium, but the next chief executive will need to go further. The legislature, too, should embrace a wide-ranging inquiry into the death penalty's fairness.

This must be done before Maryland takes another life in the name of justice.

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