Evans v. State

914A.2d 25 EVANS, Vernon Jr.

v. (Three Cases). Maryland STATE Evans, Jr. et al. Vernon Saar, Mary Secretary Ann et al. Term, Sept. 122-124

Nos. 2005. Appeals Maryland. Court of

Dec. 2006. Denied Feb. Reconsideration Julie Sippel (Jeffrey Dietrich O’Toole, B. O’Toole of Roth- well, Steinbach; Hut, Jr., Nassau & A. Stephen Todd C. Zubler, Clark, Kalea Seitz Ann Harden Tindall and Ann H. Wilmer, Geraghty Cutler, of Dorr, LLP, Pickering, Hale & on brief), DC, Washington, for Appellant Nos. 107 and 124. (J. Lisie, Atty. Curran,

Annabelle L. Joseph Jr., Asst. Gen. Atty. MD, Gen. of and Brockmeyer, Cathleen Atty. C. Asst. Gen.; Oakley Scott S. Doyle, Gen., Michael O. Asst. Attys. & Correctional Dept, Safety Services, of Public brief), on Baltimore, MD, Appellee for in No. 107. Clark, Hut, (A. Jr., Seitz Kalea Stephen

Todd C. Zubler Cutler, Wilmer, of Geraghty Ann H. Ann Harden Tindall B. and Julie Dorr, LLP; Jeffrey O’Toole Pickering, Hale & Steinbach, Rothwell, on O’Toole, Nassau & of Sippel Dietrich DC, 122. No. brief), Washington, Appellants for Gen., Attys. Asst. Doyle, 0. and Michael Oakley S. Scott (J. Joseph Services Safety & Correctional of Public Dept, Lisie, and Cath- MD, L. Curran, Jr., Atty. Annabelle Gen. brief), Baltimore, Gen., on Attys. Brockmeyer, Asst. leen C. 122. MD, No. Appellees for Zubler, Clark, (Todd Hut, Kalea Seitz Jr. C. Stephen

A. Wilmer, Cutler, Geraghty Ann H. Harden Tindall and Ann B. and Julie Dorr, LLP; Jeffrey O’Toole Pickering, Hale & Rothwell, Steinbach, on O’Toole, Nassau & Dietrich Sippel DC, in No. 123. brief), for Washington, Appellants (J. Curran, Jr., Lisie, Joseph Gen. Atty. L. Asst. Annabelle Atty. MD, Brockmeyer, C. Asst. and Cathleen Atty. Gen. Gen., Doyle, Attys. Asst. Gen.; Oakley and Michael Scott S. Services, brief), Safety Correctional & Dept, Public and 124. Baltimore, MD, Appellee in Nos. 123 WILNER, BELL, RAKER, C.J. Argued Before HARRELL, BATTAGLIA, F. GREENE LAWRENCE (Retired, Specially Assigned), JJ. RODOWSKY WILNER, Judge. $9,000 Evans, 28,1983, paid by for a fee of April Vernon

On Grandison, into the friend, walked Anthony of his on behalf and murdered County in Baltimore House Motel Warren by shooting nineteen Kennedy and Susan David Piechowicz mistake; was a Kennedy The murder of Ms. bullets them. wife, Cheryl. Evans was thought she was Piechowicz’s Evans prevent to them from to the Piechowiczes in order hired kill Federal criminal pending in a testifying against Grandison a later. scheduled for trial week case Court for 1984, a in the Circuit Worcester May, jury In removed, convicted Evans had been County, to which case 270

of two degree counts of first murder and sentenced him to 1991, death. The judgment was affirmed on in in appeal, but 1990, a in post proceeding conviction filed Evans was awarded a new sentencing hearing. At his request, the case was and, removed from County concurrence, Worcester with his where, November, 1992, returned to in County, Baltimore jury again new him to death. procedural sentenced The full history of the in case described Appendix attached Opinion. this appeals—Nos. 107, 122, 123,

We have before us now four 124, and 124—which we have consolidated. In Nos. 107 and two substantive issues are raised:

(1) Evans sentencing hearing Whether is entitled a new because attorneys re-sentencing his at the 1992 hearing failed present to investigate mitigating evidence his relating to background, thereby service, their rendering under principles Smith, 510, in 2527, enunciated v. Wiggins 539 U.S. 123 S.Ct. (2003) Beard, 471 Rompilla 374, L.Ed.2d 545 U.S. (2005), 125 S.Ct. 162 L.Ed.2d 360 Constitutionally defi- cient and prejudicial; and

(2) Whether, Dretke, under Miller-El v. U.S. 2317, 162 (2005), S.Ct. L.Ed.2d 196 ishe entitled to a new trial guilt State, innocence selecting because the a jury trial, at the 1984 exercised peremptory racially strikes in discriminatory manner.

In No. those presented issues were a motion sentence, illegal correct an procedural and the question exists they may whether properly be raised in such a motion. No. presented the two were issues fourth Evans’s reopen motion to post conviction The proceeding. question there is whether the post conviction court its abused discretion in denying that motion. issue No. 123 is whether the Circuit Court for County

Baltimore abused its discretion in without denying, affording Evans’s third discovery, motion to reopen post proceeding conviction in order to present complaint prosecution that “selective County the Baltimore State’s geographic racial and systemic statewide Office and Attorney’s unconstitutional.” rendered his sentence discrimination in the relief filed injunctive an for from action No. arises § Code, 3-905 of Maryland City. Baltimore Circuit Court manner of that the Article requires Services the Correctional Comple- injection. by of death be lethal a sentence executing (DOC) has statute, Division of Correction menting that including protocols, of execution set adopted comprehensive drugs which the lethal of the manner in description a detailed administered. co-plaintiffs—the Joined three are to be People of Colored for the Association Advancement National (NAACP), Union Foundation American Civil Liberties (ACLU), Against State Exe- Maryland Citizens Maryland (CASE)—Evans aspects those contended that cutions (1) statutory inconsistent with protocol were execution (2) that was regulation in the nature of requirements, the State compliance with Administrative promulgated without Circuit Court’s denial appeal is from the Procedure Act. injunction have restrained DOC that would temporary of a using protocol. from its com- aspect of Evans’s shall find merit the second

We complaints. no merit in of his other plaint any in No. but sentencing or proceeding is not entitled a new Evans trial, protocol the DOC that directs part but that new administering injection is ineffective until the lethal manner (1) with the adopted regulation as a accordance either is (2) Act, exempts or the Legislature Procedure Administrative Act. it from the of that requirements I. NO. 107 4-345(a) “correct a court to Maryland permits Rule not “illegal,” If sentence is sentence” at time. illegal it, exceptions perti power over with revisory the court’s mistake, fraud, or here, a showing limited to nent is no There has been contention in the irregularity sentence. Evans, for such a conten no in the record and there is basis was the tion, imposed him that the 1992 death sentence mistake, product fraud, irregularity. In order to be entitled 4-345(a), therefore, to relief under Rule Evans must show that the he challenging death sentence is “illegal.” State,

In two of prior appeals—Evans Evans’s 248, (2004) State, 456, Md. 855 A.2d 291 v. Evans 389 Md. (2005)—-we 886 A.2d 562 confirmed earlier rulings and made clear that illegal “[a] motion correct an ordinarily sentence only can be granted where there illegality is some in the sentence itself or no where sentence should have been im posed.” State, 278-79, Evans v. at supra, Md. at A.2d 309; State, Evans v. supra, 463, 389 Md. at 886 A.2d at 565. cases, In the more recent those flatly we held that “there nothing sentence; intrinsically illegal Evans’s he was be a properly principal found to first degree in two first degree murders for which the death penalty could be lawfully imposed, and the court properly found that the aggravating proved outweighed factors any mitigating factors and that State, death was the appropriate sentence.” v. supra, Evans 463, 565-66, State, 389 Md. at at 886 A.2d v. confirming Evans 660, (1994), denied, 333 Md. 833, 637 A.2d 117 cert. 513 U.S. (1994). 115 S.Ct. 130 L.Ed.2d 56 Nothing has been presented in appeals reconsider, these that would cause us to overrule, much less that holding. State, appeal, Evans’s 2004 Evans v. at supra, 382 Md. that, 855 A.2d at State, we observed in Oken v. (2003),

Md. denied, 835 A.2d 1105 1017, 124 cert. 541 U.S. 2084, 158 (2004), S.Ct. “appeared L.Ed.2d 632 recognize” we an exception “where, to that requirement in capital sentenc ing proceeding, an alleged error of constitutional dimension may have sentence, contributed to the death least where allegation partly upon error is based a decision of the United States or of Supreme Court this Court rendered after the defendant’s capital sentencing proceeding.” To the extent an exception, there is such it is very narrow one.1 The not, fact, Oken, but, 1. We did exception announce such deliberately inadvertently, whether we did complaint address a judi- “a new must constitute upon relied subsequent decision Baker v. provision.” of a constitutional interpretation cial (2005). 916, 920 State, 127,134, 883 A.2d Md. exception, that limited within squeeze

In an effort to performance about relies, complaint as to his Evans Smith, v. hearing, Wiggins re-sentencing at the counsel Beard, contends which he supra, v. Rompilla supra, provi of a constitutional interpretations judicial new constitute re-sentenced, which set new sion, he was after rendered retroactive) penalty- (and in death for counsel requirements He place not in in 1992. were sentencing proceedings to his chal respect Batson argument same with makes the Dretke, constitutes supra, contending that Miller-El lenge, prohibition of the Constitutional interpretation judicial new in a discrimi challenges racially of peremptory the use against agree. do not natory manner. We adequacy of counsel’s respect Constitutional

With judicial interpreta- “new the seminal case—the performance, v. Strickland Wash- provision”—was tion of a constitutional (1984). 668, 2052, 674 It 80 L.Ed.2d 466 U.S. 104 S.Ct. ington, and announced Supreme Court considered there that the was for a criminal defendant’s proper judging standards “the a or death conviction requires contention that the Constitution at the counsel’s assistance set aside because sentence be 671, at Id. 104 S.Ct. at was ineffective.” sentencing trial 2056, L.Ed.2d at 683. 80 by confirming its that began analysis Court

The Strickland the to the effective assistance right to counsel is right “the 692, 686, 2063, 80 104 L.Ed.2d at Id. at S.Ct. at counsel.” Richardson, 759, 771, 14, n. v. 397 U.S. from McMann quoting (1970). 763, 773, 14, n. 14 It 1441, n. L.Ed.2d S.Ct. judging for benchmark proceeded “[t]he then to announce (which illegal we found a to correct an sentence raised in motion Arizona, 584, merit) Ring 536 U.S. substantively v. to be without 2428, (2002), long Oken's decided after 153 L.Ed.2d 556 122 S.Ct. against weighing aggravating miti- sentencing, made the standard Maryland Code unconstitutional. gating set forth in the factors any claim of ineffectiveness must be whether counsel’s conduct so undermined proper functioning the of the pro adversarial cess that trial cannot be relied as upon having produced a just result.” Strickland Washington, supra, 466 U.S. at 686, 104 at at S.Ct. L.Ed.2d 692-93. The heart of the ruling—the holding Court’s announced that has remained unchanged introductory since Strickland—is paragraph III Opinion: to Part of the Court’s “A convicted defendant’s claim that counsel’s assistance was so defective as to of a require reversal conviction or death First, has components. sentence two the defendant must show that counsel’s performance deficient. This re- quires showing that counsel made errors so serious that counsel was not functioning guaranteed the ‘counsel’ Second, defendant the Sixth Amendment. the defendant must performance show that prejudiced deficient requires defense. This showing that counsel’s errors were so deprive trial, serious as to defendant of fair trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from in the adversary pro- breakdown cess that renders the result unreliable.” 687,104 at Id. S.Ct. at 80 L.Ed.2d at 693.

As to the first prong analysis—whether perform- ance objective was deficient—the adopted Court standard: “the defendant must show that representation counsel’s fell objective below an standard of reasonableness.” Id. at 104 S.Ct. at 693. In L.Ed.2d regard, made clear that particular set of detailed rules “[n]o for counsel’s conduct can satisfactorily take account of variety of cir- cumstances faced defense counsel or the range legiti- mate decisions best regarding represent how a criminal 688-89, 2065, defendant.” Id. at 104 S.Ct. at 80 L.Ed.2d at directed, however, 694. The Court that judicial scrutiny performance counsel’s “highly be deferential” in order to avoid the post second-guessing hoc simply decisions they because unsuccessful, proved required and that “a indulge court must strong presumption that counsel’s conduct falls within the 689, at Id. assistance.” professional of reasonable range wide Thus, Court 694. at at 80 L.Ed.2d 104 S.Ct. claim assistance an ineffective concluded, deciding a court con- challenged counsel’s judge the reasonableness “must case, of the time viewed as particular of the on the facts duct at 104 S.Ct. at conduct.” Id. of counsel’s at 695. L.Ed.2d rejected prong, the Court prejudice examining that counsel’s had to was show that all defendant

notion of the on the outcome conceivable effect errors “had some that the defendant show instead required proceeding” that, for counsel’s but probability is a reasonable “that there would have errors, proceeding the result professional 693-94, 2068, 80 L.Ed.2d at Id. at 104 S.Ct. been different” added). probability,” A “reasonable (Emphasis 697-98. at added, to undermine probability “a sufficient the Court Id. in the outcome.” confidence any way, those changed,

Nothing Wiggins Rompilla Court ex Wiggins standards Strickland. adopted Strickland standards applied relied on and pressly concluded, of the factual record based on its view simply case, that, they regarding information had given the childhood, scope failure broaden Wiggins’s counsel’s in a death mitigating into factors investigation possible their under the prejudicial case both penalty deficient Indeed, began its discussion the Court standards. Strickland noting that by expressly claim of the ineffective assistance claims of govern legal principles established “[w]e Washington in Strickland v. assistance of counsel ineffective ” Smith, 521, 123 at at S.Ct. v. 539 U.S. Wiggins supra, .... 2535, 156 L.Ed.2d decision, and none has been reported of no are aware

We Evans, a new holding Wiggins established to us cited are principle. The decisions of Constitutional interpretation F.Supp.2d Crosby, See Grossman contrary. (M.D.Fla.2005) merely Strick- (“Wiggins applied case, the standard change of that did not land to the facts 276

by which a claim ineffective assistance of counsel is to be State, v. Hodges judged.”); (Fla.2004) 338, 885 So.2d 346 (Wiggins is a application Strickland)-, reiteration and Grant State, v. denied, 178, 95 P.3d 179 (Okla.Cr.App.2004), cert. 543 964, 418, (2004) U.S. 125 S.Ct. 160 L.Ed.2d 332 ('Wiggins Strickland). applied well-established standards of Beard, analysis That equally Rompilla v. applies supra, 374, 2456, 545 U.S. 125 S.Ct. 162 L.Ed.2d 360 and Miller-El Dretke, v. supra, 545 U.S. 125 162 S.Ct. L.Ed.2d 196. Like in Wiggins, Rompilla Court expressly applied the standards enunciated in Strickland to find deficient and prejudicial performance by counsel. No new or in- different Strickland was announced. terpretation of Indeed, Justice O’Connor, Strickland, Opinion author of the in in noted Rompilla that the decision “simply applies our longstanding case-by-case approach to an determining attorney’s whether performance was unconstitutionally deficient under Strickland Beard, v. Washington. v. ...” Rompilla supra, at U.S. 393-94, 125 at (O’Connor, J., S.Ct. L.Ed.2d Concurring).

Similarly, Miller-El merely was an application of Batson Kentucky. Throughout Opinion, its the Court characterized Miller-El’s complaint as a Batson challenge, and it examined the record in light the three-step set analysis forth Batson. not, It in any way, did modify that analysis.

It is clear that the complaints made Evans No. are not cognizable 4-345(a) in a motion under Rule correct an illegal sentence. The judgment Circuit Court Baltimore County entered in that will case be affirmed.

II. NO. 124 The two issues raised in No. 107—the Wiggins and Batson claims—are also in No. presented which appeal is an from the denial of Evans’s fourth motion reopen post conviction case.

Maryland Code, § 7-102 of the Criminal Procedure Article (CP)—the heart of the State Post Conviction Act— Procedure the Circuit Court to seek relief in person permits convicted (1) allegation upon conviction occurred which the U.S. imposed violation judgment or the sentence (2) State, the court laws of this or Maryland Constitution (3) sentence, the sentence the impose to jurisdiction lacked (4) law, the is or sentence allowed the maximum exceeds ground that would otherwise attack on to collateral subject nobis, or coram corpus, habeas under a writ of be available remedy. statutory common law or other however, right, to that two conditions important There are first, § in 7- expressed CP here. The that are relevant 7-106, § is 102(b)(2) circumscribed in that to some extent and litigated previously finally not and alleged the error “has been or in in conviction proceeding resulting or in the the waived taken to secure any person that the has proceeding other in appears person’s from the conviction.” The second relief 7-103(a) 7-103(a) that, provides for §§ 7-104. CP and Section sentence, only “a file one person may petition trial each 7-104, however, permits this relief under title.” Section previ- that was “reopen post proceeding to conviction court the if that action is concluded the court determines ously justice.” the interests (2005), State, 366, A.2d 1064 we Gray

In 388 Md. 879 reopen to a concluded convic- post clear that a petition made the for- equivalent tion not the functional proceeding was (or 1986, peti- before right subsequent) mer to file a second tion, discretionary is a one with the reopen that the decision filed, that petition reopen “[w]e in which the and court find act if that only discretionary will a trial court’s we reverse 383, its Id. at 879 A.2d the court has abused discretion.” “ ruling In we out that ‘a reviewed regard, pointed reversed of discretion standard will be under abuse court not have made appellate because the would simply to be well under consideration has ruling. same decision reviewing imagined from center mark removed mini- that court deems beyond fringe court and what Id., v. Edgecombe, from Dehn mally acceptable.’” quoting (2005), ultimately A.2d and from Md. North, 1, 13-14, North v. 102 Md.App. 648 A.2d 1031-32 (1994).

That is the applied standard be reviewing Circuit Court’s denial of Evans’s fourth motion to reopen the 1995 post conviction proceeding—a proceeding which he had issues, raised other that had years been concluded nine earlier, sought he had reopen on three prior occasions. That was not the applied standard in Wiggins, or Miller-El. All Rompilla, three of those cases reached Supreme Court the context of an initial Federal habeas action, corpus an action of right. In Wiggins and Rompilla, relief, the District Court granted the U.S. Court of Appeals reversed, Supreme Court granted certiorari to review legal correctness—the merits—of the lower courts’ deci- sions. Miller-El also was an initial Federal corpus habeas case, action. relief, the District Court denied Court of Appeals U.S. for the Fifth Circuit affirmed. The rulings reviewed the Supreme Court in those cases were ones; discretionary not those cases were as of brought right, tried, they judgments were and were entered on the merits the petitions.

A. The Claim BatsonIMiller-El Evans was tried in before Batson was decided Supreme Court. jury selection, During the State’s use its peremptory strikes to exclude African Americans was upon Cathell) commented three (Judge times. The court first raised the issue on its own initiative. After jurors twelve were seated, tentatively the parties proceeded to select two alter During nates. that process, when the State excused a black prospective juror, Judge Cathell called counsel to the bench them directed to make their strikes in alternating order. He whom, said, wanted a clear record of who striking he “so that on I later can make indication they whether were excused as to race.” Noting the lead prosecutor was “on loan from Office,” the United States Attorney’s Judge Cathell warned that there was a of Maryland line cases disapproving racial strikes and wanted to make sure the Federal has some been of those cases: prosecutor “[t]here was aware peremptory using extremely language dicta about strong ought I to think you And think purposes. for racial challenges aware of that he was responded prosecutor about that.” The on striking anybody based “I am not cases stated those race.” and two alter- jurors until twelve process

The continued if court asked selected, point which nates had been in- Defense counsel jury. with the counsel were satisfied because acceptable was not panel the court that the formed “to challenges purposely had its peremptory the State used noted on the Counsel representation panel.” from limit blacks challenges peremptory used of its ten eight that the had State leaving jurors jurors, two to strike white strike black as an alternate. jury on the and one two African Americans State, whereupon from the response court invited track of whether he keep that he did prosecutor advised jurors and that struck “[w]e black or white had struck the voir age, occupation, during what was learned background, not strike on open and in court. We did dire at the bench There was no explanation grounds.” challenge racial elucidation, accepted court and the request and no for further it. Evans’s day, considering while the court was

The next a fair venire itself did not reflect cross- complaint that the 22% noted that community, prosecutor section of the African American and three county population was black, alternate—were jurors—two regular jurors and one point His was that panel. 21.4% the which constituted make-up disparity racial the actual significant was no there objection that his the responded of the Defense counsel jury. the but rather was not to a cross-section day before motivated, to challenges racially were peremptory State’s given had his prosecutor court noted that the which the objection the had ruled for the strikes and that been reasons upon.

In Evans’s appeal sentence, from the conviction and he the raised issue of the whether State’s peremptory strikes had been improperly used exclude African Americans. Batson had still not been After decided. the reviewing existing state law, already the which was beyond trending Swain Alabama, 202, 824, (1965), 380 U.S. 85 S.Ct. 13 L.Ed.2d 759 we of eight assumed the use peremptory strikes to exclude African Americans “was sufficient prima to establish a facie violation of rights,” the defendant’s but concluded that explanation “the offered by the prosecutor, apparently court, the accepted by was sufficient under the circumstances to support the decision trial judge overruling the State, objection.” 487, 528, defendant’s Evans v. 304 Md. (1985), denied, A.2d cert. U.S. S.Ct. (1986). 3310, 92 L.Ed.2d 722 We observed: significant “It is also that neither the judge nor defense counsel questioned explanation prosecutor requested particulars. further This may well have repre- sented tactical decision counsel, defendant’s require court’s decision be made upon the weighing prima the defendant’s facie showing against rather response general of the prosecutor, as opposed seeking specific information from the prosecutor as to each excused venireman running risk of further strengthening the prosecutor’s explanation. For reason, whatever the expla- nation of prosecutor stood uncontroverted and unim- peaehed.”

Id.

Batson was decided the Supreme April Court on At time, petition Evans’s for certiorari seeking review this Court’s decision was also pending that Court. petition That 30, 1986; denied without comment on June this Court was not directed to reconsider its decision light of Batson.

In his petition relief, first for post conviction filed in argued Evans that the State’s use of peremptory strikes to exclude African Americans constituted a violation of Batson.

281 transcript jury of the selection court before the had that, Batson had not though even of the trial and noted phase prosecutor decided, Judge had required been Cathell then given, The reasons strikes. explain peremptory his concluded, appear and not to be were did court race-neutral Moreover, and decid the matter had been raised pretextual. finally litigated. was therefore appeal in direct ed Evans’s post conviction aspect about that complained Evans which we appeal, for leave to application court’s ruling (Order Evans, 1991 Sept. Term State v. Misc. No. denied. 4,1991). filed June first conviction Evans post proceeding,

As a result sentencing jury at which a Balti- hearing, received new him to He raised sentenced death. County again more that the proceeding appears as well. It Batson issue at by the jurors American who were excused State only African however, no were jurors alternate jurors, were alternate Kahl) judge (Judge trial found upon called to deliberate. The complaint. no merit petition post his second August, Evans filed in that Among presented issues

conviction relief. chal- peremptory to the State’s petition relating were seven re-sentencing with the lenges—three complaints dealing complaint As made four from the initial trial. no emanating appeal jury re-sentencing pro- selection this about dealing the four with ceeding, only we need consider initial trial. Batson, but challenge

Evans’s direct did invoke only Alabama, supra, instead v. U.S. grounded was Swain He that “he complained 13 L.Ed.2d 759. S.Ct. Sixth, Fifth, Eighth and rights was denied his under Bal- the Constitution because the Fourteenth Amendments to in pattern Attorney’s engaged timore Office County State’s on the jurors to strike basis using peremptory challenges post Alabama.” The conviction race violation Swain v. Smith), had been raised noting court issue (Judge conviction and appeal in the from the initial and decided sentence, State, 487, 522-28, Evans 304 Md. supra, A.2d 1261, 1280-82, concluded that it had been finally litigated and second, that there was no merit to it in event. A related argument was that trial counsel deficient failing investigate present and pattern evidence State’s of exercising in a peremptory challenges racially discriminatory That, too, Batson, manner. invoking Swain rather than was found to be without merit.

Two challenges grounded specifically on Batson pre- were sented, but in only the context of deficient performance by in counsel the first conviction post proceeding. Evans com- (1) that plained post conviction was in failing counsel deficient grounds to pursue for Batson establishing violation based on the racially discriminatory peremptory State’s use of chal- (2) lenges, pursuing claims that prosecutors the this using case demonstrated a of pattern peremptory strikes in a Batson, (3) racially discriminatory manner in violation of making only perfunctory “a presentation” to this Court relat- ing to the State’s of discriminatory use peremptory challenges, (4) to failing preserve raise and on appeal meritorious the prosecutors claims that in this case had demonstrated a of pattern on using peremptory strikes of the basis race. Judge that validity Smith found the of the State’s use of at peremptory challenges the initial trial fully had been finally litigated. He observed that trial counsel had chal- lenged trial, the State’s of peremptory use challenges the that the issue raised was and decided from appeal initial that judgment, and it had been raised and decided in post the first proceeding. conviction argument, by The second post viewed conviction court, repetition was almost a just of the one noted. Evans complained that post conviction counsel was “in deficient he only perfunctory presentation made Court of Appeals relating the State’s discriminatory use peremp- tory challenges.” added: He (1)

“Petitioner alleges protection he was denied equal prosecution’s law purposefully striking African jury Americans from the violation Batson v. Kentucky (2) law he protection of the because equal he was denied pat- had demonstrated attorneys who prosecuted by racially discriminatory strikes in a using peremptory tern Kentucky.” violation of Batson manner claim, peremptory that the rejected noting The court in the finally appeal, direct litigated issue had been challenge in the was involved case. post conviction counsel before in Evans’s this Court presented Those claims were from appeal for leave the denial application amended applica post court. considered relief conviction We 7,1997, it, May we obviously found no merit to for tion and (1997). State, A.2d it. Evans v. 345 Md. denied Evans v. Maryland, denied certiorari. Supreme Court (1997). 411, 139 966, 118 L.Ed.2d 314 U.S. S.Ct. November, 1997, corpus petition Evans filed a habeas in that the 24 issues raised Among in the U.S. District Court. perempto- the State’s petition four-part complaint was a about “i) trial at the trial: his and direct strikes initial because ry Bat- Supreme concluded the Court announced appeal before son, state give the federal courts should no deference to the ii) above; requires, prose- Batson proceedings ‘[the] described each once a race-neutral reason for strike’ cution articulate iii) ... facie been the race- prima a case has established ... given by prosecutor clearly pretextu- neutral reasons were iv) al; assis- and his counsel rendered ineffective appellate by failing pretext comparing tance to demonstrate this potential jurors Irwin struck ages, occupations, etc. Smith, 54 those not strike.” Evans v. against he did (D.Md.1999). F.Supp.2d District reviewed the trial tran- (Judge Legg) Court ruling and this and concluded that

script appeal Court’s found, first, It complaints none of those had merit. “anticipating shifting eventually adopted by burdens Batson,” Court, this appeal, Court in Evans’s Supreme standard,” that, correct “applied legal reasonable and and “meas- post proceeding, Judge Eschenburg the first conviction Batson, had been against ured Evans’s claim which then published.” Id. Accordingly, the court held that both deci- sions were 2254(d) entitled to deference § under 28 U.S.C. (e). Second, the court held that Batson did not require explanation individual for each strike but only clear and reasonably specific justification for prosecutor’s use of strikes relating particular Third, case to be tried. court held that Evans’s analysis of the ages, occupations, etc. of the jurors stricken and accepted clearly “does not demon- strate the pretextuality of explanation.” Id. prosecutor’s] [the at 515. that regard, the court found Evans’s analysis of the juror data “unpersuasive” that it “fails to take into consider- ation the many impressions that a potential juror makes on voir dire.” Id. at n. 20. Finally, the court concluded that appellate Evans’s counsel were “not constitutionally remiss failing to develop this.” Id. Rather, it found “the proposed unpersuasive evidence as it does clearly demon- strate that the factual determinations of Judge Cathell and the of Appeals were incorrect.” Id. Court The District Court denied petition and motion for rehearing. The U.S. Appeals Court of for the Fourth Circuit Smith, affirmed, Evans (4th Cir.2000), F.3d 306 and the certiorari, Smith, Supreme U.S. Court Evans v. denied 925, 121 1367, 149 (2001). U.S. S.Ct. L.Ed.2d 294 It is abundantly clear from this history that Evans’s Batson claim has been fully finally litigated, in both the State and Federal courts. It has presented been rejected to and by this Court on at occasions, least two presented to and rejected by the U.S. District Court and the U.S. Court of Appeals Circuit, for the Fourth Supreme Court has denied review of it at least three times. The Circuit Court did not abuse its discretion refusing reopen post the 1995 conviction proceeding examine it again. Wiggins/Rompilla

B. Claim The Wiggins/Rompilla claim made Evans is his attorneys in the 1992 re-sentencing proceeding failed to investigate his social and psychological history and that there is a that, reasonable probability but omission, for that have been dif- would proceeding re-sentencing of that result the 1995 reopen fourth motion In of his support ferent. 51-page Psy- a produced counsel proceeding, conviction post In Circumstances Mitigating Evaluation chosocial Life Of worker, Evans, Jr., licensed social by a prepared Lee Vernon Psychological 18-page Investigation Taylor, and Pamela Of prepared Lee Evans Vernon Factors Mitigating Life Of were based reports Both Janice Stevenson. psychologist, of his and members with Evans on interviews predominantly Taylor Ms. report, her various documents. family plus concluded, part: in pertinent

(1) Family Legacy There a “Multi-Generational was said, came she parents, Evans’s Dysfunction.” Emotional various members and emotionally backgrounds, from troubled aunts, from cousins—suffered family—uncles, of his extended addiction, have been disorders, may gambling mental major committed suicide. uncle and cousin alcoholics. His father’s upset.” she got to faint when “was known grandmother His had a chronic to have reported father’s cousins “is One his “are accom- Evans’s sisters Although to gambling.” addiction public positive present in their various careers and plished instabili- experienced “significant image,” the oldest ones had in their lives. and inner turmoil” difficulties ty” “personal studies, One, teaches bible divinity, a doctorate who holds as a promiscuous employed, sexually gainfully and is husband, and has from her second teenager, separated An- daughter. relationship” 37-year-old with her “strained a masters other, degree pursuing and was college who holds a financial aid as a employed administration while business child, unloved as a University, felt Morgan counselor State suicide, “psy- had a thirty years earlier attempted once chotic breakdown.”

