A Governor's Race For Judges, as Well

Winner's Picks Could Swing High Court

Maryland's next governor will leave his imprint on the state's highest court to an extraordinary degree, filling at least three of seven seats and potentially influencing the direction of the state judiciary on the death penalty, gay marriage and other contentious issues.

Three current Court of Appeals judges are nearing 70, the mandatory retirement age. Judges Alan M. Wilner and Dale R. Cathell will be required to stop hearing cases by January and July of next year, respectively, with Irma S. Raker hearing her last case the following year.

The current court's support for the state's death penalty statute holds together by a one-vote margin, leaving that issue more open than most to a possible shift, according to lawyers and advocates both for and against capital punishment.

"It would be quite easy to change the balance of power there, depending on who retires when," said William Reynolds, a law professor at the University of Maryland.

The court has not yet taken up gay marriage, which emerged as a newly powerful issue in state politics last month when a Baltimore judge ruled that Maryland's law banning same-sex marriage is discriminatory and "cannot withstand constitutional challenge." The decision by Judge M. Brooke Murdock has been appealed to the Court of Special Appeals, the state's lower appellate court, and is all but certainly headed to the high court.

None of the candidates for governor -- incumbent Robert L. Ehrlich Jr. (R) and the Democratic contenders, Baltimore Mayor Martin O'Malley and Montgomery County Executive Douglas B. Duncan -- has said gay marriage or the death penalty would be a litmus test for possible nominees.

But Ehrlich touched on the gay marriage decision in a radio interview this month, saying that "people need to understand that . . . a particular philosophical orientation is going to be reflected in a governor's judicial selection."

"My judges certainly reflect my philosophical orientation," he told Chip Franklin on WBAL (1090 AM). Referring to Murdock's being appointed by his Democratic predecessor, Ehrlich continued, "In this case it was a Governor Glendening-appointed judge, obviously, and you would expect maybe this kind of result."

None of the dozen legal scholars and practicing lawyers interviewed for this story would publicly speculate as to how the court might eventually rule on gay marriage. Even the timing remains uncertain: The high court could take the case away from the lower court, hearing oral arguments perhaps in September; or it could let the lower court rule on the case first, meaning one or more new judges might be seated by the time the case reaches the high court; or the high court could hear the case on an expedited schedule.

The court has been consistently divided on one wrinkle in the death penalty debate. Three judges have repeatedly held, most recently last week, that the state's burden of proof in seeking capital punishment is unconstitutionally low. That bloc includes Raker, but not Cathell and Wilner, both of whom have voted with the majority to uphold the statute.

In light of that split, the coming appointments will be "critical in a lot of areas of criminal law but particularly the death penalty," said Stephen Bailey, deputy state's attorney in the Baltimore County prosecutor's office.

"My guess is it will ultimately become an issue in the next election," said Bailey, whose jurisdiction has imposed the death penalty more often than any other in the state. "The voters are going to want to know where a candidate stands with respect to their potential appointments."

In Maryland, judges or juries deciding whether to vote for a death sentence must weigh aggravating factors, including particularly heinous aspects of the crime, against mitigating factors, such as a defendant's background.

To obtain a death sentence, prosecutors must prove "by a preponderance of the evidence" that the aggravating factors outweigh the mitigating. Raker, Chief Judge Robert M. Bell and Judge Clayton Greene Jr. have called for a higher standard, saying prosecutors should instead be required to prove an argument for a death sentence beyond a reasonable doubt.

Neither Ehrlich nor either of his possible Democratic opponents will select a nominee on the basis of that issue, their spokesmen said. Ehrlich, in fact, nominated Greene, who has voted with the bloc that says the death penalty statute is unconstitutional.

"As governor of Maryland, Martin O'Malley would enforce the laws of the state, which includes upholding the death penalty's fair and legal application," said O'Malley spokesman Jonathan Epstein. "He personally opposes the death penalty, except in cases of terrorism, and instead believes these criminals should serve hard time for the rest of their lives without parole."

Duncan is not opposed to the death penalty, according to his campaign manager, Scott Arceneaux, but does support a moratorium pending additional research into the finding of a state-sponsored study that alleged bias, by race and geography, in the way the death penalty statute is applied in Maryland. "Doug's not going to have and won't have a litmus test," Arceneaux said.