First death penalty hearing held

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First death penalty hearing held

Md. panel listens to evidence on disparities

By Jennifer McMenamin

Sun reporter

July 29, 2008

A state commission appointed to study the death penalty began its work yesterday by hearing testimony on statistical evidence of racial, geographic and socioeconomic disparities in different states' imposition of death sentences.

University professors, a former judge and statisticians from across the country appeared before the panel, which is assigned to offer recommendations to the General Assembly to ensure the administration of capital punishment in Maryland is "free from bias and error" and capable of achieving "fairness and accuracy."

In the most emotional testimony of the more than four-hour hearing, the brother of the Unabomber and the brother of a Marine convicted of killing an elderly woman during a flashback from his service in Vietnam offered accounts of their starkly different experiences with the criminal justice system.

Although both murder cases were eligible for capital prosecution, Ted Kaczynski was sentenced to life in prison without the possibility of parole for mail bombings that killed three people and injured 23, and Manny Babbitt was executed for the fatal beating of a Sacramento, Calif., woman.

"This can't be happening in America ," David Kaczynski, executive director of New Yorkers Against the Death Penalty, told commission members. "The death penalty is not made for people like [Bill Babbitt]'s brother."

Yesterday's testimony focused primarily on statistical studies completed in recent years that have documented geographic and racial disparities in the imposition of death sentences in Maryland and beyond. Other aspects of the death penalty, including the effects of prolonged capital court cases and the risk of executing innocent people, will be the subject of future hearings.

Pointing out that none of the five convicted killers executed in Maryland since 1978 or the five who remain on the state's death row was sentenced to death for killing a black person, one law professor said that "inexorable zero" should get people's attention.

"In short, the system appears to be broken," said David C. Baldus, a professor at the University of Iowa 's College of Law who has specialized in state and federal courts' use of statistical evidence in discrimination cases. Of particular concern, he explained, is that Maryland 's appeals courts have been unwilling to consider evidence of the pattern of discrimination.

"It appears," he testified, "that repeal of capital punishment is the only feasible way of eradicating the arbitrariness."

Established this year by the state legislature, the 23-member commission is charged with examining a number of issues, including disparities in the application of the death penalty, the cost differential between litigating prolonged capital punishment cases and life imprisonment, and the impact of DNA evidence.

Led by Benjamin R. Civiletti, a former U.S. attorney general who served under President Jimmy Carter, the commission includes a police chief, a former death-row inmate who was exonerated by DNA evidence, a rabbi, a bishop, three family members of murder victims, several legislators and a county prosecutor who has handled capital cases.

The commission must submit a final report on its findings and recommendations by Dec. 15.

There has been an effective ban on Maryland's use of its death chamber since December 2006, when its highest court ruled that the state's execution protocols were improperly developed without legislative oversight or public input.

In May, Gov. Martin O'Malley took the first step toward ending that moratorium, ordering the drafting of new procedures for executing inmates by lethal injection. That process could be completed by the end of the year.

The governor, who opposes capital punishment, had held off ordering new lethal injection protocols to give lawmakers another chance during this year's legislative session to consider repealing the death penalty. But a bill to replace capital punishment with life without parole stalled in a Senate committee for a second year in a row.

The protocols outline the three-drug procedure used for putting condemned prisoners to death. In April, the U.S. Supreme Court upheld Kentucky 's use of lethal injection protocols that are virtually identical to those used in Maryland .

Yesterday's public hearing in Annapolis was the first of four public scheduled through September by the death penalty commission. In addition to the expert witnesses who testified, the hearing drew capital punishment opponents who urged the commission to recommend a repeal of the death penalty on broader grounds.

"I think this is an ethical and moral issue," said Brother Gerard Sullivan, a Fells Point resident and a brother in the Roman Catholic Marian Society who has served as a jail chaplain and has worked with convicted felons serving life sentences at a maximum-security prison in Missouri.

"My experience was that people can change," he testified. "In your consideration, I'd say look at the possibility of people changing. In your recommendations, strongly ask for changes in our correctional system that will help these men change themselves."

During a hearing dominated by statistics and numbers - often from reports and studies that were published and made headlines years ago - the testimony of David Kaczynski and Bill Babbitt seemed to hold the room's attention.

Both men turned in their brothers to the authorities, Kaczynski after discovering the similarities between letters sent to him by his brother and the manifesto published by the Unabomber, and Babbitt after finding among his brother's things a collection of nickels and a cigarette lighter engraved with the initials of an elderly nickel slots player who had been killed nearby.

Both murder defendants had also been diagnosed with mental illnesses. Both were tried by all-white juries. And both were convicted of killing white victims.

"What's remarkable after hearing all the similarities in our cases is the different outcome," Kaczynski testified.

His brother, who is white, was offered a plea and life without the possibility of parole, Manny Babbitt, who is black, was sentenced to death and executed in 1999 on his 50th birthday after spending 20 years on California's death row.

"Look at the differences," Kaczynski told the panel. "My brother had a Ph.D. Bill's brother failed to graduate the sixth grade. My brother went to Harvard. Bill's brother went to Vietnam . My brother killed three people with meditation. Bill's brother, in the midst of a flashback, lashed out at one person who later died of a heart attack."

Outside the hearing room, Kaczynski said that meeting Bill Babbitt had transformed him into a passionate anti-death penalty advocate.

"If people knew how the death penalty was applied, I think people would be surprised by the lack of justice," he said. "It becomes like rolling the dice - except that some people have loaded dice."

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