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                      *      *   *   *       *

                      COMMISSION MEETING

                      *      *   *   *       *

                     ANNAPOLIS, MARYLAND

                          OCTOBER 24, 2008

                      *      *   *   *       *


Transcriptionist:           IRWIN REPORTING & VIDEO, LLC
                            Robin C. Comotto, Notary Public

Proceedings recorded by digital CD recording.
Transcript produced by transcription service.

IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880


Benjamin Civiletti, Esquire    Former United States
                               Attorney General/
                               Commission Chairman

Matthew Campbell, Esq.         Representing Member of
                               The Public

William Spellbring             Former Judge
                               Circuit Court for
                               Prince George's County

Scott Shellenberger, Esquire   Baltimore County
                               State's Attorney

Sandy Rosenberg                Delegate, District 41,
                               Baltimore City

Percel Odel Alston, Jr.        Representing the
                               Maryland Fraternal
                               Order of Police

James N. Robey                 Senator
                               Maryland State Senate

David Kendall, Esquire         Williams & Connelly,
                               LLP, Representing
                               Members of the Public

Rick N. Prothero               Representing Family
                               Members Of Murder

Vicki A. Schieber              Representing Family
                               Members of Murder

Kirk Noble Bloodsworth         Exonerated Former
                               State Prisoner

IRWIN REPORTING & VIDEO, LLC            (410) 494 - 1880


Rachel Philofsky                  Director of the
                                  Statistical Analysis
                                  Center, Governor's
                                  Office Of Crime,
                                  Control and Prevention

Noel Lewis Godfrey                Correctional officer

Katy O'Donnell, Esquire           Chief Attorney of the
                                  Maryland Office of the
                                  Public Defender
                                  Capital Defense Div.

Ráchael Powers                    Statistical Analyst
                                  Governor's Office of
                                  Crime, Control and

Oliver Smith                      Representing Family
                                  Members of Murder

Adrienne A. Jones                 Delegate, House of
                                  Speaker Pro Tem

Danette R. Edwards, Esq.          Venable, LLP

IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880


Opening Comments
    Chairman Civiletti         5

    Commissioner Campbell      10

    Rachel Philofsky           81
    Ráchael Powers             124
    Danette Edwards            154

Closing Comments
    Chairman Civiletti         203

IRWIN REPORTING & VIDEO, LLC   (410) 494 - 1880

 1                     P R O C E E D I N G S

 2             (At 00:00 minutes into the recording, on

 3   the record, commission meeting began.)

 4             CHAIRMAN CIVILETTI:    ... tonight, or who

 5   are late, some of both, perhaps.

 6             And there are a couple of procedural

 7   issues that I would like you all to consider, and

 8   then advise me as to your pleasure.

 9             If you didn't know it before you have

10   learned that capital punishment is a very complex

11   and very difficult set of issues.     There are

12   viewpoints on almost all subcategories of issues

13   on both sides of a proposition.     There's been a

14   lot of focus on -- from experts as well as from

15   the public, on one aspect or another, of capital

16   punishment.

17             There's been some focus, I think

18   particularly from Professor Millemann of the

19   University of Maryland Law School, and Professor

20   Fagan, on a subject that I'm very much interested

21   in, and I'm trying to see how I can fit it into

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   the Commission's work, and it doesn't fit too

 2   well, but I'm interested in the prevention of

 3   homicides and their terrible consequences to

 4   society, and particularly, to the victim and the

 5   victim's family.

 6             And fortunately in some major cities, and

 7   now there's a glimmer of home in Baltimore,

 8   homicides are down this year, fairly

 9   dramatically.     And homicides dropped very

10   dramatically in New York City over the last ten

11   years.    There's no magic pill which has caused

12   fewer homicides, but there's a whole series of

13   factors which may have an influence, which both

14   of those professors spoke to.

15             And in an indirect way, some of those

16   factors are considerations, among the

17   considerations of the eight or so issues which

18   we're dealing with.       Baltimore seems -- Baltimore

19   City, with the major and superintendent, seem to

20   have made progress with regard to special

21   emphasis on areas of too many or a great many

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   homicides, and an intelligence process so that

 2   violent predators are spotted earlier -- those

 3   with the propensity to commit murder are spotted

 4   earlier and if they commit a crime are processed

 5   quickly and given long sentences, which serve the

 6   purpose of either rehabilitation or

 7   incapacitation, at least.

 8             In New York's case, there's an assessment

 9   that one of the factors, major factors, was an

10   attention to and concentration on prosecution of

11   gun violations, as well as focus on crime centers

12   and the leading participants in those centers.

13             As to some procedural issues, because the

14   discussion draft only was distributed this

15   morning, and because it's not -- it does not have

16   the benefit of observations and conclusions and

17   give and take of commissioners, either generally

18   or on a particular topic, one of the questions

19   which I have is whether we should have, or

20   schedule another meeting of the Commission,

21   between now and I think our final approval

     IRWIN REPORTING & VIDEO, LLC            (410) 494 - 1880

 1   meeting was set sometime in -- November 28th, so

 2   that -- I'd be interested in your views as to

 3   whether it would be helpful or desirable to have

 4   a discussion, further discussion and vote

 5   meeting, between now and that scheduled last

 6   meeting.

 7              Also, I think you'll notice in the

 8   materials which were delivered, I think, this

 9   morning to you or early this afternoon, that

10   there isn't very much said about deterrence.       And

11   we had a good bit of testimony with regard to

12   deterrence and written submissions from a great

13   many more, deterrent experts, and we had a

14   summary, I think, of deterrence that the staff

15   prepared.

16              And I also asked Matt to take a very look

17   at that subject and be prepared to discuss it.

18   In that regard, I was particularly interested in

19   Professor Fagan's viewpoint that -- putting aside

20   that he felt there was no deterrent effect

21   because, for whatever reasons, that he felt just

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   the contrary with regard to arrests for homicide.

 2   And that where there was a very strong success

 3   rate and clearance rate for homicides, and

 4   imprisonments, that that had a substantial

 5   deterrent effect on people committing homicide

 6   because there was a great certainty of being

 7   caught.

 8             In any event, during the course of this

 9   evening, I would like to give Matt the

10   opportunity to talk some with you about the

11   subject of deterrence.         I've also asked Secretary

12   Maynard, through his able representative, Tony,

13   to prepare some findings or some evidence,

14   materials, which I think have been distributed to

15   you also, today, on topics relating to

16   correctional system, and she is here, Tony's here

17   to answer any questions that any commissioner may

18   have on those topics, and she said that she'd

19   know all the answers, so don't hesitate.          She

20   said that if she didn't know an answer she'd go

21   back and get it.

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             So, with that, Matt, why don't you --

 2             And I'll take any suggestions as to how

 3   we go about this meeting that anyone has.        But I

 4   would intend for Matt to speak on his topic,

 5   first, and then simply to go through the topics,

 6   as they're indicated in the draft, and as I said

 7   to Scott earlier, I would like to think there's a

 8   consensus on all topics and subjects, but I'm not

 9   quite that stupid or gullible.       So there may be

10   different views on one or more, and don't

11   hesitate to express them       And it will not

12   surprise me, although it would perhaps disappoint

13   me some, if there is a minority report which

14   reflects at least some of the divergent views on

15   some of the topics.       I hope that on some topics

16   we will have unanimity, but perhaps that's a fond

17   hope only.

18             All right, with that, Matt?

19             COMMISSIONER CAMPBELL:     Thank you, Mr.

20   Chairman.    I appreciate the opportunity to have

21   reviewed the testimony and the evidence that we

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   received on deterrence.        I have to say, as a

 2   former prosecutor, it's a topic that I'm

 3   particularly interested in.       I want to say as a

 4   preface, just in case anybody wonders, I came to

 5   this Commission with a view, based on my

 6   experience as a prosecutor, that capital

 7   punishment does not contribute to the fair and

 8   effective enforcement of the law.

 9             As a member of the prosecution community

10   and the law enforcement community, I found, in my

11   experience, from what I was able to observe, that

12   the death penalty was no friend to prosecution.

13   But I think it was in our second meeting that

14   Chief DiPino, and I'm sorry she isn't here today,

15   said something that struck a chord.       She said

16   that she hoped we would keep, insofar as was

17   possible for each of us to do, an open mind as we

18   considered the testimony and the evidence brought

19   before us by the staff and these proceedings.

20             And that certainly was, to me, a reminder

21   that the job we have to do here is not just to

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   advocate and be adversaries in favor of

 2   preconceived opinions and views, but to be

 3   willing to learn -- and I certainly have a need

 4   to learn -- what we need to know in order to make

 5   the best informed recommendations to our governor

 6   and legislature, in the public interest.

 7             Now, as for deterrence, I have to admit

 8   that I was particularly ignorant of what those

 9   who study the subject have to say about the

10   question of whether or not capital punishment and

11   executions serve as a deterrent to homicide.

12   That is to say, whether executions save lives.

13   And I was struck by one of our witnesses who

14   quoted a professor, a prominent professor, named

15   Kas Sustein (phonetic) -- probably, his name is

16   familiar to some of you -- to the effect that if

17   the evidence shows that capital punishment deters

18   murder; that is, that executions save lives,

19   then, as a society, we have a moral obligation to

20   embrace it and utilize it.

21             Now, you may recall that we heard, I

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   think, two primary witnesses on the topic.         The

 2   first was Dr. Bryan Forst, from American

 3   University, who has spent a good portion of his

 4   academic career analyzing and study and

 5   conducting a major study himself on the question

 6   of whether or not capital punishment is a

 7   deterrent.

 8             And I thought it was also noteworthy that

 9   he made clear, right from the outset, that he is

10   not an advocate either in favor of the death

11   penalty or in favor of repeal.      He is neutral.

12   He sees that there are meritorious arguments,

13   respectable arguments, on both sides of this

14   issue.

15             So what did he say?     His conclusion was

16   "there is, in short, no convincing evidence that

17   the death penalty deters homicide.      This had

18   become clear," he said, "by the mid-1980's, and

19   it has been confirmed and reconfirmed," he said,

20   "by subsequent studies."       He said, also, and this

21   touches on something that you touched on a moment

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   ago, Mr. Chairman, "generally, risk of arrest is

 2   a stronger deterrent than risk of conviction.

 3   And risk of conviction is a stronger deterrent

 4   than the risk of a more severe sentence."

 5             Now, he told us that the research on this

 6   subject goes back to the twenties, but that

 7   starting in the '60's there was a slew of

 8   studies, using the so-called natural experiment

 9   of comparing homicide rates of death penalty

10   states, on the one hand, and non-death penalty

11   states, on the other hand.     He told us, and I

12   think that Professor Fagan endorsed this, that

13   the most significant study, at that time, was by

14   a scholar named Thorston Stellin (phonetic), who

15   found that there were no systemic differences in

16   homicide rates in death penalty states as

17   compared to homicide rates in non-death penalty

18   states, that could be attributed fairly to the

19   existence of capital punishment.     And he told us

20   that Professor Stellin's work had been reviewed,

21   critiqued and found to be sound.

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1             He said that then, in the mid-1970's, a

 2   scholar by the name of Isaac Ehrlich produced a

 3   report, a study -- it was the first one in the

 4   literature that concluded that death penalty

 5   deters.    He used what Dr. Forst said were a

 6   longitudinal study and a cross-sectional study.

 7             And I think it's important to pause just

 8   for a moment to see what those meant.    And Dr.

 9   Forst explained that the longitudinal study was a

10   study that spanned a period of time from 1933 to

11   1969.   Now, Dr. Forst said that in that period of

12   time, the study's results were really driven by

13   the increase in the homicide rate in the 1960's.

14   The question, to Dr. Forst, was whether the

15   increase in homicide in the '60's was causally

16   related to the suspension of the death penalty.

17   Isaac Ehrlich said, "yes," and he estimated that

18   each execution, between 1933 and 1969, and this

19   is in his study, prevented eight homicides.

20             Now, Dr. Ehrlich's cross-sectional study

21   didn't come to quite the same results.   He

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   compared, in that study, death penalty states

 2   versus non-death penalty states, and studied the

 3   homicide rates, and found that there was a

 4   deterrent effect, according to him, in only two

 5   years -- 1940 and 1950.

 6             Now, Dr. Forst and Dr. Fagan both told us

 7   that many people analyzed the Ehrlich study.          It

 8   was very controversial and it got a lot of

 9   attention.     And they both told us that the

10   consensus, the substantial consensus of the

11   students of the subject, in the world of

12   Academia, is that Ehrlich's study cannot

13   withstand scrutiny.       That it is not in the

14   parlance of the academics, "robust."

15             Now, Dr. Forst told us that over the last

16   ten years there have been approximately a dozen

17   additional studies that claim that executions

18   deter murders.      The precise numbers of lives

19   saved, as reflected in these studies, is sort of

20   all over the map.       One study says each execution

21   saves between three and eighteen lives.       Another

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   says that the unofficial moratorium on executions

 2   in Texas caused the loss of ninety victims to

 3   murder.    Some scholars claim that a pardon of a

 4   death row inmate, or the exoneration and release

 5   of a condemned person actually increases the

 6   murder rate.

 7             Now, Dr. Forst focused on whether or not

 8   the increased homicide rate in the '60's was

 9   caused by the suspension of executions, and he

10   studied the decade and the data coming from all

11   fifty states.     And I've told you what his

12   conclusion was, and that conclusion was that

13   there simply is not convincing evidence that

14   there is a deterrent effect of the death penalty

15   on the homicide rate.

16             Dr. Forst was followed by Dr. Lawrence

17   Fagan, the Professor of Law and Public Health at

18   Columbia.    Dr. Fagan focused more closely on what

19   he believes are the flaws in the twelve or so

20   studies that argue that there is a deterrent

21   effect of execution, that have been published

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   since approximately the year 2000.

 2             Dr. Fagan, in his published work, has

 3   sorted out capital murders from all the other

 4   murders and just focused on capital murders.             And

 5   he concluded that if you do that the homicide

 6   rate is flat over time, unaffected by periods

 7   when there is an increase in the number of

 8   executions and unaffected by the periods in which

 9   there is a decrease in executions, down to zero

10   in a number of years.          So he concluded that that

11   suggests to him a lack of a cause and effect

12   deterrent effect of capital punishment.

13             Dr. Fagan's critiques of the twelve

14   studies were several.          One, he said the studies

15   cannot be replicated.          He called this a serious

16   flaw.   I seem to remember my high school biology

17   teacher suggesting the same thing -- that if

18   studies cannot be replicated that can be a strong

19   indication of a problem in the science.

20             Two, the various studies come to erratic,

21   widely variable, and sometimes internally

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   inconsistent results.          For example, on the

 2   primary advocates, writers of studies and arguers

 3   in favor of the concept that the death penalty

 4   deters is a Dr. Joanna Sheppard.          She has

 5   written, in one instance, that each executions

 6   saves somewhere between three to eighteen lives.

 7   She has also written, in a cross-sectional study,

 8   that in six states executions deter murder, in

 9   eight states executions have no effect on the

10   homicide rate, and in thirteen states executions

11   actually increase the homicide rate, which she

12   referred to, and I think you heard both Dr. Forst

13   and Dr. Fagan mention as the brutalization

14   effect.

15             Both Dr. Forst and Dr. Fagan said that

16   one of the issues they have with this literature

17   is that the studies fail to take into

18   consideration factors that are widely accepted in

19   the field of criminology as being quite

20   influential on murder rates.         Certainly those

21   here who have been part of the criminal law

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   enforcement community know that it's not strange

 2   news that the heroin epidemic of the sixties, the

 3   cocaine epidemic of the seventies, and

 4   particularly the crack cocaine epidemic of the

 5   eighties stretching into the nineties, during a

 6   time when there was a proliferation of handguns,

 7   had a substantial impact on homicide rates in

 8   those three decades.

 9             Both Dr. Forst and Dr. Fagan were

10   concerned that the studies don’t take into

11   account the fact that in most states executions

12   are relatively rare occurrences, and rare events

13   don’t seem to be provably influential on peoples'

14   behavior.    The studies don’t take into

15   consideration what, if any, impact life without

16   parole, which has spread through the country in

17   recent years, has on the homicide rate.      The

18   studies don’t take into account the substantial

19   literature that our Chairman mentioned that it is

20   the risk of being caught that has deterrent

21   value.

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1             And the studies assume that homicidal

 2   behavior is rational behavior, and the literature

 3   and the scholarship seems to suggest, and I think

 4   the experience of many people in this room

 5   suggest, murderers are often anti-social people.

 6   They are often people who suffer from various

 7   pathologies, emotional, mental disorders, and

 8   substance abuse.

 9             In an article that the staff made

10   available to us, that was authored by Dr. Fagan,

11   Dr. Fagan noted that the studies arguing for a

12   deterrent effect of executions are econometric

13   studies, coming primarily from the field of

14   economics.     And that economists' assumptions can

15   lead, in the field of behavioral science, to

16   mistaken results.      The economists consider

17   punishment a cost and it is a primary, sort of

18   fundamental precept of economics, that people

19   avoid cost, so it leads to an assumption that

20   people -- that the cost, being punishment, deters

21   criminal activity, particularly murderous

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   activity.

 2             So Dr. Fagan's ultimate conclusion was,

 3   and I quote, "the only scientifically and

 4   ethically acceptable conclusion from the complete

 5   body of existing social science literature, on

 6   deterrence and the death penalty, is that it is

 7   impossible to tell whether deterrent effects are

 8   strong, are weak, or whether they exist at all."

 9             Now, we heard other evidence, and we've

10   been able to read through some of our materials

11   provided by the staff, that supports the logic of

12   this scholarly view.       The unpredictability, the

13   fact that the death penalty is unpredictably

14   applied, that somewhat similar cases can be

15   treated very differently, even in a state so

16   small as Maryland.

17             The fact that less than one percent of

18   convicted murderers receive the death penalty,

19   and less than one half of one percent are

20   executed means, to Dr. Fagan, that if a murderer

21   is rationally assessing the odds of being

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   executed, they are remote.     A rational murderer,

 2   if there is one, would consider that he has a

 3   ninety nine point five percent of avoiding

 4   execution, even if caught and convicted.

 5             The fact that so many capital murders are

 6   crimes of impulsive, irrational violence, and the

 7   fact that there just is so little data to judge,

 8   even in a state like Texas, according to the

 9   consensus of the scholars, whether or not

10   executions deter murder.

11             Now one facet of deterrence that was of

12   interest of to us is whether the death penalty

13   can deter violence, in prison, by lifers.

14   Whether, in the words of Joe Casilly, eliminating

15   the death penalty provides a free pass to those

16   people.    The research, as testified to by Dr.

17   Robert Johnston, is that lifers are no more

18   likely than other prisoners to commit violent

19   offenses.    And Dr. Fagan says that the research

20   suggests institutional murders are lower in those

21   states that invest in well-managed prison

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   facilities, and that the evidence correlates

 2   lower institutional murder rates with higher

 3   investment in safe and well-managed prisons.

 4              Certainly the testimony of Calvin

 5   Lightfoot, when he talked about his career as a

 6   correctional officer and a director of several

 7   different correctional facilities, told us, quite

 8   frankly, that in his experience, the death

 9   penalty does not deter prison violence.

10              Now, I wondered whether Dr. Forst and Dr.

11   Fagan were lonely voices in the wilderness.           And

12   I was able, through some of the materials

13   provided by the staff, to take a look at a survey

14   of scholars, of criminologists, who are on the

15   record on the issue of deterrence of the death

16   penalty.

17              The survey was conducted by two scholars.

18   It just so happens I know they are very well

19   respected and I know one of them -- Michael

20   Radelet and Ronald Akers.        Akers is out of the

21   University of Florida.         They surveyed seventy

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   prominent criminologists.      They're all former

 2   presidents of either then Academy of Criminal

 3   Justice Sciences, the American Society of

 4   Criminology, and the Law and Society Association.

 5             Eighty-six percent of those people who

 6   were surveyed, of those seventy, agreed that the

 7   death penalty would not have any, does not have

 8   any significant effect murder rate.     Eighty

 9   percent disagreed that increasing the frequency

10   of executions, a topic that has come up from time

11   to time in our discussions, would deter

12   homicides.

13             So there seems to be wide consensus among

14   American's top criminologists, which we can, I

15   think, we can presume are well informed on this

16   issue, that the death penalty does and can do

17   very little to reduce rates of criminal violence.

18             Now, as a prosecutor, I must say I was

19   humbled to learn long ago that prosecutors,

20   probably because of the day to day pressures on

21   them, are not nearly as good as some other

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   professionals in seeking to be guided by the

 2   research in order to make well informed policy

 3   decisions about what we do.     I found, over my

 4   career, the police are much better at it, with

 5   the Police Executive Research Foundation, for

 6   example.    Police agencies do a lot more research

 7   and do a lot more to incorporate it into their

 8   policies than prosecutors do.

 9              And I thought it was therefore helpful,

10   and you may, too, to find that we have a 1995

11   survey by an outfit called the Heart Research

12   Associates -- if you Google you can see that

13   they're a pretty well respected outfit -- in

14   1995, they did a survey of three hundred and

15   eighty-six randomly selected chiefs of police,

16   and it showed that two thirds of the chiefs of

17   police, around the nation, did not believe that

18   the death penalty significantly deters homicide.

19              Over two thirds of the police chiefs

20   surveyed, the men and women who really are on the

21   front lines of crime, rank the death penalty as

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   the least -- they had a choice to make -- what

 2   was the most effective and what were the least

 3   effective tools, policies, things that can be

 4   done.   And they said that the death penalty was

 5   the least important tool for reducing crime.            Not

 6   inconsistent with what Dr. Fagan and Dr. Forst

 7   told us, the police chiefs believe that swift and

 8   sure punishment is the most effective deterrent.

 9             That reducing drug abuse, simplifying

10   court rules, dealing with joblessness, applying

11   longer sentences when appropriate, putting more

12   police on the streets, especially in high crime

13   areas, and reducing the availability of guns --

14   these all ranked, all ranked above the death

15   penalty, in the view of the police chiefs, as

16   being potentially effective in reducing crimes of

17   violence and homicide.         Most police chiefs don't

18   think that murders think about the range of

19   punishments when they kill.

20             Now to sum up, the experts who testified,

21   the materials compiled by our staff, and the

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   consensus of top police and top scholars around

 2   the country, agree that there is no persuasive

 3   evidence that executions deter.

 4             And Mr. Chairman, that's my summary.

 5             CHAIRMAN CIVILETTI:        Thanks very much,

 6   Matt.   Are there observations, or questions, or

 7   comments from any commissioners?