(2) loving express not know how to parents Evans’s did children, for their empathy to have toward their feelings needs, or demon- appropriately, to address conflict individual unwittingly They skills. problem-solving strate constructive fearfulness, suppression of “chronic set an environment up which reactions, violations” boundary normal emotional forced the children “to live an environment which was toxic traumatizing.” Taylor and Ms. asserted that Evans’s father abusive physically toward Evans and his All of sisters. this, said, she safety, afforded Evans “neither the nor security, a nurturing healthy self to develop.” (3) There was an “anxious and insecure home environ- ment” during years. Evans’s formative The household was characterized as “fearful and full of tension family between members,” and was difficult for navigate Evans “to these emotional rapids family.” within the Much this seemed to from emanate marital discord parents. between the (4) episodes There were of abandonment and extreme neglect by occasion, the parents. On one the mother left home for days. abandoned, ten The children were not actually however, as the father remained in the home to care for them. occasion, On another when Evans and his father went to the beach together, the father left him for a time Evans frightened. became Evans nearly “has no memories his spending father time with quality him.” (5) experienced persistent Evans taunting from his peers, apparently This, because he was small. to Ms. according Taylor, “exacerbated his feelings of inferiority, personal shame, alienation, fearfulness, humiliation, and powerless- ness.”

(6) occasion, eleven, On one when Evans was a man on a delivery truck exposed himself and asked Evans to kiss his penis. escaped Evans without having perform.

(7) Although Evans’s mother him described as a normal child, happy childhood friend interviewed Taylor Ms. described him as sad. When Evans was he took bottle of Darvon from his mother’s medicine cabinet and overdosed on the pills. He was taken to the hospital and recovered from An the incident. aunt looking recalled Evans “depressed.” By school, time he was high drugs. he was

(8) injuries that, Evans sustained several head according to Ms. Taylor, created “Risk for Organic Compromise.” birth, a when, at time of his occurred first of these events head, giving the scalpel on his accidentally dropped doctor nine, steps he fell down the he was gash. infant a When spent one struck a car and bump.” “a He also was got big not indicate how Taylor in the Ms. did night hospital. Compromise.” a “Risk for Organic those events created (9) occasions, his father Evans witnessed On a number women,” as “Trau- Taylor which Ms. characterized “with other There no Betrayal by Painful Father.” Witnessing matic engaged his father indication that Evans ever saw that he of this kind wit- activity; only incidents sexual “in the arms of his father on one occasion seeing nessed were into a going another occasion house another woman” and on episodes several Taylor reported woman. Ms. with another his father a car mother followed or chased when Evans’s other women. relationships about his with complained and (10) Evans part philandering, because his father’s Anger towards Father.” had “Unresolved (11) impoverished, tough neighbor- in an grew up Evans through Displaced to that as Taylor “Coping hood. Ms. refers into a Demeanor.” Tough Fear and Sadness Street Rage, (12) “predisposed Evans was According Taylor, to Ms. for with socially, developing problems and biologically both abuse,” using drugs. and 13 or was substance (13) “resounding as Taylor regarded that Ms. Symptoms and unattended help” by for Evans went unnoticed cries prob- with their own parents his were self-absorbed because lems. side, strengths Ms. listed as Evans’s positive Taylor

On the and for Loved Ones”—an “Capacity Compassion Empathy sensitivity family’s and to his needs and “underlying concern welfare,” “Repaired Family Relationships Strong Close with Grandchildren,” for his Children and and “New- Advocacy Therapeutic and Strides towards Spiritual Grounding found Healthy greatest part More Self-Awareness.” The Ms. from Evans’s childhood came her Taylor’s findings regarding Evans, conversations with his and his parents, siblings, who testified his and re-sentencing hearing simply gave differ- account of ent Evans’s childhood. Much of the information regarding uncles, aunts, Evans’s parents, grandparents, and uncles, aunts, cousins came from with interviews various and first and degree second cousins.

From some of the history developed by Taylor, same Ms. old, Dr. years Stevenson concluded he was nine “[s]ince has continuously Vernon met the criteria for Post Traumatic Disorder, Severe, Disorder, Stress Chronic and Depressive Anxiety currently Generalized Disorder. He meets the criteria for Paranoid Personality Disorder.” dysfunctional suffered,

Evans claims that the childhood he reports, documented these was far worse than that that, by Wiggins Rompilla suffered this had informa- developed presented tion been jury at the 1992 re- sentencing hearing, the outcome probably would have been was, course, different. The post conviction court aware of what had at the transpired re-sentencing tran- hearing. The of that script hearing was before the court and various wit- nesses testified as to what occurred. In considering whether the court abused its discretion in refusing reopen to the 1995 to allow this attack to proceeding proceed, it is to important examine at validity least the facial of Evans’s argument. aware, had,

In Wiggins, counsel was from they evidence alcoholic, that Wiggins’s mother was a chronic that she had occasion, that, left him child, home alone on and as a he had been among shuttled various foster homes. they When lost a motion to bifurcate the sentencing proceeding, to deal first with whether a Wiggins principal was the first degree and with mitigation, then counsel chose concentrate on princi- palship and not a present significant mitigation defense. That result, was a decision. As a strategic they made no further investigation beyond meager rather evidence they had Wiggins’s childhood. They thus never learned that the moth- alone, er left him frequently siblings and his home him forcing to beg for food and eat paint chips garbage, and that she was while the abusive, sex with men that she had physically bed, Wiggins’s children once forced that she in the same slept hospitalization, that led to his a hot stove burner against hand from one foster had been shuttled of six he age that from home another, in the second foster that the father home to him, age began that at he raped molested repeatedly occasion, streets, that, gang-raped he was on one living on the sons, sexually that he was abused mother’s by a foster Corps program. in a Job by supervisor well counsel’s failure found to be deficient Supreme The Court further had and to make they on the information up follow history. emotional into social and investigation Wiggins’s counsel to “require does not made clear that Strickland Court mitigating line of evidence” every conceivable investigate case,” every sentencing evidence at mitigating “to present Smith, at 123 S.Ct. at 539 U.S. Wiggins supra, strate- supposedly but concluded that the 156 L.Ed.2d of defense was forego counsel to that kind decision gic necessary of facts proper investigation made without was, reason, for that unreasonable. that decision and support fact, did, in that counsel noted regard, Court an unfortunate child- Wiggins had jury mention that, had failed to make hood; they because problem was a lame one. investigation, the defense proper the Court found that respect prejudice prong, to the With to discover was evidence that counsel failed mitigating and abuse privation It noted that the “severe “powerful.” of his custody six of his life while years the first alcoholic, tor- “physical mother” with the coupled absentee ment, molestation, his subse- repeated rape during sexual kind of troubled in foster care” showed “the quent years assessing a defendant’s we have declared relevant history L.Ed.2d Id. at 123 S.Ct. at culpability.” moral that a probability found a reasonable at 493. The Court nature and extent of attorney, aware competent of it but abuse, have offered evidence only would have priority. defense a mitigation would have made the In Rompilla, was clear that the State intended to offer at convictions, sentencing Rompilla’s history extensive of felony violence, propensity as evidence a to use which was an counsel, factor. aggravating though ample Defense she had so, cases, to do at opportunity never looked the files those case, especially transcript prior rape and was there- wholly unprepared fore to counter or attempt ameliorate that evidence. The file would rape case have revealed Rompilla’s dysfunctional childhood, evidence of filled with pervasive domestic violence. Had school mental health obtained, they records been would have revealed evidence of retardation, possible schizophrenia and mental all of which could in support have been used of a mitigation defense that no “bears relation to the few naked pleas mercy actually Beard, put jury.” before Rompilla supra, U.S. at S.Ct. L.Ed.2d at 379. None of that presented jury. evidence was to the case, In this presented during evidence the 1995 post convic- tion proceeding indicated Evans wanted counsel at the re- sentencing to concentrate on proceeding showing that he was successful, not the shooter. If that proved defense there could be no death penalty and therefore no for mitigation need problem evidence. The was that Evans already had been convicted court, twice of the two homicides—first Federal County—and, given evidence, then Worcester counsel hope Chester, had little on that succeeding issue. Ms. lead that, counsel at the re-sentencing hearing, result, stated as a they present and, intended a strong mitigation case unless the State’s case on principalship apart, fell not contest that issue strongly. way, too it was an opposite approach to in Wiggins. that taken

That, indeed, focus; was their did they present mitigation statement, defense. In opening counsel mitigation described justification not as a killings, for the but as a reason not to impose the death penalty. mitigation, indicated, she first, that, things: would center two if given imprison- life ment, Evans, unlikely it was though even rehabilitated addiction, and then free of drug would ever be released danger society; never be a further therefore would that, in second, up caring, loving family, in a but grew that he teens, he into and became consumed his drifted early got from into the clutches away family, his drugs, turned recovered, that, It was from which he had since of Grandison. on argument That was based tragic that led to the murders. the testimo- himself said and was corroborated what Evans sentencing at the ny siblings, and his both initial parents his in 1992. re-sentencing at the 1984 and that the rela- At Evans’s father said proceeding, be, up normally any boy in the home “was would tionship seventeen,” reached the father maybe until when [Evans] said drug problem. that Evans had a The father discovered son, to talk with and counsel his and when he tried work, a spoke judge, he a who recommended did not program Evans into the program. got treatment The father him The father said good.” and felt that it had “done some talk, talk over He always problems. that “we were able he problems.” point, tell me about his At some always would seeking support that Evans was from a friend discovered The father drug program. father who worked it to family current tension but attributed acknowledged what Evans had done: Well, child, hap- this

“My family. my youngest up until doing married with pened, living she was fíne. She is and is husband, but now she has a because this. problem her night go All calls me and I have to times she her, try My for her. problems counsel with to solve some minister. help ex-wife is the same. seek her through We them, I My daughters, trying other have to counsel with I can. why.” the best still don’t know explain We added). (Emphasis family father added that is a close one—that Evans

had his own He said very good relationship with children. along loved his son but that “somewhere the line that he felt he’s let down.” [us] gave very

Evans’s mother similar testimony. She said that Evans had a very relationship close with his sisters and with her and that imposition the death sentence would have her, father, effect on devastating Evans’s and on his sisters. sister, Gwendolyn Spence, Evans’s a high school graduate time, with year college one of at the employed was as an administrative at a assistant health center. When asked about her relationship with Evans while growing up, responded she just any that “he was like typical brother”—that “a lot of times him just up we looked to for the right thing to do” and was for always “[h]e there us to ask.” She said that they very had a relationship, close that Evans was “a lot of comfort me, and he Spence still is.” said that she learned of her drug problem brother’s around 1978-79 and tried to him help get into a program. Crystal Wilson and Linda Trusty, also younger life, sisters who were successful in corroborated Ms. Spence’s testimony. too They they said that had a very good Evans, relationship with growing up both and currently. Geter, Gwendolyn a childhood friend who mothered three of children, Evans’s seven testified that Evans “was type person always father, that he wanted to be a he always and wanted to have fatherly love and understanding with kids” and that he had a wonderful with his relationship children. Felicia Bell, who Evans, mothered another child of gave similar testimony, about the close he relationship had with child.

None these witnesses—parents, siblings, girlfriends— to any alluded serious discord in family; none of them spoke physical or psychological abuse the father or mother, none of them anything said about the father’s supposed Evans philandering. did not testify, but he did allocute. He made no claim of family Indeed, turmoil. he life, said that he had protecting been his all “I family his mother, my father, love my children my very much.” He that, acknowledged age or 15 he began abusing drugs, although parents his did find out until a years few later.

Evans’s parents and sisters much gave the same testimony There, too, at the 1992 re-sentencing. emphasis on was stemmed from problems that Evans’s the form mitigation, abuse, was thirteen commencing when he drug significant his fourteen, murders, that, conquered he had since the the father person. and was a different When that devil testified, listening. in court He said family was rest thirteen, say age I one until would about day “[f]rom fourteen, line with all he dreams of a son and he fell my was very Things were close.” my the other of kids.... We thirteen, about when Evans Evans was change when began himself from the family. using drugs detached began life, early idyllic family an almost mother described Evans’s described family together. She showing photographs early aca- took, they how were Evans’s they proud trips him, achievements, had how college plans they demic “trying her was began change and how husband things that, by the right him the track.” She stated get really missing school “it aware that Evans was they time became about it.” Evans’s three anything too late for us to do in 1984, only testified, they much did in some also as sisters any family none to detail. of them alluded Again, more turmoil, abuse, any philandering by the father. by acknowl- began in Evans chose to allocute. He

As edging: I have involved in this years

“It has been nine since been blame, Lord My family hideous crime. was to for knows, I I know because the have shamed them. this I tears have seen them shed.” added).

(Emphasis allocution, his everything In his Evans descent blamed abuse, rid of he that he now that drug into and averred drugs “I continue the and just lifestyle curse: didn’t I want to excel. myself associate with individuals didn’t allowed to use I myself thing the one others me. rid being.” I to a human drug-free. began profit became of all Taylor’s Dr. Stevenson’s recitation Ms. and family in nuclear dysfunction discord and Evans’s supposed occasions, who, on two primarily very people from the came allocuted) (or testified under oath precisely opposite- himself parents Twenty-one years Evans and his and sisters. in testifying after first proceeding years and thirteen after in second, they have testifying presented now to a social different, employed by worker new counsel entirely and that, contradictory, family version of their life. The notion if asked, they would have all of explained this to defense counsel in 1984 is testimony they belied and allocution actually gave those times. reliable, not pre-existing,

This is undiscovered evidence that supported defense, would have a credible mitigation as was in Wiggins Rompilla. case It dramatically told, story different most part, by very witnesses by counsel at the two presented in- sentencing proceedings, Evans himself. If this new cluding story repeated were be by the to a new parents jury, sisters the cross-examina- tion would be nothing devastating. short find no abuse We in of discretion the court’s refusal to reopen post the 1995 conviction proceeding.

III. NO. 123 question presented Evans No. 123 is wheth erred—i.e., er the Court Circuit abused its discretion—in post his third motion denying reopen the 1995 conviction proceeding, consider his claim “that and geographic racial Maryland penalty bias death system, including race- prosecution County, based selective coupled Baltimore with specific case, evidence of race discrimination Evans’s own makes his sentence unconstitutional.” Evans makes two argu (1) Paternoster, ments: by Raymond studies conducted in the professor Department Criminology Criminal Maryland, Justice at the of University demonstrate an uncon prosecution stitutional scheme of selective the part of the (2) Attorney State’s for Baltimore that it County; and shows as well that the death is penalty implemented throughout State in a racially geographically and and arbitrary biased manner, in violation of guar- Federal State Constitutional against arbitrary of law and protection of equal antees enforcement. issue, detach from the we first must addressing evi- any “specific is there

wholly unfounded averment case,” there in own is Evans’s race discrimination dence State, appeal, In Evans’s last Evans no such evidence. 456, 464-65, presented 886 A.2d he Md. supra, 389 here, on the he based argument presents same essentially the (2003) by Dr. study of a conducted version statistical first established, in scope, That study, Statewide Paternoster. Evans, dis- geographic racial according pattern death in penalty in the implementation crimination Paternoster, a public at noting After that Dr. Maryland. that his any suggestion legislative hearing, had disavowed case, any in particular Study established racial discrimination we observed: from chose to draw the statistics

“Apart from what Evans Paternoster, in nothing there is compiled Professor by (1) Attorney, the State’s record of this case to indicate Evans, pursuing penalty against in the death seeking way by in the fact that Evans any was influenced (2) white, African-American that his victims were any or at in the ruling any judge any proceeding case by presiding factors, (3) any juror those any way was influenced impose in the the death penalty who sat case and voted Thus, factors. any way only influenced those suggestion that any has Dr. Paternoster disavowed his Study anyone racial discrimination on the part establishes case, but, any years after 21 particular opportunity years with to the first and 13 investigate respect proceeding second, opportunity investigate respect with to the Evans has been unable to show that such discrimination in this was work case.”

(Emphasis original). In this Evans claims there was some evidence of appeal, He to four own affidavit points things—(1) his discrimination. (2) 1, 2005, from similarly dated dated affidavit December (3) co-inmate, an dated affidavit November 2005 from a (4) in prison, minister who visited Evans Evans’s conclu- sion prosecutor that the exercised in peremptory challenges racially discriminatory manner—the Batson claim. As we held, have the Batson has presented claim been at least twice to this and once to Court the U.S. District and the Court U.S. Court of for Appeals the Fourth Circuit and properly found all any three courts be without merit. It does not establish any racial discrimination on the in part State’s this case. relevant,

The three affidavits not even per- are much less affidavit, claims, suasive. In his own Evans for the first time that, arrest, in 22 years, upon his he was taken to an F.B.I. officer, an office only by where unknown identified the fact suit, him, that he wearing training was black said to “it’s kill alright you you each other but when start killing whites in this country you going are to burn.” Evans does not this indicate whether officer was F.B.I. or a agent State or officer, local police suggest, and he fails even to much less establish, any or prosecutor State who made participated in Evans, the decision to seek penalty the death against either in in heard 1983 or ever or became aware of the affidavit) (prior to statement his or was filing influenced in by what this unknown in way officer said the confines of an F.B.I. His office. affidavit states that “four there were five in law enforcement officers the room me.” with He does that any prosecutor present. indicate

The other two affidavits are no better. Edward Withers he stated that knew Evans from serving Maryland time in time, 1984-85. Penitentiary During Evans related comment supposedly Withers the made unknown offi- that, cer at the time of Evans’s arrest. Withers adds while he were sitting bleachers, Evans on some “a correctional officer made racist to Mr. comment Evans.” How that may prosecutor’s have affected the decision to seek the death penalty explained. Evans is not against The affidavit of Rev. that, James McEachim asserts visiting while Evans prison, Evans recited to him the comment supposedly made by the unknown officer at the time of Evans’s arrest. Evans told adds, used the well, that the officer had him McEachim affidavit, Evans, his fails own something “nigger,” word to mention. evidence, which, if it Evans assertedly happened, new

This any racial to show grossly insufficient about knew to seek the affecting prosecutor’s decision discrimination precisely as we character- The record remains penalty. death any that has to show “Evans been unable year: ized it last was at work in this case.” such discrimination the 2003 Paternoster is whether question The then special County supple a Baltimore by enhanced 2004 Study, Court, the Circuit ment, on its own to have required suffices law, proceed 1995 conviction reopen post as to a matter The answer is permit to on this issue. ing discovery in order “no.” penalty death helpful. is perspective historical

Some Maryland in was invalidat- long law existence that had been 238, 2726, 92 U.S. Georgia, ed in 1972 Furman v. 408 S.Ct. (1972) State, 175, v. 267 Md. Bartholomey and 33 L.Ed.2d 346 (1972). which, with occasional A.2d 696 The law under 297 law, 1978. That amendments, we now enacted in operate was v. Geor- requirements Gregg mandated in accordance with (1976), 153, 2909, 96 49 L.Ed.2d 859 gia,, 428 U.S. S.Ct. Proffitt (1976), 242, 2960, Florida, 428 96 49 L.Ed.2d 913 v. U.S. S.Ct. 2950, Texas, 262, v. 96 S.Ct. 49 L.Ed.2d and Jurek 428 U.S. (1976), “guided approach. a applies 929 discretion” here, eligible is not at all for pertinent person

As a (1) he a first unless or she committed penalty the death murder, (2) degree was in the principal a first degree paid or who the actual person actual killer murder—the murder, (3) or eighteen to was over when killer commit the (4) committed, the time of the murder and at the murder retarded, if mentally in the statute. Even was not defined may the defendant receive death apply, those criteria (1) to a reason prove, beyond the State is able penalty unless doubt, or of ten aggravating the existence one more able (2) given timely § written 2-303(g), factors set forth in CL has 298 (i)

notice to the defendant its intention to seek death (ii) penalty each upon factor it aggravating which intends (3) rely, to is to prove, by preponderance able of the evidence, factor(s) aggravating proves beyond outweigh reasonable doubt any mitigating any factors that (or juror if, judge, option, at the sentencing defendant’s imposed by judge) may a preponderance find to evidence exist. and, course, to

Subject legal any those conditions may apply, Attorneys Constitutional ones that the State’s retain the they broad discretion have historically enjoyed determining prosecute, which cases to which offenses and how to charge, prosecute they the cases See Brack bring. Wells, 86, (1944); Yates, v. 184 Md. A.2d 276 Murphy (1975); State, Md. A.2d Evans v. supra, Md. n. 499 A.2d at n. case that is legally death eligible they seek, are penalty, generally free seek, or not penalty, pursue their abandon for quest the as the penalty proceeds. death case first study implementation formal Maryland’s of death penalty pre-Furman involved the law and was conduct- ed in 1962 a committee of the Legislative Council. See Punishment, Report on Capital Legislative Council Commit- (October 1962). Capital tee on Punishment The committee 122 examined the death sentences that had imposed been time, between and At 1936 the the death penalty was for available both murder and rape.

During 25-year study the period, persons 122 had been death, sentenced to for 71 murder and 51 for rape. Twenty were still on death when the study row ended. Of the 102 others, executed, 57 had been for 36 murder and 21 for rape; trials, 45 remaining the had either given been new had their inor, cases, sentences commuted two committed suicide. The committee noted then a racial geographic both and in disparity imposition the of City, death sentences. Baltimore which the 1940’s during 1930’s and contained the about half State’s population, responsible was of 122 59 the death sentences County Anne Arundel was of the 57 executions. and 24 executions, followed and four with 12 death sentences second Counties, eight death with Montgomery and by Dorchester death sen- each, County, with seven and Baltimore sentences tences. Legisla- made findings were pertinent other

Three First, majority of the great Committee. tive Council strangers were sentences, and victim the defendant 122 death rape of the 51 (60% all but three the murder cases and of factor important cases), “strangerhood” indicating Second, there was penalty. death to seek the the decision who received of African Americans number disproportionate of Eighty percent were executed. the death sentence and black, the black defendants 50% of were defendants executed, 40% of white whereas death were sentenced Finally, were executed. to death defendants sentenced to death and execut- sentenced greatest proportion persons laborers, hands, drivers, cannery truck ed farm were workers; positions wealth occupied none of defendants society. or influence in law under geographic proportionality

The issue State, 563, 468 297 Md. came this Court Calhoun before denied, (1983), 104 S.Ct. A.2d 45 cert. 466 U.S. (1984). time, required At the Court was

L.Ed.2d sentence, determine, in appeal involving death whether to the disproportionate penalty the sentence was “excessive (1987 Md.Code in similar cases....” See former imposed 414(e)(4). Calhoun, tried, con § who was Repl.Vol.), Art. victed, Montgomery County, given the death sentence was unconstitutional complained penalty that the death statute by prosecu exercise discretion” because the “unbridled case, in filed in a dissent tors. The record summarized 496-97, State, 432, in Tichnell v. Md. by Judge Davidson variation, (1983), showed both a “substantial 468 A.2d 33-34 100%, in in the cases percentage from 1.8% to ranging identity depending upon penalty sought, death which the and “in making the determination” prosecutor deciding in in which cases prosecutors employed by standards penalty.” counties, seek the As examples, death Id. in six prosecutors sought the death penalty single “whenever a aggravating circumstance is present circum- mitigating account,” stances are not taken into in City whereas Baltimore counties, prosecutors and six other cir- mitigating considered counties, cumstances in making decision. Id. In five prosecutors took into account the relationship between the victim, accused and they whereas three did not. response In complaint prosecutorial Calhoun’s about how “[ajbsent exercised, discretion was we any held that specific by irrational, evidence of prosecutors indiscretion resulting inconsistent, or discriminatory application of the death penalty statute, State, Calhoun’s claim cannot stand.” Calhoun added). supra, 297 Md. 468 A.2d at 64. (Emphasis We have never abandoned that standard. Office, handled, the Public Defender’s which handle, great majority

continues of death penalty cases law, 1,461 that, under examined the homicide cases then, had arisen since Applying statutory crite- ria, the Public 415 of Defender found those cases to for qualify penalty. death Formal notices of intent to seek the death penalty had been filed of which 90 had actually (14 proceeded phase to the of the 90 penalty were re-sentenc- Court). ing proceedings following a A reversal this total of actually death sentences were imposed. Because of re- sentencings on appeal, ordered seven defendants accounted sentences; for 17 of those seven others who had sen- been tenced death had their sentences either commuted or on appeal. stricken

The first and most critical finding by Defender Public predominant plea was the influence of bargaining. Sixty-one pleas guilty defendants entered in return withdrawal of the notice, pled guilty another return for a commitment not to file the notice in the first instance. 17 persons Of the row, then on death twelve were African American and five were white. Eleven of the seventeen their committed crimes County. in Baltimore City Neither Baltimore nor other Capital See one inmate on death row. more than county had Mary- the by A Maryland Report in 1978-87: Punishment Capital Pun- Administration on the land Public Defender ishment, 21-23 (1987). in the Paternoster trumpeted disparity geographic Defender, aat time the Public reported by as well

study was that Baltimore It was noted Evans’s case. more relevant to cases, in of qualified notices 10% penalty filed death City in 56.5% of County notices filed such Baltimore whereas City the ac- that, cases, notwithstanding qualified many penalty-eligible times as death nearly four counted terms, county conduct- in the county, the murders as absolute City. as Even many phases the penalty ed more than twice in nine death then, fewer than one County “where Baltimore committed, people more are has sentenced murders eligible Id. at 26. jurisdictions other combined.” death than all County, penalty-eligible 18% death George’s Prince which than occurred, far more death notices penalty filed murders (49 26), it withdrew 34 them and County vs. but Baltimore defending death obtaining unsuccessful in apparently other 15 sentences cases. proportional- racial also commented on

The Public Defender racial discrimi- acknowledged He that the concern about ity. race of offender than less upon nation had “focused the victim” and that statistical studies upon the race of allegedly con- of the southern States that conducted some Supreme by such had been found firmed discrimination McCleskeyv. 107 S.Ct. Kemp, U.S. Court (1987) to establish unconstitu- L.Ed.2d 262 to be insufficient tional discrimination. Paternoster, identified the Public Defender

Like Dr. regarding the can be made steps various at which decisions it sending a formal penalty—the decision seek death (either notice, unilaterally or in not to the decision withdraw He sentencing.2 and the plea agreement), connection with a decision-making point split into two—the 2. Dr. Paternoster the third phase penalty and the prosecutor proceed with the decision that, reported although involving murders repre- white victims sented 42.6% all eligible cases for the death penalty State- wide, those cases accounted for 65.2% of death penalty notices, that, result, as a “it is 2.18 times more likely penalty death notice will filed in a involving be case of murder a white in person than a involving case the murder of person.” Capital a black Punishment in Maryland 1978- at A supra, 30. similar was disparity observed at the second stage: 40.2% of the notices were in withdrawn cases victim, involving a white in victim, but cases involving a black of 72.2% the Thus, notices were withdrawn. “it 2.15 [was] times more likely that a death filed penalty notice will be withdrawn where the murder victim black than where the murder victim was white.” Id. at 30. statistics,

From these the Defender Public concluded: all, prosecutors (64 “In seek the in penalty death ... 31.7% 202) (15 of all cases white involving victims and 6.8% 221) of all cases involving is, black victims. There there- fore, a 4.7 times greater numerical probability that prosecutor will seek the death in a a penalty involving case white victim than in a case involving a black victim.” Id. at 31.

