Evans v. State
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IN THE COURT OF APPEALS OF MARYLAND Nos. 107, 123, 124 September Term, 2005 ______________________________________ VERNON EVANS, JR. v. STATE OF MARYLAND ______________________________________ No. 122 September Term, 2005 _______________________________ VERNON EVANS, JR., ET AL. v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Harrell Battaglia Greene Rodo wsky, L awren ce F. (R etired, Specially Assigned), JJ. ______________________________________ Opinion by Wilner, J.; Greene, J., joins in Nos. 107 and 124 on ly; Bell, C.J ., dissents which Green e, J., joins in P arts C and D O nly. ______________________________________ Filed: December 19, 2006 On April 28, 1983, Vernon Evans, for a fee of $ 9,000 paid by or on beh alf of his friend, Anthony Grandison, walked into the Warren H ouse Motel in B altimore County and murdered David Piechowicz and Susan Kennedy by shooting nineteen bullets at them. The murder of Ms. Kennedy was a mistake; Evans thought she was Piec howicz s wife, Ch eryl. Evans was hired to kill the Piechowiczes in order to prevent them from testifying against Grand ison in a pendin g Fede ral crimi nal case that wa s sched uled fo r trial a w eek late r. In May, 1984, a jury in the Circuit Co urt for W orcester Co unty, to which the case had been removed, convicted Evans of two co unts of first d egree mu rder and se ntenced h im to death. The judgment was affirmed on appeal, but in 1991, in a post conviction proceeding filed in 1990, Evans was awarded a new sentencing hearing. At his request, the case was removed from Worces ter County an d, with his concurre nce, returned to Baltim ore C oun ty, where, in November, 1992, a new jury again sentenced him to death. The full procedural history of the case is described in the Appendix attached to this Opinion. We have before us now four app eals Nos. 107, 122, 123, and 124 which we have consolidate d. In Nos. 1 07 and 1 24, two su bstantive issu es are raised: (1) Whether Evans is en titled to a n ew s ente ncin g hearing becaus e his attor neys at the 1992 re-sentencing hearing failed to investigate and present mitigating evidence relating to his backgro und, thereb y rendering the ir service, und er principles e nunciated in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed.2d 471 (2003) and Rompilla v. Beard, 545 U.S . 374, 125 S . Ct. 2456, 162 L. Ed.2d 360 (2005), Constitutionally deficient and prejudicial; and (2) Whether, under Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196 (2005), he is entitled to a new trial as to guilt or innocenc e because the State, in selecting a jury at the 1984 trial, exercised peremptory strikes in a racially discriminatory manner. In No. 107, those issues were presented in a motion to correct an illegal sentence, and the procedural question exists of whether they may properly be raised in such a m otion. In No. 124, the two issues were presented in Evans s fourth motion to reopen a 1995 post conviction proceedin g. The qu estion there is whether the post con viction cou rt abused its discretion in denying that motion. The issue in No. 123 is whether the Circuit Court for Baltim ore Cou nty abused its discretion in denying, without affording discovery, Evans s third motion to reopen the 1995 post conviction proceeding in order to present the complaint that selective prosecution by the Baltimore County State s Attorney s Office and systemic statewide ra cial and geo graphic discrimination rendered his sentence unconstitutional. No. 122 arises from an action for injunctive relief filed in the Circuit Court for Baltimore City. Maryland Code, § 3-905 of the Correctional Services Article requires that the manner of executing a sentence of death be by lethal injection. Complementing that statute, the Division of Correction (DOC) has adopted a comprehensive set of execution protocols, including a detailed description of the manner in which the lethal drugs are to be administered. Joined by three co-plaintiffs the National Association for the Advancement -2- of Colored People (NAACP), the American Civil Liberties Union Foundation of Maryland (ACLU ), and Maryland Citizens Against State Executions (CASE) Evans contended that those aspects of the execution protocol were (1) inconsistent with the statutory requirements, and (2) in the nature o f a regulation that was p romulgate d withou t complian ce with the State Administrative Procedu re Act. The app eal is from th e Circuit Court s denial of a tem porary injunction th at would h ave restraine d DOC from usin g its protoco l. We shall find m erit in the second aspect of E vans s com plaint in No . 122, but no merit in any of his other complaints. Evans is not entitled to a new sentencing proceeding or to a new trial, but that part o f the DO C protoco l that directs the manner of administering the lethal injection is ineffective until either (1) it is adopted a s a regulation in accorda nce with the Adm inistrativ e Proce dure A ct, or (2) the Legisla ture exem pts it from the requireme nts of that A ct. I. NO. 107 Maryland Rule 4-345(a) permits a court to correct an illegal sentence at any time. If the sentenc e is not illegal, th e court s rev isory power o ver it, with exceptions not pertinent here, is limited to a showing of fraud, mistake, or irregularity in the sentence. There has been no contention by Evans, and there is no basis in the record for such a contention, that the 1992 death sentence imposed on him was the product of fraud, mistake, or irr egularity. In order to be entitled to relief under Rule 4-345(a), therefore, Evans must -3- show that the death sentence he is challenging is illegal. In two of Evans s prior appeals Evans v. S tate, 382 Md. 248, 855 A.2d 291 (2004) and Evans v. S tate, 389 M d. 456, 886 A.2d 56 2 (2005) we con firmed ea rlier rulings and made clear that [a] motion to correc t an illegal sente nce ordina rily can be gran ted only where there is some illegality in the sentence itself or where no sentence should have been impos ed. Evans v. State, supra, 382 Md. at 278-79, 855 A.2d at 309; Evans v. State, supra, 389 Md. at 463, 886 A.2d at 565. In the m ore recent of th ose cases, w e flatly held that there was nothing intrinsically illegal in Evans s sentence; he was properly found to be a principal in the first degree in two first degree murders for which the death penalty could lawfully be imposed, and the court properly found that the aggravating factors proved outweighed any mitigating factors and tha t death w as the ap propria te senten ce. Evans v. State, supra, 389 Md. at 463, 886 A.2d at 565-66, confirming Evans v. S tate, 333 Md. 660, 637 A.2d 117 (1994), cert. denied, 513 U.S. 833, 115 S. Ct. 109, 130 L. Ed.2d 56 (1994). Nothing has been presented in these appeals that wo uld cause us to recons ider, much less overrule, that holding. In Evan s s 200 4 appe al, Evans v. State, supra, 382 Md. at 279, 855 A.2d at 309, we observed that, in Oken v. S tate, 378 Md. 1 79, 835 A.2d 1 105 (2 003), cert. denied, 541 U.S. 1017, 124 S. Ct. 2084, 158 L. Ed.2d 632 (2004), we appeared to recognize an exception to that requirement where, in a capital sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the -4- allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defendant s capital sentencing proceeding. To the extent that there is such an exception, it is a very narrow one.1 The subsequent decision relied upon must constitute a new judicial interpretation of a constitutional provision. Baker v. State, 389 Md. 12 7, 134, 883 A.2d 916, 920 (2005 ). In an effort to squeeze within that limited exception, Evans relies, as to his complaint about the performance of counsel at the re-sentencing hearing, on Wiggins v. Smith, supra, and Rompilla v. Beard, supra, which he contends constitute new judicial interpretations of a constitutional provision, rendered after he was re-sentenced, and which set new (and retroactive) requirements for counsel in death penalty sentencing proceedings that were not in place in 1992. He makes the same argument with respect to his Batson challenge, contending that Miller-El v. Dretke, supra, constitutes a new judicial interpretation of the Constitutional prohibition a gainst the us e of perem ptory challeng es in a racially discriminatory manner. We do not agree. With respect to the Constitutional adequacy of counsel s performance, the seminal case the new judicial interpretation of a constitutional provision was Strickland v. 1 We did not, in fact, announce any such exception in Oken, but, whether deliberately or inadvertently, we did address a complaint raised in a motion to correct an illegal sentenc e (which we fou nd substan tively to be witho ut merit) that Ring v. Arizona, 536 U.S. 584, 12 2 S. Ct. 2428, 153 L . Ed.2d 556 (200 2), decided long after O ken s sentencing, made the standard for weighing aggravating against mitigating factors set forth in the M aryland Cod e uncons titutional. -5- Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). It was there that the Supreme Court considered and announced the proper standards for judging a criminal defendant s contention that the Constitution requires a conviction or death sentence to be set aside because counsel s assistance at the trial or sentencing was ineffective. Id. at 671, 104 S. Ct. at 2 056, 80 L. Ed.2 d at 683 . The Strickland Court began its analysis by confirming that the right to counsel is the right to the effective assistance of counsel. Id. at 686, 104 S. Ct. at 2063, 80 L. Ed.2d at 692, quoting from McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct. 1441, n.14, 25 L. Ed.2d 763, 773, n.14 (1970). It proceeded then to announce that [t]he benchmark for judging any claim of ineffectiveness must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed.2d at 692-93. The heart of the Court s ruling the announced holding that has remained unchanged since Strickland is in the introductory paragraph to Part III of the Court s Opinion: A convicted defendant s claim that counsel s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel s performance was deficient. This requires showing that counsel m ade errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose re sult is reliable. Unless -6- a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the advers ary proce ss that re nders th e result u nreliabl e. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed.2d at 693. As to the first pron g of the an alysis wheth er the perfo rmance w as deficien t the Court adopted an objective standard: the defendant must show that counsel s representation fell below an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 264, 80 L. Ed.2d at 693. In tha t regard, it mad e clear that [ n]o particula r set of deta iled rules for counsel s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688-89, 104 S. Ct. at 2065, 80 L. Ed .2d at 694. The C ourt directed, however, that judicial scru tiny of counse l s perform ance be highly defere ntial in order to avoid the post hoc second-guessing of decisions simply because they proved unsucce ssful, and required that a court mu st indulge a strong presum ption that counsel s conduct falls within the wide range of reasonable professional assistance. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed.2d at 694. Thus, the Court concluded, a court deciding an ineffective assistance claim must judge the reasonableness of counsel s c hallenged conduct o n the facts of the particular case, viewed as of the time of counsel s conduct. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.2d at 695. In examining the prejud ice prong, the Court rejected the notion that all a defendant had to show w as that coun sel s errors h ad some conceiva ble effect on the outcome of the -7- proceeding and required instead that the defendant show that there is a re asonable probability that, but for counsel s professional errors, the result of the proceeding would have been different. Id. at 693-94, 104 S. Ct. at 2068, 80 L. Ed.2d at 697-98. (Emp hasis added). A reasonable probability, the Court added, is a probability sufficient to undermine confidence in the outcome. Id. Nothing in Wiggins or Romp illa changed , in any way, those standards a dopted in Strickland. The Wiggins Court expressly relied on and applied the Strickland standards and simply concluded, based on its view of the factual record in th at case, that, given the information they had regarding Wiggins s childhoo d, counsel s failure to broaden the scope of their investigation into possible mitigating factors in a death penalty case was both deficient and prejudicial under the Strickland standards. In deed, the C ourt began its discussion of the ineffective assistance cla im by expressly noting that [w]e established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington . . . . Wiggins v. Smith, supra, 539 U.S. at 521, 123 S. Ct. at 2535, 156 L. Ed.2d at 484. We are aware of no reported decision, and none has been cited to us by Evans, holding that Wiggins established a new interpretation of a Constitutional principle. The d ecisions are to the con trary. See Grossman v. Crosby, 359 F. Supp.2d 1233, 1281 (M.D. Fla. 2005) ( Wiggins merely applied Strickland to the facts of that case, it did not change the standard by which a claim of ineffective assistance of couns el is to be judge d. ); Hodge s v. State, 885 -8- So.2d 338, 346 (Fla. 2004 ) (Wiggins is a reiteration and application of Strickland); Grant v. State, 95 P.3 d 178, 1 79 (O kla. 200 4), cert. denied, 543 U .S. 964, 125 S. Ct. 418, 160 L. Ed.2d 332 (20 04) (Wiggins applied well-established standards of Strickland). That analysis applies equally to Rompilla v. Beard, supra, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.2d 360 and Miller-El v. Dretke, supra, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196. Like in Wiggins, the Rompilla Court expressly applied the standards enunciated in Strickland to find deficient and prejudicial performance by counsel. No new or different interpretation of Strickland was announced. Indeed, Justice O Connor, the author of the Op inion in Strickland, noted in Romp illa that the decision simply applies our longstanding case-by-case approach to determining whether an attorney s performance was unconstitutio nally deficient under Strickland v. Washington. . . . Rompilla v. Beard, supra, 545 U.S. at 393-9 4, 125 S. Ct. at 2469, 16 2 L. Ed.2d at 379 . (O Connor, J., Con curring). Similarly, Miller-El was merely an application of Batson v. Kentucky. Throughout its Opinion, the Court characterized Miller-El s complaint as a Batson challenge, a nd it examined the record in light of the thr ee-step ana lysis set forth in Batson. It did not, in any way, modify that analysis. It is clear that the complaints made by Evans in No. 107 are not cognizable in a motion under Rule 4-345(a) to correct an illegal sentence. The judgmen t of the Circ uit Court for Baltimore County entered in that case will be affirmed. -9- II. NO. 124 The two issues raised in No. 107 the Wiggins and Batson claims are also presented in No. 124, which is an appeal from the denial o f Evans s fourth motion to reopen the 1995 post co nviction case. Maryland Code, § 7-102 of the Criminal Procedure Article (CP) the heart of the State Post Con viction Proc edure A ct permits a convicted person to se ek relief in the Circuit Court in which the conviction occurred upon an allegation that (1) the sentence or judgment was imposed in violation of the U.S. or Maryland Constitution or laws of this State, (2) the court lacked jurisdiction to impose the sentence, (3) the sentence exceeds the maximum allowed by law, or (4) th e sentence is subject to co llateral attack on a ground that would otherwise be available under a writ of habeas corpus, coram nobis, or other common law or statutory re medy. There are two important conditions to that right, however, that are relevant here. The first, expressed in CP § 7-102(b)(2) and circumscribed to some extent in § 7-106, is that the alleged error has n ot been pre viously and fin ally litigated or waived in the proceeding resulting in the conviction or in any other procee ding that the person has tak en to secure relief from the person s conviction. The second appears in CP §§ 7-103(a) and 7-104. Section 7-103(a) provides that, for each trial or sentence, a person may file only one petition for relief under this title. Section 7-104, however, permits a court to reopen a post conviction proceeding that was previously concluded if the court determines that the action -10- is in the in terests o f justice . In Gray v. S tate, 388 Md. 366, 879 A.2d 1064 (2005), we made clear that a petition to reopen a concluded post conviction proceeding was not the functional equivalent of the former right to file a second (or before 1986, subsequent) petition, that the decision to reopen is a discretiona ry one with the court in which the petition to reopen is filed, and that [w]e will only reverse a tria l court s discre tionary act if we find that the c ourt has ab used its discretio n. Id. at 383, 879 A.2d at 1073. In that regard, we pointed out that a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. Id., quoting from Dehn v. Edgecomb, 384 Md. 606, 628, 865 A.2d 603, 616 (2005), and ultimately from North v. N orth, 102 Md. A pp. 1, 13-14, 648 A . 2d 1025, 1031-3 2 (1994). That is the standard to be applie d in review ing the Circ uit Court s denial of Ev ans s fourth motion to reopen the 1995 post conviction proceeding a proceeding in which he had raised 41 other issues, that had been concluded nine years earlier , and that he h ad sough t to reopen on three prior occasions. That was not the standard applied in Wiggins, Rom pilla, or Miller-El. All three of those cases reached th e Suprem e Court in th e context of an initi al Federal habeas corpus ac tion, an action of right. In Wiggins and Romp illa, the District Court granted relief, the U.S. Court of Appeals reversed, and the Supreme Court granted certiorari -11- to review the legal correctn ess the m erits of the lower c ourts d ecision s. Miller-El also was an initial Federal habeas corpus action. In that case, the District Court denied relief, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The rulings reviewed by the Supreme Court in tho se cases w ere not discre tionary ones; those cases were brought as of right, the y were trie d, and ju dgme nts we re enter ed on th e merits of the p etitions. A. The Batson/M iller-El Claim Evans was tried in 1984, before Batson was dec ided by the Su preme C ourt. During jury selection, the State s use of its peremptory strikes to exclude African Americans was commented upon three times. The court (Judge Cathell) first raised the issue on its own initiative. After twelve jurors were tentatively seated, the parties proceeded to select two alternates. During th at proce ss, when the State excused a black prospective juror, Judge Cathell called counsel to the bench and directed them to make their strikes in alternating order. He wanted a clear record of who was striking whom, he said, so that later on I can make an indic ation w hether th ey were e xcused as to rac e. Noting that the lead prosecutor was on loan from the United States Attorney s Office, Judge Cathell warned that there was a line of Maryland cases disapproving racial strikes and wanted to make sure that the Federal prosecutor was aware of those cases : [t]here ha s been som e extreme ly strong lang uage in dicta about using peremptory challenges for racial purposes. And I think you ought to think about that. The prosecutor responded that he was aware of those cases and stated I am not -12- striking anybody based on race. The process continued until twelve jurors and two alternates had been selected, at which point the court asked if counsel were satisfied with the jury. Defense counsel informed the court tha t the panel w as not acce ptable beca use the State had used its peremptory challenges to purposely limit blacks from representation on the panel. Counsel noted that the State had used eight of its ten peremptory challenges to strike black jurors and two to strike white jurors, leaving two African Americans on the jury and one as an alternate. The court invited a response from the S tate, whereu pon the pr osecutor advised that he d id not keep track of whether he had struck black or white jurors and that [w]e struck on background, age, occupation, what was learned during the voir dire at the bench and in open court. We did not strike on racial grounds. T here was no challenge to that explanation and no requ est for f urther e lucidatio n, and th e court a ccepte d it. The next day, while the court was considering Evans s c omplaint th at the venire itse lf did not reflect a fair cross-section of the community, the prosecutor noted that 22% of the county population was African American and three of the jurors two regular jurors and one alternate were black, which constituted 21.4% of the panel. His point was that there was no significant racial disparity in the actual make-up of the jury. Defense counsel responded that his objection the day before was not to a cross-se ction but rather that the State s peremptory challenges were racially motivated, to which the court noted that the prosecutor had given his reasons for the strikes and that the objection had been ruled upon. -13- In Evans s appeal from the conviction and sentence, he raised the issue of whether the State s peremptory strikes had been improperly used to exclude African Americans. Batson had still not been decided. After reviewing the existing state of the law, which was already trending beyond Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed.2d 759 (19 65), we assumed that the use o f eight peremptory strikes to exclude African Americans was sufficient to establish a p rima facie violation of the defendant s rights, but concluded that the explanation offered by the prosecutor, and apparently accepted by the court, was sufficient under the circumstances to support the decision of the trial judge in overruling the defendant s objection. Evans v. S tate, 304 M d. 487, 5 28, 499 A.2d 1 261, 12 82 (19 85), cert. denied, 478 U.S. 1010, 106 S. Ct. 3310, 92 L. Ed.2d 722 (1986). We observed: It is also significant that neither the judge nor defense counsel questioned the explanation of the prosecutor or requested further particulars. This may well have represented a tactical decision by the defen dant s cou nsel, to require the court s decision to be made upon the weig hing of the defen dant s prima facie showing against the rather general response of the prosecutor, as opposed to seeking sp ecific informatio n from the prosecutor as to each excused venireman and running the risk of further strengthening the prosecutor s explanation. For whatever reason, the explanation of the prosecutor stood uncontroverted and unimp eache d. Id. Batson was decided by the Supreme Court on April 30, 1986. At the time, Evans s petition for certiorari seeking review of this Court s decision was also pend ing in that C ourt. That petition was denied w ithout com ment on J une 30, 19 86; this Co urt was no t directed to -14- reconsider its decision in light of Batson. In his first petition for post conviction relief, filed in 1990, Evans argued that the State s use of peremptory strikes to exclude African Americans constituted a violation of Batson. The cou rt had befo re it the transcrip t of the jury selection phase of the trial and noted that, even though Batson had not then been decided, Judge Cathell had required the prosecutor to explain his peremptory strikes. The reasons given, the court conclud ed, were race-neutral and did not appea r to be p retextua l. Moreover, the matter had been raised and decided in Evans s direct appea l and was therefore finally litigated. Evans complained about that aspect of the post conviction court s ruling in an application for leave to appeal, which we de nied. State v. Evans, Misc. N o. 8, Sep t. Term 1991 ( Order filed Ju ne 4, 19 91). As a result of the first post conviction proceeding, Evans received a new sentencing hearing, at which a jury in Baltimore County again sentenced him to death. He raised a Batson issue at that proceeding as well. It appears that the only African American jurors who were excused by the State were alternate jurors, however, and no alternate jurors were called upon to delibera te. The t rial judg e (Judg e Kah l) foun d no m erit to the comp laint. In Augu st, 1995 , Evan s filed h is secon d petitio n for p ost con viction r elief. A mong the 41 issues p resented in th at petition w ere seven r elating to the State s peremptory challenges three complaints dealing with the re-sentencing and four emanating from the initial trial. As no co mplaint is made in this appeal about jury selection at the re-sentencing procee ding, w e need to cons ider on ly the fou r dealing with th e initial tria l. -15- Evans s only direct challenge did not invoke Batson, but was instead grounded on Swain v. Alabama, supra, 380 U.S . 202, 85 S . Ct. 824, 13 L. Ed.2d 759. He complained that he was denied his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution because the Baltimore County State s Attorney s Office eng aged in a pattern of using peremptory challeng es to strike jurors on the basis of race in violation of Swain v. Alabama. The post conviction court (Judge Smith), noting that that issue had been raised and decided in the appea l from th e initial co nviction and sen tence, Evans v. State, supra, 304 Md. 487, 522-28, 499 A.2d 1261, 1280-82, concluded that it had been finally litigated and that there was no merit to it in any event. A second, related argument was that trial counsel was deficient by fa iling to investig ate and pre sent eviden ce of the S tate s pattern of exercising peremptory challenges in a racially discriminatory manner. That, too, invoking Swain rather than Batson, was fou nd to be w ithout merit. Two challenges grounded specifically on Batson were presented, but only in the context of deficient performance by counsel in the first post conviction proceeding. Evans complained that post conviction counsel was deficient in (1) failing to pursue grounds for establishing a Batson violation based on the State s racially discriminatory use of peremptory challenges, (2) not pursuing claims that the prosecutors in this case demonstrated a pattern of using peremp tory strikes in a racially discriminatory manner in violation of Batson, (3) making only a perfu nctory presen tation to this Court relating to the State s discriminatory use of peremptory challenges, and (4) failing to raise and preserve on appeal meritorious -16- claims that the prosecutors in this case had demonstrated a pattern of using peremptory strikes on the bas is of race. Jud ge Smith f ound that th e validity of the Sta te s use of peremptory challen ges at th e initial tria l had be en fully an d finally litig ated. He observed that trial counsel had challenged the State s use of peremptory challenges at the trial, that the issue was raised and decid ed in the ap peal from the initial judgm ent, and that it had been raised and decided in the first post conviction proceeding. The second argument, as viewed by the post conviction court, was almost a repetition of the one just noted. Evans complained that post conviction counsel was deficient in that he made only a perfunctory presentation to the Court of Appeals relating to the State s discriminatory use of peremptory challenges. He added: Petitioner alleges that (1) he was denied equal protection of the law by the prosecution s purposefully striking African Americans from the jury in violation of Batson v. Kentucky and (2) he was denied equal protection of the law because he was prosecuted by attorneys who had demonstrated a pattern of using peremptory strikes in a racia lly discriminato ry manner in violation of Batson v. Kentucky. The court rejected that claim, noting that the peremptory challenge issue had been finally litigated in the direct appeal, before post conviction counsel was involved in the case. Those claims were presented to this Court in Evans s amended application for leave to appeal fro m the den ial of relief by the post conviction court. We considered the application a nd obvio usly found n o merit to it, for on M ay 7, 199 7, we d enied it. Evans v. State, 345 Md. 524, 693 A.2d 780 (1997). The Supreme Court denied certiorari. Evans v. -17- Maryland, 522 U .S. 966 , 118 S . Ct. 411 , 139 L . Ed.2d 314 (1 997). In November, 1997, Evans filed a petition for habeas corpus in the U.S. District Cou rt. Among the 24 issues raised in that petition was a four-part complaint about the State s peremptory strikes at the initial trial: i) because his trial and direct appeal concluded befo re the Supreme C ourt announced Batson, the federal courts should give no deferenc e to the state proceedings described above; ii) Batson requires, [the] prosecution to articulate a raceneutral reason for each strike once a prima facie case has been established . . . iii) the raceneutral reasons given by prosecutor . . . were clearly pretextual; and iv) his appellate counsel rendered ineffective assistance by failing to demonstrate this pretext by comparing the ages, occupations, etc. of the potential jurors Irwin struck against those he did not strike. Evans v. Smith, 54 F. Supp.2d 50 3, 514 (D. M d. 1999). The District Court (Judge Legg) reviewed the trial transcript and this Court s ruling on appeal and concluded that none of those complaints had merit. It found, first, that anticipating the shifting burdens eventually adopted by the Suprem e Court in Batson, this Court, in Evans s appeal, applied a reasonable and correct legal standard, and that, in the first post conviction proceeding, Judg e Eschen burg m easured E vans s claim against Batson, which had by then been published. Id. Accordingly, the court held that both decisions were entitled to deference under 28 U.S.C. § 2254(d) and (e). Second, the court held that Batson did not require an individual explanation for each strike but only a clear and reasonab ly specific justif ication for th e prosecu tor s use of s trikes relating to the particular -18- case to be tried. Third, the court held that Ev ans s analysis of the ages, occupations, etc. of the jurors stricken and acce pted doe s not clearly dem onstrate the pretextuality of [the prosecutor s] explanation. Id. at 515. In that regard, the court found Evans s analysis of the juror data unpersuasive in that it fails to take into consideration the many impressions that a potential juror makes on voir dire. Id. at 515, n.20. Finally, the court concluded that Evans s appellate counsel were not constitutionally remiss in failing to develop this. Id. at 515. Rather, it found the proposed evidence unpersuasive as it does not clearly demons trate that the factual determinations of Judge Cathell and the Court of A ppeals were incorrect. Id. The District Court denied the petition and a motion for rehearing. The U.S. Court of Appea ls for the F ourth C ircuit aff irmed, Evans v. S mith, 220 F.3d 306 (4 th Cir. 2000), and the U.S. Supreme Court denied certiorari, Ev ans v. Sm ith, 532 U.S. 925, 121 S. Ct. 1367, 149 L. Ed.2d 2 94 (2001). It is abundantly clear from this history that Evans s Batson claim has been fully and finally litigated, in both the State and Federal courts. It has been presented to and rejected by this Court o n at least two occasions , it was presented to and rejected by the U.S. District Court and the U.S. Court of Appeals for the Fourth Circuit, and the Supreme Court has denied review of it at lea st three tim es. The Circuit Court d id not abus e its discretion in refusing to reopen the 1995 post conviction proceeding to examine it again. -19- B. Wiggin s/Rom pilla Claim The Wiggins/R ompilla claim made by Evans is that his attorneys in the 1992 resentencing proceeding failed to investigate his social and psychological history and that there is a reasonable probability that, but for that omission, the result of that re-sentencing proceeding would have been different. In support of his fourth motion to reopen the 1995 post conviction proceeding, counsel produced a 51-page Psychos ocial Evaluation of Mitigating Circumstances In Life Of Vernon Lee Evans, Jr., prepared by a licensed social worker, Pamela Taylor, and an 18-page Investigation Of Psychological Mitigating Factors in Life Of Vernon Lee Evans prepared by a psychologist, Janic e Stevens on. Both re ports were based predominantly on interviews with Evans and members of his family plus various docume nts. In her rep ort, Ms. Ta ylor conclude d, in pertinen t part: (1) There was a Multi-Generational Family Legacy of Emotional Dysfun ction. Evans s parents, she said, came from emotionally troubled backgrounds, and various membe rs of his exte nded fam ily uncles, aunts, cousins suffered from major mental disorders, gambling addictio n, or ma y have be en alco holics. His father s uncle and cousin comm itted suic ide. His grandmother was known to faint when she got upset. One of his father s cousins is reported to have had a chronic addiction to gambling. Although Evans s sisters are accomp lished in their v arious caree rs and prese nt a positive p ublic image , the oldest ones had experienced significant instability and personal difficulties and inner turmoil in their lives. One, w ho holds a doctorate in divinity, teaches b ible -20- studies, and is gainfully employed, was sexually promiscuous as a teenager, is separated from her second h usband, an d has a stra ined relationship with her 37-year-old dau ghter. Another, who holds a college degree and was pursuing a masters in business administration while employed a s a financial aid counselor at Morgan State University, felt unloved as a child, on ce attem pted su icide, an d thirty years e arlier ha d a psyc hotic br eakdo wn. (2) Evans s p arents did not know how to express loving feelings tow ard their children, to have empathy for their individual needs, to address conflict appropriately, or demons trate constructive problem-solving skills. They unwittingly set up an environment of chronic fearfulness, suppression of normal emotional reactions, and boundary violations which forced the children to live in an environment which was toxic and traumatizing. Ms. Taylor asserted that Evans s father was physically abusive toward Evans and his sisters. All of this, she s aid, a fforded Eva ns n eithe r the safe ty, security, nor nurturing for a health y self to deve lop. (3) There was an anxious and insecure ho me environm ent during Evan s s formative years. The ho usehold w as characte rized as fe arful and f ull of tensio n between family members, and it was difficult for Evans to naviga te these emo tional rapids w ithin the family. Much of this seemed to emanate from marital discord between the parents. (4) There were episodes of abandonment and extreme neglect by the parents. On one oc casion , the mother left hom e for ten da ys. The childre n were n ot actually abandoned, however, as the fa ther remained in the home to care for them. On another -21- occasion, when Evans and his father went to the beach together, the father left him for a time and Evans became frightened. Evans