 8             Yes, Your Honor?

 9             COMMISSIONER SPELLBRING:        Matt, I recall

10   the testimony of the two gentlemen that you've

11   summarized for us.       And I do recall them saying

12   that there were studies that favored deterrence

13   and there were studies that were against the

14   theory of deterrence.          Does your research

15   identify the number of studies in each column?

16             COMMISSIONER CAMPBELL:        Judge, the number

17   of studies, as I understand it, since about 2000,

18   that propound the view that the death penalty

19   deters, is about twelve.         The number of

20   studies -- I can't give you an estimate on the

21   number of studies that come to the other opinion,

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1   but let me say the other opinion is not

 2   necessarily across the board a flat statement

 3   that the death penalty does not deter.

 4             Many of the studies say, the scholarship

 5   in those twelve studies is simply not robust.         It

 6   ignores too many important factors that are

 7   really outside the field of the economists who

 8   are responsible for most of those studies.       And

 9   they can't be replicated, and they are driven by

10   what they called the outliers, those states in

11   which the conclusions that are drawn from the

12   regression analyses that are made of the data

13   from those states where there are almost no

14   executions, versus states, like Texas, where

15   there are the most executions.

16             I can tell you that until the study by

17   Ehrlich, in the 1970's, there were no studies

18   that correlated the death penalty with a

19   deterrent impact on homicides.   So I think that

20   the majority of the studies do not support the

21   argument that the death penalty has a deterrent

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   value.

 2             One of the most significant studies that

 3   might be of interest to members of the Commission

 4   is a 2006 study that was widely reviewed and

 5   praised for its integrity, that was published in

 6   the Stanford Law Review.       And it's cited in our

 7   materials, and I somewhere have a note of that

 8   one, and it was -- it set out specifically to

 9   take a look at the state of the research in the

10   year 2006, in sort of the midst of this flurry of

11   studies that began to suggest, from the

12   econometrics' viewpoint, that there was a causal

13   link.

14             CHAIRMAN CIVILETTI:      All right.   Well,

15   thank you very much for that report and

16   assessment, and I think the New Jersey

17   Commission, on the issue of deterrence, used a

18   fifty dollar word instead of a five dollar word,

19   and said that there was no penalogical benefit

20   from the death penalty.        Now I don’t know if that

21   meant deterrence or if that meant something about

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   prisons, but I think the essence of it was that

 2   there wasn't -- their finding was that there was

 3   no clear evidence that there was a deterrent

 4   effect.    Or words to that effect.     Or no credible

 5   or substantial evidence, something like that.

 6             I don’t recall the California study being

 7   inconsistent with what you've reported.          They

 8   went through the literature.       But, you know, it's

 9   one of the many complex issues.       It's a little

10   less complex than some of the issues caused by

11   the Supreme Court's rulings that have shifted the

12   paradigms from time to time, depending on the

13   decade on which the opinion was rendered.           But

14   there seems to be a little bit of that, also, in

15   deterrent scholarly work.

16             Yes?    Yes, sir?    Yes, Senator?

17             COMMISSIONER ROBEY:      Thank you, Mr.

18   Chair.

19             Matt, I'm just sitting here thinking, and

20   this may have nothing to do with what this

21   Commission was really organized for, but as a

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   former police chief and a thirty-two year police

 2   officer, I've always wondered throughout my

 3   career about the word "deterrence."       What really

 4   constitutes deterrence?        And probably, if -- I

 5   was not one of those chiefs that was polled, I

 6   was County Executive at the time, but I would

 7   agree with much of what my two thirds of chiefs

 8   colleagues had said.

 9             But let me ask this question -- do any

10   study say that life without the possibility of

11   parole was a deterrent?

12             COMMISSIONER CAMPBELL:      I don't know,

13   Jim, what the answer to that question is.         The

14   New Jersey Commission, for instance, dealt with

15   the issue of deterrence at the same time that it

16   dealt with the issue of retribution, which is

17   perhaps why their conclusion was that there is no

18   compelling evidence that the New Jersey death

19   penalty rationally serves a legitimate

20   penalogical intent.

21             Certainly the few people whose writing

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   I've looked at, that addressed the issue of life

 2   without parole, make the point that in terms of

 3   incapacitating a violent offender, there is an

 4   equivalent incapacitate effect, but I don't know

 5   that -- I don't think anybody, including the --

 6   particularly the econometrics folks, have woven

 7   into their analysis the question of whether or

 8   not the existence of life without parole would

 9   have a deterrent effect -- if the majority

10   consensus of you, which is that the death penalty

11   does not have a deterrent effect, is accurate,

12   then one would infer that we couldn't look to

13   life without parole as a deterrent for many of

14   the same reasons.       The people who commit those

15   crimes are not thinking about what might happen

16   to them, and so on and so forth.

17             COMMISSIONER ROBEY:     And that's where I'm

18   going with this, and I agree completely with your

19   analysis.    I don't think anyone who commits an

20   armed robbery, and I'm not sure, I've been out of

21   it too long, what the penalty is for armed

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   robbery and possession of a handgun -- let's

 2   assume it's twenty years -- I don't think they

 3   think about "I'm facing twenty years."

 4              I don't think the person that is driving

 5   down the road eighty or ninety miles an hour

 6   thinks about losing their license.         They might

 7   worry about getting caught and they'll slow down

 8   when they see the cop, but I don't think any of

 9   our sanctions -- if we sat down here as

10   legislators and decide what sanctions should be

11   applied to a certain crime, I really don't think

12   for one second, based upon my life's experiences,

13   that anyone who commits a violation of any of

14   those laws thinks about what the penalty is.

15   They don't sit there and calculate what it is

16   before I do it, and say, "mmm, it's worth the

17   risk or it's not worth the risk."

18              Thank you.    That's the point I was trying

19   to make.

20              CHAIRMAN CIVILETTI:    Scott?

21              COMMISSIONER SHELLENBERGER:      Thank you,

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   Matt.   That was very well researched.

 2             And following up on Jim, and I guess

 3   that's a more general question, is there any

 4   evidence that our entire criminal justice system

 5   acts as a deterrent to any crime, and

 6   therefore -- I sit in a courthouse where on every

 7   Tuesday there are thirty drug distribution cases.

 8   Every Tuesday.      Every Tuesday.   Every Tuesday.

 9   And every Tuesday, all those folks go to jail and

10   every Tuesday there's another thirty cases.

11             So I guess the question is, although

12   we're charged with looking at the issue of

13   deterrence, are we saying that we scrap the whole

14   system because deterrence doesn't work anywhere -

15   - is there any evidence that there is any

16   deterrent effect for any of the things that we

17   do?

18             COMMISSIONER CAMPBELL:     That's a good

19   question and a tough question.       And I think

20   you're right.     I remember, very well, my days of

21   sitting in those courtrooms and watching those

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   people go out with the Sheriff, and I've thought

 2   long and hard about what you said, Jim, that the

 3   period of time when we were really enraptured

 4   with the idea that if we just increased the

 5   sanctions sufficiently, if we make mandatory

 6   possession of "x" number of grams of this or that

 7   controlled dangerous substance, that problem will

 8   go away, and it just doesn't go away.

 9             But, no, Scott, I don't think that the

10   logical next step or conclusion is that we should

11   scrap the whole system because, quite frankly,

12   what the police chiefs said, in the survey that

13   was conducted of their views, was that, in their

14   view, swift and sure punishment has an impact.

15   And Brian Forst and Dr. Fagan both pointed to

16   research that suggests that the increased risk of

17   arrest has deterrent value.

18             And that deterrent value is greater than

19   the increased certainty of conviction, but Forst

20   himself has done work that he talked about when

21   he was here, that taught him, as he explained it

     IRWIN REPORTING & VIDEO, LLC            (410) 494 - 1880

 1   to us, that in communities or jurisdictions in

 2   which there was a drop in the conviction rate,

 3   there seemed to be a correlative increase in the

 4   crime rate.     This wasn't just restricted to

 5   homicides.     And it wasn't restricted to capital

 6   cases.    So he sort of threw it in as an aside

 7   because he was here to talk about the death

 8   penalty.

 9              But Fagan points to some of the same

10   literature in the article that is in our

11   materials that the staff has provided us.       And as

12   our Chairman pointed out, the studies coming out

13   of the work that Chief Bratton did, in New York

14   City, that Baltimore has adopted, it adopted

15   under Mayor O'Malley, the "cop stat."

16              The -- I don't know -- Jim, did you go up

17   to see that in Manhattan?

18              COMMISSIONER ROBEY:   (No microphone.)

19   (Inaudible).

20              COMMISSIONER CAMPBELL:   Oh, thank you.       I

21   got it wrong.       But the use of a sophisticated

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   intelligence and computer analyses to show which

 2   street corners in a given neighborhood were

 3   experiencing an increase in muggings, for

 4   example.    And then immediately, the next day,

 5   putting a larger force -- and, of course, in New

 6   York City, because of the size of the police

 7   force, Bratton had resources to throw at this

 8   that were incomparable to what Baltimore has, but

 9   the fact of the matter is, that in both

10   jurisdictions, intelligent application of really

11   thoughtful and well informed police tactics,

12   policing tactics can and have been proven to

13   lower crime, and that means to deter crime.

14              And all wrapped up in that is a higher

15   certainty of arrest and, if prosecutors and

16   courts can get their act together, more swift

17   conclusion of the cases, if the resources can be

18   brought to do that, and, yes, there is evidence

19   that that, those things, together, can deter

20   crime.

21              COMMISSIONER SHELLENBERGER:   But they

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   have nothing to do with the sentence, and that's

 2   what we're talking about, is the sentence.            So if

 3   our sentencing doesn’t ever have a deterrent

 4   effect then I guess the question for the

 5   commissioners is, you know, does deterrence enter

 6   into this discussion if none of the sentencing

 7   that we do, on any topic, or any crime, is what

 8   matters, then why is deterrence an issue that

 9   should be applicable in this case?

10             CHAIRMAN CIVILETTI:        Well doesn't it

11   deal, to some extent, with a point that you made

12   in a different way, concerning the five people

13   who were executed, that they wouldn’t commit

14   murder anymore, and incapacitation is a cousin to

15   that kind of thought.          So that sentencing has a

16   deterrent effect because it removes, if you apply

17   it correctly, it removes the violent predator

18   from society for a sustained period of time.

19             Now, the --

20             COMMISSIONER SHELLENBERGER:        And that is

21   correct, Mr. Chairman.         I do believe in that

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   concept of a deterrence (inaudible), but only in

 2   the separation of that individual from the rest

 3   of society.     There's still another society that

 4   that person will live in for the rest of his

 5   life, and still others will be at risk.

 6             CHAIRMAN CIVILETTI:   In the very simple

 7   way, I remember that when I was in the government

 8   I was dealing with the F.B.I. and had a whole

 9   rash of suburban bank robberies.    And so I was

10   discussing that phenomenon with them and I said,

11   well, you know, suburban banks have limited funds

12   in them and we've had this rash of all these

13   little banks, branches out in the counties being

14   robbed.    I said, why don't they rob a downtown

15   big bank, an unlimited amount of money -- used to

16   have in those days, the banks used to have money

17   --

18             (Laughter.)

19             CHAIRMAN CIVILETTI:   And the Bureau guy

20   said, "because they'd get caught downtown and in

21   the suburbs they can run away.    So they don't

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   want to get caught."

 2             Sandy Rosenberg?

 3             COMMISSIONER ROSENBERG:      Thank you, Mr.

 4   Chairman.

 5             I would just add, in a system that I

 6   thing everyone would acknowledge as flawed, as

 7   the death penalty process is, for one of the

 8   arguments that is legitimate argument is made in

 9   support of the system, that it deters, that the

10   prospect of the ultimate punishment deters -- if

11   there's real doubt about that, I think that's

12   just another argument that says we should be

13   looking at alternatives to deter murderous acts,

14   that don't bring with them, both prevention, as

15   the Chairman pointed out in his remarks, as well

16   as the fact that these people are still being

17   kept away from society.        The only segment of

18   society they're interacting with are those in the

19   prisons, and that's part of our obligation, to

20   deal with that, those safety issues, as well.

21             But, I mean, if one of the strongest

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   arguments is casting grave doubt then I think

 2   that's yet more reason to repeal the death

 3   penalty itself.

 4              CHAIRMAN CIVILETTI:   Yes, sir?    Good

 5   evening.

 6              UNIDENTIFIED COMMISSIONER:   Good evening.

 7              Matt, I've got a couple of questions and

 8   it's sort of like an observation, as well.          You

 9   said that there were three hundred and eighty-six

10   chiefs of police that were -- and so that's three

11   hundred and eighty-six out of a total of what?

12   Because, as you were speaking, I kind of took a

13   count of the number of chiefs of police that we

14   have in Prince George's County, and so I'm

15   wondering -- and polls are kind of interesting

16   because if you -- you can get any result you want

17   if you approach the right people in a particular

18   area.

19              So my question is, three hundred and

20   eighty-six out of the total of what?         And where

21   were these people polled?

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1             COMMISSIONER CAMPBELL:   I don't know what

 2   the total is.     Maybe Jim Robey does.    The total

 3   number of the chiefs of police.    All I can tell

 4   you is, you can access, through the materials

 5   that we have, you can access that survey.          And

 6   attention was paid to the science of the

 7   percentage of error rate and all that kind of

 8   stuff.    This was a research organization that was

 9   selected and charged with the responsibility of

10   trying to do as an objective survey of these

11   police chiefs, these three hundred -- why there

12   were three hundred and eighty-six, I don't know.

13             CHAIRMAN CIVILETTI:   My recollection is

14   that there are about fifteen hundred.

15             UNIDENTIFIED COMMISSIONER:      Fifteen

16   hundred in the nation?

17             CHAIRMAN CIVILETTI:   Yeah.

18             UNIDENTIFIED COMMISSIONER:      Okay.     I

19   guess I'm kind of a victim of all --

20             CHAIRMAN CIVILETTI:   Maybe more.

21             UNIDENTIFIED COMMISSIONER:      -- the

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   politics that's going on now, and the different

 2   polls, and how -- it's amazing how people can get

 3   certain studies based on who they contact, and so

 4   I'm just wondering -- that's such a small amount,

 5   the three hundred and eighty-six, and I'm

 6   wondering where?      Because, you know, if you want

 7   to equate this to the presidential election --

 8             CHAIRMAN CIVILETTI:    Well, sometimes on

 9   surveys -- yeah, sometimes on surveys, you know,

10   if you get a one third response you're doing

11   well, depending on what the survey is.

12             UNIDENTIFIED COMMISSIONER:    Uh-huh.

13             CHAIRMAN CIVILETTI:    Because people don't

14   want to, naturally, be bothered by filling out

15   all those answers to all those questions.         And

16   the longer the survey the more difficult it is to

17   get a response.

18             But don't hold me to that because my

19   recollection is very dim about how many police

20   chiefs there were.

21             CHAIRMAN CIVILETTI:    Yes, sir?

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1             UNIDENTIFIED COMMISSIONER:       Yeah, it

 2   would be interesting to know, though.        Thank you.

 3             UNIDENTIFIED COMMISSIONER:       Mr. Chairman,

 4   just to (inaudible) your indulgence, if I could

 5   just recite something from Justice Marshall, in

 6   the Furman court, about forty-eight years ago,

 7   concerning deterrence.         He said, Justice

 8   Marshall --

 9             It must be kept in mind that the

10        question to be considered is not simply

11        whether capital punishment is a

12        deterrent, but whether it is a better

13        deterrent than life imprisonment.        There

14        is no more complex problem than

15        determining the deterrent efficacy of the

16        death penalty.      Capital punishment has

17        obviously failed as a deterrent when a

18        murder is committed.

19             Each time a murder is committed,

20        capital punishment fails.        We can number

21        its failures, but we cannot number its

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1        successes.     No one can ever know how many

 2        people have refrained from murder because

 3        of the fear of being hanged.    This is the

 4        numb of the problem and it is exacerbated

 5        by the (inaudible) of its useful data.

 6             The United States is more fortunate

 7        than most countries, however, in that it

 8        has what are generally considered to be

 9        the world's most reliable statistics.

10        The two strongest arguments in favor of

11        capital punishment, as a deterrent, are

12        both logical hypotheses, devoid of

13        evidentiary support, but persuasive

14        nonetheless.

15             The first proposition was best

16        stated by Sir James Steven, in 1864.       He

17        said, 'no other punishment deters men so

18        effectually from committing crimes as the

19        punishment of death.'     This is one of

20        those propositions which it is difficult

21        to prove simply because they are, in

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1        themselves, more obvious than any proof

 2        can make them.      It is possible to display

 3        ingenuity in arguing against it, but that

 4        is all.

 5               The whole experience of mankind is

 6        in the other direction.       The threat of

 7        instant death is the one to which resort

 8        has always been made when there was an

 9        absolute necessity for producing some

10        result.    No one goes to certain,

11        inevitable death except by compulsion.

12               Put the matter to the other way.

13        Was there ever yet a criminal who, when

14        sentenced to death and brought out to

15        die, would refuse the offer of a

16        commutation of his sentence for the

17        severest secondary punishment?        Surely

18        not.    Why is this?      It can only be

19        because all that a man has will he give

20        for his life.      Any secondary punishment,

21        however terrible, there is hope, but

     IRWIN REPORTING & VIDEO, LLC                    (410) 494 - 1880

 1        death is death.      Its terrors cannot be

 2        described more forcibly.

 3             And I just jump to another point here.

 4   He says --

 5             The United Nations committee that

 6        studied capital punishment found that it

 7        is generally agreed between the

 8        retentionists and the abolitionists

 9        whether their opinions about the validity

10        of comparative studies of deterrence,

11        that the data which now exist show no

12        correlation between the existence of

13        capital punishment and lower rates of

14        capital crime.

15             Despite the fact that abolitionists

16        have not proved non-deterrence beyond a

17        reasonable doubt, they have succeeded in

18        showing, by clear and convincing

19        evidence, that capital punishment is not

20        necessarily as a deterrent to crime in

21        our society.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             This is all that we must do.   We

 2        would shirk our judicial responsibilities

 3        if we failed to accept the presently

 4        existing statistics and demanded more

 5        proof.    It may be that we now possess all

 6        the proof that anyone could ever hope to

 7        assemble on the subject.

 8             But even if further proof were to be

 9        forthcoming, I believe there is more than

10        enough evidence presently available for a

11        decision in this case.

12                   And, in sum, in light of the

13        massive evidence before us, I see no

14        alternative but to conclude that capital

15        punishment cannot be justified on the

16        basis of deterrent effect.

17             He goes on, but I will stop there.

18             CHAIRMAN CIVILETTI:    Yes, sir?

19             COMMISSIONER ALSTON:    (No microphone.)

20   Matt, I don't know if you looked into studies and

21   (inaudible) evaluated rational, law abiding

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   citizens who were (inaudible).       I think if you

 2   look at, and we talked about earlier, the laws

 3   that are on the books now are not deterrent to

 4   the guy who is going to (inaudible) or rob a

 5   bank, or shoot somebody.       But the majority of

 6   people in our society are law abiding rational

 7   citizens.    I would say the majority of the people

 8   in our society, and a lot of people just have no

 9   need or want to (inaudible) or commit any crimes.

10              But there some people who said, you know,

11   I'm not going to smoke this joint because it's

12   illegal.    I'm not going to drive seventy miles an

13   hour because the speed limit's fifty-five.          You

14   know, somebody who (inaudible) I'm not going to

15   take that money because (inaudible).       Is there a

16   possibility that (inaudible) that capital

17   punishment is a deterrent for law abiding,

18   rational citizens?       I don't personally don't

19   believe it's a deterrent, but (inaudible for

20   about eight words.)

21              I'm not thinking about punishment, I'm

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   not thinking about the sirens coming up the

 2   street -- I'm doing my time and that's it.          But

 3   the law abiding citizen might think twice about

 4   using drugs, doing certain things that are

 5   outside of his (inaudible).        So maybe it is a

 6   deterrent for the majority of the people who are

 7   (inaudible) society.

 8              COMMISSIONER CAMPBELL:     As usual, Percy,

 9   it's a tough question and a good question, and it

10   raises a lot of different issues, and I can't

11   address them all.      I'm not a scholar and I don't

12   know.

13              I can tell you this -- that, like you, my

14   own professional experience has taught me that an

15   awful lot of ordinary citizens are deterred from

16   acting illegally simply because the act is

17   illegal.    I think that's true.      That's what

18   parents teach children.        That's what some schools

19   teach students.      That’s what Officer Friendly

20   goes to schools to talk to kids about.       I think

21   that's true.

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1             But what we're talking about is something

 2   different, and the studies that we were

 3   confronted with, and the testimony that we

 4   received from Dr. Forst and Dr. Fagan, were

 5   really narrowly focused on a very different

 6   question.    I don't that anybody -- I don't think

 7   they would argue that there is no such thing as a

 8   deterrent value in the law, upon our citizenry.

 9   I think you're absolutely right.         But it's a much

10   more narrow question.          The question is, when you

11   take a look at capital murders does the existence

12   of the death penalty have a deterrent value, and

13   as it sounds like your experience has taught you

14   in your law enforcement work, that an awful lot

15   of criminal activity is impulsive, is taken

16   without regard to the consequences, and so on and

17   so forth, by the people that you've indicated,

18   who are in the margins, oftentimes, of society,

19   and don't share the general law abiding

20   preconceptions that we certainly hope keep us an

21   orderly society instead of an anarchic society.

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1             So I think the research doesn't really --

 2   I don't think the research refutes your gut

 3   level, intuitive sense that people, in general,

 4   are deterred by the existence of law, and

 5   prohibitions of law and will, in general, try to

 6   guide their conduct accordingly.         I try to obey

 7   the speed limit whenever I can.         But --

 8             MALE SPEAKER:        (No microphone.)

 9   (Inaudible.)

10             COMMISSIONER CAMPBELL:       That's right.

11   But we're talking about a special and narrow kind

12   of conduct.     And, of course, by its nature there

13   are an awful lot of folks -- not, you know --

14   there are ordinary folks who get caught up in

15   violent acts that result in death, that's true.

16   But most capital murders are different from that.

17   And the only thing I can tell you from what we've

18   heard about the review of the research is that

19   there does not seem to be an ability to say that

20   there is convincing evidence that the death

21   penalty deters murders.

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1             CHAIRMAN CIVILETTI:   There are a lot of

 2   problems associated with capital punishment that

 3   are not associated with anything else.    And -- in

 4   the law, any other prohibitions in the law, so

 5   that, you know, a rich guy hires somebody to kill

 6   his wife.    He figures, I guess, that he can get

 7   away with it because he's got the wherewithal to

 8   hire the best lawyer around.    And since only one

 9   percent of anybody accused, even, of homicide, in

10   death eligible cases, and that puts aside all the

11   other non-death eligible homicides, but only one

12   percent of those are ever convicted, he figures

13   that, I guess, his life is so miserable that he's

14   willing to take that ninety-nine percent chance

15   that he'll get away with it.