A similar disparity was evident as respect well with to the actual sentencing. The death penalty was imposed 35.9% of all involving cases a white victim and in 20.0% of cases involving a Thus, black victim. is a “[t]here 1.80 times greater probability numerical that a capital sentencer impose will death a penalty in case a involving white victim than in a case involving a black victim.” Although the Public Defender acknowledged that subjected he had not the data to the “sophisticated analysis” statistical subject was the case, McCleskey that, alone, he asserted from the raw data “no factor or group remotely factors so strong bears jury judge decision or impose whether to the death sentence. If prosecution, prosecutor’s issue is selective proceed decision to

would seem to be more relevant. results does capital sentencing correlation with numerical Id. the race of the victim.” special December, 1992, Schaefer created Governor of the admin- comprehensive review

Commission to conduct The focus penalty Maryland. of the death istration disparity, just geographical on racial was not Commission No. 9 was that Finding matters. on those it did comment but penalty 1978 death Maryland’s under “[cjapital prosecutions twenty-four charging among the State’s distributed statute are Report fashion.” numerically in a uneven jurisdictions xix and Penalty, at on the Death Commission the Governor’s 1993). 1993, fifty-seven death (November, 1978 to From (41 16 at impositions and imposed initial sentences had been County, five from Baltimore of which 22 came re-sentencing), County, and George’s Baltimore and Prince City each from had more than county other County. from Harford No two State, revealed Calhoun one. Id. at 91. As the record pursue when determining supra, the standards signifi- penalty in for that varied eligible a case penalty death county. considered county prosecutors from to Some cantly not; circumstances, some looked others did possible mitigating success, not; the weighed others some at likelihood of did most did not. emanating process, from the frustration “[t'jherc is no of intention- Finding 10 was that evidence No. in of death implementation penalty in the al discrimination remain implementation in its disparities racial Maryland, but In its Id. xix-xx and 201. of concern.” legitimate matter Commission, noting finding, though to Commentary of statistical subjected type that the data had been discrepan- numerical to determine whether analysis necessary that the data statistically concluded significant, cies were against nor discrimination disproved neither had established in victims. or favor of white African American defendants disparity, over racial expressed light In of the concern Task Force in 1996 another Glendening created Governor in disparity the administration the causes of racial “determine on in Task Force Maryland.” Report of penalty the death of (Executive Imposition the Fair Punishment Capital Sum- of 1996). (December, mary) gathered The Task Force statistics on the racial of persons breakdown death and surveyed row national dealing literature with racial in disparity capital sen- It tencing. high concluded that “the of percentage African- prisoners American under of sentence death and [ ] low of percentage prisoners under sentence of death victims whose were African-American remains a cause concern.” Id. at existed, potential 39. The for prejudice the Task Force opined, because minorities under-represented were often those positions whose incumbents make decisions regarding capital punishment process. Id. at 41. finding

There was no the Task Force that death penalty-eligible particular defendant subject had been the of discrimination, racial either of directly by reason the race of his victim. yet made, another study this one Professors Woodworth,

David Baldus and George University Iowa. Dr. Baldus had made similar studies several southern States, and, indeed, it study was his death Georgia penalty McCleskey was at issue v. Kemp, supra. Baldus and Maryland Woodworth examined 346 degree first murder cases in which the had served notice of State intention that, to seek the penalty death and found even when consider- ing the of statutory aggravating number factors charged, defendants persons who killed white likely were more penalty phase advance and receive the death sentence than those whose victim was African American. David Baldus and, Woodworth, George Race Race Victim Defen- Disparities dant in the Administration Maryland’s Capital (1979-1996): Charging Sentencing System and Preliminary (2001). Finding

Even study before the Baldus was completed, Governor Glendening placed budget $225,000 in the FY 2000 for a study—the years—of further fifth in 13 racial in disparity of Laws, administration death penalty. 2000 Md. ch. Raymond Paternoster, at 1166. Professor who had participat- evaluation, by appointed Force was in 1996 Task ed study, of study. report the new to conduct Governor Sys- Sentencing Maryland’s Death Analysis Empirical An of Jurisdic- Legal Race and to the Respect with tem of Influence issued tion, but, according press release to itself undated January, in University Maryland, completed of by the studies, of Dr. Paternost Following the the other approach penalty in points the death key four decision er identified intention; a notice of the decision issue sentencing system: proceeded; the case that notice as not to retract the decision penalty phase; reached the actually the case whether His statistical imposed. sentence was the death whether 6,000 first and second with analysis began approximately 1978 to Maryland August, in from committed degree murders 1,311 death- of which he concluded were September, Attorney, filing eligible, either because State’s penalty determined penalty, of intent to seek the death a formal notice because, in the view of the they eligible, were death cases, prosecu or, panel the view of a close researchers legal met the criteria attorneys, the case tors and defense filed notices penalty.3 Prosecutors seeking the death 353(27%) cases, subsequently in 140 of them of those but notice, plea agree with a usually in connection withdrew the cases, proceeded remaining actually ment. Of the sentence. 76 resulted a death phase, only but penalty proceed- of reasons for a case gives Paternoster a number composition panels, of these which reviewed about 3. The actual cases, attorneys panel entirely Report speaks "a clear. The is not experience penalty put together cases” that was who had some in death prosecutor one researcher” after consultation with “the senior defender, roughly equal of a public and states that consisted one defenders, private lawyers Attorneys, public who number State’s penalty appears that Id. at 16. It previously had handled death cases. sub-panels of from be reviewed were submitted the actual cases composition sub-panels is not attorneys, but the of those five to ten filed was included as case for which no notice had been indicated. A eligible majority sub-panel (possibly three out penalty if a death five) moderately were "at least confident rated the case such and making Id. at 17. that assessment.” to the ing penalty phase—the prosecutor a concludes that or, unlikely during guilt death sentence is phase, the no aggravators were found the defendant not to was found be in a the principal degree. first Id. at 17. The conditional of a death in probability eligible sentence a death case was only for all 5.8% defendants.

The data showed that white of comprised offenders 24% the cases; pool of death eligible comprised black offenders of 74% pool that offenders other races 2%. the notices of Of intention filed by prosecutors, 34% against were filed white offenders, against Thus, 65% black offenders. the report concludes, probability a “[t]he that death notification will be a given offenders, filed death eligible case .24 for black (over white).” .37 for non-black offenders 90% whom are that, at It Id. 21. each subsequent adds of the stage “[a]t process there no significant are differences in the handling of black offenders and non-black offender cases.” Id.4 Even adjusted after the data was to take account of 123 factors that he concluded be relevant in a might prosecutor’s decision to seek and the pursue penalty, death Dr. Paternoster made the definitive finding that the “[ljookmg across different decision points, there is no evidence that the race the defendant matters any stage once case characteristics are controlled (Emphasis original). Id. at 31. for.” this finding, With which the supports conclusion that the decision to seek and pursue penalty against the death Evans race, was not on his only based possible relevance Study lies its examination of whether race victim(s) influenced those decisions. that regard, Dr. victims Paternoster concluded that white comprised 45% of all cases,5 eligible death eligible 65% death cases in which an sentence, states, Curiously, preceding in Paternoster inconsistent- then, ly, point, this first "[a]t decision non-white offenders are likely significantly more against to have a death notice filed them than added). (Emphasis black offenders.” We assume that this sentence is mistake, one apparent Report. of several on the face of the 5. There is error obvious articulation of that another statistic. Report actually comprise approxi- states that "[w]hite offenders filed, of the cases 74% penalty to seek death intention withdrawn, of the cases 77% that notice was not which sentences 80% of death phase, penalty advanced raw, data, unadjusted he on the actually imposed. Based file will prosecutor the probability concluded that at least 48% there is eligible when in a death case notice there are no white only 19% when victim but one white will that the notice victims, probability a 70% that there was in non only in cases but 46% white victim not be withdrawn of a cases, an 88% probability and there was white victim a 75% penalty phase to the and advancing victim case white he disparities case. Those in a non-white victim probability posits Dr. Paternoster statistically significant.6 found to be appears race that the victim “suggests] this data capital punishment in early stages to matter at least conclusions, unadjusted 22. His from the system.” Id. at are: analysis

(1) notified likely are more to be death offenders White offenders; than non-white

(2) are more kill least one white victim Offenders who at notice death-notified, likely to have that to more likely be phase to than “stick,” penalty likely proceed and more victim; without a white cases

(3) likely kill are more be White offenders who whites others; death-notified than

(4) likely who kill blacks are less be Black offenders others; “stick” than and have that notice death-notified added). eligible (Emphasis mately cases.” Id. at 22. all death 45% victims, statement—Figure offend- 3—deals with not The source ers, paragraph. that is the focus of the discussion and victim, categorizing 6. based on race of Paternoster includes cases victim, every was a even column case in which there white the "white” or at Table there were also in that case one more black victims. Id. if gives why a which were both white and He no reason case in there 3A. case, regarded exclusively as a white victims should be victim black were, any, many there does not does indicate how such cases if and might be drawn from the data indicate whether how conclusions categorization if a different had been used. affected (5) Black kill offenders who whites likely are more to be “stick”; death-notified and have that notice (6) is There substantial and significant way variation in the Attorneys Maryland State’s make the decision to file notice of intent to penalty seek the death and whether that notice is withdrawn. Baldus,

Following the lead of Dr. Dr. recog Paternoster nized that there many were factors other than race that seek, influenced the decision to pursue, obtain the death penalty. Baldus had identified over 200 such “covariates.” Paternoster whittled them down to including the ten Id. statutory aggravators. Table Some those covari seem, ates facially, at least duplicative.7 be It is also of interest there no covariate for the circumstance which a defendant had and, been sentenced to death like others, Evans many had been sentencing awarded new hearing appeal or by reason of a successful collateral mix, attack. Those seem to part general cases be the with no given prosecutor consideration to whether the seeks reim position of the death penalty principally because the State was successful in getting the first time and the case has been give remanded to the specifically State another opportunity— whether, words, in other race of the victim or the offender plays any role at all those decisions. may There be an explanation for the of circumstance, omission which has most, if many, affected given not of the defendants the death Evans, sentence including since but the Report does not contain one. history

7. Factor 5 is No. that defendant has a of alcohol abuse. Factor history drug No. is that defendant has of abuse. Factor No. 26 is history drug that defendant has of or alcohol Factor 7No. use/abuse. history is that defendant of problems. has mental illness/emotional history Factor is No. 25 that defendant has of mental illness/emotional problems. physically Factor 15 is that defendant was abused as a child. history physical Factor defendant has of as a abuse child. Factor 16 is sexually that defendant was abused as child. Factor 21 history is that defendant has of sexual abuse aas child. Different "Mean/Proportion” given numbers are of seemingly each these duplicative factors. covariates in some of the of information on Because of a lack cases, re- cases, those which Dr. excluded some Paternoster 1,202. not that 8% 1,311 regard He from did pool duced the pool He reduced statistically significant. as exclusion however, which informa- 1,061, to eliminate cases further as to the race of defendant missing either tion was important “an but victim, regard he did that reduction of adding “[r]eaders study,” weakness this unavoidable victim involving analyses in mind that report this must bear race have victim and offender the intersection of race and that were death cases eligible eliminated disproportionately noticed.” Id. not death to the the 123 “covariates” applying

After some fashion cases, that there were both 1,061 Dr. Paternoster concluded disparities in the decision seek and racial geographic and view, which, in could be pursue penalty his death geography, various covariates. In terms explained sought pursued penalty being death probability than in greater County in Baltimore was much victim, As Dr. Id. to race jurisdictions. other 23 at 29-31. adjusted data confirmed the concluded that Paternoster data, significant- of white victims were unadjusted that “killers noticed, to have that death ly likely more to be death [and] ” but, reason, ‘stick,’ up “does not hold notification for some a case to attorney ... at of the state’s advance the decision conclusion, That Paternoster trial.” Id. at 32-33. penalty the race of the offender was opined, remained constant when Thus, offenders who kill considered. he found that black greater victims were at risk even after case characteris- white jurisdiction and the were considered. Id. at 36. tics concluding Dr. Paternoster made part Report, In the his disparities he found clear that the racial geographic the notice and notice greatest exerted their influence at death not when the case points retraction and were exacerbated acknowledged actually phase. to the He proceeded penalty first, Report. or in three limitations weaknesses the noted, fact that “there were already significant arose from the victims,” that of data on the race of some quantities missing disproportionately those cases “were lost the notice deci- sion,” and that important “some of the most effects estimated study the revolved around death notice decision.” Id. at weakness, said, 40. A he second was “the inability to hold statutory decision,” aggravating factors constant at the notice as prosecutors were not to required identify aggravating they factors unless issued a to notice intention seek the Finally, death Id. penalty. emphasized he he had addressed whether “the statewide results estimated here hold for all Id. equally counties.” issued,

Within week after this was Report Dr. Paternoster appeared Committee, before Senate Judicial Proceedings he where was about some of his questioned methodology and “[S]o, conclusions. He summarized thusly: his conclusions away lesson that we took from this was that the race of the matter; offender did not the race of the victim mattered pretty substantially; county jurisdiction and the or where crime probably occurred mattered most of all.”

When asked he opinion why whether had an as to there a greater risk of a victims, death cases with penalty white he acknowledged that the study results did not mean that prosecutors were in a acting prejudicial fashion but suggested phenomenon could result from the fact that, nationally and presumably Maryland, white people support penalty non-whites, the death more than families white might prosecutors victims to push seek the death penalty more than the frequently families non-white victims, that, if prosecutors were responding pressure families, from the “that could produce effects we’re ob- right now serving prejudice without reference racial racial animus.” He “I added would like make it especially

clear that these results do not mean that anyone behaving racially discriminatory manner because I think there added). are explanations other (Emphasis that.” In February, Dr. Paternoster a supplement released dealing his 2003 Report specifically Baltimore County. with See The Administration the Death Penalty in Baltimore

311 which Report, Unlike the Maryland 1978-1999. County, narrative, descrip- fairly written in a understandable was ultimate from which the analysis logistic regression tion of the technical. Report highly derived are conclusions in Balti- death-eligible cases Dr. Paternoster identified prosecutor period. county The study County during more (65%),which was of cases penalty in 99 those sought death (49% cases, 75 the 99 rate in the State. Of highest cases) and death penalty phase, to a eligible proceeded death (23%). in 34 imposed penalty was comprised offenders showed that non-white

The raw data (83 white), death-eligible killings 55% the non-white/69 sought the death prosecutor in which the of the 99 cases 59% (58 white), cases that 60% of the 75 penalty non-white/41 (45 white), and 71% phase proceeded penalty to a non-white/30 (24 imposed non penalty was 34 cases which death white).8 numbers, Dr. Paternoster Based on those white/10 represented over “slightly were that black offenders indicated when County capital punishment system in the Baltimore in the universe death representation their compared with race of the victim regarding at 4. The data cases.” Id. eligible at white in 79% of the there was least one victim showed that (120 non-white), 81% of the cases eligible 152 death white/32 penalty to seek death 99 cases in which an intention (80 non-white), proceed 83% of the 75 cases that filed white/19 (62 non-white), 88% of the penalty phase to a ed white/13 (30 non-white). imposed Notwith 34 death sentences white/4 cases involved non standing eligible 55% of the death victim, Study 79% involved a white white offenders and only who killed whites accounted 37% that blacks reports notices, 44% of cases, 42% of death cases eligible of all death stage, actual death advancing penalty to the 41% Similar as to to the conclusions drawn sentences. Id. alone, Paternoster from this of offender Dr. estimated race numbers, percentages. give only actual Report 8. The does not percentages. estimated from the numbers are killing data that cases involving blacks whites “are slightly over represented at each making point capital decision in the added). punishment process.” Id. at 5. (Emphasis Noting that the county prosecutor frequently did exercise her in deciding discretion whether to issue a death penalty notice, reported Dr. Paternoster that “preliminary there was evidence” that her discretion “might by be influenced the race case,” of the victim in although offender and the he does Id. at 6. He indicate what might that evidence be. that added is possible “[i]t observed racial is not due effect to race at all but to legitimate case characteristics that are Id. merely with correlated race.” 7. The report then launches into a technical highly “bivariate logistic regression a analysis” involving “logistic regression coefficient” and an multiplier.”9 “odds The results of this in 21 analysis appear tables, coefficient, each containing logistic regression a Likelihood,” odds “-2 multiplier, constant, a and a Log the derivation of are unexplained. which Presumably, the rele Likelihood, is -2 Log vant factor the is reported which for analysis, explains 9. Dr. Paternoster the as it to the to relates decision notice, penalty way: file a death this sign logistic regression "The of the coefficient of for race negative. offender is Since the race of offender is coded '0' for offenders, negative sign black offenders and T for white this (b) logistic regression coefficient indicates that white offenders are likely County attorney less to have the Baltimore state’s file a notifica- magni- tion to seek a death than sentence are black offenders. The logistic regression tude of the log coefficient tells us that a against odds that white offender will have a death notification filed them is -.449 less than for black offenders. A coefficient of 0 relationship would tell us that there is no between the race of the County attorney and the offender decision of the Baltimore state's to file a notification to seek death. Our observed coefficient —.449 zero, indicating is relationship that there is some race between the the offender and the decision to seek death a sentence. The odds multiplier by tells of a us that odds death is notification reduced factor of .639 if a white rather than a black offender is involved. relationship Since no race between of offender and death notification 1.0, is multiplier indicated a factor of the odds of .639 further suggests County attorney that the decision of the Baltimore state’s modestly file a death notification is affected the race of the offender.” victim, offender, and race of offender race race of 1 is illustrative: Table victim models. Results for Bivariate Race Regression 1: Logistic

Table to File a Notification on the Decision Model Offender a Death Sentence Seek Multiplier Odds b

Variable .639 -.449 Race of Offender .842 Constant 191.916. Log -2 Likelihood he as a “very what described through this data Converting that “the formula,” proba- Dr. Paternoster determined simple file a attorney state’s will County Baltimore bility case .70 while death a white offender notification seek .60,” a black offender case is for probability tendency clearly greater that there is shows quite “[t]his a notification to attorney file County the Baltimore state’s one in a offender case rather than a death sentence black seek “simple at 9. formula” is offender.” Id. involving white as follows: as is the of the constant, the terms follows: estimated value “p0

Dr. Paternoster defines p, logistic regression given variable, coefficient for the is a x, tlie estimated explanatory variable.” value of independent that analysis this shows argues supplemental

Evans characteristics, the Baltimore controlling after for case “even has, County Attorney’s past years, over State’s Office capital cases for selecting discrimination engaged racial never thing It no and has been does such prosecution.” present Dr. Paternoster to or document such asserted drawn Dr. Paternoster is only accusation. The conclusion that, his black offenders solely analysis, based on statistical County are: slay who white victims Baltimore have file a notifica- likely attorney “1. more to the state’s tion to a death seek sentence likely

2. an initial less have death notification withdrawn likely 3. more to have their case to a penalty advance trial 4. likely more be sentenced to death than death eligible involving

crimes all other racial combinations.” Id. at 30. have been studies of post-Furman

There numerous death penalty purport cases examine and demonstrate the effect of on the imposition race the death penalty, beginning as early as 1976. In Accounting U.S. General Office (GAO) examined of those many studies. See United States Accounting Penalty Office, Sentencing, General Death Report to Senate and on House Committees the Judiciary (1990). After studies excluding pre-Furman based data duplicative and those that were either or that did not contain data, at 28 empirical GAO looked studies and rated about half half quality low as of either medium or high quality. Id. at noting methodological 3. After three hmitations affecting sample some the studies—the threat of selection bias, variables, sample omitted and small reported sizes—GAO 82% of studies indicated that defendants who mur- likely dered whites were more to be sentenced death than conclusion, those who murdered blacks. That drawn from several varieties of analysis, statistical was confirmed in 15 studies conducted the 1990’s and at least more published Sorensen, al., since See Jon et Empirical Studies on Race Death Penalty A Decade Sentencing: After (2001); GAO L. Report, David Baldus and Crim. Bull. Woodworth, George Race Discrimination in the Administra- tion the Death An Penalty: Overview the Empirical Research, Evidence with Special Emphasis on the Post-1990 2005). 41 Crim. L. Bull. 6 (April These studies have used number of methods, statistical ranging simplistic from attempt ones made no to evaluate crime, of severity the the those that attempted to classify severity of the by considering crime whether the defendant killer, victim, was a deliberate the status of the and the of killing, heinousness to the logistical regression tech- by See and used Paternoster. ñiques developed by Baldus Edelman, Empathy, Bryan Prejudice, and Sen- Racial Juror Penalty (LBF1 Pub- tencing Scholarly 22-25 Cases, Death al, Evaluat- LLC, 2006); Baldus, Monitoring el lishing Sentencing Systems: Lessons Death ing Contemporary from (1985). 1375,1381-82 18 U.C. Davis L.Rev. Georgia, of this kind of statistical impact In the relevance and v. McCleskey Court in Supreme came before the analysis L.Ed.2d 481 U.S. 107 S.Ct. supra, Kemp, court of man, Georgia convicted McCleskey, a black of a during police a white officer the commission murdering a Federal habeas and was sentenced death. robbery action, claimed, solely logistical regres- he based corpus of the death by implementation sion Dr. analysis Baldus in his own Georgia any specific and not on evidence penalty case, of his race against that he was discriminated reason of the victim. and that hearing, an ex- evidentiary District Court conducted study, rejected it as examined the Baldus

haustively faults, subjec- including of unpersuasive because numerous variables, the for the of coding presence tive nature of the variables, faulty the potentially of certain unknown treatment all of information to the coders assumption that available at the prosecutors sentencing to the bodies was available made, potential respective time their decisions were outcome. explain that unaccounted for could variables base Baldus had The court found the data used trustworthy, flaws and had not been shown to be substantial himby sufficiently pre- that none of the were models used discrimination, and that support dictive to inference for race of presence multi-colinearity—positive coefficients race of diminished the defendant—substantially victim and accorded evidence weight to be to the circumstantial statistical Zant, McCleskey F.Supp. See disparity. racial (N.D.Ga.1984). Appeals the U.S. appeal, 356-64 On Court banc, Circuit, sitting Eleventh en affirmed the District that, validity on the ruling, ground assuming Court’s even (which wanting), the District Court found the research still did not support decision that Georgia law was being unconstitutionally applied. v. McCleskey Kemp, 877, 753 F.2d (11th Cir.1985). 886-87

In affirming, the Supreme Court used essentially the same approach as that used by the Court of Appeals—that study, Baldus if statistically valid, even was insufficient to establish unlawful racial discrimination. Dealing first with McCleskey’s protection equal argument, that, the Court noted it although had accepted statistics as proof of intent to dis- contexts,” criminate “certain limited the nature of the capital sentencing decision and the relationship of statistics to that decision are different from those contexts. McCleskey Kemp, supra, 294, U.S. at 107 S.Ct. at 95 L.Ed.2d at 279. As to sentencing itself, decision it is by jury made selected from properly venire, constituted jury each is unique, jury’s decision rests on innumerable factors vary. Another distinction that, noted Court is unlike venire cases, selection and Title VII the State has no practical opportunity explain the statistical disparity and should not be required to do so:

“Similarly, policy considerations a prosecutor’s behind traditionally “widediscretion’ suggest the impropriety of our requiring prosecutors to defend their decisions to seek penalties, death years ‘often after they were made.’ [citation Moreover, absent far omitted]. stronger proof, is unnec- essary rebuttal, seek such a legitimate because a unchallenged explanation the decision is apparent from the record: McCleskey committed act for which the United States Constitution and Georgia laws permit imposi- tion of the death penalty.” 296-97,107

Id. at S.Ct. 95 L.Ed.2d at 281. The Court also observed that McCleskey’s proffer statistical had to be viewed the context of the challenge—an attack on decisions at the heart of the justice criminal system, implementation of which “necessarily requires discretionary judgments.” Id. at 107 S.Ct. at 95 L.Ed.2d at 281. The Court continued: justice pro- the criminal essential

“Because discretion before we proof clear cess, exceptionally would demand we has been abused. the discretion infer that would in this case also at issue the decisions nature of unique dispar- from the an inference such against adopting counsels we hold Accordingly, study. Baldus by the ities indicated support insufficient study clearly is the Baldus that McCleskey’s in of the decisionmakers any that inference discriminatory purpose.” case acted with Id10 reject McCles- was used to reasoning

Essentially the same by the disparities revealed the racial key’s argument in its arbitrary to be penalty caused the death Study Baldus for that Eighth the Amendment and to violate application Dr. observed, respect we have with reason. The Court contend that his Dr. Baldus did not Paternoster, that even McCleskey’s, in a factor that race was proved statistics sentencing, in discrepancies Apparent case. particular, other justice noted, of our criminal part an inevitable “are the Court the Baldus indicated discrepancy and that system,” in defects identified systemic from the cry” was “a far study 312-13, 107 at 481 U.S. McCleskey Kemp, supra, Furman. 291-92. It continued: 1778, 95 L.Ed.2d at at S.Ct. to our criminal fundamental that is discretion

“Where that what involved, to assume we decline process is study divided cases into McCleskeyCourt noted that the Baldus 10. aggravation level of according the estimated eight ranges different Court, that, testimony Dr. Baldus in the District offense and in his striking in the of racial bias were most the effects observed Court, Supreme testimony, quoted midrange actual cases. His tremendously aggravated so that the cases become "[Wlhen was: sentence, going death everybody agree we’re to have a would that if it, away. only go It’s get race should these are the cases that effects a real choice decision-makers have mid-range of cases where the in the 5, n. 95 L.Ed.2d 107 S.Ct. at to do.” Id. at n. as to what 275, added). acknowledge continued to (Emphasis Dr. Baldus has n. 5 Woodworth, George Discrimina- Race See David Baldus and that fact. Penalty: An Overview the the Death in the Administration tion Research, Special Emphasis on the Post-1990 Empirical with Evidence supra, 41 Crim L. Bull. unexplained is invidious. In light safeguards de- signed to minimize racial process, bias the fundamen- tal jury justice value trial our criminal system, and the provides defendants, benefits that discretion to criminal we hold that the Baldus study does not demonstrate a constitu- risk tionally significant of racial bias affecting Georgia capital sentencing process.” 313,107

Id. at S.Ct. at L.Ed.2d 292.11

Apparently realizing McCleskey is of help little respect Evans, with to the main Study, Paternoster seizing comment included a footnote McCleskey, urges that the County supplement Baltimore would pass muster under that case. In distinguishing venire selection and Title VII cases claims, from prosecution selective the McCleskey Court ob cases, served that in the former the statistics referred to fewer entities and that fewer variables were relevant. footnote, the Court acknowledged that an unexplained statisti cal discrepancy can be said to policy indicate consistent decision-maker, one but that it was much more difficult to deduce a consistent policy by the studying many decisions of 295, unique 15, 1768, entities. Id. at n. 15, n. S.Ct. 280, L.Ed.2d at n. 15. As decisions whether to prosecute and charge what to “necessarily are individualized and involve Although holding, McCleskey that is the pointed critical Court out two other considerations that "inform[ed]” its decision. The first was slippery slope McCleskey's argument—that accepted if the Court impermissibly the claim that racial bias had capital tainted the sentenc- decision, ing only it would not be faced with similar claims as to other types penalty respect unexplained disparities but with to relating to minority groups, other justice process, other actors in the criminal or variables, arbitrary other such as attractiveness of the defendant or victim. Court limiting principle The concluded: "there is no to the type challenge by brought McCleskey. The Constitution does not require disparity that a State eliminate demonstrable that corre- potentially lates with a operate irrelevant factor in order to a criminal justice system 318-19, capital punishment.” includes Id. at 1781, Second, S.Ct. at 95 L.Ed.2d at 295. the Court noted that McCleskey’s arguments presented legislative "are best to the bodies” as responsibility—or is not the right—of ”[i]t indeed even the this Court to appropriate punishment determine particular for crimes.” Id. at 319, 107 S.Ct. at 95 L.Ed.2d at 296. variations,” among prosecutors coordination factual infinite infer- making thereby meaningless, be a State would across Id. relevance.” “of doubtful from statistics ences Statewide urges, Evans overcomes supplement, County Baltimore The racial discrimination consistent and demonstrates that concern claims, least, he very At the of one part prosecutor. on the 116 S.Ct. Armstrong, 517 U.S. United States (1996) discovery entitlement to mandates his L.Ed.2d 687 no such Armstrong provides claim. prosecution his selective mandate. American, defendants, were all African

In Armstrong, with intent possess conspiracy in court for indicted Federal conspir- of crack cocaine and grams more than 50 to distribute discovery for moved They that substance. to distribute acy were they ground indictment on the dismiss the were they because prosecution for Federal selectively chosen motion, offered an affidavit they of their support black. the Public Defend- Specialist” employed a “Paralegal from that, documentation, one of the asserted, every er, with who the Public Defend- charges closed involving 24 cases those defendant(s) were black. Over er’s Office granted discov- objection, the District Court Government’s produce certain the Government motion and ordered ery years three past all cases regarding information offenses, firearm both cocaine and charged it had which those cases. deciding prosecute its criteria including order, comply with that refused to the Government When indictment and the Ninth Circuit the court dismissed the Supreme The Court reversed. Appeals affirmed. Court the defendants dealt first with whether Supreme Court Proc. Fed. Rule Crim. discovery entitled to the under were 16(a)(1)(C). not, ruling and that they It concluded that were attack, to respect here. the broader not concern us With does Amendment, Fifth under the equal protection based ele- delineating necessary that its cases Court observed “have taken prosecution claim of selective prove ments to demanding is a one” that the standard pains explain great 320 showing necessary “the to obtain should discovery

itself be a barrier to the significant litigation insubstantial 463-64, 1486, claims.” Id. at 116 S.Ct. at 134 L.Ed.2d at 698. emphasized prosecutors The Court the broad discretion that have in which deciding prosecute cases and what charges that there is a bring, presumption “regularity” they how discretion, that, exercise that dispel order to “[i]n that a presumption prosecutor has not violated equal protec- tion, a present criminal defendant must ‘clear evidence ” 465, 1486, contrary.’ 698, Id. at 116 S.Ct. at at 134 L.Ed.2d Foundation, part from v. quoting United States Chemical Inc., (1926). 1, 14-15, 1, 6, 131, 272 47 71 U.S. S.Ct. L.Ed. 143 claim, held,

To prosecution establish a selective the Court the claimant must prosecutorial policy demonstrate that the “ discriminatory ‘had a effect and that it aby was motivated ” 465, 1487, discriminatory purpose,’ id. at 116 at 134 S.Ct. 699, States, at L.Ed.2d from v. quoting Wayte United 470 U.S. 608, 598, 1524, 1531, 547, (1985), 105 S.Ct. 84 L.Ed.2d 556 case, to establish a in a discriminatory effect race “the claim- ant must that similarly show situated individuals aof differ- prosecuted.” ent race were not Armstrong, United States v. 465, 1487, supra, 517 116 at U.S. S.Ct. 134 L.Ed.2d at 699. added). In that (Emphasis regard, emphasized the Court Wittman, contrast two of its earlier cases—Ah Sin v. 198 (1905), U.S. 49 1142 S.Ct. L.Ed. and Yick v.Wo (1886). Hopkins, 118 U.S. 6 S.Ct. In L.Ed. Sin, rejected Ah the Court had the claim a Chinese defendant that the law under he prosecuted which was solely enforced against people Chinese because it did not allege that there were people against non-Chinese whom it Wo, could have been but was not enforced. Yick the Court granted relief on a claim that an prohibiting ordinance operation laundry of a in a building wooden had been enforced against individuals applications permits Chinese whose had been denied but that applicants 80 non-Chinese had been granted permits. expressly rejected

The Court Armstrong’s argument Batson, Underwood, cases such as and Hunter supra,

321 (1985) 222, 1916, against 222 85 cut 105 S.Ct. L.Ed.2d U.S. failure showing be a there “any requirement absolute v. United States situated individuals.” similarly to prosecute 1487, at 134 467, at 116 517 U.S. S.Ct. Armstrong, supra, Hunter, it that, in where at 700. The Court noted L.Ed.2d been who had disenfranchising persons a invalidated law had there direct moral involving turpitude, of crimes convicted for the purpose had been enacted law evidence it had “indisputable evidence” that disenfranchising blacks and effect. the desired pro- costs to the Government significant

Because required—assembling discovery likely kind of to be vide the support from files that rebut might its documents claim, resources, disclosing prosecutorial diverting defendant’s for rigorous that the a justifications Court held strategy—the claim prosecution of a for the selective standard elements discovery rigorous a standard correspondingly “require Armstrong, supra, v. of such claim.” United States aid 1488, L.Ed.2d at That at U.S. S.Ct. similarly treatment of “some evidence differential requires Id. at members of other races or classes.” protected situated offered study 116 S.Ct. at 134 L.Ed.2d at 702. Armstrong not constitute sufficient to show did evidence claim, in that prosecution elements of selective the essential individuals not black and could identify it “failed who were for the for which prosecuted respondents have been offenses Id. charged, prosecuted.” but were were case, was not a death did not involve Armstrong penalty Paternoster, by Dr. analysis approaching statistical that done on fail how permit discovery and did not the issue. We to see mandates the Evans seeks. A case more point, relief Brown, claim, Evans’s is Belmontes v. pointedly dooming more (9th Cir.2005), rev’d grounds 414 F.3d 1094 on other sub nom. — Belmontes, U.S.—, 127 S.Ct. 166 L.Ed.2d Ayers (2006), mention, which has failed even to much less Evans attempt distinguish.

