Victim impact ruling fought

Family remarks delayed in Arundel murder case

Judge to decide life or death first

Move upsets prosecutors

slain women's kin appeal

December 07, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

An Anne Arundel County judge has angered prosecutors by saying she will not hear from the relatives of two murder victims before deciding whether to sentence convicted killer Kenneth E. Abend to death.

Circuit Judge Pamela L. North ruled that victim impact, in this case, is not among the "aggravating" or "mitigating" factors the law says must be considered in deciding whether Abend should die for the January 2002 slayings of his landlady, Laverne M. Browning, and her daughter-in-law, Tamie C. Browning.

The judge said she would allow victim impact statements after she has decided whether Abend will live or die.

Debbie and Randy Browning -- who were to have been the first people to testify in the weeklong death penalty proceeding -- moved yesterday to challenge the judge's ruling. The Maryland Crime Victims' Resource Center Inc., acting on their behalf, asked the state's Court of Special Appeals to allow an immediate appeal and to halt the sentencing hearing until the appeal is decided.

Without such a halt, the judge "will already have made a decision on death" by the time the relatives have their say, said Russell P. Butler, executive director of the group. If that happens, he said, "the victims' voices are meaningless."

The Brownings are children of the older victim, and Randy Browning was married to the younger woman.

Experts on both sides of the capital punishment debate say the decision to delay hearing the victims' impact statements, while not unprecedented, is unusual. There were three weeks of such statements during the California trial of Scott Peterson, convicted last month of killing his pregnant wife.

The statements provide balance to "mitigating" factors describing hardship faced by the accused, said Michael D. Rushford, head of the California-based Criminal Justice Legal Foundation, a pro-death penalty group.

"You can't allow all this stuff on behalf of the defendant if the victim's survivors can't come forward," he said.

At the same time, "in general, bench trials are a lot more unemotional," Rushford said. "Judges usually follow the law and just apply the statute."

Richard C. Dieter, executive director of the Washington-based Death Penalty Information Center, which does not support capital punishment, sees problems with the victim impact statement.

"It can sway a jury solely because a family is articulate and were particularly devastated and seem to be a family that the jury identifies with, as opposed to a forgotten person whose death has no one to speak for [the victim]," he said. "A judge can decide ... whether this information can be relevant, whether it can be prejudicial, whether it could be inflammatory."

Abend decided that North alone, and not a jury, should sentence him. On Friday, North decided that she first will hear the arguments for executing Abend and for sparing his life -- the aggravating and mitigating factors that must be considered by law. After she makes a decision, she will hear the victim impact evidence.

"If the court does not order death, the victim impact evidence will be used to assess the appropriate sentence," North wrote. If she decides to impose a death sentence, the relatives still will be allowed to speak, "to allow the victims' representatives the opportunity to be heard on the matter."

But Anne Arundel County State's Attorney Frank R. Weathersbee, whose office is seeking a death sentence for Abend, called North's ruling "incomprehensible" and "wrong."

Butler, whose group is handling the Brownings' appeal for free, said he hopes the appeals court will act quickly to erase North's ruling. That way, he said, Debbie Browning can speak about her mother and Randy Browning can speak about his wife and their devastated child before North decides on the death sentence.

North convicted Abend last month of three counts of capital murder in the Jan. 12, 2002, deaths of the two women, committing a sexual offense against Tamie Browning and related charges. Abend, 34, did not contest the prosecution's description of the evidence, which included his DNA, his bloody apartment and his remarks to a friend.

North's decision to put off the victim impact statements left Assistant State's Attorney Frank Ragione with no witnesses at yesterday's proceeding. His presentation consisted of asking North to review the facts of the case.

Defense lawyer Carroll McCabe, however, started what is expected to be a week of testimony by telling North she would learn about Abend's bizarre upbringing, his head injuries, his heavy drug use and how he has mended during life as a prisoner and should not be put to death.

Sun staff writer Liz F. Kay contributed to this article.

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