h as nearly no m emories o f his father s pending q uality time w ith him. (5) Evans experienced persistent taunting from his peers, apparently because he was small. This, according to Ms. Taylor, exacerbated his feelings of infe riority, personal shame, alienation, fearfulness, humiliation, and powerlessness. (6) On one occasion, when Evans was eleven, a man on a delivery truck exposed himself and asked Evans to kiss his pe nis. Evans escaped w ithout havin g to perform. (7) Although E vans s mothe r describ ed him as a nor mal an d happ y child, a childhood friend interviewed by Ms. Taylor described him as sad. When Evans was 10, he took a bottle of D arvon fro m his mother s medicine cabinet and overdosed on the pills. He was taken to the hospital and recovered from the in cident. An aunt recalled Evans looking depressed. By the time he was in high school, he was on drugs. (8) Evans sustained several head injuries that, according to Ms. Taylor, created Risk for Organic Compromise. The first of these events occurred when, at the time of his birth, a doctor accidently dropped a scalpel on his head, giving the infant a gash. When he was nine, he fell down the steps an d got a big bum p. He also was struck by a car and spent one nigh t in th e hospita l. Ms . Taylor did not indicate how any of those events created a Risk f or Org anic C ompro mise. -22- (9) On a n umbe r of occ asions, E vans w itnessed his fath er with other w omen , which Ms. Taylo r cha racte rized as T raum atic W itnes sing of P ainf ul Betraya l by Father. There is no indication that Evans ever saw his father engaged in any sexual a ctivity; the only incidents of this kind that he witnessed were seeing his father on one occasion in the arms of another woma n and on another oc casion go ing into a ho use with another woman. Ms. Taylor reported several episodes when Evans s mother followed or chased his father in a car and co mplain ed abo ut his rela tionship s with o ther wo men. (10) In part b ecause of his f ather s p hilande ring, Evans had Unresolved Anger toward s Fathe r. (11) Evans grew up in an impoverished, tough neighborhood. Ms. Taylor refers to that as Coping through Displaced Rage, Fear and Sadness into a Tough Street Dem eanor. (12) According to M s. Taylor, Evans w as predisp osed both biologically and socially, for developing problems with substance abuse, and by 13 or 14 was using drugs. (13) Symptoms that Ms. Taylor regarded as resounding cries for help by Evans went unnoticed and unatte nded bec ause his parents were self-absorbed with their own problems. On the positive side, Ms. Taylor listed as strengths Evans s Capacity for Compassion and Empathy for Loved Ones an underlying concern and sensitivity to his family s needs and welfare, Repaired Close Fa mily Relationsh ips with Strong Advocacy for his Children -23- and Grandchildren, and a Newfound Spiritual Grounding and Therapeutic Strides towards More Healthy Self-Aw areness. The greatest pa rt of Ms. Taylor s findings regarding Evans s childhood came from her conversations with Evans, his parents, and his siblings, who testified at his re-sentencing hearing and simply gave a different account of Evans s childhood. Much of the information regarding Evans s parents, grandparents, uncles, aunts, and cousins came from interviews with various uncles, aunts, and first and second degree cousins. From some of the same h istory develope d by Ms. T aylor, Dr. S tevenson concluded that [s]ince he was nine years old , Vernon has co ntinuously met the criteria for Post Trauma tic Stress Disorder, Chronic and Severe, Depressive Disorder, and Generalized Anxie ty Disord er. He c urrently m eets the c riteria fo r Paran oid Per sonality D isorder. Evans claims that the dysfunctional childhood he suffered, as documented in these reports, was far worse than that suffered by Wiggins or Rompilla and that, ha d this information been developed and presented to the jury at the 1992 re-sentencing hearing, the outcome probably would hav e been different. Th e post conviction court was, of course, aware of what had transpired at the re-sentencing hearing. The transcript of that hearing was before the court and v arious witn esses testified a s to what occurred. In considering whether the court abused its discretion in refusing to reopen the 1995 pro ceeding to allow this attack to proceed , it is important to e xamine a t least the facia l validity of Eva ns s argum ent. In Wiggins, counsel was aw are, from evidence the y had, that Wiggins s mother was -24- a chronic alcoholic, that she had left him home alone on occasion, and that, as a child, he had been shuttled am ong vario us foster ho mes. Wh en they lost a m otion to bifurcate the sentencing proceeding, to deal first with whether Wiggins was a principal in the first degree and then with m itigation, counsel chose to co ncentrate o n principalsh ip and not p resent a significant mitigation de fense. Th at was a stra tegic decision . As a result, they made no further investigation beyond the rather meager evidence they had of Wiggins s childhood. They thus never learned that the mother frequently left him and his siblings home alone, forcing him to beg for food and eat paint chips and garbage, that she was physically abusive, that she had sex with men while the children slept in the same bed, that she once forced Wiggins s hand against a hot stove burner that led to his hospitalization, that from the age of six he had been shu ttled from o ne foster h ome to an other, that the f ather in the second foster home rep eatedly molested and raped him, that at age 16, he began living on the streets, that, on one occasion, he was gang-raped by a foster mo ther s sons, an d that he w as sexually abused as well by a supervisor in a Job Corps program. The Suprem e Court fo und to be d eficient counsel s failure to follow up on the information they h ad and to make any further investigation into Wiggins s social and emotional history. The C ourt made clear that Strickland does not require cou nsel to investigate every conce ivable line of mitigating ev idence o r to present mitigating evidence at sentencing in every case, Wiggins v. Smith, supra, 539 U.S . at 533, 123 S. Ct. at 2541, 156 L. Ed.2d at 492, but concluded that the supposedly strategic decision by counsel to -25- forego that kind of defense w as made w ithout a prop er investigation of f acts necess ary to support that decision and was, for that reason, unreasonable. In that regard, the Court noted that counsel did, in fact, mention to the jury that Wiggins had an unfortunate childhood; the problem was that, because they had failed to make a proper investigation, the defense was a lame one. With respect to the prejudice prong, the Court found that the mitigating evidence that counsel failed to discover was po werful. It n oted that the severe priv ation and a buse in the first six years of his life while in the custody of his alcoholic, absentee mother coupled with the physical torment, sexual molestation, and repeated rape during h is subsequent years in foster care showe d the kind of troubled history we have declared relevant to assessing a defendant s moral culpability. Id. at 535, 1 23 S. C t. at 2542 , 156 L . Ed.2d at 493. T he Court found a reasonable probabili ty that a competent attorney, aware of the nature and extent of that abuse, would have not only have offered evidence of it but would have made the m itiga tion defe nse a priority. In Romp illa, it was clear that the State intended to offer at sentencing Rompilla s extensive history of felony convictions, as evidence of a propen sity to use violence, which was an aggravating factor. Defense counsel, though she had ample opportunity to do so, never looked at the files in those cases, especially the transcript of a prior rape case, and was therefore wholly unprepared to counter or attempt to ameliorate that evidence. The file in the rape case would have revealed evidence of Rompilla s dysfunctional childhood, filled -26- with pervasive d omestic violence. Had school and mental health records been obtained, they would have revealed evidence of possible schizoph renia and m ental retardatio n, all of which could have been used in support of a mitigation defense that bears no relation to the few naked pleas for m ercy actually put before the jury. Romp illa v. Beard, supra, 545 U.S. at 393, 125 S. Ct. at 2469, 162 L. Ed.2d at 379. None of that evidence was presented to the jury. In this case, evidence presented during the 1995 post conviction proceeding indicated that Evans wanted counsel at the re-sentencing proceeding to concentrate on showing that he was not the shooter. If that defense proved successful, there could be no death penalty and therefore no need for mitigation evidence. The problem was that Evans had already been convicted twic e of t he tw o homici des first in Fe dera l cou rt, the n in W orce ster C oun ty and, given the evidence, counsel had little hope of succeeding o n that issue. Ms. Chester, lead counsel at the re-sentencing hearing, stated that, as a result, they intended to present a strong mitigation case and, unless the S tate s case on p rincipalship f ell apart, not contest that issue too strongly. In a way, it was an opposite approach to that taken in Wiggins. That, inde ed, w as their fo cus; they did present a mitigation defense. In opening statement, counsel described mitigation not as a justification for the killings, but as a reason not to impose the death penalty. The mitigation, she indicated, would center on two things: first, that, if given life imprison ment, it was unlikely that Evans, even though rehabilitated and then free of drug addiction, would ever be released and therefore would never be a -27- further danger to s ociety; and seco nd, that he g rew up in a caring, lov ing family, but th at, in his early teens, he drifted into and became consumed by drugs, turned away from his f amil y, and got into the clutches of Grandison. It was that, from which he had since recovered, that led to the tragic murders. That argument was based on what Evans himself said and was corroborated by the testimony of his parents and his siblings, both at the initial sentencing in 1984 and at the re-sentencing in 1992. At the 1984 p roceeding , Evans s f ather said tha t the relationship in the home was normally as any boy would be, up until [Evans] reached maybe seventeen, when the father discovered that Evans had a drug problem. The father said that he tried to talk with and counsel his son, and when that did not work, he spoke to a judge, who recommended a treatment program. The father got Evans into the program and felt that it had done him some good. The father said that we were always able to talk, talk over problems. He would always tell me a bout his pro blems. A t some po int, he discov ered that Evans was seeking support from a friend of the father who worked in a drug program. The father acknowledged current tension in the family but attributed it to what Evans had done: My family. Well, my youngest child, up until this happened, she was doin g fine. She is married and is living with her husband, but now she has a pro blem bec ause of this. All times of the night she calls me and I have to go and coun sel with her, try to solve some problems for her. My ex-wife is the same. We seek help through her minister. My other daughters, I have to counsel with them , trying to explain th e best I can. W e still don t k now w hy. (Emphasis add ed). -28- The father added th at the family is a close one that Evans had a very good relationship with his own children. He said that he loved his son but felt that somewhe re along th e line he s let [us ] down. Evans s mothe r gave v ery similar testimo ny. She said that Evans had a very close relationship with his sisters and with her and that imposition of the death sentence wo uld have a devastating effect on her, on Evans s father, and on his sisters. Gw endolyn Spence, Evans s sister, a high school graduate with one year of college at the time, was employed as an administrativ e assistant at a h ealth center. When asked about her relationship with Evans while growing up, she responded that he was just like any typical brother that a lot of times we just looked up to him for the right thing to do and that [h] e wa s alw ays there for us to ask. She said that they had a very close relationship, that Evans was a lot of comfort to me, and he still is. Spence said that she learned of her brother s drug problem around 1978-79 and tried to help him get into a program. Crystal Wilson and Linda Trusty, also younger sisters who were successful in life, corroborated Ms. Spence s testimony. They too said that they had a very good relationship w ith Evans, b oth grow ing up a nd curr ently. Gw endolyn Geter, a childhood friend who mothered three of Evans s seven children, testified that Evan s was the type of perso n that he alw ays wanted to be a father, and he always wanted to have fatherly love and understanding with kids and that he had a wonderful relationship with his children. Felicia Bell, who mothered another child of Evans, -29- gave si milar tes timony, ab out the c lose rela tionship he had with th at child. None of thes e witne sses p arents, si blings, girlfriends alluded to any serious discord in the family; none of them spoke of any physical or psychological abuse by the father or the mother, none of them said anything about the father s supposed philandering. Evans did not testif y, but he d id allocu te. He made no claim of family turmoil. Indeed, he said that he had been protecting his family all his life, and I love my mo ther, my father, my children very much . He acknowledged that, by age 14 or 15 h e began a busing dru gs, although his parents did not find out until a few years later. Evans s parents and sisters gave much the same testimony at the 1992 re-sentencing. There, too, the emphasis was on mitigation, in the form that Evans s problems stemmed from his significant d rug abuse , comme ncing w hen he w as thirteen or f ourteen, an d that, since the murders, he had conquered that devil and was a different person. When the father testified, the rest of the fa mily was in court listening. He said that [f]rom day one until I would say about age thirteen, fourteen, he was my dreams of a son and he fell in line with all of the other of my kids. . . . We were very close. Things began to change when Evans was about thirteen, when Evans began using drugs and detached himself from the family. Evans s mother described an alm ost idyllic early family life, sh owing p hotograp hs of the fa mily together. She described trips they took, how proud they were at Evans s early academic achievements, the college plans they had for him, how things began to change and how her husba nd wa s trying to really get h im on th e right tra ck. She stated that, by the time they -30- became aware tha t Evans w as missing s chool it w as too late for us to do anyth ing abo ut it. Evans s three sisters also testified, much as they did in 198 4, only in some more deta il. Again, none of them alluded to any family turmoil, any abuse, any philandering by the father. As in 1984, Evans chose to allocute. He began by acknowledging: It has been nine years s ince I have been invo lved in this hideous crime. My fam ily was not to blam e, for Lo rd kno ws, I have shamed them. I know this because of the tears I have seen them shed. (Emphasis add ed). In his allocution, Evans blamed everything on his descent into drug abuse, and he averred that he wa s now rid o f that curse: I didn t just continue the lifestyle of drugs and associate myself with in dividuals tha t didn t wan t to excel. I rid myself of the one thing that allowe d other s to use m e. I beca me dru g-free. I began to prof it as a hu man b eing. Ms. Taylor s and Dr. Stevenson s recitation of all of the supposed discord and dysfunction in Evans s nuclear family came primarily from the very people who, on two occasions, testified under oath (or allocuted) to precisely the opposite Evans himself and his parents and sisters. Twenty-one years after testifying in the first proceeding and thirteen years after testifying in the second, they have now presented to a social worker employed by new counsel an entirely differen t, and contra dictory, version o f their fam ily life. The notion that, if asked, they would have explained all of this to defense counsel in 1984 or 1 992, is belied b y the testim ony and allocutio n they actu ally gave a t those tim es. This is not pre-existing, reliable, undiscovered evidence that would have supported -31- a credible mitigation defense, as was the case in Wiggins and Romp illa. It is a dramatica lly different story told, for the m ost part, by the very witnesses presented by counsel at the two sentencing proceedings, including Evans himself. If this new story were to be repeated by the parents and sisters to a new jury, the cross-examination would be nothing short of devastating. We find no abuse of discretion in the court s refusal to reopen the 1995 post convic tion pro ceedin g. III. NO. 123 The question presented by Evans in No. 123 is whether the Circuit Court erred i.e., abused its discretion in denying his third motion to reopen the 1995 post conviction proceeding, to consider his claim that racial and geographic bias in the M aryland death penalty system, including race-based selective prosecution in Baltimore Cou nty, coupled with specific evidence of race discrimination in Evans s own case, makes his sentence uncon stitutiona l. Evans makes two arguments: (1) that studies conducted by Raymond Paternoster, a professor in the Department of Criminology and Criminal Justice at the University of Maryland, demonstrate an unconstitutional scheme of selective prosecution on the part of the State s Attorney for Baltimore County; and (2) that it shows as well that the death penalty is implemented throughout the State in a racially and geographically biased and arbitrary manner, in violation of Federal an d State Co nstitutional guarantees of equal protection o f the law a nd agains t arbitrary enforc ement. -32- In addressing the issue, we f irst must detac h from it the wholly unfounded averment that there is a ny spec ific evid ence o f race d iscrimin ation in E vans s own c ase, for there is no such evidence. In Evans s last appea l, Evans v. State, supra, 389 Md. 456, 464-65, 886 A.2d 562, 566, he presented essentially the same argument he presents here, based on the first (2003) version of a statistical study conducted by Dr. Paternoster. That study, Statewide in scope, established, according to Evans, a pattern of racial and geographic discrimination in the implem entation of the death penalty in Maryland. After noting that Dr. Paternoster, at a public legislative hearing, had disavowed any suggestion that his Study established racial discrimination in any particular case, we observed: Apart from what Evans chose to draw from the statistics compiled by Professor Paternoster, there is nothing in the record of this case to ind icate that (1) the State s Attorney, in seeking and pursuing th e death pe nalty against Evans, was in any way influenced by the fact that Evans is an African-American or that his victims were white, (2) any ruling by any judge presiding at any proceed ing in the case w as in any way influenced by those factors, or (3) any juror who sat in the case and voted to impose the death penalty was in any way influenced by those factors. Thus, not only has Dr. Paternoster disavowed any suggestion that his Study establishes racial discrimination on the part of anyone in any particular case, but, after 21 years of o pportunity to investigate with respect to the first proce eding and 13 years of opportun ity to investigate with respect to the second, Evans has been unable to show that any such discrimination was at work in this case. (Emphasis in original). In this appeal, Evans claims there was some evidence of discrimination. H e points to four things (1) his own affidavit da ted Dece mber 1, 20 05, (2) a sim ilarly dated affid avit -33- from a co-inmate, (3) an affidavit dated November 30, 2005 from a minister who visited Evans in prison, and (4) Evan s s conclus ion that the prosecutor exercised p eremptory challenges in a racially discriminatory manner the Batson claim. As we have held, the Batson claim has been presented at least twice to this Court and once to the U.S. District Court and the U.S. C ourt of A ppeals for the Fo urth Circuit and properly found by all three courts to be w ithout an y merit. It does not establish any racial discrimination on the State s part in th is case. The three affidavits are not even relev ant, much less persuas ive. In his ow n affidav it, Evans claims, for the first time in 22 years, that, upon his arrest, he w as taken to an F.B.I. office where an unknown officer, identified only by the fact that he was wearing a black training suit, said to him, it s alright for you to kill each other but when you start killing whites in this country you are going to burn. Evans does not indicate whether this officer was an F.B.I. agent or a State or local police officer, and he fails even to suggest, much less establish, that any State pro secutor w ho made or participated in the decision to s eek the de ath penalty against Evans, either in 1983 or in 1992, ever heard or became aware of the statement (prior to the filing of his affidav it) or was influenced in any way by what this unknown office r said in th e conf ines of an F.B .I. office . His affidavit states that there we re four or five law enforcement officers in the room with me. He does not indicate that any prosecutor was p resent. The other two affidavits are no better. Edward Withers stated that he knew Evans -34- from serving time at the Maryland Penitentiary in 1984-85. During that time, Evans related to Withers the comment supposedly made by the unknown of ficer at the time of Evan s s arrest. Withers adds that, while he and Evans were sitting on some bleachers, a correctional officer made a racist comm ent to Mr. Evans. How that may have affected the prosecutor s decision to seek the death penalty against Evans is not explained. The affidavit of Rev. James McEa chim asse rts that, in 2002 , while visiting Eva ns in prison, E vans recited to him the comment supposedly made by the unknown officer at the time of Evans s arrest. Evans told him as w ell, McEa chim adds, that the officer had u sed the word nigger, something that Evans, in his own affidavit, fails to mention. This assertedly new evidence , which, if it happened , Evans kn ew abo ut in 1983 , is grossly insufficient to show any racial discrim ination affe cting the pro secutor s de cision to seek the death penalty. The record remains precisely as we characterized it last year: Evans has been unable to show that any such discrimination was at work in this case. The question then is whether the 2003 Paternoster Study, enhanced by a 2004 special Baltimore County supplement, suffices on its own to have required the Circuit Court, as a matter of law, to reopen the 1995 po st conviction proceedin g in order to permit discovery on this issue . The an swer is no. Some historical persp ective is helpf ul. The death penalty law that had long been in existence in M arylan d wa s inv alida ted in 1972 by Furman v. Georgia , 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed .2d 346 (1972) a nd Bartholomey v. State, 267 Md. 175, 297 A.2d 696 -35- (1972). The law under which, with occasional amendments, we now operate was enacted in 1978. That law, in accordance with requirements mandated in Gregg v. Georg ia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S . 242, 96 S . Ct. 2960, 49 L. Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed.2d 929 (1 976), ap plies a g uided d iscretion appro ach. As pertinent here, a person is not eligible at all for the death penalty unless he or she (1) committed a first degree murder, (2) was a principal in the first degree in that murder the actual killer or the person who paid the actual killer to commit the murder, (3) was eighteen or over when the murder was committed, and (4) at the time of the murder was not mentally retarded, as d efined in the statute. Even if those criteria apply, the defendant may not receive the death penalty unless the State (1) is able to prov e, beyond a re asonable d oubt, the existence of one or more of ten aggravating factors set forth in CL § 2-303(g), (2) has given timely written notice to the defendant of (i) its intention to seek the death penalty and (ii) each aggravating factor upon which it intends to re ly, and (3) is able to prove, by a preponderance of the evidence, that the aggrav ating factor( s) it proves be yond a reaso nable doubt outweigh any mitig ating factors that any juror (or the judge, if, at the defe ndant s option, sentencing is imposed by a judge) may find by a p reponde rance of th e evidenc e to exist. Subject to those legal conditions a nd, of cou rse, to any Constitutional ones that may apply, the State s A ttorneys retain the broad disc retion they hav e historically enjoyed in -36- determining which cases to prosecute, which offenses to charge, and how to prosecute the cases they bring. See Brac k v. Wells, 184 Md. 86, 40 A.2d 319 (194 4); Murphy v. Yates, 276 Md. 475, 348 A.2d 83 7 (1975); Evans v. State, supra, 304 Md. at 503, n.4, 499 A.2d at 1269, n.4. In any case tha t is legally eligible for th e death penalty, they are generally free to seek, or not s eek, that p enal ty, and to pursue or abandon their quest for the death penalty as the case pr oceed s. The first formal study of the implementation of Maryland s death penalty involved the pre-Furman law and was conducted in 1962 by a committee of the L egislativ e Cou ncil. See Report on Capital Punishment, Legislative Council Committee on Capital Punishment (October 3, 1962). The committee examined the 122 death sentences that had been imposed between 1936 and 1961. At the time, the death penalty was available for both murder and rape. During the 25-year study period, 122 persons had been sentenced to death, 71 for murder and 51 for rape. Twenty were still on death row when the study ended. Of the 102 others, 57 had been executed, 36 for murder and 21 for rape; the remaining 45 had either been given new trials, had their se ntences commuted or, in two cases, committed suicide. The committee noted then both a racia l and geog raphic disparity in the imposition of death sentences. Baltimore City, which d uring the 19 30's and 19 40's containe d about ha lf the State s population, was responsible for 59 of the 122 death sentences and 24 of the 57 executions. Anne A rundel Co unty was second with 12 death sentences and four executions, -37- followed by Dorchester and Montgomery Counties, with eight death sentences each, and Baltimore County, with seven death sentences. Three other pertinent findings were made by the Legislative Council Committee. First, in the great majority of the 122 de ath sentences, the defend ant and victim were strangers (60% of the m urder cases and all but thre e of the 51 rape cases), indicating that strangerhood was an important factor in the decision to seek the death penalty. Second, there was a disproportionate number of African Americans who received the death sentence and were executed. Eighty percent of the 122 defendants were black, and 50% of the black defendan ts sentenced to death were executed, whereas 40% of the white defendants senten ced to d eath w ere exe cuted. Fina lly, the greatest p roportion o f persons s entenced to death and executed were laborers, farm hands, truck drivers, and cannery workers; none of the d efen dants occupied p ositions o f we alth o r influen ce in society. The issue of geographic p roportionality under the 1978 law came before this C ourt in Calhou n v. State, 297 Md. 5 63, 488 A.2d 4 5 (198 3), cert. denied, 466 U.S. 993 , 104 S. Ct. 2374, 80 L. Ed.2d 846 (1983). At the time, the Court was required to determine, in any appeal involving a death sentence, whether the sentenc e was ex cessive or d isproportion ate to the penalty imposed in similar cases . . . . See former Md. Code (1 987 Re pl. Vol.), Art. 27, § 414(e)(4). Calhoun, who was tried, convicte d, and give n the death sentence in Montgom ery County, com plained tha t the death p enalty statute was unconstitutional because of the unbridled exercise of discretion by prosecutors. The record in that case, summarized -38- in a dissent filed by Judge Davidson in Tichnell v. Sta te, 297 Md. 432, 496-97, 468 A.2d 1, 33-34 (1983), showed both a substantial variation, ranging from 1.8% to 100%, in the percentage of cases in which the death penalty is sought, depending upon the identity of the prosecutor making th e determin ation and in the stan dards em ployed by prose cutors in deciding in which cases to seek the death penalty. Id. As examples, in six counties, prosecutors sought the death penalty whenever a single aggravating circumstan ce is present and mitigating circ umstance s are not take n into acco unt, whe reas in Baltim ore City and six other countie s, prose cutors c onside red mitig ating cir cumsta nces in makin g that de cision. Id. In five counties, prosecutors took into account the relationship between the accused and the victim, w hereas in three t hey did n ot. In response to Calhoun s complaint about how prosecutorial discretion was exercised, we held that [a]b sent any specific evidence of indiscretion by prosecutors resulting in irrational, inconsisten t, or discriminatory application of the death penalty statute, Calhou n s claim cannot stand. Calhoun v. State, supra, 297 M d. at 605, 48 8 A.2d a t 64. (Emp hasis added). We have never abandoned that standard. In 1987, the Public Defender s Office, which handled, and continues to handle, the great majority of death penalty cases under the 1978 law, examined the 1,461 homicide cases that, by then, had arisen since 1978. Applying the statutory criteria, the Public Defender found 415 of those cases to qualify for the death penalty. Formal notices of intent to seek the death penalty had been filed in 190, of which 90 had actua lly proceeded to the pena lty -39- phase (14 of the 90 w ere re-senten cing proce edings fo llowing a re versal by this Court). A total of 40 death sentences were actually imposed. Because of re-sentencings ordered on appeal, seven defenda nts accounted for 17 of those sentences; seve n others who had been senten ced to d eath ha d their se ntence s either c omm uted or stricken on app eal. The first and most critical finding by the Public Defender was the predominant influence of plea bargaining. Sixty-one defendants entered guilty pleas in return for withdrawal of the notice, and an other 42 p led guilty in return f or a comm itment not to f ile the notice in the first instance. Of the 17 persons then on death row, twelve were African American and five were white. Eleven of the seventeen co mmitted their crimes in Ba ltimore County. Neither Baltimore City nor any other county had more than one inmate on death row. See Capital Punishment in Maryland 1978-87: A Report by the Mar yland Pu blic Defender on the Administration of Capital Punishment, 21-23 (1987). The geographic disparity trumpeted in the Paternoster study was reported as well by the Public D efender, at a time more relevant to Evans s case. It wa s noted that Baltimore City filed death penalty notices in 10% of qualified cases, whereas Baltimore County filed such notices in 56.5% of qualified cases, and that, notwith standing tha t the City accounted for nearly four tim es as man y death penalty-eligible murders as the county, in absolute terms, the county conducted more than twice as many penalty phases as the City. Even then, Baltimore County w here few er than one in nine dea th eligible murders are committed, has sentenced more people to de ath than all other jurisdictions combined. Id. at 26. Prince -40- George s Cou nty, in which 1 8% of death penalty-eligible murders occurred, filed fa r more death penalty notices than Baltimore County (49 vs. 26), but it withdrew 34 of them and was apparently unsuccessful in obtaining or defending death sentences in the other 15 cases. The Public Defender also commented on racial proportionality. He acknowledged that the concern about racial discrimination had focused less upon the race of the offender than upon the race of the victim an d that statistical studies conducted in som e of the southern States that allegedly confirmed such discrimination had been found by the Suprem e Court in McClesky v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987) to be insuff icient to e stablish uncon stitutiona l discrim ination. Like Dr. Patern oster, the Pub lic Defen der identifie d the various steps at which decisions can be made regarding the death penalty the decision to seek it by sending a formal notice, the decision not to withdraw it (either unilaterally or in connection with a plea agreement), and the sentencing.2 He reported that, although murders involving white victims represented 42.6% of all cases eligible for the death penalty Statewide, those cases accounted for 65.2% o f the death penalty notices, a nd that, as a result, it is 2.18 times more likely that a death pen alty notice will be filed in a case involving the murder of a wh ite person tha n in a case involving the mu rder of a black person . Capital Punishment in Maryland 1978-87, 2 Dr. Paternoster split the third decision-making point into two the decision by the prosecutor to proceed with the penalty phase and the decision by the jury or judge whether to impose the death sentence. If the issue is selective prosecution, the prosecuto r s decision to proceed w ould seem to be the m ore relevan t. -41- supra, at 30. A similar disparity was observed at the second stage: 40.2% of the notices were withdrawn in cases involv ing a w hite victim , but in cases involving a black victim, 72.2% of the notices were withdrawn. Thus, it [was] 2.1 5 times mo re likely that a filed d eath penalty notice will b e withdraw n where the murde r victim was black than w here the murder victim was white. Id. at 30. From these statistics, the Public Defender concluded: In all, prosecutors seek the death penalty . . . in 31.7% (64 of 202) of all cases in volving white victims and in 6.8% (15 of 221) of all ca ses invo lving b lack vic tims. There is, therefo re, a 4.7 times greater numerical probability that the prosecuto r will seek the death penalty in a case invo lving a wh ite victim than in a case in volvin g a blac k victim . Id. at 31. A similar disparity was evident as well with respect to the actual sentencing. The death penalty was imposed in 35.9% of all cases involving a white victim and in 20.0% of cases involving a black victim . Thus, [t]h ere is a 1.80 tim es greater nu merical pro bability that a capital sentencer will impose the death penalty in a case involving a white victim than in a case involving a black victim. Although the Public Defender acknowledged that he had not subjected the data to the sophisticated statistical analysis that was the subject of the McCleskey case, he asserted that, from the raw d ata alone, no factor or gro up of factors remotely bears so stro ng a num erical correlatio n with cap ital sentencing results as does the race of the victim. Id. at 32. In December, 1992, Governor Schaefer created a special Comm ission to con duct a -42- comprehensive review o f the adm inistration of th e death pe nalty in Maryland. The focus of the Commission was not just on racial or geographical disparity, but it did comment on those matters. Finding No. 9 was that [c]apital prosecutio ns under M aryland s 197 8 death penalty statute are distributed among the State s tw enty-four cha rging jurisdic tions in a num erically uneven fashio n. The Rep ort of the G overnor s Comm ission on the Death P enalty, at xix and 198 (November, 1993). From 1978 to 1993, fifty-seven death sentences had been imposed (41 initial impositions and 16 at re- sentenci ng), of w hich 22 came from Balt imore Coun ty, five each from B altimore City and Prince Ge orge s County, and two from Harfo rd Cou nty. No other county had more than one. Id. at 91. As the record revealed in Calhoun v. State, supra, the standard s for determ ining wh en to pursue the death penalty in a case eligible for that penalty varied significantly from county to county. Some prosecutors considered possible mitigating circumstances, others did not; some looked at the likelihood of success, others did n ot; some w eighed the frustration em anating fro m the proc ess, most did not. Finding No. 10 was that [t]here is no evidence of intentional discrimination in the implementation of the death penalty in Maryland, but racial disparities in its implementation remain a matter of legitimate concern. Id. at xix-xx and 201. In its Commentary to that finding, the Commission, though noting that the data had not been subjected to the type of statistical analysis necessary to determin e whethe r numerica l discrepanc ies were sta tistically significant, concluded that the data it had neither established nor disproved discrimination agains t Africa n Am erican d efend ants or in favor o f white victims . -43- In light of the concern expressed over racial disparity, Governor Glendening created another Task Force in 1996 to determine the causes of racial disparity in the administration of the death penalty in Maryland. Report of Task Force on the Fair Imposition of Capital Punishment (Executive Sum mary) (December, 1996). The Task Force gathered statistics on the racial breakdown of persons on de ath row and surv eyed national literature dealing with racial disparity in capital sentencing. It concluded that the high percentage of AfricanAmerican prisoners under sentence of death and [] the low percentage of prisoners under sentence of death whose victims were African-American remains a cause for concern. Id. at 39. The potential for prejudice existed, the Task Force o pined, because m inorities were often under-represented in those positions whose incumbe nts make decisions regarding the capital p unishm ent pro cess. Id. at 41. There was no finding by the Task F orce that an y death penalty-eligible d efendan t in particular had been the subject o f racial discrim ination, either d irectly or by reason of the race of his victim. In 2001, yet another study was made, this one by Professors David Baldus and George Woodworth, of the University of Iow a. Dr. Baldus had made similar studies in several southern States, and, indeed, it was his study of the Georgia death penalty that was at issue in McClesky v. Kemp, supra. Baldus and Woodwo rth examined 346 Maryland first degree murder cases in which the State had served no tice of intentio n to seek the death pen alty and found that, even when considering the number of statutory aggravating factors charged, -44- defenda nts who killed wh ite persons were m ore likely to advance to the penalty phase and receive the death sentence than those whose victim was African American. David Baldus and Georg e Woo dwor th, Race of Victim and Race of Defe ndant Disparities in the Administration of Ma ryland s Cap ital Cha rging a nd Sen tencing System (1979- 1996): Preliminary Finding (2001). Even before the Baldus study was completed, Governor Glendening placed in the FY 2000 budget $225,000 for a further study the fifth i n 13 years of racial disparity in the administration of the death penalty. 