Belmontes was a Federal habeas corpus action arising from a conviction and death imposed sentence in State court. Among complaints, other contended, Belmontes as does Ev- ans, that the pursue decision to the death penalty was infected by racial discrimination against defendants who killed white victims, and in support of that charge, he produced a statisti- cal study of eligible death in homicides the county where he was prosecuted. The study was similar in methodology and conclusions to the Baltimore County supplement prepared by Dr. Paternoster. Citing Armstrong, the Ninth Circuit Court that, held to succeed in a claim, selective prosecution Bel- montes needed to show both discriminatory effect and that in decision-makers his case acted with a discriminatory purpose—that prosecutor in his case pursued a death sentence because of the race of his victim.

Belmontes offered no direct evidence on that issue but entirely relied on the statistical study. The court found it unnecessary to determine whether a analysis statistical alone because, could suffice in motion, response to the prosecu- that, tor stated when he pursue decided to a death sentence against Belmontes, he had reason to believe that Belmontes had committed another murder as well and that there was in evidence the record to provide faith good basis for that Thus, belief. held, the court “there appears to be a legitimate race-neutral prosecutor reason for a to seek a death sentence in case, this particular and therefore sufficient to evidence rebut the inference of discrimination raised by Belmontes’ Id. at 1129. The racial discrimination claim study.” statistical was denied.

In considering the force of Armstrong and, indeed, Evans’s argument entire grounded on studies, the Paternoster we must recall from our discussion of the Wiggins issue the context in which the issue arises. Armstrong a direct appeal from the dismissal indictment, of a criminal and at issue was the validity dismissal; of that Belmontes was a Federal action, habeas corpus an action of right. That is certainly not the case here. The issue is not whether a lower court erred as a matter of law in rejecting the statistical Evans, it abused its only but whether evidence offered post the 1995 reopen in his third motion denying discretion in the presented, this claim case to allow new be conviction that, prosecutor’s if rummage through allowed hope cases, might find some more he than other files of racial discrimination. evidence issue, appear to be notwithstanding what resolving both the and omissions significant

some weaknesses some ad- County supplement, study and 2004 Baltimore Paternoster, seemingly apparent Dr. others are mitted this appeal, unexplained, accept, purposes we shall that, penalty in a death greater likelihood they show a County, penalty the death arising case Baltimore eligible a black statistically likely pursued against person be more against victim than a defendant murders a white who stated, already we racial combination. For reasons other are the evidence of racial only note that statistical studies prosecutor County of the Baltimore part on the discrimination is no evidence that by Evans—that there other offered victim(s) role played any or of the race offender in pursue decision to the death prosecutor’s whatever the Evans, in 1983 or in 1992. penalty against either disparities demonstrated Paternoster supposedly have been in the Study County supplement Baltimore are new. public nearly twenty years. They domain for time, methodology has been refined over but The statistical constant, fairly from it the conclusions drawn have remained in study least since Public Defender’s 1987. This issue at post in his first conviction could have been raised Evans 1990, 1992, in in post in his second re-sentencing case at his 1995, in in habeas corpus case his first Federal conviction 1997, for petition corpus in in his second Federal habeas action 2000, in reopen post in his motion to the 1995 conviction first 1999, that in reopen in in his second motion to case case Instead, 22 from first years he has chosen to wait his 14 from his second until eleventh sentencing years hour, were executing as the date and time for sentence imminent, right to to raise this issue and demand search

324 of the 152 through eligible arising all death cases Baltimore if he County since 1978 see could find some clue as to why Attorney the State’s chose seek or not seek the death and, in each of penalty those cases if found what he he fact, a regarded suspicious as examine or cross-examine the with prosecutor respect to her decision in or all of any those cases. from

Apart this claim that withholding deliberate could presented occasions, well have on several been earlier he has show, evidence, any failed to from of the statistical that there was any person similarly other situated to himself against whom the death was not penalty sought because the victim black—who, had, hire, was County, Baltimore for murdered two order them people prevent testifying from judicial notice, criminal case. have pending already We taken occasions, on at three least rise to giving “[t]he murders this were prosecution as heinous as those in case to come present capital before us under the punishment statute. No could have more killings premeditated been and deliberate State, than those here.” Evans v. supra, 304 487, 539, Md. State, 1261, 1288; supra, Evans 456, 499 A.2d Md. 461- State, 562, Grandison v. 565; 685, 886 A.2d Md. denied, cert. (1986), 506 A.2d U.S. S.Ct. (1986). 38, 93 L.Ed.2d 174 It would seem rather fruitless to law, a matter require, post case that conviction was concluded nine be years ago reopened prosecu so that the obvious, tor if could confirm the there ever a case the death it was penalty, aspect, Evans’s—the cold commercial brutality, firing nineteen bullets close at range people, two and the that it struck of our very fact heart criminal justice system, witnesses to them from murdering prevent Belmontes v. in a See testifying pending criminal case. Brown, supra. point We recall the study made the Baldus case, on in McCleskey—that, commented the extreme “everybody where would that if agree going we’re have a sentence, it, death these are cases that get should the race away.” factors go

325 complaint, noted, prosecution his from selective apart As study shows 2003 Paternoster that the argues Evans Maryland operates throughout penalty the death imposition type This biased manner. geographically racially in a and Evans offers by McCleskey, directly addressed attack there. employed reasoning for a support rejection no claim of this kind. McCleskey, no court has allowed a Since McCleskey concerning the reasoning accept The courts Equal a statewide establish general failure statistics violation Unusual Punishment or Cruel and Protection discrimina specific to assert some a defendant require instead State, 692, 942 Lee v. 327 Ark. intent their case. tory State, 928, v. Cochran 231, (1997); 547 So.2d 930 237 S.W.2d State, 161, 904, 163 v. 440 S.E.2d Jones (Fla.1989); 263 Ga. denied, 154, 853, 115 130 L.Ed.2d cert. (1994), U.S. S.Ct. 513 Britz, 15, 446, 124 Ill.Dec. 528 People v. (1994); Ill.2d 123 93 denied, 1044, cert. 703, (1988), 489 109 U.S. 718-19 N.E.2d State, v. (1989); Underwood 1100, 242 708 103 L.Ed.2d S.Ct. 209, v. 18, (Miss.1998); 929 Taylor, State S.W.2d 37-38 So.2d denied, (en 1152, cert. (Mo.1996) banc), 117 519 U.S. S.Ct. 221 Reeves, v. 511, State (1997); 258 Neb. 1088, 222 137 L.Ed.2d State, (2000); Lane 1156, v. 151, 110 Nev. 604 N.W.2d 160-61 (1994), 114 grounds, vacated other 1358, 1363 Nev. P.2d 881 Hale, 140, v. (1998); People 299, 173 Misc.2d 661 956 P.2d 88 v. Byrd, State 457, 32 Ohio (N.Y.Sup.Ct.1997); 467 N.Y.S.2d denied, 611, (1987), cert. 79, 484 U.S. 512 N.E.2d 619 St.3d Commonwealth (1988); 1037, 763, 108 L.Ed.2d 780 S.Ct. 98 (2002) Marshall, 1211, 545, (rejecting 1228 570 Pa. 810 A.2d has failed to “Appellant based on statistics because argument findings link of this statistical ab between the provide denied, cert. case”), U.S. particular and his stract Evans, State v. (2003); 838 S.W.2d 157 L.Ed.2d S.Ct. denied, 1064, 114 185, 196 (Tenn.1992), cert. U.S. S.Ct. State, Bell v. (1994); 51-52 938 S.W.2d 126 L.Ed.2d argument Protection (rejecting Equal (Tex.Cr.App.1996) “[bjecause us to any fails direct appellant on statistics based in his jury discrimination prosecutorial proof purposeful Punishment Cruel and Unusual rejecting case” and particular 326 denied, cert. 827,

challenge), 90, 522 U.S. 118 139 S.Ct. Commonwealth, Turner v. (1997); 543, L.Ed.2d 46 234 Va. 364 denied, 483, cert. (1988), 1017, S.E.2d 490 486 U.S. 108 S.Ct. Davis, 1756, (1988); In re 100 L.Ed.2d 218 647, 152 Wash.2d 1, (2004) 101 P.3d (general 58 to statistics insufficient render unconstitutional). penalty death This holds true for reasoning Hairston, See State v. asserted as geographic disparities well. (1999) 496, 1170, Idaho 133 988 P.2d (rejecting 1192 claim solely study based on statistical demonstrating that state’s penalty applied death in significantly more often urban denied, counties), cert. 1134, 2014, 529 U.S. 120 146 S.Ct. (2000).12 L.Ed.2d 963

The Maryland result should no be different than the State, v. country. consensus around the supra, Calhoun 563, 45, 297 Md. rejected 468 A.2d we arguments Calhoun’s that the Death Maryland Penalty Statute the Eighth violated and Fourteenth Amendments of U.S. Constitution and Articles 16 25 of Maryland Rights by Declaration of its governing lack standards prosecutor’s exercise of discretion whether seek the death penalty. Court held: Only allowing one has general state even come close to a statistical study showing disparate impact racial in the administration of the penalty general death establish a constitutional violation. In State v. Marshall, 109, 1059, (1992), denied, 130 N.J. 613 A.2d 1110 cert. (1993), expressed U.S. S.Ct. 122 L.Ed.2d 694 the Court willingness McCleskey to contradict Jersey based on the New Consti tution, saying that "were we believe that the race of victim played significant race of the part defendant capital-sentencing measures, Jersey, decisions in New we seek would corrective and if that not, failed we policy, could consistent with our State’s tolerate discrimi However, system nation threatened the foundation of our of law.” Jersey yet proof systematic New has to encounter of such discrimina Loftin, (1999), tion. In State N.J. A.2d 129 the court general rejected reaffirmed its from statement Marshall but statistics pointed similar those involved in case for this various reasons out Master, Special finding their 'relentlessly defendant "has not disparity imposition document[ed] the risk' of racial in the of the death penalty” required penalty be would to invalidate the under the state Marshall, quoting constitution. supra, Id. at State v. 613 A.2d at

1111-12. by prosecutors of indiscretion any specific evidence “Absent irrational, inconsistent, discriminatory resulting statute, claim penalty Calhoun’s of the death application in the is difference To extent that there cannot stand. State, around the attorneys various State’s practice to assure be intended our review would proportionality in a imposed disproportionate not the is penalty death manner.” State, Md. 287 A.2d at See also Tichnell

Id. at 468 (1980) the constitutionality of (upholding 415 A.2d 830 face). its Maryland Penalty Death Statute that, if regard in even contends this Finally, Evans Eighth and pass not muster under the complaint his does Constitution, it Federal does Amendments the Fourteenth the Declaration Maryland under Articles provisions those consistently have construed Rights. We and are counterparts their Federal being pan in materia with (or broadly be read more they not convinced that should did in hold that the Circuit Court this context. We narrowly) third motion to denying not its Evans’s abuse discretion in No. judgment conviction case and the reopen post 123 will be affirmed.

IV. NO. addressed, No. previously Unlike claims for in the Circuit Court independent from an action arises plaintiffs, Baltimore filed Evans and three other City by (DOC) they enjoin the Division Correction sought which existing protocols. its carrying injections from out lethal under a temporary is from denial of their for request appeal restraining is temporary order restraining order. Because though from an injunction, appeal, nature of an such Code, 12- order, § interlocutory Maryland under permitted (CJP). 303(3)(iii) com Proc. Article Two the Cts. & Jud. first, are protocols: they are about the plaints made DOC 3-905(a) Code, § of the with Correc Maryland inconsistent (CS), prescribes the method tional Services Article which second, execution injection; lethal they constitute a regulation that adopted was not conformance proce with dural requirements State Administrative Act Procedure (APA).13 Standing

A. The State’s first response complaints these is that (1) we should address them co-plaintiff organi because them, (2) standing zations have no to raise Evans failed to and, exhaust available administrative remedies under both the Litigation Code, Prisoner Act (Maryland §§ CJP 5-1001 5-1007) through law, and traditional is pre administrative he cluded from challenging protocols through execution judicial direct action declaratory and injunctive relief. We agree with the State the three no organizations have standing on their to pursue own but shall litigation, we consider made challenge Evans. long that,

We have held to the Maryland view under com- mon principles, law an organization standing “for to have action, bring judicial it must have ordinarily a ‘property interest its own—separate and distinct from of its that ” individual members’ and that “an individual or an organiza- tion ‘has no in court standing unless he has also suffered some kind of special from such in damage wrong differing character ” and kind from that suffered by general the public.’ Medical Waste, Maryland 596, 612-13, v. 327 241, Waste Md. 612 A.2d (1992), 249 quoting part in from Citizens P. & H. v. Ass’n Exec., 333, County 345, 681, (1974) 273 Md. 329 A2d and Rogers Comm’n, v. P. Cap. 687, 691, Md.-Nat’l & P. 253 Md. brief, Although captions argument in his being Evans his as that the protocol grave execution the the violates APA and statute "and creates a inadequately risk that an inmate will be sedated and suffer an excruci- death,” ating his argument conceded at oral counsel that he was not making argument protocol the an that execution constituted a cruel and punishment, unusual either State under or Federal Constitution. argument Counsel stated that pending such had in been made action any in Federal court. We regard shall therefore cruel and punishment knowingly unusual as having voluntarily claim been respect appeal. waived with to this See, v. (1969). recently, Duckworth more 253 A.2d (2006), Teach- compare Deane, 524, 903 A.2d 883 393 Md. Education, 379 Md. Board ers State Union that finding but confirming principle that (2004), A.2d damage special that did suffer organization question standing. necessary to provide part standing on case, only asserted basis

In this capital they oppose all is that organizations of the three not is penalty the death see that and desire punishment of law. all, in violation especially carried out—at but it to eliminate that works the NAACP asserted complaint, and, opposed penalty the death long and has prejudice racial penalty of the death impact particular, disproportionate The ACLU criminal defendants. on African-American all in the State people it to ensure that averred that works and that speak they free think and choose are Maryland moral, practical, capital punishment it to oppose continues CASE, The organization, third grounds. and constitutional and individuals united groups that it is a coalition of posited Maryland. organizations All three penalty end the death that officials they seeing that had an interest in State claimed ensuring the law and operate within boundaries of the Constitution executions are carried out violation Maryland law. group opposed or mere fact that an individual standing not confer public policy to a does particular in court. If were otherwise—if challenge policy but not public policy with some person group disenchanted free it in were to seek adversely special way affected some courts, is invalid—the policy judicial declaration branch, up setting legislative public would end rather than the Judiciary. the role of the proper and that is not policy, that State organizations—ensuring by interest asserted out are not carried operate and that executions legally officials of all Maryland no than the interest unlawfully—is different pre have not organizations alleged, three citizens. The any allege, they that will suffer sumably legitimately cannot special or if damage injury the current execution protocols and, adopted by implemented, the DOC are they consequently, no on their standing challenge have own protocols. those with

The situation Evans is requires different and some contextual explanation. are with dealing We here three agencies—the Department Safety of Public and Correctional (DPSCS), Services which is a principal department of the Government, DOC, Executive Branch the State which is a unit within DPSCS vested with responsibility over the State facilities, (IGO), correctional and the Inmate Grievance Office a unit that also is within DPSCS and was created address certain complaints grievances on the part facility. individuals confined in a DOC Assembly General enacted the Prisoner (PLA) Act Litigation in order to complement the Federal (42 Litigation § Prison Reform Act 1997e), by U.S.C. enacted 5-1003(a) Congress year § earlier. CJP provides that “[a] prisoner may not maintain a civil action prisoner until the has fully all exhausted administrative remedies resolving 5-1003(b) or complaint grievance.” Section requires pris- oner to attach the initial complaint “proof administra- exhausted,” tive remedies have been including proof prisoner complaint filed a or grievance with the appropriate agency, proof the administrative disposition of the com- plaint or grievance, proof that the prisoner appealed the disposition administrative to the appropriate authority, includ- ing proof judicial review. Evans is undisputedly “prison- er,” as that § term defined CJP 5-1001(g)—“a person [DPSCS]____” who is in custody also It is undis- puted that he failed to attach to his complaint any in No. 122 proof that he had remedy. exhausted administrative Code,

Maryland §§ 10-210, CS 10-201 through create the IGO and permit individual in a confined DOC correctional facility who a grievance against has an official employee complaint DOC submit a to the IGO within the time and in the required regulations manner adopted the IGO. 10-206(b) however, that, Section provides, if the DOC has

331 particular grievance to the grievance procedure applicable fair, to be reasonable procedure IGO considers the be procedure the DOC IGO, may by regulation, require to the IGO. The complaint of a submission exhausted before those matters. indeed, governing has, adopted regulations IGO that, extent that a DOC to the provides COMAR 12.07.01.03D griev- particular to a procedure applies remedy administrative submit- ance, procedure before the inmate must exhaust and B. to the COMAR 12.07.01.06A. IGO. ting grievance days 30 filed with IGO “within that a be require grievance 30 being or within grieved, of the occurrence from the date known of the or have knew should days grievant after the DOC that an from the administrative appeal occurrence” and days grievant’s from the filed within 30 remedy procedure be of Correction or response of a from the Commissioner receipt response date the Commissioner’s was days 30 within due. administrative remedy procedure for adopted

DOC has At the times adjustment grievances. of certain inmate case, forth DOC Directives 185- relevant to this was set to be procedure 185-700. The was declared through 101 policies to “institutional to related applicable grievances 2001) (effective February 185-101 procedures.” Directive submit Request for Administrative prisoner to required days from the date “the Remedy to the warden within from occurred” or the date the inmate complaint incident the ensuing “of the incident.” Under gained knowledge first series, required was to Directives the 185 warden request days, prisoner within and the was respond response from the appeal an unfavorable required then days to the Commissioner Corrections within warden Commissioner, response. The whose receipt after procedure, had 30 purposes was final DOC decision step complaint the IGO. days respond. The next Secretary, 21, 2005, Massey decided On November this Court Services, Safety Public and Correctional pt. De (2005), 886 A.2d 585 we various Md. where reviewed pursu- of DPSCS adopted Secretary Directives either § ant to 2-109 or pursu- CS the Commissioner of Correction § ant to 3-205. prisoner, Massey, CS had sought ad- review, pursuant 185-100, ministrative to DOC Directive discipline pursuant meted out to DPSCS Directives 105-4 and adopted by DPSCS, 105-5 the Secretary of claiming that the Secretary’s Directives they were valid because constitut- ed regulations under the APA that had not in adopted been conformance with the requirements of that Act. agreed We Massey with that Secretary’s the Directives regu- constituted APA, lations under they the that had not in adopted been statutory conformance with the requirements, they that were therefore ineffective. We delayed the issuance our in mandate that case for 120 in days order the give an Secretary opportunity pursue the statutory require- ments.

Although the DOC Directive 185 series in implicated was Massey, ruling Directives, our did not with those only deal but 9, Secretary’s 2005, with the Directives. On December Evans filed a for administrative request remedy with the appropriate warden, that contending protocols the DOC execution were variety reasons, for a including unlawful they that constitut- regulations validly ed that had not been adopted. He thus argument made same as to protocols the the DOC that Massey had with made to the respect Secretary’s Directives. 3, 2006, warden denied the on request January 9, filed an January Evans to the appeal Commissioner. With- for waiting response, out the Commissioner’s he and three organizations, on January filed this action for declar- atory injunctive relief, raising the same presented issues 1, 2006, in the proceeding. February administrative On court request denied Evans’s for a temporary restraining preliminary injunction, order and from which this appeal was matter; taken. final judgment No has been entered in case pending remains the Circuit Court. February 27,

On 2006—after the Circuit Court entered its order denying temporary injunctive relief—the Commissioner rejected Evans’s administrative appeal, whereupon, on March 13, appealed 2, 2006, Evans to the IGO. On June IGO, that for the concluded Judge, acting Law Administrative § with CS 3-905 not inconsistent protocols were the execution they had ineffective because of them were portions but with the APA. On June in conformance adopted not been the latter determination and rejected Secretary of DPSCS (EOM) Manual Operations that the Execution concluded injection— the manner its the lethal mixture and specifies regulation Evans—“is challenged by procedures rule-making provi- to the APA adoption pursuant requiring determination, Or- Secretary’s That embodied sions.” ruling in the matter. der, final administrative constitutes the 26, 2006, judicial review petition Evans filed a July On City. Court for Baltimore rulings the Circuit the adverse noted, the Federal response PLA enacted in As That Act—42 Act. U.S.C. Litigation Prison Reform may brought “with no action be § 1997e(a)—provides § any 1983 or prison under U.S.C. respect to conditions” confined law correctional prisoner other Federal are are remedies as available facility “until such administrative § term “pris- 1997e does not define the Although exhausted.” 18 conditions,” have looked to U.S.C. some Federal courts remedies in 3626, with the kinds of available § which deals conditions. Section respect prison with to civil actions to condi- respect prison 3626(g)(2) defines “civil action with arising under Federal meaning “any proceeding civil tions” as of or the to the conditions confinement effects respect law with persons on the lives of government actions of officials of corpus proceedings in other than habeas prison,” confined See prison. fact or of confinement challenging the duration (6th Francis, Cir.1999); Treesh v. v. 641 Freeman 196 F.3d 2000). (S.D.Ohio F.Supp.2d 122 887 Taft, the Federal Act has limited time that been effect, term “with have construed the the Federal courts of broadly, conditions” to include claims respect prison very to harassment, inter force, provide to qualified failure excessive needs, hearings, indifference to medical disciplinary preters prisoners, other failure to protect prisoner to from failure 334

comply Act, with the Americans With of Disabilities and denial See, rights. First Amendment for example, v. Larkin Gallo (7th Cir.2001), denied, 992, 266 F.3d 718 way, cert. 535 U.S. (2002) (excessive force), 122 S.Ct. 152 475 L.Ed.2d (7th Cir.2001) Litscher, Johnson v. (harassment), 260 F.3d 826 Corrections, (8th Castano v. Dept. Nebraska 201 F.3d 1023 Cir.2000), denied, cert. 531 U.S. 121 148 S.Ct. (failure (2000) L.Ed.2d 193 to provide interpreter); v. Witzke Femal, (7th Cir.2004) (medical conditions); 376 744 F.3d Bra (C.D.Cal.2002) (failure v. dy Attygala, F.Supp.2d 196 1016 to York, protect), City v. New Carrasquillo F.Supp.2d (S.D.N.Y.2004) (ADA violation), Taft, supra, Treesh (denial F.Supp.2d of condemned to right inmate’s make execution). prior case, last statement to We are aware of no however, us, and none has been cited to in which the term has been held include an attack on the manner executing penalty. death 1997e(a) §

Although declares that “no shall action” be brought by prisoner institution, in any confined correctional the Act has been interpreted precluding only actions court, and, indeed, it Federal was that limitation that prompt ed concern leading the enactment of PLA—that prisoners would lead § file actions under 42 U.S.C. and other Federal statutes enforceable State court in the State courts and thus overwhelm the State courts with often litigation. Medical, frivolous See Adamson v. Correctional 238, 261-65, (2000). 359 Md. 753 A.2d 513-15 statute, The Maryland though perhaps on the modeled Federal, is constructed differently. somewhat Unlike Federal approach stating that “no action ... with respect prison may conditions” be brought absent exhaustion avail- PLA, remedies, 5-1003(a)(l), § able the administrative CJP tracks more the verbiage § 18 U.S.C. It a precludes 3626. (c) § “civil action” that and defines term in 5-1001 a “legal action ... that to or relates involves a prisoner’s conditions added). (Emphasis 1997e, § Unlike U.S.C. confinement.” applies which to respecting actions “prison conditions” but term, does define that the PLA applies involving to actions meaning that term as and defines of confinement” “conditions circumstance, prisoner’s or that involves event “any situation (Em- incarceration, or supervision.” custody, transportation, added). phasis chal- protocols the little that execution

There can be doubt of his significant way aspects in a Evans affect lenged by Taft, incarceration, Treesh v. supervision. or See custody, Nor, legislative light F.Supp.2d supra, the PLA, much that General history of can there be doubt the have a broad reach and for that statute to Assembly intended to all administrative prisoners exhaust available require to to condi- prison filing judicial relating actions remedies before com- Evans an administrative very The fact that filed tions. it to conclusion demonstrates plaint ultimately pursued and did procedure exist. administrative imposes requirement no pleading The Federal Act remedies. allege to administrative prisoners exhaustion to action that an affirmative defense the Failure to exhaust is by the defendant. See Mitchell pled must and shown be (3rd Cir.2003); McGinnis, Horn, Abney v. 318 F.3d 523 (2nd Cir.2004). is more Maryland statute F.3d 663 5-1003(b) noted, requires prisoner § the to As CJP onerous. complaint reme “proof attach to the initial administrative (1) exhausted,” that the including proof prison dies have been agency, with the complaint grievance appropriate er filed (3) (2) prisoner administrative disposition, that the the appropri disposition has the administrative “appealed” proof prison If authority, including judicial ate review. fact, has, in exhausted his or her administrative remedies er fact, § 5- of that simply proof but has failed to attach 1003(b)(3) the case the court to “dismiss without requires complaint leave amend prejudice grant prisoner necessary to demonstrate provide proof If has administrative remedies.” fully exhausted the prisoner actually administra prisoner has not exhausted available 5-1003(c) remedies, § the court to dismiss requires tive (“A a civil court shall dismiss action without leave amend action if prisoner filing the action not completely has remedies.”). exhausted administrative (and of light requirements these lack stand ing part co-plaintiffs), the three the Circuit Court 5-1003(c). should have dismissed the complaint § under Had done, that been completed Evans could have the administra process proceeded tive through judicial review action to litigate his challenge.