16             All that -- there are complexities that

17   are associated with life in prison without

18   parole.    But they're nowhere near the Byzantine

19   nature of the death penalty law.    And the reason

20   that it is so Byzantine is, in part, due to the

21   fact that it's irretrievable, so that all that

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   care and precision that is required in order to

 2   avoid -- make sure you avoid a mistake and you

 3   make the proceeding as fair as possible, life in

 4   prison without parole, in my experience, at

 5   least, in charges, is more like other very

 6   serious crimes -- done carefully, done with good

 7   rulings, decent lawyers on each side, fine

 8   judges, and confirmed at a very substantial rate,

 9   as compared to the eighty percent reversal rate

10   in the death cases.

11             So, hard to figure what a rational person

12   -- depends, I guess, on whether he followed the

13   odds, whether he had enough money to pay a great

14   lawyer, and if he did, he might take the chance

15   regardless of whether it was a death penalty, or

16   not.

17             Yes?

18             COMMISSIONER KENDALL:   Mr. Chairman, I

19   spent five years representing people on death

20   row, and I just make a comment that I think is

21   similar to what Senator Robey made -- I saw no

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   evidence among my clients -- this is only small,

 2   anecdotal evidence -- that anyone really

 3   considered the crime.          They were often under the

 4   impulse of anger, other emotions, drugs.           I think

 5   that the rational person that is posited by these

 6   econometric studies, just at least when it comes

 7   to first degree murder, very, very rarely exists.

 8             Although, I would say, Scott, I think you

 9   were right -- to a certain extent this is a kind

10   of red herring.      We have criminal punishment

11   largely because we feel people have done

12   something wrong.      Now we hope that this may deter

13   others from doing this.         We hope that people, the

14   process of punishment will, if it's imprisonment,

15   rehabilitate people.       I think the chief reason we

16   impose    punishment is not really whether or not

17   it deters people.      We hope it does, but that's

18   not the chief reason.

19             CHAIRMAN CIVILETTI:        Yes?

20             COMMISSIONER PROTHERO:        I'm going to

21   concur with what David just said, but we throw

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   around the words prevention, deterrence, and

 2   punishment.     And, you know, we discussed that

 3   maybe the death penalty is not an appropriate, or

 4   adequate, or having much of an effect on

 5   deterrence.     It, however, has no bearing, whether

 6   it's still an appropriate punishment.        And I

 7   don't see how you can make that leap from one

 8   thing to the other, as you discuss that maybe it

 9   doesn't really have a deterrence, it still

10   doesn't say it's not an appropriate punishment.

11             I don't think people who probably believe

12   in the death penalty give one iota about the

13   deterrence effect at that time, in their lives,

14   when something happens.        I do think they feel the

15   appropriateness of the death penalty, and that's

16   the rationale they have.

17             You know, last -- when we left here two

18   weeks ago we all went and watched the debates.            I

19   saw our next President get up there and say, when

20   it came to Osama Bin Laden, that they were going

21   to hunt Mr. Bin Laden down and kill him.         And I

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   say "our next President" because they both said

 2   it.    One of them went on and said that if they

 3   happen catch him that they would try and execute

 4   him.

 5             I don't know where our feelings come that

 6   say death is an appropriate punishment for

 7   someone who kills somebody else.     I didn't hear

 8   the leader of my country say, "I'm going to catch

 9   Osama Bin Laden, we're going to try him, and then

10   I'm going to give him life without parole, and I

11   think that's appropriate."

12             I just think it's -- I don’t think we can

13   make that leap in most of our arguments that

14   that's an appropriate punishment, as determined

15   by the citizenry of this country.     So while it

16   may not be a true deterrent, any more than if we

17   kill one person we know that person won't kill

18   someone again.      We certainly -- a lot of do feel

19   that that is simply the appropriate punishment

20   for a task that someone did that there is no

21   excuse for.

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1             CHAIRMAN CIVILETTI:     Yes, Matt?

 2             COMMISSIONER CAMPBELL:     Rick, you know I

 3   really appreciate what you said.      As usual, you

 4   say it very well.      I guess my thought is this --

 5   I think that, as a Commission, we are faced with

 6   a series of questions that the Governor and the

 7   legislature would like us to answer.       And I may

 8   be speaking for myself, but I would hope that we

 9   can -- that we would be able, at least at this

10   stage -- I don't feel ready, and I'm not sure

11   that the rest of the Commission shares this,

12   maybe they don't -- I don't feel ready to

13   address, at this juncture, the ultimate question

14   of repeal versus non repeal.

15             I feel like maybe the work that we've

16   been asked to do is so important and it covers

17   more than one base.       And you've pointed that out

18   to us before.     I mean, we have been charged with

19   the responsibility of making recommendations on a

20   whole series of issues, each of which, by itself,

21   has importance in terms of the fair, and

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   efficient, and effective enforcement of law, in

 2   Maryland.

 3             And so I guess what I would think, is

 4   that at this -- I hear what you're saying and I

 5   think that we need to hear you say that, but I'm

 6   wondering if, right now, it might be important

 7   for us to focus, for the moment, because the

 8   Chairman has put it before us, on the issue of

 9   deterrence and see if we can reach a consensus

10   just on that.

11             I mean, maybe the -- maybe there's no

12   agreement in this room about what the science is,

13   in terms of what the two professors have told us

14   and what the materials say.        Maybe there is.         But

15   if there is, my thought is and I respectfully put

16   it before you, that maybe we can do a service by

17   taking a look at deterrence and saying something

18   about it.    Taking a look at one of the other

19   questions and saying something about it.             And

20   then maybe at the end, grappling with the

21   overarching questions.         Just a thought.

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1              COMMISSIONER PROTHERO:     Matt, can I

 2   respond?    Matt, I totally agree; however, going

 3   from the leap that this may not have any

 4   deterrence effect, and going from there to say

 5   because it has no deterrent effect, therefore

 6   dada -- the death penalty should be abolished.

 7   That's what I'm hearing, as well.      Not so much

 8   from you just said but from others have said.

 9   And I don't think we can make that leap.        I can

10   certainly agree that you and I can agree that

11   I've seen no evidence that it's a deterring

12   effect.    I mean, I think we can all say that.

13   But to make the leap and then give the

14   conclusion, therefore, we should get rid of the

15   death penalty -- that I can't see.

16              And I'm going to say that in all of our

17   arguments as we go on, that taking that lunge is

18   -- and I'll just raise my hand and do it so way I

19   won't have to repeat it.       That you can't take

20   that leap and have that as the final conclusion,

21   by what we've heard here in the room.      And that's

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   all.

 2              COMMISSIONER CAMPBELL:   Well, please

 3   excuse me if I gave you the impression that I was

 4   doing that because I was trying very much not to

 5   do that, today.      And maybe what we could do is

 6   defer until a later meeting the leaping.

 7              CHAIRMAN CIVILETTI:   No leaping.

 8              (Laughter.)

 9              CHAIRMAN CIVILETTI:   Vicki?

10              COMMISSIONER SCHIEBER:   I think that Matt

11   is making the point, and Rick is a good responder

12   to that.    I'd like to second Matt's motion that

13   we need a lot more time to talk about these

14   issues, in depth.      And I think this deterrence

15   issue, as the way we're addressing it as a group,

16   is a very good process of getting to talk things

17   out.

18              And I think that Oliver and Rick would

19   both agree with me that our time together, and

20   the conversations, conference calls, and the

21   exchange of information, and the collection of

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   the information we're going out and seeking has

 2   been very, very helpful to us to come together

 3   and to try to find areas that we agreed upon and

 4   not make any instant leap -- am I speaking for

 5   you fairly, here -- instant leap into what this

 6   means in terms of a final vote.

 7             But I think the discussion process and

 8   the more time, like that extra meeting that you

 9   possibly suggested, I would vote very strongly

10   for it.    Having been in many academic communities

11   and debates where you sat down and you read your

12   homework, you did your thorough reading of

13   things, you came prepared, you've had your time

14   to have this thing sorted out, you've talked to

15   people in your groups, and breaking these down,

16   even in small groups like we did on the victim's

17   issue, I think is very helpful.

18             I find that with my students, in the

19   academic environments, that that works very, very

20   successfully, and you get -- it does take time.

21   I realize that and we are under this kind of

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   framework.     But I really, really strongly suggest

 2   that we do that.      In the other forum.

 3             And I'd like to make one more suggestion

 4   on a previous point on this issue.     Again, this

 5   is based on my experience, and in teaching, and

 6   actually working in these areas in Cabrini

 7   (phonetic) Green Housing Project and some of the

 8   very lowest income areas of our society.         I don't

 9   have this PhD in the economics side.        Mine was

10   more from the social justice and the social work

11   policy issues.

12             And I find, in my experience, that when

13   you have a situation like we are having in our

14   economy right now -- and I know Bishop Madden and

15   I -- I'm speaking for him, too -- have had this

16   discussion, too -- that when you get these two

17   things of helplessness and homelessness, which

18   leads to hopelessness, and you get this in a

19   community where jobs are lost, income sources are

20   depleted, access to credit and a whole lot of

21   other things that usually keep people going, it

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   really deteriorates peoples' sense of doing

 2   rational behavior and thinking about what would

 3   be the consequences of their behavior.

 4             And if someone goes to rob a bank or

 5   steal because they feel they need these things --

 6   I'm not condoning that.        I'm just saying that a

 7   robbery leads to a murder or something, I don't

 8   think that can, at all, be premeditated or a

 9   deterrent effect.      And I think that is happening

10   quite a bit.

11             If we looked over longitudinal studies

12   about periods of where the economy is bad in our

13   country, and where the crime rates go, and

14   various poorer sections of this country, I think

15   you will see a real spike there.       And that's one

16   of the problems of our society that make us

17   think, you know, for these groups of people, and

18   I've lived and worked with it, let me tell you,

19   first hand, that this is not (inaudible)

20   deterrence (inaudible) plan or thought through

21   when they do some of these things.       Not condoning

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   what they did but you put yourself in their shoes

 2   and you see how very, very difficult life becomes

 3   for them, and this behavior becomes exacerbated

 4   with that economy.

 5             CHAIRMAN CIVILETTI:    Thank you.

 6             UNIDENTIFIED COMMISSIONER:    I think it

 7   was an interesting exercise to have a particular

 8   peer group, in a small group, discuss certain

 9   issues.    We didn’t always agree exactly on

10   everything but the interesting thing was we all

11   had a pretty good knowledge of what this

12   particular subject was, and in talking about it,

13   we got a chance to listen.      Not necessarily just

14   hear people but to listen.

15             And then to have the opportunity to

16   create a document and bring it back to the group

17   I think was very rewarding.     I think we all

18   learned a little bit about the other person's

19   opinion, and I have to agree with Vicki that this

20   is a very important thing that we're doing.

21             This is the first commission I've ever

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   been on and I'm finding out just how important it

 2   is, but time is one of the most important tools

 3   that we need.

 4             CHAIRMAN CIVILETTI:     Thank you.

 5             Yes, Scott?

 6             COMMISSIONER SHELLENBERGER:     Just to sum

 7   up then, what it sounds to me like we all need to

 8   decide, then, on this one issue, is the

 9   following:     is there a deterrence?   Isn't there a

10   deterrence?     And does it matter, on the issue of

11   the death penalty?       I mean, that really is what

12   the three kind of breakdowns are, because you can

13   believe there is and you can believe there isn't.

14   But you can also believe that it doesn't matter

15   as to whether there is or isn't.      And I think

16   that is the place that we need to go.

17             CHAIRMAN CIVILETTI:     It was pointed out

18   to me that deterrence by itself, as a separate

19   subject, is not a topic of one of our seven or

20   eight topics that we're asked to opine on, but I

21   think it may fit within the -- one of them says,

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   what are the effects of homicide and capital

 2   punishment, and it certainly is, or isn't an

 3   effect.    And so we would be -- I think we can

 4   appropriately discuss it and it would be rather

 5   unusual in talking about capital punishment not

 6   to at least address the question of deterrence

 7   (inaudible).

 8             And if you'd like to make a motion to

 9   vote on that, I'd entertain that motion.

10             Yes, Rick?

11             COMMISSIONER CAMPBELL:   Mr. Chairman, we

12   are missing some folks tonight and I think there

13   are a lot of people who would still -- I mean, I

14   -- look, you all know, I'll vote on anything

15   right now, but --

16             (Laughter.)

17             COMMISSIONER CAMPBELL:   I sense that

18   there are those who still would like to digest

19   the materials and read certain things, so.

20             CHAIRMAN CIVILETTI:   I think we ought to

21   wait until we have a full deck.

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1             COMMISSIONER CAMPBELL:       Okay.   Good.

 2             CHAIRMAN CIVILETTI:       Yes, Rick?

 3             COMMISSIONER PROTHERO:       I have a question

 4   on just the procedure of our voting.           We haven't

 5   really discussed this.         Are we doing a majority

 6   vote?   Are we doing a hand count?       This has not

 7   been reviewed.      Are our names listed next to our

 8   votes, how we do it?       You know, I have a few

 9   thoughts on there and it hasn't been discussed.

10   You just brought up we're going to vote, so now I

11   would like to discuss, or hear what the

12   suggestions are on how we're voting -- before we

13   even bother starting to vote I'd like to know the

14   procedure for that.       We're going to work it out

15   here or it's already being suggested to us?

16             CHAIRMAN CIVILETTI:       The procedures are,

17   in my view, very simple.        Majority rules on any

18   particular substantive motion.         We vote in turn

19   or by hand, it doesn't matter at the same time.

20   And the non-majority, if the non-majority wishes

21   to express itself on that topic, either in the

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   report of the majority or in a minority report,

 2   that is collective, they can enter their reasons

 3   and their rationale for the minority vote,

 4   whichever -- whosever it is.

 5             COMMISSIONER PROTHERO:     And since this is

 6   obviously public voting, I feel our names should

 7   be attached with our votes, and the numbers

 8   tallied or scored.       So if it's --

 9             CHAIRMAN CIVILETTI:     Well --

10             UNIDENTIFIED COMMISSIONER:        (No

11   microphone.)     Can we vote on that?

12             CHAIRMAN CIVILETTI:     I don't know.      I'll

13   have to --

14             (Laughter.)

15             CHAIRMAN CIVILETTI:     I'll have to think

16   about that because --


18   microphone.)     Let's vote on something,

19             (Laughter.)

20             CHAIRMAN CIVILETTI:     Yeah, I -- the

21   identification, in all probability, if someone

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   believes strongly about it, would be in the

 2   minority view and majority view, as the case may

 3   be, with the identity of the people who were of

 4   that view.     And so that would indicate that they

 5   voted that way.      The necessity of taking the

 6   names at the time of the vote seems to be

 7   overkill.    I don't see the purpose in it, but --

 8             COMMISSIONER PROTHERO:    I think

 9   transparency is just simply -- names go with the

10   votes.    That's all.

11             CHAIRMAN CIVILETTI:    But -- I mean,

12   publicly, I don’t see the purpose in it.       We have

13   to, or we will record the names of all the votes,

14   of course, and expect that, unless they change

15   their minds, they will be part of the majority

16   report or the minority report.

17             COMMISSIONER PROTHERO:    Just my thoughts.

18             CHAIRMAN CIVILETTI:    Okay?

19             Some of the brother and sister

20   commissions had eighteen months, two years to

21   study and develop a report.      We have about five

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   months, and we have about one month left, so that

 2   it's important that we have this discussion, but

 3   at some point we're going to have to bite bullets

 4   and count heads.

 5             And therefore, the -- part of the

 6   Governor's establishment of the Commission was

 7   that he would get the draft report on December

 8   1st.   And the final report would be done on

 9   December 15th.      The final report should be much

10   like the December 1st report, unless the Governor

11   points out the Commission errors in its facts and

12   evidence.

13             The opinion of the Commission and its

14   recommendations are exclusively the Commission's,

15   so I would not expect the Governor to say

16   anything about the context of that subject, in

17   the report.     But my point is simply that we have

18   roughly a month, so that you will see that the

19   format work, putting aside the substance, the

20   format work of introductions, appendices, body,

21   references to the statutory commissions, topics

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   to be reported on, are set up in a beginning way

 2   for the final report.

 3             In order to produce a final report or

 4   draft a final report on December 1st, we have to

 5   have concluded our discussions and have

 6   circulated to all the commissioners a near final

 7   draft, at least a week or so before December 1st.

 8   So if we're going to have a second meeting it

 9   ought to be about somewhere in the 10th to the

10   14th or 15th --

11               (Brief pause, brief whispered

12   conversation, not transcribed.)

13             CHAIRMAN CIVILETTI:     Rachel's just

14   cautioning me that this room is apparently a

15   highly desirable room and it may not be available

16   to us at some date that we choose that most

17   convenient to everybody.       And be that as it may,

18   we'll look to our political friends to get us

19   some little closet, in Annapolis, where we may be

20   able to meet and discuss things.

21             UNIDENTIFIED COMMISSIONER:     Could I make

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   a recommendation that we do schedule a meeting as

 2   soon as possible, but we hold off on any voting

 3   until -- until we've been -- well, actually, we

 4   hold off on any voting until our next meeting

 5   because I was not aware that we were going to

 6   vote this meeting.

 7             CHAIRMAN CIVILETTI:    No, we can wait

 8   until the next meeting.

 9             UNIDENTIFIED COMMISSIONER:   Oh, okay.

10             CHAIRMAN CIVILETTI:    And everybody will

11   be prepared, and we can get everybody here.          It's

12   not quite fair.

13             UNIDENTIFIED COMMISSIONER:    Thank you.

14             CHAIRMAN CIVILETTI:    Now, there's a

15   process that sometimes people take, or committees

16   take, and that's called straw votes, to get a

17   sense of how we're going to write on the subject.

18   And I don't think that's necessary in this

19   instance.


21   microphone.)     Mr. Chairman?

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1             CHAIRMAN CIVILETTI:      Yes, Kirk?

 2             COMMISSIONER BLOODSWORTH:      (No

 3   microphone.)     When are the (inaudible for

 4   remainder of question.)

 5             CHAIRMAN CIVILETTI:      No.   The next

 6   meeting which is scheduled, and for which we have

 7   this room, is November 20th.

 8             COMMISSIONER BLOODSWORTH:      (No

 9   microphone.)     And will we have meetings prior to

10   that?

11             CHAIRMAN CIVILETTI:      Well, that's the,

12   that's the topic, and I'm certainly willing to do

13   that.

14             What do you think?

15             (Brief pause, no microphones, brief

16   conversation between various commissioners

17   regarding meeting date.        Not transcribed.)

18             UNIDENTIFIED COMMISSIONER:      Mr. Chairman?

19             (Brief pause.)

20             CHAIRMAN CIVILETTI:      What days are, of

21   the middle of November --

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1              UNIDENTIFIED COMMISSIONER:     Tuesday the

 2   11th, sir?

 3              CHAIRMAN CIVILETTI:     The 11th, 12th, and

 4   13th, which are a Tuesday, Wednesday, and

 5   Thursday.

 6              FEMALE SPEAKER:     Tuesday's a state

 7   holiday.    I don't know if the room will be

 8   available.

 9              CHAIRMAN CIVILETTI:     Tuesday is a state

10   holiday?

11              UNIDENTIFIED COMMISSIONER:     It's a good

12   time.   A good time to have a meeting.

13              CHAIRMAN CIVILETTI:     Is that one of your

14   twenty-two holidays?

15              FEMALE SPEAKER:     Yeah.   (Inaudible.)

16              (Laughter.)

17              CHAIRMAN CIVILETTI:     How about -- all

18   right, then Wednesday or Thursday?

19              UNIDENTIFIED COMMISSIONER:     Wednesday.

20              CHAIRMAN CIVILETTI:     The 12th and 13th?

21              UNIDENTIFIED COMMISSIONER:     Wednesday the

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   12th.

 2             (Brief pause, inaudible whispered

 3   conversation.)

 4             CHAIRMAN CIVILETTI:      12th?

 5             Scott?

 6             COMMISSIONER SHELLENBERGER:       (No

 7   microphone.)     I'll be here.    (Inaudible for

 8   remainder of comment.)

 9             (Laughter.)

10             CHAIRMAN CIVILETTI:      All right.     We'll

11   tentatively try to meet on the 12th.        The only

12   thing that would hold us up -- same time -- would

13   be some catastrophe relating to the four members

14   who are not here.

15             FEMALE SPEAKER:      Or getting the room.       Or

16   -- but they said they could get us a room.

17             CHAIRMAN CIVILETTI:      Get some room.

18             UNIDENTIFIED COMMISSIONER:       The 12th.

19             CHAIRMAN CIVILETTI:      Okay.   In the order,

20   then, in the order in which it's discussed or

21   asked about in the statute, the next subjects

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   deal with -- that we want to discuss, deal with

 2   the disparities.      And there are three of them

 3   that are mentioned: jurisdictional, racial, and

 4   economic -- socioeconomic.

 5             Rachel and Ráchael have done the lion's

 6   share of the work in analyzing and preparing the

 7   draft that's been distributed, the initial draft.

 8   A good part of it, as you know and realize, is

 9   based on the Paternoster studies, the original

10   study and then the follow up study that was done,

11   more recently.

12             From my layman's point of view, that

13   particular, or those particular studies did not

14   indicate a strong socioeconomic disparity of

15   effect in and among the jurisdictions in

16   Maryland.    It indicated, as you might expect,

17   some but not a dramatic one.

18             Other studies throughout the country, as

19   you might also expect, for various reasons, do

20   show a difference between a poor defendant and a

21   wealthy defendant, in various ways, in the

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   statistics.

 2             Rachel will speak to the situation in

 3   Maryland, and I think I'm correct in what I have

 4   just said.     That -- another, I think, conclusion

 5   that one could draw from the evidence and the

 6   testimony is that there is no showing by these

 7   studies of deliberate or institutional prejudice

 8   based on race or based on jurisdiction.     That is,

 9   no deliberate, intentional attempt to insert

10   prejudice in the capital punishment system.

11             However, the statistics are quite

12   dramatic and compelling when it comes to systemic

13   disparity based on jurisdiction and race.      The

14   causes, of course, are not always obvious -- the

15   system effects, the causes.    But disparity, in

16   part, means that the law is being administered,

17   the capital punishment law is being administered

18   differently, terribly differently among and

19   between the twenty three, plus the City, twenty

20   three counties and the city's jurisdictional

21   reach.    And that's quite troublesome.