2000 Md. Laws, ch. 204, at 1166. Professor Raymond Paternoster, who had participated in the 1996 Task Force evaluation, was appointed by the Govern or to cond uct the n ew stu dy. The re port of that stud y, An Em pirical Ana lysis of Maryland s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, is itself undated but, according to a press release issued by the University of Maryland, was completed in January, 2003. Following the approa ch of the o ther studies, D r. Paternoster id entified four key decision points in the death penalty sentencing system: the decision to issue a notice of intention; the decision not to retract that notice as the case proceeded; whether the case actually reached the penalty phase; and w hether the d eath senten ce was im posed. H is statistical analysis began with appro ximately 6,000 first and second degree murders committed in Maryland from August, 1978 to September, 1999, of which he concluded 1,311 were death-penalty eligible, either because the State s Attorney, by filing a formal notice of -45- intent to seek the death penalty, determined that they were death eligible, or because, in the view of the researchers or, in close cases, the view of a panel of prosecutors and defense attorneys, the case met the legal criteria for seeking the death penalty. 3 Prosecutors filed notices in 353 (27%) of those cases, but in 140 of them subsequently withdrew the notice, usually in connec tion with a p lea agreem ent. Of the 213 rem aining case s, 180 actua lly proceeded to a penalty phase, but only 76 resulted in a death sentence. Paternoster gives a number of reasons for a case not proceeding to the penalty phase the prosecutor concludes that a death sentence is unlikely or, during the guilt phase, no ag gravators were found or the defendant was fo und no t to be a p rincipal in the fir st degre e. Id. at 17. The con ditional probability of a death sentence in a death eligible case was only 5.8% for all defendants. The data show ed that w hite offenders com prised 24% of the poo l of death e ligible cases; black offenders comprised 74% of that pool and offenders of other races 2%. Of the notices of intention filed by prosecutors, 34% were filed against white offende rs, 65% against black offenders. Thus, the report conclude s, [t]he prob ability that a death 3 The actual composition of these panels, which reviewed about 300 cases, is not entirely clear. The Report sp eaks of a panel of a ttorneys who had som e experien ce in death penalty cases that was put together by the senior researcher after consultation with one p rosecutor a nd one p ublic defe nder, and s tates that it consis ted of a rou ghly equal number of State s Attorneys, public defenders, and private lawyers who had previo usly hand led dea th pena lty cases. Id. at 16. It appears that the actual cases to be reviewed were submitted to sub-panels of from five to ten attorneys, but the composition of those sub-panels is not indicated. A case for which no notice had been filed was included as death penalty eligible if a majority of the sub-panel (possibly three out of five) rated the case as such and were at least moderately confident in making that assessment. Id. at 17. -46- notification will be filed given a death eligible case is .24 for black offenders, and .37 for non-black offenders (over 90% of whom are white). Id. at 21. It adds that, [a]t each subsequent stage of the process there are no significant differences in the handling of black offenders and non-black offender cases. Id.4 Even after the data was adjusted to take account of 123 factors that he concluded might be relevant in a prosecutor s decision to seek and pursue the death penalty, Dr. Paternoster made the definitive finding that [l]ooking across the diff erent de cision p oints, there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for. Id. at 31. (Em phasis in original). With this finding, which supports the conclusion that the decision to seek and pursue the death penalty against Evans was not based on his race, the only possible relevance of the Study lies in its examination of whether the race of the victim(s) influenced those decisions. In that regard, D r. Paternoster conclude d that white victims com prised 45% of all death eligible cases,5 65% of death eligible cases in which an intention to se ek the dea th penalty was filed, 74% of the cases in which that notice was not withdrawn, 77% of the cases that 4 Curiously, in the preceding senten ce, Paternoster states, inconsistently, that [a]t this first d ecision point, th en, non-wh ite offenders are significantly more likely to have a death notice filed against them than black offenders. (Emphasis added). We assume that this senten ce is a mistak e, one of se veral appa rent on the f ace of the R eport. 5 There is another obv ious error in the articulation of that statistic. The Rep ort actually states that [w]hite offenders comprise approxim ately 45% o f all death elig ible cases. Id. at 22. (Emp hasis adde d). The sou rce for that sta tement F igure 3 d eals with victims, not off enders , and tha t is the fo cus of the disc ussion in the pa ragrap h. -47- advanced to the penalty phase, and 80% of the death sentences actually imposed. Based on the raw, unadjusted data, he concluded that the probability that a prosecutor will file a notice in a death eligib le case wa s 43% w hen there is a t least one w hite victim but only 19% when there are no white victims, that there was a 70% probability that the notice will not be withdraw n in white victim cases but only 46% in non-white victim cases, and there was an 88% probability of a white vic tim case adva ncing to the penalty phase and a 75% probability in a non-w hite victim case . Those d isparities he fo und to be s tatistically significant. 6 Dr. Paternoster posits that this data suggest[s] that the race of the victim appears to matter at least in the early stages of the capital punishment system. Id. at 22. His conclusions, from the unadjusted analysis are: (1) White offenders are more likely to be death notified than non-white offenders; (2) Offenders who kill at least one white victim are more likely to be death-notified, more likely to have that notice stick, and more likely to proceed to a penalty phase than cases without a white victim; (3) White offenders who kill whites are more likely to be death-notified than others; (4) Black of fenders w ho kill blacks are less likely to be death-notified and have that 6 In categorizing cases based on race of victim, Paternoster includes in the white column every case in which there was a white victim, even if there were also in that case one or m ore blac k victim s. Id. at Table 3A. He gives no reason why a case in which there were both wh ite and black victims sho uld be rega rded exclu sively as a wh ite victim case, does n ot indicate ho w man y such cases th ere were, if any, and doe s not indicate whether or how any conclusions drawn from the data might be affected if a different categorization had been used. -48- notice stick than others; (5) Black of fenders w ho kill whites are m ore likely to be death-notified and have that notice stick ; and (6) There is substantial and signific ant variation in the way State s Attorneys in Maryland make the decision to file a notice of intent to seek the death penalty and whether that notice is withdrawn. Following the lead of Dr. Baldus, Dr. Paternoster recognized that there were many factors other than ra ce that influ enced the decision to seek, purs ue, and ob tain the death penalty. Baldus had identified over 200 such covariates. Paternoster whittled them down to 123, inc luding the ten s tatutory ag gravato rs. Id. at Table 9. Some of those covariates seem, at least facially, to be duplicative.7 It is also of interest that there is no covariate for the circumstance in which a defendant had been sentenced to death and, like Evans and many others, had been awarded a new sentencing hearing on appeal or by reason of a successful collateral attack. Those cases seem to be part of the general mix, with no consideration given to whether the prosecutor seeks reimposition of the death penalty principally because the 7 Factor No. 5 is that defendant has a history of alcohol abuse. Factor No. 6 is that defendant has a history of drug abuse. Factor No. 26 is that defendant has history of drug or alcohol use/abuse. Factor No. 7 is that defendant has history of mental illness/emotional problems. Factor No. 25 is that defendant has history of mental illness/em otional p roblem s. Facto r 15 is tha t defen dant w as physic ally abuse d as a ch ild. Factor 20 is that defendant has history of physical abuse as a child. Factor 16 is that defendant was sexually abused as a child. Factor 21 is that defendant has history of sexual abuse as a child. Different Mean/Proportion numbers are given for each of these seemingly duplicative factors. -49- State was successful in getting it the first time and the case has been rem anded sp ecifically to give the State another opportunity whether, in other words, race of the victim or the offender plays any role at all in those decisions. There may be an explanation for the omission of that circum stance, wh ich has aff ected man y, if not most, of the defendants given the death sentence since 1978, including Evans, but the Report does not contain one. Because of a lack of information on some of the covariates in some c ases, Dr. Paternoster excluded those cases, which reduced the pool from 1,311 to 1,202. He did not regard that 8% exclusion as statistically significant. He reduced the pool further to 1,061, however, to eliminate cases in which information was missing either as to the race of the defendant or the victim, and he did regard that reduction as an impo rtant but una voidable weakness of this study, adding that [r]eaders of this report must bear in mind that analyses involving victim race and the intersection of victim and offender race have disproportio nately eliminated death eligible cases that were not death noticed. Id. at 28. After applying in some fashion the 123 covariates to the 1,061 cases, Dr. Paternoster concluded that there were both geographic and racial disparities in the decision to seek and pursue the death penalty which, in his view, could not be explained by the various covaria tes. In terms of geograp hy, the probab ility of the death penalty being sought and pursued was much greater in Baltimore County than in any of the other 23 jurisdictions. Id. at 29-31. As to race of victim, Dr. Paternoster concluded that the adjusted data confirmed the unadjusted data, that killers of white victims we re significan tly more likely to b e death -50- noticed, [and] to have that death notification stick, but, for some reason, do es not hold up . . . at the decision of the state s attorney to advan ce a cas e to a pe nalty trial. Id. at 32-33. That conclusion, Paternoster opined, remained constant when the race of the offender was considered. Thus, he found that black offenders who kill white victims were at greater risk even a fter cas e chara cteristics and the jurisdicti on we re cons idered. Id. at 36. In the concluding part of his Report, Dr. Paternoster made clear that the geogra phic and racial disparities he found exerted their greatest influence at the death notice and notice retraction points and were no t exacerba ted when the case ac tually proceede d to the pen alty phase. He acknowledged three limitations or w eaknesse s in the Rep ort. The first, already noted, arose from the fact that there were significant quantities of missing data on the race of some victims, that those cases were disproportionately lost at the notice decision, and that some o f the most i mportant effects estimated in the study revo lved aroun d the death notice decision. Id. at 40. A second w eakness, he said, was the inability to hold statutory aggravating factors con stant at the no tice decision, as prosecu tors were n ot required to identify aggravatin g factors u nless they issued a notice of intention to se ek the dea th penalty. Id. Finally, he emphasized that he had not addressed whether the statewide results estimated here hold equally for all counties. Id. Within a wee k after th is Repo rt was is sued, D r. Paternoster appeared before the Senate Judicial Pro ceedings C ommittee, w here he w as question ed about s ome of his methodology and conclusions. He summarized his conclusions thusly: [S]o, the lesson that -51- we took aw ay from this was that the race of the offende r did not ma tter; the race of the victim mattered pretty substantially; and the county or jurisdiction where the crime occurred probably mattered most of all. When asked whether he had an opinion as to why there was a greater risk of a de ath penalty in cases with white victims, he acknowledged that the results of the study did not mean that prosecutors were acting in a prejudicial fashion but suggested that the phenomenon could result from the fact that, nationally and presumably in Ma ryland, white people suppo rt the death penalty more than non-whites, that the families of white victims might push prosecutors to seek the death penalty more frequently than the families of non-white victims, and that, if prosecutors were responding to pressure from the families, that could produce the effects w e re observ ing right now wit hout any reference to racial prejudice or racial animu s. He added I would like to make it especially clear that these results do not mean that anyone is behaving in a racially discriminatory manner because I think there are other explanations for that. (Emphasis adde d). In Feb ruary, 2004, Dr. Paternoster released a supplement to his 2003 Report dealing specifically with B altimore Coun ty. See The A dministratio n of the De ath Pena lty in Baltimore County, Maryland 1978-1999. Unlike the 2003 Report, which was written in a fairly understandable narrative, the description of the logistic regression analysis from which the ultimate conclusions are derived in the 2004 Report is highly technical. Dr. Paternoster identified 152 death -eligible cases in Baltimore County du ring the stud y period. The county -52- prosecutor sought the death penalty in 99 of those cases (65%), which was the highest ra te in the State. Of the 99 cases, 75 (49% of death eligible cases) proceeded to a penalty phase, and a death pena lty was imposed in 34 (23 %). The raw data showed that non-white offenders comprised 55% of the 152 deatheligible killings (83 non-white/69 white), 59% of the 99 cases in which the prosecutor sought the death pen alty (58 non-white/41 white), 60% of the 75 c ases that pro ceeded to a penalty phase (45 non-white/30 white), and 71% of the 34 cases in which a death penalty was imposed (24 non-white /10 white). 8 Based on those numbers, Dr. Paternoster indicated that black offende rs were slig htly over repre sented in the Baltimore County capital punishment system when compared w ith their representation in the universe of death eligible cases. Id. at 4. The data regarding race of the victim showed that there w as at least one white victim in 79% of the 152 death eligible cases (12 0 white/32 non-wh ite), 81% o f the 99 ca ses in which an intention to seek the death penalty was filed (80 white/19 non-white), 83% of the 75 cases that proceeded to a penalty phase (62 white/13 n on-white ), and 88% of the 34 d eath sentences imposed (30 white/4 no n-white). N otwithstand ing that 55% of the dea th eligible cases involved non-white offenders and 79% involved a white victim , the Study repo rts that blacks who killed whites accounted for only 37% of all death eligible cases , 42% of death notices, 44% of cases advancing to the penalty stage, and 41% of actual d eath sen tences. Id. 8 The Repo rt does not give actual num bers, only percentages. The nu mbers are estimated from the percentages. -53- at 5, 6. Similar to the conclusions drawn as to race of offender alone, Dr. Paternoster estimated from th is data that cases involving blacks killing whites are slightly over represented at each dec ision makin g point in the capital punishment process. Id. at 5. (Emphasis add ed). Noting that the county prose cutor did frequently exercise her discretion in deciding whether to issue a death penalty notice, Dr. Paternoster reported that there was preliminary evidence that her discretion might be influence d by the race o f the offe nder and victim in the case, although he does not indicate what th at evide nce m ight be. Id. at 6. He added that [i]t is possible that any observed racial effect is not due to race at all but to legitimate case characteristics that are merely correlated with race. Id. at 6, 7. The report then launches into a highly technical bivariate logistic regression analysis involving a logistic regression coefficien t and an odds multiplie r. 9 The resu lts of this analysis appear in 21 tables, each 9 Dr. Patern oster explain s the analysis, as it rela tes to the dec ision to file a d eath penalty no tice, this w ay: The sign of the logistic regression coefficient for the race of the offen der is negativ e. Since the r ace of the o ffender is coded 0 ' for black of fenders an d 1' for wh ite offend ers, this negative sign of the logistic regression coefficient (b) indicates that white offenders are less likely to have the Baltimore County state s attorney file a notification to seek a death sentence than are black offenders. The magnitude of the logistic regression coefficient tells us that the log of the odds that a white offender will have a death notification filed agains t them is -.449 le ss than f or black offen ders. A coefficien t of 0 wo uld tell us that the re is no relation ship between the race of the offender and the decision of the (continued...) -54- containing a logistic regression coefficient, an odds multiplier, a constant, and a -2 Log Likelih ood, the derivation of which are unexplained. Presumably, the relevant factor is the -2 Log Likelihood, which is reported for race of offender, race of victim, and race of offender and victim models. Table 1 is illustrative: Table 1: Logistic Regression Results for Bivariate Race of Offender Model on the Decision to File a Notification to Seek a Death Sentence Variable Race of Offender Constant -2 Log Likelihood 191.916. b - .449 .842 Odds Multiplier .639 Converting this data throug h wha t he des cribed a s a ver y simple f ormula , Dr. Paternoster determined that the probability that the Baltimore Coun ty state s attorney will file a notification to seek death in a white offender case is .70 while the proba bility for a black offender case is .60, and that [t]his shows quite clearly that there is a greater tendency for the Baltimo re Coun ty state s attorney to file a notification to seek a dea th sentence in a black offender case rather th an one inv olving a w hite offender. Id. at 9. The 9 (...continued) Baltimore County state s attorney to file a notification to seek death. Our observed coefficient of -.449 is zero, indicating that there is some relationship between the race of the offender and the decision to seek a death sentence. The odds multiplier tells us that the odd s of a death notification is reduced by a factor of .639 if a white rather than a black offender is involved. Since no relationship between race of offender and death notification is indicated by a factor of 1.0, the odds multiplier of .639 further suggests that the decision of the Ba ltimore Co unty state s attorne y to file a death notifica tion is m odestly af fected by the rac e of the offen der. -55- simple formula is as follows: V e$0+$1x1 p = '''''''''''''''' 1+e$0+ $ 1x1 Dr. Paternoste r defines the terms as fo llows: $0 is the estimated value o f the co nstant, $1 is the estimated logistic regression coefficient for the explanato ry variable, and x1 is a given value o f the ind epend ent varia ble. Evans argues that this supplemental analysis shows that even after controlling for case characteristics, the Baltimore County State s Attorney s Office has, over the past 21 years, engaged in racial discrimination in selecting cases for capital prosecution. It does no such thing and has never been asserted by Dr. Paternoster to present or document such an accusation. The only co nclusion d rawn by D r. Paternoster is that, based sole ly on his statistical analysis, black offenders who slay white victims in Baltimore County are: 1. more likely to have the state s attorney file a notification to seek a death sentence 2. less likely to have an initial death notification withdrawn 3. more likely to have their case advance to a penalty trial 4. more likely to be sentenced to death than death eligible crimes involv ing all ot her raci al com bination s. Id. at 30. There have been numero us studies of post-Furman death pen alty cases that pu rport to -56- examine and dem onstrate the effect of race on the imposition of the death penalty, beginning as early as 19 76. In 1 990, the U.S. General Accounting Office (GAO) examined many of those studies. See U NITED S TATES G ENERAL A CCOUNTING O FFICE, D EATH P ENALTY S ENTENCING, Report to S enate and House C ommittees on the Judiciary (1990). After excluding studies based on pre-Furman data and those that were either duplicative or that did not contain empirical data, GAO looked at 28 studies and rated about half as low quality and half as of eit her me dium o r high q uality. Id. at 2, 3. After noting three methodological limitations affecting some of the studies the threat of sample selection bias, omitted variables, and small sample sizes GAO reported that 82% of the studies indicated that defendants who murdered whites were more likely to be sentenced to death than those who murdered blacks . That co nclusio n, draw n from severa l varieties of statisti cal ana lysis, was confirmed in 15 studies conducted in the 1990's and at least 15 more published since 2000. See Jon So rensen , et al., Empirical Studies on Race and Death Penalty Sentencing: A Decade After the GAO Report, 37 C RIM . L. B ULL. 395 (200 1); David Baldus and George Woodworth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, 41 CRIM . L. B ULL. 6 (April 2005). These studies have used a number of statistical methods, ranging from simplistic ones that made no attempt to evaluate the severity of the crime, to those that attempted to classify severity of the crime by considering whether the defendant was a deliberate killer, the status -57- of the victim, and the heinousness of the killing, to the logistical regression techniques developed by Baldu s and u sed by Pa ternoste r. See Br yan E delma n, R ACIAL P REJUDICE, J UROR E MPATHY, AND S ENTENCING IN D EATH P ENALTY C ASES, 22-25 (LB F Schola rly Publishing LLC , 2006) ; Baldu s, et al., Monitoring and Evaluating Contemporary Death Sentencin g System s: Lessons from G eorgia, 18 U.C. D AVIS L. R EV. 1375, 1381-82 (1 985). In 1987, the relevance and impact of this kind of statistical analysis came before the Supreme Court in McCleskey v. Kemp, supra, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262. McCles key, a black man, was convicted in a Georgia court of murdering a white police officer during the commission of a robbery and was sentenced to death. In a Federal habeas corpus action, he claimed , based solely on a logistical regression analysis by Dr. Baldus of the implementation of the death penalty in Georgia and not on any specific evidence in his own case, tha t he wa s discrim inated a gainst b y reason o f his rac e and th at of the victim. The District Court conducted an evidentiary hearing, exhaustive ly examined the Baldus stud y, and rejected it as unpersuasive because of numerous faults, including the subjective nature of the coding for the presence of variables, the treatment of certain unknown variables, the potentially faulty assumption that all of the information available to the coders was available to the prosecutors or sentencing bodies at the tim e their respective decisions w ere made, and the potential that unacco unted for variables cou ld explain the outcom e. The court found that the data base used by Baldus had substantial flaws and had not been shown to be trust wor thy, that none of the models used by him were sufficiently predictive to support an -58- inference of discrimination, and that the presence of multi-colinea rity positive coe fficients for race of victim and race of defendant substantially diminished the weight to be accorded to the circumstantial statistical evidence of racial disparity. See McCleskey v. Zant, 580 F. Supp. 338, 356 -64 (N.D . Ga. 1984 ). On app eal, the U.S . Court of A ppeals for the Eleven th Circuit, sitting en banc, affirmed the District Court s ruling, on the ground that, even assuming the validity of the research (which the District Court found wanting), it still did not support a decision th at Georg ia law wa s being un constitutionally ap plied. McCleskey v. Kemp, 753 F.2d 877, 886-87 (11th Cir. 1985). In affirming, the Suprem e Court used essentially the same approach as that used by the Court of Appea ls that the B aldus study, eve n if statistically valid, w as insufficie nt to establish unlawful racial discrimination. Dealing first with McCleskey s equal protection argumen t, the Court n oted that, although it h ad accep ted statistics as pro of of inten t to discriminate in certain limited contexts, the nature of the capital sentencing decision and the relationship of statistics to that decision are different from those contex ts. McCleskey v. Kemp, supra, 481 U.S. at 294, 107 S. Ct. at 1768, 95 L. Ed 2d at 279. As to the sentencing decision itself, it is made by a jury selected fro m a prop erly constituted v enire, each ju ry is unique, and the jury s decision rests on innumerable factors that vary. Another distinction noted by the Court is that, unlike venire selection and Title VII cases, the State has no practical opportunity to explain the statistical disparity and should not be required to do so: Sim ilarly, the policy considerations behind a prosec utor s traditionally wide discretion suggest the impropriety of our -59- requiring prosecutors to d efend the ir decisions to seek death penalties, often years after they were made . [citation omitted]. Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition o f the death penalty. Id. at 296-97, 107 S. Ct. at 1769, 95 L. Ed.2d at 281. The Court also observed that McCleskey s statistical proffer had to be viewed in the context of the challenge an attack on decisions at the heart of the criminal justice system, the implementation of w hich necessarily requires discretionary judgments. Id. at 297, 107 S. Ct. at 177 0, 95 L. Ed .2d at 281. T he Cou rt continued : Because discretion is essential to the criminal justice process, we would demand exceptionally clear pro of before we wo uld infer that the discretion has been abused. The unique nature of the decisions a t issue in this case also co unsels against adopting such an inference from the disparities indicated by the Baldus stud y. Accordingly, we hold that the Bald us study is clearly insufficient to support an inference that any of the decisionmakers in McCleske y s case acted with discriminatory purpo se. Id.10 10 The McCleskey Court noted that the Baldus study divided cases into eight different ra nges acco rding to the e stimated ag gravation le vel of the o ffense an d that, in his testimony in the District Court, Dr. Ba ldus observed that the ef fects of racial bias were most striking in the midra nge cases . His actual tes timony, quote d by the Sup reme Co urt, was: [W]hen the cases become tremendously aggravated so that everybody would agree that if w e re go ing to h ave a d eath sen tence, th ese are t he case s that sho uld get it , the race effects go away. It s only in the mid-range of cases where the decision-makers have a real choice as to what to do. Id. at 287, n .5, 107 S . Ct. at 17 64, n.5, 9 5 L. Ed .2d 275 , n.5 (continued...) -60- Essentially the same reasoning was used to reject McCleskey s argument that the racial disparities revealed by the Baldus Study caused the death penalty to be arbitrary in its application and to viola te the Eighth Amendment for that reason. The Court observed, as we have with respect to Dr. Paternoster, that even Dr. Baldus did not contend that his statistics proved that race was a factor in McCleskey s, or any other particular, case. Apparent discrepancies in sentencin g, the Cou rt noted, are a n inevitable p art of our criminal justice system, and that the discrepancy indicated by the Baldus study was a far cry from the systemic defects identified in Furman. McCleskey v. Kemp, supra, 481 U.S. at 312-13, 107 S. Ct. at 1778, 95 L. Ed.2d at 291-92. It continued: Where the discretion that is funda mental to our criminal process is involved, we dec line to assum e that wha t is unexplain ed is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundam ental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demons trate a constitutionally significant risk of racial bias affect ing the G eorgia c apital se ntencin g proce ss. Id. at 313, 107 S. Ct. at 1778, 95 L. Ed.2d at 292.11 10 (...continued) (Emp hasis ad ded). D r. Baldu s has co ntinued to ackn owled ge that f act. See David Baldus and G eorge W oodw orth, Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research, supra, 41 C RIM . L. B ULL. 6. 