If the administrative proceeding had never been completed, we be would to vacate required the Circuit Court order and remand the case for that court to dismiss the action. It is clear, however, that the process administrative has now been completed. Secretary The of DPSCS has a final made admin (1) istrative determination that the execution protocols do not 3-905, (2) § violate CS do not constitute regulations. issues, Those fully which have been briefed and in this argued Court, are purely legal ones that no require further evidentia ry For development. us to direct the dismissal of the com plaint in January, filed so the Circuit Court could consider essentially anew the same issue in the context pending judicial action, review from which a appeal new would arise, necessarily would be a judicial useless waste of re PLA, sources. purposes and, of the indeed, of the common law exhaustion requirement, have been met.14 Consistency

B. with the Statute Title 9 of subtitle the Correctional Services Article sets forth procedures for executing a sentence death. CS 3-905(a) § states:

“The inflicting punishment manner of death shall be the continuous intravenous administration of a quanti- lethal case, 14. We proceed caution that this is an unusual and our decision to aspect appeal with this should not be taken a license for prisoners subject proceedings to file court having to the PLA without fully exhausted their administrative remedies. The law is clear. If the complaint proof does not contain process that the administrative has exhausted, been it must be dismissed. drug or other similar ultrashort-acting barbiturate ty of until agent paralytic with a chemical in combination according accepted death pronounces physician licensed practice.” of medical standards 3-906, di- §CS which is supplemented provision

That suitable and provide to a of Correction rects the Commissioner out view, carry to in which public from place, enclosed efficient to necessary execution, the materials provide all of to an to execution, trained individuals to select the and perform 3—906(c) provides injection. Section the lethal administer and lethal agent the paralytic who “administers an individual Those practitioner. health care be a injection” need in 1994. Assembly the enacted General were provisions Laws, ch. See 1994 Md. an Execution adopted Ch. enactment of DOC

After (EOM) virtually aspects all govern to Manual Operations injection. lethal the death sentence implementing of various responsibilities logistics, specifies EOM com- procedures personnel, pre-execution DOC officials and execution, post a execution receipt of warrant mencing upon special provide unit to of a responsibilities procedures, execution, responsibili- and the awaiting security for inmates are procedures of those a command center. None ties of Evans. challenged by Injection” as “[t]he the term “Lethal defines

The EOM ultrashort-acting a of an quantity lethal administration with a chemi- in combination drug or other similar barbiturate pronounces death physician a paralytic agent until licensed cal practice.” of medical That according accepted standards omits statutory language except tracks the definition Attached preceding “administration.” the word “continuous” of, Injection the EOM is Lethal to, presumably part Checklist, the actual detail prescribes which considerable it. of injecting and the method of the lethal concoction contents complaint. of Evans’s subject That is the (1) is to consist of specifies injection that the The Checklist (2) syringes, 60 cc pentothal of sodium two grams 120 cc/3 (Pavulon) pancuronium cc/50mEq. bromide in one 50 cc (3) syringe, cc/50mEq. of potassium chloride in one 50 cc Each of syringe. drugs those is administered the rate of ml/second, each, 1.5 administered, in the dosage is believed be lethal on its own. Sodium pentothal is sedative; stops Pavulon potassium the breathing; chloride stops the heart.

Apart from preparations, process execution begins when inmate is strapped table, the execution line is IV arm, inserted into each and a saline solution commences to run through the line into the inmate. The inmate is checked to for observe swelling discoloration and to that the assure is flowing. solution At appropriate signal, first sy ringe of sodium pentothal is syringe administered. The is then removed and the second syringe pentothal of sodium is removed, administered. That is syringe then and the saline solution is allowed to run ten seconds. At point, is Pavulon administered. The Pavulon syringe then re and, moved again, the saline solution is to allowed run for ten Finally, seconds. potassium the chloride is administered. syringe That is removed and saline the solution flows for another ten seconds.15 When the EKG monitor indicates that no heart is activity occurring, the physician advises the execu tion team leader the physician pronounces death. See EOM, Injection Lethal Checklist at 4-6.

Evans this complains procedure deviates from the first, claims, statute in he ways: three the statute calls for the administration of drugs, third, two but the EOM adds a a second, second paralytic agent; the statute requires continu- ous intravenous of administration an ultrashort-acting barbitu- rate, but the EOM calls two of pentothal; “bursts” sodium third, 3—906(c)(1) § whereas CS requires the Commission- to er select professionals execution who are “trained to admin- injection,” ister the lethal the EOM requires the only hiring It drugs is not clear from the EOM whether all three lethal are and, injected so, through why one IV line if a second line is inserted.

339 training what kind specify persons but does “trained” required. issue is that the complaint to this

A short answer present- §CS 3-905 was -with the EOM is consistent whether (2004) 538 State, 851 A.2d 381 Md. in v. ed Oken Oken, “the we held on the merits. rejected by us implemented by to intended be of execution method Mary- provisions not violate Division of Correction does of the (1999, § 3-905 Correctional Cum.Supp.) 2003 land Code punish- cruel or unusual Article or constitute Services ment____” us 580-81, at 538. Evans asks 851 A.2d Id. at holding clear, precedential ignore or overrule to either opinion curiam without per expressed because was “truncated He out that points comment. explanatory judge, Court Oken a Federal District in Oken led litigation” (D.Md.2004) quality, to Sizer, “doubt F.Supp.2d v. to the case and extensiveness, procedures” or fairness of neglects our He effect to decision. give judicata to res decline mention, however, a clear obli- counsel has ethical which to later, Court vacated do, days Supreme that two gation judge the District Court by ordered stay of execution (Sizer Oken, 916, 124 159 L.Ed.2d S.Ct. U.S. (2004)) and, denied the remand, request- the District Court against sentence execution death stay ed and allowed proceed. Oken summary per form of a in Oken was ruling

Our because, Evans, more than like Oken waited order curiam execution, present scheduled very eve his years, until it, fair howev- give did consideration the claim. Court Bell. We Judge filed Chief er, the dissent evidenced execut- that death sentence to be permitted never have would legitimate that Oken had a if reason believe ed we had the of execution stayed warrant Because we have claim. raised to consider the other issues against Evans issued him, argument. his in full to respond we shall statutory construction. ultimately is one

The issue or violates is inconsis- Injection Lethal Checklist the Whether § tent with depends CS 3-905 properly how that statute is construed. We can quickly dispose of two of Evans’s claims. argues He that the EOM of administering method the “ultras- hort-acting from barbiturate” deviates the statute in that administering calls for “in drug separate bursts, the two where the calls for its [statute] ‘continuous intravenous admin- istration’ until is death.” There no such deviation. Under procedure, EOM is continuously. barbiturate administered and, It is inserted in advance into two 60 cc syringes, as soon administered, as one is is syringe drug removed and the injected. in the second syringe is There is no flushing saline solution injections. between the two fact The mere DOC has chosen to administer the cc barbiturate in two syringes, injected first, the second immediately after rath- er than in one 120 cc syringe, does not make the administra- tion non-eontinuous.

The argument second that may summarily be dis posed of is that not persons DOC has selected “trained to injection.” administer the lethal Evans has no utterly offered evidence in this case to support that but complains assertion only that the EOM does specify “what type training required.” Neither does the statute. only argument of more worthy intensive consid

eration lies in the assertion that specifies statute only administration of one chemical paralytic agent, whereas the EOM for the calls administration of two—Pavulon and potassium whether, chloride. The question is the Legis when lature directed that there be administration of “an ultras hort-acting barbiturate or other similar drug in combination added), with chemical paralytic agent” (emphasis it intended to preclude the use of more than one chemical paralytic “an,” “a” agent—whether statute, used necessari ly implies singular. often,

As we have held so and most recently Park, Oakland v. Mountain 301, 316, Lake Md. 896 A.2d (2006), Pickett, 411, 427, and Frederick v. 392 Md. (2006), 897 A.2d prime objective construing

341 intent. legislative implement is determine to statutes Legislature, actually used language to the look first We no need go we unambiguous, is clear and language if that hand, is not intent, to the issue at If as relevant further. alone, however, may we statutory language from the clear so indicators, including external and reliable relevant consider of the statute. history legislative articles, in are or “an” indefinite articles “a” The however, not, They “the.” do to article contrast the definite mean take their singular, generally but necessarily imply they are used. from the context which regard in that ing Co., 676, 128 96 Securities W.Va. Mortgage Deutsch v. See (1924) (“The may sometimes 793, article ‘a’ 795 indefinite S.E. intended, of a one, or it mean one only may is where one mean context.”); v. Union Bank number, upon National depending (“[T]he (1886) 794, 257, 4 N.E. 795-96 141 Mass. Copeland, It is often used necessarily a term. singular ‘a’is not particle than one applied then to more ‘any,’ of and is in the sense 714, 350 v. 43 A.D.2d object.”); Spies, Lewis individual (1973) (“The ‘a’ is not neces 14, 17 indefinite article N.Y.S.2d ‘any’ rather It often used mean sarily a term. is singular ”). as “a” or “an” ‘one.’ courts have construed than Most Lindley one. just as not See meaning “any” and restricted (“The (1944) 832, 506, article Ill. 56 N.E.2d 838 Murphy, v. 387 such singular not used in a sense unless generally ‘a’ is statute.”); Chavira language is from the intention clear (1958) (“a” State, 115, 120 197, 319 167 Tex.Crim. S.W.2d v. Bank v. as First American Nat. “any”); the same means (Tenn.1987) 417, (same); Olsen, Application 421 751 S.W.2d (Sup.Ct.Kings 207 529 George Corporation, N.Y.S.2d Hotel St. Co.1960) (same); St. 78 N.E.2d Snyder, State v. Ohio Com., (1948); Harward 229 Va. compare (1985). .2d S.E evident, then, Assembly

It that whether the General is lethal mix more the inclusion preclude intended determined, a matter of agent cannot be paralytic than one Legislature law, of the statute alone. language from the say did not “one paralytic agent,” which, chemical if intended, it turn, then, what it could have done. We need intent, to other indicia of the most cogent relevant and which, think, we is the legislative history the statute.

Prior to the 1994 legislation, Maryland gas used the cham- gas—as ber—lethal the means the executing death sen- The to injection tence. switch lethal was the by recommended Commission on Governor’s the Death Penalty in its 1993 Report. See The Report the Governor’s Commission on the Death Penalty, supra, at xx and 214-18. The Commission noted that the historical method in Maryland execution was hanging and that in Legislature substituted lethal gas because that method regarded was less painful as dignified more than hanging either or electrocution. The added, however, Commission that the national trend had more recently away moved from gas lethal it thought because was by kill asphyxiation and that the suffocation or strangulation accompanying asphyxiation pain could cause extreme long said, as Maryland, twelve minutes. only was the State then mandate that method. Id. at 215. rejection The of lethal gas had prompted at least 24 States to substitute lethal injection as the method execution. The Commission injection advised that “[t]he fast-acting barbiturate or drug appears other lethal to cause death quickly without the pain associated with the slower death by caused lethal gas.” Id. at 217.

A bill to substitute injection lethal for the gas chamber was introduced into the 1993 session of the Assembly General (Sen. 203), just Bill after Governor’s Commission had been appointed.16 passed The bill in the Senate but died the House of Delegates. The Commission report, recommending the change, November, 1993, later, was filed and two months companion nearly bills identical Sen. Bill 203 were intro- noted, As just Governor’s Commission was not created to focus by method of execution. Most of the data used the Commission support of its recommendation injection switch to lethal was and, indeed, already published legislative was mentioned docu- accompanying ments Sen. Bill 203. (House Bill Bills Administration into the 1994 session as duced 304). Bill 498 and Sen. the Commis aware from both Legislature clearly was to it connection presented from evidence report

sion (24 203) (S.B. 21 States that more than the 1993 bill with released) had mandated report the time Commission A death sentences. injection executing as the means of lethal nearly that the statute simple Maryland shows comparison in nine other adopted earlier to those that had been identical Comp. 5-4-617(a); III. § States. See Akk.Code Stat. Ann. 99-19-51; § 5/119—5(a)(1); Ann. Mont.Code Miss.Code Ann. 31-14-11; 46-19-103(3); § N.C. Gen. § N.M. Stat. Ann. Ann. 1014(A); 15-187; § tit. S.D. § Ann. Okla. Stat. Stat. 7-13-904(a). Wyo. § 23A-27A-32; § Stat. Ann. Codified Laws Evans, that in at informed, without contradiction areWe injection, the same three using 24 of States lethal least all although not drugs prescribed, for in the EOM were called to drugs the kinds of specify have statutes that of those States case, none has any are not aware of been be used.17 We Evans, a in which a court State with by cited to us three-drug § 3-905 held that the statute similar to CS has governing with the statute. protocol inconsistent by the House significant, hearing the conducted More 3, 1994, Bill on March the Judiciary Committee on House provide of asked the Commissioner Correction Committee process. that description injection of the lethal Given injection change for the was that lethal was a raison d’etre ultrashort-acting appears It the use of an barbiturate lhat drugs” was in a letter blocking first recommended “neuromuscular Deutsch, anesthesiology University professor of at the of Dr. Samuel Center, to Senator Dawson. Sciences Oklahoma State Oklahoma Health Denno, Legislatures Delegate Death: The Trou- See Deborah W. When bling Injection Electrocution and Lethal Paradox Behind State Uses of Us, (2002). Says St L.J. 95-96 Professor and What About Ohio statute, injection which is “Oklahoma’s lethal Denno observes that statutes, nearly representative repeats verbatim the termi- of other state to Dawson the two nology that Deutsch used in his letter describe at 97. types drugs that recommended.” Id. She notes main Deutsch chemicals, typical injection but is that the lethal consists the three chloride—got drug—potassium third into the mix. uncertain how the much more approach, humane an explanation of the process surely matter interest the Legislature. The responded Commissioner on March and advised the Com- process mittee that the just would be what is for in called EOM-that strapped inmate would be to a gurney, fixed that catheters would placed be in both arms and a saline solution administered until the given command is to commence execution, quantity that a pentothal sodium would then administered, be the line would then be flushed with solution, normal a quantity saline of Pavulon would then be administered followed by flushing another with saline solu- tion, potassium and that a quantity of chloride would then be injected. said, process, The entire he would take 10 to 15 minutes. The Commissioner added trained execution “[a] team would conduct all activities with the associated execution process” and that medical doctor “[a] would be available confirm that death has occurred.”

It that, is thus evident that Legislature was well aware if it injection, enacted statute lethal authorizing the statute would be implemented by three-drug Following mixture. advice, receipt of that the statute was enacted. There is no evidence that any member of the Legislature questioned approach whether the described the Commissioner would record, be with conclude, consistent the statute. thisOn we Oken, we did that the protocol EOM is not inconsistent with the statute. Enforceability Regulation

C. of EOM as a Title subtitle the State Article Government (SG), part which is Act, of the Administrative Procedure sets forth requirements certain for adoption of regulations by agencies subject Executive to the statute. The of Department Public and Safety subject Correctional Services and DOC are Massey the statute. v. Dept. Public and Safety Correc of Services, tional 389 Md. at supra, 886 A.2d at 587. §§ 10-110 SG and 10-111 a require that unit desiring a adopt regulation, measure, other than as emergency publish the proposed regulation in the Maryland Register and on Legislative it Joint Committee a of to the copy send (AELR Administrative, Executive, and Review Legislative 10-lll(a) Committee) Section for that review. Committee’s proposed regulation” not a “may adopt a unit that provides that, in order to specifies 10-112 that is done. Section until in the must published Register, proposed regulation have a (1) impact a the economic accompanied by notice states be and regulation government on State local proposed of the affect- may and be expenditures groups revenues and (2) time, for it, date, hearing. a and place public sets by ed and of “unless it is change any regulation not the text may A unit require- in accordance with the adopted anew and proposed § 10-113. 10-111 10-112....” SG §§ ments and that, if regulation 10-114 is requires Section adoption publica unit a notice of adopted, the must submit § that the provides in 10-117 Maryland Register. tion SG regulation of a is the tenth non-emergency date effective in published is adoption after notice of day calendar (unless specified). a later Register effective date is Maryland Thus, regulation a until has been may adopt a unit not there 10-111, §§ and a non-emergency 10-110 and compliance with until adopted does become effective ten regulation duly Register. published after notice of its is days adoption by of the mandated those statutes procedures None or, time, from time to adopting DOC prior were followed submitted to amending proposals the EOM. None were Committee, Maryland Register, in the published the AELR adoption No subjected public hearing. notice final Register. to or in the published Maryland ever submitted Thus, challenged if Evans fall protocols the execution constitute, of, thus as regulation within the definition a § 10-101(g), they are ineffective. defined SG regulation 10—101(g)(1) including, Section defines general that has pertinent part, application statement effect, adopted carry is to “detail or out a law future unit,” procedure unit administers” or “govern standard, form, including interpretation, statement 10-101(g)(2) exempts from policy. or statement Section that definition a statement which otherwise would be included within it but which “concerns only management internal unit,” or not affect directly rights “does the of the public procedures the public.” available the protocols Evans contends the actual execution set forth in the Lethal Injection EOM—those included the Check- regulation, § 10-101(g). list—constitute a as defined SG The responds State the EOM is not a regulation because (1) (2) it general does not have application, only concerns the (3) DOC, internal of management and does not directly affect rights the public. upon the Those were the bases which the Secretary rejected of DPSCS Evans’s administrative chal- lenge. Largely the in Massey, for reasons set forth we supra, disagree response. with the State’s

The argument contrary State’s notwith be no standing, legitimate there can doubt that portions the EOM that govern procedure method and for lethal administering injection general have application and effect, future adopted were carry detail or out a law that administers, govern DOC and procedure They of DOC. have general and application they future effect because com prehensively govern every manner which death sen tence is implemented. Unquestionably, they adopted, were and, indeed, function, it purpose is their sole and to carry out §§ the mandates of 3-905 CS and 3-906 and add details to the procedure that clearly are unaddressed the statute. They are within § SG 10-101(g)(l). ambit question whether the execution fall protocols

within the set forth in exemptions 10-101(g)(2). § That was the issue in Massey as well—whether DPSCS directives that established the for administering basis inmate fell discipline within the (g)(2) exemptions. subsection We observed there that, although exemption an procedural from some of the requirements adopting regulations pertain only to the internal of been management agency part had of the Model Administrative Procedure Act years for about 50 and was laws, common in the various State there was surprisingly little comment on the general meaning scope of that exemption. indicated that was commentary The available cases Massey Dept. exemption. and balanced” “pragmatic Services, Md. at supra, Safety Public Correctional hand, applying procedur the one A.2d at 598. On of the workings into internal “too far the requirements al activities if it were stifle agency completely agency would 598-99, enforced,” 519, quoting Gary A.2d at from id. at 886 Tunnicliff, P. Idaho Administrative Haman and Robert M. Act, 3 the Idaho Administrative Procedure and New Agencies other, 61, (1966), “agencies could but on the 79 Idaho L.Rev. if requirements they easily public rulemaking too subvert they called an anything avoid procedures could those v. Public Massey Dept. Safety directive to staff.” internal of 519, Services, at supra, Md. at 886 A.2d and 389 Correctional 599, Bonfield, E. The Iowa Administra from Arthur quoting (1975). Act, 731, (Empha tive Procedure 60 Iowa L.Rev. in original). sis

Bonfield, prolific who to be the most commentator seemed subject, exemption the internal as management on this viewed provision important with several “very narrowly drawn of agen “to assure that matters internal qualifications” meant of to the and management purely agency that are concern cy normal and effectively rule-making staff are excluded from its v. Massey Dept. Public requirements.” rule-effectiveness of Services, Md. and at Safety supra, Correctional Bonfield, Arthur A.2d at from E. quoting State Adminis Making 6.17.2, at of § 402. The kinds directives Rule trative the he his law falling exemption, within concluded aforecited article, and not affect “substantially review “face inwards” do rights public any segment the any legal public.” practices and gave “purely personnel He internal examples Dept. Safety Public Massey directions.” Correction Services, A.2d at supra, quoting al 389 Md. added). 60 Idaho at 834. The rather (Emphasis from L.Rev. those fairly supported applied principles. case law meager (or a DOC The real test whether Directive statement) exempt the APA policy requirements other from because it only concerns the internal management of the agency whether, and does not affect public rights is given the Directive, nature and impact the Legislature intended agency be free to adopt, change, or abrogate the will, Directive at without any public input or legislative review. noted, As APA requires proposed regulations be AELR, submitted to the Committee for its Although review. may Committee veto a proposed regulation, it may hold hearings, get public input, object proposal. lO-lll.l(b) § Committee, SG directs the in deciding whether oppose a proposed regulation, to consider whether regulation is in conformity with the statutory authority of the agency and whether it “complies with the legislative intent of the statute under which regulation was promulgated.” ability oppose Committee to the regula tion is important, because if it does object, the unit has but options: three it may withdraw the proposed regulation, may amend regulation, the which essentially requires starting anew, the process or it may submit the proposal to the Governor with a statement explaining why it refuses to with draw or amend proposal. PSC, the See Delmarva Power v. (2002). 370 Md. 803 A.2d 475 The may Governor consult with the Committee and the unit in an effort to resolve and, the conflict after notice to the officers of presiding the Senate and House of Delegates, may instruct unit the to n withdrawor amend regulation or may approve the regula tion. A proposed regulation opposed by the may Committee not be adopted and is not effective unless approved by the Governor. importance of that measure of legislative over is

sight highly relevant in considering whether agency policy directive is of the by kind intended Legislature exempt be from that oversight as a matter of purely internal management. may fairly We take judicial notice that whole issue of the death penalty, and particularly the method of its implementation, is of great interest Legislature. It has enacted detailed statutes governing capital punishment exe- in method manner of governing, particular, and and sentences, dealing it considers with cuting and bills death every penalty nearly the death at session. aspects of in of how DOC that it was advised Notwithstanding if were injection law that law implement intended to the lethal Legislature enacted, unwilling we are to assume that DOC, any own and without formal to leave to on its intended Committee, AELR any opportunity notice to the without object, without unbridled oversight, the Committee will, change as a matter authority to determine then implemented. that statute is to management, internal how be case, has to use two paralytic this DOC decided chemical statutory applied construction agents. Using canons courts, concluded, statutory as a matter of construc- we have tion, protocol current is consistent the statute. that the with context, allowable Applying legislative different standards view, if a different but even may the AELR Committee have consistent, it agrees protocol may that the Committee other object wish to to it and direct DOC consider some protocol one. is standard States Although three-drug using injections, challenged has been a number lethal it was cases some believe that it is not as humane as Denno, purported supra, to be. See Ohio St. L.J. in a Indeed, appears issue to be currently pending instituted in the District Court. proceeding Evans U.S. (U.S.Dist.Ct.D.Md.). Saar, See Evans v. No. 06-149 Civil Suppose DOC decides the future to use three rather than drop potassium two chloride or Pavulon paralytic agents, only the other or use cc or 150 cc agent, use cc, than or 100 cc rather barbiturate rather of Pavulon cc, entirely drugs? than or use one or more different Those kinds of do not routine internal decisions constitute more than the the current management, any adopt decision mix; affect not the inmates the correctional they only personnel, but the allowed to the execution witnesses observe through perception process. its of the public generally,

Accordingly, aspects we hold that those of the EOM of executing direct the manner the death sentence—the Lethal Injection regulations § Checklist—constitute under 10- SG and, 101(g) they because were not in adopted conformance APA, with the are requirements may ineffective and be used until as they properly such time are To adopted. extent, shall ruling we reverse the Circuit Court City. Although Baltimore question actually before us No. is whether the Circuit Court erred denying order, temporary restraining our resolution of the predomi- nant legal presented by mandates, issue that question as a law, issue, matter of that a final injunction and we shall remand the case for that purpose. 107, 123,

IN AND NOS. JUDGMENT OF CIRCUIT AFFIRMED, COURT FOR BALTIMORE COUNTY WITH COSTS; IN NO. ORDER OF CIRCUIT COURT FOR BALTIMORE CITY DENYING RE- TEMPORARY VACATED; STRAINING ORDER REMANDED CASE TO THAT COURT EN- WITH INSTRUCTIONS TO ENJOIN FORCEMENT LETHAL OF INJECTION CHECKLIST INCLUDED PART AS OF DIVISION OF CORRECTION EXECUTION OPERATIONS MANUAL UNTIL SUCH TIME THE CHECKLIST, AS CONTENTS OF THAT IN THEIR FORM, CURRENT ANY OR AMENDED ARE ADOPTED AS IN REGULATIONS ACCORDANCE WITH REQUIREMENTS THE OF THE ADMINISTRATIVE PROCEDURE THE ACT OR GENERAL EX- ASSEMBLY REQUIRE- THE EMPTS CHECKLIST THE FROM ACT; MENTS THAT IN OF COSTS BE PAID NO. TO BY APPELLEE

GREENE, J., joins Nos. 107 and 124 only. BELL, C.J., GREENE, J., dissents which joins Parts C D only.

APPENDIX STATE EVANS PROCEDURAL HISTORY OF It is rare that an Appendix we attach to an Opinion. so, most instances when we do is for convenience—to display a plat, diagram, pictorial other document as a in We Opinion. of it description to the verbal complement describes, possi- as succinctly which Appendix, attach this case, of this for two reasons. history ble, long, tortured some of the context to complete a more give first is to is to demonstrate in The second appeals. raised these issues and Federal to which the State extraordinary lengths rights to go, protect continue to gone, have and courts has not notion that he to dispel Evans and Vernon that is consideration process and the full measure received and, to particularly, crime most accused of any person to due penalty. the death one who faces one County in and Worcester separate juries—one

Two County— in Baltimore away miles than a hundred more determined, Evans should years apart, that eight unanimously Exclud- committed. for the brutal murders he to death put be appeals eleven Evans has had pending appeals, the four ing to the petitions seven United presented and has this Court on how one isolates Depending Supreme Court. States one approximately presented his he has arguments, clusters in counties Courts three complaints to the Circuit hundred more than us, times. He has had many of them several rejected by the U.S. complaints considered two dozen Fourth Appeals for the and the U.S. Court District Court in the District pending has more now several Circuit able, experi- represented by he has been Throughout, Court. enced, counsel. competent in described this proceedings and the various appeals

These Evans from murder committed all arose a double Appendix 28, 1988, paid Evans was years ago. more than April on in Grandison, was then $9,000 Anthony who by or behalf kill David charges, narcotics awaiting trial on Federal jail wife, Mr. and Ms. Piechowicz Cheryl. and his Piechowicz in court testify against Grandison Federal were slated Motel went to the Warren House week later. Evans and, blood, Piechowicz murdered Mr. County cold Baltimore fact, who, but was thought Cheryl he and the woman sister, Kennedy. Cheryl’s Susan prosecutions

Two ensued—one Federal and one State. The prosecution Federal May, came first time. Evans, Grandison, charged Government and two others with conspiracy to violate the civil rights Cheryl David and (18 241) (18 § Piechowicz U.S.C. and with witness tampering 1512). November, 1983, § In U.S.C. Evans and Grandison were convicted a Federal jury on both counts and sen- imprisonment. tenced life On Evans appeal, eight raised issues, all of which were found by the U.S. Court of Appeals for the Fourth to without Circuit be merit. United States v. (4th Cir.1985). Grandison, 780 F.2d 425 presented by One the issues both Evans and Grandison was that the Government used peremptory its in a challenges manner that was racially against biased African American jurors. While the case was pending appeal, the Supreme granted Court certiorari in Batson v. Kentucky, U.S. 1052, 2111, (1985), 105 S.Ct. 85 L.Ed.2d 476 but that case had been decided the time the Fourth court Circuit acted on the appeal, and the peremptory challenge Grandison/Evans issue was against resolved Evans under the rule established in Alabama, 202, v. 824, Swain 380 U.S. 85 S.Ct. 13 L.Ed.2d 759 (1965).

Batson was decided by Supreme shortly Court thereaf- 79, ter—see Batson v. Kentucky, 1712, 476 U.S. 106 S.Ct. (1986)—and, L.Ed.2d 69 in 314, v. Kentucky, 479 U.S. Griffith 708, (1987), 107 S.Ct. 93 L.Ed.2d 649 Batson was declared to apply retroactively cases still in litigation. February, 1987, the Supreme Court vacated the Federal convictions in light of and remanded the cases for the District Court Griffith to consider 1988, the effect of Batson. In May, after an evidentiary hearing, the District Court found no purposeful discrimination the Government’s exercise of its peremptory challenges, denied Evans’s and Grandison’s motion for new trial, 1989, and reinstated the judgments, September, Appeals U.S. Court of for the Fourth affirmed. Circuit Grandison, (4th Cir.1989). United States v. 885 F.2d 143 and, May, for rehearing, denied motions appellate court certiorari. Grandison 1990, Supreme Court denied States, 109 L.Ed.2d United 495 U.S. 110 S.Ct. (1990). prosecution. That ended Federal 30, 1983, prosecution commenced

On June State Evans and charging with an indictment County Baltimore murder, one count degree of first with two counts Grandison murder, using and one to commit count conspiracy trial, the felony. Prior to in the commission of handgun Sep- On Evans were severed. against cases and Grandison of the State’s Evans was served with notice tember aggravating penalty to seek the death listed two intention rely—that which intended to upon the State circumstances or contract agreement to an pursuant murder was committed (current of remuneration promise remuneration Article Code, § Law Maryland Criminal 2-303(g)(l)(vi) 413(d)(6)) 27, § (CL); Ann.Code, 1957, Art. and former than one murder degree committed more first defendant (CL § former 2-303(g)(l)(ix); out of the same incident arising 27, 413(d)(9)). Ann.Code, 1957, § Art.