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1             At the same time, these statistics

 2   reveal, along with others, that the scarcity of

 3   sustained capital punishment verdicts also raises

 4   serious concerns.      That is, if you have a

 5   thirteen hundred and eleven death eligible cases

 6   and you -- the end result is five cases, how did

 7   that occur?     You have only five cases out of

 8   thirteen and eleven -- is it because they were in

 9   a certain jurisdiction?        Is it because it was a

10   black on white murder?         Is it because it's

11   random?    They just happened to have inadequate or

12   less than adequate counsel.         Why did it occur?

13   Why don't you have fifty or twenty percent of

14   your death eligible cases?        Not one percent, or

15   less?

16             So it raises systemically concerns in all

17   of those areas, but I want to repeat -- and I

18   think this is correct, Rachel, that we have heard

19   no evidence of deliberate bias or racial

20   prejudice or socioeconomic prejudice.

21             Rachel?

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             MS. PHILOFSKY:       That is correct.     Also,

 2   Patty just informed me that we do have the room

 3   on the 12th, if we want it.        She just went down

 4   and checked, so.

 5             CHAIRMAN CIVILETTI:       Great.   Get it.

 6             MS. PHILOFSKY:       Okay.   All right.    So

 7   disparities -- first, unless somebody has a

 8   specific question, I would like to point you to

 9   the draft that I think everybody has a copy of

10   just because it's easier, I think, sometimes,

11   when everybody's referring to the same materials.

12             Specifically -- ah, let's see here.

13   Let's go to page fifteen.         Page fifteen is past

14   the Executive Summary.         It's an overview of

15   issues one through three -- racial,

16   jurisdictional, and socioeconomic disparities.

17   These three disparities.        Well, two of them I

18   think we can group together, in some ways, in

19   terms of the date and the studies -- racial and

20   jurisdictional disparities.

21             There have been some consistent studies,

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   both in the types of the studies and these

 2   studies were looking specifically at Maryland,

 3   which is important.       Third, socioeconomic

 4   disparities, as Mr. Civiletti pointed out, we are

 5   lacking specific Maryland based studies regarding

 6   socioeconomic disparities and the death penalty.

 7             So that's not to say that there haven't

 8   been studies in other states, but whether or not

 9   this Commission wants to assume and take the leap

10   from the presence of socioeconomic disparities

11   and capital punishment in other states, and take

12   that to Maryland, that's up to you.

13             But, back to racial and jurisdictional

14   disparities, we heard at the first hearing, on

15   July 28th, I believe, from several different

16   people, including Ray Paternoster and David

17   Baldus, who spoke about studies that they had

18   conducted and reanalyzed, in which they found

19   evidence of racial and jurisdictional disparities

20   in Maryland.

21             Specifically, with regard to racial

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   disparities, I'm speaking of not simply the race

 2   of the victim or the race of the offender, but

 3   the finding of, a strong finding of an

 4   interaction effect, which basically means cases

 5   where, in the case of the Paternoster report,

 6   there was an African American offender and a

 7   Caucasian victim.      When you have that interaction

 8   effect, a death sentence is significantly more

 9   likely to be sought.       Or, also, be found.

10             So the exact numbers are in the following

11   pages.    The racial disparity is -- actually, the

12   racial disparity goes on for a bit, but starting,

13   if you want to look, on page seventeen, the

14   bottom of page seventeen speaks to the testimony

15   provided by Ray Paternoster regarding the racial

16   disparities in Maryland.

17             Do you have any questions, or points, or

18   directions that you would like to take at this

19   point?

20             COMMISSIONER SPELLBRING:     My recollection

21   of the Paternoster report, which was, I believe,

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   confirmed by Professor Baldus, was that there was

 2   no racial disparity with respect to the race of

 3   the defendant.      I believe that's a line from the

 4   Paternoster report.       And I believe Professor

 5   Baldus confirmed that.         And I think that should

 6   be in here.     If we're talking about racial

 7   disparities, that's one that doesn't exist.

 8             MS. PHILOFSKY:       I think it's in there,

 9   actually.

10             (Brief pause.)

11             MS. PHILOFSKY:       Oh, page nine --

12             COMMISSIONER SHELLENBERGER:       (No

13   microphone.)     On page eighteen, at the top, it

14   states that -- it's not a strong statement but it

15   indicates based on the race of the defendant for

16   one of them.     And I guess, Rachel, that's the

17   question I have.

18             COMMISSIONER SHELLENBERGER:       Sorry, Matt.

19   Let me just preface this with -- you know, I'm

20   not going to sit here and pick on every line

21   because, you know, I don't want to waste a lot of

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   time, but I think the Judge's point is extremely

 2   important.     And that is, in this draft that I've

 3   been able to glean so far, there seems to be an

 4   immediate linkage of the race of the defendant

 5   and the race of the victim.

 6             Whereas, in the law, we are concerned

 7   with the race of the defendant, in which

 8   Paternoster was clear.         And that is -- the race

 9   of the defendant, alone, there is no evidence.

10             And so I understand that you need to take

11   the next step and make the linkage again.          The

12   question then becomes, I hate to repeat the same

13   question -- is it there, isn't it there, does it

14   matter?    Does the race of the victim matter when

15   you consider the testimony of the jurisdictions

16   who never seek the death penalty and the types of

17   victims who are homicides.

18             So I think there needs to be, in the

19   majority report, at least a separation of those

20   issues and an acknowledgement that there may be

21   differing legal standards.        I mean, this

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   Commission can find that it matters that there's

 2   disparity with the race of the victim.      It may

 3   not be a legal standard but it can matter to the

 4   Commission.     But I think there has to be a

 5   separation along the Judge's lines because the

 6   law requires no disparity on the race of the

 7   defendant, alone, and all the studies prove that.

 8             COMMISSIONER SPELLBRING:     And I would

 9   take the next step that the Supreme Court has

10   said there's no constitutional infirmity because

11   of Dr. Baldus' report, which is based on a

12   Georgia case -- McCleskey was the defendant, and

13   they found that that was not an infirmity under

14   the George statute, assuming you accept his

15   report, which the United States District Court

16   did not accept.

17             UNIDENTIFIED COMMISSIONER:     I think this

18   Commission does have a much broader focus than

19   simply a judicial question in a particular case,

20   like the McCleskey case.       There, what's been

21   required by that case, if I (inaudible) is a

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   showing of particular racial animus against a

 2   specific individual.       That's why the Court, those

 3   five justices, ruled the way it did.

 4             I think, though, we are charged with

 5   looking at the broader question.      And I think it

 6   is -- I think there would be agreement that it

 7   would be impermissible to have something with a

 8   differential racial impact, without some

 9   compelling reason for that, whether it was the

10   race of the defendant, and I agree with Judge

11   Spellbring that I think the Paternoster study is

12   clear that he did not find that here, (inaudible)

13   the race of the defendant.

14             But the troubling thing is, and in

15   particular as you move through the four phases,

16   is the focus or the -- what happens is you get

17   this black defendant, a white victim focus.         And

18   that's the way he found racial discrimination.

19             I think, Scott, it is well to make that

20   a clear distinction, but I think it's still a

21   very troubling pattern.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             MS. PHILOFSKY:       I think that you all

 2   raise good points.       Specifically, when this

 3   Commission was formed it was charged with looking

 4   at racial disparities, not specifically only

 5   disparities relating to the race of the

 6   defendant, as I understood it.        And I may be

 7   wrong.

 8             But, secondly, I guess, the larger issue,

 9   to take a page from you, is there the presence of

10   the disparities, or not, and does this Commission

11   care.

12             UNIDENTIFIED COMMISSIONER:      The

13   Paternoster report or the Baldus report, I mean,

14   these are -- the Paternoster report is not a new

15   report as far as its findings.        There have been

16   other reports.      They've been evaluated.     I think

17   it should certainly be noted.        Obviously, the

18   Paternoster did have its findings, but in

19   previous reports and previous review by federal

20   district courts, have certainly disallowed that

21   argument from the Baldus report.        And I can't see

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   that it's any different than what the Paternoster

 2   report is.

 3             And we can review it from our standpoint,

 4   here, feeling we have some say on it, but others

 5   have ruled on this, certainly way wiser than I --

 6   maybe not way wiser than some of you, but have

 7   ruled on this already.         I think it should be

 8   noted what the rulings were, and it's not just

 9   the McCleskey ruling.          There have been other ones

10   that went through other specifics of them.            So I

11   think that should just be noted, that the

12   evidence of that report -- in some ways, some of

13   the reports basically said because of the

14   findings of the report it shows that the law was

15   done, as requested.       So.

16             COMMISSIONER CAMPBELL:        Well, I hope I'm

17   not out of line in responding to the comments

18   that have been made because I think this -- I

19   think, first of all, the history of the law is

20   the history of sometimes progress, sometimes

21   little steps, sometimes a lack of progress,

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   sometimes regress.

 2             I just finished reading a Supreme Court

 3   decision in I think it was 1873.   It came out of

 4   a -- and I may have the date wrong, but it was in

 5   the 1870's, and it was the case that came out of

 6   a little parish in Louisiana, where the

 7   reconstruction of elections, when African

 8   Americans were given the vote, produced elected

 9   community leaders in control of the City Hall.

10   And there was an angry mob of whites that drove

11   them out and killed some.

12             And the Attorney General, the U.S.

13   Attorney for the state of Louisiana , charged

14   some of those responsible with crimes, including

15   violation of civil rights and murder, and the

16   Supreme Court basically held that the federal

17   government had no jurisdiction to charge those

18   crimes, and the result was the beginning of the

19   era of lynch mob justice in the south.

20             And I've got a copy of that decision.       I

21   read it from time to time when I need to feel

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   humble.    Which is to say that just because the

 2   courts declined to accept, as evidence of

 3   something wrong with the system, the findings of

 4   Professor Baldus and Professor Paternoster

 5   doesn’t mean that we should endorse that view.

 6              I think that it is clearly the case, and

 7   our report should note it, that the findings were

 8   what they were, as Scott as pointed out.        I

 9   absolutely agree.      And I think Scott put it very

10   well -- that we need to decide whether or not it

11   matters.    And I would simply ask my fellow

12   Commissioners to consider that it does matter.

13   That there is much that is symbolic about the

14   criminal justice system.       And when we have a

15   system that, without any individual actor in a

16   State's Attorney's office or a court,

17   intentionally seeking to employ the law in such a

18   fashion that the most serious and the most

19   irrevocable penalty should be applied, in a way

20   that leads to a disproportionately high number of

21   African Americans on death row, one's conscious

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   should be pricked.

 2             The testimony of Bryan Stevenson and Stu

 3   Simms was, I thought, eloquent and a reminder

 4   that what we appear to do is important to our

 5   citizens, and important, particularly, to those

 6   who, often times, are the recipients of the law

 7   enforcement efforts that sometimes are harshest.

 8   People who are poor and people who often do not

 9   have a voice.     And I think that we do need to

10   consider it important, and we do need to speak to

11   the need to rectify a system, if it can be

12   rectified, or to take action about a system, with

13   respect to a system, that leads to racially

14   disproportionate impact of law enforcement

15   policies.

16             COMMISSIONER SHELLENBERGER:   But Matt,

17   Stu Simms was the Deputy State's Attorney, under

18   Kurt Schmoke when Flint Gregory Hunt and John

19   Booth -- when they sought the death penalty

20   against them.     I mean, how can we in any way find

21   any racial -- we both concede, and you did --

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   there was no racial motivation.

 2             COMMISSIONER CAMPBELL:     Right.

 3             COMMISSIONER SHELLENBERGER:     But how can

 4   we, in any way, attribute race to any part of

 5   that process, in any way?

 6             COMMISSIONER CAMPBELL:     Because, Scott,

 7   we're talking about an objective analysis of the

 8   impact.    I mean, I listened and agreed with the

 9   repeated questions that you asked of Stu, of Andy

10   Sonner, of everybody who had any knowledge or

11   contact with Sandy O'Connor to the make the point

12   that Sandy O'Connor, your predecessor and a very

13   distinguished office did not set out -- in fact,

14   set out to do the contrary -- did not set out to

15   apply the death penalty disproportionately based

16   on race, based on race of defendant, or based on

17   the race of the defendant in interaction with the

18   race of the victim.       I will concede that.     I

19   think that's true.       I know Sandy, too.

20             But here's what's important.        What's

21   important is what happens.      And the fact of the

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   matter is that the Baldus and Paternoster studies

 2   are irrefutable.      Now, we can do one of two

 3   things.    I have, in my briefcase in my car, a

 4   handwritten note from Justice Scalia to his

 5   brothers and sisters on the Supreme Court bench.

 6   Maybe you've seen it.          It basically says -- do

 7   you know it?

 8             It says racist motivations and racially

 9   disparate -- these aren't his words, this is my

10   paraphrase -- racially disproportionate results

11   are inevitable.      So what?     We're going to accept

12   it.   I don’t need to hear about the Baldus study.

13   I don't care about the Paternoster study.

14             Well, I think we should care, in

15   Maryland.

16             COMMISSIONER SHELLENBERGER:        Matt, I

17   wasn't -- first, I do not ascribe to be a

18   disciple of Justice Scalia.         And when I said

19   earlier, you know, does it matter, I wasn't

20   trying to be flip.       What I was trying to point

21   out is that when you look at two major

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   jurisdictions who virtually never seek the death

 2   penalty, that is the cause of the numbers being

 3   skewed, rather than something inherently wrong

 4   with the system.

 5             Now, that gets back to the Chairman's --

 6   what I perceive to be one of his major concerns,

 7   and that's the jurisdictional issue.        But when

 8   you're purely looking at Baldus and Paternoster

 9   you can't ignore the fact that hundreds and

10   hundreds of murders never were even considered

11   for the death penalty.         And that is why I said,

12   "does it matter under these circumstances?"

13             COMMISSIONER CAMPBELL:       And I agree with

14   you.   I guess I agree with you up until the very

15   final point of "does it matter," because I think,

16   Scott, what -- and here's what I also think about

17   Stu Simms.     I don't think it matters that he was

18   a participant in the decision making process for

19   Flint Gregory Hunt.       He was trying to do his job.

20   You try to do your job.        Sandy tried to do her

21   job.   When I was doing it, I tried to do my job.

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             But the point of all of this is that the

 2   system produces these results.       Yes, we don't

 3   disagree that part of the reason is because we

 4   have twenty-three separate death penalty policies

 5   in the state of Maryland.        We have, as some of

 6   our witnesses told us, application of the death

 7   penalty akin to the application of a county

 8   ordinance.

 9             And you have defended that, and you've

10   defended it eloquently.        I guess my point is that

11   because I don't think, from the evidence that we

12   have before us, that we're going to be able to

13   prescribe a way to fix that, absent having a

14   single prosecutor in the state responsible for

15   deciding, across the state, according to

16   transparent criteria, what cases, what first

17   degree murder cases that are death eligible will

18   be filed and which will not have a death notice

19   filed, and we know that's not going to happen.

20             That means we're stuck with a system

21   which, despite all the best will of all of the

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   fine prosecutors across the state, who come to

 2   the task with different values, different views,

 3   and different constituencies, we have a system

 4   which results in racially disparate impact.           And

 5   so it seems to me that we need to give careful

 6   consideration to making a statement that it does

 7   matter, and that we need to stop, because it's

 8   unacceptable, or should be unacceptable in a fair

 9   system, in a civilized society that is devoted to

10   equal justice under the law.

11              COMMISSIONER GODFREY:      Question -- Scott,

12   when you refer to those two counties that never

13   pursue the death penalty, are you referring to

14   Prince George's County and Baltimore City?

15              COMMISSIONER SHELLENBERGER:      Yes.

16              COMMISSIONER GODFREY:      Thank you.

17              COMMISSIONER O'DONNELL:      I'd just like to

18   add to what Matt said.         I think what you're

19   saying is really a critical point here -- that

20   the system produces these racially disparate

21   results.    And no matter what the reason for, we

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   could disagree about the reason.    You can think

 2   that it has to do with the demographics of P.G.

 3   County and Baltimore City and others will think

 4   it doesn't, but the question that that raises is

 5   if there's an appearance, if there's a perception

 6   out there, in our community, that the ultimate

 7   punishment, that capital punishment, that taking

 8   a life is being applied in a discriminatory

 9   pattern, that that, in and of itself, ought to be

10   something that we care about.    Isn't that part of

11   what you're trying to say?

12             CHAIRMAN CIVILETTI:   The system isn't any

13   better if the disparities are based on the fact

14   that Stuart Simms, or somebody else, doesn't

15   prosecute any black on black cases, in Baltimore

16   City.   And in Baltimore County, the best cases

17   for prosecution, going through all the

18   screenings, happen to be cases of black on white

19   killings.    So in that instance, the disparity

20   could arguably, in my hypothetical, be based on

21   Stuart's view of what's proper and the State's

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   Attorney and Baltimore County's view on what's

 2   proper.

 3             It is still a disparity which is not

 4   justifiable in a state system which has one state

 5   law.   And therefore, it is troublesome.

 6   Troublesome for everybody, not just for Baltimore

 7   City or Baltimore County or Harford County, but

 8   for everybody statewide.       We have a system that

 9   produces a disproportionate, higher likelihood in

10   certain cases of death penalty being pursued than

11   it does in other like cases.      And that can be

12   considered, by many people, as wrong, not based

13   on any one person or some designed intent to be

14   bad, but just basically bad.

15             And I agree the court system and the way

16   in which we decide issues is individual case

17   based.    It's not to step beyond the judicial

18   function into the policy making function, or the

19   statutory creation function, or the general

20   public interest.      It's to decide the disputes on

21   the issues and the law and the facts in that

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   particular case.      And if there's no showing of

 2   intentional or deliberate discrimination on that

 3   individual then the fact that there's systemic

 4   discrimination which has not affected that

 5   individual is not cognizable by the court.         And

 6   if it's not cognizable then studies may not be

 7   admissible.

 8             COMMISSIONER SPELLBRING:    Mr. Chairman?

 9             CHAIRMAN CIVILETTI:    Yes, Your Honor?

10             COMMISSIONER SPELLBRING:    I brought up

11   McCleskey    for one reason -- if we're going to

12   report on this issue, and we've been asked to

13   report on this issue by the legislature.

14             CHAIRMAN CIVILETTI:    We have.

15             COMMISSIONER SPELLBRING:    We ought to

16   report fully on it, and we ought to bring all the

17   facts out on it, and I think McCleskey is a fact

18   that ought to be brought out on the issue.

19             CHAIRMAN CIVILETTI:    What's the fact?

20             COMMISSIONER SPELLBRING:    I'm sorry.       The

21   McCleskey case is simply a fact that ought to be

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   brought out on the issue.

 2             CHAIRMAN CIVILETTI:   And I think the fact

 3   that you pointed out, that the studies show no

 4   direct discrimination or prejudice against any

 5   defendant (inaudible).

 6             Rick?

 7             COMMISSIONER PROTHERO:   If the main

 8   reason we end up having the studies outcome as

 9   they are is really because of what's called

10   discretion, where the State's Attorneys are the

11   ones charged with that discretion, basically -- I

12   guess my question is -- if you want to end that

13   policy of discretion, which has certainly been

14   considered a legal thing, that alone would alter

15   the outcome of these studies by having no

16   discretion.

17             And it's been suggested a couple times

18   during our proceedings, a few of the people who

19   were not experts came forward and offered some

20   suggestion of central courts or things like that,

21   but since discretion is certainly what's allowed

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   -- is that correct, Scott?

 2             I mean, it's sort of the basis of our

 3   laws and it doesn't just apply to the death

 4   penalty, it applies to every single one of our

 5   laws and how we prosecute.     And I would guess if

 6   we had Paternoster studies on the next step down

 7   or the next step down, in courts, we would

 8   probably find, because there's discretion, we'd

 9   probably find inter-county differences, and

10   everything else.      You already heard different

11   counties having, when it comes to just drug

12   charges, how variable those are.     So it's no

13   different.     So we're really talking about the

14   entire system.      We're not talking about just the

15   death penalty.

16             I know everyone's going to say, well, the

17   death penalty is the only one that really matters

18   here and it's obviously the one we're discussing,

19   but it's the whole system.     So, unless you're

20   going to change discretion, which we have no

21   intention of, and it's an allowable thing, I

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   personally think that needs to be brought into

 2   our discussion if you really want to fix the

 3   system and not just claim you want to fix it but

 4   believe the death penalty is maybe appropriate --

 5   if you really wanted to fix the system then the

 6   discussion would be, how do you fix the system,

 7   not, again, going to that leap that there's only

 8   one way to fix it is to not have it.

 9             CHAIRMAN CIVILETTI:   I'm not sure of your

10   premise because I'm not sure, and haven't studied

11   enough to know whether the racial and

12   jurisdictional disparities that apply to capital

13   punishment apply across the board.

14             COMMISSIONER PROTHERO:   I can't say that

15   for sure.    Across the board as far as other type

16   of crimes?

17             CHAIRMAN CIVILETTI:   Crimes.   Yeah.    And

18   the reason is -- I think there was testimony --

19   the reason I'm doubtful about the premise is that

20   there was testimony that before sentence there

21   were fourteen screens that a death penalty case

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   went through, until it got to the point of the

 2   sentence of death or not.

 3             And at each of those points, there's an

 4   element of influence of one kind or another,

 5   whether it's the detective on the beat, or

 6   whether it's the forensic lab, or whether it's

 7   production of exculpatory evidence under the

 8   Brady Rule, whether there's life story

 9   presentation and the depth of it in the penalty

10   trial going to mitigating circumstances or not.

11             And then, after that, there are six more

12   screens, including appeals, direct appeals, post

13   conviction relief requests, habeas corpus

14   petitions, the federal court, appeals from those

15   -- that relate to, exclusively, most of those, to

16   death penalty cases -- not entirely, but a lot of

17   them.   So I'm not sure that statistics and

18   evaluations regarding capital punishment can be

19   easily made an analogy to this --

20             COMMISSIONER PROTHERO:   I won't say

21   easily; however, I will say the word --

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1             CHAIRMAN CIVILETTI:   -- to the whole

 2   system.

 3             COMMISSIONER PROTHERO:   I will say the

 4   word disparity when it comes to sentencing, all

 5   across, from county to county, etcetera, probably

 6   there is some real disparity in other crimes as

 7   to what kind of sentences go out.    I don't see

 8   that that probably would be a whole a lot

 9   different.

10             CHAIRMAN CIVILETTI:   Well, disparity in

11   and of itself, sometimes, for instance, if you're

12   talking about someone killing cattle -- if you're

13   in a farming region that's a heinous crime.       If

14   you're in a Chicago slum, near a slaughterhouse,

15   it may not be considered to be an offense at all.

