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Md. Bill Could Spare Some Defendants With Murder Trials Pending

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By John Wagner and Henri E. Cauvin
Washington Post Staff Writers
Sunday, April 26, 2009

Legislation that significantly raises the bar on evidence needed to seek the death penalty in Maryland was meant by its authors to apply only to future cases. But the bill, which Gov. Martin O'Malley has pledged to sign in coming weeks, could also spare the lives of some defendants in pending trials -- and has sparked debate about what should happen to prisoners already on death row.

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A largely overlooked provision in the bill bars the death penalty for sentences pronounced on Oct. 1 or later, unless the case meets the new standards of evidence. The standards limit capital cases to those with biological or DNA evidence, a videotaped confession or a videotape linking the defendant to the crime. If the standards are not met, prosecutors can seek only life without parole.

Sen. Robert A. Zirkin (D-Baltimore County), who introduced an amendment that included the new standards, said he never intended for the law to apply to cases in which murder charges have already been filed. But a review of the bill by lawyers at the attorney general's office concluded that it would do just that in cases in which sentencing has not occurred by the time the bill takes effect Oct. 1.

Five defendants in Maryland have been charged with murder and could face the death penalty, and the known evidence in some of their cases might not meet the new standards. Among those is a Washington County man charged in late 2007 with fatally shooting a police officer. The trial is scheduled to start next month.

Zirkin's amendment was one of two introduced during a chaotic debate on the Senate floor last month that dramatically altered the bill, which originally sought a full repeal of the death penalty. The other amendment, sponsored by Sen. James Brochin (D-Baltimore County), prohibits the death penalty in cases built solely on eyewitness testimony.

A third amendment, drafted by legislative staff, was intended to make the two other amendments compatible. It contained the Oct. 1 provision in question. Zirkin and Brochin said they were unaware of that part of the amendment, which was introduced under Brochin's name.

"My intention certainly was not to make this retroactive in any way whatsoever," Zirkin said. Brochin called the episode "unfortunate."

House Minority Whip Christopher B. Shank (R-Washington) said he considered it outrageous that "a quirk in a clumsily worded bill" could jeopardize the death-penalty prosecution of a man in his county if the case takes longer than expected.

In late 2007, Douglas W. Pryor of Washington County was charged with stabbing a former girlfriend to death and fatally shooting a police officer. The killing of a police officer made him eligible for the death penalty.

Pryor's sister-in-law told police that he said he was going "to kill this cop," and a friend said he later acknowledged having "just shot a cop." Prosecutors say they have an audiotape on which Pryor makes incriminating statements but not a videotaped confession, as is required under the new standards. There is no indication of admissible DNA evidence related to the police officer's killing and no videotape directly linking Pryor to the crime.

"This is certainly going to cause some righteous indignation among my constituents and law-enforcement officers statewide," Shank said.

Pretrial hearings in Pryor's case have begun in Montgomery County, where the case was moved.

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