The Maryland Court of Appeals ruled Tuesday that parts of Maryland's execution manual that direct how lethal injection is carried out were not adopted correctly under state law and "may not be used until such time as they are properly adopted."
The ruling means the part of the Maryland Division of Corrections protocol that directs how lethal injection is administered can't be used until it either is adopted in accordance with the state's Administrative Procedure Act or the General Assembly exempts the protocol from those requirements.
The Court of Appeals ruling was made in a 102-page document that rejected three other challenges from attorneys representing death row inmate Vernon Evans Jr. The rulings were made four days after executions were halted in California and Florida over concerns that lethal injections as carried out constitute cruel and unusual punishment.
At issue in Tuesday's ruling is the state's execution operations manual, which defines what drugs will be used and how they will be injected. The court found that the manual was never submitted to a joint legislative committee or given a public hearing before it was adopted by the Department of Corrections, as required under the state's Administrative Procedure Act.
The Court of Appeals reversed a Baltimore Circuit Court ruling that denied a temporary restraining order in the case and remanded the case back to the circuit court.
'An important win'
Evans is not entitled to a new sentencing proceeding or to a new trial under the ruling. However, A. Stephen Hut Jr., an attorney for Evans, called the ruling "an important win" that comes at a time when lethal injection is coming under closer scrutiny in other states.
"This dovetails with exceptional symmetry with those increasing questions, because one of the consequences we think of subjecting the lethal injection process to the kind of appraisal that the Administrative Procedure Act requires would be to place all of these problems before the policy makers," Hut said.
Karen V. Poe, a spokeswoman for the Maryland Department of Public Safety and Correctional Services, said attorneys for the state will review the opinion and advise the department head on the next course of action.
Maryland Citizens Against State Executions, an advocacy group, said the ruling will give the public "much-needed scrutiny of Maryland's execution protocol."
Maryland uses three drugs during executions. Sodium pentothal makes the inmate unconscious, pancurium bromide paralyzes the inmate's breathing and potassium chloride stops the heart.
In its ruling, the Court of Appeals concluded that the current protocol is consistent with state law. However, the court also concluded that a legislative committee charged with reviewing the protocol "may have a different view." The ruling also pointed out that even if the Joint Legislative Committee on Administrative, Executive, and Legislative Review agrees that the protocol is consistent, "it may wish to object to it and direct DOC to consider some other one."
Evans was sentenced to die for the murders of Scott Piechowicz and his sister-in-law, Susan Kennedy, in 1983. Piechowicz, 27, and Kennedy, 19, were working at the Warren House Motor Hotel in Pikesville when Evans entered and shot them with a high-powered Ingram MAC-10 machine gun. Kennedy was filling in for her sister, Cheryl, Piechowicz's wife.
The court rejected three other appeals by Evans, including a claim that racial bias played a role in the decision by prosecutors to ask that he be executed.
"It would seem rather fruitless to require, as a matter of law, that a post conviction case that was concluded nine years ago be reopened so that the prosecutor could confirm the obvious, that if there was ever a case for the death penalty, it was Evans' ..." the court wrote.
Another rejected appeal involved a claim that Evans' lawyer, when he was sentenced to death for the second time, provided ineffective counsel because he did not conduct a proper investigation of Evans' childhood as required by a 2003 U.S. Supreme Court ruling. The court cited contradictory accounts of Evans' childhood as a reason to reject that claim.
"It is a dramatically different story told, for the most part, by the very witnesses presented by counsel at the two sentencing proceedings, including Evans himself," the court wrote.
In a dissenting opinion, Chief Judge Robert Bell wrote that he disagreed, concluding that Evans should get a new sentencing hearing to present mitigating evidence. He also disagreed with the majority's view on the racial bias claim, concluding along with Judge Clayton Greene Jr. that a University of Maryland study conducted by criminologist Raymond Paternoster indicated bias against blacks.
"The Paternoster study provides substantial evidence that the Baltimore County State's Attorney's Office singled out black defendants from similarly situated white defendants when choosing against whom to seek the death penalty," Bell wrote.
The court also rejected a procedural claim on whether the death sentence was illegal.
A state lawmaker who helps lead the committee that would consider an execution protocol said Tuesday that it was too soon to say whether the legislature would take up lethal injection when they convene in January.
"We're going to have to see how this is all going to play out," said Democratic Delegate Anne Healey of Prince George's County, who opposes capital punishment. Healey said she didn't yet know what the state's next step would be.