11 Although that is the critical holding, the McCleskey Court pointed out two other considerations that inform[ed] its decision. The first was the slippery slope of McCleskey s argument that if the Court accepted the claim that racial bias had impermiss ibly tainted the cap ital sentencing decision, it w ould not o nly be faced w ith (continued...) -61- Appare ntly realizing that McCleskey is of little help with respect to the main Paternoster Study, Evans, seizing on a comment included in a footnote in McCleskey, urges that the Baltimore County supplement would pass muster under that case. In distinguishing venire selection and Title VII cases from selective prosecution claims, the McCleskey Court observed that in the former cases, the statistics referred to fewer entities and that fewer variables were relevant. In a footnote, the Court acknowledged that an unexplained statistical discrepancy can be said to indicate a consistent policy of one decision-maker, but that it was much more diff icult to deduce a consistent policy by studying the decisions of many unique entities. Id. at 295, n.15, 107 S. Ct. at 1768, n.15, 95 L. Ed.2d at 280, n.15. As decisions whether to prosecute and what to charge necessarily are individualized and involv e infinite factual variations, coordination among prosecutors across a State would be meaningless, thereby making inferences from Statewide statistics of doubtful relevance. Id. The Baltimore County supplement, Evans urges, overcomes that concern and demonstrates consistent racial discrimination on the p art of one prosecutor. At the very lea st, 11 (...continued) similar claims as to other types of penalty but with respect to unexplained disparities relating to other minority groups, other actors in the criminal justice process, or other arbitrary variables, such as attractiveness of the def endant or victim. The C ourt conclu ded: th ere is no limiting p rinciple to the type of cha llenge b rough t by McC leskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. Id. at 318- 19, 107 S. Ct. at 1 781, 95 L. Ed.2 d at 295 . Second, the Court noted that McCleskey s arguments are best presented to the legislative bodies as [i]t is not the re sponsibility or in deed eve n the right o f this Cou rt to determine the appropriate punishment for particular crimes. Id. at 319, 107 S. Ct. at 1781, 95 L. Ed.2d at 296. -62- he claims, United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed.2d 687 (1996) mandate s his entitleme nt to discov ery on his selective prosecution claim. Armstrong provides no such mandate. In Armstrong, the defendants, all African American, were indicted in Federal court for conspiracy to possess with intent to distribute mo re than 50 grams of crack cocaine and conspiracy to distrib ute that s ubstan ce. They moved for discovery or to dismiss the indictment on the ground that they were selectively chosen for Federal prosecution because they were black. In suppor t of their mo tion, they offere d an affid avit from a Paralega l Specialist employed by the Public Defend er, who asserted, with documentation, that, in every one of the 24 cases involving those charges closed by the Public Defender s Office in 1991, the defendant(s) were black. Over the Government s objection, the District Court granted the discovery motion and ordered the Government to produce certain infor mation reg arding all cases in the past three years in which it had charged both cocaine and firearm offenses, includin g its criter ia for de ciding to prosec ute thos e cases . When the Government refused to comply with that order, the court dismissed the indictment and the Ninth Circuit Court of Appeals affirmed. The Supreme Court reversed. The Suprem e Court de alt first with whether the defe ndants were entitled to the d iscovery under Fed. R ule Crim . Proc. 1 6(a)(1) (C). It concluded that they were not, and that ruling does not concern us here. With respect to the broader attack, based on equal protection under the Fifth Amendment, th e Court ob served that its c ases delinea ting the nec essary elemen ts to -63- prove a claim of selective prosecution have taken great pains to explain that the standard is a demand ing one a nd that the showing necessary to o btain discov ery should itself be a significant barrier to the litigation of insubstantial claims. Id. at 463-64, 116 S. Ct. at 1486, 134 L. Ed.2 d at 698 . The Court emph asized the b road discre tion that prose cutors hav e in deciding which cases to pro secute and what cha rges to bring, that there is a presumption of regularity in how they exercise that discretion, and that, [i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary. Id. at 465, 116 S. Ct. at 1486, 134 L. Ed.2d at 698, quoting in part from United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S. Ct. 1, 6, 71 L. Ed. 131, 14 3 (1926). To establish a selective prosecution claim, the Court held, the claimant must demons trate that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose, id. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699, quoting from Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed.2d 547, 556 (1985), and to esta blish a d iscrimin atory eff ect in a ra ce case , the claimant must show that similarly situ ated individuals of a different race were not prosecuted. United States v. Armstrong, supra, 517 U.S. at 465, 116 S . Ct. at 1487, 134 L. Ed.2d at 699. (Empha sis added). In that regard, the Court emphasized a contrast in tw o of its earlier cases Ah Sin v. Wittman, 198 U.S. 500, 25 S. Ct. 756, 49 L. Ed. 1142 (1905), and Yick Wo v. Hopkins, 118 U.S . 356, 6 S. C t. 1064, 30 L. Ed. 220 (1886). In Ah Sin, the Court had rejected -64- the claim by a Chinese defendant that the law under which he was prosecuted was enforced solely against Chinese people because it did no t allege that ther e were no n-Chines e people against whom it could h ave been but w as not enforced. In Yick Wo, the Court granted relief on a claim that an ordinance prohibiting the operation of a laundry in a wooden building had been enforced against 200 Chinese individ uals whose applications for permits had been denied but that 8 0 non- Chine se appl icants h ad bee n grant ed perm its. The Court expressly rejected Armstrong s argument that cases such as Batson, supra, and Hunter v. Underwood, 471 U.S. 222, 105 S. Ct. 1916, 85 L. Ed.2d 222 (1985) cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individ uals. United States v. Armstrong, supra, 517 U.S. at 467, 116 S. Ct. at 1487, 134 L. Ed.2d at 700. The Court noted that, in Hunter, where it had invalidated a law disenfranchising persons who had been convicted of crimes involving moral turpitude, there was direct evidence that the law had been enacted for the purpose of disenfranchising blacks and in disputa ble evid ence that it had the des ired eff ect. Because of the significant costs to the Government to provide the kind of discovery likely to be required assembling documents from its files that might support or rebut the defendant s claim, diverting resources, disclosing prosecutorial strategy the Court held that the justifications for a rigorous standard for the elem ents of a se lective prose cution claim require a correspondingly rigorous standard for discovery in aid of such a claim. United States v. Armstrong, supra, 517 U.S. at 468, 116 S. Ct. at 1488, 134 L. Ed.2d at 701. That -65- requires some evidence of differential treatment of similarly situated members of other races or protected classes. Id. at 470, 116 S. Ct. at 1489, 134 L. Ed.2d at 702. The study offered by Armstron g did not co nstitute evide nce suffic ient to show the essential elements of a selective prosecution claim, in that it failed to identify individuals who were not black and could have been prosecuted for the offenses for which respo ndents were cha rged, but were not prosecuted. Id. Armstrong was not a death penalty case, did not invo lve a statistical an alysis approaching that done by Dr. Paternoster, and did not perm it discovery on the issue. W e fail to see how it mandate s the relief Ev ans seeks. A case more on point, an d more p ointedly dooming Evans s claim, is Belmontes v. Brown, 414 F.3d 1094 (9 th Cir. 200 5), rev d on other grounds sub nom . Ayers v . Belm ontes, ____ U.S. ___, 127 S. Ct. 469, ___ L. Ed.2d ___ (2006), which Evans has failed even to mention, much less attempt to distinguish. Belmontes was a Federal habeas corpus action arising from a conviction a nd death sentence imposed in State court. Among other complaints, Belmontes contended, as does Evans, that the decision to pursue the death penalty was infected by racial discrimination against defendants who killed white victims, and in support of that charge, he produced a statistical study of death eligible homicides in the county where he was prosecuted. The study was similar in methodology and conclusions to the Baltimore County supplement prepared by Dr. Paternoster. Citing Armstrong, the Ninth Circuit Court held that, to succeed in a selective prosecution claim, Belmontes needed to show both a discriminatory effect and that -66- the decision -makers in his case acte d with a dis criminatory pu rpose tha t the prosecu tor in his case pursued a death sentence because of the race of his victim. Belmontes offered no direct evidence on that issue but relied entirely on the statistical stud y. The cou rt found it un necessary to determine whether a statistical analysis alone cou ld suffice because, in response to the motion, the prosecutor stated that, when he decide d to pursue a death sentence against Belmontes, he had reason to believe that Belmontes had committed another murder as well and that there was evidence in the record to provide a good faith basis for that belief. Thus, the court held, there appears to be a legitimate race-neutral reason for a prosecutor to seek a death sentence in this particular case, and therefore sufficient evidence to rebut the inference of discrimination raised by Belmontes statistical study. Id. at 1129. The racial discrimination claim was denied. In considering the force of Armstrong and, indeed, Evans s entire argument grounded on the Paternoster studies, we must recall from our discussion of the Wiggins issue the context in which the issue arises. Armstrong was a direct appeal from the dismissal of a criminal indictmen t, and at issue was the v alidity of that dism issal; Belmontes was a Federal habeas corpus action, an action of right. That is certainly not the case here. The issue is not whether a lower court erred as a matter of law in rejecting the statistical evidence offered by Evans, but only whether it abused its discretion in denying his third motion to reopen the 1995 post conviction case to allow this ne w claim to be presen ted, in the hop e that, if allow ed to rummage through the prosecutors files in more than 150 other cases, he might find some -67- evidence of racial discrimination. In resolving that issue, notwithstanding what appear to be some significant weaknesses and omissions in both the 2003 study and the 2004 Baltimore County supplement, some admitted by Dr. Paternoster, others that are seemingly ap parent and unexplain ed, we sh all accept, for purpo ses of this appeal, that they show a greater likeliho od that, in a de ath penalty eligible case arising in Baltimore County, the death pen alty is statistically more likely to be pursued against a black person who murders a white victim than against a defendant in any other racial comb ination. For th e reasons a lready stated, we note that the statistical studies are the only evidence of racial discrimination on the part of the Baltimore County prosecutor offered by Evans that there is no other evidence that the race of the offender or of the victim(s) played any role w hatever in th e prosecutor s de cision to pur sue the dea th penalty agains t Evan s, either in 1983 o r in 199 2. The disparities supposed ly demonstrated by the Paternoster Stud y and the Baltimore County supplem ent have been in the public domain for nearly twenty years. They are not new. The statistical methodology has been refined over time, but the conclusions drawn from it have remained fairly constant, at least since the Public Def ender s study in 1987. This issue could have bee n raised by Ev ans in his first post conviction case in 1990, at his re-sentencing in 1992, in his second post conviction case in 199 5, in his first Federal habeas corpus action in 1997, in his second petition for Federal habeas corpus in 2000, in his first motion to reopen the 1995 post conviction case in 1999, an d in his seco nd motion to reopen that case in 2001. -68- Instead, he has chosen to wait 22 years from his first sentencing and 14 years from his second until the eleventh hour, as the d ate and time f or executin g the senten ce were im minent, to raise this issue and demand the right to search through all of the 152 death eligible cases arising in Baltimore County since 1978 to see if he could find some clue as to why the State s Attorney chose to seek or not seek the death penalty in each of those cases and, if he found what he regarded as a suspicious fact, to examine or cross-examine the prosecutor with respect to her decision in any or all of those cases. Apart from this d eliberate w ithholding o f a claim tha t could we ll have been presented on several earlier occasions, he has failed to show, from any of the statistical evidence, that there was any other perso n similarly situated to himself against whom the death penalty was not sought be cause the v ictim was black who, in Baltimore County, had, for hire, murdered two people in order to prevent them from testifying in a pending criminal case. We have already taken judicial notice, on at least three occasions, that [t]he mu rders giving rise to this prosecution were as heinous a s those in any case to come before us under the present capital punishment statute. No killings could hav e been m ore preme ditated and deliberate than those here. Evans v. State, supra, 304 Md. 487, 539, 499 A.2d 12 61, 1288 ; Evans v. State, supra, 389 Md. 45 6, 461-62 , 886 A.2d 562, 565 ; Grand ison v. State, 305 Md. 685, 750, 506 A.2d 580, 613 (1 986), cert. denied, 479 U.S. 873, 107 S. Ct. 38, 93 L. Ed.2d 1 74 (1986 ). It would seem rather fruitless to require, as a m atter of law , that a post conviction case that was concluded nine years ago be reopened so that the prosecutor could confirm the obvious, that -69- if there was ever a case for the d eath pena lty, it was Evans s the cold comme rcial aspect, the brutality, firing nineteen bullets close range at two people, and the fact that it struck at the very heart of our criminal justice system, murdering witnesses to prevent them from testifying in a pend ing crim inal case . See Belmontes v. Brown, supra. We recall th e point ma de in the Baldus study and commented on in McCleskey that, in the extreme case, where everybody would agree that if we re going to have a death sentence, these are the cases that should get it, the race factors go aw ay. As noted, apart from his selective prosecution complaint, Evans argues that the 2003 Paternoster study shows that the imposition of the death penalty throughout Maryland operates in a racially and geographically biased ma nner. This type of attack is directly addressed by McCleskey, and E vans o ffers n o supp ort for a rejection of the re asonin g emp loyed the re. Since McCleskey, no court has allowed a claim of this kind. The courts accept the reasoning in McCleskey concerning the failure of general statistics to establish a statewide Equal Protection or Cruel and Unusu al Punishment violation a nd instead require a defendant to assert some specific disc riminatory intent in their case. Lee v. State , 942 S.W.2d 231, 237 (Ark. 1997); Cochran v. State , 547 So. 2 d 928, 93 0 (Fla. 198 9); Jones v. Sta te, 440 S.E.2d 161, 163 (G a. 1994 ), cert. denied, 513 U.S. 853, 115 S. Ct. 154, 130 L. E d.2d 93 (1994); People v . Britz, 528 N.E.2d 703, 718-19 (Ill. 1988 ), cert. denied, 489 U.S. 1044, 109 S. C t. 1100, 103 L. Ed.2d 242 (198 9); Underwood v. State, 708 So. 2 d 18, 37-3 8 (Miss. 19 98); State v. Taylor, 929 S .W.2d 209, 22 1 (Mo . 1996) (en ban c), cert. denied, 519 U.S. 1152, 11 7 S. Ct. -70- 1088, 137 L. E d.2d 222 (1997); State v. Reeves, 604 N.W.2d 151, 160-61 (Neb. 20 00); Lane v. State, 881 P.2d 1358, 13 63 (N ev. 199 4), vacated on other grounds, 956 P.2d 88 (Nev. 1998); People v . Hale, 661 N.Y.S.2d 457, 4 67 (N.Y . Sup. Ct. 19 97); State v. Byrd, 512 N.E.2 d 611, 6 19 (O hio 198 7), cert. denied, 484 U.S. 1037, 108 S. Ct. 763, 98 L. Ed.2d 780 (1988); Comm onwea lth v. Mars hall, 810 A.2d 1211, 1228 (Pa. 2002) (rejecting argument based on statistics because Appellant has failed to provide any link between the findings of this statistical abstract and his particular case ), cert. denied, 540 U.S. 833, 124 S. Ct. 81, 157 L. Ed.2d 61 (2003); State v. Evans, 838 S.W.2d 185, 196 (T enn. 19 92), cert. denied, 510 U.S. 1064, 114 S. Ct. 740, 126 L. Ed .2d 702 (1994); Bell v. State, 938 S.W.2d 35 , 51-52 (Tex. Cr. App. 1996) (rejecting Equal Protection argument based on statistics [b]ecause appellant fa ils to direct us to any proof of purposeful prosecutorial or jury discrimination in his particular case and rejecting Cruel and Unusual Punishment challen ge), cert. denied, 522 U.S. 827, 118 S. Ct. 90, 139 L. Ed.2d 46 (1997); Turner v. Comm onwea lth, 364 S.E.2d 483, 49 0 (Va. 1988), cert. denied, 486 U.S. 1017, 108 S. C t. 1756, 100 L. Ed.2d 2 18 (1988 ); In re Davis, 101 P.3d 1, 58 (Wash. 2004) (general statistics insufficient to render death p enalty unconstitutional). This reasoning holds true for asserted geogra phic dis parities a s well. See State v. Hairston, 988 P.2d 1170, 1192 (Idaho 1999) (rejecting claim based solely on statistical study demonstrating that s tate's death pen alty is applied significantly more often in u rban counties), cert. denied, 529 U.S. 1134, 12 0 S. Ct. 2014, 146 L . Ed.2d 963 (200 0).12 12 Only one state has even come close to allowing a general statistical study (continued...) -71- The resu lt in Maryland should be no different than the consensus around the country. In Calho un v. Sta te, supra , 297 Md. 563, 468 A.2d 45, we re jected Calhoun s arguments that the Marylan d Death Penalty Statute violated the Eighth and Fourteenth Amendments of the U.S. Constitution and Articles 16 and 25 of the M aryland Dec laration of R ights by its lack of standards governin g the prose cutor s exe rcise of discr etion in wh ether to seek the death penalty. The C ourt held: Absent any specific evidence of indiscretion by prosecutors resulting in an irrational, inconsistent, or discriminatory application of the death penalty statute, Calhoun 's claim cannot stan d. To the ex tent that there is a difference in the practice of the various State's attorneys around the State, our proportion ality review w ould be intended to assure that the death penalty is not impos ed in a d ispropo rtionate mann er. Id. at 605, 4 68 A.2 d at 64. See also Tichnell v. Sta te, 287 Md. 695 , 415 A.2d 830 (1980) (upho lding co nstitution ality of the Marylan d Dea th Pena lty Statute o n its fac e). 12 (...continued) showing disparate racial impact in the administration of the death penalty to establish a general constitutional violation. In State v. Ma rshall, 613 A.2d 105 9, 1110 (N.J. 1992 ), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993), the Court expressed a willingne ss to contrad ict McCleskey based on the New Jersey Constitution, saying that were we to believe that the race of the victim and race of the defendant played a significant part in capital-sentencing decisions in New Jersey, we would seek corrective measures , and if that fa iled we co uld not, con sistent with o ur State's policy, tolera te discrimination that threatened the foundation of our system of law. However, New Jersey has yet to encounter proof of such systematic discrimination. In State v. Loftin , 724 A.2d 129 (N.J. 1999), the court reaffirmed its general statement from Marsh all but rejected statistics similar to those involved in this case for various reasons pointed out by their Special Master, finding that the defendant has not relentlessly document[ed] the risk of racial d isparity in the imp osition of the death pen alty as would be required to invalida te the pe nalty und er the sta te cons titution. Id. at 160, quoting State v. Ma rshall, supra, 613 A .2d at 11 11-12 . -72- Fina lly, Evans contends in this regard that, even if his complaint does not pass muster under the Eighth and Fourteenth Amendments to the Federal Constitution, it does under Articles 16, 24, and 25 of the M aryland Dec laration of Rights. We h ave cons istently construed those provisions as being in pari ma teria with their Federal counte rparts and are not convinced that they should be read more bro adly (or narrow ly) in this context. W e hold that the Circuit Court did not abuse its discretion in denying Evans s third motion to reopen the 1995 post conviction case and the judgment in No. 123 will be affirmed. IV. NO. 122 Unlike the claims previously addressed, No. 122 arises from an indepe ndent actio n in the Circuit Court for Baltimore City filed by Evans and three other plaintiffs, in which they sought to enjoin the Division of Correction (DOC) from carrying out lethal injections under its existing protocols. The app eal is from the denial of their req uest for a temporary restraining order. Because a temporary restraining order is in the nature of an injunction, such an appeal, though from an interlocutory order, is permitted under M aryland Code, § 12303(3)(iii) of the Cts. & Jud. Proc. Article (CJP). Two complaints are made about the DOC protocols: first, that they are inconsis tent with Maryland Code, § 3-905(a) of the Correctional Services Article (CS), which prescribes the method of execution by lethal injection; and second, that they constitute a regulation that was not adopted in conformance with procedural -73- requirements of the S tate Administrative Proced ure Act (APA ).13 A. Standing The State s first response to these complaints is that we should not address them because (1) the co-plaintiff organizations have no standing to raise them, and (2) Evans failed to exhaust available administrative remedies and, under both the Prisoner Litigation Act (Maryland Code, C JP §§ 5-1 001 throu gh 5-100 7) and traditional administrativ e law, he is precluded from challenging the execution protocols through a direct judicial action for declaratory and injunctive relief. We agree with the State that the three organizations have no standing on their own to pursue the litigation, but we shall consider the challenge made by Evans. We have long held to the view that, under Maryland common law principles, for an organization to have sta nding to bring a jud icial action, it mu st ordinarily have a property interest of its own separate an d distinct from that of its individual members and that an individual or an organization has n o standing in court unless he has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the 13 Although in his brief, Evans captions his argument as being that the execution protocol violates the APA and the statute and creates a grave risk that an inmate will be inadequately sedated and suffer an excruciating death, his counsel conceded at oral argument that he was not making an argument that the execution protocol constituted a cruel and unusual punishment, under either the State or Federal Constitution. Counsel stated that such an argument had been made in a pending action in Federal court. We shall therefo re regard an y cruel and un usual pun ishment cla im as havin g been kn owingly and volun tarily waived w ith respect to th is appeal. -74- general public. Medica l Waste v. M aryland W aste, 327 Md. 596, 612-13, 612 A.2d 241, 249 (1992), quoting in part from Citizens P. & H . Ass n v. Co unty Exec., 273 Md. 333, 345, 329 A.2d 681, 687 (1974) and Rogers v. Md .-Nat l Cap. P. & P. Co mm n, 253 Md. 687, 691, 253 A.2d 713, 71 5 (196 9). See, more recently, Duckworth v. Deane, 393 Md. 524, 903 A.2d 883 (2006), and compare Teachers Union v. Board of Education, 379 Md. 192, 199, 840 A.2d 728, 732 (2004), confirming that principle but finding that the organization in question did suffer that special damage necessary to provide standing. In this case, the o nly asserted basis for standing on the part of the three organizations is that they all oppose capital pun ishment an d desire to se e that the dea th penalty is not carried out at all, but e specially in violation of law. In the complaint, the NAACP asserted that it works to eliminate racial prejudice and has long opposed the death penalty and, in particular, the disproportio nate impa ct of the de ath penalty on African-American criminal defendants. The ACLU averred that it works to ensu re that all people in the State of M aryland are free to think and speak as they choose a nd that it con tinues to oppose c apital punish ment on m oral, practical, and cons titutional grounds. The third organization, CASE, posited that it is a coalition of groups and individuals united to end the death penalty in Maryland. All three organizations claimed that they had an interest in seeing that State officials operate within the boundaries of the law and ensuring that executions are not carried out in violation of the Constitution and Maryland law. The mere fact that an individual or group is opposed to a particular public policy does -75- not confer standing to challenge that policy in court. If it were otherwise if any person or group disenchan ted with some pu blic policy but not adversely affected by it in some special way were free to seek a jud icial declaration that the policy is inv alid the courts, rather than the legislative branch, would end up setting public policy, and that is not the proper role of the Judicia ry. The interes t asserted by the o rganization s ensuring that State off icials operate legally and that executions are not carried out unlawfully is no different than the interest of all Maryland citizens. The three organizations have not alleged, and presumably cannot legitimately allege, that they will suffer any special damage or injury if the current execution protocols adopted by the DO C are imp leme nted , and , con sequ ently, they have no standing on their own to challenge those protocols. The situation with Evans is different and requires some contextual explanation. We are dealing here with three agencies the Department of Public Safety and Correctional Services (DPSCS), which is a principal department of the Executive Branch of the State Govern ment, the DOC , which is a u nit within D PSCS vested w ith responsibility ov er the State correctional facilities , and the Inma te Grievan ce Offic e (IGO), a unit that is also w ithin DPSCS and that was created to address certain complaints and grievances on the part of individ uals co nfined in a DO C faci lity. In 1997, the G eneral As sembly enac ted the Priso ner Litigation Act (PL A) in order to complement the Federal Prison Litigation Reform Act (42 U.S.C. § 1997e), enacted by Congress a year earlier. CJP § 5-1003(a ) provides th at [a] prison er may not m aintain a civil -76- action until the prisoner has fully exhausted all administrative remedies for resolving the complaint or grievance. Section 5-1003(b) requires the prisoner to attach to the initial complaint proof that administrative remedies have been exhausted, including proof that the prisoner filed a complaint or grievance with the appropriate agency, proof of the administrative disposition of the complaint or grievance, and proof that the prisoner appealed the administrative disposition to the appropriate authority, including proof of judicial review. Evans is undisputedly a prisoner, as that term is defined in CJP § 5-1001(g) a person who is in the custody of the [DPSC S] . . . . It is also und isputed that h e failed to attac h to his comp laint in N o. 122 a ny proof that he h ad exh austed any adm inistrativ e reme dy. Maryland Code, CS §§ 10-201 through 10-210, create the IGO and permit an individual confined in a DOC correctional facility who has a grievance against an official or employee of the DOC to submit a complaint to the IGO within the time and in the manner required by regulations adopted by the IGO. Section 10-206(b) provides, however, that, if the DOC has a grievance procedu re applicab le to the particular grievance and the IGO con siders that procedure to be reasonable and fair, IGO, by regulation, may require that the DOC procedure be exhausted before submission of a complaint to the IGO. The IGO has, indeed, adopted regulations governing those matters. COMAR 12.07.01.03D provides that, to the extent that a DOC administrative remedy procedure applies to a particular grievance, the inmate must exhaust that procedure before submitting the grievance to the IGO. COMAR 12.07.01.06A. and B. require that a grievance be filed with the IGO within 30 days from the -77- date of the occurrence being grieved, or within 30 days after the grievant knew or should have known of the occurrence and that an appeal from the DOC administrative remedy procedure be filed within 30 days from the grievant s receipt of a response from the Commissioner of Correc tion or w ithin 30 days of th e date th e Com mission er s resp onse w as due. DOC has adopted an ad ministrative re medy proce dure for th e adjustme nt of certain inmate grievances. At the times relevant to this case, it was set forth in DOC Directives 185101 through 1 85-700. T he proced ure was d eclared to b e applicable to grievanc es related to institutional policies and procedures. Directive 185-101 (effective February 1, 2001) required a prisoner to submit a Request for Administrative Remedy to the warden within 15 days from the d ate the incid ent or com plaint occurred or from the date the inmate first gained knowledge of the incident. Under the ensuing Directives in the 185 series, the warden was required to respond to the request within 30 days, and the prisoner was then required to appeal an unfavorable response from the warden to the Commissioner of Corrections within 10 days after receipt of the response. The Commissioner, whose decision was final for purposes of the DOC procedure, had 30 days to respond. The next step was a complaint to the IGO. On November 21, 2005, this Court decided Massey v. Dept. of Corrections, supra, 389 Md. 496, 886 A.2d 585, where we reviewed various Directives adopted either by the Secretary of DPSCS pursuant to CS § 2-109 or the Commissioner of Correction pursuant to CS § 3-205. The prisoner, Massey, had sought administrative review, pursuant to DOC Directive 185-100, -78- of discipline meted out pursuant to DPSCS Directives 105-4 and 105-5 adopted by the Secretary of DPSCS, claiming that the Secretary s Directives were not valid because they constituted regulations under the A PA that had no t been adopted in co nformance with the requireme nts of that Act. We agreed with Massey that the Secretary s Directives constituted regulations under the APA, that they had not been adopted in conformanc e with the statutory requirements, and that they were therefore ineffective. We delayed the issuance of our mandate in that case for 120 days in order to give the Secretary an opportunity to pursue the statutory re quirem ents. Although the DOC Directive 185 series was implicated in Massey, our ruling did not deal with those Directives, but on ly with the Secretary s Directiv es. On December 9, 2005, Evans filed a request for administrative remedy with the appropriate warden, contending that the DOC execution protocols w ere unlawful for a variety of reasons, including that they constituted regulations th at had not b een validly adopted. He thus made the same argument as to the DOC protocols that Massey had made with respect to the Secretary s Directives. The warden denied the request on January 3, 2006, and on January 9, Evans filed an appeal to the Commissione r. Without waiting for the Commissioner s response, he and the three organizations, on January 20, 2006, filed this action for declaratory and injunctive relief, raising the same issues presented in the administrative proceeding. On February 1, 2006, the court denied Evans s req uest for a temporary restraining ord er and preliminary injunction, from which this appeal was taken. No final judgment has been entered in the matter; the case -79- remains p ending in th e Circuit C ourt. On February 27, 2006 a fter the Circuit Court entered its orde r denying temporary injunctive relief the Commissioner rejected Evans s administrative appeal, whereupon, on March 13, 2006, Evans appealed to the IGO. On June 2, 2006, an Administrative Law Judge, acting for the IG O, conclu ded that the execution protocols w ere not inco nsistent with CS § 3-905 but that portio ns of them were inef fective bec ause they had not been a dopted in conformance with the APA. On June 27, the Secretary of DPSCS rejected the latter determination and concluded that the Execution Operations Manual (EOM) that specifies the lethal mixture and the manner o f its injection the procedures challenged by Evans is not a regulation requiring adoption pursuant to the APA rule-making provisions. That determination, embodied in the Secretary s Order, constitutes the final administrative ruling in the matter. O n July 26, 2006, Evans filed a petition for judicial review of the adverse rulin gs in the C ircuit Co urt for Baltim ore C ity. As noted, the PLA was enacted in resp onse to the Federal Prison Litigation Reform Act. That Act 42 U.S.C. § 1997e(a) provides that no action may be brought with respect to prison conditions under 42 U.S .C. § 1983 or any other Federal law by a prisoner confined in any correction al facility until such administrativ e remedie s as are available are ex hauste d. Although § 1997e does not define the term prison conditions, some Federal courts have looked to 18 U.S.C. § 3626, which deals with the kinds of remedies available in civil actions with respect to pris on cond itions. Section 3626(g)(2 ) defines c ivil action w ith respect to -80- prison conditions as meaning any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions of government officials on the lives of persons confined in prison, other than habeas corpus proceedings challenging the fact or duration of con finem ent in pr ison. See Free man v. F rancis, 196 F.3d 641 (6 th Cir. 1999); Treesh v. T aft, 122 F. Supp.2d 8 87 (S.D. Ohio 2 000). In the limite d time th at the Fe deral A ct has b een in e ffect, the Federal courts have construed the term with respect to prison conditions very broadly, to include claims of excessive force, hara ssment, failu re to provide qualified interpreters at disciplinary hearings, indifference to medica l needs, failur e to protect a p risoner from other prison ers, failure to comply with the Americans With Disabilities Act, and denial of First A mend ment rig hts. See, for exam ple, Larkin v. Galloway, 266 F.3d 718 (7 th Cir. 200 1), cert. denied, 535 U.S. 992, 122 S. Ct. 1551, 152 L. Ed.2d 475 (2002 ) (exces sive fo rce), Johnson v. Litscher, 260 F.3d 826 (7 th Cir. 200 1) (hara ssmen t), Castano v. Nebras ka Dep t. of Corrections, 201 F.3d 1023 (8 th Cir. 2000), cert. denied, 531 U.S. 913, 121 S. Ct. 266, 148 L. Ed.2d 193 (2000) (failure to provide interpreter); Witzke v. Femal, 376 F.3d 744 (7 th Cir. 2004) (medical co nditions); Brady v. Attygala, 196 F . Supp .2d 101 6 (C.D .Cal. 20 02) (fa ilure to p rotect), Carrasquillo v. City of New York, 324 F. Supp.2d 428 (S.D.N.Y. 2004) (ADA violatio n), Treesh v. Taft, supra, 122 F. Supp.2d 887 (den ial of cond emned in mate s right to make last sta tement prio r to execution). We are aware of no case, however, and none has been cited to us, in which the term has b een h eld to inclu de an attac k on the m anner of exec uting the deat h penalty. -81- Although § 1997e(a) declares that no action shall be brought by a prisoner confined in any correctional institution, th e Act has been interp reted as prec luding on ly actions in Federal court, and, indeed, it was that limitation that prompted the concern leading to the enactment of PLA that it would lead prisoners to file actions under 42 U.S.C. § 1983 and other Federal statutes enforceable in State court in the State courts and thus overwhelm the State courts with often frivolous litigation . See Adamson v. Correctional Medical, 359 Md. 238, 261-65, 753 A.2d 501, 513 -15 (2000). The Maryland statute, though perhaps modeled on the Federal, is constructed somewhat differently. Unlike the Federal approach of stating that no action . . .with respect to prison con ditions ma y be brough t absent exh austion of a vailable administrative remedies, the PLA, CJP § 5-1003(a)(1), tracks more the verbiage of 18 U.S.C. § 3626. It precludes a civil action and defines tha t term in § 5-1001(c) as a legal action . . . that relates to or involves a prisoner s conditions of confinement. (Emphasis added). Un like 42 U .S.C. § 1997e, which applies to actions respecting prison conditions but does not define that term, the PLA applies to actions involving conditions of confinement and defines that term as meaning any circumstance, situation or event that involves a prisoner s custody, transportation, incarceration, or supervision. (Em phasis a dded). There can be little doubt that the execution protocols challenged by Evans affect in a significant way asp ects of h is custod y, incarcer ation, or superv ision. See Tr eesh v. Taft, supra, 122 F . Supp .2d 887 . Nor, in light of the legislative history of the PLA, can there be -82- much doubt that the General Assembly intended for that statute to have a bro ad reach a nd to require prisoners to exhaust all available administrative remedies before filing judicial actions relating to prison conditions. The very fact that Evans filed an administrative complaint and ultimately pursued it to a conclusion demonstrates that an administrative procedure did exist. The Federal Act imposes no pleading requirement on prisoners to allege exhaustion of administrative remedies. Failure to exhaust is an affirmative defense to the action that must be pled and show n by the defendant. See Mitchell v. Horn, 318 F.3d 523 (3 rd Cir. 2003); Abney v. McG innis, 380 F.3d 663 (2 nd Cir. 2004). The Maryland statute is more onerous. As noted, CJP § 5-1003(b) requires the prisoner to attach to the initial complaint proof that administrative remedies have been exhausted, including proof (1) that the prisoner filed a complaint or grievance with the appropriate agency, (2) of the administrative disposition, and (3) that the priso ner h as a ppealed the adm inistrativ e disposi tion to the app ropr iate a utho rity, including proof of judicial review. If the prisoner has, in fact, exhausted his or her administrative remedies but has simply failed to attach proof of that fact, §5-1003(b)(3) requires the court to dismiss the case without prejudice and grant the prisoner leav e to amend the complaint and to provide the proof necessary to demonstrate that th e prisoner h as fully exhausted the administrative remedies. If the prisoner has not actually exhausted available administrative remedies, §5-1003(c) requires the c ourt to dism iss the action w ithout leave to amend ( A court shall dis miss a civil action if the p risoner filing th e action has not comp letely exhausted the adm inistrative remedies. ). -83- In light of these requirements (and the lack of standing on the part of the three coplaintiffs), the Circuit C ourt should have dismissed the complaint under § 5-1003(c). Had that been done, Evans could have completed the administrative process and proceeded through the judicial r eview action to litigate hi s challen ge. If the administrative proceeding had never been completed, we would be required to vacate the Circuit Court order and remand the case for that court to dismiss the action. It is clear, however, that the administrative process has now been completed. The Secretary of DPSCS has made a final administrative determination that the execution protocols (1) do not violate CS § 3-905, and (2) do not con stitute reg ulations . Those issu es, which h ave been fully briefed and argued in this Court, are purely legal ones that require no further evidentiary developm ent. For us to direct the dismissal of the complaint filed in January, 2006, so that the Circuit Court could consider anew essentially the same issue in the context of the pending judicial review action, from which a new appeal would necessarily arise, would be a useless waste of judicial resources. The purposes of the PLA, and, indeed, of the common law exhaustion requireme nt, have be en met. 14 B. Consistency with the Sta tute 14 We cau tion that this is an unusual c ase, and ou r decision to p roceed w ith this aspect of the appea l should not be taken as a license for prisoners to file court proceedings subject to the PLA without having fully exhausted their administrative remedies. The law is clear. If the complaint does not contain proof that the administrative process has been exhausted, it must be dismissed. -84- Title 3, subtitle 9 of the Correctional Services Article sets forth the procedures for executing a sentence of death. CS §3-905(a) states: The manner of inflicting the punishment of death shall be the continuous intravenous administratio n of a letha l quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice . That provision is s upplemented by CS § 3-906, which directs the Commissioner of Correction to provide a suitable and efficient pla ce, enclosed from pu blic view, in which to carry out an execution, to provide all of the materials necessary to perform the execution, and to select trained individuals to administer the lethal injection. Section 3-906(c) provides that an individual who administers the paralytic agent and lethal injection need not be a health care practitioner. Those provisions were enacted by the Ge neral A ssemb ly in 1994 . See 1994 Md. L aws, ch . 