At was from Baltimore request, Evans’s his case removed to Judge where was County County, assigned to Worcester trial, Cathell, but judge then a the Circuit Court. Prior charges, Evans moved after his conviction the Federal Federal ground indictment on the that his dismiss the State a under subsequent prosecution convictions State precluded His jeopardy prohibitions. both Federal State double dual argument sovereignty principle, principal courts, long in the State and well established both and Federal and, in an inter was not motion was denied applicable. The Evans v. ruling. this Court affirmed locutory appeal, (CA-1).18 (1984). State, Evans’s 301 Md. A.2d 1135 of, keep distinguish, proceedings the various In order to account court, complaints by we shall in Evans’s have been reviewed which they (Maryland by brought: court were CA label them in which (United (State Court); Supreme PC Appeals); SC States Court petition for certiorari was denied the Supreme Court. v. Maryland, Grandison 470 U.S. 105 S.Ct. (SC-1). (1985). L.Ed.2d 795 resolved,

With that the case proceeded before a jury, which convicted Evans the two murders and related offenses and sentenced him to death. He appealed, raising 17 issues. The first ten dealt with the trial as to guilt or innocence and the remaining pertained seven to the sentencing proceeding:

(1) An in-court identification by Calvin Harper should have suppressed been because it was tainted a suggestive and identification; pre-trial unreliable (2) He was entitled to a mistrial because of the State’s him notify identification; failure to of a photographic (3) Two State’s witnesses—Calvin Harper and Charlene Sparrow—were incompetent they witnesses because pre- had viously committed perjury;

(4) The trial court erred denying his motion to compel psychiatric examination of Charlene Sparrow, quashing sub- poena trial, for her attendance at her refusing exclude trial; testimony

(5) trial court erred in denying his motions for further removal from Worcester County and for a continuance order individually prospective jurors; voir dire (6) The trial court erred in admitting certain documents as records; business

(7) The trial court erred admitting a MAC-11 machine pistol representative weapon unrecovered used murders;

(8) The trial court in erred excluding from the jury venire persons who stated that they would never impose vote to capital punishment; considering post Circuit petition, Court conviction motion to correct sentence,

illegal attack); (U.S. or other collateral DC District Court (U.S. considering petition); corpus habeas Appeals C4 Court of consid- ering appeal Court). from corpus by. denial of habeas U.S. District (9) challenges to exclude peremptory The State’s use improper; was African-Americans made

(10) argument he jeopardy A of the double renewal interlocutory appeal; in earlier his a mini

(11) in evidence of excluding The trial erred court date;19 release parole mum 12)

( jury in to instruct the refusing trial erred court murders, it contract that, if it found that the murders were was not the sole as a factor that Evans mitigating must find deaths; of the victims’ cause

(13) jury to instruct the refusing The trial court erred factors it found to exist non-statutory mitigating factors; statutory mitigating given weight as much could be (14) in that it law unconstitutional penalty The death was the existence prove to defendants to shifted burden factors; mitigating

(15) reasonable regarding The trial court’s instructions jury to inform the they because omitted doubt were deficient certainty;” must be “to a moral proof that the State’s (16) one only there were murders and Given that two jury, error to allow the penalty imposed, can be death that the murder, to on the factor rely aggravating as to each degree more than one offense first defendant committed incident; arising of the same murder out (17) penalty the case was dis- Imposition of the death imposed in similar cases. proportionate sentences issues, each of those this 42-page opinion examining In a State, Evans v. no found merit to them and affirmed. Court (CA-2). (1985). A.2d 1261 It was 304 Md. disproportionality, that complaint, to the last about response giving prosecu- murders rise this we observed “[t]he time, option parole. did not of life without 19. At the State law afford the that, unsuccessfully sought to evidence if convicted Evans introduce sentences, given would not charged offenses consecutive he all the years prison. eligible parole been until he had served have tion were as heinous as those in any case to come before us present under the capital punishment statute.” Id. at reconsideration, A.2d 1288. Evans’s motion for in which he presented issues, denied, Foster, six was Evans and Huffing State, (1986) ton v. 305 Md. (CA-3), 503 A.2d 1326 the Supreme Court denied certiorari. Evans v. Maryland, (SC-2). (1986). 478 U.S. 106 S.Ct. 92 L.Ed.2d 722 March, 1990, Evans filed his petition first under the Post Conviction Act the Circuit Court for County. Worcester He raised issues in petition and added six more on the day been, of the hearing. Many them or had could have been, raised in appeal. his direct In summary, they were that he was denied equal protection of the or process by law due because:

(1) The racially discriminatory State’s peremptory use of challenges;

( 2) The selection process for veniremen in Worcester was County unlawful in that county had a 22% black population and the jury black; venire was only 19.85%

(3) There was an under-representation of minority and young persons on jury panels and as forepersons of jury panels;

(4) The excusing jurors for cause of who had reservations about the death penalty;

(5) The trial court’s failure to sequester the jury grant a postponement;

(6) The trial court’s dire; refusal to allow individual voir (7) The jury was “uninformed” because some members Grandison; had never heard of him or (8) (about The jury was shown an orientation film which no specific made); complaint was

(9) He not present was at certain bench conferences that trial; constituted critical stages of the (10) The court’s refusal question prospective jurors drug usage factor; mitigating as a Attorney, (11) specially fact an Assistant U.S. part Attorney, State’s assistant designated team; prosecution at the to a court trial

(12) right of his was not advised He stage; guilt/innocence witness, the State’s subject to

He was not allowed examination; psychiatric to a Sparrow, Charlene and testimony Sparrow of perjured The State used Harper; Calvin exculpatory grand jury to

The State failed disclose testimony; pistol; machine of a MAC-11

The admission lineup; to a subjected suggestive He was both of counsel at ineffective assistance He received sentencing; and trial convictions, prosecu- the State his Federal

Because of jeopardy; his double right against tion violated the prosecutions, prose- State Because of the Federal in punishment and unusual violation constituted cruel cution Amendment; Eighth his ineffective assistance counsel He received appeal; sentencing and

The trial court’s instructions unconstitutionally suggested jury form to the sentencing given find a mitigating order to unanimity required was Maryland, of Mills v. factor, U.S. contravention 1860, 100 (1988); L.Ed.2d 384 108 S.Ct. over Evans when he jurisdiction

The State lost time, transferred, for Bureau of Prisons to serve U.S. sentences; his Federal investigated who the murders agents

Government (that was withdrawn complaint evidence favorable suppressed proceedings); subsequent but renewed (25) prosecutors The made unfair prejudicial com- evidence; regarding present ments his failure alibi (26) juror One was not a resident of County; Worcester (27) He was not personally served with the State’s notice penalty; its intention seek the death (28) During closing argument, made im- prosecutor proper remarks concerning effect the murders on the victims’ families. 28, 1991, post

On March conviction (Judge court Es- in a chenburg), 38-page opinion, memorandum addressed each in only those issues found merit one—No. did, indeed, sentencing court held form violate Mills and that the error was not ameliorated court’s instruc- jury. tions to the As only that error affected the sentencing, sentencing the court ordered a new but hearing denied the (PC-1). a new request guilt trial as or innocence. Both Evans and the State filed an for application leave to decision. appeal complained The State about post the court’s analysis application conviction Mills. Evans complained about 19 of other rulings not in his favor. In June, 1991, this Court both applications. denied State v. Evans, (Order No. Term Sept. Misc. filed June (CA-4). 1991). It does not appear that either side sought in further review the Court. Supreme sentencing Prior to the new hearing, pursuant to Evans’s the case was request, removed back to the Circuit Court Kahl). County 5,1992, (Judge Baltimore On a jury November death, in that again court sentenced Evans to and Evans appealed, raising twelve issues:

(1) Whether there was insufficient questioning prospec- jurors tive regarding predisposition their toward the death penalty;

(2) in Whether court erred to ask a voir failing dire question relating to such in predisposition the form exactly he requested; jury to the suggested impermissibly prosecutor

The danger from and be a escape prison likely would that Evans society; investiga- a presentence in submitting

The court erred Evans’s initial refusal redacting report jury to the without tion in of his Fifth Amend- violation investigator, to the speak self-incrimination; right against ment impact evidence of in victim permitting court erred The jury; kind to considered any be Cheryl in Piechowicz’s vic- admitting court erred The it prejudicial; impact tim statement because jury instruct refusing in The court erred in not an consideration appropriate evidence is impact victim sentence; imposing autopsy photo- in certain admitting court erred

The victims; graphs jury to see a docket allowing court erred jury guilt/inno- at the infer that

entry might from which hours; for less than two cence trial deliberated requested two instructions refusing The court erred circumstances; mitigating machine admitting The court erred MAC-11 sentencing hearing; at the pistol the aggra- insufficient to show that

The evidence was outweighed mitigating relied on the State vating factors imposed under was not factors and sentence arbitrary other factor. of passion, prejudice, influence found the Court no February, 34-page opinion, judgments. in of these affirmed the complaints merit and (CA-5). (1994). State, 660, 117 Evans v. 333 A.2d Md. certiorari Court, in the which was sought Supreme Evans Evans Maryland, U.S. S.Ct. denied. (SC-3). (1994).

L.Ed.2d 56 petition post Evans filed a second August On relief, County. Court for Baltimore conviction the Circuit issues, petition many The raised 41 of which were clustered contexts, presented and two or more different and most which litigated: had been previously

(1) State prosecution precluded by jeopar- double dy;

(2) relinquished The State its over authority Evans when it moved him back to the Federal Bureau of Prisons to resume sentences; service of his Federal (3) He received ineffective assistance of trial counsel re-sentencing proceeding. counsel, said, Trial he was ineffec- tive in:

(a) Failing to call Pinkney Roberta Weinstein and Darece to witnesses contest State’s evidence he was murders; in the first principal degree in the (b) Submitting supplemental certain voir dire questions belatedly;

(c) Failing to challenge alleged the State’s systematic exclusion jurors; of African-American

(d) Failing to ask specific, questions individual on voir dire juror to going predisposition toward the death penalty;

(e) to Failing that the voir request judge ask dire ques- bias; tions relating racial

(f) Belatedly Batson making argument; (g) Incompetently cross-examining Sparrow; Charlene (h) Failing present interview witnesses from the Marion, Federal Illinois to prison testimony offer regarding lives; how positively Evans affected their (i) Failing to properly investigate parole eligibili- Evans’s ty if projected sentences; release date he received life

(j) Failing to ask sentencing judge formulate proper to two response questions jury from the relating to the sentences; effect of life

(k) Failing object to the concerning court’s instruction allocution; consideration of Evans’s jury’s from re-sentencing of the (l) to removal Agreeing County; to Baltimore County Worcester counsel of (4) appellate assistance ineffective He received counsel: appellate in that re-sentencing proceeding, assistance of ineffective (a) the issue Failed to raise counsel; trial not re-sentencing jury did

(b) complain Failed to community; a fair cross-section represent to attempt judge’s (c) about trial complain to Failed of the death in favor bias jurors who showed “rehabilitate” penalty; by omitting

(d) voir dire to illustrate the deficient Failed ques- certain not asked jurors were out that certain point to tions; striking jurors

(e) about court’s complain Failed to by defense follow-up questions sought after denying for cause counsel; to failure

(f) the trial court’s about complain Failed attitudes; racial voir dire conduct individual refusal the trial court’s about complain Failed to (g) re-sentencing proceeding; bifurcate (h) to the State’s relating a Batson issue Failed to raise jurors; of African-American strikes peremptory is unconsti- (i) penalty that the death complain Failed to on African- disproportionately it is imposed tutional because victims; involving in cases white Americans fair cross- (5) represent sentencing jury The did exclusion systematic community because section panels; from jury racial minorities dire

(6) conducting voir court erred in re-sentencing generally; voir

(7) adequate failing to conduct specifically It erred attitudes; racial dire into

(8) The court in relying jury erred instructions dire; compensate inadequacies in voir (9) allowing The court erred in judicial concerns of econo- dire; my to outweigh constitutionally sufficient voir (10) in failing The court erred to sentencing bifurcate the proceeding;

(11) in The court erred denying challenge; Evans’s Batson (12) The court to prosecutorial failed correct misconduct during closing argument; rebuttal (13) to portion The court failed redact a of the presentence investigation report;

(14) The penalty death punishment; constitutes excessive (15) The penalty death is it unconstitutional because is imposed disproportionately on involving African-Americans (this repeated contexts); white victims in several different (16) Evans was denied effective assistance of counsel at his post first conviction proceeding; (17) He equal protection was denied of the law because conviction post counsel was ineffective in presenting Batson complaint;

(18) The penalty death is unconstitutional because imposed males; disproportionately on

(19) The trial court refusing erred in to allow Charlene Sparrow to undergo psychiatric examination to determine her competence to testify;

(20) prosecutor engaged The a pattern of using peremp- tory challenges jurors strike of race; the basis

(21) Trial counsel was deficient in failing present evi- pattern. dence of that 24, 1997,

On January 26-page memorandum opinion, Smith) (Judge Circuit Court discussed each of those complaints, found that most of them had previously been litigated merit, and that none had petition. and denied the (PC-2). Evans filed an application, and then a 37-page this Court which appeal, for leave application, amended State, 524, v. 345 Md. Evans See and denied. considered (CA-6). (1997). sought then review He A.2d November, denied. which, also was Court, Supreme 411, 139 118 S.Ct. 522 U.S. Maryland, See Evans (SC-4). (1997). L.Ed.2d habeas petition filed a Evans November

On issues, Court, raising 24 several District U.S. corpus raised in previously issues sub-parts-essentially had which courts: the State at

(1) challenges peremptory use prosecutor’s claim; Batson in 1984—the phase trial guilt (2) resentencing be- of counsel assistance Ineffective of: cause Pinkney to

(a) witnesses Weinstein Failure call testify; and

(b) parole testify to on Federal expert to call Failure his sentences at begin serving State that Evans would not 30 years; least

(3) challenges peremptory use of prosecutor’s The Alabama, supra, in violation of Swain phase trial guilt 759; 13 L.Ed.2d 85 S.Ct. U.S.

(4) County in 1984 did not reflect venire in The Worcester to respect petit with community, of the a fair cross-section jury;

(5) in 1983 not reflect County in Baltimore did The venire respect grand with to the community of the a fair cross-section jury;

(6) in not permit- erred guilt phase The trial court dire; ting individual voir

(7) from removing in not the case The trial court erred publicity; County because of adverse Worcester (8) Harper was of Evans Calvin A identification pretrial identification; his in-court unduly and tainted suggestive (9) The in refusing trial court erred to psychiatric order a examination of Sparrow; Charlene

(10) re-sentencing jury The County Baltimore did not reflect a fair cross-section the community;

(11) Voir dire with to respect jury the re-sentencing inadequate and the court erred in to refusing strike certain cause; jurors for

(12) Appellate counsel in appeal Evans’s direct was ineffec- in failing tive to contest Judge Kahl’s failure to strike those cause; jurors for

(13) The re-sentencing provide court failed to adequate voir with respect dire to the racial jurors; attitudes of prospective (14) re-sentencing court in refusing erred to bifurcate re-sentencing proceeding, deal first with principalship then factors; with aggravating mitigating (15) The court re-sentencing give failed to an adequate to a response jury note regarding length nature and Evans; imposed other sentences on (16) Counsel at the re-sentencing were ineffective by fail- ing produce good evidence Evans’s in prison; behavior

(17) Counsel was also ineffective eliciting damaging from response Sparrow cross-examination; Charlene (18) The court erred in re-sentencing allocution allowing too close to the time instructed the jury regarding Evans’s not to right testify;

(19) Re-sentencing counsel was ineffective failing object allocution; timing

(20) re-sentencing The court erred in a failing to redact the pre-sentence investigation statement in report that Evans had initially speak refused to with investigator;

(21) There was improper argument from the prosecutor; (22) convictions, In of his light prosecu- Federal the State tion barred jeopardy principles; double Evans re- (23) authority over Maryland relinquished custody; him to Federal turning it con- (24) is unconstitutional because penalty The death im- disproportionately punishment and is excessive stitutes white victims. who murder on African-Americans posed (Judge Legg) Court opinion, the District a 36-page In had many found that complaints, each of those considered no to that there was merit litigated, concluded previously been Smith, Evans v. See them, petition. denied the any (DC-1). (D.Md.1999). the court denied After F.Supp.2d to Court of appealed Evans the U.S. rehearing, a motion for for the Fourth Circuit. Appeals pending, Fourth Circuit court was appeal to the

While in the Court for Baltimore filed a motion Circuit Evans add conviction to County reopen post proceeding to his 1995 recounting FBI report that the State withheld an claim Regarding Bannister. that agent’s interview with one Janet evidence, claimed a violation of exculpatory as Evans report 1194, 10 Brady Maryland, 373 U.S. 83 S.Ct. L.Ed.2d Smith) (1963). motion on the (Judge denied the court insufficient petition affidavit and were to grounds Evans’s exculpatory provide show that the State had failed had, that, it that he was material, even if Evans failed show post from that claim in his first conviction prevented raising was insufficient in proceeding, and that Bannister’s statement that the probability a reasonable out support event any have been re-sentencing proceeding would come State, (Circ. See Evans v. Ct. for No. 83-CR-2339 different. (PC-3). 20,1999). Evans filed an County, Baltimore October decision, which this Court appeal for leave application State, Evans v. 18, Sept. Term 1999. denied. See Misc. No. (CA-7). petition filed second habeas February, Evans Court, Brady only District raising in the U.S.

corpus court to file from the Fourth Circuit sought claim. He leave and asked that petition as successive petition original his reopen a motion to Court treat District (DC-2). habeas corpus petition. The Fourth Circuit court dealt with that issue in appeal from the District Court which, judgment 2000, affirmed, in July, it finding no merit in Smith, of Evans’s claims. See Evans v. (4th 220 F.3d 306 Cir.2000). (C4-1). sought Evans review in the Supreme Smith, Court, which was denied. Evans v. 925, 532 U.S. (SC-5). 1367, 149 (2001). S.Ct. L.Ed.2d May, 2000, while the Federal still appeal was pending, Evans filed in the County Circuit Court for Baltimore Motion to Correct Illegal Sentence and a Motion for New Trial. The first motion was based on amendment death penalty law that took very shortly effect after the murders were committed. The amendment removed intoxi- specific cation as a statutory factor mitigating permitted jury to find it a mitigator under provision the catchall mitigating factors. Evans claimed that constituted an unlaw- ful ex post law. The motion for new trial was based facto supposedly newly discovered evidence in the form of FBI reports interview allegedly impeach would the testimony of two State’s witnesses that person he was the who actually shot denied, the victims. Those motions but, were initially appeal while an to the Court of Special Appeals from that ruling pending, court its rescinded order and sched- uled a hearing. appeal The was subsequently dismissed. 2001,

In April, Evans filed a second motion in the Circuit Court reopen post the 1995 conviction proceeding, claiming that, under Apprendi Jersey, New 530 U.S. 120 S.Ct. (2000), 147 L.Ed.2d 435 the 1983 indictment that trig- gered prosecution the State was Constitutionally deficient because did not allege either principalship or the aggrava- ting factors upon which the State rely. intended to motion also asked that execution of the death sentence be stayed pending completion of a legislatively commissioned study (the of the implementation penalty the death Pater- A Study). noster month later, any ruling before on that motion, Evans filed a second Motion to Correct Illegal Sen- tence Motion Sentencing for New Based on and/or Mistake on Apprendi. was also based That motion Irregularity. reopen motion to denied the the court October On Turnbull) (PC-4), and, proceeding (Judge post conviction 14, 2001, application denied Evans’s this Court on December (CA-8). that appeal ruling. for leave and 2003, evidentiary hearing 18, following an July On briefs, entered two Judge Kahl of supplemental consideration Trial and the Motion Motion for New denying orders the (PC-5). and, in a appealed, Evans Sentence. Illegal Correct (1) of affirmed, the shift holding that we 37-page opinion, an ex did not constitute mitigator a catchall intoxication to (2) if discover- law, reports, newly FBI even and the post facto a jury would ed, possibility a substantial failed to create State, v. See Evans 382 the shooter. find that Evans was (CA-9). (2004). for 248, Evans moved 855 A.2d Md. (CA-10). usual, he As reconsideration, which was denied. that too was Supreme Court and sought review then 1325, 1150, 125 Maryland, Evans v. 543 U.S. S.Ct. denied. (SC-6). (2005). 161 L.Ed.2d Court, of certiorari Supreme

Upon the denial a of execu for issued warrant County Baltimore Circuit Court proceedings. On Febru That a new round prompted tion. 28, of Execu Stay filed a Motion to Warrant Evans ary (1) Sentence, Illegal arguing that a to Correct tion and Motion pattern emanated from illegal was because his sentence implementation racial and discrimination geographic (2) Maryland, and the indictment that the death sentence Constitutionally defective under triggered prosecution Arizona, v. Ring 536 U.S. Jersey, supra, v. New Apprendi (2002). March, Evans 584, 122 S.Ct. 153 L.Ed.2d illegal supple to correct sentence and separate filed a motion one, of a preponder that use complaining pending mented the balancing aggravating standard ance of the evidence Mary provisions violated various mitigating factors land Constitution. later, all mo- denying

A entered order week court affirmed, holding, (PC-6), appealed. tions and Evans We first, that a motion to correct illegal sentence was not the vehicle to appropriate prosecution raise selective claim based on the by-then-completed second, Study, Paternoster none of his Apprendi/Ring arguments had merit. Evans v. State, (CA-11). (2005). 389 Md. 886 A.2d His (CA-12). motion for reconsideration was also denied. For time, Evans sought certiorari the seventh Supreme — v. Maryland, Court, was denied. Evans U.S.—, which (SC-7). (2006). 1442, 164 126 S.Ct. L.Ed.2d 141 In August, Evans another filed Motion to Correct Illegal Sentence in the Circuit County, Court Baltimore (1) raising two issues: his attorneys his 1992 re- sentencing hearing Constitutionally were ineffective because of their investigate failure to substantial mitigating evidence (2) relating to his background; and his death sentence was imposed by jury selected in violation the equal protection Smith, clause. The on Wiggins complaint first was based 510, 2527, (2003) 539 U.S. 123 S.Ct. 156 471 L.Ed.2d and Beard, Rompilla v. 374, 2456, 545 U.S. 125 S.Ct. 162 L.Ed.2d (2005). The second—essentially a Batson challenge—is Dretke, Miller-El based as well on 231, U.S. S.Ct. 2317, (2005). 15, 2005, L.Ed.2d 196 On Judge December Kahl motion, that, entered an order denying the concluding Court, under controlling decisions of this complaints, those valid, (PC-7). if even did not make illegal. the sentence On 29, 2005, December appealed. Evans appeal That is now before us as No. 107. 20, 2005,

On December Evans filed a third motion to reopen 1995 post the conviction proceeding. That motion was based entirely which, on the Study Evans, Paternoster according to showed that the County Baltimore Attorney’s State’s Office engaged in unconstitutional race-based prosecution. selective 19, 2006, January On that motion was (Judge denied Turn- (PC-8). bull). application Evans filed an for leave to appeal, which we granted and is now before us as No. 123. January

On Evans filed a fourth motion to reopen the 1995 post conviction proceeding in order to present the motion to the and Miller-El presented issues Wiggins 2, 2006, Circuit February the On illegal correct sentence. (PC-9) Turnbull) and Evans (Judge that motion denied Court granted. we appeal, which for leave application filed an That is No. 124. Evans, Associ- 20, 2006, along with the National January

On American People, Colored ation for the Advancement Maryland Maryland, Foundation Liberties Union Civil Executions, separate action filed a Against State Citizens City seeking enjoin for Baltimore the Circuit Court to inflict the injections lethal using of Correction from Division on the protocol its execution penalty under current death (1) materially conflicts protocol grounds that the execution statute; (2) penalty protocol with the State’s death Proce- the Administrative adopted in conformance with Act; (8) of the conflict with regulations several dure of Execution filed this Warrant specific directives 31, 2006, the Circuit by Judge January case Turnbull. On (PC-10), injunctive relief and Evans preliminary Court denied Special to the Court plaintiffs appealed and the other (No. certiorari on our own initiative Appeals. granted We issued, 122), stayed warrant of execution that had been 16). (CA-13, four appeals. and consolidated the 19, 2006, January Evans filed Contemporaneously, on Court, complaining District execu- action the U.S. a risk of Correction create protocols tion Division execution and accord- during process he will be conscious Saar, pain. See Evans v. Civil unnecessary will suffer ingly Md.). (U.S. D. He asked for declarato- No. 06-149 Dist. Ct. violate the judgment protocols Eighth that the Division’s ry permanent injunction and a and Fourteenth Amendments using carry from out barring protocols the Division those 1, 2006, February him. On the court denied against execution temporary prelimi- for order and restraining Evans’s motions for nary injunction. Appeals the Court of appealed Evans Circuit, the stayed Court outstand- the Fourth but when this of now appeals resolution ing pending warrant execution 370 us, he

before dismissed that and appeal, the case has been (DC-3). open tried but remains in the District Court. December, 2005, Evans commenced an administrative to the challenge protocols by execution filing for request remedy administrative with the of Maryland warden Peni- tentiary. When the warden denied that request, ap- Evans pealed to the Commissioner The Corrections. Commission- rejected er February 27, 2006, on appeal and Evans filed (IGO). complaint with the Inmate Grievance On Office June 2, 2006, IGO, an administrative judge, law for the acting (1) concluded that protocols execution are inconsistent (2) § Article, with 3-905 of the portions Correctional Services of them do constitute a regulation under the Administrative Procedure Act and they are ineffective because were not Act, (3) adopted in with conformance and there was dispute material of fact toas whether the condition Evans’s veins will him, render the execution protocols, violative of Eighth prohibition against Amendment cruel and unusual punishment. Secretary Safety of Public and Correctional rejected 27, Services the second determination on June and on 26, 2006, July Evans a petition judicial filed for review the (PC 11). Circuit Court for Baltimore City.

BELL, Judge, dissenting. Chief Evans, Jr. challenges judgments Vernon of the Circuit for County motion, filed, Court Baltimore denying: his pursu 4-435(a) ant to Maryland Rule premised holdings on the Smith, 510, 123 v. Wiggins 2527, 539 U.S. 156 S.Ct. L.Ed.2d (2003), Beard, Rompilla U.S. S.Ct. (2005), Dretke, L.Ed.2d 360 and Miller-El v. 545 U.S. (2005) (“Miller-El 125 S.Ct. II”), L.Ed.2d 196 107) correct an illegal (Appeal sentence # and his Motion to Reopen Proceeding, Post-Conviction on premised these deci 123) sions # (Appeal findings of a study Maryland capital punishment system by University Mary Paternoster, Raymond land Professor and request, in connec therewith, discovery 124), tion # (Appeal the challenge

371 Court for of the Circuit judgment to the by Evans and others1 injunctive preliminary motion for denying their City Baltimore executions, execution, other relief, and all enjoin his they alleged which protocol, the current under injection lethal materially conflict and was promulgated improperly was § (1999, 3-905 of the Cum.Supp.) 2006 Maryland with Code 122). majority The # (Appeal Article Correctional Services protocol the execution in the only argument merit finds 256, 271-72, 914 A.2d 396 Md. promulgated. not properly (2006). 122, it reverses No. 25, aspect Appeal 34 As this City for Baltimore of the Circuit Court judgment of a “final” to that court for issuance case remands 341-42, enjoining its 914 A.2d at 75-76 use id. at injunction, (1) in accordance adopted regulation it is as “until either (2) Act, Legislature Procedure with the Administrative 271-72, at requirements of that Act.” Id. exempts it from the at 34. 914 A.2d majority’s resolution of the disagree

I do not with the hand, agree I cannot with its On the other “regulation” issue. indeed, exception to them. and, strong take holdings other them, I Accordingly, as each dissent.

A. 4-345, Maryland Rule SENTENCING—REVISORY POW- COURT, relevant, may court provides, “[t]he ER OF sure, time.” To be illegal correct an sentence 4-345(a) rule, to correct a Rule motion an general “as a illegali- alleged where the illegal appropriate sentence is v. sentence.’ State ty defendant’s] ‘did not inhere [the (1999) Kanaras, 170, 508, A ]. 742 A.2d 517 Md. [357 ordinarily can illegal sentence be motion correct illegality in the sentence only where there some granted See, imposed. itself or where no sentence should have been 165, 171, State, v. 369 Md. 797 A.2d e.g., Ridgeway Association for the parties The other involved are National Union, People, The American Civil Liberties Advancement of Colored Maryland Against State Executions. Citizens (2002); State, Holmes 362 Md. A.2d (2000); State, 651, 662-663, Moosavi v. 355 Md. 736 A.2d (1999). hand, On the other a trial court error during sentencing proceeding is not ordinarily cogniza- 4-345(a) ble under Rule where the sentence or resulting sanction State, is itself lawful. v. Randall Book 316 Corp. 315, (1989) 323, (‘[W]hile 715, Md. 558 A.2d 719 improper may sentence, motivation vacation of justify the not does illegal render the sentence meaning within the of 4- Rule Appellant 345. did raise this on contention direct here’). may appeal not do so See also Hill v. United States, 424, 430, 468, 472, 417, 368 82 U.S. S.Ct. 7 L.Ed.2d (1962).” 422 State, 248, 278-79, 291, (2004).

