Judge calls California's lethal-injection procedure 'intolerable'

Baltimore Sun December 20, 2006

Md. executions halted

State court finds procedures established improperly

In a narrowly tailored decision with potentially sweeping consequences, Maryland's highest court ordered a halt yesterday to executions in the state, ruling that procedures for putting prisoners to death were never submitted for the public review required by law.

Under the Court of Appeals ruling, state prison officials face the prospect of having to submit the execution protocols to the scrutiny of a joint legislative committee and schedule a public hearing on the issue. Alternatively, the court ruled, the legislature could exempt the execution procedures from that review process - something that one state senator characterized as "very unlikely."

"One way or another, the legislature is going to need to look at the issue again," said Carl W. Tobias, a law professor at the University of Richmond whose specialty includes federal administrative procedure law, and who has followed the debate surrounding lethal injection procedures in states across the country.

"They're going to want to have hearings, and that could potentially open up the whole death penalty issue for debate," he said. "Then, I guess, most anything could be fair game."

Executions were halted in Florida and California this week amid concerns that lethal injection, as carried out, violates the constitutional ban on cruel and unusual punishment.

Although that argument was not a part of the appeals decided yesterday by the Maryland court in the case of death row inmate Vernon L. Evans Jr., the convicted killer has raised the issue in a federal lawsuit pending in U.S. District Court in Baltimore.

In the opinion handed down yesterday, the judges of the state appeals court rejected three of the convicted killer's four challenges - including one raising questions about racial disparities in the application of the death penalty - and declined to grant him either the new trial or the new sentencing hearing that he had requested. Rather, the court dealt exclusively with the mechanics of how Maryland's execution procedures were drafted.

Those procedures - still deemed confidential but filed as court exhibits in litigation brought in recent years on behalf of death row inmates - were not written or implemented with the required layers of legislative oversight and public scrutiny, so they are "ineffective and may not be used until such time as they are properly adopted," the court unanimously wrote.

Some death penalty opponents, legal experts and capital defense attorneys said the court's decision has paved the way for a debate on the state's method of putting convicted killers to death.

"The Court of Appeals' decision falls in line completely with how lethal injection has just ripped across the nation as an issue that really has turned out to be much more substantive than people initially thought," said Michael Stark, an organizer with the Campaign to End the Death Penalty.

"What the court appears to be mandating is that the process of putting a person to death - the gruesome techniques of putting a person to death - is going to be up to public debate and scrutiny. When really tasked with the details of laying out what is the most efficient way of killing someone, no one is going to be able to stomach that," he said.

A. Stephen Hut Jr., an attorney representing Evans, said the ruling has "significant implications, particularly in light of the events related to lethal injection over the last several days."

"This will allow some of that information and some of the science and expert input to inform the process and the policymakers' decision about what kind of execution procedure Maryland wants to have," he said.

Some activists seized on the ruling as an opportunity to push for Maryland to join the 13 states that do not have capital punishment.

"Don't bother to try to fix this. Maryland can avoid this whole mess by repealing the death penalty," said Jane Henderson, executive director of Maryland Citizens Against State Executions.

"This is a great moment for [Gov.-elect Martin] O'Malley to step up and take some leadership," she said. "If you've got a governor who doesn't like the death penalty and a public that is vastly in favor of instituting life without parole in place of the death penalty, why would you go through the trouble of rewriting execution protocol that may never get used?"

O'Malley, who said yesterday that he had not yet read the court's decision, personally opposes capital punishment.

"I'd like to see us evolve to the point in time where we understand the death penalty does not deter violent crime ... and the resources we put toward it could better be invested elsewhere," the governor-elect said. He added, however, that his personal views would not prevent him from signing a death warrant.

"I'll take an oath to uphold the laws of the state of Maryland," O'Malley said. "That doesn't mean those laws can't be made better and more effective."

Sen. Brian E. Frosh, a Montgomery County Democrat who heads the judiciary committee, said yesterday that he agreed with the appeals court's finding that the legislature never intended to give the Division of Correction free rein in implementing lethal injection procedures. He also said that he expects the "usual panoply" of death penalty-related bills, both to expand and eliminate the practice, to be introduced at the coming legislative session.

He said that while the General Assembly would "get a turn at bat" on the matter raised by the Court of Appeals, the executive branch would have to resolve the issue.

Evans, 57, was sentenced to death for the 1983 contract killings of David Scott Piechowicz and his wife's sister, Susan Kennedy, at the Pikesville motel where they worked. Piechowicz and his wife, Cheryl, had been scheduled to testify in federal court against a Baltimore drug lord.

The ruling in his case extends what has effectively been a ban on Maryland's use of its death chamber since the court postponed his execution in February and agreed to hear four appeals.

Lawyers for Evans were unsuccessful in their arguments that he should be granted a hearing to explore whether he was unfairly sentenced because of the death penalty policy of Baltimore County's top prosecutor and because of statewide racial and geographic disparities in the use of capital punishment. They also failed to persuade the judges that lawyers who represented Evans at his 1992 sentencing hearing did not meet the minimum standards for effective assistance of counsel.

In ruling in Evans' favor on the need for oversight of the execution protocols, the court rejected the state's arguments that the detailed checklist of tasks in Maryland's Execution Operations Manual is not subject to review because the procedures concern "only the internal management" of the Division of Correction and do not "directly affect the rights of the public."

Judge Alan M. Wilner, who authored the court's 102-page majority opinion, wrote: "We are unwilling to assume that the legislature intended to leave to DOC, on its own and without any ... oversight, unbridled authority to determine and then change at will, as a matter of internal management, how that statute is to be implemented."

Karen V. Poe, a spokeswoman for the state's Department of Public Safety and Correctional Services, said the agency's lawyers will review the decision and advise the secretary on what to do.
Source: Baltimore Sun