5. After enactment of Ch. 5, DOC adopted an Execution Operation s Manu al (EOM ) to govern virtually all aspects of implementing the death sentence by lethal inje ction. The EOM specifies the logistics, the responsibilities of various DOC officials and personnel, preexecution procedures commencing upon receipt of a warrant of execution, post execution procedures, the responsibilities of a special unit to provide security for inmates awaiting execution, and the responsibilities of a comma nd center. None o f those procedures a re challenged by Evans. The EOM defines the term Lethal Injection as [t]he administration of a lethal -85- quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medic al practice. T hat definitio n tracks the statutory langua ge excep t that it omits the word continuous preceding administration. Attached to, and presumably a part of, the EOM is a Lethal In jection Ch ecklist, whic h prescribe s in conside rable detail the actual contents of the lethal concoction and the method of injecting it. That is the subject of Evans s comp laint. The Checklist specifies that the injection is to consist of (1) 120 cc/3 grams of sodium pentothal in two 60 cc syringes, (2) 50 cc/50mEq. of pancuronium bromide (Pavulon) in one 50 cc syringe, and (3) 50 cc/50mEq. of potassium chloride in one 50 cc syringe. Each of those drugs is administered at the rate of 1 to 1.5 ml/second, and each, in the dosage administered, is believed to be lethal on its own. So dium pen tothal is a seda tive; Pavulon stops the breathin g; potas sium ch loride sto ps the h eart. Apart from preparations, the execution process begins w hen the inm ate is strapped to the execution table, an IV line is inserted in to each arm , and a saline solution com mences to run through the line into the inmate. The inmate is checked to observe for swelling or discoloration and to assure that the solution is flowing. At the appropriate signal, the first syringe of sodium pentothal is administered. The syringe is then removed and the second syringe of sodium pentothal is administered. That syringe is then removed, and the saline solution is allowed to run for ten seconds. At that point, the Pavulon is administered. The -86- Pavulon syringe is then removed and, again, the saline solution is allowed to run for ten seconds. Finally, the potassium chloride is administered. That syringe is removed and the saline solution flows for another ten seconds.15 When the EKG monitor indicates that no heart activity is occurring, the physician advises the execution team leader and the physician prono unces d eath. See EOM, Lethal Injection Checklist at 4-6. Evans co mplains tha t this procedu re deviates f rom the statu te in three ways: first, he claims, the statute calls for the administration of two dr ugs, bu t the EO M ad ds a third , a second paralytic agent; second, the statute requires a continuous intravenous administration of an ultrashort-acting barbiturate, but the EOM calls for two bursts of sodium p entothal; and third, where as CS § 3 -906(c)(1) re quires the Commissioner to select execution profession als who are trained to administer the lethal injection, the EOM requires only the hiring of trained persons but does not specify what kind of training is required. A short answer to this complaint is that the issue of whether the EOM is consistent with CS § 3-905 was presented in Oken v. S tate, 381 Md. 580, 851 A.2d 538 (2004) and rejected by us on the merits. In Oken, we held that the method of execution intended to be implemented by the Division of Correction does not violate the provisions of Maryland Code (1999, 2003 Cum. Supp.) § 3-905 of the Correctional Services Article or constitute a cruel or unusual punish ment . . . . Id. at 580-81, 851 A.2d at 538. Evans asks us either to ignore or 15 It is not clear from the EOM whether all three lethal drugs are injected through one IV line and, if so, why a second line is inserted. -87- overrule that clear, precedential holding because it was expressed in a per curiam opinion without any explanatory comm ent. He points out that the truncated litigation in Oken led a Federal District Court judge, in Oken v. Sizer, 321 F. Supp.2d 658 (D. Md. 2004) to doubt the quality, extensiveness, or fairness of procedures in the case and to decline to give res judicata effect to our decision. He ne glects to mention, how ever, which counsel has a clear ethical obligation to do, that two days later, the Supreme Court vacated the stay of execution ordered by the District Court judge (Sizer v. Oken, 542 U.S. 916, 124 S. Ct. 2868, 159 L. Ed.2d 290 (2004)) and, on remand, the District Court denied the requested stay and allowed execu tion of th e death senten ce aga inst Ok en to pr oceed . Our ruling in Oken was in the for m of a sum mary per curiam order because, like Evans, Oken waited more than 10 years, until the very eve of his scheduled execution, t o present the claim. The Court did give fair consideration to it, however, as evidenced by the dissent filed by Chief Judge Bell. We would never have permitted that death sentence to be executed if we had any reason to believe that Oken had a legitimate claim. Because we have stayed the warrant of execution issued against Evans to consider the other issues raised by him, we s hall respon d in full to his a rgumen t. The issue ulti mate ly is one of statutory construction. Whether the Lethal Injection Checklist violates or is inconsiste nt with CS § 3-905 d epends o n how th at statute is properly construed. We can quickly dispose of two of Evans s claims. He argues that the EOM method of administering the ultrashort-acting barbiturate deviates from the statute in that -88- it calls for administering the drug in two separate bursts, where the [statute] calls for its continuous intravenous admin istration until dea th. Th ere is no such d eviation . Under the EOM procedure, the barbiturate is admin istered c ontinu ously. It is inserted in ad vance into two 60 cc syringes, and, as soon as one is administere d, that syringe is removed and the drug in the second syringe is injected . There is no flushing of saline solution between the two injections. The mere fact that DOC has chosen to administer the 120 cc of barbitura te in two syringes, the second injected imm ediately after the first, rather than in one 120 cc syringe, does n ot mak e the ad ministra tion no n-cont inuous . The second argument that may be summarily disposed of is that DOC has not selected persons trained to administer the lethal injection. Evans has offered utterly no evidence in this case to support that assertion but complains only that the EOM does not specify what type of training is required. Neither does the statute. The only argument worthy of more intensive consideration lies in the assertion that the statute specifies the administratio n of only on e chemica l paralytic agent, whereas the EOM calls for the adm inistration of tw o Pavu lon and po tassium ch loride. The q uestion is whether, when the Legislature directed that there be the administration of an ultrashortacting barbiturate or other similar drug in combination with a chemical p aralytic agent (emphas is added), it intended to preclude the use of more than one chemical paralytic agent whether a o r an, as used in that statute, necessarily implies the singular. As we have held so often, and most recently in Oakland v. Mountain Lake, 392 Md. -89- 301, 316, 896 A.2d 1036, 1045 (20 06), and Frederick v. Pickett, 392 Md. 411, 427, 897 A.2d 228, 237 (2006), the prime objective in construing statutes is to determine and implement the legislative inten t. We look first to the language actually used by the Legislature, and if that language is clear and unambiguous, we need go no furth er. If the intent, as relevant to the issue at hand , is not so clear fro m the sta tutory lang uage a lone, ho weve r, we may consider relevant and reliable external indicators, including the legislative history of the statute. The articles a or an are indefinite artic les, in contrast to the def inite artic le the. They do not, however, necessarily imply the singular, but generally take their meaning in that regard from the context in which they are use d. See Deutsch v. Mortgage Securities Co., 123 S.E. 793, 795 (W. Va. 1924) ( The indefinite article a may so metimes m ean one, w here only one is intended, or it may mean one of a num ber, depen ding upo n context. ) ; National Union Bank v. Copeland, 4 N.E. 794, 795-96 (Mass. 1886) ( [T]he p article a is not n ecessarily a singular term. It is often used in the sense of any, and is then applied to more than one individual object. ); Lewis v. Spies, 350 N.Y.S.2d 14, 17 (A.D. 19 73) ( Th e indefinite a rticle a is not neces sarily a singular term. It is often used to mean any rather than one. ). Most courts have construed a or an as me aning any and as not re stricted to just one . See Lindley v. Murphy, 56 N.E.2d 832, 838 (Ill. 1944) ( The article a is generally not used in a singular sense unless such an intention is clear from the language of the statute. ); Chavira v. State, 319 S.W.2d 11 5, 120 (Tex. Cr. A pp. 1958) ( a m eans the same as a ny ); First American Nat. Bank v. Olsen, 751 S.W.2d 417, 421 (Tenn. 1987) (same); Application of Hotel -90- St. George Corporation, 207 N.Y.S.2d 5 29 (King s Co. 196 0) (same); State v. Snyder, 78 N.E.2d 7 16, 718 (O hio 1948 ); compare Harward v. Com., 330 S .E.2d 8 9, 91 (V a. 1985 ). It is evident, then, that whether the General Assembly intended to preclude the inclusion in the lethal mix of more than one paralytic agent cannot be determined, as a matter of law, from the language of the statute alone. The Legislature did not say one chemical paralytic agent, which, if that is what it intended, it could have done. We need to turn, then, to other indicia of intent, the most relevant and cogent of which, we think, is the legislative history of the statute. Prior to the 1994 legislation, M aryland used th e gas cham ber lethal gas as th e means of executing the death sentence. The switch to lethal injection was recommended by the Governor s Comm ission on the Death P enalty in its 199 3 Rep ort. See The Report of the Governor s Commission on the Death Pe nalty, supra, at xx and 214-18. The Commission noted that the historical method of execution in Maryland was hanging and that in 1955, the Legislature substituted lethal gas because that method was regarded as less painful and more dignified than either hanging or electrocution. The Commission added, however, that the national trend had mor e recently mov ed away fro m lethal gas because it w as though t to kill by asphyxiation and that the suffocation or strangula tion accom panying the a sphyxiation co uld cause extreme pain for as long as twelve minutes. Maryland, it said, was the only State then to mandate that metho d. Id. at 215. The rejection of lethal gas had prompted at least 24 States to substitute lethal injection as the method of execution. The Commission advised that [t]he -91- injection of a fast-acting barbiturate or other lethal drug appears to c ause death quickly without the pain associated with the slower death caused by lethal gas. Id. at 217. A bill to substitute lethal injection for the gas chamber was introduced into the 1993 session of the General Assembly (Sen. Bill 203), just after the Governor s Commission had been appointed.16 The bill passed the Senate but died in the House of Delegates. The Commission report, recommending the change, was filed in November, 1993, and two months later, companion bills nearly identical to Sen. Bill 203 were introduced into the 1994 session as Ad ministra tion Bills (Hou se Bill 4 98 and Sen. B ill 304). The Legislature was clearly aware from both the Commission report and from evidence presented to it in connection with the 1993 bill (S.B. 203) that more than 21 States (24 by the time the Commission report was released) had mandated lethal injection as the means of executing death sentences. A simple com parison sho ws that the M aryland statute is n early identical to those that had been adopte d earlier in nine o ther Sta tes. See A RK. C ODE A NN. § 5-4-617(a); 725 ILL. C OMP. S TAT. A NN. 5/119-5(a )(1); M ISS. C ODE A NN. § 99-19-51 ; M ONT. C ODE A NN. § 46-19-103(3); N.M. S TAT. A NN. § 31-14-11; N.C. G EN. S TAT. § 15-187; O KLA . S TAT. A NN. tit. 22, § 1014(A); S.D. C ODIFIED L AWS § 23A-27A-32; W YO. S TAT. A NN. § 7-13904(a). We are in formed, w ithout contradiction by Evans, that in at least 24 of the States 16 As noted, the Governor s Commission was not created to focus just on the method o f executio n. Most o f the data u sed by the Co mmission in support o f its recommendation to switch to lethal injection was already published and, indeed, was mentioned in the legislative documents accompanying Sen. Bill 203. -92- using lethal injection, the same three drugs called for in the EOM were prescribed, although not all of those States have statutes that specify the kinds of drugs to be used.17 We are not aware of any case, and none has been cited to us by Evans, in which a court in any Sta te with a statute similar to CS § 3-905 has held that the three-drug protocol is inconsistent with the govern ing statu te. More significant, at the hearing conducted by the House Judiciary Committee on House Bill 498, on March 3, 1994, the Committee asked the Commissioner of Correction to provide a description of the lethal injection process. Given that the raison d etre for the change was that lethal injection was a much more humane approach, an explanation of the process was surely a matter of interest to the Legislature. The Commissioner responded on March 8, and advised the Committee that the process would be just what is called for in the EOM that the inmate would b e strapped to a fixed gurney, that catheters would be placed in both arms and a saline solution administered until the command is given to commence the execution, that a quantity of sodium pentothal would then be administered, that the line would then be flushed 17 It appears that the use of an ultrashort-acting barbiturate and neuromuscular blocking drugs was first recommended in a letter by Dr. Samuel Deutsch, a professor of anesthesio logy at the Un iversity of Ok lahoma H ealth Scien ces Cente r, to Oklaho ma State Senato r Daw son. See Debo rah W . Denn o, When Legislatures Delegate Death: The Troubling Parado x Behind State Use s of Electroc ution and Lethal Injec tion and W hat it Says About Us, 63 O HIO S T. L. J. 63, 95-96 (2002). Professor Denno observes that Oklahoma s lethal injection statute, which is representative of other state statutes, repeats nea rly verbatim the te rminology tha t Deutsch used in his le tter to describe to Dawson the two main types of drugs that Deutsch recommended. Id. at 97. She notes that the typical lethal injection consists of the three chemicals, but is uncertain how the third drug potassium chloride got into the mix. -93- with normal saline solution, that a quantity of Pavulon would then be administered followed by another flushing with saline solution, and that a quantity of potassium chloride would then be injected . The en tire proc ess, he said, would take 10 to 15 minutes. The Commissioner added that [a] trained execution team would conduct all activities associated with the execution process and that [a] medical doctor w ould be available to con firm that death has occurred. It is thus evident tha t the Legislatu re was w ell aware th at, if it enacted th e statute authorizing lethal injection, th e statute wo uld be imp lemented by the three-drug mixture. Following the receipt of that advice, the statute was enacted. There is no evidence that any member of the Legislature questioned whether the approach described by the Commissioner would be consistent with the statute. On this record, we conclude, as we did in Oken, that the EOM protocol is not inconsistent with the statute. C. Enforceability of EOM as a Regulation Title 10, subtitle 1 of the State Government Article (SG), which is part of the Administrative Procedure Act, sets forth certain requirements for the adoption of regulations by Executive agencies subject to the statute. The Department of Public Safety and Correctional Servic es and D OC a re subje ct to the s tatute. Massey v. Dept. of Corrections, supra, 389 M d. at 499 , 886 A .2d at 58 7. SG §§ 10-110 and 10-111 require that a unit desiring to adopt a regulation, other than -94- as an emergency measure, publish the proposed regulation in the Maryland Register and send a copy of it to the Joint Legislative Committee on Administrative, Executive, and Legislative Review (AELR Committee) for that Co mmittee s re view. Sec tion 10-11 1(a) provid es that a unit may no t adopt a propo sed reg ulation until tha t is done . Section 10 -112 spec ifies that, in order to have a proposed regulation published in the Register, it must be accompanied by a notice that (1) states the economic impact of the proposed regulation on State and local government revenues and expenditures and on groups that may be affecte d by it, and (2) sets a date, time, and place for public hearing. A unit may not change the text of any regulation unless it is proposed anew and adopted in accordance with the requirements of §§ 10-111 and 10-112 . . . . SG § 10-113. Section 10-114 re quires that, if the regulation is a dopted, the unit must su bmit a notice of adoption for publica tion in th e Mar yland Re gister. SG § 10-117 provides that the effective date of a n on-e mergency reg ulati on is the te nth c alen dar d ay after notice of ado ption is published in the Maryland Register (unless a later ef fective date is specified). T hus, a unit may not adopt a regulation u ntil there has been compliance with §§ 10-110 and 10-111, and a non-emergency regulation duly adopted does not become effective until ten days after notice of its adoption is published in the Register. None of the procedures mandated by those statutes were fo llowed by D OC prio r to adopting or, from tim e to time, amending the EOM. None of the proposals were submitted to the AELR Committee, published in the Ma ryland Registe r, or subjected to public hearing. -95- No notice of final adoption was ever submitted to or published in the Maryland Register. Thus, if the execution protocols challenged by Evans fall within the definition of, and thus constitute, a regulation as defined in SG § 10-101(g), they are ineffective. Section 10-101(g)(1) defines a regulation as including, in pertinent part, a statement that has gene ral application and future effect, is ado pted to de tail or carry out a law that the unit administers or govern the procedure of the unit, and is in any form, including a standard, statement of interpretation, or statement of policy. Sectio n 10-101 (g)(2) exem pts from that definition a statement which otherwise would be included within it but which concerns only internal management of the unit, or does not affect directly the rights of the public or the procedures available to the public. Evans contends that the actual execution protocols set forth in the EOM those included in the L ethal Inj ection C hecklis t cons titute a reg ulation, as defined in SG § 10101(g). The State responds that the EOM is not a regulation because it (1) does not have general application, (2) concerns only the internal management of DOC, and (3) does not directly affect the rights of the public. Those were the bases upon which the Secretary of DPSCS rejected Evans s adm inistrative challenge. Largely for the reasons set forth in Massey, supra, we disagree with the State s response. The State s argument to the contra ry notwithstan ding, there c an be no le gitimate doubt that the portions of the EO M that govern the method of an d procedure for administering the lethal injection have general ap plication and future effect, we re adopted to detail or carry out -96- a law that DOC administers, and govern the procedure of DOC. They have general application and future effect be cause they comprehe nsively govern the mann er in which every death sentence is im plemente d. Unqu estionably, they w ere adopte d, and, inde ed, it is their sole purpose and function, to carry out the mandates of CS §§ 3-905 and 3-906 an d add deta ils to the procedure that are unaddressed by the statute. They clearly are within the ambit of SG § 10-101(g)(1). The question is w hether the e xecution p rotocols fall w ithin the exem ptions set fo rth in § 10-101(g)(2). That was the issue in Massey as well whether DPSCS directives that established the basis for administering inmate discipline fell within the subsection (g)(2) exemptions. We observed there that, although an exemption from some of the procedural requireme nts for adopting regulations that pertain only to the internal management of an agency had been part of the Mod el Administrative Proced ure Act for about 50 years and was common in the various State laws, there was surprisingly little comment on the general mean ing and scope o f that ex emptio n. The available cases and com mentary indica ted that it was a pragmatic and balanced exemption. Massey v. Dept. of Corrections, supra, 389 Md. at 519, 886 A.2d at 598. On the one hand, app lying the proce dural require ments too far into the internal workings of the agency would c ompletely stifle agency activities if it were enforced, id. at 519, 886 A.2d at 598-99, quotin g from Gary M . Ham an and Robe rt P. Tun nicliff, Idaho Administrative Agencies and the New Idaho Administrative Procedure Act, 3 IDAHO L. R EV. 61, 79 (1966), -97- but on the other, agencies could too easily subvert public rulemaking requirements if they could avoid those proced ures for anything they called an internal directive to staff. Massey v. Dept. of Corrections, supra, 389 Md. at 519, 886 A.2d at 599, quoting from Arthur E . Bonfield, The Iowa Administrative Procedure Act, 60 IOWA L. R EV. 731, 833 (1975). (Emphasis in original). Bonfield, who seemed to be the most prolific commentator on this subject, viewed the internal management exemption as a very narrowly drawn provision with several important qualifications meant to assure that matters of internal agency management that are purely of concern to the agency and its staff are effectively excluded from normal rule-making and rule-effectiveness requirements. Massey v. Dept. of Corrections, supra, 389 Md. at 520, 886 A.2d at 599, quoting from Arthur E. B onfield , S TATE A DMINISTRATIVE R ULE M AKING § 6.17.2, at 402. Th e kinds of directives fa lling within th e exemp tion, he conclude d in his aforecited law review article, face inwards and do not su bstantially affec t any legal rights of the public or any segment of the public. He gave as examples purely internal personnel practices and directions. Massey v. Dept. of Corrections, supra, 389 Md. at 520, 886 A.2d at 599, quoting from 60 IDAHO L. R EV. at 834. (Emphasis added). The rather meager case law fairly supported and applied those principles. The real tes t of wheth er a DO C Directiv e (or other p olicy statement) is exempt from the APA requirements because it concerns only the internal management of the agency and does not affect public rights is whether, given the nature and impact of the Directive, the -98- Legislature intended that the agency be free to adopt, change, or abrogate the Directive a t will, without any public inp ut or legislative r eview. As noted, the APA requires that proposed regulations be submitted to the AELR Comm ittee for its review. Although the Committee may not veto a p roposed re gulation, it may hold hearings, get public input, and object to the proposal. SG § 10-111.1(b) directs the Committee, in deciding whether to oppose a proposed regulation, to consider whether the regulation is in confor mity with the statutory authority of the agency and whether it complies with the legislative intent of the statute under which the regulation was promulgated. The ability of the Co mmittee to o ppose the regulation is im portant, bec ause if it does object, the unit has but three options: it may withdraw the proposed regulation, it may amend the regulation, which essentially requires starting the process anew, or it may submit the proposal to the Governor with a statement explaining why it refuses to withdraw or amend the proposal. See Delmarva Power v. PSC, 370 Md. 1, 27, 803 A.2d 460, 475 (2002). The Governor may consult with the Committee and the unit in an effort to resolve the conflict and, after notice to the presiding officers of the Senate and House of Delegates, may instruct the unit to withdraw or amend the regulation or may approve the regulation. A proposed regulation opposed by the Committee may not be adopted and is not effective unless approved by the Governor. The importanc e of that m easure of le gislative ove rsight is high ly relevant in considering whether an agenc y policy directive is of the kind intended b y the Legislature to -99- be exempt from that oversight as a matter of p urely internal management. We may fairly take judicial notice that the whole issue of the death penalty, and particularly the method of its implementation, is of great interest to the Legislature. It has enacted detailed statutes governing capital punishment and governing, in particular, the method and manner of executing death sentences, and it consid ers bills dealing with aspects of the death penalty at nearly ev ery sessio n. Notwithstanding that it was advised in 1994 o f how D OC inten ded to implement the lethal injection law if that law were enacted, we are un willing to assume that the L egislature intended to leave to DOC , on its own and without any formal notice to the AELR Committee, without any opportunity for the Committee to object, without any oversight, unbridled authority to determin e and then change a t will, as a matter of internal management, how that statute is t o be im pleme nted. In this case, DOC has decided to use two chemical paralytic agents. Using the canons of statutory c onstruc tion app lied by co urts, we have concluded, as a matter of statutory construction, that the current protocol is consistent with the statute. Applying different standards allowable in a legislative context, the AELR Committee may have a different view, but even if that Committee agrees that the protocol is co nsistent, it may w ish to object to it and direct DOC to consider some oth er one. Alth ough the th ree-drug p rotocol is stan dard in States using lethal injections, it has been challenged in a numb er of cases and som e believe tha t it is not as h uman e as it w as purp orted to be. See Denno, supra, 63 O HIO S T. L. J. 63. Indeed, -100- that issue appears to be currently pending in a proceeding instituted by Evans in the U.S. District Court. See Evans v. Saar, Civil No. 0 6-149 (U .S. Dist. Ct. D. Md.). Suppose DOC decides in the future to use three rather than two paralytic agents, or drop potassium chloride or Pavulon and use only the other agent, or use 80 cc or 150 cc of barbiturate rather than 120 cc, or 100 cc of Pavulon rather than 50 cc, or use one or more entirely different drugs? Those kinds of decisions do not con stitute routine in ternal man agemen t, any more than the decision to adopt the current mix; they affe ct not only the inm ates and the correctiona l personne l, but the witnesses allowed to observe the execution and the public generally, through its perception of the p rocess. Acc ordingly, we hold that those aspects of the EOM that direct the manner of executing the death se ntence th e Lethal Inje ction Che cklist cons titute regulations under SG § 10-101(g) and, because they were not adopted in conformance with the requirements of the APA, are ineffective and may not be used until such time as they are properly adopted. To that extent, we shall reverse the ruling of the Circuit Court for Baltimore City. Although the question actually before us in N o. 122 is whether the Circuit Court erred in denying a temporary restraining order, our resolution of the predominant legal issue presented by that question mandates, as a matter of law, that a final injunction issue, and we shall remand the case for that purpose. IN NOS. 107, 123, AND 124 , JUDGM ENT O F CIRCU IT COURT FOR BALTIMORE COUNTY AFFIRMED, WITH -101- COSTS; IN NO. 122, ORDER OF CIRCUIT COURT FOR BALTIMORE CITY D E N Y ING TEMPORARY RESTRAINING ORDER VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO EN JOIN ENFORCEMENT OF LETHAL INJECTION CHECKL IST INCLUDED AS PART OF DIVISION OF CORRECTION EXECUTION OPERATIONS MANUAL UNTIL SUCH TIME AS THE CON TENTS OF THAT CHE CKLIST , IN THEIR CURRENT OR ANY AMENDED FORM, ARE ADOPTED AS REGULATIONS IN ACCORDANCE WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT OR THE GENERAL ASSEMBLY EXEMPTS THE CHECKLIST FROM THE REQUIREMENTS OF THAT ACT; COSTS IN N O. 122 TO BE PAID BY APPELLEE -102- APPEN DIX PROCEDURAL H ISTORY OF STATE v. EVANS It is rare that we attach an A ppendix to an Opinion. In most instances when we do so, it is for convenience to display a plat, diagram, or other pictorial document as a complement to the verba l description o f it in the Opinion. We attach this Appendix, which describes, as succinctly as possible, th e long, torture d history of this c ase, for two reasons. T he first is to give a more complete context to some of the issues ra ised in th ese app eals. The seco nd is to demonstrate the extraordinary lengths to which the State and Federal courts have gone, and continue to go, to protect the rights of Vernon Evans and to dispel any notion that he has not received the full measure of process and consideration that is due to any person accused of crim e and , mos t particul arly, to one who face s the deat h penalty. Two separate juries one in Worcester County and one more than a hundred miles away in Baltimore Cou nty unanimously determined, eight years apart, that Evans should be put to death for the brutal murders he committed. Excluding the four pending appeals, Evans has had eleven appeals to this Court and has presented seven petitions to the United States Supreme Court. Depending on how one isolates or clusters his arguments, he has presented approxim ately one hundred complaints to the Circuit Courts in three counties and to