Evans v. 382 Md. 855 A.2d 309 is, however, There as the Evans Court itself acknowledged, exception “an above-summarized “where, to the principles,” a capital sentencing an proceeding, alleged error constitu tional may sentence, dimension have contributed to the death at least where the allegation of error partly upon based decision the United States Supreme Court or this Court the capital rendered after defendant’s proceeding.” sentencing Id. It cited as example State, an of the exception, Oken v. 179, denied, Md. (2003), 835 A.2d 1105 1017, 124 cert. 541 U.S. 2084, (2004), S.Ct. L.Ed.2d which it summarized: was a “[Oken] Rule 4-345 proceeding to correct or illegal irregular sentence. The defendant Oken argued, relying Supreme cases,[2] recent Court that a constitutional error in capital sentencing proceeding contributed the death 466, 2348, Apprendi Jersey, v. New 530 U.S. 120 S.Ct. 147 L.Ed.2d 435 (2000) (in Supreme which the Court ruled that fact that increased penalty statutory for a crime above maximum be must submit- jury proved beyond doubt), ted to a Ring a reasonable v. Arizona, (2002) (in 536 U.S. 122 S.Ct. 153 L.Ed.2d 556 Supreme which the held pursuant Court that an Arizona statute which, adjudication following jury guilt of a defendant’s of first- murder, alone, degree judge, sitting presence the trial determines the required of the aggravating imposi- absence factors Arizona law for tion penalty, right of the death jury violates the Sixth Amendment to a capital prosecutions). trial in 2-303(i) penalty death Maryland of the sentence. Section aby of facts ‘shall determine provides that the trier statute aggravating whether the evidence preponderance of outweigh of this section (g) under subsection circumstances added). (Emphasis circumstances.’ mitigating sentencing under Oken, jury to the presented the case was The defen evidence’ standard. of the ‘preponderance this sentencing no to this in the objection had raised dant Oken In the post proceeding. conviction prior or in a proceeding however, argued Oken proceeding, Rule 4-345 pro violated due of the evidence standard preponderance ‘beyond reasonable doubt’ standard and that a cess Court, in Rule 4-345 constitutionally This required. issue, the merits the constitutional proceeding, resolved ‘preponder majority holding application with See also was constitutional. ance the evidence’ standard (2001), State, 191, 195, 786 A.2d 367 Md. Oken denied, 1074, 122 152 L.Ed.2d 855 S.Ct. cert. 535 U.S. of a similar (2002), the merits where the Court decided challenge by the defendant Oken.” 279-280, 855 at 309. Id. at A.2d was in presented that the case Evans

Concluding claimed, on v. Tex- relying chiefly Carmell posture—he same (2000), a as, 513, 1620, 120 146 L.Ed.2d 577 529 S.Ct. U.S. after his 1992 Supreme opinion Court filed United States provision Mary- capital sentencing proceeding, unconstitutionally applied statute was penalty land death alleged and that this capital sentencing proceeding him his at decided may have resulted in the death sentence—we error 280, 855 A.2d at 309-310. the merits of that claim. Id. State, 127, Court, Md. recently, this in Baker v. 389 More (2005), illegal the historic applied approach A.2d 916 883 defendant, There, under sentence sentence review. filed, pursu- death, appeal, affirmed on direct which had been Sentence, 4-345(a), Illegal Motion to Correct an ant to Rule the Post-Conviction Proceed- Reopen as a Motion to well 131, Relief. 389 Md. at a Petition for Post-Conviction ing, and on a Uni- principally at 918. The defendant relied 883 A.2d 374

versity Maryland study of Maryland Capital punishment system conducted by Raymond Professor Paternoster of the University of Maryland, 131, 918, 389 atMd. 883 A.2d at study same upon case, relied which Evans relies the instant albeit for a different legal purpose. Contending study’s findings statistical that Maryland’s establish death penalty sought was more frequently depending on the racial combina- tions of the accused and the victim and depending on the geographic location of the prosecuted charge, the defendant argued that the death penalty him applied statute unconstitutionally. 132, 389 Md. at 883 A.2d at 918-919.

Relying constitutionality Maryland’s penalty death Eighth statute under the Amendments, Fourteenth citing Gregg 153, 168-69, v. Georgia, 2909, 2922-23, 428 U.S. 96 S.Ct. (1976) 859, (Baker State, II), L.Ed.2d 871-72 Baker 648, 676, 629, (2002) 367 Md. 790 A.2d and the lack of direct specific evidence in the record to “suggest death Baker’s sentence was surrounded impropriety kind,” (Baker State, I), citing Baker v. 332 Md. (1993),

A.2d pronounced Court Baker’s death lawful, sentence to be itself validly and, imposed, thus “not illegal pre-Oken under the general analytical principles gov 4-345(a).” erning motions brought under Rule Baker v. State (Baker III), 127, 137-38, (2005). 389 Md. 883 A.2d Evans, Acknowledging Oken and and the exception they rep resent, noting but the distinction between them and the case review, under the Court concluded that the approach, historic and not the exception, applied to Baker’s case. With regard exception, the Court observed: context,

“In capital sentencing a motion to correct illegal sentence enables the court to re-evaluate initial sentence to it ensure that is not illegal, as that term has been in defined our cases 4- considering Maryland Rule 345(a), predecessors, its and the It common law. is not opportunity for the parties litigate or re-litigate factual issues, but demonstrate, rather a vehicle to in particularly the case of the constitutional decision exception, newly that declared common penalty law causes a that legal when

375 aas matter of constitutional illegal to be now administered law.” omitted). Thus, (footnote 140, 924 883 A.2d at

Id. at exclusively almost Baker relies “because Court reasoned: judicial rather than a ‘new’ Study, Paternoster upon the law, to establish constitutional bearing on relevant decision fall sentence, not arguments his do in his argued illegality at in Oken Evans.” Id. exception recognized within the 138, 922-23. A.2d at 883 456, 462-63, State, 886 v. 389 Md. in Evans

Subsequently, decision, (2005), Baker 562, confirmed its 565 the Court A.2d by Raymond analysis “a conducted statistical holding and Criminal Justice Paternoster, Criminology a Professor of claims establishes University of which Evans Maryland, at the imple- discrimination in the geographic pattern of racial Maryland,” in “an penalty mentation of the death Baker, however, Like vehicle to raise this issue.” appropriate disavow, to the exception and did not recognized, recognized: this has approach “historic” Court State, that, v. 378 Md. Baker Oken acknowledged “We (2003), 1108, 184-86, 1105, cert. 179, 1157-58 835 A.2d denied, 2084, 1017, 158 L.Ed.2d 632 124 S.Ct. 541 U.S. 279, (2004), State, at 855 supra, Md. Evans v. 309, exception a limited recognized at had A.2d we a motion Rule and had entertained under general principle 4-345(a) an al sentencing proceeding, ‘in a capital where may error of dimension have contribut constitutional leged sentence, allegation death at least where the ed to the of the United States upon error is based a decision partly of this Court rendered after defen Court or Supreme ” sentencing proceeding.’ dant’s capital 566, Baker, supra, 389 Md. 463-64, quoting A.2d at Id. at Evans, 921, 382 Md. 136, supra, A.2d in turn quoting at at A.2d at 309. v. Wiggins the decisions It is Evans’ contention (2003), Smith, 156 L.Ed.2d 471 539 U.S. 123 S.Ct. Beard, 374, 125 S.Ct. 162 L.Ed.2d U.S. Rompilla 376 (2005), Dretke,

360 231, and Miller-El v. 545 U.S. 125 S.Ct. (2005) 2317, 162 196 L.Ed.2d are new “interpretations” relevant constitutional precedents, Wiggins and Rompilla v. Washington, Strickland 466 U.S. 104 S.Ct. 80 (1984) L.Ed.2d and Miller-El of v. Kentucky, Batson (1986), U.S. S.Ct. L.Ed.2d 69 his supporting that an argument may error have imposi- contributed to the death, therefore, tion his and, sentence of require correction of that illegal words, sentence. other Evans contends that received, the death he although legal sentence when imposed, is, light of these decisions illegal. Accordingly, now a Rule 4-345(a) is appropriate. agree. motion I

At his 1992 resentencing, Evans’ presented counsel a miti- gation case. It only testimony family consisted of six members, the essence of which grew up was that Evans in a family. professionals stable and supportive No to were called provide or mitigating expert opinion evidence respect with pre-criminal Evans’ or background justice system involve- ment. Aside from testifying they loved him hoped life painted his would be a spared, they picture of a home- life and environment that was happy and stable and of a family supportive testimony him. The described dinners, family outings family playful children and nurtur- ing and concerned parents, guided who them through their years. young testimony also reflected these relatives’ disbelief and astonishment that Evans had not accepted this and, instead, lifestyle had rejected it and his upbringing, favoring drugs life of and violence.

In preparing the mitigation they case would present, coun- sel did not commission history report a social prepared be and, thus, none was prepared. Although they retained specialist, mitigation part she was not made a of the defense team and was not asked conduct an investigation of Evans’ background family history. result, As mitigation specialist conducted almost no investigation, she never met spoke just Evans and a few of his family No members. one team, behalf, reviewed, the defense or on its critically, and, so, to Evans pertaining services records social pertinent testimony was neither painted by mitigation picture critically analyzed. nor questioned prepara and investigation contrasted with the

This is to be counsel, Wiggins and Rom by new after the tion undertaken the United States cases, infra, by were decided discussed pilla and mitigation specialist retained a Court. Counsel Supreme family Evans’ conducting investigation with charged her her history. Having report, psychosocial received and picture painted by from the findings of which were different indeed, and, resentencing was presented case at mitigation it,3 the services a with counsel retained direct conflict concluded, review to evaluate Evans. She after psychologist spe report by mitigation ing history prepared the social records, cialist, that Evans interviewing reviewing Evans and met, criteria for Post age so since and had done Disorder, Depressive and Severe Traumatic Stress Chronic Disorder, which, after nu Disorder, Anxiety and Generalized intervene, to left Evans vulnera opportunities merous missed City on to the criminal forces streets. ble capital In convicted of murder. Wiggins, defendant was attorneys to his un- capital sentencing proceeding, Prior his surprising. mitigation specialist interviewed Evans 3. This is not members, family twenty-nine a and well as childhood friend his spent thirty neighbor. door some hours and one-time next She interviewing and a number of Evans and collected reviewed records, school, prison, relating to and medical him. D.O.C.uments and specialist page report, mitigation produced a with a As a result the (9) "grew up summary, that page nine in which she concluded Evans conflict, predictable vio- a toxic household characterized chronic lence, reported frequent hopeless despair.” Specifically, and she father, Evans, childhood, during beating of his his abandon- severe occasions, parental expressions of love ment two the absence of or treatment, attempted approval, singled he that he was out for harsh that ten, age which and of which the suicide at he was never treated family spoke, sexually he was assaulted when he was eleven never that neighborhood verbally physically at in the harassed school and exposed pervasive was and violence in his and that he crime addition, mitigation specialist neighborhood. concluded that impacted by significant history family adversely were Evans and his problems mental-health and abuse and violence. of untreated substance successfully sought proceedings, to bifurcate those intending not prove Wiggins directly responsible for the and, failed, victim’s if present mitigation death defense. 539 at at U.S. S.Ct. L.Ed.2d at motion and, 481. The to bifurcate was denied coun although sel informed the jury opening statement that would hear id. at life,4 515,123 2532,156 about “difficult” Wiggins’ at S.Ct. produce, at they attempt produce, L.Ed.2d did or Id. Indeed, despite proffering such evidence. to the court presented case it would have its mitigation had bifurcation granted, motion been no evidence or information was offered Id. as to Wiggins’ history family life background.5 515- record, mentioning Wiggins In addition to had a clean counsel jury: going Wiggins told the "You're to hear that Kevin has had a easy It difficult life. has not been for him. But worked. he's He’s tried citizen, productive age to be a and he's reached the of 27 with no convictions, prior period.... convictions for violence crimes of and no important thing you Wiggins I think that’s an for to consider.” v. Smith, 510, 515, 2527, 2532, 471, U.S. S.Ct. 539 123 156 L.Ed.2d 481 (2003). Supreme 5. Court at Wiggins’s The was not all sure that counsel "did exclusively Wiggins’s responsibility ... focus on direct for the murder.” referencing opening noting specially After counsel's statement and up” proffer Wiggins’ history, "follow she did not with details of Court observed: time, criminologist testify "At the same called a to counsel serving adjust inmates life sentences tend to and well refrain from prison—testimony bearing further violence in with no on whether hand____ petitioner committed the murder his own Far from then, exclusively focusing petitioner’s responsibility, on direct counsel case, put mitigation taking precisely type on half-hearted of approach 'shotgun' Maryland Appeals Court of concluded counsel sought light, 'strategic to avoid----When viewed in this decision’ respondents justify the state courts and all invoke to counsel’s limited pursuit mitigating post of evidence resembles more a hoc rationaliza- description tion of counsel's conduct than an accurate of their delib- prior sentencing.” erations to Smith, 510, 526-27, 2527, 2538, Wiggins v. 539 U.S. 123 S.Ct. 156 471, 488(2003), State, 580, 609, Wiggins quoting L.Ed.2d v. Md. 352 724 1, (1999). referred, passage A.2d 15 In which the Court this Court stated: lawyers regarded "[Counsel] understood that some use he what as a ‘shotgun approach,' everything attacking hoping 'something and view, however, He preferring sticks.' was not of that to concentrate therefore, not, background his defense. He did have detailed

379 The case 2532, 156 mitigation at L.Ed.2d at 481. 16, 123 S.Ct. life “any [Wiggins’] evidence proffered did not involve 2532, 516, id. at at S.Ct. family background,” or history funds 481, the State made available although L.Ed.2d at 2533, 156 Id. 517, at those 123 S.Ct. at investigate matters. that he limited simply was had proffer L.Ed.2d at state, no childlike emotional exhibited ability, a intellectual empathy and desired patterns, capacity had aggressive world, supported all of which would be to function Id. 516, 123 reports expert testimony. at psychological 2532, at 481. Wiggins at 156 L.Ed.2d sentenced S.Ct. Wiggins Court, affirmed. death, appeal, this on direct denied, State, cert. (1991), 503 U.S. 551, Md. 597 A.2d 1359 (1992). 1007, 112 118 L.Ed.2d 427 S.Ct. relief, that his trial post-conviction Wiggins argued

Seeking his back investigate history family failure life counsel’s dysfunc then his present mitigating evidence ground He background was ineffective assistance counsel. tional case, in order to Strickland. Under that primarily relied counsel, a defendant must show prove ineffective assistance deficient, that it performance was fell below that counsel’s by prevailing of reasonableness defined objective standard norms, deficiency and that this professional prejudiced Strickland,, 466 U.S. 687-688, 104 at at S.Ct. defendant. L.Ed.2d at 693. of counsel argument, his ineffective assistance support presented expert testimony counsel Wiggins’ post conviction [Wiggins’] forensic social worker who “chronicled bleak by a at 156 L.Ed.2d history.” life U.S. 123 S.Ct. report, from social testimony history at 482. The “elaborate,” 516,123 539 characterized the Court as U.S. at 2531, 481, at prepared at 156 L.Ed.2d the social worker S.Ct. medical, service, and interviews from social school records prepared, although may reports funds have been available for that purpose. expressed He some concern that that kind of information prove counterproductive.” might 609, 724 Id. at A.2d at 15-16. 380

with Wiggins members, and numerous family and it provided “evidence of the severe physical and sexual [Wiggins] abuse suffered at the hands of his mother and while in the care of a series of parents.” 516, foster 539 2533, U.S. at at S.Ct. 156 L.Ed.2d at 482. Acknowledging failure to investigate Wiggins’ family background or history, life trial counsel de- that, fended on the trial,” basis ‘Veil they advance of had decided, re-trial, upon concentrate “retrying factual case,” 517, at 2533, 539 U.S. at 482, S.Ct. 156 L.Ed.2d at and disputing Wiggins’ direct responsibility for the murder. 517, 2533, 539 U.S. at 123 S.Ct. at 156 L.Ed.2d at 482. The trial court post-conviction relief, denied concluding, ‘Vhen the decision not to ... investigate tactics, is a matter of trial there is no ineffective assistance of 517-518, counsel.” 539 U.S. at 2533,156 123 S.Ct. at L.Ed.2d at 482.

This State, Court affirmed. Wiggins 580, v. 352 Md. (1999). 1A.2d It agreed with the trial court that counsel’s decision to concentrate on principalship deliberate, was “a tactical decision.” 352 at Moreover, Md. 724 A.2d at 15. the Court concluded that trial Wiggins’ counsel of Wig- knew gins’ childhood; all, unfortunate they after had available to them report the PSI prepared by Parole and Probation and detailed, the social services report albeit not as graphical- ly as petitioner’s social worker’s social history, instances of physical abuse, and sexual mother, alcoholic foster care placements and Thus, borderline retardation. the Court stat- ed that “counsel did investigate and were [Wiggins’] aware of background.” at Therefore, Md. 724 A.2d at 16. reasoned, Wiggins’ counsel “made a reasoned choice to pro- ceed with what they thought was their best defense.” 352 Md. 724 A.2d at 16.

The United States District Court for the District of Mary- granted land relief on Wiggins’ federal petition, habeas hold- ing that Maryland’s rejection of his ineffective assistance of counsel claim was an application unreasonable of clearly estab- Corcoran, lished federal law. Wiggins 164 F.Supp.2d (D.Md.2001). The Fourth Circuit Court of Appeals re- versed, holding that trial strategic counsel’s decision to focus

381 directly responsible that was not establishing Wiggins Corcoran, 288 Wiggins a reasonable one. the murder was (4th Cir.2002). Supreme 629, The United States F.3d 639-640 counsel Wiggins’ It that the actions Court reversed. held to effective right violated his Amendment sentencing at Sixth 2534, 519, 156 123 at of counsel. U.S. at S.Ct. assistance 539 L.Ed.2d at 483. Court, complained,

In as had Strick- Supreme Wiggins land, investigation limit his counsel’s decision to their about Court mitigation Supreme evidence. The availability investiga- expand not to held that trial counsel’s decision their records, they of which tion the PSI DSS records beyond and aware, professional “fell short of the standards already were that ... at Maryland practice, that ”—standard prevailed report, 539 U.S. prepare history Wiggins, time was to social 524, 2536, 486,—and scope at at 123 at 156 L.Ed.2d S.Ct. they light was investigation of the undertook unreasonable mother’s Wiggins’ the DSS revealed about what records foster alcoholism, siblings, treatment of him and his his her difficulties, etc., that the fact care emotional placements, mitigation indicating had uncovered no evidence that a counsel 525,123 be, be, or could 539 U.S. at unproductive. case would 2537, Indeed, was at 487. the Court S.Ct. at L.Ed.2d sentencing proceeding, the record because satisfied that as a mitigation never demonstrated counsel abandoned and, fact, on, attempt, albeit a “half put tactic one hearted” the unreasonableness counsel’s conduct “underseore[d] resulted suggesting investigate thoroughly that their failure to inattention, Id. at strategic judgment.” from not reasoned at 487. at 156 L.Ed.2d S.Ct. escape Supreme This did not Court’s criticism. Court fact, of an we were reminded reasonableness investigation by assessing, can not be determined attorney’s alone, knows; attorney court needs also reviewing what consider, determine, whether the known information further, attorney investigate would lead a reasonable a cursory investiga- does not establish that “Strickland automatically justifies respect tion a tactical decision with Id. at sentencing strategy.” at S.Ct. L.Ed.2d Accordingly, Court admonished: Court of Appeals’ application of Strickland’s Maryland “The governing legal principles objectively unreasonable. Though the state court acknowledged petitioner’s claim that prepare counsel’s failure to a social history ‘did not meet the minimum profession,’ standards of the court did not conduct assessment of whether the decision to cease all investigation upon obtaining the PSI and the records DSS actually professional demonstrated reasonable judg- merely ment----The state court assumed that the investi- In gation adequate. light of what the PSI and the DSS revealed, however, actually records counsel chose to aban- don their at an investigation juncture, unreasonable making a fully informed decision with respect sentencing strategy impossible. The of Appeals’ assumption Court that investigation was ... adequate thus reflected an unreason- Strickland. 28 U.S.C. 2254(d)(1). able application § As result, the court’s subsequent deference to counsel’s stra- tegic decision not ‘to present every mitigation conceivable defense,’ ... despite the fact that counsel based this alleged on choice what we have made clear was an unreasonable investigation, objectively was also unreasonable. As we Strickland, established ‘strategic choices made after less complete than investigation are precisely reasonable to the extent that professional reasonable judgments support the ” limitations investigation.’ on Id. at 527-28, 2538-39, quoting Wiggins, 352 Md. 123 S.Ct. at Strickland, 609-610, at 724 A.2d at 16 and 466 U.S. at 690- 691,104 2066, S.Ct. at 80 L.Ed.2d at 695.

Further, the Supreme Court determined that this Court had Strickland. 539 U.S. misapplied the standards articulated 527, 2538, at at S.Ct. 156 L.Ed.2d at 488. While caution- ing that its decision did not mean that Strickland required counsel to investigate every conceivable of mitigating line evidence no matter how unlikely the effort would be to assist the defendant at sentencing, and that Strickland does not require present counsel to mitigating evidence at sentencing case, principle re-asserted the every Supreme Court investigation complete made after less than choices strategic professional that reasonable only are the extent reasonable 539 U.S. investigation. the limitations judgments support held, L.Ed.2d It at at at 123 S.Ct. not to decision deferring counsels’ ultimately, “[i]n investiga- mitigation despite case their unreasonable pursue a tion, Appeals unreasonably applied Maryland Court at 156 L.Ed.2d 539 U.S. at 123 S.Ct. Strickland.” at 492 addition, that counsels’ Supreme Court concluded then, and, evidence investigate present mitigating

failure to with jury, confronted prejudiced Wiggins the extent evidence, may a different sentence. such have returned 2543,156 536,123 L.Ed.2d at 494. U.S. at S.Ct. specific on the pertinent question is also

Rompilla competence application to defense counsel of the reasonable 374, 377, Amendment, by 545 U.S. required standard the Sixth 369, 2460, 360, instructive, 2456, 162 and 125 S.Ct. L.Ed.2d alia, way teaches, by it inter more is of counsel required that of than possibility the evidence investigating mitigating interviewing on the and his simply relying and defendant 2462-63, 381-82, 2456, 545 125 family members. U.S. at S.Ct. There, 162 at 372. held “that Supreme L.Ed.2d the Court and the capital family even when a members defendant’s himself have that no evidence suggested mitigating defendant available, make lawyer his is bound to reasonable efforts prosecution obtain and review material that counsel knows the aggravation at the sen- probably rely will as evidence 377, 2460, of trial.” at tencing phase Id. at S.Ct. 369. L.Ed.2d at

To the the presented by justify the evidence State to oppose sought defendant—proof death it against sentence in factors that the murder was committed aggravating felony torture that the defen- course of another and felony convictions indicated significant history dant’s for rela- Rompilla use or threat of offered violence—counsel five tively testimony by family brief of the defendant’s mem- effect, doubt, argued, bers. Those witnesses for reasonable for begged jury mercy, on the basis of their belief that man, and, good defendant was innocent and a the case son, 14-year-old his that he loved his father and would visit him in prison. Although jury found the latter to be a factor, with mitigating along being possible, rehabilitation 378, sentenced the defendant to death. 545 at U.S. S.Ct. 2460-61,162 at L.Ed.2d at 370. case, their preparing mitigating trial counsel consulted

three Rompilla, family sources: his members mental and three little, health if They got anything, workers. of substance from Rompilla regarding background, his who responded ques- concerning schooling tions his by saying they childhood “normal,” except were for his out of dropping school the 9th and, instances, grade some sending counsel off on false 381, 2462, leads. 545 at U.S. S.Ct. at 162 L.Ed.2d at 371- Similarly, 372. little substance was developed by family Although them, members. counsel developed rapport with counsel did not have the feeling they knew that Rompilla well, And, he spent great since deal of time incarcerated. “because family ‘coming was from the position [Rom- pilla] ... they innocent weren’t looking reasons for ” why might he have done this.’ 545 U.S. at 125 S.Ct. at witnesses, 162 L.Ed.2d at 372. The three mental health likewise, “nothing revealed useful.” 545 at U.S. 125 S.Ct. 162 L.Ed.2d at Trial counsel did not consult records, school of Rompilla’s juvenile records and adult incar- cerations, police reports available during pre-trial discovery, or anything might have that Rompilla reflected had a 382,125 dependence 2463,162 on alcohol. 545 U.S. at S.Ct. at L.Ed.2d at 372.

The court post-conviction rejected Rompilla’s claims that his trial counsel had rendered ineffective assistance fail- by their ure to and investigate present, then at sentencing, mitigation childhood, concerning Rompilla’s evidence capacity, mental health, 378, 2461,162 and alcoholism. 545 U.S. at 125 S.Ct. at L.Ed.2d at 370. On the contrary, held that the trial counsel

385 of mitigation enough investigate possibilities to had done af- agreed and Supreme Pennsylvania The Court case. Pa. A.2d Rompilla, v. 539 658 Commonwealth firmed. relief, (1995). granted District habeas 626 The Federal Court counsel, the of counsel. Trial ineffective assistance finding determined, case, had failed mitigation preparing court had signs” Rompilla obvious investigate “pretty and alco- suffered from mental illness childhood and troubled own holism, unjustifiably Rompilla’s and instead had relied 545 at background. of an U.S. description unexceptional 125 at 162 L.Ed.2d at 370. The Third Circuit S.Ct. reversed, nothing that there Appeals concluding was Court Supreme application about the State Court’s unreasonable Strickland, counsel, attempted who had opining that defense family mitigation Rompilla, from certain uncover evidence Horn, members, experts, Rompilla health three mental (3rd Cir.2004), had far and done gone enough F.3d 355 F.3d enough. at It Supreme granted Court certiorari reversed. that, family capital even when a defendant and his

held avail- mitigating have that no evidence is suggested members able, to make efforts to obtain lawyer his bound reasonable prosecution will material that counsel knows the and review trial’s rely on at the probably aggravation as evidence 385-386, at sentencing phase. 545 S.Ct. at U.S. Thus, at failure to Rompilla’s

L.Ed.2d 374-375. counsels’ Rompilla’s prior rape examine a court file on and assault conviction, a with which he was crime similar the one 385-386, 545 U.S. at charged, deficient. S.Ct. 2465-2466,162 L.Ed.2d at 375.

Further, file forgo reasonable would examination of the lawyer

“[n]o or asking he well thinking could do as defendant they helpful family anything relations whether recalled testimony. damaging prior victim’s Nor would school lawyer compare possible reasonable searches for records, juvenile drinking evidence habits reports, disclosing to take a look at a file what opportunity and prosecutor plans knows even read from in his case. family searching a few more members and Questioning in promise looking old records can less than for a a needle haystack, lawyer truly when has reason to there is doubt any needle there.”

