Maryland Trial Attorneys

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                                  OFFICE OF THE PUBLIC DEFENDER
                                                                                                       NANCY S. FORSTER
                                  DISTRICT EIGHT – BALTIMORE COUNTY                                     PUBLIC DEFENDER

                                            VIRGINIA TOWERS                                      MICHAEL R. MORRISSETTE
                                                                                                    DEPUTY PUBLIC DEFENDER
                                          500 VIRGINIA AVENUE
                                                                                                        THELMA TRIPLIN
                                       TOWSON, MARYLAND 21204                                      DISTRICT PUBLIC DEFENDER
                                     Ph. (410)324-8960      Fax (410)769-7881, 7882
                                                                                                       DONALD ZAREMBA
                                               Toll Free: 1 (877) 430-5187                      DEPUTY DISTRICT PUBLIC DEFENDER

  September 18, 2008


  To: Maryland Commission on Capital Punishment
  From: Donald E. Zaremba, Deputy District Public Defender for Baltimore County

  Re: Commission Testimony

          The fundamental question that must be asked of any law is: Does it
  accomplish the objectives for which it was created? As the Supreme Court has
  reiterated in its death penalty jurisprudence, the only legitimate and constitutional
  purpose of a death penalty statute is to identify and reserve the ultimate punishment
  for those offenders who are the “worst of the worst,” thereby eliminating its random
  and arbitrary imposition. To accomplish this objective, a complicated sentencing
  scheme places the burden on both the State and the defense to establish certain
  aggravating and mitigating factors, which a judge or jury then weighs in deciding a
  sentence of life or death. For the past twenty years, first as an Assistant Public
  Defender in the felony trial division, then Circuit Court Supervisor, and finally as
  Deputy District Public Defender, I have had the opportunity to witness first-hand the
  operation of the death penalty in Baltimore County. In that time, I’ve defended
  numerous death penalty cases and supervised the attorneys defending many
  others. From what I have seen, rather than producing similar outcomes in similar
  cases, the present operation of Maryland’s death penalty law continues to produce
  random and arbitrary results. Unfortunately, more so than the existence of
  identifiable aggravating or mitigating factors, the ultimate decision of who is
  sentenced to live and who is sentenced to die rests with factors that have nothing to
  do with criteria that are proven in the courtroom. As it now exists, the question of
  who lives and who dies depends so much more on how much the attorney cares
  about the client (and is willing to work nights and weekends for over a year because
  there is little time to prepare during the workweek given present caseloads) and
  whether the client is both mature enough and free from mental heath issues to
  recognize and understand that a plea to a lifetime of imprisonment is preferable to

                    Maryland Relay – 711 or 1-800-735-2258 for callers outside the State of Maryland
       In Calendar Year 2006, the last year for which statistics are available, the
Baltimore County Office of the Public Defender (District 8) provided representation in
17,081 cases. 4,136 of these cases were Circuit Court cases, ranging in severity
from violations of probation to murder. There were fourteen attorneys assigned to
the Circuit Court Division in 2006 (there are now fifteen attorneys in the unit). Even
adjusted for cases assigned to panel attorneys because of codefendant conflicts, the
caseload ratio for each attorney averaged 281 cases, well in excess of the ABA and
NLADA recommended maximum caseload guidelines. In fact, based on the
recommendations of the 2005 Maryland Attorney and Staff Workload Assessment of
the National Center for State Courts, fourteen additional attorneys are needed to
ensure representation at maximum recommended caseload levels just for the non-
death penalty cases the office handles. With this staggering caseload as a given,
the Circuit Court public defenders are in court almost every day. When they are not
in court, they are at the jail meeting with clients or otherwise preparing for the next
day’s cases. When the duty and responsibility of defending a death penalty case is
added to this existing workload, something has to give.

       At the beginning of 2007, death notices had been filed in six pending
Baltimore County Public Defender cases. Each case required two attorneys. In two
of the cases, both attorneys were from the Baltimore County Public Defender’s
office. In three cases, the Capital Defense Division of the Office of the Public
Defender provided first chair, and the Baltimore County Office of the Public
Defender provided second chair. The Capital Defense Division provided counsel in
the sixth case. As the office struggled to manage the defense of these cases with its
existing noncapital caseloads, death notices were filed in three additional Baltimore
County cases in 2007, requiring the services of six additional Baltimore County
Public Defenders.