us, many of them several times. He has had more than two dozen complaints considered and rejected by the U.S. District Court and the U.S. Court of Appeals for the Fourth Circuit and has several more now pending in the District Court. Throughout, he has been represented by able, experienc ed, comp etent coun sel. These appeals and the various proceedings described in this Appendix all arose from a double murder committed by Evans on April 28, 1983, more than 23 years ago. Evans was paid $9,000 by or on behalf of Anthony Grandison, who was then in jail awaiting trial on Federal narcotics charges, to kill David Piechowicz and his wife, Cheryl. Mr. and Ms. Piechowicz were slated to testify against Grandison in Federal court a week later. Evans went to the Warren House Motel in Baltimore County and, in cold blood, murdered Mr. Piechowicz and the woman he thought was Cheryl but who, in fact, was Che ryl s sister, Sus an K ennedy. Two prosecutions ensued one Federal and one State. The Federal prosecution came first in tim e. In M ay, 1983, the Govern ment cha rged Eva ns, Grand ison, and tw o others w ith conspiracy to violate the civil rights of David and Cheryl Piechowicz (18 U.S.C. § 241) and with witness tampering (18 U.S.C. § 1512). In November, 1983, Evans and Grandison were convicted by a Federal jury on both counts and senten ced to lif e impris onme nt. On app eal, Evans raised e ight issu es, all of which were f ound b y the U. S . Court of Appeals for the Fourth Circuit t o be w ithout m erit. United States v. Grandison, 780 F.2d 425 (4 th Cir. 1985). One of the issue s presented by both Eva ns and G randison w as that the Government used its peremptory challenges in a manner that was racially biased against African American jurors. While the case was pending on appeal, the Supreme Court granted certiorari in Batson v. Kentucky, 471 U.S. 1052, 105 S. Ct. 2111, 85 L. Ed.2d 476 (1985), but that case had not been decided by the time the Fourth Circuit court acted on the Grandison/Evans appeal, and the peremptory challenge issue was resolved against Evans under the rule established in Swain -2- v. Alabama, 380 U.S. 202, 85 S . Ct. 824, 13 L. Ed.2d 7 59 (1965). Batson was decided by the Supreme Court shortly thereafter see Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986) and, in Griffith v. Kentucky, 479 U.S. 314, 107 S . Ct. 708 , 93 L. E d.2d 64 9 (198 7), Batson was dec lared to app ly retroactively to cases still in litigation. In February, 1987, the Supreme Court vacated the Federal convictions in light of Griffith and remanded the cases for the District Court to consider the effect of Batson. In Ma y, 1988, after an evidentiary hearing, the District Court found no purposeful discrimination in the Government s exercise of its peremptory challenges, denied Evans s and Grandison s motion for new trial, and reinstated the judgments, and in September, 1989, the U.S. Court of Appea ls for the Fo urth Circuit a ffirme d. United States v. Grandison, 885 F.2d 143 (4 th Cir. 1989) . The app ellate court denied motions for rehearing, and, in May, 1990, the Supreme Court denied certiorari. Grandison v. United States, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed.2d 507 (1990). That ended the Federal prosecution. On June 30, 1983, the State prosecution commenced in Baltimore County with an indictment charging Evans and Grandison with two counts of first degree m urder, one count of conspiracy to commit murder, and one count of using a handgun in the commission of a felo ny. Prior to trial, the cases against Evans and Grandison were severed. On September 7, 1983, Evans w as served w ith a notice of the State s intention to seek the death penalty that listed two aggravating circumstances upon which the State intended to rely that the murder was committed pursuant to an agreement or contract for remuneration or the promise of -3- remun eration ( curren t Maryla nd Co de, § 2-303(g)(1 )(vi) of the Criminal La w Article (CL); former Ann. Code, 1957, Art. 27, § 413(d)(6)) and that the defendant committed more than one first degree murder arising out of the same incident (CL § 2-303(g)(1)(ix); former Ann. Code, 1957, A rt. 27, § 413(d)(9)). At Evans s request, his case was removed from Baltimore County to Worcester County, where it was assig ned to Jud ge Cathe ll, then a judge of the Circ uit Court. Prio r to trial, but after his conviction on the Fed eral charge s, Evans m oved to dis miss the Sta te indictment on the gro und that his F ederal con victions prec luded a subse quent State prosecution under both Federal and State double jeopardy prohibitions. His principal argument was that the dual sovereignty principle, long and well establish ed in both the State and Federal co urts, was no t applicable. The motion w as denied and, in an interlocu tory appeal, this Court affirm ed that ru ling. Evans v. S tate, 301 Md. 45, 48 1 A.2d 1135 (1984). (CA-1).18 Evans s petition for certiorari was denied by the Supreme Court. Grandison v. Maryland, 470 U .S. 103 4, 105 S . Ct. 141 1, 84 L . Ed.2d 795 (1 985). (SC-1). With that r esolved, the c ase p roce eded befo re a ju ry, which convicted Evans of the two murders and related offenses and sentenced him to death. He appealed, raising 17 issues. The 18 In order to keep account of, and distinguish, the various proceedings in which Evans s c omplaints h ave been reviewed by a court, we shall label them by the court in which they were brought: CA (Maryland Court of Appeals); SC (United States Supreme Court); PC (State Circuit Court considering post conviction petition, motion to correct illegal sentence, or other collateral attack); DC (U.S. District Court considering habeas corpus petition); C4 (U.S. Court of Appeals considering appeal from denial of habeas corpus by U.S. District Cou rt). -4- first ten dealt with the trial as to guilt or innocence and the remaining seven pertained to the sentencing proceedin g: (1) An in-court identification by Calvin Harper should have been suppressed because it was tainted by a suggestive and unreliable pre-trial identification; (2) He was entitled to a mistrial bec ause of the State s failure to notify him of a photographic identification; (3) Two State s witnesses Calvin Harper and C harlene Sparrow were inco mpe tent w itnes ses b ecau se they had prev iously com mitte d perjury; (4) The trial court erred in denying his motion to compe l a psychiatric examination of Charlene Sparrow, quashing a subpoena for her attendance at trial, and refusing to exclude h er testimony at trial; (5) The trial court erred in denying his motions for further removal from Worcester County and for a continua nce in order to individually voir dire prospective jurors; (6) The trial court erred in admitting certain documents as business records; (7) The trial court erred in admitting a MAC-11 machine pistol as representative of the unrecovered weapon used in the murders; (8) The trial court erred in excluding from the jury venire persons who stated that they wou ld never vo te to impose capital pun ishment; (9) The State s use of peremptory challenges to exclude African-Americans was improper; -5- (10) A renewal of the double jeopardy argument he made in his earlier interlocutory ap peal; (11) The trial court erred in excluding evidence of a m inimum paro le release date;19 (12) The trial court erred in refusing to instruct the jury that, if it found that the murders were contract murders, it must find as a mitigating factor that Evans was not th e sole cause of the victims deaths; (13) The trial cou rt erred in refusing to instruct the jury that any non-statutory mitigating factors it found to exist could be given as much weight as statutory mitigating factors; (14) The death penalty law was unconstitutional in that it shifted the burden to defendants to prove the existence of mitigating factors; (15) The trial court s instructions regarding reasonable doubt were deficient because they omitted to in form the ju ry that the State s p roof mu st be to a m oral certainty; (16) Given that there were two murders and only one death penalty can be imposed, it was error to allow the jury, as to each murder, to rely on the aggravating factor that the defendant committed more than one offense of first degree murder arising out of the 19 At the time, State law did not afford the option of life without parole. Evans unsuccessfully sought to introduce evidence that, if convicted of all the offenses charged and given consecutive sentences, he would not have been eligible for parole until he had served 39 years in prison. -6- same incident; and (17) Imposition of the death penalty in the case was disproportio nate to sentences imposed in similar cases. In a 42-page opinion examining each of those issues, this Court found no merit to them and affirm ed. Evans v. S tate, 304 M d. 487, 4 99 A.2 d 1261 (1985 ). (CA-2). It was in response to the last com plain t, abo ut dispro portiona lity, that we observed that [t]he murders giving rise to th is prosecution were as heinous as those in any case to come before us under the present capital punishment statute. Id. at 539, 499 A.2d at 1288. Evans s motion for reconsideration, in which he presented six issues, was d enied, Foster, Evans and Huffington v. State, 305 Md. 306, 503 A.2d 1 326 (1986) (CA-3), and the Supreme Court denied certiorari. Evans v. Maryland, 478 U.S. 1010, 106 S . Ct. 331 0, 92 L . Ed.2d 722 (1 986). (SC2). In March, 1990, Evans filed his first petition under the Post Conviction Act in the Circuit Court for Worcester County. He raised 22 issues in the petition and a dded six more on the day of the hearing. Many of them had been, or could have been, raised in his direct appeal. In summary, they were that he was denied equal protection of the law or due process by or because: (1) The State s racially discriminatory use of peremptory challenges; (2) The selec tion proces s for venire men in W orcester Co unty was unlawfu l in that the county had a 22% black population and the jury venire was only 19.85% black; -7- (3) There was an under-representation of minority and young person s on jury panels and as forepersons of jury panels; (4) The excusing for cause of jurors who had reservations about the death penalty; (5) The trial c ourt s failure to sequester th e jury and gran t a postpon ement; (6) The trial c ourt s refusa l to allow ind ividual voir dire; (7) The jury was uninformed because some members had never heard of him or Grandison; (8) The jury was shown an orientation film (about which no specific complaint was made); (9) He was not present at certain bench conferences that constituted critical stages of th e trial; (10) The court s refusal to question prospective jurors on drug usage as a mitigating factor; (11) The fact that an Assistant U.S. Attorney, specially designated as an assistant State s Attorney, was part of the prosecution team; (12) He was no t advised of his right to a court trial at the guilt/innocence stage; (13) He was not allowed to subject the State s witness, C harlene Sp arrow, to a psychiatric examination; (14) The State used perjured testimony of Sparro w and Calv in Harper; -8- (15) The State fai led to disclose excu lpato ry gra nd ju ry testimony; (16) The admission of a M AC-11 machine pistol; (17) He was subjected to a suggestive lineup; (18) He received ineffective assistance of counsel at both trial and sentencing; (19) Because of his Federal convictions, the State prosecution violated his right agai nst d ouble jeo pard y; (20) Because of the Federal prosecutions, the State prosecution constituted cruel and unu sual punish ment in vio lation of the E ighth Am endmen t; (21) He re ceived inef fective assista nce of co unsel in his a ppeal; (22) The trial court s instructions at sentencing and the sentencing form given to the jury unconstitutionally suggested that unanimity was required in order to find a mitigating factor, in contravention of Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed.2d 384 (1 988); (23) The State lost jurisdiction over Evans w hen he was transf erred, for a time, to the U.S. Bureau of Prisons to serve his Federal sentences; (24) Government agents who investigated the m urders sup pressed fa vorable evidence (that comp laint was withdraw n but renewed in subsequent proce edings); (25) The prosecutors made unfair and prejudicial comme nts regarding his failure to present alibi evidence; (26) One juror was n ot a resident o f Worce ster Coun ty; -9- (27) He was not personally served with the State s notice of its intention to seek the death penalty; and (28) During c losing argu ment, the prosecutor made improper remarks concerning the effect of the murders on the victims families. On March 28, 1991, the post conviction court (Judge Eschenburg), in a 38-page memorandum opinion, addressed each of those issues and found merit in only one No. 22. The court held that the sen tencing form did, indeed, violate Mills and that the error was not ameliorated by the court s instructions to the jury. As tha t error affec ted only the sentencing, the court ordered a new sentencing hearing but denied the request for a new trial as to guilt or inno cence . (PC-1). Both Evans and the State filed an application for leave to appeal that decision. The State complained about the post conviction court s analysis and application of Mills. Evans complained about 19 of the other rulings not in his favor. In June, 1991, this Court denied both applica tions. State v. Evans, Misc. No. 8, Sept. Term 1991 (Order filed Ju ne 4, 1991). (CA-4). It does not ap pear that eithe r side sough t further revie w in the S upreme C ourt. Prior to the new sentencing hearing, pursuant to Evans s request, the case was removed back to the Circu it Court for B altimore C ounty (Judge Kahl). On November 5, 1992, a jury in that court again sentenced Evans to death, and Evans appealed, raising twelve issues: (1) Whether there was insufficient questioning of prospective jurors regarding their pred ispo sition tow ard the death penalty; -10- (2) Whether the court erred in failing to ask a voir dire question relating to such predisposition exactly in the form he requested; (3) The prosecutor impermissibly suggested to the jury that Evans w ould likely esca pe fr om p rison and be a d anger to society; (4) The court erred in submitting a presenten ce investiga tion report to the jury without redacting E vans s initial ref usal to speak to the investig ator, in violation of his Fifth Amendment right against self-incrimination; (5) The court erred in permitting victim impact evidence of any kind to be considered b y the ju ry; (6) The court erred in a dmitting Che ryl Piechowicz s victim impact statement because it w as prejudicia l; (7) The court erred in refusing to instruct the jury that victim impact evidence is not an appropriate consideration in imposing sentence; (8) The court erred in admitting certain autopsy photographs of the victims; (9) The cou rt erred in allowing the jury to see a doc ket entry from which it might infer that the jury at the guilt/innocence trial deliberated for less than two hours; (10) The court erred in refusing two requested instructions on mitigating circumstances; (11) The court erred in admitting a MAC-11 machine pistol at the sentencing hearing; and -11- (12) The evidence was insufficient to show that the aggravating factors relied on by the State outweighed m itigating factors and that the sentence was not imposed under the influence of passio n, prejudice, or any other arbitrary factor. In February, 1994, in a 34-page opinion, the Court found no merit in any of these complain ts and affirm ed the ju dgme nts. Evans v. S tate, 333 Md. 660, 637 A.2d 11 7 (1994). (CA-5). Evans so ught certiorari in the Supreme Cou rt, whic h was denied . Evans v. Maryland, 513 U .S. 833 , 115 S . Ct. 109 , 130 L . Ed.2d 56 (19 94). (SC-3). On Augu st 29, 19 95, Ev ans file d a seco nd petiti on for post co nviction relief, in the Circuit Court for Baltimore Co unty. The petition raised 41 issues, man y of which were clustered and presented in two or more different contexts, and most of which had been previously litigated: (1) T he State p rose cutio n wa s pre clud ed by double je opardy; (2) The State relinquished its authority over Evans when it m oved him back to the Federal Bureau of Prisons to resume service of his Federal sentences; (3) He received ineffective assistance of trial counsel in the re-sentencing proceeding. Trial counsel, he said, was ineffective in: (a) Failing to call Roberta Weinstein and Darece Pinkney as witnesses to contest the State s evidence that he was a principal in the first degree in the murders; (b) Subm itting certain sup plementa l voir dire question s belated ly; (c) Failing to ch allenge the S tate s alleged s ystematic exclusion of -12- African-American jurors; (d) Failing to ask specific, individual questions on voir dire going to juror pred ispo sition tow ard the death penalty; (e) Failing to request that the judge ask voir dire questions re lating to racial bias; (f) Belatedly making a Batson argumen t; (g) Incompetently cross-examining Charlene Sparrow; (h) Failing to interview and present witnesses from the Federal prison in Marion, Illinois to offer testimony regarding how Evans positively affected their lives; (i) Failing to properly investigate Evans s parole eligibility and projected release date if he received life sentences; (j) Failing to ask the sen tencing jud ge to formulate a proper re sponse to two questions from the jury relating to the effect of life sentences; (k) Failing to object to the court s instruction concern ing the jury s consideration of Evans s allocution; and (l) Agreein g to removal of the re-sen tencing fro m Wor cester Cou nty to Balt imore County; (4) He received ineffective assistance of appellate counsel in the re-sentencing proceedin g, in that appe llate counse l: (a) Failed to ra ise the issue o f ineffectiv e assistance o f trial counse l; -13- (b) Failed to complain that the re-sentencing jury did not represe nt a fair cros s-section of th e com mun ity; (c) Failed to complain about the trial judge s attempt to rehabilitate jurors who sh owe d a bias in favo r of the death penalty; (d) Failed to illustrate the def icient voir dire by omitting to point out that certain jurors were not asked certain questions; (e) Failed to complain ab out the court s striking of jurors for cause after denying follo w-up qu estions soug ht by defense counsel; (f) Failed to complain about the trial court s failure to conduct individual voir dire as to racial attitudes; (g) Failed to complain about the trial court s re fusal to bifu rcate the resentencing proceeding; (h) Failed to raise a Batson issue relating to the State s peremptory strikes of African-American jurors; and (i) Failed to co mplain tha t the death penalty is unconstitutional because it is imposed disproportionately on African-Americans in cases involving white victims; (5) The sentencing jury did not represent a fair cross-section of the comm unity because of systematic exclusion of racial minorities from jury panels; (6) The re-sentencing court erred in conducting voir dire generall y; (7) It erred specifically in failing to conduct adequate voir dire into racial -14- attitudes; (8) The court erred in relyin g on jury instructions to compensate for inadequacies in voir dire; (9) The court erred in allowing concerns of judicial economy to outweigh a constitutiona lly sufficient voir dire; (10) The court erred in failing to bifurcate the sentencing proceeding; (11) The court erred in denying Evans s Batson challenge; (12) The court failed to correct prosecutorial misconduct during closing and rebuttal argu ment; (13) The court failed to redact a portion of th e presenten ce investiga tion report; (14) The death pen alty constitutes exc essive pun ishment; (15) The dea th penalty is unconstitutional because it is imposed disproportion ately on African-Americans involving white victims (this was repeated in several different contexts); (16) Evans was denied effective assistance of counsel at his first post conviction proceeding; (17) He was denied equal protection of the law because post conviction counsel was ineffective in presenting a Batson complain t; (18) The dea th penalty is unconstitutional because it is imposed disproportionately on males; -15- (19) The trial court erred in refusing to allow Charlene Sparrow to undergo a psychiatric exa mination to determine her comp etence to testif y; (20) The pros ecutor eng aged in a p attern of using perem ptory challeng es to strike jurors on the basis of race; and (21) Trial counsel was deficient in failing to present evidence of that pattern. On January 24, 1997, in a 26-page memorandum opinion, the Circuit Court (Judge Smith) discussed each of those complaints, found that most of them had previously been litigated and that no ne had m erit, and denied the petition . (PC-2). Evans filed an application, and then a 37-p age ame nded app lication, for leav e to appeal, which this Court considered and denied. See Evans v. S tate, 345 M d. 524, 6 93 A.2 d 780 ( 1997) . (CA-6). He then sought review by the Supreme Court, which, in November, 1997, also w as deni ed. See Evans v. Maryland, 522 U .S. 966 , 118 S . Ct. 411 , 139 L . Ed.2d 314 (1 997). (SC-4). On Novem ber 3, 1997 , Evans filed a petition for habeas corpus in the U.S. District Court, raising 24 issues, several of which had sub-parts essentially the iss ues previo usly raised in the State courts: (1) The prosecutor s use of peremptory challenge s at the guilt phase trial in 1984 the Batson claim; (2) Ineffec tive assistance of couns el at resenten cing beca use of: (a) Failure to call witnesses Weinstein and Pinkney to testify; and (b) Failure to ca ll an expert on Federal parole to testify tha t Evans w ould -16- not begin serving his State sentences for at least 30 years; (3) The prosecutor s use of perem ptory challeng es at the guilt p hase trial in violation of Swain v. Alabama, supra, 380 U.S . 202, 85 S . Ct. 824, 13 L. Ed. 2d 7 59; (4) The ven ire in Worcester County in 1984 did not reflect a fair cross-section of th e com mun ity, wi th respec t to th e pet it jury; (5) The ven ire in Baltimo re Coun ty in 1983 did not reflect a fair cross-section of th e com mun ity with respec t to th e gra nd ju ry; (6) The trial court in the g uilt phase erre d in not perm itting individu al voir dire; (7) The trial cou rt erred in not re moving the case fro m Wor cester Cou nty beca use o f adv erse publicity; (8) A pretrial identification of Evans by Calvin Harper was unduly suggestive and tainted his in-court identification; (9) The trial court erred in refusing to order a psychiatric examination of Charlene Sparrow; (10) The re-sentencing jury in Baltimore County did not reflect a fair crosssection o f the com mun ity; (11) Voir dire with respect to the re-sentencing jury was inadequate and the court erred in refusing to strike certain jurors for cause; (12) Appellate counsel in Evans s direct appeal was ineffective in failing to contest Judge Kahl s failure to strike those jurors for cause; -17- (13) The re-sentencing court failed to provide a dequate voir dire with respect to the racial attitudes of prospective jurors; (14) The re-sentencing court erred in refusing to bifurcate the re-sentencing proceeding, to deal first with principalship and then with aggravating and mitigating factors; (15) The re-sentencing court failed to give an adequate response to a jury note regarding the nature and length of other sentences imposed on Evans; (16) Counsel at the re-sentencing were ineffective by failing to produce evidence of Evans s good behavior in prison; (17) Counse l was also ineffective in eliciting a damaging response from Charlene Sparrow on cross-examination; (18) The re-sentencing court erred in allowing allocution too close to the time it instructed th e jury rega rding Ev ans s righ t not to tes tify; (19) Re-sentencing counsel was ineffective in failing to object to the timing of the allocution; (20) The re-sentencing court erred in failing to redact a statement in the presentence in vestigation re port that Ev ans had in itially refused to speak with the investigator; (21) There wa s improper argum ent from the prosecu tor; (22) In light of his Federal convictions, the State prosecution was barred by double jeopardy principles; (23) Maryland relinquished authority over Evans by returning him to Federal -18- custody; and (24) The death penalty is unconstitutional because it constitutes excessive punishment and is dispropor tionately impos ed on A frican-Am ericans w ho murd er white victims. In a 36-page opinion, the District Court (Judge Legg) considered each of those complaints, found that many had previously been litigated, concluded that there w as no me rit to any of th em, an d denie d the pe tition. See Eva ns v. Smith , 54 F. Supp.2d 50 3 (D. Md. 19 99). (DC-1). After the court denied a motion for rehearing, Evans appealed to the U.S. Court of Appea ls for the Fo urth Circuit. While the appeal to the Fourth Circuit court was pending, Evans filed a motion in the Circuit Court for Baltimore County to reopen his 1995 post conviction proceeding to add a claim that the State withheld an F BI report recounting an agent s interview with one Janet Bannister. Regarding that report as exculpatory evidence, Evans claimed a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963). The court (Judge Smith) denied the motion on the grounds that Evans s affidavit and petition were insufficient to show that the State had f ailed to prov ide the excu lpatory material, tha t, even if it had, Evans failed to show that he was prevented from raising that claim in his first post conviction proceeding, and that Bannister s statement was insufficien t in any event to s upport a rea sonable probability that the outcome of the re-sentencing proceeding would have been any differen t. See Evans v. S tate, No. 83-CR-2339 (Circ. Ct. for Baltimore County, October 20, 1999). -19- (PC-3). Evans filed an application for leave to appeal that decision, w hich this Court denied. See Eva ns v. State, Misc. N o. 18, S ept. Ter m 199 9. (CA-7). In February, 2000, Evans filed a second petition for habeas corpus in the U.S. District Court, raising only the Brady claim. He sought leave from the Fourth Circuit court to file that petition as a successive petition and asked that the District Court treat it as a motion to reopen his original habeas corpus petition . (DC-2). The Fou rth Circuit co urt dealt with that issue in the appeal fro m the Dis trict Court jud gment w hich, in July, 200 0, it affirmed , finding no merit in any of Evan s s claim s. See Eva ns v. Smith , 220 F.3d 306 (4 th Cir. 200 0). (C4-1). Evans sought review in the Supreme Court, which was d enied. Evans v. S mith, 532 U.S. 925, 121 S. Ct. 13 67, 149 L. Ed.2 d 294 ( 2001) . (SC-5). In May, 2000 , while the F ederal app eal was still pe nding, Ev ans filed in th e Circuit Court for Baltimore County a Motion to Correct Illegal Sentence and a Motion for New T rial. The first motion was based on an amendment to the death penalty law that took effect ve ry shortly after the mu rders were committed . The ame ndment re moved in toxication as a specific statutory mitigating fa ctor and pe rmitted a jury to fin d it as a mitigator under th e catchall provision for mitigating factors. Evans claimed that constituted an unlawful ex post facto law. The motion for new trial was based on supposedly newly discovered evidence in the form of FBI interview reports that would allegedly impeach the testimony of two Sta te s witnesses that he was the person who actually shot the victims. Those motions were initially denied, but, while an appeal to the Court of Special Appeals from that ruling was pending, the court -20- rescind ed its ord er and s chedu led a he aring. T he app eal wa s subse quently d ismisse d. In April, 2001, Evan s filed a second mo tion in the Circuit Court to reopen the 1995 post conviction proceeding, claiming tha t, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L . Ed.2d 435 (200 0), the 1983 indictment that triggered the State prosecution was Constitutionally deficient because it did not allege either principalship or the aggravating factors upon which the State intended to rely. The motion also asked that execution of the death sentence be stayed pending completion of a legislatively commissioned study of the implementation of the dea th penalty (the Paternoster Study). A month later, before any ruling on that motion, Evans filed a second M otion to Correct Illegal Sentence and/or Motion for New Sentencing Based on Mistake and Irregularity. That motion was also based on Apprendi. On October 12, 2001, the court denied the motion to reopen the post conviction proceeding (Judge Turnbull) (PC-4), and, on December 14, 2001, this Court denied Evans s application for leav e to app eal that ru ling. (CA-8). On July 18, 2003, following an evidentiary hearing and consideration of supplemental briefs, Judge K ahl entered two orde rs denying the Motion for New T rial and the M otion to Correct Illegal S entenc e. (PC-5). Evans appealed, and, in a 37-page opinion, we affirmed, holding that (1) the shif t of intoxication to a catchall mitigator did not constitute an ex post facto law, and (2) the FBI reports, even if newly discovered , failed to create a substantial possibility that a jur y would find tha t Evan s was n ot the sh ooter. See Eva ns v. State, 382 Md. 248, 855 A .2d 291 (2004 ). (CA-9). Evans moved for reconsideration, which was denied. -21- (CA-10). As usual, he then sought review by the Supreme Court and that too was denied. Evans v. Maryland, 543 U .S. 115 0, 125 S . Ct. 132 5, 161 L . Ed.2d 113 (2 005). (SC-6). Upon the denial of certiorari by the Supreme Court, the Circuit Court for Baltimore County issued a warrant of execution. That prompted a new round of proceedings. On February 28, 2005 , Evans filed a Motion to Stay Warra nt of Exe cution and a Motion to Correct Illegal Sentence, arguing that (1) his sentence was illegal because it emanated from a pattern of ra cial and geo graphic dis crimination in the implem entation of the death sentence in Maryland, and (2) the indictment that triggered the prosecution w as Constitu tionally defective under Apprendi v. New Jersey, supra, and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L . Ed.2d 556 (2002). In March, Evans filed a separate motion to correct illegal sentence and supplemented the pending one, complaining that use of a preponderance of the evidence standard in the balancing of aggravating and mitigating factors violated various provisio ns of th e Mar yland Co nstitution . A week later, the court entered a n order denying all motions (PC-6), and Evans appealed. We affirmed , holding, first, that a motion to correct illegal sentence was not the appropriate vehicle to raise a selective prosecution claim based on the b y-then-completed Paternoster Study, and second, that none of his Apprendi/Ring argumen ts had m erit. Evans v. State, 389 Md. 456, 886 A .2d 562 (2005 ). (CA-11). His motion for reconsideration was also denied . (CA-12). For the sev enth time, E vans soug ht certiorari in the Sup reme Co urt, which was d enied. Evans v. Maryland, ___ U.S. ___, 126 S. Ct. 1442, 164 L. Ed.2d 141 -22- (2006 ). (SC-7). In August, 2005, Evans filed another Motion to Correct Ille gal Senten ce in the C ircuit Court for Baltimore County, raising two issues: (1) that his attorneys at his 1992 re-sentencing hearing were C onstitutionally ineffective because of their failure to investigate substantial mitigating evidence relating to his background; and (2) his death sentence was imposed by a jury selected in viola tion of the equal protection clause. The first complaint was based on Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed.2d 471 (2003) and Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed.2d 360 (2005). The second esse ntial ly a Batson challenge is based as well on Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed.2d 196 (2005). On December 15, 2005, Judge Kahl entered an order denying the motion, concludin g that, under co ntrolling dec isions of this Court, thos e compla ints, even if valid, did not make the sentence illegal. (PC-7). On December 29, 2005, Evans appealed. That appeal is now before us as No. 107. On December 20, 2005, Evans filed a third motion to reopen the 1995 post conviction proceeding. That motion was based entirely on the Paternoster Study whic h, accordin g to Evans, showed that the B altimore County State s Attorne y s Office e ngaged in unconstitutional race-based selective prosecution. On January 19, 2006, that motion was denied (Judge Turnb ull). (PC-8). Evans filed an application for leave to appeal, which we granted and is now before us as No. 123. On January 23, 2006, Evans filed a fourth motion to reopen the 1995 post conviction -23- proceeding in order to present the Wiggins and Miller-El issues prese nted in the m otion to correct illegal sentence. On February 2, 2006, the Circuit Court denied that motion (Judge Turnbu ll) (PC-9) and Evans filed an application for leave to appeal, which we granted. That is No. 124. On January 20, 2006, Evans, along with the National Association for the Advancement of Colored People, the American Civil Liberties Union Foundation of Maryland, and Maryland Citizens Against State Executions, filed a separate action in the Circuit Court for Baltimore City seeking to enjoin the D ivision of C orrection fro m using leth al injections to inflict the death p enalty under its current execution protocol on the grounds that (1) the execution protocol materially conflicts with the State s death penalty statute; (2) the protocol was not adopted in conformance with the Administrative Procedure Act; and (3) several of the regulations conflict with the specific directives of the W arrant of E xecution f iled in this case by Judge T urnbull. O n January 31 , 2006, the C ircuit Court denied preliminary injunctive relief (PC-10), and Evans and the other plaintiffs appealed to the Court of Special Appeals. We granted certiorari on our own initiative (No. 122), stayed the warrant of execution that had be en issue d, and c onsolid ated the four ap peals. (CA-13, 14, 15, and 16). Contemp oran eously, on January 19, 2006, E vans filed an action in the U .S. District Court, complaining that the execution protocols of the Division of Correction create a risk that he will be conscious during the execution process and accordingly will suffer unnecessary pain. See Evans v. Saar, Civil No. 06-149 (U .S. Dist. Ct. D. Md.). He a sked for a declaratory -24- judgment that the Division s protocols violate the Eighth and Fourteenth Amendments and a permanent injunction barring the Division from using those protocols to carry out an execution against him. On February 1, 2006, the court denied Evans s motions for temporary restraining order and preliminary injun ction. Evan s appealed to the Court o f Appe als for the Fourth Circuit, but when this C ourt stayed the outstanding wa rrant of execution pending resolution of the appeals now before us, he dismissed that appeal, and the case has been tried but rem ains op en in the District C ourt. (DC-3). In December, 2005, Evans commenced an administrative challenge to the execution protocols by filing a request for administrative rem edy with the warden of the Maryland Penitent iary. When the warden denied that request, Evans appealed to the Commissioner of Corrections. The Commissioner rejected the appeal on February 27, 2006, and Evans filed a complain t with the Inm ate Grievance Office (IGO). On June 2, 2006, an administrative law judge, acting for th e IGO, c oncluded that (1) the ex ecution pro tocols are not inconsisten t with § 3-905 of the Correctional Services Article, (2) portions of them do constitute a regulation under the Administrative Procedure Act and are ineffective because they were no t adopted in conformance with that A ct, and (3) the re was a m aterial dispute o f fact as to whether the condition of Evan s s veins w ill render the execution protocols, as to him, violative of the Eighth Amendment prohibition against cruel and unusual punishment. The Secretary of Public Safety and Correctional Services rejected the second determination on June 27, and on July 26, 2006, Evans filed a petition for judicial review in the Circuit Court for B altimore -25- City. (PC 11). -26- IN THE COURT OF APPEALS OF MARYLAND Nos. 107, 123, 124 September Term, 2005 ______________________________________ VERNON EVANS, JR. v. STATE OF MARYLAND ______________________________________ No. 122 September Term, 2005 _____________________________________ VERNON EVANS, JR., ET AL. v. STATE OF MARYLAND ______________________________________ Bell, C.J. Raker Wilner Harrell Battaglia Greene Rodo wsky, L awren ce F. (R etired, Specially Assigned), JJ. ______________________________________ Dissen ting Op inion b y Bell, C.J ., which G reen e, J., joins in pa rts C and D O nly. ______________________________________ Filed: December 19, 2006 Vernon Evans, Jr. challenges the judgments of the Circuit Court for Baltim ore Cou nty denying: his motion, filed, pursuant to Maryland Rule 4-435 (a) and premised on the holdings in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2 003), Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) ( Miller-El II ), to correct an illegal sentence (Appeal # 107) and his Motion to Reopen Post-Conviction Proceeding, premised on these decisions (Appeal # 123) and on the findings of a study of the Maryland capital punishment system by University of Maryland P rofessor R aymond P aternoster, an d request, in connection therewith, for discovery (Appeal # 124), and the challenge by Evans and others1 to the judgment of the Circuit Court for Baltimore City denying their motion for preliminary injunctive relie f, to enjoin his execution, and all other executions, by lethal injection under the current protocol, which they alleged was improperly promulgated and was materially in conflict with Maryland Code (1999, 2006 Cum . Supp.) § 3-905 of the Correctional Servic es Artic le (App eal # 12 2). The ma jority finds merit o nly in the argument that the e xecu tion protocol was not prop erly promulgated. __ Md. __, __, __ A.2d __, __ (2006) [slip op. at 3]. As to this aspect of Appeal No. 122, it reverses the judgment of the Circuit Court for Baltimore City and remands the case to that court for issuanc e of a fin al injunction, id. at __, __ A.2d at __ [slip op. at 91,] enjoining its use until either (1) it is adopted as a regulation in accordan ce with the Adm inistrative Procedure Act, or (2) the 1 The other parties involved are The National Association for the Advancement of Colored People, The American Civil Liberties Union, and Maryland Citizens Against State Executions. Legislature exempts it from the requirements of that Act. Id. at __, __ A.2d at __ [Slip op. at 3]. I do not disagree with the majority s resolution of the regulation issue. On the other hand, I can not agree w ith its other hold ings and, ind eed, take stro ng excep tion to them. Acco rdingly, as to each of them , I dissen t. A. Maryland Rule 4-345, SENTENCING--REVISORY POWER OF COURT, provides, as relev ant, [t]h e court m ay correc t an illega l senten ce at an y time. T o be su re, as a gene ral rule, a Rule 4-345(a) motion to correct an illegal sentence is not appropriate where the alleged illegality did not inhere in [the defendant's] senten ce. State v. Kanaras, [357 Md. 1 70, 185 , 742 A .2d 508 , 517 (1999)]. A motion to correct an illegal sentence ordinarily can be g ranted only where there is some illegality in the sentence itself or where no sentence should have been impos ed. See, e.g., Ridgeway v. State, 369 Md. 165, 171, 797 A.2d 1287, 1290 (2002); Holmes v. State, 362 Md. 19 0, 763 A.2d 73 7 (2000); Moosavi v. State, 355 Md. 651, 662-663, 736 A.2d 285, 291 (1999). On the other hand, a trial court error during the sentenc ing procee ding is not ordinar ily cognizab le under Rule 4-345(a) where the resulting s entence o r sanction is itself lawfu l. Randall B ook Co rp. v. State, 316 Md. 315, 323, 558 A.2d 715, 719 (1989) ( [W]hile improper motivation may justify vacation of the -2- sentence, it does not render the sentence illegal within the meaning of Rule 4345. Appellant did not raise this contentio n on direct appeal and may not do so here ). See also Hill v. United States, 368 U.S. 424, 430, 82 S. Ct. 468, 472, 7 L. Ed . 