16             COMMISSIONER PROTHERO:   I don't disagree.

17             CHAIRMAN CIVILETTI:   And that's a great

18   disparity, in outlook, in view point, and the

19   rest.   But in the same state, with the same law,

20   same system, it's troublesome.

21             COMMISSIONER PROTHERO:   And we should be

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   troubled throughout the system, not just for

 2   capital punishment, if that's the case.

 3             CHAIRMAN CIVILETTI:     If your premise is

 4   right.

 5             COMMISSIONER PROTHERO:    Well, we

 6   certainly have heard testimony here from State's

 7   Attorneys stating what they did in various cases,

 8   and others said their charges were much

 9   different, so.

10             CHAIRMAN CIVILETTI:     Yes?

11             COMMISSIONER GODFREY:    Can we bring up

12   the McCleskey case a little more, Judge

13   Spellbring?     Is that a case where the defendant

14   raised the Ray Paternoster study, saying that --

15   that's not the case?

16             COMMISSIONER SPELLBRING:       (No

17   microphone.)     (Inaudible) twenty year old case

18   that came out of the Baldus study (inaudible).

19   (Inaudible).

20             COMMISSIONER CAMPBELL:    I would just like

21   to get back to the discussion that Rick and you

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   were having, and just say to Rick, you know, I

 2   think this is another case, another topic, in

 3   which, if we possibly can do it, it might be

 4   fruitful just to consider, as a commission,

 5   whether or not, as Scott has put it, the findings

 6   of Baldus and Paternoster matter, and not think

 7   about whether or not that leads you to the

 8   conclusion that we should either repeal or keep

 9   the death penalty.

10             But see if on the fundamental issue of

11   the findings of disparity, whether we can reach

12   an agreement, if -- and I don't dispute your

13   observations about the possibility that other

14   areas of the criminal justice system may be

15   afflicted, as well, but you're right when you

16   said earlier -- our task here is to focus on one

17   single facet -- that is, the application of the

18   death penalty.      And I think you would agree that

19   is important in and of itself, regardless of -- I

20   mean, that's important.        Sure, there are other

21   important issues in the criminal justice system,

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   as to the way we handle drug offenders, and so on

 2   and so forth, but perhaps we can focus on this

 3   and see if we can reach a consensus or not, in

 4   back and forth discussion on the question that is

 5   raised in the draft about a finding of disparity

 6   in the application of the death penalty.          And

 7   then reserve for a later time the overarching

 8   question.

 9             COMMISSIONER PROTHERO:        Matt, I don't

10   think you would disagree that by having the

11   opposite argument come your way certainly makes

12   the case worth having.         So, if I'm giving the

13   other argument, I think it's very necessary.            In

14   fact, your case would be worth absolutely nothing

15   if everyone in this room was one-sided going into

16   it and came out of it one-sided.

17             MS. PHILOFSKY:       Okay.   Mr. Civiletti has

18   instructed me to move on to jurisdictional

19   disparities.      So unless anyone has any objections

20   that's what we'll do.

21             Okay.    All right.

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             And to start that discussion I am just

 2   going to read, on page twenty-four, Professor

 3   Paternoster summarizes his findings.    It's in the

 4   block quotes in the middle of the page, but I'm

 5   going to read them since there are several people

 6   out there in the audience who don't have this, as

 7   well.

 8             Specifically, he says:

 9             "Let me summarize this.   That after

10   controlling for case characteristics, so after

11   statistically controlling for the possibility

12   that crimes in different counties are more

13   serious than others, that in terms of seeking

14   death, the ratio of Baltimore County to Baltimore

15   City is thirteen and a half to one.    In other

16   words, the probability of a state's attorney

17   seeking death, controlling for case

18   characteristics, is thirteen times higher in

19   Baltimore County than it is in Baltimore City."

20             And let me just remind you that he

21   speaking to data that was collected for the time

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   period between, I believe, it's 1979 and 1999, or

 2   roughly therein, so we're not speaking about

 3   current times, however, I'll continue.

 4             "Baltimore County cases are five times

 5   more likely to have death requested than

 6   Montgomery County cases, almost twice as high as

 7   Prince George's County.        Harford County cases

 8   were eleven times more likely than Baltimore City

 9   cases to have death requested.        As you can see,

10   that's carried on at each and every stage such

11   that, in terms of the probability of a death

12   sentence, the probability of a death sentence in

13   Baltimore County is almost twenty three times

14   higher in Baltimore County than Baltimore City."

15             That's substantial, Professor Paternoster

16   reported.    Baltimore County compared to

17   Montgomery County is almost fourteen to one.

18   Fourteen times higher in Baltimore County.          So

19   when we speak of jurisdictional disparities,

20   those are the numbers we're talking about.

21   They're significant by almost anyone's standard.

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   And I don't know if anyone wants to object to the

 2   findings, or if anyone has any comments.

 3             COMMISSIONER SHELLENBERGER:       Can we put

 4   dates in there?

 5             UNIDENTIFIED COMMISSIONER:       Yeah, because

 6   you said this was done in the sixties?

 7             MS. PHILOFSKY:       No, um --

 8             UNIDENTIFIED COMMISSIONER:       Or the

 9   seventies?

10             MS. PHILOFSKY:       No.   '79 to 1999.

11             UNIDENTIFIED COMMISSIONER:       Oh, I'm

12   sorry.

13             MS. PHILOFSKY:       So it's a roughly twenty

14   year period.

15             COMMISSIONER SHELLENBERGER:       Well, Matt,

16   I come back to, you know, I guess the three

17   questions that constantly come up, and that is --

18   you know, yes, no, and this time, so what?           You

19   know.    And therein lies, I guess, a philosophical

20   difference that we all have to decide.

21             And Rick is absolutely right.       The drug

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   case in Baltimore City, same amount.         You cross

 2   into my jurisdiction, treated differently.           You

 3   go up to Joe Casilly's jurisdiction, treated

 4   differently.     You go one more step up to Cecil

 5   county, treated differently.

 6             It is a unique function of this

 7   jurisdiction that each of these counties elect

 8   their local officials.         And, in fact, it exists

 9   everywhere in this country.        And these are all

10   statewide statutes.       This is one drug

11   distribution statute that was drafted here and

12   passed here, in Annapolis, signed by a governor,

13   that each jurisdiction has decided to prosecute

14   in a different way.

15             And I agree, perceptions of equality

16   throughout the state are important but, yet, you

17   can't get around the fact -- and I guess therein

18   lies the difference between the two us, and that

19   is my mind keeps going back to is it legal?

20   Whereas, yours go to a broader picture.         And I

21   certainly understand and respect that.

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             But I would respectfully request that in

 2   the majority report we at least define our time

 3   frame so people understand that, perhaps, now is

 4   a different time.

 5             COMMISSIONER GODFREY:    Scott, I was under

 6   the impression that Baltimore County seems to be

 7   so inflated because Sandra O'Connor filed -- for

 8   every death eligible case she filed?

 9             COMMISSIONER SHELLENBERGER:    It is my

10   belief that, as a result of trying many more

11   death cases, then death was given more often,

12   yes.    And as a result of her filing in every

13   case.   And I indicated, the last time, that I do

14   not do that anymore.

15             COMMISSIONER GODFREY:    Right.    You said

16   you have taken a different approach.        Yes.


18             COMMISSIONER KENDALL:    I'm not going to

19   repeat what I said at our last session, but I

20   think death is different both in a practical way

21   and in a constitutional way.      The Supreme Court

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   has always looked to what states do, not what

 2   jurisdictions within a state do.    So I think here

 3   is an area where the constitutional rule is

 4   relevant.

 5             But I think it's also very important from

 6   a broader perspective of fairness within the

 7   administration of the system.     And I think it's

 8   important to note that Paternoster controls for,

 9   I think, was a hundred and twelve covariates.         So

10   he looks at other explanations for the patters he

11   finds, and he finds statistically significant

12   only the race of the victim and the geography.

13   So I think death really is different.    We're

14   talking about a penalty which is the ultimate

15   penalty, and the need to impose that fairly and

16   equally across the state, in all the

17   jurisdictions within the state.

18             CHAIRMAN CIVILETTI:   I'll have to look at

19   the record but my recollection is that

20   Paternoster said, or showed, that he had updated

21   his statistics to 2004, I think.

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880


 2   microphone.)     (Inaudible for about five words.)

 3             CHAIRMAN CIVILETTI:     Right.   And of

 4   course you can't get them daily because you have

 5   to compile them, and then you have to examine

 6   them, and evaluate them.       But 2004 is pretty

 7   good.

 8             Yes, Matt?

 9             COMMISSIONER CAMPBELL:     Thank you, Mr.

10   Chairman.

11             I am feeling like we have the ability on

12   this issue to reach at least a consensus on what

13   Scott has indicated is the first question -- and

14   that is the question, does the disparity exist?

15   And frankly, I think, as a Commission, every

16   point on which we can reach a consensus is going

17   to be helpful to us in fulfilling the assigned

18   mission to report back, because I think it is

19   significant.

20             And I agree, wholeheartedly, with other

21   members of the Commission who may draw different

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   or conflicting views as to what the disparity

 2   implies in terms of what a recommendations to

 3   take action with regard to that disparity ought

 4   to be.    But I do think, Mr. Chairman, that there

 5   is value to our recognizing that if the data goes

 6   up to the 2004, then up to 2004, this is what has

 7   happened.

 8             And I would only just throw in the

 9   thought that I think that David Kendall's points

10   are very worth our thinking hard about.     I'm

11   certainly going to try to think hard about them,

12   and I think that that then leads to the

13   conclusion that maybe it's not so terribly

14   important that we can all agree that Harford

15   County and Baltimore City have different policies

16   as to what a first offender possessor of

17   marijuana ought to be sentenced to, because first

18   offender convictions for the possession of

19   marijuana don't necessarily implicate a race of a

20   victim.    There isn't a victim, so to speak, in

21   that kind of a case, which sort of just

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   underscores another level on which David's point

 2   about death being different may be worth our

 3   pondering.

 4             But I do hope that we can find ways to

 5   reach consensus on those facts which seem

 6   irrefutable.

 7             COMMISSIONER O'DONNELL:     I just want to

 8   echo what you said, and that is with respect to

 9   this issue and any of the other issues that we're

10   dealing with.     I really think that there is value

11   in breaking these issues down to get as much

12   consensus as we possibly can.      I think we don’t

13   disagree as much as we think we disagree.        A lot

14   of the fundamental premises here, I think we can

15   find a consensus on.       And I want to absolutely

16   agree with what you said that there is great

17   value in that, because someone's going to

18   evaluate our report down the road.      They're going

19   to be looking at not just our ultimate

20   recommendations but our factual findings.

21             And so, the extent possible that we can

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   reach consensus on any of these issues, I think

 2   we ought to try to do so.      And this has been, I

 3   guess, what Scott and Rick and Matt have all been

 4   talking about -- on any one of these, I think we

 5   ought to be looking at this and saying, does this

 6   factual, fundamental premise exist?      Do we all

 7   agree that there is geographic disparity?        And of

 8   course there is.      So, factually, we find that to

 9   be the case.

10             And then the question is, to some of the

11   members of the Commission, this fact mitigates in

12   favor of abolition.       To other members of the

13   Commission, it may mitigate in favor of reform.

14   But there's such a hesitancy that I'm picking up

15   on all of our discussions on these issues to even

16   accept the fundamental premise, because

17   Commission members are naturally concerned that

18   it leads to the ultimate conclusion question.

19             And I think that we have to be very

20   careful of that because I think, factually, on

21   many many of these topics, whether it's

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   geographic disparity, or whether the death

 2   penalty costs a lot of money, or whether there's

 3   a fear of wrongful conviction, that on the

 4   factual premise, on the fundamental premise, we

 5   would all agree.

 6             And perhaps we ought to be thinking about

 7   drafting the report in such a way that

 8   reflects --

 9             CHAIRMAN CIVILETTI:   That's absolutely

10   true.    I mean, one could agree that it costs

11   more, that there are disparities, that there's a

12   risk of an innocent, that D.N.A. and other

13   forensic evidence is not foolproof -- could agree

14   on all of that and still favor the death penalty

15   because you believe that retribution is necessary

16   for the terrible crime, and one ought to be

17   treated or penalized to the gravest extent

18   possible.

19             So, I mean, that's true.

20             COMMISSIONER O'DONNELL:    That's exactly

21   the --

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1             CHAIRMAN CIVILETTI:    You could agree on

 2   all seven topics and recommendations and --

 3             COMMISSIONER O'DONNELL:    Exactly.

 4             CHAIRMAN CIVILETTI:    -- still favor

 5   retention of the death penalty, with its warts,

 6   because --

 7             COMMISSIONER O'DONNELL:    And I think

 8   that, ultimately --

 9             CHAIRMAN CIVILETTI:    -- of some other

10   factor.

11             COMMISSIONER O'DONNELL:    I think that,

12   ultimately, that -- I mean, that's exactly the

13   point, and that our report ends up being much

14   more constructive and valuable to others if we

15   can identify where our consensus is and then

16   where our departure is, in terms of the majority,

17   minority opinion.      And we confuse it all together

18   that we may lose the benefit that we can achieve

19   by showing that, in fact, we all really did agree

20   that factually a certain premise existed.       We

21   just couldn't agree on whether that lead to

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   repeal or reform.

 2             CHAIRMAN CIVILETTI:    Well, that's why

 3   I've also suggested, not suggest to you all but

 4   suggested to the staff that the report has to be

 5   extraordinarily careful in its references and

 6   data and facts, and particular its founding, that

 7   they're not based on exaggerations or coloring or

 8   limited testimony or evidence.

 9             Yes, Your Honor?

10             COMMISSIONER SPELLBRING:   Again, in an

11   attempt to reach a full report, it seems to me

12   that if we know the reason for the disparity,

13   which we do, that that should be in the report,

14   one.   It seems to me that if we know the reason

15   for the disparity has changed, that ought to be

16   in the report.      And we do.

17             CHAIRMAN CIVILETTI:    Are you suggesting

18   that it's Sandy O'Connor and Scott Shellenberger?

19             COMMISSIONER SPELLBRING:   I'm suggesting

20   that the testimony before us is that Sandy

21   O'Connor filed a death penalty in every death

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   eligible case, which would make those statistics

 2   the way they are.      I'm further suggesting that

 3   under Commissioner Shellenberger's testimony we

 4   know that that's not what's being done in

 5   Baltimore County any more.

 6             CHAIRMAN CIVILETTI:    I don't --

 7   respectfully, I disagree with you, but the facts

 8   will show what the facts are.     I don't have them

 9   before me, so there's no sense debating it.

10             COMMISSIONER O'DONNELL:    And I think,

11   also, wouldn't we -- even if that turns out to be

12   correct, and Scott employs the process completely

13   differently, and he's only been there -- you've

14   only had an opportunity to deal with it for a

15   year -- but even if it turns out that Scott does

16   handle it completely differently than Sandy

17   O'Connor did, I think that we can all just

18   intuitively say that geographic disparities are

19   going to exist because of the very discretion

20   that we've acknowledged exists.

21             So that is going to be a fundamental

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   aspect of capital punishment in this state.       It

 2   just is.    It's going to be handled differently in

 3   one jurisdiction than in another, no matter who

 4   is in charge of that jurisdiction.

 5              So the question then becomes that sort of

 6   fundamental, philosophical difference of folks

 7   like Scott, who have said that that's local

 8   government at work, that's the constituents

 9   voting in who they believe.    And those of us who

10   feel that that's not the proper principle to

11   apply when you're talking about the state taking

12   someone's life.

13              But still, factually, I think we all

14   agree that geographical disparity is part of the

15   administration of capital punishment.

16              COMMISSIONER SHELLENBERGER:   In the

17   spirit of cooperation from Matt and Katy, and I

18   guess I have to throw this up to the Chair, I

19   mean, we can't vote on every sentence.     The only

20   sentence that I could say yes to is that Ray

21   Paternoster's study, done between 1979 and 2004,

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   found statistically different, you know, higher

 2   results of reaching the death penalty in

 3   Baltimore County and, oh, by the way, we believe

 4   that's changed.      I mean, that's something that I

 5   could agree to.      But as a practical matter I just

 6   don't think we can vote on every, you know, every

 7   sentence.

 8             CHAIRMAN CIVILETTI:      I think that's a

 9   good start of the minority report.

10             (Laughter.)

11             COMMISSIONER SHELLENBERGER:      Thank you.

12             CHAIRMAN CIVILETTI:      What's the fourth

13   issue?

14             Help.

15             MS. POWERS:      Okay.   It sounds very loud.

16   The report has got the fourth issue as one of my

17   two issues, which is the cost issue.        To be

18   clear, the report -- and I don't know if you

19   wanted it, but it's in the wrong order, as per

20   the seven issues listed.       My issues are actually

21   five and six, but I labeled them incorrectly on

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   my initial draft, and I don't --

 2             CHAIRMAN CIVILETTI:       What's the statutory

 3   fourth?

 4             MS. POWERS:      The fourth issue is either

 5   innocence or D.N.A.

 6             MS. PHILOFSKY:       Let me clarify.    The

 7   order of the issues in the draft that you have is

 8   the order, I believe, in which we heard

 9   testimony.     So I believe if you go through, you

10   know, chronologically -- that's how I went

11   through it, but that is not the way that the

12   statute has it.

13             MS. POWERS:      I mean, I'm certainly more

14   than happy.     You want to discuss costs?

15             CHAIRMAN CIVILETTI:       Why not?

16             MS. POWERS:      Okay.   We'll talk about

17   costs.    And as one caveat before you read issues

18   four and five, really I just think it's issue

19   four, you'll notice some bracketed sections.

20   These have been addressed.         This is not the most

21   up to date version, but they're just little

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   comments that I've addressed.

 2             But, the focus of the cost section is the

 3   Urban Institute's study, and, obviously, they

 4   found the one point one million, the one point

 5   eight million, and the three million, which were

 6   the costs of those cases.

 7             Obviously, those who disagreed with the

 8   Urban Institute's findings disagreed with

 9   applying value, dollar value, to things that you

10   cannot sell, you cannot rent, you cannot actually

11   collect that money.

12             The one thing, though, that everybody

13   agreed on was the fact that death penalty cases

14   are more expensive.       How much more expensive?

15   But everybody agreed that they're more expensive

16   and that they utilize greater resources.        And

17   this draft is meant to reflect that.       It may not

18   be that exact dollar amount, but that there is a

19   greater use of resources with death penalty

20   cases, and that everybody basically testified to

21   that effect.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             Why they cost more is discussed, which I

 2   think is self evidence -- there's greater

 3   experts, there's the second phase of the trial,

 4   the penalty phase.       And then there's simply a

 5   discussion about what we've gotten for that,

 6   which is our high reversal rate, five executions,

 7   and only five men left on death row.

 8             And then a discussion as to what we might

 9   be able to do with some of the resources that

10   might be made available if the death penalty is

11   done away with, including using them for

12   resources or programs that would be meant to

13   prevent homicides in the first place.

14             CHAIRMAN CIVILETTI:     Yes, this is a

15   interesting subject because you can misuse words,

16   and I do it all the time, by saying cost savings,

17   for example.     Or by saying out of pocket

18   expenses.    And the studies, the primary studies

19   that show elaborate extra costs are based on the

20   economic analyses on opportunity costs.       The

21   opportunity to use the resources for more

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   beneficial or alternative purposes, rather than

 2   for judges, prosecutors, detectives, people in

 3   corrections, all dealing with death penalty

 4   cases, over and over and over again, and in

 5   different ways.

 6             And so we will make clear in the report

 7   that that's what we're speaking to -- is the

 8   opportunity costs and the suggestion that either

 9   that's desirable or necessary, or that the actual

10   dollar cost, which I think are estimated to be

11   far less, although I don't think there's any

12   study showing them there was an opinion expressed

13   by the Harford County prosecutor with regard to

14   them.

15             But, to give you an example, Secretary

16   Maynard -- I think it was distributed to you --

17   sent in some information with regard to

18   correctional costs.       And it surprised me,

19   greatly, that the death penalty defendant,

20   incarcerated, costs so much more per year than

21   the ordinary prisoner.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             MS. POWELL:      Or life without parole

 2   prisoner.

 3             CHAIRMAN CIVILETTI:      Twice as much?

 4             MS. POWELL:      Yes, it was about twice as

 5   much and it was based -- it was a comparison

 6   between an inmate housed at Supermax, which is

 7   where the death row housed, with either a minimum

 8   or a maximum security prisoner, which is what any

 9   life without parole inmate would be classified

10   as.   And it was about sixty something to thirty

11   something.

12             CHAIRMAN CIVILETTI:      Now --

13             MS. POWELL:      And you have that memo.

14             CHAIRMAN CIVILETTI:      Now the expert, two

15   of the experts said that the main studies,

16   showing those opportunities costs being roughly

17   three times greater, for capital punishment cases

18   and for life imprisonment cases, or other

19   homicide cases, two of the assessors, economic

20   assessors, from different locales or

21   universities, said that they believed that the

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   estimates were underestimated because they didn't

 2   include all of the resources used for the capital

 3   punishment cases.

 4             But I think it's very important that we

 5   not inadvertently mislead either the media or the

 6   citizens or, most importantly, the legislature,

 7   that they're going to have a hundred and eighty-

 8   six million, or something, in a pot and which

 9   they can redistribute at will.    Because that's

10   not it.

11             (Laughter.)

12             CHAIRMAN CIVILETTI:   What it is, it is

13   that all involved, without the death penalty

14   cases -- as Stuart said, he could not afford, he

15   couldn't have -- that was Stuart Simms -- to

16   undertake death penalty cases with his load, but

17   he can -- it is, to some extent, available for

18   alternative purposes that either we suggest or

19   such as Mike Millemann suggested in preventing

20   homicides, or in broader purposes, regarding the

21   victims of homicides, whether or not, and the

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   family of victims, whether -- regardless of what

 2   the penalty is, the -- or prosecution is, the

 3   family suffers from a homicide, to a terrible

 4   extent, horrific extent, and if we're not

 5   providing the close and immediate service that is

 6   needed, then we ought to do whatever we can to

 7   make a strong recommendation in that regard.

 8             All right.     Discussion on costs.

 9             COMMISSIONER GODFREY:        (No microphone.)

10   I would like to begin the discussion.

11             Looking at Mr. Shellenberger's opinion,

12   at least his testimony he gave at the last

13   meeting --

14             I'm sorry, I was not miked.

15             Looking at Mr. Shellenberger's testimony

16   he gave last time, he ridiculed the Urban

17   Institute's study.       In fact, he said it was

18   highly flawed.      He went on to say, we can hear

19   from all the economists in the world that -- they

20   brought in three, here, to tell us the

21   methodology is right.          But all the assumptions

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   underlying the study are wrong.   In other words,

 2   I think Scott was looking at real costs versus

 3   opportunity costs.