545 U.S. at 125 S.Ct. at 162 L.Ed.2d at 376-377. Wiggins Rompilla majority The asserts that and are a mere re-applications of Strickland to the facts of those cases, and, such, are not new interpretations princi- of Constitutional 275-76, 276, ple. 396 Md. at at To the A.2d 36-37. majority, correction, apparently those cases are mere error no having absolutely precedential value and not one informing counsel, future of ineffective when review assistance even therefore, they point. are directly Matter-of-factly, Wiggins Rompilla, majority especially dismisses and their analysis:

“Nothing Wiggins Rompilla changed, in way, in any Strickland. adopted those in Wiggins standards Court the Strickland standards on and expressly applied relied concluded, simply based on its view the factual record case, that, in that given they the information had regarding childhood, Wiggins’s scope counsel’s failure broaden the of their in possible into investigation mitigating factors death penalty case was both and prejudicial deficient under Indeed, the Strickland standards. the Court its began discussion of the ineffective assistance claim by expressly noting that established legal principles ‘[w]e that govern Strickland v. claims of ineffective assistance counsel Smith, v. Washington____’ Wiggins supra, at U.S. 521, 123 2535, 156 S.Ct. at L.Ed.2d at 484. Wiggins, Rompilla

“Like in expressly applied Court Strickland standards enunciated find deficient prejudicial performance by counsel. No new or different interpretation of Strickland was announced. Indeed Justice Strickland, O’Connor, the author Opinion noted Rompilla decision ‘simply applies that the our longstanding determining attorney’s whether case-by-case approach under Strick- unconstitutionally deficient performance I J., (O’Connor, Concurring).” Washington... land 276, 914 A.2d at 36-37.6 Id. purports to Wiggins Rompilla sure, nor neither

To be ineffective legal principles governing the change established See Strickland. in of announced counsel claims assistance 521, 2535, 156 L.Ed.2d at at Wiggins, 539 at 123 S.Ct. U.S. 2462, 162 380, at 125 at L.Ed.2d Rompilla, 545 484; U.S. S.Ct. indeed, concerned, so, are, seriously with and They at 371. in established principles well simply application not the Strickland, but with by progeny, to clarified its sought and be principles. of those application reasonable proper the and in or Thus, not error correction exercises these cases are mere futility.7 fact, the only when permitted, review is

Federal habeas “clearly sought law is is estab as to which review federal time the state Court at the Supreme precedents lished” 2254,8 § amended the filed. 28 court decision is U.S.C. applicability majority rejects the only is the basis on which the 6. This 4-345(a) analysis, majority other nor Rule to this case. The offers no address, Supreme acknowledge, or even whether the Court’s does Court, Pennsylvania Wiggins, the Su- determination that this Court, unreasonably” Rompilla, "objectively applied preme Strickland, had impact very may issue other cases in which that have could been, been, or could have raised. reminding Wiggins’s empha- worth of what the Court It is ourselves 7. reviewing regard responsibility of the court sized with to the when the adequacy investigation at issue: investigation assessing attorney's ... a “In the reasonableness of already quantum only court must of evidence known consider counsel, would also the known evidence lead a but whether attorney assuming investigate further. Even [counsel] reasonable reasons, scope investigation strategic limited the of their Strick- cursory automatically investigation land does not establish that a strategy. justifies respect sentencing Rath- tactical decision with er, reviewing must investi- court consider reasonableness strategy.” gation support said to 488, 2538, citing U.S. at S.Ct. at 156 L.Ed.2d at Strick- 539 land, 123 at 695. 466 U.S. at L.Ed.2d S.Ct. 2254(d), provides: § U.S.C. 8. 28

“Antiterrorism and Death Act Penalty Effective of 1996.” clear, Wiggins, made scope provision: Court

“In for a order federal court to find a state court’s applica- ‘unreasonable,’ tion precedent of our state court’s deci- sion must have been than more incorrect erroneous.... court’s application ‘objectively The state must been have ” unreasonable.’ 520-21, Wiggins, 539 U.S. at S.Ct. at L.Ed.2d at granted certiorari Having application review the “clearly it, established Federal law” as it had determined having applied decided the state court had the law objectively I would unreasonably, surprised, be and I suspect so, be Supreme Court would more to learn that a state previously court found to have misapplied “clearly estab- law,” expected lished Federal was not to consider the decision cases, issue, so concluding, apply it in involving same that arise that subsequently, many and neither are the other all, state courts that will on it. apply be called to After the point appellate of review is to instruct bench and bar as to the provide law and to precedents they that must It follow. sense, trivializes, believe, makes no not to I mention that it the function, Supreme review to a permit Court’s court that has been application educated as to the of a proper well-estab- Court, precedent lished legal Supreme the one that the Court has determined has misapplied “objectively been unrea- to sonably,” apply to avoid that having precedent on the merits, when the which issue to it relates is raised in the a court, context of proceeding, sanctioned in this "(d) application corpus person An for a writ habeas behalf of a custody pursuant judgment in to a the State court shall not be granted respect with adjudicated to claim that was on the merits of the claim— n adjudication proceedings in State court unless the "(1) to, a contrary resulted in decision that was or involved an of, law, application clearly unreasonable established Federal as deter- States; Supreme mined Court the United "(2) in a resulted decision that was based on an unreasonable deter- light of the presented mination facts in of the evidence in the State proceeding.” court provide or to instance, illegal to sentences consider whether error, the effect relief, because discretionary simply other as a “new is not characterized prejudicial, as just of which is I sorry, am precedent. Court Supreme of that interpretation” and, particular interpretation, a me, out that pointing but unreason- “objectively therefore, of a is precedent application, result, if it does able,” effects the same has same feel and thing. amount to the same not a pursuing be purported

In where counsel Wiggins, a presenting only mitigation, not include strategy that did history neglecting to do a social case and “half hearted” that deferral counsel’s was instructed report, this Court objectively was unrea- mitigation relating tactical decision made it reasonable available information because sonable and the investigation more of an counsel to have conducted decision, deferring to counsel’s required, was before Court in mind. knowledge counsel had with to evaluate the albeit, case, case, it a was presented mitigation counsel this too did not do a social They one. particularly strong total, representations in history accepting, report, to the family members as accura- assurances of Evans and his If for the there they “painted” jury. cy picture performance Wiggins, where miti- deficiency was all, case, secondary, only if a at was there gating priority case, mitigation certainly this where deficiency was was, case, such and it was the defense’s presented especially light Rompil- This the case primary focus. recognition, teaching, investigative that counsel’s re- la’s with, and are not co-extensive beyond, extend sponsibilities or her family. he learns from client his what or she at 162 L.Ed.2d 545 U.S. at 125 S.Ct. this case and critically important, This is point latter case mitigation without Rompilla presenting demonstrate: considering investigation, full or without how adequate an and the defendant and against what is can be used presented effect, well opposite very may the may whether have case. mitigate, the defendant’s As aggravate, rather than out, picture the the points adopted all but prosecution Evans mitigation painted, Evans’ telling jury, case with agreeing Evans, that family his was “a group people,” wonderful “an support system,” right.” excellent who him “brought up Pro- that, from ceeding premise, point that it made the viewed from all, that perspective, aggravated, Evans’ actions were “after there, they always were there. always Anytime he walked help, help.” over and asked for he had Wiggins and Rompilla are constitutional decisions can be, be, and in logically applied should connection with a Rule 4-345(a) challenge illegal motion to an Both sentence. hold- ings application establish the boundaries of reasonable court, evaluating Strickland claims, which a reviewing must its analysis. They confine make clear that any sentence that is result of “objectively unreasonable” application clearly guiding principles, established ones announced by the Court, illegal Supreme is and thus reversible.

A analysis applies empanelment similar to Evans’ jury argument. Evans prior was tried to the decision in Batson Kentucky, U.S. S.Ct. L.Ed.2d (1986). His jury consisted of ten whites two African- Americans, alternates, two, exclusive which there were one white the other African-American. Although only the jury pool African-American, 31% of were prosecution of its peremptory used 80% strikes to exclude African-Ameri- When, jury selection, cans from the venire. at the jury end of prosecutor’s use of his peremptory strikes challenged, was responded by indicating he that he had exercised his strikes on the basis of the venireperson’s “background, age, occupa- tion, was during what learned voir dire at bench open court.” the trial court denied Although objection, Evans’ and, it subsequently acknowledged, effect, endorsed, prosecutor’s raced-based, strikes may have been noting presume “it’s logical perhaps prosecutor] [the get jury trying roughly composition which reflects the of a county.” cross-section of the This consistent with what prosecutor told trial regard court with to the racial

391 county population 22% the County, of the “that composition regular jurors—two and three of the African American was 21.4% black, which constituted one jurors and alternate—were the prosecutor transcript reflects The trial panel.” he struck the African-Americans eight one of only questioned jurors. white similarly situated he did not strike and that There, II. Dallas similar in Miller-El A evident pattern was 10 14 strikes peremptory of their County used prosecutors (10 11) of 91% of process striking in the jurors, black strike during selec- jury members black venire eligible, qualified the trial. murder 545 U.S. capital for Miller-El’s petitioner tion 2325, 214. Miller-El’s 241, 162 L.Ed.2d at 125 S.Ct. at at 202, 824, Alabama, 85 380 S.Ct. under v. U.S. objection Swain Batson, (1965), over- predecessor was 13 759 L.Ed.2d convicted, no ruled, finding systemic trial court and he was 2322, 236, 162 125 at 545 U.S. at S.Ct. exclusion blacks. decided, objec- Miller-El’s 211. After Batson was L.Ed.2d at case, court of that but trial light tion reviewed racially and that no found that the were race-neutral strikes was affirmed That decision motivated strikes occurred. court federal district Appeals, the Texas Court of Criminal Johnson, relief, No. v. Miller-El habeas Miller-El Civil denied 2000), 3:96-CV-1992-H, (N.D.Tex., 5, June 2000 WL 724534 Supreme Fifth Circuit affirmed that decision. The 237, 125 545 U.S. at Court certiorari and reversed. granted on, 2323, Focusing as Evans S.Ct. at 162 L.Ed.2d at it, strong statistical the State’s disparity characterizes “the Americans,” the African peremptory against use of strikes Court noted: describing perempto use prosecution’s

“The numbers 108- 20 black members of the ries are remarkable. Out of trial, 1 only served. person panel venire Miller-El’s 10 by agreement, for cause or Although 9 were excused Id. prosecution. [Miller- struck peremptorily were 1036, Cockrell, 322, 331, El 537 U.S. S.Ct. (2003)]. per their prosecutors ‘The used L.Ed.2d African- eligible 91% of the emptory strikes to exclude Happenstance unlikely members.... American venire Id., disparity.’ this at produce U.S. 123 S.Ct. 1029.” 240-41,125 2325,162

545 U.S. at S.Ct. L.Ed.2d at 214. guided by Court also was surrounding circumstances each strike, including the of disparity treatment of African Ameri- can and white venire comparative members. The extensive Court, analysis undertaken id. at see at 239- U.S. 2325-32, 213-221, at S.Ct. at L.Ed.2d made this fact evident and it to proffered caused note that some of the African explanations striking for Americans with applied equal force to of some the white venire members were who not challenged. The Court concluded: a prosecutor’s prof- “[i]f fered reason black striking panelist applies just for as well serve, to an otherwise-similar is to permitted nonblack who prove that is evidence tending purposeful discrimination.” at Id. 125 S.Ct. at 162 L.Ed.2d at 215. Another circumstance determined to be significant was whether the prosecutor dire, voir engaged, during meaningful voir dire “post strike; not, on the hoc” reason for if he or she did concluded, that an implausibility. Court indicia of Id. at 244,125 2328,162 S.Ct. at L.Ed.2d at 217. the Court Finally, see, found, looked to and evidence of discrimination past at prosecutor’s 253-265,125 2332-2339, office. Id. S.Ct. at 162 L.Ed.2d at 222-229. case, of

Every aspect analysis this applies Evans’ spades. Statistically, numbers as are “remarkable.” The of the applicability explanations striking blacks some non-challenged just whites is as dearth evident. The voir dire in relation to the “post explanations just hoc” is case, however, lacking. the, least, as In this is tacit, there at trial finding by the court the strikes were race-based. it may matter; That seen finding benign have this as does not thus, it and, buttresses the case for error illegal sentence review.

The majority responds to Miller-El as it does to Wiggins no Rompilla, and that makes new it is not pronouncement, interpretation, simply application new This Batson. case and, therefore, is an habeas case was decided under 28 U.S.C. such, 387-88, at As 914 A.2d 2254, see 8 at supra note § Wiggins applicability support I what said 4-345(a) to this applies equally review to a Rule Rompilla significance to the what Evans notes I will add case. Wiggins also applies cases, a comment habeas Rompilla discussion: by the decision underscored import of the Court’s

“The review, habeas relief federal obtained fact Miller-El which standard under subject to a deferential which is correct presumed are by state courts determinations ‘factual contrary,’ and to the convincing evidence absent clear objec- overturned ‘unless will be factual determinations in the presented light of the evidence unreasonable tively ” proceeding.’ state-court 1041, 154 I, at at 123 S.Ct. (Quoting Miller-El U.S. 952). L.Ed.2d

B. of § 7-102 (2001, 2006 Cum.Supp.) Maryland Code provides: Procedure Article Criminal 7-103[9] (b) section, §§ and “(a) of Subject to this subsection 7-104[10] title, a 2 of this and of this subtitle Subtitle title in a under this may begin proceeding person convicted took county in the conviction court for the which the circuit that: person time if the claims place any (2001, Proce- Supp.) § 7-103 of the Criminal Maryland 9. Code provides, Article as relevant: dure petitions filing of of "§ Number and time 7-103. sentence, petition ‘‘(a) person may only file one a For each trial or relief under this title." (2001, Supp.) § Proce- Maryland 7-104 of Criminal Code provides, dure Article as relevant: " proceeding Reopening postconviction § 7-104. proceeding previ- was may postconviction reopen a "The court is in ously determines that action if the court concluded justice.” of interests “(1) the or judgment sentence imposed was violation Constitution the United States or the Constitution State; or laws of the

“(2) the jurisdiction sentence; court lacked to impose the “(3) the law; sentence exceeds the maximum allowed or

“(4) the sentence is subject otherwise to collateral attack ground a error alleged that would otherwise be available under writ of corpus, habeas writ of coram nobis, or other common law or statutory remedy. “(b) person A may begin proceeding if: under this title

“(1) person seeks set to or the judgment aside correct sentence; “(2) the alleged error has not previously finally been litigated or waived in the proceeding resulting in the conviction or in other proceeding the person has to taken secure relief from person’s conviction.” Our approach petitions post reopen conviction proceed- ings this provision under recently most highlighted State, v. Gray (2005). 366, 388 Md. 879 A.2d 1064 Gray, the defendant had been convicted of second-degree murder a handgun use of in the commission of a violent crime. 388 Md. at 879 A.2d at 1065. He filed “Petition to Reopen Post Conviction Proceedings” pursuant §to 7-104 the Criminal Procedure Article. 388 Md. at 879 A.2d at 1065. The trial court the petition, finding denied be in the of justice interest so. do 388 Md. at 879 A.2d at 1065. After the Court Special Appeals affirmed deci- State, sion, Gray Md.App. (2004), A.2d 1176 granted this Court certiorari to determine whether the Circuit Court required provide was a written statement supporting its denial of relief. 388 Md. at 879 A.2d at 1065. In holding that no such required by statement was Court, Circuit explained § we 7-104 allows a court to reopen a post-conviction proceeding that was previously con- “ cluded, ‘if the court determines the action is in the ” justice.’ interests of 388 Md. at at 1073, citing A.2d removed). of requires the exercise That (emphasis § 7-104 a trial court’s Therefore, whether analyzing discretion. proceeding reopen post conviction petition of a denial discretion, explained: we an abuse general, amor- very is one those discretion

“Abuse with apply great courts use and appellate terms phous in many different which have defined they but frequency of discretion under abuse ruling reviewed ways____[A] appellate simply not reversed because standard will be ruling. The decision not have made same court would any center has to be well removed under consideration from beyond court and reviewing mark imagined minimally acceptable. what that court deems fringe of among of ways, can arise in a That kind of distance number logically either does not follow ruling which are that the no rests or has findings upon supposedly from the which That, objective. its announced relationship to reasonable think, grounds, within the notion of untenable we is included logic and effect of logic, against of fact and violative the court.” facts and inferences before 1073-1074, 383-384, citing at A.2d at Dehn 388 Md. (2005) (Em- 606, 628, 865 384 Md. A.2d Edgecombe, omitted). added, quotations internal phasis this standard should be majority acknowledges that The post-conviction the 1995 reopen motion to applied Evans’ 277-79, at The at 914 A.2d 37-38. 396 Md. proceeding. that, Wiggins, Rompilla, majority then states because cases, their man- II not abuse discretion Miller-El were evaluation in the not to an abuse discretion apply dates do 278-79, Md. at 914 A.2d judice. case sub Wig- assert that petitioner I does not agree. cannot cases, II are of discretion and Miller-El abuse gins, Rompilla, relied require precedents upon that the § 7-104 does that, point given be of discretion cases. Evans’ abuse decisions, Court albeit rendered habeas Supreme three made, this review, a decision on the merits had be where case, Court, on its court denials this could review trial conclude, conclude, and should so that the trial court abused its discretion.

In Wiggins Rompilla, and the Supreme Court held that this Court and Supreme Pennsylvania, Court of respectively, objectively Strick- unreasonably had applied holding its land. U.S. S.Ct. at at 488. L.Ed.2d The Court the same with regard drew conclusion to the Texas of Court Criminal of holding Batson. Appeals application its are rulings by Supreme Court, Those definitive only made determining not, after that its well established precedent apparently, so well understood as to reasonably, be applied if incorrectly even I am erroneously. surprised to learn Supreme may Court decisions be disregarded whenever to applied by standard be a trial is discretionary, court raised, that even properly timely when they summarily can rejected applicable, be as even before the trial court an, therefore, and, undertakes without any, analysis specific to fact, least, the case or facts and circumstances. at the level of specific analysis some case must if be made the trial discretion; court to exercise unless the court considers the merits, argument light on the the facts the defendant’s case, it properly cannot and logically exercise discretion. Just important, as such analysis required should be so that review this Court the issue is meaningful.

Unless an on analysis the merits is required and this Court seriously decision, reviews the discretionary we pay only lip service to availability remedy of reopening postcon- I proceedings, viction and what absolutely lamented earlier is true: sense,

“It makes no to trivializes, mention that it I believe, the Supreme function, Court’s permit review to that has court been educated as the proper application legal Court, well-established precedent the Supreme one that the Court has determined misapplied has been ‘objectively unreasonably,’ having avoid to apply merits, precedent when the issue to which relates is raised in the context of a proceeding, sanctioned court, instance, in this whether to consider illegal sentences relief, simply because discretionary provide other is not error, just prejudicial, as of which is the effect Supreme of that interpretation’ a ‘new characterized me, that a pointing out sorry, I am but precedent. Court therefore, of a application, and interpretation, particular unreasonable,’ feel has the same ‘objectively precedent result, to the it not amount if does effects the same thing.” same

C. Evans, 124, Armstrong, States v. in No. claims that United (1996), 456, 116 1480, 134 687 mandates L.Ed.2d 517 U.S. S.Ct. discovery appropriately to order that he be entitled claims. The prosecution selective effectively present to his is no such mandate. 396 turn, holds that there majority, in I 319, disagree. at at 914 A.2d 62. Md. showing Armstrong, Supreme Court considered

In discovery must make to be entitled a defendant prose- him out for attorney singled prosecuting that the claim 1483, 458, at 134 at 116 on race. 517 U.S. S.Ct. cution based theory claim was the Armstrong’s 694. L.Ed.2d at Crucial defendants prosecute had declined government 458, 116 similarly 517 U.S. at that were situated. other races 1483, at at 134 L.Ed.2d S.Ct. for conspiring arrested

Armstrong colleague and a had been more 50 grams the intent to distribute than with possess same, for (crack), conspiring to distribute cocaine base 1483, 458, 517 116 S.Ct. at offenses. U.S. at federal firearms indictment, to the response at 694-695. In 134 L.Ed.2d discovery, alleging for selective filed a motion Armstrong 459, 1483, at at 116 S.Ct. on race. 517 U.S. prosecution based one of allegation every that in at 695. The stated 134 L.Ed.2d charges similar as the ones that contained cases was black. against Armstrong, the defendant brought 1483, at 695. The 459, at 134 L.Ed.2d at 116 S.Ct. U.S. motion, government instructing granted District Court deciding regarding information the criteria to produce when to prosecute cases which it had charged both firearms and cocaine offenses. 517 at U.S. S.Ct.

L.Ed.2d at 695. government When the comply, refused to case, District Court dismissed the and the Ninth Circuit Court of Appeals affirmed. reversing, the Supreme Court held: requirements

“The for a selective-prosecution claim draw on ‘ordinary equal protection standards.’ ... The claimant must demonstrate that the prosecutorial policy federal ‘had discriminatory effect and that was motivated discriminatory purpose.’ ... To establish a discriminatory case, effect in a race the claimant must show that similarly situated of a individuals different not prosecuted.” race were 517 U.S. at 116 S.Ct. at 134 L.Ed.2d at 699 (citations omitted).

Moreover,

“Having reviewed the requirements prove a selective- claim, prosecution turn to showing we necessary to obtain discovery of such support a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate refute the defen- dant’s claim. Discovery imposes many thus of the costs present when the Government respond must to a prima facie case of prosecution. selective It will divert prosecu- tors’ may resources and disclose the prosecu- Government’s torial strategy. justifications The a for rigorous standard for the elements of selective-prosecution a claim thus re- quire a correspondingly rigorous standard for discovery in aid of a such claim.” 468,116 1488,134

517 U.S. at at S.Ct. L.Ed.2d at 701. a discussing correspondingly of what rigorous standard consist, discovery for should test for such a showing, “colorable basis” or “substantial threshold showing,” employed by the Courts of Appeals, the Supreme Court remarked: Appeals

“The Court of held that a may defendant establish a colorable basis discriminatory effect without evidence that the Government has failed to prosecute who others are it was think We to the defendant.... similarly situated mistaken in this view. case, prosecution of selective if the claim present

“In the insuperable founded, it not have been should well were being treated races were other prove persons task instance, respondents For differently respondents. than persons similarly situated have whether investigated could of California by the State prosecuted of other races were officers, but law enforcement known to federal and were re- think the court. We in federal prosecuted were treatment of different showing credible threshold-a quired the Gov- persons-adequately balances similarly situated the defen- vigorous prosecution ernment’s interest prosecution.” selective avoiding interest dant’s 1488-1489, 134 at 469-470, at L.Ed.2d at 116 S.Ct. 517 U.S. omitted). (citations Therefore, Armstrong, under 701-702 situated similarly of different treatment showing credible discovery by the defendant. justify will persons that: Armstrong proposition for the majority cites ..., claim, the claimant prosecution “To establish selective policy ‘“had a prosecutorial must demonstrate aby motivated discrim- effect and that was discriminatory ’ 1487, 465,116 at 134 L.Ed.2d id. at S.Ct. inatory purpose,” States, 470 U.S. quoting Wayte from v. United (1985), 1524, 1531, 84 L.Ed.2d S.Ct. case, in a race ‘the claim- discriminatory effect establish a individuals similarly show situated ant must Arm- States v. were not United prosecuted.’ race different at at 116 S.Ct. 517 U.S. strong, supra, added).” (Emphasis L.Ed.2d at 319-20, at 62-63. at 914 A.2d 396 Md. ele- to establish the having Armstrong used majority,

The argu- never Evans’ returns prosecution, ments of selective only showing of a threshold Armstrong requires ment that Instead, discovery. to obtain prosecution order selective that, Armstrong was not a because majority explains case, penalty death and did not analysis involve statistical judice, like the case sub Evans is not entitled relief. 396 321-22, clear, Md. at at however, 914 A.2d 63-64. It is neither of these factors makes reviewing difference in discovery whether is warranted in a prosecution selective claim. case,

In Armstrong’s there was no showing—the study he identify submitted failed to who individuals were not black offenses, could have been prosecuted for similar but were not prosecuted. 470,116 1489,134 so at 517 U.S. at S.Ct. L.Ed.2d at 702. The Dr. Paternoster statistical analysis in the case however, judice, significantly sub depth more in than the and, study such, conducted in Armstrong, does satisfy the Armstrong Accordingly, standard. it does mandate the relief the Evans seeks.

The study provides Paternoster substantial evidence that County the Baltimore Attorney’s State’s singled Office out black from similarly defendants situated white defendants when choosing whom to seek the against penalty. death study reflects that the Attorney State’s will seek the death penalty of 83% the time when the defendant is black and the white,

victim is will seek but the death penalty only 60% the time with respect all other racial combinations. These two alone, statistical findings, trigger mandate of Armstrong. do they While not mean that prosecution selective definitively established, has been merely warranted, I discovery is do how, see light body the immense of evidence present- Paternoster, ed Dr. the threshold has not been satisfied. Brown, (9th

This case is unlike Belmontes 414 F.3d 1094 Cir.2005), a 321-22, case cited at majority, Md. A.2d at 63-64. That case involved the merits the selective prosecution claim that the defendant brought against State. The Ninth Circuit Court Appeals rejected claim, concluding produced the State had evidence that ade- quately rebutted it. 414 F.3d 1128-29. It explained:

“While we think that Belmontes’ statistics provide a strong discrimination, showing intentional we need not decide case, stand- discriminatory charging statistics whether, in a Assuming case. prima a facie can make out ing alone out a made Belmontes has can and that they that arguendo that case, provided has evidence here the State facie prima deposition, In his showing. that to overcome is sufficient pursue to a he that when decided prosecutor stated the Belmontes, reason believe he had against death sentence had shot and Belmontes the murder to McConnell prior short, asserted prosecutor In Jerry Howard. killed Belmontes, not because against penalty a death pursued he alone, he believed but because McConnell’s death murder. than one committed more actually Belmontes had Moreover, provide record is sufficient in the the evidence Thus, to be appears there belief. good a faith basis such prosecutor to seek reason for legitimate, race-neutral case, suffi- and therefore particular sentence in this death inference discrimination to rebut cient evidence study. important, More by Belmontes’ statistical raised assertion that challenge not state’s Belmontes does facie prima sufficient rebut his explanation is prosecutor’s case.”

Id. case, and, short, anything if seems inapposite

That In showing required in this case. the threshold support claim reiterate, event, prosecution the merits of the selective I into table; inquiry this is a threshold yet not on the are I that Evans has discovery is warranted. believe whether satisfied burden.

D. Evans, involving contests two items State’s No. (D.O.C.), department that carries Division Correction majori- I with the injections. disagree Since out lethal do issue, only I address “regulation” need ty’s disposition State, 381 Md. I in Oken v. the issue as to which dissented (2004), proto- contention that the D.O.C. A.2d 538 Evans’ (1999, 2003 Cum. Maryland Code cols are inconsistent with Supp., § 2005 Supp.) 8-905 of the Correctional Services Arti- cle. State, Oken Court, Md. A.2d this in a order,

per curiam Stay denied Oken’s Motion for of Warrant of Execution Supporting Exhibits, and rejecting his challenge to the method of of execution the Division Correction intended in putting use him to argued death. He had that that method § Article, violated 3-905 of the Correctional Services constituted cruel and unusual punishment.

The majority that in judice, concludes the case sub like in Oken, the Operations (EOM), Execution Manual which gov- aspects erns the a which death by injection sentence lethal is implemented, § is inconsistent with 3-905. 396 Md. at 336, 914 A.2d at 72-73.

Maryland § provides: 3-905

“(a) of The manner inflicting punishment of death shall be the continuous intravenous administration of a lethal of an quantity ultrashort-acting barbiturate or other similar drug in combination awith chemical paralytic agent until a physician pronounces licensed according death accepted standards medical practice.

“(b)

“(1) The administration of the lethal required substances by this section is not the practice of medicine.

“(2) law, Notwithstanding any other a pharmacist or pharmaceutical supplier may dispense drugs, without a prescription, to the Commissioner or the Commissioner’s designee carry out this section.” clearly The statute requires the D.O.C. to use two sub- stances, a barbiturate or similar drug, and a paralytic chemical agent. It also describes “the inflicting manner of the penalty death,” how they are to be used combination: “continu- administration,” ous intravenous in combination, until is death pronounced.

The currently method employed by D.O.C. not at all consistent with this statutory requirement. It involves the of sodium syringes different chemicals—two use three sedative, pancuroni- each of both syringe one pentothal, chloride, agents. lethal potassium both um bromide 330-31, 914 Md. at majority, as described process of two “bursts” clearly describes the use A.2d at agents. signifi- This barbiturate, paralytic and two chemical me. authorizes disturbs from what the statute departure cant (Bell, Oken, 851 A.2d at 539 I 381 Md. at As stated C.J., dissenting), “ a quick acting intravenous administration’ ‘Continuous is, I

barbiturate, paralytic agent, ‘in with a combination’ administration, submit, from the intravenous vastly different barbiturate, agent and paralytic potassi- successively, chloride, being separated each discrete administration um of the line.” flushing a saline language is clear and statutory It to me that the seems clear characterizes, not, an majority as the This is unambiguous. construction, 332, at 914 at 70. 396 Md. A.2d statutory of issue State, held, that in Kilmon v. recently “[i]f most We’ve unambiguous according when construed language is statutory effect to give then we ordinary everyday meaning, its and 168, 172, 306, A.2d 394 Md. 905 the statute as written....” (2006). State, 431, 443, 903 A.2d also Chow v. 393 Md. 308 See Inc., 388, (2006), Marketing, 391 Md. Mackey Compass 395 v. State, 479, (2006), Md. 117, 141, 493 383 892 A.2d Collins (2004). 684, 689, A.2d 730 did not Legislature say that majority

The states because could have paralytic agent,” clearly when “one chemical “an” so, meaning of the words renders the actual done this thus, legislative of exploration ambiguous, and “a” clear, legislative so no The statute is required.11 intent is articles, majority’s and “an” as indefinite The discussion "a” article, “the,” they is is without opposed to which claim a definite give I me “the book” as it is true that if ask someone merit. While book,” necessarily implies a opposed of the word “the” to “a use may imply object, “a” an indefinite specific and the use of the word something singular. object, change “a” this not that refers to does majority state the article "a” can has cited cases which While Indeed, is digging necessary. if even there were ambiguities, the benefit any ambiguity would given be the defendant. Oken, I explained As event,

“In is indeed, this statute highly punitive, given the intended implementation, result its it could not be result, more so. As a if it ambiguous, even were the rule of is, lenity would apply, benefit the ambiguity would be required given be to the defendant.” 582-88, Melton, Md. at at 851 A.2d citing 379 Md. at 488-89, 842 A.2d at 753.

It is of little consequence that other States with similar statutes employ the same three legal chemicals with no chal- lenge; we should be only Maryland concerned with law. The chemicals, statute authorizes two are three used. This § clearly violates 3-905. majority claims “the Legis- that, lature well aware if it enacted the statute authorizing injection, lethal the statute would be implemented by the three-drug is mixture----There no that any evidence member Legislature questioned whether the approach described by the Commissioner would be consistent with the statute.” 396 Md. at Oken, A.2d at 72-73. As I stated in (Bell, Md. C.J., 851 A.2d at 540 dissenting): me, “... question [F]or the critical is proce- whether the with, with, dure is comports consistent or is the procedure contemplated by, the statute. Because I conclude that it is and, fact, statute, violative of the I dissent.” Judge GREENE joins authorizes me to state he in Parts C D only of this dissent. contexts, interpreted be as "more than one” in certain it is indeed the 3-905, context is plain which most relevant. language § Under the the words "an” and “a” anything cannot be understood to refer to except single items. remains, Assuming "ambiguity,” question how does one explain death, ambiguous, that which is not inflicting manner of injection, opposed continuous certainly "short bursts.” There nothing ambiguous about majority's that. The "ambiguity” strained approach vary completely serves to the statute.

Case Details

Case Name: Evans v. State

Court Name: Court of Appeals of Maryland

Date Published: Dec 19, 2006

Citation: 914 A.2d 25

Docket Number: 107, 122-124 September Term, 2005

Court Abbreviation: Md.