Restrictions in Death Penalty Bill May Go Too Far 3-05-09
The revised death penalty bill (SB 279 - Criminal Law - Death Penalty - Evidence) passed third reader on the floor of the Maryland Senate by a vote of 34 to 13. The third reader debate focused on types of evidence that would be excluded from death penalty eligibility under the “Zirkin Amendment” that was adopted earlier this week.
Arguments were raised on the Senate floor that the three categories of evidence under the Zirken Amendment restrict too tightly the types of evidence that can be produced in the courtroom in a death penalty case. Republican Senators questioned whether there are many types of horrific murders where these three types of evidence would not be available.
An Attorney General letter of advice requested by Senator Alex Mooney (R – Frederick & Washington) opined that fingerprints would not be considered “biological” evidence as defined under the criminal statute. As part of the floor debate, Senator Mooney argued that many voted on Tuesday for the Zirkin Amendment under the assumption that fingerprints would be included. Senator Mooney also requested advice received by email from the Attorney General's office stating that still photographs would also be excluded for death penalty eligibility because the amendment specifies only videotaped evidence would be allowed.
Senator David Brinkley (R - Frederick & Carroll) described the biggest omission under the Zirkin Amendment as excluding "murders for hire" under the death penalty. It is unlikely that the perpetrator in a contract killing would leave DNA or biological evidence because by hiring a gunman they would be totally removed from the scene. It is also remote that they would be videotaped at the scene or in a confession. Thus only the gunman in a contract killing could receive the death penalty.
After describing his acquaintance with a victim's family in a death penalty case, Senator Andy Harris (R - Baltimore & Harford) urged Senators to recommit the bill to committee so that the uncertainties over the exclusion of fingerprint and still photograph evidence could be examined and the bill improved prior to a final vote.
Minority Leader Allan Kittleman (R - Howard & Carroll) expressed regret about the process of amending the bill on the floor without members having full knowledge of the exclusion of such basic standards of evidence. He made a motion that the bill be recommitted to the Senate Judicial Proceedings Committee. That motion failed by a vote of 15 yeas and 32 nays.
After expressing strong concerns about the new evidentiary requirements under the Zirkin Amendment, a motion was made by Senator Norman Stone (D - Baltimore) to move the bill back to second reader on the Senate floor so that corrective amendments could be offered. That motion also failed by a vote of 15 yeas and 32 nays.
Senator Nancy Jacobs then provided the body with an illustration of how restrictive the new requirements could be. She described the example of a prior Baltimore County death penalty case involving a bank robber named Louis Hill. During course of bank robbery, Hill shot four people inside the bank, killing two of them. He was conclusively proven guilty but none of the evidence fits into requirements of the Zirkin Amendment:
* He was caught running from scene
* A still photograph captured him in the bank
* He was caught wearing same clothes as in still photograph
* The stolen money was in his pocket when he was caught
* The gun used in the bank murders was conclusively linked to his possession
Under the standards of Senate Bill 279 with the Zirkin Amendment, Hill could not qualify for the death penalty because he left no DNA or biological evidence at the scene, there was no videotape surveillance at the scene and he did not confess in a videotaped recording. In fact, of Baltimore County's last six death penalty verdicts, three similarly would not qualify under the Zirkin Amendment.
After passage on third reader, Senate Bill 279 now passes over to the House of Delegates for consideration by the House Judiciary Committee.