 4             And when we talk about that prosecutor's

 5   getting twenty percent of that one eighty-six

 6   million dollars, is not accurate.

 7             Maybe you can continue the discussion,

 8   Scott, on this.

 9             (Laughter.)

10             COMMISSIONER SHELLENBERGER:   And I think

11   that the Chairman has addressed that there needs

12   to be a clear definition, in this first part of

13   the paragraph, a couple of things -- one, what --

14   the word opportunity costs should appear every

15   place next to the word cost, because -- and I

16   think that it needs to be defined according to

17   how Mr. Rowan defined.

18             I think the second thing that's important

19   that -- you know, we were all laughing at because

20   we saw Sandy over there adding up how much he

21   could spend this money on -- is there needs to be

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   a legal acknowledgement that every jurisdiction

 2   funds their own State's Attorney's Office, so

 3   even these costs were real, the state has no

 4   power to direct where those monies go.

 5             My view is well-known on this issue, and

 6   that is the only state savings, if there is, is

 7   nine hundred thousand dollars, and that's what

 8   runs Katy's shop -- not that I want you to close

 9   down, and, so, again, these costs are potentially

10   there.    And I agree with my first quote that you

11   put in the majority report.     I did say they do

12   cost more.     I do absolutely acknowledge that.

13             But I think for the victim's families out

14   there to suddenly think there's this pot of money

15   that's going to go to victim services, that are

16   suddenly going to be funded by the state, I think

17   that that is false hope and, frankly, just a

18   complete fallacy, from a political and economic

19   standpoint.

20             CHAIRMAN CIVILETTI:   Yes, Sandy?

21             COMMISSIONER ROSENBERG:   I'm not on a

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   budget committee anymore so I was deferring to

 2   Delegate Jones in terms of spending the money.

 3             Granted these are difficult fiscal times.

 4   We all know that.      But I think it's still

 5   appropriate for us, as a Commission, to recommend

 6   to the governor that as part of the repeal that

 7   these are areas where the state should be doing

 8   more and that, I don't think, needs to be limited

 9   to the families.      It can be security in the

10   prisons and it can be other remedial or

11   preventive measure.       I think that's incumbent

12   upon us to include that in this section.        And

13   there can be -- we can obtain estimates for some

14   of those things, as well.

15             COMMISSIONER SHELLENBERGER:     And Sandy, I

16   absolutely agree.      But we shouldn't say that

17   there's going to be this money savings that

18   you're going to realize because it's still so

19   much of these opportunity costs just aren't

20   really there.     I mean, they are not really there.

21             CHAIRMAN CIVILETTI:     Yes, David?

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             COMMISSIONER KENDALL:    Well, we may be

 2   having a heated agreement here, but --

 3             (Laughter.)

 4             COMMISSIONER KENDALL:    -- I think there

 5   are opportunity costs and there are opportunity

 6   costs.    The point is that there are many

 7   witnesses.     I mean, we had at least ten witnesses

 8   talk about the increased costs in capital cases.

 9   And even State's Attorney Casilly admitted that.

10             I think we ought to be precise as we

11   describe, for example, what's talked about in the

12   Roman study.     But I do think there are going to

13   be other resources freed up, real resources, that

14   will be put to other use within the system.

15   Those are -- you can give those a fiscal

16   quantification but they're very real.

17             And so I think that we ought not to just

18   dismiss opportunity costs as though that's kind

19   of a theoretical concept.      It's really not.

20             COMMISSIONER KENDALL:    (No microphone.)

21   Prosecutors' time, resources used to hire

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   experts, (inaudible).

 2              CHAIRMAN CIVILETTI:    The --

 3              COMMISSIONER KENDALL:    That I think in --

 4   if you don't have the death penalty they are

 5   going to be a lot of those things, like judges'

 6   time, on post-conviction hearings, things like

 7   that.

 8              COMMISSIONER SHELLENBERGER:     Mark my

 9   words, if this thing goes away, not one person in

10   the state of Maryland is going to lose their job.

11   Not one prosecutor's going to disappear, not one

12   public defender's going to disappear, not one

13   judge is going to disappear, not one courtroom is

14   going to get rented out.       The only thing that

15   will get saved are the costs that go to the

16   experts.    And I agree there are additional costs

17   that go to the experts, but all these other costs

18   are just not going to happen here in the state of

19   Maryland.    And I am absolutely certain.

20              CHAIRMAN CIVILETTI:    Here's what

21   Professor Millemann said, in his testimony, at

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   page two eighty, on this subject:

 2             What are the costs, and this is

 3        where I think the conversation today got

 4        most interesting from perspective.     I

 5        think, and I think where Rabbi Loeb seems

 6        to have sort of hit it, the nail on the

 7        head, I think that costs are the

 8        inability to use resources within the

 9        Public Defender's office.    They haven't

10        been fired, but to use the resources that

11        are in the Public Defender's office, and

12        the prosecutor's office, and the Attorney

13        General's office, to actually seek to

14        reduce homicide, instead of the illusion

15        of the death penalty having some impact

16        on the homicides, and it doesn’t, to

17        actually use those resources to reduce

18        homicide.

19                   And you look at programs around

20        this country that are showing results

21        with reducing homicides they're using

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1        resources to go after career criminals,

 2        they're using resources -- and this is

 3        across agency lines, to closely monitor a

 4        limited number of very dangerous people

 5        who produce a lot of problems.       They're

 6        using these resources to go after guns,

 7        threats to witnesses, child abuse and

 8        domestic violence, which are the

 9        precursors to homicide.

10                   They're using them to screen

11        cases up front to identify those people

12        who pose particular threats of homicide.

13        And they're using them to protect at risk

14        children who we know are murdered at

15        unacceptable rates and have been for many

16        years.    So I think that's the cost of the

17        death penalty -- the lack of resources to

18        actually realistically and seriously go

19        after homicide.

20             COMMISSIONER BLOODSWORTH:      Scott, how

21   much does experts cost?        I had a couple in my

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   trial but they were -- we never used them.          They

 2   were accepted.      But I was just curious as to like

 3   how much would that be?        That would be quite

 4   considerable, wouldn’t it?       I mean, I don't know

 5   so --

 6              COMMISSIONER SHELLENBERGER:     Actually, I

 7   think I will defer to Katy.       I can only tell you

 8   that in a few homicides where we've obtained a

 9   psychiatrist, we typically have to file a

10   retainer of two thousand to three thousand

11   dollars.    As I mentioned before, in the Gaumer

12   case, which was a death penalty case, that was

13   the only additional cost our office had.

14              Katy has much more experience with the

15   cost of experts because she's hired more of them,

16   across a broader range of expertise, and I would

17   defer to her.

18              COMMISSIONER BLOODSWORTH:     But you would

19   still, for your own office, though, right?          You

20   would still get them if you needed them?         Like a

21   psychiatrist or some expert that you have to get

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   out of state or something?

 2             COMMISSIONER SHELLENBERGER:          Well, I was

 3   preparing for a death penalty case this summer in

 4   which I did not hire any experts.            There was not

 5   one additional cost.       That case resulted in a

 6   plea.

 7             The Gaumer case was a three week long

 8   death penalty case that had been going on for

 9   over a year and we spent a whopping two thousand

10   five hundred dollars over what we normally absorb

11   in our weekly budget.          So I clearly admit though

12   that the defense expert costs are more.

13             CHAIRMAN CIVILETTI:        Katy?

14             COMMISSIONER O'DONNELL:        It costs a lot,

15   and actually all of those specific amounts of

16   money were given to John Roman, in the Urban

17   Study, and all of that was factored in.            So

18   there's data and charts and things there that

19   would give you exact amounts of money for things.

20             Of course it differs on a case by case

21   basis.    And of course the responsibilities of the

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1   defense side to engage experts is completely

 2   different than the state side because of all of

 3   the things we've already talked about that are

 4   placed upon us by the guidelines of what we have

 5   to do in order to investigate a defendant's

 6   entire life history and background.     The state

 7   doesn't have that burden so of course they don't

 8   need to engage the same kinds of experts and to

 9   the extent that the defense does.

10             But I think a really important point

11   here, too, is to note that when the Public

12   Defender's office engages experts, for the most

13   part, we find people who are willing to work at a

14   reduced rate.     We have expert psychiatrists who,

15   out in the world, would be charging three hundred

16   dollars an hour, four hundred dollars an hour,

17   some up to six or eight hundred dollar an hour,

18   who may be willing to work for our clients,

19   because they're indigent, at a hundred and

20   twenty-five dollars an hour.

21             But the universe of folks who is willing

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   to do that, of course, is small and may continue

 2   to dwindle.     It's not that different from what

 3   we've heard from the attorneys, who addressed us,

 4   who came and said that when they do panel work

 5   for our office they're working at a rate of fifty

 6   dollars an hour, and that that doesn't even pay

 7   the overhead in their offices, and is

 8   substantially different than what they would be

 9   getting if they were out in the private sector.

10             And so I think it's interesting to note

11   that these costs, even at those reduced rates,

12   are still significant.         And that, in fact, I

13   think Scott's -- I think, if I'm stating it

14   wrong, but your recommendation would be, if you

15   kept the death penalty, that we should be

16   spending more money on it.        That these folks --

17   in other words, those attorneys ought not to be

18   working on capital cases at fifty dollars an

19   hour.   And that those resources and experts that

20   the defense side would so desperately need in

21   order to do their job -- we can't rely on experts

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   being willing to reduce their rates to such a

 2   nominal fee.     That we need -- we would need more

 3   money, quite frankly, in order to do it the way

 4   we ought to be doing it.       And I think that's an

 5   important thing to note.

 6             CHAIRMAN CIVILETTI:     Yes?

 7             COMMISSIONER SMITH:     I strongly agree

 8   with the Chairman and deeply appreciate his

 9   comments, and caution all of the Commission to be

10   careful with that language because one of the

11   things that we did in our preliminary draft -- I

12   personally talked to some of the commissioners in

13   New Jersey, and no money has been given to any

14   surviving groups or any victims.         And that's the

15   reality of this.      I think the benefit is having

16   your resources allocated, but no money was ever

17   given to any victim's groups.

18             But in our draft we talk about some

19   alternatives.     And it's the consensus of the

20   three commissioners here, who are victims, that

21   you consider those.

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880


 2   microphone.)     Can you tell me what they are?

 3             COMMISSIONER SMITH:   Excuse me?


 5   microphone.)     The recommendations?

 6             COMMISSIONER SMITH:   Well, actually,

 7   that's in a draft, and the Chairman has it, and

 8   you guys will be seeing it shortly.

 9             CHAIRMAN CIVILETTI:   Yes, Madam Delegate?

10             COMMISSIONER JONES:   My question is for

11   Katy.

12             In terms of your costs to your expert

13   witnesses out of your office , is that a line

14   item in your budget that that comes from, or how

15   do you --

16             COMMISSIONER O'DONNELL:   I'm not the

17   fiscal person so I really don't know line items

18   from other things.

19             COMMISSIONER JONES:   (No microphone.)

20   The source that it comes from (inaudible for

21   remainder of question.)

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1             COMMISSIONER O'DONNELL:     To be honest

 2   with you, I'm really not certain.       I'm not the

 3   person who would be able to confirm that with you

 4   one way or another.

 5             COMMISSIONER SHELLENBERGER:     Delegate, if

 6   you look at the 2009 Appropriation for the Public

 7   Defender's office, capital litigation division,

 8   there is a line item for expert witnesses, and I

 9   had it with me last time and it does exist.         I'll

10   be happy to send it to you.

11             COMMISSIONER JONES:     (No microphone.)

12   (Inaudible for about four words.)


14             CHAIRMAN CIVILETTI:      All right.    Are we

15   ready to move on from costs?

16             You're up again, (Inaudible).

17             MS. POWERS:      Yeah, I'm up again.

18             Okay, the second topic is the -- the way

19   the statute worded it is "the effects of

20   prolonged court cases involving capital

21   punishment and those involving life imprisonment

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   without the possibility of parole," which we take

 2   to mean really the effects that these long cases

 3   have on the -- I'm sorry, I'm on page thirty-

 4   seven of the draft that is in front of you.

 5              We take it to mean, really, the effect

 6   that these long cases have on the family members

 7   of the victims of murder -- other, obviously than

 8   costs -- costs would be another one that long

 9   cases have but that is covered in another

10   section.

11              And the basic point here is that we had a

12   lot of testimony from victims or family members

13   of victims, some support the death penalty, some

14   support repeal of the death penalty, but that

15   there was a great deal of testimony that the

16   system is difficult on the family members.

17   Whether it's the death penalty or not, the system

18   is difficult.     And that the death penalty

19   exacerbates that because it tends to be -- on

20   average, it's longer, there are more appeals,

21   more repeals or reversals, more trials.     All

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   though well intentioned, the prosecutor

 2   consulting with the family members can lead -- as

 3   to whether or not to seek the death penalty --

 4   can lead to internal turmoil in the families,

 5   guilt, a lot of issues.

 6             And so overall, I go through the

 7   testimony, but also the fact that it tends to be

 8   an illusory sentence because, for example, in

 9   Maryland we've had, I believe it's seventy-seven

10   death sentences handed down, yet there have only

11   been five executions and there are five men still

12   on death row and a couple -- I think it comes

13   down to sixty-two reversals and each of those

14   most likely represents a separate family that was

15   promised an execution, and went through years of

16   the system and the repeals and the -- or the

17   reversals and the appeals, and in the end, ended

18   up without the execution.

19             In essence, whether they got a life

20   without parole sentence or something else, they

21   were promised a sentence that they never got,

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   which is another problem that the death penalty

 2   has.   If your loved one's murderer is sentenced

 3   to a life without parole, they go to prison.

 4   Even if they do appeal or they get a new trial,

 5   that whole time they are in jail, and so they

 6   are, in effect, serving the sentence they were

 7   given.    You may still be going to court and it

 8   may still be painful but they are at least

 9   serving the sentence.

10             When someone is sentenced to an

11   execution, unless they are executed they never

12   actually serve the sentence that they were given.

13   And that causes, obviously, effects on the

14   family.

15             So, additionally, we would like to

16   incorporate some recommendations for the use of

17   resources, to whatever extent they are, they are

18   for the victims of family member groups, which is

19   what, as you know, Rick and Oliver and Vicki have

20   worked on and they've given us a draft.     It is

21   not in here yet, but we will be incorporating it

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   and circulating it.

 2             CHAIRMAN CIVILETTI:     I've had a chance to

 3   skim the preliminary report of Oliver and Vicki

 4   and Rick, and it's very, very good.       And it's

 5   preliminary, as they suggest, because they may

 6   have other comments and other positions that they

 7   wish to take, and so I will take it as

 8   preliminary.

 9             It sounds to me, from the topics that are

10   discussed by your note, may require, depending on

11   how the whole Commission considers them, but may

12   require a change in the law, to some extent, on

13   some points.     And if it does, after I read this

14   carefully, if it does then we'll go about

15   preparing a draft piece of legislation so that it

16   could be included the report, the final report,

17   because any little assistance that we can provide

18   to our state legislators is all the better.

19             Would you all --

20             MS. POWERS:      And I, I was going to -- let

21   me just add one point that part of this process

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   is that -- and I think we owe a gratitude to Rick

 2   and Oliver and Vicki, because they have been

 3   gathering statistics and information from around

 4   the state, because we did not hear any testimony

 5   on exactly what Maryland provides in the way of

 6   victim services.      And so they have gone about

 7   gathering that information for us.     And they are

 8   still in the process, which is one of the reasons

 9   why this is still a draft.

10             CHAIRMAN CIVILETTI:    And it's -- for a

11   brief report, it's pretty comprehensive, so I

12   congratulate you all for good work.     And if you

13   wish to discuss any part of it, now, feel free to

14   do so.    If not, we'll wait until our next

15   session, after we've had a time to continue to

16   review it.

17             COMMISSIONER SCHIEBER:    I'd just like to

18   say one thing so you can start preparing for this

19   because we're keeping the options open till all

20   the data is in, but preliminarily, I honestly

21   think that our biggest problem is that the

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   sources of the data that are coming in are using

 2   so many different variables, and it's very hard

 3   to extrapolate from them, like we have said that

 4   we wanted the focus to be on homicide victim

 5   services, but many of the information sources are

 6   compiling those numbers in with rape and sexual

 7   assaults, with domestic violence, and other

 8   issues so it becomes very difficult to say this

 9   is how much we would recommend in terms of

10   support for the homicide cases.    That is one of

11   our problems.

12             And then there's these big jurisdictional

13   issues -- I hope I'm being fair speaking for the

14   other members -- these big jurisdictional issues

15   from where some things are done very effectively

16   and thoroughly and some parts where it's almost

17   totally absent and -- or there's nothing

18   available that anybody can give to us, is what

19   I'm saying.     So that's why we want to say it's

20   preliminary and we're going to give it a little

21   more thought and come back and add that to our

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   next discussion, if we may.

 2             MS. PHILOFSKY:       If you need any help with

 3   the data, variables, or analysis, or anything,

 4   you know, if any --

 5             COMMISSIONER SCHIEBER:       (Inaudible).

 6             MS. PHILOFSKY:       I would be happy to help

 7   you.

 8             COMMISSIONER SCHIEBER:      Of course.        Okay.

 9   Thank you.

10             COMMISSIONER SMITH:       I think one of the

11   most difficult parts to this is, and this was

12   from information that we gathered from the

13   N.C.B.L.I., that there's never been an official

14   study about this subject that we've issued a

15   report on, done in this nation.        Never.     And so a

16   lot of the information that we are receiving,

17   it's from firsthand knowledge in talking to

18   victim's advocates, victim's coordinators,

19   attorneys, victims in support groups that we are

20   members of.     But there has never been a study, an

21   official study.      So that's one of the

     IRWIN REPORTING & VIDEO, LLC                    (410) 494 - 1880

 1   difficulties.

 2             But I have to praise the members of this

 3   team because they went out and talked to police

 4   agencies and to people who are facilitating

 5   groups, and pulled in some data.    And so because

 6   this is so important to us, we want to make sure

 7   we get this right.

 8             CHAIRMAN CIVILETTI:   Well, we appreciate

 9   it.   And we will revisit the subject, I hope

10   affirmatively, in the near future.

11             The next topic that we'll deal with is, I

12   guess, one would say the difference in the death

13   penalty, and that is the risk of innocent people

14   being executed -- that it's irreversible once

15   imposed, and that's what makes it different.

16             And Maryland, you look at a glass and

17   it's half full and others say, well, it's half

18   empty, our error rate is looked upon in that way

19   by some of us, and it's just one part of dealing

20   with the sub issues around the risk of innocents,

21   and we have the very, very good fortune of having

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   Mr. Kirk Bloodsworth with us instead of not with

 2   us.

 3              UNIDENTIFIED COMMISSIONER:       (No

 4   microphone.)     (Inaudible).

 5              (Laughter.)

 6              CHAIRMAN CIVILETTI:        And I have trouble

 7   concluding that his experience proves that the

 8   system works, but maybe you can look at it that

 9   way.

10              In any event, Danette will lead that

11   discussion, which begins on forty-two and, in

12   essence, says, of course there's a risk.              We're

13   humans.    Humans make errors.        Companies make

14   errors.    Government makes a lot of errors, as

15   we're all suffering from now, and so that's --

16   the question is, how big a risk is it and is the

17   benefit to the public override the risk, or can

18   we eliminate the risk and say the system's

19   perfect?    I don't think that's likely, but --

20              Danette?    Danette, I'm sorry.

21              MS. EDWARDS:        (No microphone.)    Sure.

     IRWIN REPORTING & VIDEO, LLC                      (410) 494 - 1880

 1   Thanks.

 2             I'm not going to read to you what is in

 3   the draft outline because you have it.    I trust

 4   you all will read it before the next meeting.         So

 5   I will just summarize, briefly, what I did in

 6   this portion of the outline.

 7             We heard extensive testimony on the topic

 8   of the risk of innocent people being executed.

 9   And I think that testimony naturally falls into

10   five main categories, and that's how I've

11   organized this part of the report.

12             First, the reversal rate (inaudible) as

13   Mr. Civiletti said, you know, as he said, the

14   reversal rates that we've heard in testimony of

15   people like Dr. Fagan and Deborah Fleischaker was

16   extremely high, about eighty percent.     For those

17   of you -- and I anticipate a question now, I've

18   got a footnote in this draft outline already,

19   that talks about some of the decisional

20   precedents that the courts have issued, and it's

21   sort of a zig and zag in the decisions that have

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   come out from the courts, over the years, that

 2   every five or ten years we clear death row.            And

 3   that, of course, does contribute to some of the

 4   magnitude of the reversals that we see.          But

 5   that's the first portion of the discussion.

 6             We also heard testimony with problems in

 7   forensic labs, and here I've primarily relied on

 8   testimony by Patrick Kent.          And you've heard

 9   about lab techs who have just made mistakes out

10   of incompetence or, worse yet, it was something

11   more nefarious.      People who, for instance, and,

12   in fact, falsified their credentials.         And I have

13   a few more examples in that portion of the

14   discussion.

15             The third main category that we heard

16   testimony on, and I think is relevant to the

17   innocence discussion, is the frailty of

18   eyewitness testimony.          And here we had some

19   moving testimony by Jennifer Thompson.          She's

20   sort of the primary witness that I relied on for

21   that issue.

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1             Fourth, we've heard quite a bit of

 2   testimony on the problem of defense costs and

 3   other flaws in the legal and criminal justice

 4   systems that, I think, at the end of the day, can

 5   contribute to wrongful convictions in death

 6   penalty cases, and ultimately executions.      And

 7   there I've got a lot of discussion of the

 8   testimony that we heard from Deborah Fleischaker,

 9   Donald Zaremba, Harry Trainor, Bill Brennan.

10             I do get into a discussion of the fifty

11   dollar an hour compensation rate to private

12   capital defenders, and also a discussion -- I

13   anticipate a discussion of the extensive A.D.A.

14   guidelines that Maryland really is bound to meet

15   in defending capital cases.

16             And then the fifth and last category that

17   I have in this part of the report is the erosion

18   of the effects -- of executing innocents -- the

19   effect that that has on public confidence in the

20   criminal justice system, as a whole.   And you

21   heard a whole cast of witnesses who came up and

     IRWIN REPORTING & VIDEO, LLC            (410) 494 - 1880

 1   said that it, you know, erodes the confidence

 2   that they have, in fact, on the criminal justice

 3   system when we see people who are exonerated

 4   every day and they were wrongfully convicted.