2d 417 , 422 (1 962). Evans v. State, 382 Md. 248, 278-79, 855 A.2d 291, 309 (2004 ). There is, however, as the Evans Court itself ackn owled ged, a n exce ption to the abo ve-sum marize d princ iples, where, in a capital sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the allegation of error is partly based upon a decision of the United States Supreme Court or of this Court rendered after the defe ndant's capital sentencing proceeding. Id. It cited as an exa mple o f the ex ception , Oken v. State, 378 Md. 179, 835 A .2d 110 5 (200 3), cert. denied, 541 U.S. 1017, 124 S. Ct. 2084, 158 L. Ed.2d 632 (2004), which it summarized: [Oken] was a Rule 4-345 proceeding to correct an illegal or irregular sentence. The defendant Oken argued, relying on recent Suprem e Court cases,[2] that a constitutional error in the capital sentencing proceeding 2 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) (in which the Supreme Court ruled that any fact that increased the penalty for a crime above the statutory maxim um mu st be subm itted to a jury and p roved be yond a reaso nable doubt), and Ring v. Arizona, 536 U.S . 584, 122 S . Ct. 2428, 1 53 L. Ed . 2d 556 (2 002) (in which the Sup reme Court held tha t an Arizona statute pursu ant to which, follow ing a jury adjudication of a defendant's guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition o f the death penalty, violates th e Sixth A mendm ent right to a ju ry trial in capital prosecutions). -3- contributed to the death sentence. Section 2-303(i) of the Maryland death penalty statu te provid es that the trier of facts sha ll det ermine b y a preponderance of the evidence whether the aggravating circumstances under subsection (g) of this section outw eigh the mitigatin g circum stances . (Empha sis added). In Oken, the case was presented to the sentencing jury under this preponderance of the evidence standard. The defendant Oken had raised no objection to this in the sentencing proceeding or in a prior post conviction proceeding. In the Rule 4-345 proceeding, however, Oken argued that the preponderance of the evidence standard violated due process and that a beyond a reasonable doubt s tandard w as constitution ally required. Th is Court, in the Rule 4-345 proceeding, resolved the merits of the constitutional issue, with the majority holding that application of the preponderance of the evidence standa rd was constitu tional. See also Oken v . State, 367 Md. 191, 195, 786 A.2d 691, 693 (2001 ), cert. denied, 535 U.S. 1074, 122 S. Ct. 1953, 152 L. Ed.2d 855 (2002), where the Court decided the merits of a similar challenge by the defendant Oken. Id. at 279- 280, 85 5 A.2d at 309. Concluding that the case presented by Evans was in the same posture - he claimed, relying chiefly on Carmell v. Texas, 529 U .S. 513 , 120 S . Ct. 162 0, 146 L . Ed. 2d 577 (2000), a United States Supreme Court opinion filed after his 1992 capital sentencing proceeding, that a provision of the Maryland death penal ty statute was unconstitutio nally applied to him at his capital sentencing proceeding and that this alleged error may have resulted in the de ath sen tence - w e decid ed the m erits of th at claim . Id. at 280, 855 A. 2d at 309-3 10. More recently, this Court, in Baker v. S tate, 389 Md. 127, 883 A.2d 916 (2005), applied the histo ric appr oach to illegal se ntence review . There , the def endan t, under sentence of death, which had been affirmed on direct appea l, filed, pu rsuant to Rule 4 -345(a ), a Motion to Correct a n Illegal Sen tence, as w ell as a Motion to Reopen the Post-Conviction -4- Proceeding, and a Petition for Post-Conviction Relief. 389 Md. at 131, 883 A.2d at 918. The defendant principally relied on a University of Maryland study of the Maryland Capital punishment system conducted b y Professor Raymond Paternoster of the University of Maryland, 389 Md. at 131, 883 A.2d at 918, the same study relied upon which Evans relies in the instant case, albeit for a different legal purpose. Contending that study s statistical findings establish that Maryland s death p enalty was sought mo re frequently depending on the racial combinations of the accused an d the victim and dependin g on the ge ographic location of the prosecuted charge, the defendant argued that the death penalty statute was applied to him u ncons titutiona lly. 389 M d. at 132 , 883 A .2d at 91 8-919 . Relying on the con stitutionality of M aryland's death penalty statute under the Eighth and Fourteenth Amendments, citing Gregg v . Georgia, 428 U.S. 153, 168-69, 96 S. Ct. 2909, 2922-23, 49 L. Ed. 2d 859, 871-72 (1976) and Baker v. S tate, (Baker II), 367 Md. 648, 676, 790 A.2d 629, 646 (2002) and the lack of direct and specific evidence in the record to suggest that Baker's death sentence was surrounded by impropriety of any kind, citing Baker v. State, (Baker I), 332 Md. 542 , 571, 632 A.2d 7 83, 797 (1993), the C ourt pronounced Baker's death sentence to be itself lawful, validly imposed, and, thus not illegal under the pre-Oken general analytical principles governin g motions brought under Rule 4-345(a). Baker v. State (Baker III), 389 Md. 127, 137-38, 883 A.2d 916, 922 (2005). Acknowledging Oken and Evans, and the exception they represent, but noting the distinction between them and the case under review, the Court concluded that the historic approach, and -5- not the exception, applied to Baker s case. With regard to the exception, the Court observed: In a capital sentencing context, a motion to correct an illegal sentence enables the court to re-evaluate the initial sentence to ensure that it is not illegal, as that term has been defined in our cases considering Maryland Rule 4 -345(a), its predecessors, and the co mmon law. It is not an opportun ity for the parties to litigate or re-litigate factual issues, but rather a vehicle to demonstrate, particularly in the case of the constitutional decisio n exceptio n, that new ly declared common law causes a penalty that was legal when administered now to be illeg al as a m atter of c onstitutio nal law . Id. at 140, 883 A.2d at 924 (footn ote om itted). Thus, the Court reasoned: because Baker relies almost e xclusiv ely upon the Pate rnoster S tudy, rather than a new judicial decision bearing on relevant constitutional law, to establish the argued illeg ality in his sentence, h is argumen ts do not fall within the exception recognized in Oken and Evans. Id. at 138, 883 A.2d a t 922-2 3. Subsequ ently, in Evans v . State, 389 Md. 456, 462-63, 886 A.2d 562, 565 (2005), the Court confirmed its Baker decision, ho lding that a s tatistical analysis con ducted by Raymond Paternoster, a Professor of Criminology and Criminal Justice at the University of Maryland, which Evan s claims establishes a pattern of racial and geographic discrimination in the implementation of the death pen alty in Maryland , is not an appro priate vehicle to raise this issue. Like Baker, however, it recognized, and did not disavow, the exception to the historic approach this Court has recognized: We acknowledged in Baker that, in Oken v . State, 378 Md. 179, 184-86, 835 A.2d 1105, 1 108, 1157-58 (20 03), cert. denied, 541 U.S . 1017, 124 S. Ct. 2084, 158 L. Ed.2d 632 (2004), and in Evans v . State, supra, 382 Md. at 279, 855 A.2d at 309, w e had recognized a limited exception to that general principle and had entertained a motion under Rule 4-345(a) where in a capital -6- sentencing proceeding, an alleged error of constitutional dimension may have contributed to the death sentence, at least where the allegation of error is pa rtly based upon a d ecision of th e United States Supreme Court or of this Co urt rendered after the defe ndant's capital sentencing proce eding. Id. at 463- 64, 886 A.2d a t 566, quoting Baker, supra, 389 M d. at 136, 88 3 A.2d a t 921, in turn quoting Evans, supra, 382 Md. at 279, 855 A.2d at 309. It is Evans contention that the decisions in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 1 56 L. E d. 2d 47 1 (200 3), Rompilla v. Beard , 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), and Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005 ) are new interpr etations of rele vant co nstitution al prece dents, Wiggins and Rompilla of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Miller-El of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), supporting his argument that an error may have c ontributed to the impositio n of his sentence of death, and, therefore, require correction of that illegal sentence. In other words, Evans contends that the death sentence he received, although legal when imposed, is, in light of these d ecision s now illegal. A ccordin gly, a Rule 4-345 (a) mot ion is ap propria te. I agree. 1. At his 1992 resentencing, Evans counsel presented a mitigation case. It consisted only of the testim ony of six fam ily members, the essence of which was that Evans grew up in a stable and supportive family. No professionals were called to provide mitigating evidence or an expert opinion with respect to Evans background or pre-criminal justice system involvement. Aside from testifying that they loved him and hoped that his life would -7- be spared, they painted a picture of a home-life and environment that was happy and s table and of a family that was supportive of him. The testimony described family outings and family dinners, playfu l children and nurturing and concerned parents, who guided them through their young years. T he testimon y also reflected these relatives disbelief and astonishment that Evans had not accepted this lifestyle and, inste ad, had rejec ted it and his upbrin ging, fa voring a life of drugs a nd viol ence. In preparing the mitigation case they would present, counsel did not commission a social history report to be prepared and, thus, none was prepared. Although they retained a mitigation specialist, she was not made a part of the defense team and was not a sked to conduct an investigation of Evans background or family history. As a result, the mitigation specialist conducted almost no investigation, she never met Evans and spoke to just a few of his family members. No one on the defense team, or on its behalf, reviewed, critically, the pertinent social services records pertaining to Evans and, so, the picture painted by the mitigation testimony was neither questioned nor critically analyzed. This is to be contrasted with the investigation and preparation undertaken by new counsel, after the Wiggins and Rompilla cases, discussed infra, were decided by the United States Suprem e Court. C ounsel retain ed a mitigatio n specialist and charged h er with conducting an investigation of Evans family and psychosocial history. Having received her report, the fin dings of w hich wer e differen t from the p icture painted by the mitigation -8- case presented at resentencin g and, inde ed, was in d irect conflict w ith it,3 counsel retained the services of a psychologist to evaluate Evans. She concluded, after reviewing the social history report prepared by the mitigation specialist, interviewing Evans and reviewing records, that Evans met, and had done so since age 9, the criteria for Post Traumatic Stress Disorder, Chronic and S evere Depressive D isorder, and Generalized Anxiety Disorder, which, after numerous missed opportunities to intervene, left Evans vulnerable to the criminal forces on the City streets. In Wiggins, the defendant was convicted of capital murder. Prior to his capital sentencing proceedin g, his attor neys unsuccessfully sought to bifurcate those proceedings, intending to prove that Wiggins was not directly responsible for the victim s d eath and, if that failed, to present a mitigation defense. 539 U.S. at 515, 123 S. Ct. at 2532, 156 L. Ed. 3 This is no t surp risin g. Th e mit igati on sp ecia list in terviewed E vans and twentynine of his family members, as well as a childhood friend and a one-time next door neighbor. She spent some thirty hours interviewing Evans and collected and reviewed a number of D.O.C.uments and records, school, medical and prison, relating to him. As a resu lt the mitig ation spec ialist prod uced a 51 page rep ort, w ith a n ine (9) pa ge su mmary, in which she concluded that Evans grew up in a toxic household characterized by chronic conflict, predictable violence, and hopeless despair. Specifically, she reported frequent and severe beating of Evans, during his childhood, by his father, abandonment on two occasions, the absence of expressions of parental love or approval, that he was singled out for harsh treatment, that he attempted suicide at age ten, for which he was never treated and of which the family never spoke, that he was sexually assaulted when he was eleven and verbally and physically harrassed at school and in the neighborhood and that he was ex posed to pervasive crim e and violence in his ne ighborhood. In addition, the m itigation spec ialist conclud ed that Ev ans and h is family were adversely impacted by a significant history of untreated mental-health and substance abuse proble ms and violenc e. -9- 2d at 481. Th e motion to bifurcate w as denied a nd, althoug h counse l informed the ju ry in opening statement that it would hear about Wiggins difficult life,4 id. at 515, 123 S. Ct. at 2532, 156 L. Ed. 2d at 481, th ey did not prod uce, or attem pt to produce, any such evidence. Id. Indeed, despite proffering to the court the mitigation case it would have presented had its bifurcation motion been granted, no evidence or information was offered as to Wiggins life history or family background.5 Id. at 515-16, 123 S. Ct. at 2532, 156 L. Ed. 2d at 481. 4 In ad ditio n to m entio ning that W iggins ha d a cl ean r ecor d, co unse l told the ju ry: You re going to hear that Kevin Wiggins has had a difficult life. It has not been easy for him. But he s worked. He s tried to be a productive citizen, and he s reached the age of 27 with no con victions for prio r crimes of viole nce an d no co nviction s, period . . . . I think that s an important thing for you to consider. Wiggins v. Smith, 539 U.S. 510, 515, 12 3 S. Ct. 2 527, 25 32, 156 L. Ed. 2 d 471, 4 81 (20 03). 5 The Supreme Court was not at all sure that Wiggins s counsel did ... focus exclusively on Wiggins s direct responsibility for the murder. After referencing counsel s opening statement and noting specially that she did not follow up the proffer with details of Wiggins history, the Court observed: At the same time, counsel called a criminologist to testify that inmates serving life sentences tend to adjust well and refrain from further violence in prison - testimony with no bearing on whether petitioner committed the murder by his own h and. ... Far from focusing exclusively on petitioner s direct responsibility, then, counsel put on a half-hearted mitigation case, taking precisely the type of shotgun approach the Maryland Court of Appea ls conclude d counse l sought to av oid. ... When viewed in this light, the strategic decision the state courts and respondents all invoke to justify counsel s limited pursuit of mitigating evidence resembles more a post hoc rationalization of couns el s condu ct than an ac curate desc ription of the ir delibera tions pri or to sen tencing . Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S. Ct. 2527, 2538, 156 L. Ed. 2d 471, 488(2 003), quoting Wiggins v. State, 352 Md. 580, 609, 724 A. 2d 1, 15 (1999). In the passage to which the Court referred, this Court stated: [Counsel] understood that some lawyers use what he regarded as a shotgun approach, attacking everything and hoping that something (continued...) -10- The mitigation case proffered did not involve any evidence of [Wiggins ] life history or family backg round , id. at 516, 123 S. Ct. at 2532, 156 L. Ed. 2d a t 481, althou gh the State made funds availab le to inve stigate th ose ma tters. Id. at 517, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482. The proffer was simply that he had limited intellectual ability, a childlike emotional state, exhibited no aggressive patterns, had a capacity for empathy and desired to function in the world, all of which would be sup ported by psychological reports and e xpert testim ony. Id. at 516, 123 S. Ct. at 253 2, 156 L. E d. 2d at 481 . Wiggins w as sentence d to death, and this C ourt, on direc t appeal, affirmed. Wiggins v. State, 324 Md. 551, 597 A.2d 1359 ( 1991) , cert. denied, 503 U .S. 100 7, 112 S . Ct. 176 5, 118 L . Ed. 2d 427 (1 992). Seeking post-conviction relief, Wiggins argued that his trial counsel s failure to investigate his life history or fam ily backgroun d and then present m itigating evide nce of his dysfunctional background was ineffective assistance of counsel. He relied primarily on Strickland. Under that case, in order to prove ineffective assistance of counsel, a defendant must show tha t counsel s p erforman ce was d eficient, that it fell below an objective standard of reasonableness defined by prevailing professional norms, and that this deficiency 5 (...continued) sticks. He w as not of tha t view, how ever, prefe rring to con centrate his defense. H e did not, ther efore, hav e any detailed b ackgrou nd reports prepared, although funds may have been available for that purpose. He expressed some concern that that kind of information might prove counte rprodu ctive. Id. at 609, 724 A.2d at 15-16. -11- prejudiced the def endan t. Strickland, 466 U.S. at 687-688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In support of his ineffective assistance of counsel argument, Wiggins post conviction counsel presented expert testimony by a forensic social work er who chron icled [Wiggins ] bleak life history. 539 U.S. at 516, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482. The testimony was from the social history repo rt, characterized by the Court as elaborate, 539 U.S. at 516, 123 S. Ct. at 2531, 156 L. Ed. 2d at 481, the social worker prepared from social service, medical, school records and interviews with Wiggins and numerous family members, and it provided evidence of the severe physical and sexual abuse [Wiggins] suffered at the hands of his mother and while in the care of a series of fo ster parents. 5 39 U.S. at 5 16, 123 S . Ct. at 2533, 15 6 L. Ed. 2d at 482. Ac knowle dging the f ailure to inves tigate Wigg ins family background or life history, trial counsel defended on the basis that, well in advance of trial, they had dec ided, upon re-trial, to concentra te on retrying the factual case, 539 U.S. at 517, 123 S. Ct. at 2533, 156 L. Ed. 2d at 482, and disputing W iggins direct re sponsibility for the murder. 539 U.S. at 517, 123 S. Ct. at 2533, 156 L . Ed. 2d at 482. The trial cou rt denied post-conviction relief, concluding, when the decision not to investigate ... is a matter of trial tactics, there is n o ineff ective a ssistanc e of co unsel. 539 U.S . at 517-518 , 123 S. Ct. at 2533 , 156 L . Ed. 2d at 482. This Court a ffirme d. Wiggins v. State, 352 Md. 580, 724 A.2d 1 (1999). It agreed with the trial court that counsel s decision to concentrate on principalship was a deliberate, -12- tactical decision. 352 Md. at 608, 724 A.2d at 15. Moreover, the Court concluded that Wiggins trial counsel knew of Wiggins unfortunate childhood; after all, they had availab le to them the PSI report prepared by Parole and Proba tion and the social services repo rt that detailed, albeit not as graphically as the petitioner s social worker s social history, instances of physical and sexual abuse, an alcoholic moth er, foster care placements and borderline retardation. Thus, the C ourt stated that counsel did investigate and were aware of [Wiggins ] background. 352 Md. at 610, 724 A.2d at 16. Therefore, it reasoned, Wiggins counsel made a reasoned choice to proceed with w hat they th ought w as their b est defe nse. 352 Md. at 610, 724 A.2d at 16. The United S tates District C ourt for the D istrict of Maryland granted relief on Wiggins federal habeas petition, holding that Maryland s rejection of his ineffective assistance of counsel claim was an unreasonable application of clearly established federal law. Wiggins v. Corcoran, 164 F. Supp. 2d 538, 557 (D. Md. 2001). The Fourth Circuit Court of Appeals reversed, holding that trial counsel s strategic decision to focus on establishing that Wiggins was not directly responsible for the murder was a reasonable one. Wiggins v. Corcoran, 288 F.3d 629, 639-640 (4th Cir. 2002). The United States Supreme Court reversed. It he ld that the actio ns of W iggins cou nsel at senten cing violated his Sixth Amendment right to effective assistance of counsel. 539 U.S. at 519, 123 S. Ct. at 2534, 156 L. Ed. 2d at 483. In the Supreme Court, W iggins complained, as h ad Strickland, about his cou nsel s -13- decision to limit their investigation of the availability of mitigation evidence. The Supreme Court held that trial counsel s decision not to expand their investigation beyond the PSI and DSS records, records of which they were already aware, fell short of the professional standards that prevailed in Maryland... - standard practice, at that time was to prepare a social history rep ort, Wiggins, 539 Md. at 524, 123 S. Ct. at 2536 , 156 L . Ed. 2d at 486, and the scope of the investigation they undertook was unreasonable in light of what the DSS records revealed about Wiggins mother s alcoholism, her treatment of him and his siblings, his foster care p lacements , emotional d ifficulties, etc., and the fact that counsel had uncovered no evidence indicating that a mitigation case would be, or could be, unproductive. 539 U.S. at 525, 123 S. Ct. at 2537, 156 L. Ed. 2d at 487. Indeed, the Court was satisfied that the record of the sentencing proceeding, because it demonstrated that counsel never abandoned mitigation as a tactic and, in f act, put one o n, albeit a ha lf hearted a ttempt, underscore[d] the u nrea sona blen ess o f cou nsel's conduct by suggesting that their failure to investigate thorough ly resulted from inattention, not reasoned strategic judgment. Id. at 526, 123 S. Ct. at 2537, 156 L. Ed. 2d at 487. This Court d id not es cape th e Supr eme C ourt s cr iticism. In fact, we were reminded that the reasonab leness of a n attorney s inve stigation can not be dete rmined by as sessing, alone, what the attorney knows; a reviewing court needs also to consider, and determine, whether the known information would lead a reasonab le attorney to investigate further, and that Strickland does not establish that a cursory investigation automatically justifies a -14- tactical decision with respect to sentencing strategy. Id. at 527, 123 S. Ct. at 2538, 156 L. Ed. 2d at 488. Accordingly, the Court admonished: The Maryland Court of Appeals' application of Strickland s governing legal principles was objectively unreasonable. Though the state court acknowledged petit ione r's claim that counsel's failure to prepare a social history did not meet the minimum standards of the profession, the court did not conduct an assessment of whether the decision to cease all investigation upon obtaining the PSI and the DSS records actually demonstrated reasonable professional judgmen t. ... The state court merely assumed that the investigation was adequate. In light of what the PSI and the DSS records actually revealed, however, counsel ch ose to aban don their inv estigation at an unreason able juncture, making a fully informe d decision w ith respect to sentencing strategy impossible. The Court of Appeals' assumption that the investigation was adequate ... thus reflected an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1 ). As a result, the court's subse quent deference to co unse l's strategic decisio n not to presen t every co nceiva ble mitig ation de fense, ... despite the fact that cou nsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable. As we established in Strickland, strategic choices m ade after les s than com plete investigation are reasona ble precisely to the extent that rea sonable p rofessional judgments supp ort the limitations on investigation. Id. at 527- 28, 123 S. Ct. at 2 538-3 9, quoting Wiggins, 352 Md. at 609-610, 724 A.2d at 16 and Strickland, 466 U.S. at 690-691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, the Supreme Court determined that this Court had misapplied the standards articulated in Strickland. 539 U.S. at 527, 123 S. Ct. at 2538, 156 L. Ed. 2d a t 488. Wh ile cautioning that its decision did not me an that Strickland required co unsel to investigate every conceiva ble line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing, and that Strickland does not require counsel to present mitigating evidence at sentencing in every case, the Sup reme Court re-asserted the principle that -15- strategic choices made after less than complete investigation are reason able only to the extent that reasonable professional judgments support the limitations on investigation. 539 U.S. at 533, 123 S. Ct. at 2541, 156 L. Ed. 2d at 492. It held, ultimately, that [i]n def erring to counsels decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Cou rt of App eals unreasonably applied Strickland. 539 U.S. at 534, 123 S. Ct. at 2542, 156 L. Ed. 2d at 492 In addition, the Supreme Court concluded that counsels failure to investigate and, then, present mitigating evidence prejudiced Wiggins to the extent that a jury, confronted with such evidence, may have returned a different sentence. 539 U.S. at 536, 123 S. Ct. at 2543, 156 L. Ed. 2d at 494. Romp illa is also pertinent on the question of the specific application to defense counsel of the reasonable competence standard required by the Sixth Amendment, 545 U.S. 374, 377, 125 S. Ct. 2456, 2460, 162 L. Ed. 2d 360, 369, and ins tructive , as it teach es, inter alia, that more is required of counsel by way of investigating the possibility of mitigating evidence than simply intervie wing a nd relying on the d efend ant and his fam ily memb ers. 545 U.S. at 381-82, 125 S. Ct. 2456, 2462-63, 162 L. Ed. 2d at 372. There, the Supreme Court held that even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonab le efforts to obtain and review material that counsel knows the prosecu tion will probably rely on as evid ence o f aggra vation a t the sen tencing phase o f trial. Id. at 377, 125 S. Ct. at 2460, -16- 162 L. Ed. 2d at 369. To oppose the evidence presented by the State to justify the death sentence it sought against the defendant - proof of the aggravating factors that the murder was committed in the course of another felony and b y torture and that the defendant s sign ificant history of felony convictions indicated the use or threat of violence - counsel for Rompilla offered relatively brief testimo ny by five o f the de fenda nt s fam ily memb ers. Those w itnesses argue d, in effect, for reasonable doubt, and begged the jury for mercy, on the basis of their belief that the defendant was innocent and a good man, and, in the case of his 14-year-old son, that he loved his father and would visit him in prison. Although the jury found the latter to be a mitigating factor, along with rehab ilitation being p ossible, it senten ced the de fendant to death. 545 U.S. at 378, 125 S. Ct. at 2460-61, 162 L. Ed. 2d at 370. In preparing th eir mitigating case, trial counsel c onsulted thr ee sources : Rompilla , his family members and three mental health workers. They got little, if anything, of substance from Romp illa regarding his b ackgrou nd, who responde d to question s concern ing his schooling and childhood by saying they were normal, except for his dropping out of school in the 9th grade and, in some instances, by sending counsel off on false leads. 545 U.S. at 381, 125 S. C t. at 2462, 162 L. Ed. 2d at 371-372. developed by the family members. Similarly, little of substance was Although counsel developed a rapport with them, counsel did not have the feeling that they knew Rompilla that well, since he spent a great deal of time incarcerated. And, because the family was coming from the position that -17- [Rompilla] was innocent ... they weren't looking for reasons for why he might have done this. 545 U.S . at 382, 125 S. Ct. at 246 3, 162 L. E d. 2d at 372 . The three m ental health witnesses, likewise, revealed nothing useful. 545 U.S. at 382, 125 S. Ct. at 2463, 162 L. Ed. 2d at 372. Trial coun sel did not co nsult schoo l records, reco rds of Ro mpilla s juve nile and adult incarce rations, police reports ava ilable during pre-trial discovery, or anything that might have reflected that Rompilla had a dependence on alcohol. 545 U.S. at 382, 125 S. Ct. at 2463, 162 L. Ed. 2d at 372. The post-conviction court rejected Rompilla s claims that his trial counsel had rendered ineffective assistance by their failure to investigate and then present, at sentencing, mitigation evidence concerning Rompilla s childhood, mental capacity, health, and alcoholism. 545 U.S. at 378, 125 S. Ct. at 2461, 162 L. Ed. 2d at 370. O n the contra ry, it held that the trial counsel had done enough to investigate the possibilities of a mitigation case. The Supreme Court of Pennsylvan ia agree d and a ffirme d. Commonwealth v. Romp illa, 539 Pa. 4 99, 653 A .2d 626 (1 995). The Federal D istrict Court granted habeas relief, finding ine ffective assistance of c ounsel. Tria l counsel, the court determ ined, in preparing the mitigation case, had f ailed to investigate pretty obvious signs that Romp illa had a troubled childhood and suffered from mental illness and alcoholism, and instead had relied unju stifiably o n Rompilla's own description of an unexceptional background. 545 U.S. at 379, 125 S. Ct. at 2461, 162 L. Ed. 2d at 370. The Third Circuit Co urt of Ap peals reversed, concluding that there w as nothing unreason able about the State Su preme Cou rt s -18- application of Strickland, opining that defense counsel, who had attempted to uncover mitigation evidence from Rompilla, certain family members, and three mental health experts, Romp illa v. Horn, 355 F.3d 233 (3rd Cir. 2004), had gone far enough and done enough. 