Death row inmates may suffer arbitrary executions because defense attorneys are crippled by low pay and limited resources, witnesses testified before the Maryland Death Penalty Commission on Tuesday in Annapolis.
“Perhaps it is time that Maryland followed the trend away from the death penalty, so that a person will not live or die based on the resources and experience of his or her attorneys,” Harry Trainor, a private lawyer in Annapolis, said in written testimony.
In state capital punishment cases, private defense attorneys must agree to limit billing to $50 per hour, compared with the federal rate of $170.
The rate is markedly lower than other jurisdictions and is capped at 400 hours, or $20,000.
“This is not a question of greedy lawyers … death penalty cases are so complex and labor-intensive that low-paid attorneys actually have to choose between putting on an adequate defense and losing money on the case,” Trainor said, adding that he lays awake at night worrying about his defense.
“It’s an ultimate responsibility to have another person’s life in your hands.”
Trainor was joined by his law partner Bill Brennan, who testified that ineffective legal counsel “aggravates” unfairness in how the death penalty is imposed.
Private lawyers cannot afford to take capital cases and still manage routine operating expenses, such as office rent, insurance and staff salary, Brennan said.
Brennan said keeping the death penalty would require the governor to appropriate millions of dollars toward adequate defense counsel.
The commission also heard from Stuart Simms, a former Baltimore City state’s attorney, who recommended eliminating the death penalty because of the “enormous resources” required.
Ineffective legal counsel also can cause errors in capital cases, including wrongful convictions, said Deborah Fleischaker, former director of the American Bar Association Death Penalty Moratorium Project.
“I’m not confident that we are providing effective representation to every inmate on death row,” she said.
“I certainly understand the human emotion behind wanting the death penalty. … We need to respect the family members for what they’ve gone through and still deal with the criminal justice system with the facts on the ground.”
But Phyllis Bricker, whose elderly parents were murdered by one of Maryland’s five death row inmates, John Booth-El, who was sentenced to death in 1984, said state officials should fix how the death penalty is implemented rather than abolish it.
The commission, which was enacted by the legislature, will issue its recommendations regarding capital punishment to the General Assembly on Dec. 15.