 5             So that's how I --

 6             CHAIRMAN CIVILETTI:         What -- are you

 7   speaking of the possibility of execution of the

 8   hundred and thirty people who have been

 9   exonerated?     Is that --

10             MS. EDWARDS:         Absolutely, I think that

11   those examples played heavily into peoples' minds

12   when they say, look, I don't have a lot of

13   confidence in the criminal justice system.            We've

14   seen lots of exonerations.          We've seen that

15   people are fallible, and human, and they make

16   mistakes.    And so, therefore, this really makes

17   me question how effective the criminal justice

18   system is.

19             And, yes, you may -- while those people

20   may also question the efficacy of the system,

21   generally, as a whole, other crimes, non-capital

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   cases, I think the point here is that death is

 2   really different.      So.

 3             CHAIRMAN CIVILETTI:   You do give credit

 4   to Maryland, as Scott has pointed out to us, and

 5   others, Sandy Rosenberg pointed out, too, that

 6   the Maryland -- either the judicial system or the

 7   legislative system or the state's attorneys have

 8   adopted many of the recommendations either of the

 9   A.B.A., the Illinois Report, or others dealing

10   with such topics as the videotaping of all

11   interrogations of prisoners, as a matter of state

12   policy.    We can't yet -- the counties can't all

13   afford that, but hopefully they will in the

14   future.

15             The improvement of the lineup and

16   identification system to avoid suggestions or

17   methodologies which sociologists or psychologists

18   have said make it less accurate and less

19   vulnerable to mistake or harsh cross examination.

20             And, of course, a lot of these

21   improvements for better certainty don't only

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   apply to capital punishment cases.        They apply to

 2   across the board cases, and they make the system,

 3   and have made the system, and Maryland's

 4   improvement have made the system better.          And

 5   although there may be resistance at change, as is

 6   a human characteristic, the changes that are made

 7   that make eyewitness testimony more accurate,

 8   more certain, more correct -- confessions more

 9   provable, without claims of harassment or

10   oppression, and other -- and identifications that

11   are done serially, by double mixes so there's no

12   knowledge on the part of the operator, nor

13   knowledge on the part of anyone else in the room

14   or in the closet, of the identity of the

15   perpetrator as opposed to the other fillers.

16             All of those things make convictions

17   better, quicker, more certain and more resistant

18   to reversal on appeal.         So in many ways they make

19   the arrest and apprehension and conviction and

20   imprisonment of the guilty much more likely, much

21   firmer ground, and a much better system, as well

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   as protecting the innocent, of course.

 2             Yes, Matt?

 3             COMMISSIONER CAMPBELL:     It strikes me as

 4   I listen to you that this might be an issue about

 5   which to quote David's felicitous phrase, we

 6   might reach some heated agreement, but I think it

 7   would be easier to do if it's possible for us to

 8   change the format.       It seems to me that the

 9   problem is sort of exemplified in the first

10   paragraph of text, because we tie in a statement

11   that I think many commissioners would agree with,

12   about the errors that may lead to wrongful

13   convictions.     But we immediately jump to an

14   ultimate recommendation on the overarching

15   question of repeal.

16             And I'm wondering if it might be possible

17   for us to sort of tease out the specific findings

18   and maybe even number them, and in such a fashion

19   that in each issue, and this might be one that

20   would lend itself to it, and I'm not suggesting

21   that, as Scott had said, that we need to vote on

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   every sentence, but I do think commissioners

 2   together can perhaps make suggestions to tweak

 3   language in an effort to reach a stronger

 4   consensus and make a stronger statement.

 5             And if we were able to do that then we

 6   might be able to have a series of findings in

 7   which the report can say the Commission

 8   unanimously found the following:    there are

 9   innocent people who get convicted and some of

10   them end up -- or however -- you all say it much

11   better than I could.

12             And then have a separate section in which

13   we delineate those findings that we may not be

14   unanimous on and articulate that difference.

15             CHAIRMAN CIVILETTI:   Yes, Scott?

16             COMMISSIONER SHELLENBERGER:   I appreciate

17   the section and I think it's a good starting

18   place.    One thing I'm curious about as far as

19   placement goes, and that is the section that

20   we're dealing with innocence why do we have a

21   discussion about the reversal rate.     There seems

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   to be an implication there that all sixty-two of

 2   those reversals, or sixty-six, those individuals

 3   were innocent.      And I can actually read chapter

 4   and verse for people who --

 5              CHAIRMAN CIVILETTI:   No, no.

 6              COMMISSIONER SHELLENBERGER:     -- the cases

 7   got reversed and suddenly they --

 8              CHAIRMAN CIVILETTI:   No, it shows, it

 9   shows error, not innocence.      And error occurs for

10   the guilty but also for the innocent.

11              COMMISSIONER SHELLENBERGER:      Well, I

12   would --

13              CHAIRMAN CIVILETTI:   So it shows how an

14   innocent -- you know, one would ask, how can an

15   innocent person be convicted?     And they're

16   convicted as a result of error.     Error that

17   sometimes is found, sometimes is not found till

18   years later.     That's why it's there.


20   understand.     But the title is, The Risk of

21   Innocent People Being Executed, and Section A

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   talks about the reversal rate in Maryland.        And,

 2   in fact, while this section, I think, is accurate

 3   -- I mean, it's legally and factually accurate, I

 4   just don't necessarily know that it belongs in

 5   the part about innocence.      You might want to move

 6   it to the part about costs.     There's nothing

 7   unreasonable about that.

 8             CHAIRMAN CIVILETTI:    If you'll agree with

 9   the rest of the recommendations in the section

10   I'll move it anywhere you want it moved.

11             (Laughter.)

12             COMMISSIONER SHELLENBERGER:    Ah, we'll

13   leave it where it is.

14             (Laughter.)

15             CHAIRMAN CIVILETTI:    Yes, Your Honor?

16             COMMISSIONER SPELLBRING:    I think I'm

17   following up on Scott's question.     On page forty-

18   four, we're talking about Professor Fagan's

19   testimony about an eighty percent reversal rate.

20   Is there any statistic beyond that that says what

21   happened with those cases, after that reversal

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   rate?

 2             CHAIRMAN CIVILETTI:         Only to the extent

 3   that the following sentences address some of the

 4   reversals.

 5             MS. EDWARDS:         Judge, I do think you're

 6   right.    In Professor Fagan's testimony he might

 7   have gone in a later sentence or paragraph to say

 8   and in "x" percentage of these cases on retrial,

 9   the defendant was committed and received a life

10   sentence, or something to that effect.          I think

11   there may be a stat on that.

12             COMMISSIONER SPELLBRING:        (No

13   microphone.)     I don't have any recollection one

14   way or the other.      I was only asking to inquire

15   whether (inaudible)?

16             CHAIRMAN CIVILETTI:         Yeah, my guess is

17   that the vast majority of them receive some

18   lesser sentence.

19             COMMISSIONER O'DONNELL:        I think there

20   was testimony from -- it might have been from

21   Professor Millimenn or it might have been even

     IRWIN REPORTING & VIDEO, LLC                    (410) 494 - 1880

 1   during Scott's testimony that at least the

 2   reversals, the sixty-some reversals were, in many

 3   cases either plead out to non-capital sentences,

 4   that they were tried and some were convicted of

 5   lesser crimes, second degree murder and such --

 6             CHAIRMAN CIVILETTI:         Some were acquitted.

 7             COMMISSIONER O'DONNELL:        Some were

 8   acquitted.     Yes.

 9             CHAIRMAN CIVILETTI:         On a second trial.

10             COMMISSIONER O'DONNELL:        So I don’t think

11   we specify case by case but in a general way it

12   said that all of those cases disappeared except

13   for the five gentlemen who were executed and the

14   five gentlemen who remain on death row.          So they

15   all resulted in non-capital sentences when they

16   were   -- went back to court.

17             MS. EDWARDS:         What about -- hasn't Booth

18   been retried and --

19             MALE SPEAKER:        Three times.

20             MS. EDWARDS:         Yeah, so his -- he got a

21   death sentence again.

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1             MALE SPEAKER:        The third time.

 2             COMMISSIONER O'DONNELL:        Right.     Right.

 3             MS. EDWARDS:         And he probably falls into

 4   the statistics of people who were reversed.

 5             COMMISSIONER SHELLENBERGER:        He counts as

 6   two reversals.

 7             MS. EDWARDS:         Yeah, he counts as two

 8   reversals.

 9             CHAIRMAN CIVILETTI:         Yes, Oliver?

10             COMMISSIONER SMITH:        Would it be fair to

11   put a percentage of -- along with the eighty

12   percent reversal rate, could you say that out of

13   the eighty percent forty-five percent were

14   sentenced to life no possibility of parole,

15   twenty percent were --

16             CHAIRMAN CIVILETTI:         If we have that

17   we'll do it.

18             COMMISSIONER SMITH:        Okay.   It would be

19   interesting to put it in there.

20             CHAIRMAN CIVILETTI:         And I don't think

21   there's any suggestion that of the eighty percent

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1   they were reversed because they were innocent.

 2   There's no suggestion of that in there, because

 3   it follows right up by saying half, I think, of

 4   something were found guilty.         But I don't see why

 5   we can't put the -- whatever the statistics are,

 6   put them in there.

 7             COMMISSIONER SMITH:        Yeah, I think in the

 8   interest of fairness.          Because to a layperson, I

 9   would assume that eighty percent was incorrect

10   and the majority of these people were exonerated.

11             CHAIRMAN CIVILETTI:        Right, and that's

12   not so, and --

13             COMMISSIONER SMITH:        Right.

14             CHAIRMAN CIVILETTI:        -- that's not the

15   impression.     The impression to be made is that

16   the system is fraught with error.

17             COMMISSIONER SMITH:        Absolutely.   Yeah.

18             CHAIRMAN CIVILETTI:        And the possibility,

19   therefore, that the error applies to an innocent

20   person is real and not a femoral.

21             COMMISSIONER SMITH:        Throughout this

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   whole process, even we are tasked to address

 2   seven issues, it keeps coming up with the flawed

 3   system.

 4              CHAIRMAN CIVILETTI:     Yeah.   Well, it's an

 5   extraordinary complex system made very difficult

 6   by human nature, by emotional feelings, by the

 7   tragedy of death, and by the complexity of the

 8   law and the changing, as the Supreme Court has

 9   found -- changing principles of morality or

10   decency, the phrase that the court uses.

11              And it is aggravated by natural human

12   error that occurs, out of zealousness or out of

13   incompetence or lots of other things.        And when

14   you try to get through that maze of difficulties

15   and complexities, the next thing you know, it's

16   changed.    It's changed by the Supreme Court

17   rulings in additional cases, or it's changed by

18   the high court in your state's rulings, like

19   occurred in New Jersey.        So you have a new maze

20   on top of the old maze to get through, and in

21   trying to get through it cases drop by the

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   wayside.

 2              So you start with a hundred friends

 3   getting through this maze, you get halfway

 4   through, you've got ten friends left, or enemies,

 5   as the case may be.       And you try to get through

 6   the rest of the maze.          You and one other person

 7   gets through.     So we start out with thirteen,

 8   fifteen hundred death eligible cases and we wind

 9   up with ten that got through the maze.         And

10   that's very disconcerting in terms of having a

11   logical, strong, administration of justice

12   system.

13              And it's not because of any intent on the

14   judges' part -- they do the best job they can.

15   Prosecutors do.      Detectives, policemen, everybody

16   does, takes things very seriously, very

17   carefully, but it's not simple.         And it changes.

18              The Supreme Court just changed the law

19   this term, with regard to the constitutionality

20   under the Eight Amendment of statutory crime of

21   rape of a child, which was a Murder One Homicide

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   in the state, without death.          And the Court found

 2   that that was unconstitutional.

 3              Well, that's a whole new process, then,

 4   and anyone who had been convicted in the past of

 5   that, in that state or any other, you know, gets

 6   off, probably gets off death row, at least, and

 7   gets put back for either resentencing or into the

 8   population.

 9              All right.    We have one more topic?

10              MS. PHILOFSKY:      Yes.

11              CHAIRMAN CIVILETTI:        Is that right?

12              MS. PHILOFSKY:      Yes.

13              CHAIRMAN CIVILETTI:        For discussion,

14   before we have a general, open discussion.

15              There are a couple of points that I hope

16   I'm reminded to bring up.        And that deals with

17   the -- I think it's under Other Topics or Other

18   Suggestions or Other Issues that we might

19   address.    You have to be careful that you know

20   your place, and our place is as a special

21   commission on capital punishment and not drifting

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   too far from our mission.

 2             Go ahead --

 3             COMMISSIONER CAMPBELL:         (No microphone.)

 4   We can't suggest the legalization of certain

 5   drugs?

 6             (Laughter.)

 7             CHAIRMAN CIVILETTI:          You can suggest it.

 8             (Laughter.)

 9             CHAIRMAN CIVILETTI:          Go ahead, Danette.

10             MS. EDWARDS:         Okay.   Well, I also have

11   primary responsibility for the last issue in this

12   draft outline, and that is the impact of D.N.A.

13   evidence in assuring fairness and accuracy in

14   capital cases.      This part of the outline starts

15   on page fifty-six.

16             I thought that it would helpful here, and

17   I think it will be helpful to you, to describe

18   the legal landscape of D.N.A. laws and how

19   Maryland's labs actually work.           And so I'm

20   grateful to Rachel because she actually provided

21   (inaudible) with that for me, and that was her

     IRWIN REPORTING & VIDEO, LLC                    (410) 494 - 1880

 1   insert in this (inaudible).

 2             (Static.)

 3             MS. EDWARDS:         Maybe it's my Blackberry.

 4   I apologize.

 5             CHAIRMAN CIVILETTI:         Come in.

 6             MS. EDWARDS:         But I think that any

 7   discussion of the impact of D.N.A. and assuring

 8   fairness and accuracy in capital cases, in

 9   Maryland, requires that backdrop of what is

10   Maryland's system like?          What are our D.N.A. laws

11   like?   And what are our D.N.A. labs like and how

12   do they work?     So I think you'll have to consider

13   that when we look at the issues and when you make

14   your recommendations on this issue.

15             But, again -- and we've gotten somewhat

16   less testimony on this issue throughout the

17   proceeding that we did on the prior one that I

18   worked on.     But I still was able to break it down

19   into five main categories, the first being the

20   role of D.N.A. in exoneration, and this is a

21   pretty stats heavy topic.          And I cite the number

     IRWIN REPORTING & VIDEO, LLC                     (410) 494 - 1880

 1   of people who have been exonerated by D.N.A.

 2   evidence, in the U.S., over time.

 3             The second main topic is the scarcity of

 4   D.N.A. evidence.      And we've heard conflicting

 5   testimony on that.       We've heard some prosecutors

 6   who believe that D.N.A. evidence and biologic

 7   evidence is present in a great portion of the

 8   cases, and others have said that it is not

 9   present in very many cases, at all.      So, what I

10   think, you know, that naturally falls into this

11   issue of D.N.A.

12             The third main category is cold cases --

13   just that a lot of defendants who are sitting in

14   jail for, you know, with a capital sentence, have

15   been there for a very long time, and D.N.A.

16   testing wasn't -- you know, the science wasn't

17   there back when they were actually put in jail.

18   So I think that's something that we need to look

19   at when considering this issue.

20             And then, fourth, presentation of

21   evidence.    And this deals with chain of custody

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   issues, contamination of evidence, that sort of

 2   thing.    Kirk actually testified on this.      I think

 3   in his testimony raised this as issue and said

 4   that he'd like the Commission to make some

 5   recommendations in that regard.

 6              And then, fifth, we've got access to

 7   D.N.A. testing and post-conviction D.N.A.

 8   testing, and some funding issues that I think

 9   people will want to think about.

10              And then I think at the end of this part

11   of the outline I've included some

12   recommendations, practical recommendations, from

13   the Illinois Commission Report on D.N.A. and

14   forensic testing.      And I put these -- I actually

15   sprinkled recommendations from the Illinois

16   Commission Report in both my parts of the

17   outline.    And I put them there for your

18   consideration of practical issues in terms of

19   coming up with recommendations.     I guess

20   (inaudible).

21              CHAIRMAN CIVILETTI:   Yes, Scott?

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1              COMMISSIONER SHELLENBERGER:      You may want

 2   to take a look at some of the new statutes that

 3   are going into effect.         Part of the negotiations

 4   on the new D.N.A. statute, where they take

 5   arrestees, they actually expanded the post-

 6   conviction statute, in which it discusses the

 7   ability of inmates to petition for D.N.A.

 8   testing.    There are also some new statutes, and

 9   some discussions in COMAR concerning how long you

10   have to keep the evidence now.        That's actually

11   starting to be codified, which typically is the

12   length of the sentence.        So before there were not

13   uniform standards but now they require that

14   forensic evidence be kept for the length of the

15   sentence.

16              The only thing I'm not sure of is the

17   D.N.A. statute that the governor passed, goes

18   into effect in January.        These other post-

19   conviction sections, I don't know if they have

20   just gone into effect in October, or if they

21   don't kick in till January, because they were all

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   signed in the same package.

 2             But I can tell you that Virginia Gekler

 3   (phonetic) at GOCAP knows these very well and you

 4   might be able to expand upon that.             Because

 5   Maryland did take a substantial step this year in

 6   the area of prisoner and inmate rights concerning

 7   D.N.A. and there's a lot of extra statutes that

 8   have been put in there.

 9             MS. EDWARDS:         Okay.   Thank you -- you

10   don't happen to have the cite of your

11   (inaudible), do you?

12             COMMISSIONER SHELLENBERGER:           Well, the

13   post-conviction statute is going to be pretty

14   easy to sign.     As they teach us in law school, go

15   to the pocket part.       It's right in the back.

16   It'll be the new part.

17             MS. EDWARDS:         I can get it.    It's just if

18   you had the cite.

19             UNIDENTIFIED COMMISSIONER:           (No

20   microphone.) (Inaudible).

21             (Laughter.)

     IRWIN REPORTING & VIDEO, LLC                      (410) 494 - 1880

 1             UNIDENTIFIED COMMISSIONER:      If I may?

 2   Mr. Chairman, in that bill we also have

 3   uncodified language with regard to post-

 4   conviction review and D.N.A., in the D.N.A. bill

 5   we passed that calls upon the Governor's Office

 6   of Crime Control and Prevention, and the public

 7   defender to report to the General Assembly, next

 8   year, on how we should modify our post-conviction

 9   review -- that statute.        So that's something you

10   should just be aware of.       It's at the end of the

11   bill.   It's an uncodified section.

12             CHAIRMAN CIVILETTI:      Yes, Kirk?

13             COMMISSIONER BLOODSWORTH:      Like in my

14   testimony, I had -- one, it's a typo.        It was

15   1993 that I was exonerated.       Just a clerical

16   answer.

17             FEMALE SPEAKER:      (No microphone.)

18   (Inaudible for about six words.)

19             COMMISSIONER BLOODSWORTH:      Yes.

20             In -- so my case was 1993.      We were doing

21   the testing.     It took a year.    And by the way, I

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   seen your -- I got my entire file back from Tim

 2   Junkin -- and I seen the file where your name was

 3   on it for that D.N.A. sample when it came in,

 4   from my sample, from when the F.B.I. called your

 5   office and told you all.

 6             Um, a couple things that my -- the

 7   Justice Project has looked at is, of course, the

 8   Kirk Bloodsworth Program which is -- gives money

 9   to states.     There has to be a preservation

10   statute in the state for that to -- to be

11   qualified for that.       And you have to file, you

12   know, there's a certain set of guidelines and I

13   can get that to the Commission members, if they

14   want it, to where that would -- you know, you

15   would qualify for monies under the Bloodsworth

16   Program, which is really -- President Bush, this

17   is what he's calling it -- President Bush's

18   D.N.A. Initiative.

19             Now, it's still, it's the way they

20   appropriate money.       It's under a larger umbrella

21   and you would have to file -- they just gave out

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   seven point eight million dollars of the

 2   Bloodsworth money out to states like -- Virginia

 3   got a big bunch of it, just recently, four

 4   million dollars worth.         And Texas got some.     And

 5   Kentucky, Washington state, and Arizona.          They

 6   were the five states that qualified.        There's

 7   still another eight million dollars left in the

 8   program so that could be available for states

 9   like Maryland if you qualify under the -- the way

10   that they had -- D.O.J. set it up.        So you have

11   to come under what they believe -- like if you

12   preserve the evidence and there's -- I think the

13   Attorney General has to agree, as well.         It's

14   some other kinds of things, but I can get it to

15   you and make sure that you know exactly what that

16   is.

17             My biggest concern about this stuff is

18   the fact that about lawyers.        You know, counsel

19   being provided for indigent defendants.         There's

20   really nothing in the statute that would do that,

21   to, you know -- if I fell under the guidelines

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   today, I wouldn’t -- I probably wouldn't qualify,

 2   you know, to be able to get a lawyer.       And you

 3   have to understand that an indigent defendant, he

 4   doesn't have the ins and outs, he can't file the

 5   correct (inaudible).       If he could get you he

 6   might not necessarily qualify, so the lawyers,

 7   the state would have to provide him with an

 8   attorney, or her, depending, to be able to do

 9   that.   And then the state should be able to

10   supply the cost of such test.

11             Not just if it's a failure or a pass, you

12   know what I mean?      If it's a good sample, it

13   doesn't matter.      It should be -- if that's the

14   case, I think you should be allowed to have a

15   defendant and have the state take care of the

16   bill.   I think it certainly covers it.

17             Doesn't it, Scott, if the person is -- if

18   he's exonerated I think the state would pay for

19   it, at that point, right?

20             COMMISSIONER SHELLENBERGER:     The statute

21   that I was talking about and that Delegate

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   Rosenberger referred to does set out -- if it

 2   exonerates the person, the state pays.    If it

 3   doesn't, the defendant pays.   If it's

 4   inconclusive -- it has a whole list of who pays

 5   depending on the results of the D.N.A. test.

 6             COMMISSIONER BLOODSWORTH:   Well, in -- I

 7   think we could really hash that out later, and

 8   I'm definitely between now and the next hearing,

 9   meeting, I'm going to find out exactly where we

10   stand on this thing.

11             And -- but my last comment is about --

12   and I really didn't want to talk about it, the

13   last part of it -- but innocence overall.     You

14   know, if you look at me as the entire state -- I

15   think that's basically what you have to do.      You

16   have to ask yourself would any one of you want to

17   go to death row for something you didn't do.       I

18   think that's really what we have to ask each

19   other.