        In the study Federal Death Penalty Cases: Recommendations Concerning the
Cost and Quality of Defense Representation (Judicial Conference of the United
States, 1998), it was determined that a death penalty case requires an average of
1,900 hours of attorney time when the case proceeds to trial, and 1,200 hours even
when the case results in a plea. Proper preparation and investigation for a death
penalty sentencing proceeding requires a complete and thorough investigation of the
client’s entire life, starting with neonatal records and concluding with institutional
records of the client’s pretrial prison adjustment. Numerous persons involved in all
phases of the client’s life must be located and interviewed. An attorney must meet
with a death penalty client at the jail on a frequent and routine basis over the course
many months to establish an effective relationship, especially if there is any hope of
resolving the case in a plea.

             Maryland Relay – 711 or 1-800-735-2258 for callers outside the State of Maryland
        In my first case in which the State filed a notice seeking to execute my client,
a jury found that there was reasonable doubt as to whether the victim died of natural
causes, and acquitted my client of murder. This did not prove to be a unique
experience, however, because a little more than ten years later, a judge rejected
sentencing my client to death, despite a jury verdict to the contrary, because he was
not convinced beyond a reasonable doubt that the victim had been murdered when
presented with evidence that the victim may have died of natural causes. Each
case required the acquisition and review of thousands of pages of medical records,
and the assistance of experts in various fields, including forensic pathology,
microbiology, neurology, and entomology. In the future, I have no doubt that many,
if not most, death penalty cases will turn on complex issues that are not apparent at
the outset of the case, and must be identified, investigated, and presented in a
comprehensive manner. Effective presentation of the issues may require that the
assigned attorneys become proficient in complicated and unfamiliar scientific areas
during the course of the case. Yet given the present state of revenue deficiencies,
with its accompanying hiring freezes for attorneys and support staff, it is hard to
imagine that attorneys will have any more time to work on death penalty cases than
they do at the present time.

        At the same time that attorney caseloads are increasing, the sheer number
and frequency of death notice filings in Baltimore County leave little room for error in
the defense of a death penalty case. When death penalty cases are the norm,
rather than the exception, they can be treated the same as noncapital homicide
cases. When cases are postponed because additional mitigation investigation
needs to be done, there is pressure to set the case in quickly, sometimes within two
to three months. Depending on the judge, voir dire of the jurors can be started and
completed in a day or two. Jury questionnaires that are routinely given in other
jurisdictions are almost never given in Baltimore County death penalty cases. I am
hopeful that the death penalty will no longer be filed in most death eligible cases, but
with a population as large as Baltimore County’s, there is simply no way of knowing
whether at any given time there will be one or nine death penalty cases that must be
defended with the same finite resources.

       When available, the opportunity to plea to a sentence of life without parole to
avoid a sentence of death does not provide a viable safeguard to the random and
arbitrary imposition of the death penalty. Ironically, this alternative is often most
attractive to a defendant who is no stranger to prison and has a prior history of
violent and antisocial behavior. It is least attractive to a younger defendant with no
prior criminal record who cannot envision life without any hope for release as
anything other than a death sentence. Defendants with psychiatric or neurological
issues that impair their cognitive abilities are less likely to understand the benefits of
such a plea in sparing themselves, their families, and the families of victims the
ordeals protracted death penalty appeals and eventual execution, yet these same
impairments are generally regarded as reasons for mitigation of the sentence.

             Maryland Relay – 711 or 1-800-735-2258 for callers outside the State of Maryland
      No eligible applicant is turned away from the Office of the Public Defender,
no matter how thinly the office is stretched, but in the foreseeable future, projected
revenue shortfalls all but ensure that existing staff will be called upon to do even
more with less. As the Commission deliberates to consider its recommendations, I
hope due consideration is given to the realities of defending these extraordinary
cases within a framework of a system that struggles to manage just the ordinary.

                                                                  Very truly yours

                                                                  Donald E. Zaremba
                                                                  Deputy District Public Defender
                                                                  500 Virginia Avenue
                                                                  Towson, MD 21204
                                                                  (410) 324-8963

             Maryland Relay – 711 or 1-800-735-2258 for callers outside the State of Maryland

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