On the Record

After four full days of deliberation, the jury in the death penalty case against Lee E. Stephens remains undecided about whether he and another man killed a corrections officer in the former Maryland House of Correction.

Cpl. David McGuinn was stabbed to death while on duty during an ambush style attack from behind as he was taking the final lockup count for the night at 10 p.m. on July 25, 2006. Stephens was charged with first-degree murder in McGuinn’s death.

The case went to the jury last Wednesday. While court was not in session Friday, the jurors in the case have been deliberating since. On Tuesday, jurors again did not deliver a verdict and were sent home about 4 p.m.

The case against Stephens is based on eyewitness testimony from former inmates on the cell block where the attack occurred and DNA testing of blood recovered from Stephens’ personal effects. The jury has the option to find Stephens guilty of first-degree murder and conspiracy to commit first-degree murder. Anne Arundel County Circuit Court Judge Paul A. Hackner told the jury when they were given the case that the verdict form also included an option to find Stephens guilty of second-degree murder. A first-degree conviction would open the door to further hearings about whether to impose capital punishment.

The jury has had a tough job put in front of them. There are reasonable issues raised on both sides and, with no video footage, a lot of the state’s case came down to a prisoner who said he saw everything through a mirror he held out of his cell door.

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Happy Columbus Day. If you’re at work, like those of us at The Daily Record, here are some law links to check out. If you’re off today, get out there and enjoy the beautiful weather.

• Is the cost of supplying lawyers to defendants in bail hearings worth it? Page Croyder says it would require lawyers to be available 24-7 and cost taxpayers a boatload.
• Good news in the legal industry: Jobs are on the rise. The national economy may still be in the dumps, but law firms are adding employees.
• The former voice of Dora the Explorer is suing MTV and Viacom for forcing her to sign a contract without allowing a lawyer review it. The girl’s family claims she’s been underpaid by at least $2 million. Vamanos! We have to sue!
• D’oh! EEOC sues employer for disability discrimination based on obesity.
• One South Carolina family law firm says no kvetching — we’ll get to you when we can.
• Attorneys and judges are grappling with juror comments on Facebook. This might be deja vu for readers who followed the Dixon trial.
• Lawyers will fight death penalty with economic argument: It’s just too expensive (HT: How Appealing).

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If it’s the first Monday in October, it must be the first day of the Supreme Court term. Check out retired Justice John Paul Stevens’ chat with NPR’s Nina Totenberg on the one vote he regrets. And, without further adieu, on to the law links:

• Are recreational activity torts making a comeback?
• Can a green coating under your tongue prove that you’ve been using marijuana? Jon Katz at the Underdog blog calls it junk science.
• Page Croyder reflects on last month’s Baltimore state’s attorney election.
• The Maryland Law Review wants to let its work evolve through conversation — adding taped interviews with profs and taped discussions between themselves about the articles.
• In Europe, fathers should be entitled to breastfeeding leave too.
• The San Jose Mercury News takes a look at Gloria Allred’s use of the media (ht Legal Ethics Forum).
• This one’s hard to believe.

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Gov. O’Malley’s been pretty vocal about his opposition to the death penalty, speaking out about its fundamental wrongness and pushing hard for its abolition. The repeal efforts having failed, Charles Lane of the Washington Post wonders why O’Malley doesn’t just commute the sentences of the five men on Maryland’s death row:

To be sure, clearing Death Row wouldn’t achieve his ultimate goal of abolishing the death penalty. But it would save the lives of five people sentenced under what the Commission on Capital Punishment has told the governor was an irretrievably flawed process — and whose executions, according to O’Malley, would serve no purpose even if that process had been absolutely pristine.

So Lane asked O’Malley about it, and O’Malley was not, in his judgment, able to muster a convincing answer as to why he can’t or won’t commute the sentences. Lane concludes that it’s a political decision:

I suppose O’Malley’s re-election might be so important to the long-run cause of abolishing the death penalty in Maryland that it is worth exposing five actual condemned men to prolonged uncertainty, not to mention the risk of possible execution, in the here and now. But I’d sure like to see someone try to argue that publicly.

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Happy warm-but-rainy Monday!

• Let’s move on from the Judge Nalley tire saga, writes Ron Miller.
• “Courts seem to have difficulty with the concept that a member of one minority group may discriminate against a member of the same group on the basis of ‘color,’” says Baltimore employment lawyer Mary Keating.
• Pennsylvania hasn’t executed anyone since 1999, even though governors have signed death warrants for many, many inmates over the years. HT: How Appealing.
• Manhattan’s a hotspot for people changing their names to go with their changed genders. (Sometimes, prisoners troll the name-change advertisements for dates. Yikes.) HT: Baltimore Crime.
• Does tossing bodily fluids and waste on the floor for prison staffers to clean up constitute assault? The New Hampshire Supreme Court will take up the question.