20             And regardless of whether or not I won

21   the day in the end is not as important as the

     IRWIN REPORTING & VIDEO, LLC             (410) 494 - 1880

 1   fact that I sat there, and I waited, to die.        I

 2   mean, you're talking about sitting in a little

 3   eight by ten room, and I'm just waiting to die.

 4   I get a -- I remember the day that they slid the

 5   Order of Execution under my door.     And, of

 6   course, it was stayed by -- you know, because it

 7   goes right to the Court of Appeals.    But I --

 8   every day that I sat there I just thought one day

 9   they were going to come along and tell me to go

10   to the gas chamber.

11             I think we have to think about me as

12   every single individual in the state, because

13   that's exactly what we're talking about.      I think

14   by any stretch of the imagination anyone of us

15   can be caught into that possibility, from Percy,

16   from even Scott, everybody.    I mean, there's,

17   there's -- by virtue of how these things work --

18   and we were talking about fallible issues

19   earlier, that, you know, you talk -- you've got

20   witnesses, then you have the police recording

21   these things, and then the police going to the

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   prosecutor, and the prosecutor going to the

 2   court, and the court going in front of the jurors

 3   and making a determination based on all these

 4   different factors.       There's a lot of hands in

 5   that proverbial pie.

 6             And my take is that -- I, you know, there

 7   is no way in God's green earth that I would

 8   allow, condone, or subject a member of this

 9   state, a citizen in good conduct and good

10   standing, either or, to what I had to endure.

11   And I think we have to look at it like the risk,

12   whether it's one in every thousand, it doesn't

13   matter.    It is -- every person is everyone else

14   in the state.     We could all die by the hands of

15   our own government and thinking we're doing the

16   right thing.     I don't think that should ever

17   happen.

18             And I've got to tell you, out of all the

19   things here, and I'm not trying to be bias

20   because it happened to me, it's just the fact

21   when I look myself in the mirror I am every

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   citizen in Maryland.       And that is what we really

 2   have to ask each other.        Would you want to endure

 3   what I had to do?      You have to ask yourself that.

 4   If you were ready to leap forward and make this

 5   leap forward and saying, well, what -- if it

 6   happens just a little here and there it's okay,

 7   maybe.    You know.    This is the price we pay for

 8   democracy.     I've actually had people say that to

 9   me, in congress.

10             I have to say that you need to put

11   yourself in that position.       Would you want it to

12   happen to you?      As a citizen of this state, in

13   good standing, I have to tell you I would think

14   the answer would be "no," unless you live

15   somewhere else not upon this Earth.

16             I would never want this to happen to

17   anyone again.     And it's bad enough if we continue

18   and have a life without parole and this happens

19   to a person.     Because I can grant you it will.

20   It's just, you know, we -- it will happen because

21   we are not perfect.       We are not infallible.     We

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   do make mistakes.      So when you look yourself in

 2   the mirror, or you look at your constituents, or

 3   you look at the people that you serve in the

 4   public, the jurors that you're about to put on

 5   the bench, the people that you witness to, would

 6   you want them, or you want yourself to sit on

 7   death row for something you didn’t do, and hope

 8   that the system works out?      I can't accept it.

 9   Ever.   And I hope many a citizen in the state

10   wouldn't.    That's all I've got to say.

11             CHAIRMAN CIVILETTI:    Yes?

12             COMMISSIONER GODFREY:    Mr. Chairman.

13             Scott, I have read half of your book so

14   far.    What has not been clear to me, at this

15   point, is whether you were exonerated while on

16   death row or just before you got on death row.

17             COMMISSIONER BLOODSWORTH:     The question

18   is whether I was exonerated.      And the answer is,

19   I was serving a life sentence.     But there was two

20   years where I didn't know that I would win a day,

21   or go back in court, or win my trial, or have a

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   chance to prove myself innocent or not.

 2             I mean, you know, this is the thing that

 3   I'm trying to say.       Whether it's two years or

 4   twenty-five years, whether it's two minutes --

 5   the government was going to kill an innocent man,

 6   and that is a fact, and that fact is

 7   undisputable.

 8             COMMISSIONER GODFREY:       But were you on

 9   death row, at the time?

10             COMMISSIONER BLOODSWORTH:       You're not --

11   I've already told you the answer.        I was not on

12   death row.     I was not.      But I was before.

13   However we came to the conclusion that I was an

14   exonerated person is immaterial to the fact that

15   the state sentenced an innocent man to death.

16   That is more paramount than anything.         And nobody

17   can have a better point of view of that subject

18   than the one sitting in this chair, and the

19   others that have testified before this

20   Commission.

21             So I don't take consolation in the

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1   fact -- I'm so happy for my freedom.       I am so

 2   gracious that the State's Attorney's office did

 3   grant me a D.N.A. test.        But there it is -- when

 4   the sentence and the gavel came on the life, the

 5   people in the courtroom applauded for my

 6   execution, they didn't know that they had the

 7   wrong man.     They did it for all the right

 8   reasons.    But still, in the end, they had the

 9   wrong man.

10              COMMISSIONER GODFREY:     I ask the question

11   because I recall Barry Scheck's testimony, Barry

12   and Paul Kent, especially Barry Scheck, when he

13   mentioned the -- I mean, they extol the virtues

14   of D.N.A. testing, but more so in your case,

15   you're exonerated.       But then he blasted the

16   D.N.A. situation when it's reversed, when it puts

17   people in jail.      So that is why I asked you the

18   question.

19              COMMISSIONER BLOODSWORTH:     Let me just

20   suggest to everyone that you have to understand

21   that the hundred and thirty people that have been

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   exonerated on death row, only fourteen or fifteen

 2   of those have been D.N.A. exonerations.       These

 3   other exonerations came from other means, and I

 4   think that's what Barry was really trying to look

 5   at.   It's that, you know, we have D.N.A. now.

 6   Oh, yes, it's a powerful tool and I'm all for it.

 7   I'm all for it to do post-conviction D.N.A.

 8   testing, but it does not necessarily put a Wonder

 9   Woman lasso around the truth, to the system

10   itself.    I think that, you know, it's good when

11   it can work and when it does it work it's fine,

12   but that doesn't, you know, mean that it's going

13   to -- it's the silver bullet to our troubles.

14             COMMISSIONER O'DONNELL:     And we also had

15   testimony, and I think it's actually referenced

16   in here, about the difference in the science

17   that's applied when you're talking about an

18   exoneration versus an actual match.       And they are

19   significantly different.       And that's why that

20   really makes sense.       It sounds like you're

21   talking out of two sides of your mouth but you're

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   really not, based on the scientific principles

 2   that are involved.

 3             CHAIRMAN CIVILETTI:     A couple of

 4   questions that I'd like the view of the

 5   Commission on.      We have nothing in this draft

 6   dealing with evolving standards of decency.            We

 7   have nothing in the draft dealing with morality

 8   of the death penalty or non-morality of it.            We

 9   heard a lot of testimony from the clergy of

10   different denominations about opposition to the

11   death penalty on either a moral basis or on a

12   religious basis or on a church dogma basis.            We

13   have three members of the clergy on the

14   Commission.     I do not know what their positions

15   are on the death penalty.      On some of these

16   topics they clearly will in favor of them, from

17   what they have said.       But they have not

18   expressed, to me at least, a request or desire

19   to have a report on what was the basis of the

20   recent Supreme Court case regarding the rape of a

21   minor.

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1              We have had no lengthy or comprehensive

 2   testimony or submissions on standards of decency

 3   in 1940, in 1950, and 1970, today, tomorrow --

 4   which ones are involved and applied to which.           So

 5   it's my view that we ought not to enter that

 6   subject.    It's not a topic that we're asked to

 7   comment on, and as far as I'm concerned I

 8   wouldn’t know what to say with regard to it, in

 9   any event.

10              Differences of opinion?

11              Rick?

12              COMMISSIONER PROTHERO:    (No microphone.)

13   I have (inaudible).       I have read the judicial

14   information (inaudible) from the legislature

15   (inaudible) line was in there and (inaudible)

16   look at it I recall.       And it was specifically --

17              CHAIRMAN CIVILETTI:    Struck.   Right.

18              COMMISSIONER PROTHERO:    (No microphone.)

19   -- (Inaudible).

20              CHAIRMAN CIVILETTI:    Anyone else?

21              Okay.   In a --

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             FEMALE SPEAKER:      Good job (Inaudible).

 2             CHAIRMAN CIVILETTI:      Hurray, let's --

 3             (Laughter.)

 4             CHAIRMAN CIVILETTI:      No, no, I declare by

 5   consensus.

 6             (Laughter.)

 7             CHAIRMAN CIVILETTI:      We have a reference

 8   to the severity of life imprisonment without

 9   parole.    And that's based on the testimony and

10   submission of a couple of folks.       We don't

11   elaborate on the causes of its severity.        They

12   seem to be self evidence.       But there is some

13   evidence in the record that it is not only a

14   physical deprivation but the emotional

15   consequences are absolutely devastating to many

16   people, and the reference is made over to death

17   penalty cases, that after ten or twelve years a

18   sizable number of death row inmates have

19   volunteered for execution because they could not

20   stand the torture of facing a life of the

21   sameness in their cells, every day.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1             I don't think any of that or any of the

 2   elaboration is necessary.      I think a flat

 3   statement that it is a severe punishment is

 4   sufficient to cover the life sentence without

 5   parole.

 6             Any disagreement?

 7             Yes? David?

 8             COMMISSIONER KENDALL:     I'd like to simply

 9   reserve on that, and I don't want to disrupt a

10   consensus that may otherwise be emerging, but I

11   think sometimes this debate is mischaracterized.

12   It's characterized as a debate about whether we

13   want to somehow exculpate people who are properly

14   convicted of murder.       I think that's not what the

15   debate is.     The debate, I think, our testimony

16   from several witnesses have indicated that life

17   without parole is a very powerful and punitive

18   sentence.    So I do not want to have pages and

19   pages on it, but I think it may bear emphasizing

20   that our debate is about how to punish.       It's not

21   whether to punish properly convicted murderers.

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1              CHAIRMAN CIVILETTI:   And I think we can

 2   footnote the Secretary's answer to the question

 3   life sentence without parole can the lifer be

 4   paroled.    And the answer was no.   Clearly.    We

 5   can footnote that.

 6              COMMISSIONER SHELLENBERGER:   The current

 7   answer is no.     Those rules are ever-changing.

 8              CHAIRMAN CIVILETTI:   As is life.

 9              (Laughter.)


11   microphone.)     The (Inaudible) change every three

12   years.

13              CHAIRMAN CIVILETTI:   Within the various

14   parts of the topics dealing with either risk or

15   cost or efficacy or disparities or whatever there

16   is, or there has been a little sub-current of the

17   very difficult proposition of balancing the

18   instructions and balancing for jurors, balancing

19   aggravating circumstances and mitigating

20   circumstances.

21              And our Court of Appeals was divided on

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   whether the proof of the aggravating

 2   circumstances had to be by a preponderance of the

 3   evidence or by beyond a reasonable doubt.    The

 4   majority of the view supported by the Supreme

 5   Court, that preponderance of the evidence was all

 6   that was required for constitutional muster.      And

 7   I think three judges on the Court of Appeals felt

 8   differently, in dissent.

 9             But that's a lead-in to the evidence and

10   testimony that we heard, I think, from several

11   sources in written submissions, as well as

12   orally, especially my recollection was the

13   professor from maybe Iowa or somewhere in the

14   Midwest, who is doing a very long study on jury

15   comprehension relating to I think the penalty

16   phase of capital punishment, and whether the

17   jurors are found to adopt to the intent, which is

18   to give parameters and guidance to the exercise

19   of judgment in death cases of life and death, and

20   not have it be a flip of the coin or some other

21   irregular reason for either finding life without

     IRWIN REPORTING & VIDEO, LLC            (410) 494 - 1880

 1   parole or imposing the death sentence.

 2             And the thrust of that evidence is in

 3   studies and questions and the rest that -- and

 4   simulations, I guess.          They were both actual and

 5   in simulations of jurors as if they were trials,

 6   as well as trial interviews -- that, as I've said

 7   too many times, the jurors found the decision

 8   very difficult.      And the characteristics and how

 9   to apply, the states vary but they go from five

10   mitigating circumstances, some have seven, some

11   have nine, I think, and they have, again,

12   variations among the states as to the aggravating

13   circumstances, as to which only one is necessary

14   to find, although the balance requirement is

15   still necessary.      And they vary between five and

16   seven and as many as fifteen.

17             And the juries apparently, according to

18   these studies, do not find it easy to jump

19   through those evaluations of mitigating and

20   aggravating and balancing.

21             I may be somewhat jaundiced because of

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   age and disposition, but complaints about jury

 2   comprehension are as old as the century.       And

 3   especially in difficult cases like anti-trust

 4   cases and conspiracy cases, where there are

 5   twenty-one defendants and some evidence comes in

 6   against these defendants and not against these,

 7   said the jury gets confused, can't understand.

 8   I've always thought the juries did just fine.

 9   And if you presented the facts and argued the law

10   and were straight with them that generally they

11   did just fine.      They make mistakes and that's

12   terrible, but I don't see much distinction -- a

13   little more complicated, perhaps, but I don't see

14   much distinction between questions about jury

15   comprehension in these other types of difficult

16   cases and complex cases and jury comprehension in

17   death penalty cases.

18             And so I think that criticism or credence

19   to the testimony and the evidence with regard to

20   jury comprehension is a fight that we need not

21   put a dog in.     But it's a legitimate question and

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   that's why I throw it out to the Commission.

 2             The evidence would be that there's

 3   serious questions about the -- because of the

 4   complexity of the penalty phase of the trial and

 5   especially where it's the same jury that tried

 6   the guilt or innocence trial and was voir dire'd

 7   to be death eligible.          So you've got death

 8   eligible, you have a finding that the jury found

 9   that he committed the crime, they've already

10   determined that if he did he's death eligible, in

11   their view they're death eligible jurors, and

12   then they go into deliberation about death

13   penalty or life imprisonment.

14             But I still think that it's not a reason

15   for Maryland to adversely affect the death

16   penalty, or reduce it, or limit it, or change it.

17   I think the death penalty, capital punishment

18   provision is what it is, and you deal with it, as

19   opposed to comprehension and, for example,

20   reducing the number of aggravating circumstances

21   or increasing the number of mitigating

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   circumstances.      That doesn't make any sense if

 2   your position is that it's not comprehensible

 3   now.   That just doubles the incomprehensibility.

 4             Reducing them, perhaps reduces

 5   difficulty, but it doesn't reduce the difficulty

 6   of balancing mitigating against aggravating

 7   circumstances.

 8             Yes, Kathy?

 9             COMMISSIONER O'DONNELL:        Just two

10   thoughts.    I know we didn't hear testimony on

11   this but for those of us who've been doing this

12   for a long time, one of the very chilling things

13   that has happened in a number of death penalty

14   cases is that when the finding and sentencing

15   determination verdict sheet is filled out, we've

16   had cases where death has been imposed but where

17   the section where you write in, where jurors can

18   write in non-statutory mitigators that they've

19   found, and the way the form is set up you can

20   write in ones we find unanimously and ones we

21   find not unanimously.          But we have, on a number

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   of occasions found jurors have written in non-

 2   statutory mitigators like life without parole is

 3   a sufficient penalty.          Or death is not a

 4   necessary sentence.       And yet they have still

 5   imposed a death sentence.

 6              And that seems to just shocking that -- I

 7   mean, the law should be operating such that if

 8   any one juror felt that life without parole is a

 9   sufficient sentence and death was not

10   appropriate, that death could not have been

11   imposed.    But it was obviously a misunderstanding

12   of the weight that should have been attached to

13   that less than unanimous non-mitigating

14   circumstance finding.          And so we have had cases

15   like that, and so I know we didn't hear testimony

16   on it but I offer that up as a consideration that

17   may be a little bit beyond the regular juror

18   comprehension issues.

19              The other point I would just say is that

20   no matter what we do on juror comprehension of

21   instructions, arbitrary imposition of the death

     IRWIN REPORTING & VIDEO, LLC                   (410) 494 - 1880

 1   sentence I'm not sure has been fleshed out in the

 2   report in a way that it might want to be

 3   addressed.     We have heard a lot of testimony

 4   about -- and, again, it gets back to the sixty-

 5   two reversals -- so many of those cases were put

 6   before other jurors with the same facts and

 7   circumstances -- same parties, same courts, and

 8   attorneys, and everything, and different jurors

 9   came to different conclusions.

10             And we've had a great deal of testimony

11   about how you're not necessarily catching the

12   worst of the worst cases, and that sort of thing.

13   And I'm not sure where that's fallen into in our

14   findings.    That's not really a jury comprehension

15   issue but it is an imposition of the sentence and

16   an arbitrary imposition, and I'm wondering if we

17   should consider how to reflect that in our

18   report.

19             CHAIRMAN CIVILETTI:   That's, of course, I

20   think, if the death sentence were imposed

21   arbitrarily, just as if there were proof that it

     IRWIN REPORTING & VIDEO, LLC              (410) 494 - 1880

 1   was imposed arbitrarily, or proof that it was

 2   imposed discriminatorily, or proof that it was

 3   imposed by whim, I think that all three of those

 4   matters would be unconstitutional under the Eight

 5   Amendment, cruel and unusual -- the prohibition

 6   of cruel and unusual punishment.

 7             But a study, not in Maryland, or

 8   anecdotal information about the process in

 9   Maryland, that the jury has a difficult time

10   comprehending, or gets confused, or is uncertain,

11   doesn't seem to me to be clear enough or strong

12   enough.    If the study in the Midwest was a study

13   of Maryland jurors over a -- I'm learning new

14   words -- longitudinal study, then it might well

15   be something that we would want to focus on in

16   one of our topics, whether it's fairness and

17   accuracy, or whatever our catch-all topics are.

18   But they don’t seem to mesh here.

19             Yes, Scott?


21   Chairman, I agree.       And to be brutally frank --

     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

 1   if you're moving in the direction that this

 2   report looks like and wanting to abolish the

 3   death penalty, then I don't really think it's any

 4   of our business to tell people who still think it

 5   should work how to fix it.      I mean, why should we

 6   waste time in that report on something like that?

 7   And it's certainly not in the charge that was

 8   given to us by the legislature.     So I agree with

 9   the Chairman that topics such as this really

10   don't need to be in there.

11             CHAIRMAN CIVILETTI:    Well, I tell you

12   what -- you all think about those two, or three,

13   or four points that I brought up and if anybody

14   has any views different or wants to readdress

15   them, we'll do so, or let me know.     Otherwise, I

16   won't spend a lot of time worrying about them

17   and, instead, we'll go to the sentiments

18   expressed here tonight on the topics that we've

19   been given.

20             We hope some of the helpers here were

21   sending emails back and forth and around at three

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1   a.m. and five forty-five a.m.         Shocked me when I

 2   read them at eleven.       But I have an excuse.      I

 3   had to go to the doctor's.

 4              But subject to their stamina, I hope to

 5   get a further revision of the draft, discussion

 6   draft, to you in advance of the October -- did we

 7   settle on October?

 8              FEMALE SPEAKER:     November 12th.

 9              CHAIRMAN CIVILETTI:     November 12th

10   meeting.    November 12th meeting.      And we're able

11   to have this room?       Thank you.   And we'll be

12   three to five.      I mean three to eight.

13              (Laughter.)

14              CHAIRMAN CIVILETTI:     It must be wishful

15   thinking.

16              (Laughter.)

17              CHAIRMAN CIVILETTI:     That wasn't a

18   Freudian slip, that was a real slip.

19              Yes?

20              COMMISSIONER GODFREY:      Mr. Chairman,

21   could I have thirty seconds?

     IRWIN REPORTING & VIDEO, LLC                  (410) 494 - 1880

 1             I just wanted to touch base back on Kirk.

 2   I hope he didn't think that I was trying to

 3   diminish what he has done.     Kirk is just about

 4   the greatest example we have.

 5             And I just want to read to you very

 6   quickly what I called him today and told him how

 7   I was impressed with what I was reading.

 8             It said here, in part:

 9             Did the system work?    I was not

10        released because the system was

11        interested in what happened to me, but

12        because my lawyer was interested.    I was

13        lucky to have a lawyer who cared about my

14        case, who worked hard for me, although I

15        was not paying him anything.    I was lucky

16        that a laboratory found a semen spot that

17        no one had seen before.     If I didn't have

18        Bob Morin as my attorney, and if the

19        D.N.A. had not been found, I would still

20        be sitting in a jail cell, still telling

21        everybody that would listen that I was an

     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880

 1        innocent man.

 2             Did the system work?     I was released

 3        but only after eight years, eleven

 4        months, and nineteen days -- all the time

 5        not knowing whether I would be executed

 6        or whether I would spend the rest of my

 7        life in prison.      My life had been taken

 8        away from me and destroyed.     I was

 9        separated from my family and branded the

10        worst thing possible -- a child killer.

11        I cannot put into words what it is like

12        to live under these circumstances.

13             Did the system work?     My family

14        lived through this nightmare with me.         My

15        father spent his entire retirement

16        savings.    As a result, he cannot retire

17        and must work on and on.

18             And of course he said, "my mother, whom I

19   loved and stood up for me, she died before I was

20   released."

21             I definitely am on your side but just

     IRWIN REPORTING & VIDEO, LLC                 (410) 494 - 1880

 1   wanted to know exactly because I think the book

 2   did not clearly state that.

 3             CHAIRMAN CIVILETTI:   Good.    Well --

 4             COMMISSIONER BLOODSWORTH:     I think I

 5   remember answering your question, that during my

 6   testimony was I on death row or not.      So, to me,

 7   it's immaterial the idea that --

 8             CHAIRMAN CIVILETTI:   I want to remind you

 9   all that the top of this draft says "Initial

10   Draft Outline for Discussions Purposes Only --

11   Not Intended for Distribution Outside of the

12   Commission," and I trust each and every one of

13   you to treat it as such.

14             Thank you, and the meeting is adjourned.

15             (At 257:02 minutes into recording, off

16   the record, commission meeting concluded.)






     IRWIN REPORTING & VIDEO, LLC               (410) 494 - 1880



 3        State of Maryland;

 4        County of Baltimore, to wit:


 6             I, Robin Claire Comotto, a Notary Public

 7   in and for the State of Maryland, County of

 8   Baltimore, do hereby certify that the within

 9   proceedings were transcribed by me accurately to

10   the best of my ability, knowledge, and belief.



13             As witness my Hand and Notarial Seal,

14   this 17th day of November, 2008.



17                             __________________________

18                             ROBIN CLAIRE COMOTTO

19   My Commission Expires:

20   September 1, 2010


     IRWIN REPORTING & VIDEO, LLC                (410) 494 - 1880

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