By Max Bennett
BALTIMORE — Maryland Attorney General Doug Gansler on Thursday filed a legal brief urging the state’s highest court to move a convicted murderer from death row and sentence him to life in prison without the possibility of parole.
Gansler said when the state dropped the death penalty in 2013, it lost all power to carry out executions.
Gansler asked the Court of Special Appeals to issue a sentence of life without parole, or remand the case to a lower court, in the case of convicted murderer Jody Lee Miles, whose death sentence would be vacated.
Edward Joseph Atkinson, a musical theater director, was murdered by Miles in 1997 during a robbery in Wicomico County.
Miles, one of four inmates on death row in Maryland, filed a motion that claims the repeal of the capital punishment in the state last year has made his death sentence illegal.
“In fact, Mr. Miles’ sentence is not illegal,” Gansler said. “The argument has absolutely no merit whatsoever.
“The removal of the statutory authority to put those protocols in place has actually made it illegal and a factual impossibility for Mr. Miles to executed,” he said. “It is our view that — under the due process clause of the United States Constitution and the 5th amendment, as applied through the 14th amendment — it is a violation of Mr. Miles’ due process to remain on death row.”
Gansler said he and Miles’ legal defense, Baltimore firm Nathans & Biddle, are both asking the Court of Special Appeals to vacate the death sentence.
The defense plans to argue on Dec. 8 for a sentence of life with the chance for parole.
“He’s looking for a sentence that’s less than life without parole,” Robert Biddle said.
Biddle said Miles seeks an opportunity to be a free man before he dies.
Biddle also said a life sentence could move Miles to a medium-level security prison.
“Someone who’s serving a life sentence is not able to go to any prison other than a maximum prison,” he said. “Generally it’s preferable to go to lower-level security facilities.”
The hope is Miles would be able to take advantage of more work, rehabilitation and education opportunities, which aren’t available at a maximum-security prison, Biddle said
“People should understand: Life without parole is a death sentence,” Gansler said. “You’re dying in jail. You’re coming out in a box. It might just not be as soon as it otherwise would be if you had the death penalty.”
Delegate Sandy Rosenberg, D-Baltimore City, a member of state’s House Judiciary Committee, is an opponent of the death penalty. He said on Thursday that “the most heinous penalty for the most heinous crimes is life without the possibility of parole.”
However, victims’ families may not be keen on dropping the death penalty.
“The family is not happy because they had a loved one murdered and appropriately thought that person should be held accountable,” Gansler said of Atkinson’s kin.
Atkinson’s mother, Dorothy Atkinson, could not be reached for comment Thursday.
Gansler said he is sympathetic to their disapproval of the appeal, however, the law dictates that he and his office must follow through with it.
Biddle said while counsel often reach out to victim’s families, the lengthy and complicated case made them disinclined to contact the Atkinson family.
“At this point, with the state agreeing to the death penalty being vacated, and if the Court of Special Appeals follows up on that, then there would be an opportunity — if Mr. Atkinson’s family is receptive — to communicate with them about the situation,” Biddle said.
As for Maryland’s other three death row inmates — Heath William Burch, Vernon Lee Evans Jr. and Anthony Grandison Sr. — Gansler said filing the brief means nothing for them and only applies to Miles.
Burch, according to Gansler, has taken a different approach to his case and appealed directly to Gov. Martin O’Malley to have his sentence commuted to life without parole.
“His case could be resolved that way,” Gansler said. If Burch’s sentence is not commuted, he could use the Miles case, if approved, as a legal lever to get off death row.
Evans and Grandison could also appeal to the governor or file the same type of brief as Miles, in order to convert their death sentences to life in prison without the possibility of parole. Gansler said those cases are different, and include more “egregious” facts such as multiple murders, and have federal sentences applied to those cases.