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Happy icy Monday! Drive and walk carefully. I don’t know how conditions are by you, but here, the roads are OK but the sidewalks are a little treacherous.

• Baltimore Police are sending “Dear John” letters (clever!) to guys neighborhood observers have tagged as cruising for prostitutes. A noted Baltimore defense lawyer cries foul.
• Oops. In a short item in Time about the death penalty’s fading importance as a political issue, the magazine’s Web site embeds a link titled, “Read about Maryland’s decision to end the death penalty.”
• The Post has an interesting rundown of the circumstances surrounding the Salahi affair.
• Black-lung disease is back on the rise. Soon to follow: a rise in black-lung lawsuits, surely. HT: Mass Tort Litigation Blog.
• Says Sonia Sotomayor: “I understand from my girlfriends that I’ve been put on a most eligible bachelorette list. I’ll figure that out in time. But right now I pity the man who tries to find a minute in my schedule.” HT: Above the Law.

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Happy Monday!

• Ron Miller takes issue with The Ethicist’s advice to a doctor who doesn’t want to treat a medical malpractice lawyer.
• In the context of why most great blawgs aren’t written by big-law types, Carolyn Elefant has this to say: “Big firm lawyers are very, very good at practicing law, but I suspect that for many, their time spent at big law is just a job (albeit an intellectually stimulating, financially rewarding one), not their life’s work or a calling or a part of the legacy that that they want to leave behind. Let’s face it — without passion,  you can’t do much more than phone it in on a blog.”
• Be careful out there, readers: lawyers have a higher rate of car accidents than anyone but doctors.
• Ohio is set to execute a man using only a barbituate on Tuesday. The three-drug cocktail most states use for execution has drawn criticism for what some say is the potential for excruciating pain. HT: How Appealing.
• I would totally watch this show.

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Slate had an interesting story yesterday about the last meals of death row inmates in anticipation of convicted “Beltway Sniper” John Allen Muhammad’s execution last night in Virginia. (Muhammad chose not to reveal his last meal to the public.)

The Slate story provided links to the Web site of the Texas Department of Criminal Justice, which posted the final meals requested by offenders until 2004, and continues to post their final statements.  Psalm 23 appeared to be a popular choice judging by a random sample. (Muhammad “ignored a request” to make a final statement, according to news reports.)

The Texas sites are eerie and chilling. Delbert Teague Jr., for example, was executed in 1998 for murdering a Fort Worth man in 1985. He did not request a final meal, but at the “last minute he decided to eat a hamburger at his mother’s request,” according to records. His last statement was as follows:

I have come here today to die, not make speeches. Today is a good day for dying.

Est Sularus Oth Mithas (My Honor Is My Life).

As someone commented on the Slate story, “there is something disgustingly voyeuristic about it all.”

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Back in 2007, I wrote about the fascinating case of a Mississippi convicted killer and the Ober Kaler lawyers who were helping with his post-conviction appeals.

At first, Alan Michael Rubenstein claimed to have stumbled on the decomposing bodies of his stepson, stepson’s wife and their 4-year-old daughter. But he was later convicted of killing the family himself in order to collect the insurance money on his step-granddaughter. In my story, the Ober team said there were a number of irregularities in Rubenstein’s trial:

The Ober Kaler team says the evidence was not as clear as prosecutors made it out to be. They say there were major problems with a forensic expert’s testimony at trial. They say Rubenstein may not have done it, and will try to persuade Mississippi courts to order a new trial.

“My theory is that jurors wanted to convict somebody of this very horrible crime, especially when there’s a little girl and the pictures are gruesome,” [former Ober partner Ray] Shepard said. “I believe Mr. Rubenstein may, in fact, be innocent.”

The team has a tough battle ahead. The highest court in Mississippi has already soundly rejected most of Rubenstein’s direct appeal claims, and the prosecutors who handled Rubenstein’s case at the trial level say there is no doubt he is the killer.

“He’s a con man and a shyster,” said Dunn Lampton, U.S. Attorney for the Southern District of Mississippi, who handled the case when he was district attorney of Pike County, Miss. “He’s just an unbelievably evil human being.”

Rubenstein was originally sentenced to death, but the Mississippi Supreme Court vacated that sentence in 2006.

I just discovered that last month, Rubenstein was resentenced to life without the possibility of parole, which will run concurrently with his two other life sentences.

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From this lengthy article in The New Yorker, it sure looks like it.

If true, what does this mean for the future of the death penalty?

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