The Death Penalty is Different and it Should Be

“The responsibility for determining whether the death penalty should be imposed rests with you and you alone, and you must act with due regard for the consequences of your decision.”

These words, if spoken in another context or with reference to any subject other than directing the taking of a human life by the government, might appear to belabor the obvious or to be unnecessarily or even obnoxiously condescending and pedantic.  Somehow, however, when the Supreme Court admonishes a trial judge or a jury to this effect in a capital case, as it did in a case called Caldwell v. Mississippi, it seems entirely appropriate and not insulting at all.

This is because “Death is Different”.

A separate body of law both statutory and case based (appellate judge-made law) has evolved as a result of litigation involving the death penalty in this state as well as in every other state with a death penalty on the books as well as in the federal courts.  Almost all of it is constitutionally based in some way even if it involves in interpretation of particular state statutes or rules of procedure.

In turn this has caused trials as well as appeals in capital cases to be very different than they are in non-capital cases including even other murder cases where there is no request for the death penalty.  This is entirely appropriate.

The term “due process”, which I emphasize means “fundamental fairness”, frequently heard in the halls of any courthouse.  Capital cases, more than any others, raise the question in many different contexts of “how much process is due”.

Clearly more process is due in a case when the liberty of an individual is at stake as contrasted with a case where only his property is at risk.  Even more process is due, however, to a person accused of a capital crime, when his very life is at issue in litigation.  This issue of whether a defendant has received due process, i.e. has he been treated fairly, is the subject of most appeals including the appeal of the capital cases that I handled as a judge.

I will illustrate why both the trial and appeal in capital cases are different by discussing two of the issues raised in the appeal of one of the capital cases that I handled.

That case is in various stages of litigation and appeals in the federal courts as well as in my court and the appellate court of this state.  For that reason, I cannot ethically comment on the case with respect to any issues still pending.  I am, however, free to discuss those issues which have already been decided and, for that reason, are a matter of public record and no longer issues in the case.

The first issue, and the more substantive one, resulted from the defendant being convicted of two separate first degree murders as a result of his stabbing an elderly couple to death after being confronted by them in their home which he had broken into and entered moments earlier.  The State requested the death penalty for both first-degree murders.  The defendant chose trial by jury for both the guilt/innocence phase and the sentencing phase of the trial on both murder counts.

Prior to this case, the Rule of Procedure and the form promulgated by the Maryland Court of Appeals for the jury to report its verdict in a capital case as required by the death penalty statute simply did not provide for the situation, such as in my case where there were two first degree premeditated murders and the defendant was found guilty as a principal in the first degree of both. The form simply provided for a single determination of the aggravating factors and mitigating factors.  Therefore, in my case it was necessary to modify the proscribed form or double it.

The more cautious approach, which I chose initially, was to simply submit two separate forms, one for each victim, so it would be clear that the jury made the required findings separately for each victim.  However, both the State’s Attorney and defense counsel recognized that under the particular facts of this case, the aggravating and mitigating factors associated with the murder of each victim would of necessity be the same.  They therefore jointly requested a single form which provided for the required separate findings on the issue of whether the defendant committed each murder as a “principal in the first degree” but integrated the other findings.  The State’s Attorney and defense counsel each had his own individual tactical reason for doing so, but their interests converged, albeit for different reasons.  Their agreement and the request for the single form were placed on the record.  I then agreed to do what both sides had requested in lieu of the more cautious approach I had originally planned which was to submit to the jury two completely separate forms.  The jury returned a verdict directing the imposition of a sentence of death for both murders, which I then imposed pursuant to the statute.  That decision was by law automatically reviewed by the Court of Appeals of Maryland.  The defendant’s new attorney on appeal apparently concluded that his trial attorney had made a mistake in requesting the integrated forms and that I had erred in approving it.

There is well settled case law (judge-made law) that if you do not object to a judge doing something or not doing something that you cannot complain about it on appeal.  It is called the law of “waiver” or “issue preservation”.

