Appellate Judge Picked for State's Top Court

Maryland Gov. Martin O'Malley announced the appointment yesterday of Joseph F. Murphy Jr., the chief judge of the state's lower appeals court, to fill a vacancy on the state's highest court, which has been narrowly split on such culturally divisive issues as the death penalty and same-sex marriage.

O'Malley (D) tapped Murphy, 63, to fill the Court of Appeals vacancy left by Alan M. Wilner, who in January reached the mandatory retirement age of 70. The court comprises seven judges.

"Chief Judge Murphy brings over twenty years of experience as a judge to the state's highest court," O'Malley said in a statement. "He is very highly regarded for his integrity, intellect, scholarship, and service to his community."

In an interview, Murphy said: "I don't think I have a judicial philosophy, in the way law professors would use that term. I try to get the facts right, the law right, and get the opinion right.

"I've tried very hard during my 23 years on the bench not to prejudge a case," said Murphy, whose appointment is subject to Senate confirmation.

In September, by a 4 to 3 vote, with Wilner in the majority, the Court of Appeals upheld a 34-year-old state law banning same-sex marriage.

Last December, the court ruled that the state's method of carrying out executions was adopted improperly, a defect the court said must be addressed before more condemned inmates are put to death. Although that ruling was unanimous, the court has been consistently divided on one wrinkle in the death penalty debate.

Three of the seven judges have repeatedly held that the state's burden of proof in seeking capital punishment is unconstitutionally low. Wilner has sided with the majority to uphold the statute.

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. The minority has called for a higher standard, saying prosecutors should instead be required to prove an argument for a death sentence beyond a reasonable doubt.

William Reynolds, a professor at the University of Maryland School of Law, called Murphy "immensely qualified" yesterday and described him as a "conservative with a small 'c.' "

"He's a really good judge who understands how the law works and how the judicial system works."

Murphy said it is impossible to say when or whether the issues of same-sex marriage and the death penalty will be before the court again. "I do not anticipate the same-sex issue will be back before the court in the way it was before the court previously," Murphy said. "There will be other gender issues presented to the court, no doubt, and I anticipate there will be other death penalty issues."

Murphy was appointed a Circuit Court judge in Baltimore County in 1984. At the time, Murphy said, he was a registered independent. Because judicial elections involve party primaries, Murphy said, he registered to become a Democrat so he could vote for himself. Wilner is also a Democrat.

Bruce Marcus, a former counsel for the Democratic Party in Maryland, said Murphy is highly respected by Democrats and Republicans. "There's no controversy on him," Marcus said. "He's the best."