Measure would make more cases eligible for the death penalty 

Posted: 8:12 pm Wed, March 10, 2010
By Steve Lash
Daily Record Legal Affairs Writer

ANNAPOLIS — Capital-punishment opponents and supporters clashed Wednesday over legislation that would permit the death penalty to be handed down in Maryland for murder convictions based on fingerprint evidence or a still photograph conclusively linking the defendant to the heinous crime.

The two sides, arguing before a Senate committee, disagreed on whether the controversial proposal would break a compromise lawmakers reached last year.

That compromise preserved Maryland’s death penalty but limited its application to murder convictions based on biological evidence, such as DNA, or a videotape linking the defendant to the slaying.

Capital punishment opponents said the current proposal, Senate Bill 404, would make death sentences more common in Maryland and increase the possibility that an innocent person would be executed. Fingerprints and photographs, unlike DNA and videotape, are highly susceptible to misinterpretation and distortion and increase the possibility that an innocent defendant could be executed, death-penalty foes told the Senate Judicial Proceedings Committee.

For example, attorney Stephen B. Mercer, who takes over next month as head of the forensic division of the state public defender’s office, said fingerprint identification is inexact.

“It is not science,” Mercer told the committee. “It is art. It is subject to examiner bias.”

But supporters of the ultimate punishment said the addition of fingerprint or photographic evidence does not substantially alter existing law because either method of proof, like DNA or videotape, can be conclusive of guilt.

“If DNA evidence linking a defendant to a murder is a sufficient basis for seeking the death penalty, why, then, can’t fingerprint evidence that links a defendant to the crime also be sufficient?” Baltimore County State’s Attorney Scott D. Shellenberger, a supporter, told the Senate panel.

“If a video recording linking a defendant to a murder is sufficiently reliable, why, then, isn’t a still photo?” he said. “Elevating a grainy dark videotape over a clear photograph or pristine fingerprints does not advance that goal” of ensuring against an erroneous execution, Shellenberger added.

Committee members from both sides of the death penalty chasm joined in the debate.

Sen. Jamin B. “Jamie” Raskin, a staunch capital-punishment opponent, said fingerprint evidence is unreliable.

He noted that three FBI fingerprint experts erroneously linked American attorney Brandon Mayfield to the Madrid bombing that killed 191 people and injured thousands more on March 11, 2004.

Mayfield, whom the FBI held in jail for two weeks as a material witness in the case, was released in May 2004 after Spanish law enforcement found evidence linking the bombing to an Algerian man.

Raskin, a Montgomery County Democrat, said that after hearing the FBI’s fingerprint evidence of an “exact match,” he was ready to convict Mayfield based on his then-belief in the accuracy of fingerprinting.

“I had a Scott Shellenberger moment,” Raskin said of the pro-death penalty state’s attorney.  “I wanted to hang the guy up.”

The Mayfield case led a Baltimore County judge to reject fingerprint evidence in a murder prosecution in 2008, a decision that led the county to cede the case to the U.S. Attorney’s Office. A federal judge ruled last September that the prints are admissible.

Sen. Norman R. Stone Jr., the chief sponsor of SB 404, said fingerprint evidence has been “generally accepted” as conclusive evidence in criminal trials for the last 100 years.

“Every fingerprint is unique,” said Stone, a Baltimore County Democrat.

Shellenberger added that prosecutors do not seek the death penalty lightly, but only after a careful evaluation of the evidence to ensure its conclusiveness points to the defendant’s guilt beyond a reasonable doubt.

“Scott Shellenberger’s moments are slower and more deliberate than that,” he said to Raskin.

Shellenberger added that fingerprint evidence, like DNA, can conclusively place a defendant at a crime scene. Such evidence becomes conclusive if the crime scene is a place the defendant would not have been expected, such as inside a house in a neighborhood he had never been to, Shellenberger said.

The state’s attorney added that the system worked in Mayfield’s case.

“He did not make it to trial,” the state’s attorney said. “He did not make it to death row.”

But Mercer, the incoming forensics chief, said fingerprint evidence is only as good as the examiners who evaluate it and determine if it matches a suspect.

“The results can change” depending on the examiner, Mercer said.

Awaiting protocols

The forensic division’s current chief, Patrick Kent, also testified against the bill, as did Katy C. O’Donnell, who heads the public defender’s death-penalty unit.

Kent called fingerprint evaluation an imprecise art.

“It literally is the standard that ‘I know it when I see it,” he said.

O’Donnell urged the committee to reject Stone’s bill and preserve the current law.

“Fingerprint evidence does not reach the level of reliability that DNA does,” she said.

The death-penalty debate occurred as Maryland remains under a de facto capital-punishment moratorium. In December 2006, the state’s highest court invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedure Act.

Gov. Martin O’Malley, who opposes the death penalty, last year proposed draft lethal-injection regulations to address the Court of Appeals concerns. The draft rules are pending before a legislative committee.