In this case, not only was there no objection to the integrated form, there was a joint request for it.  In this capital case however, the Court of Appeals simply chose to not apply the procedural law on when an issue is waived and cannot be appealed.  They did so by simply stating that they did not wish to dispose of the issue of whether the defendant and a constitutional due process right to have two separate determinations on separate forms of the aggravating and mitigating factors as to each death penalty requested on this procedural basis “in a case like this”.  They did so quite obviously because they felt that more process was due in a capital case than in any other.  They then ruled that two separate forms must be used whenever more than one death penalty is requested in the same case.

Five judges of the court of Appeals concluded that because I had used only a single form they would affirm one death penalty sentence because it was clear that this was what the jury intended, but that the second death penalty sentence would be vacated.

One judge dissented and said there was no error by me and even if there was error, it was waived and therefore both death penalty sentences should be affirmed.

Another judge dissented saying both death penalty sentences should be vacated and the case returned to the trial court for resentencing.

So, by a majority voted of the judges of the Court of Appeals, the defendant remains as one of the individuals on death row in Maryland,  Besides presenting the classic “good news/bad news” dilemma for the defendant, this ruling illustrates why death penalty cases are different.

The other issue, which was less substantive but does illustrate my point in a different way, arose because the defendant felt aggrieved that the Chief Judge of the Court of Appeals of Maryland had directed prior to his case that in order for a circuit court judge to be assigned to preside of a capital case, he or she must have previously completed the Judicial Institute course called “The Handling of the Capital Case”.  The Judicial Institute is the organization which provides continuing judicial education for Maryland judges.

At the time I was assigned to defendant’s case, I was one of six judges on the Circuit Court for Prince George’s County that had completed this course.  The defendant’s counsel’s theory was that since registration for this course was completely voluntary, only a judge predisposed to favor and therefore impose the death penalty, would enroll in and complete such a course.  He then asserted that this defendant should not be required to have such a judge preside over his case and that I should recuse myself for that reason.

The Maryland Court of Appeals in ruling on the appeal of my denial of that motion summarily rejected this theory.  In doing so, they stated that it was obvious that because a judge educates himself to be able to better handle capital or any other cases, such action cannot be considered as proof or even evidence of any predisposition on the part of that judge to want to impose the death penalty and that this judicial education is to the benefit, not the detriment, of the parties, in the case, both the State of Maryland and the defendant.

The Court of Appeals then firmly rejected the defendant’s claim of a constitutional right to choose a judge of a particular philosophy beyond one that subscribes to his duty to apply the law fairly and impartially, as his oath requires.

What made this issue interesting for me instead of just silly is that defense counsel requested the right to “voir dire” (question) me on my attitude about the death penalty sentence in Maryland.  I allowed him to do so, on the record, even though the Court of Appeals made it very clear in their opinion that I was not required to do so.

One of his questions was whether I personally thought there should be a death penalty sentence in Maryland.  My answer was “I don’t know”.

It seems to me that the central dilemma posed by this issue is that in order for the death penalty to serve as an effective deterrent it must be swift and certain.

On the other hand, because it is the government taking the life of one of its citizens, not just his liberty or property, due process precludes both swiftness and certainty.

Therefore, the death penalty sentence is constitutionally precluded from effectively serving as a deterrent.

The only purpose left then is punishment and a good argument can be made that the history of the death penalty, both in Maryland and elsewhere, is that this ultimate punishment has not historically been fairly and impartially imposed.  Indeed, retired and deceased, Justice Harry Blackman reached this conclusion after many years as a pro-death penalty Supreme Court justice when he announced near the end of his judicial career that he would “no longer tinker with the machinery of death because it cannot be fixed”.

Having already done so once, I will do it again if the law requires it.  I remain hopeful however, that as the late Supreme Court Justice William J. Brennan, Jr., said, some day, not tomorrow, indeed perhaps years from now, “the evolving standards of human decency will finally lead to the abolition of the death penalty in this country”.

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