355 F.3d at 2 52. The Supreme C ourt granted certiorari and reversed. It held that, even when a capital defendant and his family members have suggested that no mitigating evidence is available, his lawyer is bou nd to mak e reasonab le efforts to o btain and re view ma terial that counsel knows the prosecution will probably rely on as evidence of agg ravation at the trial s sentencing phase. 545 U.S. at 385-386, 125 S. Ct. at 2465, 162 L. Ed. 2d at 374-375. Thus, Rompilla s counsels failure to examine a court file on Rom pilla s prior rap e and assa ult conviction, a crime similar to the one with which he was charged, was deficient. 545 U.S. at 385- 386, 12 5 S. Ct. a t 2465- 2466, 1 62 L. E d. 2d at 3 75. Further, [n]o reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim's testimony. Nor would a reasonab le lawyer compare possible searches for school reports, juvenile records, and evidence of drinking habits to the opportunity to take a look at a file disclosing what the prosecutor knows and even plan s to read fro m in his case. Questioning a few more family members and searching for old records can promise less than looking for a needle in a h aystack, whe n a lawyer truly has rea son to d oubt th ere is an y needle th ere. 545 U .S. at 389 , 125 S . Ct. at 24 67, 162 L. Ed. 2 d at 376 -377. The majority asserts that Wiggins and Romp illa are a mere re-applications of -19- Strickland to the facts of those cases, and, as such, are not new interpretations of a Constitutional principle. __ Md. at __, __, __ A.2d at __, __, __ [slip op. at 8, 9]. To the majo rity, those cases apparently are mere error correction, having absolutely no precedential value and informing not one future review of ineffective assistance of counsel, even when they are directly on p oint. Matter-of-factly, therefore, the majority dismisses Wiggins and Romp illa, and especially their analysis: Nothing in Wiggins or Romp illa changed, in any way, those standards adopted in Strickland. The Wiggins Court expressly relied on and applied the Strickland standards and simply concluded, based on its view of the factual record in that case, that, given the information they had regarding Wigg ins s childhood, counsel s f ailure to broaden the sco pe of their in vestigation in to possible mitigating factors in a death penalty case was both deficient and prejudicial under the Strickland standards. Indeed, the C ourt began its discussion of the ineffective assistance claim by expressly noting that [w]e established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington . ... Wiggins v. Smith, supra, 539 U.S. at 521, 123 S. Ct. at 2535, 156 L. Ed. 2d at 484. * * * Like in Wiggins, the Romp illa Court expressly applied the standards enunciated in Strickland to find deficient and prejudicial performance by counsel. No new or different interpretation of Strickland was an nounc ed. Indeed Justice O Connor, the author of the Opinion in Strickland, noted in Romp illa that the decision simply applies our longstanding case-by-case approach to determining whether an attorney s performance was unconstitutionally deficient under Strickland v. Washington.... (O Connor, J., Con curring ). Id. at __, __ A.2d at __ ( slip op . at 8-9).6 6 This is the only basis on which the majority rejects the applicability of Rule 4-345 (a) to this case. The majority offers no other analysis, nor does it address, or even (continued...) -20- To be sure, neither Wiggins nor Romp illa purports to change the established legal principles governing ineffective assistance of counsel claims announced in Strickland. See Wiggins, 539 U. S. at 521, 123 S. Ct. at 2535, 15 6 L. Ed. 2d at 484; Romp illa, 545 U. S. at 380, 125 S. Ct. at 2462, 162 L. Ed. 2d at 371. The y are, indeed, co ncerned, a nd seriously so, with not simply the app lication of the principles w ell established in Strickland, and sought to be clarified by its progeny, but with the proper and reasonable application of those principle s. Th us, th ese c ases are n ot mere e rror c orre ction or ex ercis es in futil ity. 7 Federal habeas review is permitted, in fact, only when the federal law as to which review is so ught is clea rly established by Suprem e Court pr ecedents a t the time the sta te 6 (...continued) acknowledge, whether the Supreme Court s determination that this Court, in Wiggins, and the Pennsylvania Supreme Court, in Romp illa, had objectively u nrea sona bly applied Strickland, could impact other cases in which that very issue may have been, or could have been, raised. 7 It is worth reminding ourselves of what the Wiggins Court em phasized w ith regard to the responsibility of th e reviewin g court w hen the ad equacy of in vestigation is at issue: In assessing the reasona bleness of an attorney s investigation ... a court must con sider not on ly the quantum of eviden ce already kn own to c ounsel, but also w hether the k nown e vidence w ould lead a reasonab le attorney to investigate f urther. Eve n assumin g [couns el] limited the sc ope of the ir investig ation fo r strategic reason s, Strickland does not e stablish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reason ablene ss of the investig ation sa id to sup port tha t strategy. 539 M d. at 527 , 123 S . Ct. at 25 38, 156 L. Ed. 2 d at 488 , citing Strickland, 466 U.S. at 691, 10 4 S. Ct. a t 2066, 8 0 L. Ed . 2d at 69 5. -21- court decision is filed. 28 U. S. C. § 2254,8 as amended by the Antiterrorism and Effective Death Penalty Act of 1996. The Court made clear, in Wiggins, the scope of that provision: In order for a federal co urt to find a state court s application of our precedent unrea sonab le, the state court s decision must have been more than incorrect or erroneou s. ... The state court s application m ust have b een objec tively unreasonable. Wiggins, 539 U . S. at 520 -21, 12 3 S. Ct. a t 2535, 1 56 L. E d. 2d at 4 84. Having granted certiorari to review the application of clearly established Federal law as it had dete rmined it, and having decided that the state court had applied the law objectively unreasonably, I would be surprised, and I suspect the S upreme Co urt would be more so, to learn that a state court found previously to have misapplied the clearly established Federal law, was not expec ted to consid er the decisio n so conc luding, and apply it in cases, involving the same issue, that arise subsequently, and that neither are the many other state courts that will be called on to apply it. After all, the point of appellate review is to instruct bench and bar as to the law and to provide precedents that they must follow. 8 28 U.S.C. § 2254 (d), provides: (d) An a pplication fo r a writ of h abeas corp us on beh alf of a pe rson in custody pursu ant to the jud gment of a State cou rt shall not be g ranted w ith respect to any claim that was ad judicated on the merits in State co urt proceedings unless the adjudication of the claim (1) resulted in a decision that was co ntrary to, or involv ed an unr easonab le application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the f acts in lig ht of the eviden ce pres ented in the State court p roceed ing. -22- It makes no sense, not to mention that it trivializes, I believe, the Supreme Court s review function, to permit a co urt that has been educ ated as to the proper ap plication of a wellestablished legal precedent of the Supreme Court, one that the Court has determined has been misapplied objectively unreason ably, to avoid h aving to apply that precedent on the merits, when the issue to which it relates is raised in the context of a proceeding, sanctioned by that court, in this instance, whether to consider illegal sentences or to provide other discretionary relief, simply because the error, the effect of which is just as prejudicial, is not characterized as a new interpretation of that Supreme Court precedent. I am sorry, but to me, pointing out that a particular interp retation, and, th erefore, ap plication, of a preceden t is objectively unreasonable , has the same feel and effects the same result, if it does not amount to the same thing. In Wiggins, where counsel purported to be pursuing a strategy that did not include mitigation, presenting only a half h earted cas e and neg lecting to do a social history rep ort, this Court was instructed that deferral to counsel s tactical decision relating to mitigation was objectively unreasonable because available information made it reasonable for coun sel to have conducted more of an investigation and the Co urt was required, befo re deferring to the counsel s decision, to evaluate the knowledge counsel had with that in mind . In this case, counsel presen ted a m itigation case, albeit, it was not a p articularly strong one . They too did not do a social history report, accepting, in total, the representations and assurances of Evans and his family members as to the a ccuracy of the picture that they painted for the jury. If -23- there was a deficiency in performance in Wiggins, where the mitigating ca se, if a priority at all, was only sec ondary, there c ertainly was a d eficiency in this c ase, wher e the mitigation case, such as it w as, was pre sented and it was the defense s primary focus. Th is is especially the case in light of Romp illa s recognition, and teaching, that counsel s investigative responsibilities extend beyond, and are not co-extensive with, what he or she learns from the client an d his or h er fam ily. 545 U .S. at 383 , 125 S . Ct. at 24 63, 162 L. Ed. 2 d at 373 . This latter point is critically important, as this case and Romp illa demonstrate: presenting a mitigation case without an adequate and full investigation, or without considering how w hat is presen ted can be used aga inst the defe ndant and whether it may have the opposite ef fect, very well may aggravate, rather than mitigate, the defendant s case. As Evans p oints out, the p rosecution all but adop ted the picture Evans m itigation case painted, telling the jury, agreeing with Evans, that his family was a wonderful group of people , an excellent support system, who brought him up right. Proceeding from that premise, it made the point that, viewed from that perspective, Evan s actions were aggravated, after all, they were always there, always there. Anytime he walked over and asked for help, he had help. Wiggins and Romp illa are constitutional decisions that can be, and logically should be, applied in connection with a Rule 4-345 (a) motion to challenge an illegal sentence. Both holdings e stablish the bo undaries o f reasonab le application in which a reviewing court, evaluating Strickland claims, must confine its analysis. They make clear that any sentence -24- that is the result of an objectively unreasonable application of the guiding principles, clearly esta blished ones an nounc ed by the Supre me Co urt, is illeg al and th us reve rsible. 3. A simi lar analysis applies to Eva ns jury im panelm ent argu ment. Evans was tried in 1984, prio r to the decisio n in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). His jury consisted of ten whites and two African-Americans, exclusive of alternates, of which there w ere two, one white and the other African-American. Although only 31% of the jury pool were African-American, the prosecution used 80% of its peremptory strikes to exclude African-Americans from the jury venire. When, at the end of jury selection, the p rosecutor s u se of his peremptory strikes was challenged, he responded by indicating that he had exercised his strikes on the basis of the venireperson s background, age, occupatio n, what was learned during voir dire at the bench and in open court. Although the trial court denied E vans obje ction, it subseq uently ackno wledged , and, in effect, endorsed, that the prosecutor s strikes may have been raced-based, noting it s logical to presume that perhap s [the prosecutor] wa s trying to get a jury which roughly reflects the composition of a cross- section of the c ounty. This is consistent with what the prosecutor told the trial court with regard to the racial composition of the County, that 22% of the county population was African American and three of the jurors - two regular jurors and one alternate - were black, which constituted 21.4% of the pan el. The trial trans cript reflects that the prosecutor only questioned one of the eight African-Americans he struck and that he -25- did not strike sim ilarly situate d white jurors. A similar pattern was evident in Miller-El II. There, Dallas County prosecutors used 10 of their 14 p eremptory strike s to strike black jurors, in the process striking 91 % (10 of 11) of the e ligible, q ualified black venire members during jury selection for petitioner Miller-El s capital murder trial. 545 U.S. at 241, 125 S. Ct. at 2325, 162 L. Ed. 2d at 214. Miller-El s objection under Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), the predecessor to Batson, was overruled, and he was convicted, the trial court finding no systemic exclusion of blacks. 545 U.S. at 236, 125 S. Ct. at 2322, 162 L. Ed. 2d at 211. After Batson was decided, Miller-El s objection was reviewed in light of that case, but the trial court found that the strikes were race-neutral and that no racially motivated strikes occurred. That decision was affirmed by the Texas Court of Criminal Appeals, the federal district court denied Miller-El h abeas r elief, Miller-El v. Johnson, Civil No. 3:96CV-1992 -H (N.D. Tex., June 5, 2 000), and the Fifth Circuit affirmed that decision. The Supreme Court granted certiorari and reverse d. 545 U.S. at 237, 125 S. Ct. at 2323, 162 L. Ed. 2d at 212. Focusing on, as Evans characterizes it, the strong statistical disparity in the State s use of peremptory strikes against African Americans, the Court noted: The numbers describing the prosecution's use of peremptories are remarkable. Out of 20 black members of the 108-per son v enire pan el fo r Miller-El's trial, only 1 served. Although 9 were excused for cause or by agreement, 10 w ere peremptorily struck b y the pros ecution . Id. [Miller-El v . Cockrell, 537 U.S. 322, 331, 123 S. Ct. 1029, 1036, 154 L. Ed. 2d 931, 946 (2003)]. The prosecutors used their p eremptory strike s to exclude 91% o f the eligible African-American venire members .... Ha ppenstan ce is unlikely to p roduce th is disparity. Id., at 342, 1 23 S. C t. 1029. -26- 545 U.S. at 240-41, 125 S. Ct. at 2325, 162 L. Ed. 2d at 214. The Court also was guided by the circum stances surro unding ea ch strike, inclu ding the disp arity of treatment of African American and white venire members. The extensive comparative analysis undertaken by the Court, see id. at 545 U.S. at 239-252, 125 S. Ct. at 2325-32, 162 L. Ed. 2d at 213-221, made this fact evident and caused it to note that some of the proffered explanations for striking African America ns applied w ith equal fo rce to some of the white venire members who were not challenged. The Court concluded: [i]f a prosecutor s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination. Id. at 241, 125 S. Ct. at 2326, 162 L . Ed. 2d at 215. Another circumstance determined to be significant was whether the prosecutor engaged , during vo ir dire, in mean ingful voir dire on the post hoc rea son for a strike; if he or she did not, the Court concluded, that was an indicia of implau sibility. Id. at 244, 125 S. Ct. at 2328, 162 L. Ed. 2d at 217. Finally, the Court looked to see, and found, evidence of past discrimination by the prosec utor s office . Id. at 253-265, 125 S. Ct. at 23322339, 162 L. Ed. 2d at 222-229. Every aspect of this analysis applies to Evans case, in spades. Statistically, the numbers are as remarkable. The app licability of the exp lanations fo r striking black s to some of the non-cha llenged w hites is just as ev ident. The d earth of the voir dire in relation to the post hoc explanatio ns is just as lack ing. In this case , howev er, there is the, at lea st, tacit, finding by the trial court that the strikes were race-based. That it may ha ve seen this -27- finding as benign does not matter; it buttresses the case for error and, thus, illegal sentence review. The majority responds to Miller-El as it does to Wiggins and Romp illa, that it makes no new pronoun cement, it is no t a new interpretation, simply an application of Batson. This case is an habeas case and , therefo re, was decide d unde r 28 U .S.C. § 2 254, see supra note 8 at 21 . As s uch, what I sa id in supp ort of the applicab ility of Wiggins and Romp illa to a Rule 4-345 (a) review applies equally to this case. I will add what Evans notes as to the significance of habeas cases, a comment that also applies to the Wiggins and Romp illa discussion: The im port of the C ourt s decisio n is underscored by the fact that Miller-El obtained relief on fed eral habea s review, w hich is subje ct to a deferential standard under which factual determinations by state courts are presumed correct absent clea r and con vincing ev idence to th e contrary, and factual determinations will not be overturned unless obje ctively unreaso nable in light of the evidence pre sented in the state-court proceed ing. (Quoting Miller-El I , 537 U.S. at 324, 123 S. Ct. at 1041, 154 L . Ed. 2d at 952). B. Maryland Code (2001, 2006 Cum. Supp.) § 7-102 of the Criminal Procedu re Article provides: (a) Subject to subsection (b) of this section, §§ 7-103[9] and 7-104[10] of this 9 Maryland C ode (200 1, 2005 S upp.) § 7-1 03 of the C riminal Proc edure A rticle provides, as relevant: § 7-103. Number and time of filing of petitions (a) For each trial or sentence, a person may file only one petition for relief under (continued...) -28- subtitle and Subtitle 2 of this title, a convicted person may begin a proceeding under this title in the circuit court for the county in which the conviction took place at any tim e if the perso n claims tha t: (1) the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of the State; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum allowed by law; or (4) the sentenc e is otherw ise subject to collateral attack on a ground of alleged error that would otherwise be available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy. (b) A person may begin a proceeding under this title if: (1) the person seeks to set aside or correct the judgment or sentence; and (2) the alleged error has not been previously and finally litigated or waived in the proce eding resu lting in the con viction or in any other proceeding that the person has taken to se cure relie f fro m the per son's convic tion. Our approach to petitions to reopen post conviction proceedings under this provision was most recently highlighted in Gray v. State, 388 Md. 366 , 879 A.2d 106 4 (2005). In Gray, the defendant had been convicted of seco nd-degre e murder a nd use of a handgu n in the commission of a violent crime. 388 Md. at 368, 879 A.2d at 1065. He filed a Petition 9 (...continued) this title. 10 Maryland C ode (200 1, 2005 S upp.) § 7-1 04 of the C riminal Proc edure A rticle provides, as relevant: § 7-104. Reopening postconviction proceeding The court may reopen a postconviction proceeding that was previously concluded if the co urt deter mines th at the ac tion is in th e interes ts of just ice. -29- to Reopen Post Conviction Proceedings pursuant to § 7-104 of the C riminal Procedure Article. 388 M d. at 369, 87 9 A.2d a t 1065. Th e trial court den ied the petition , finding it not to be in th e interes t of justic e to do s o. 388 Md. at 369, 879 A.2d at 1065. After the Court of Specia l Appe als affir med th at decisi on, Gray v. State, 158 Md. App. 635, 857 A.2d 1176 (2004), this Court granted certiorari to determine whether the Circuit Court was required to provide a written statement supporting its denial of relief. 388 Md. at 369, 879 A.2d at 1065. In holding that no such statement was required by the Circuit Court, we explained that § 7-104 allows a court to reopen a post-conviction proceeding that was previously concluded, if the court determines that the action is in the interests of justice. 388 Md. at 382, 879 A.2d at 1073 , citing § 7-10 4 (emp hasis rem oved). That requires the exercise of discretion. Therefore, in analyzing whether a trial court s denial of a petition to reopen a post conviction proceeding was an abuse of discretion, we explained: Abuse of discre tion is on e of t hose very g eneral, amorphous terms that appellate courts use and app ly with great frequency but which they have defined in many different ways. . . . [A] ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate co urt would not have ma de the s ame ru ling. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That kind of distance can arise in a number of ways, among which are that the ruling either does not logically follow from the findings upon which it supposedly rests or has no reasonable relationship to its announced objective. That, we think, is included within the notion of untenable grounds, violative of fact and logic, and against the logic and effect of facts and inf erences before the cou rt. 388 Md. at 383-384, 879 A.2d a t 1073- 1074, citing Dehn v. Edgecombe, 384 Md. 606, 628, 865 A.2d 60 3, 616 (2005) (Em phasis added, internal quo tations omitted). -30- The majority acknow ledges that th is standard sh ould be applied to Evans motion to reopen the 1995 post-conviction proceeding. __ Md. at __, __ A.2d at __ [slip op. at 11-12]. The majority then states that, because Wiggins, Romp illa, and Miller-El II were not abuse of discretion cases, their mandates do not apply to an abuse of discretion evaluation in the case sub judice. __ Md. at __, __ A .2d at __ [slip op. at 12]. I cannot agree. The petitioner does not assert that Wiggins, Romp illa, and Miller-El II are abuse of discretion cases, and § 7-104 does not require that the precedents relied upon be abuse of discretion cases. Evans point is that, given the three Supreme Court decisions, albeit rendered on habeas review, where a decision on the merits had to be mad e, this Court, on its review of the trial court denials in this case, could conclude, and should so conclude, that the tr ial court abused its discre tion. In Wiggins and Romp illa, the Supreme Court held that this Court and the Supreme Court of Pennsylvania, respectively, had objectively and unreason ably applied its ho lding in Strickland. 539 U.S. at 527, 123 S. Ct. at 2538, 156 L. Ed. 2d at 488. The Court drew the same conclusion with regard to the Texas Court of Crim inal Appe als application of its holding in Batson. Those are definitive rulings by the Supreme Court, made only after determining that its well established precedent was not, apparently, so well unde rstood as to be applied rea sonably, even if incorrectly and erroneou sly. I am surprised to learn that Supreme Court decisions may be disregarded whenever the standard to be applied by a trial court is discretionary, that even when properly and timely raised, they summarily can be -31- rejected as applicable, even before the trial court undertakes an, a nd, th eref ore, w ithout an y, analysis specifi c to the c ase or f acts and circum stances . In fact, at the least, some level of case specific an alysis must be m ade if the trial court is to exercise discretion; unless the court considers the argument on the merits, in light of the facts of the defendant s case, it cannot properly and logically exercise discretion. Just as important, such an analysis should be require d so tha t any revie w by this C ourt of the issue is mean ingful. Unless an analysis on the merits is required and this Court seriously reviews the discretionary decision, w e pay only lip servic e to the availa bility of the remedy of reopening postconviction proceedings, and what I lamented earlier is absolutely true: It makes no sense, not to mention that it trivializes, I believe, the Supreme Court s review function, to permit a court that has been educated as to the proper application of a well-established legal preced ent of the S upreme C ourt, one that the Co urt has determ ined has b een misap plied objec tively unreas onably, to avoid having to apply that precedent on the merits, when the issue to which it relates is raised in the context of a proceeding, sanctioned by that court, in this insta nce, whe ther to consider illegal sentences or to provide other discretionary relief, simply because the error, the effect of which is just as prejud icial, is not characterized as a new interpretation of that Supreme Court preced ent. I am sorry, but to me, pointing out that a particular interpretation, and theref ore, applicatio n, of a prec edent is ob jectively unreasonab le, has the same feel and effects the same result, if it does not amou nt to the s ame th ing. C. Evans, in No. 124, claims that United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996), mandates that he be entitled to discovery in order appropriate ly and effe ctively to presen t his selective p rosecution claims. The majority, in -32- turn, holds that the re is no such mandate . __ Md . at __ A.2d at __ [slip op. at 63]. I disagree. In Armstrong, the Supreme C ourt considered the showing that a defendant must make to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution based on race. 517 U.S. at 458, 116 S. Ct. at 1483, 134 L. Ed. 2d at 694. Crucial to Armstrong s claim was the theory that the government had declined to pros ecute defenda nts of other races that w ere similarly situated . 517 U.S . at 458, 116 S. Ct. at 1483, 134 L . Ed. 2d at 694. Armstrong and a colleague had been arrested for conspiring to possess with the intent to distribute more than 50 grams of cocaine b ase (crack), c onspiring to distribute the same, and for fed eral firea rms of fenses . 517 U.S. at 458, 116 S. Ct. at 1483, 134 L. Ed. 2d at 694695. In respo nse to th e indictm ent, Armstrong filed a motion for discovery, alleging selective prosecution based on race. 517 U.S. at 459, 116 S. Ct. at 1483, 134 L. Ed. 2d at 695. The allegation stated that in every one of the 24 cases that contained similar charges as the ones b rought ag ainst Arm strong, the de fendant w as black. 51 7 U.S. at 45 9, 116 S. C t. at 1483, 134 L. Ed. 2d at 695. The District Court granted the motion, instructing the government to produce info rmation reg arding the c riteria for decid ing whe n to prosec ute cases in which it had charged both firearms and cocaine offenses. 517 U.S. at 459, 116 S. Ct. at 1484, 13 4 L. Ed. 2d at 695. W hen the go vernmen t refused to c omply, the D istrict Court d ismisse d the ca se, and t he Nin th Circu it Court of Ap peals af firmed . In reversing, the Supreme Court held: -33- The requirements for a selective-prosecution claim draw on ordinary equal protection standards. . . . The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose. . . . To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race w ere not p rosecu ted. 517 U.S. at 465, 11 6 S. Ct. at 1487, 134 L . Ed. 2d at 699 (citations om itted). Moreover, Having reviewed the requirements to prove a selective-prosecution claim, we turn to the sh owing n ecessary to obtain discovery in support of such a claim. If discov ery is orde red, the Government must assemble from its own files docume nts which might corroborate or refute the defendan t's claim. Discovery thus imposes m any of the co sts present w hen the G overnm ent must res pond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose th e Gove rnment's pro secutorial strate gy. The justifications for a rigorous stan dard for th e elements of a selective-prosecution claim thus require a correspo ndingly rigoro us standard for discovery in aid of such a claim. 517 U.S. at 468, 116 S. Ct. at 1488, 134 L. Ed. 2d at 701. In discussing of w hat a corresp ondingly rigor ous standa rd for disco very should consist, and the test for such a showing, colorable basis or substantial threshold showing, employed by the Courts of Appeals, the Supreme Court remarked: The Court of Appeals held that a defendant may establish a colo rable basis for discriminatory effect without evidence that the Government has failed to prosecute others wh o are similarly situa ted to the de fendant. . . . W e think it was mistaken in this view. **** In the present case, if the claim of selective prose cution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated diffe rently than respo ndents. Fo r instance, resp ondents -34- could have investigated whether similarly situated persons of other races were prosecuted by the State of California and we re know n to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible sho wing of different trea tment of sim ilarly situated persons-adequately balances the Government's interest in vigorous prosec ution an d the de fenda nt's intere st in avo iding se lective p rosecu tion. 517 U.S. at 469-470 , 116 S. Ct. at 1488-1489, 13 4 L. Ed. 2d at 701 -702 (citations omitted). Therefore, under Armstrong, a credible showing of different treatment of similarly situated person s will jus tify discov ery by the de fenda nt. The majority cites Armstrong for the pro position that: To establish a selective prosecution claim, . . . , the claimant must demons trate that the prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose, id. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699, quoting from Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547, 556 (1985), and to establish a discriminatory effect in a race case, the claiman t must show tha t similarly situated individuals of a different race were not prosecuted. United States v. Armstrong, supra, 517 U.S. at 465, 116 S. Ct. at 1487, 134 L. Ed.2d at 699. (Emp hasis ad ded). __ Md. at __, __ A.2d at __ [slip op. at 64 ]. The majority, having used Armstrong to establish the elements of selective prosecution, never returns to Evans a rgumen t that Armstrong requires only a threshold showing of selective prosecution in order to obtain discovery. Instead, the majority explains that, because Armstrong was not a death penalty case, and did not involve a statistical analysis like in the case sub judice, Evans is not entitled to relief. __ Md. at __, __ A.2d at __ [slip op. at 66]. It is clear, however, that neither of these factors makes any difference in review ing wh ether dis covery is w arrante d in a se lective p rosecu tion claim . -35- In Armstrong s case, there was no showing - the study he submitted failed to identify individuals who were not black and could have been prosecuted for similar offenses, but were not so prosecuted. 517 U.S. at 470, 116 S. Ct. at 1489, 134 L. E d. 2d at 702. The D r. Paternoster statistical analysis in the case sub judice, howev er, is significan tly more in depth than the study conducted in Armstrong, and, as s uch, does satisfy the Armstrong standard. Accordingly, it does mandate the relief the Evans seeks. The Paternoster study provides substantial evidence that the Baltimore County State s Attorney s Office singled out black defendants from similarly situated w hite defen dants when choosing against whom to seek the death penalty. The study reflects that the State s Attorney will seek the death penalty 83% of the time when the defendant is black and the victim is white, but will seek the death penalty only 60% of the time with respect to all other racial comb inations . These two statistical findings, alone, trigger the mandate of Armstrong. While they do not mean that selective prosecution definitively has been established, m erely that discovery is warranted, I do not see how, in light of the immense body of evidence presen ted by D r. Patern oster, the thresho ld has n ot been satisfied . This case is unlike Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), a case cited by the majority, __ Md. at __, __ A.2d at __ [slip op. at 66]. That case involved th e merits of the selective prosecution claim tha t the defen dant brou ght against th e State. The Ninth Circuit Court of Appea ls rejected the claim, concluding that the State had produced evidence that adequately rebutted it. 414 F.3d at 1128-29. It explained: -36- While we think that Belmontes' statistics provide a strong showing of intentional discrimination, we need n ot decide whethe r, in a discriminatory charging case, statistics stan ding alone can make out a prima facie case. Assuming arguendo that they can and that Belmo ntes has made ou t a prima facie case, here the State has provided evidence that is sufficient to overcome that showing. In his deposition, the prosecutor stated that when he decided to pursue a death sentence against Belmontes, he had reason to believe that prior to the McConnell murder Belmontes had shot and killed Jerry Howard. In short, the prosecu tor asserted th at he pursued a death penalty against Belmontes, not because of McCon nell's death alone, but because he believed that Belmontes had actually committed more than one murder. Moreover, the evidence in the record is sufficient to provide a good faith basis for such belief. Thus, there appears to be a legitimate, race-neutra l reason fo r a prosecu tor to seek a death sentence in this particular case, and therefore sufficient evidence to rebut the inference of discrimination raised by Belmontes' statis tical stud y. More important, Belmontes does not challenge the state's assertion that the prosec utor's ex planatio n is suff icient to r ebut his prima f acie cas e. Id. That case, in short, is inapposite a nd, if anything seems to su pport the thre shold showing required in this case. In any event, I reiterate, the merits of the selective prosecution claim are not yet on the table; this is a threshold inquiry into whether discovery is warranted. I believe that Evans has satisfied the burden. D. Evans, in No. 122, contests two items involving the State s Divisio n of Correction (D.O.C.), the department that carries out lethal injections. Since I do not disagree with the majority s disposition of the regulation issue, I need only address the issue as to which I dissented in Oken v . State, 381 M d. 580, 851 Md. 53 8 (2004), E vans con tention that the D.O.C. protocols are inconsistent with Maryland Code (1999 , 2003 C um. Su pp., 2005 S upp.) -37- § 3-90 5 of the Correc tional S ervices Article. In Oken v . State, 381 M d. 580, 851 Md. 53 8, this Cour t, in a per curiam order, denied Oken s Motion for Stay of Warrant of Execution an d Suppo rting Exhib its, rejecting his challenge to the meth od of exe cution the D ivision of C orrection inte nded use in putting him to death. He had argued that that method violated § 3-905 of the Correctional Services Article, a nd con stituted c ruel and unusu al punis hmen t. The majority concludes that in the case sub judice, like in Oken, the Execution Operations Manual (EOM), which governs the aspects in which a death sentence by lethal injection is implemented, is not inconsistent with § 3-905. __ Md. at __, __ A.2d at __ [slip op. at 84]. Maryland § 3-905 provides: (a) The manner of inflicting th e punishm ent of dea th shall be the continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combin ation with a chemical p aralytic agent until a licensed physician pronounces death according to accepted standards of medical practice. (b) (1) The administration of the lethal s ubstances required by this section is not the practice of medicine. (2) Notwithstanding any other law, a pharmacist or pharmaceutical supplier m ay dispense d rugs, witho ut a prescription, to the Co mmissio ner o r the Com miss ione r's design ee to ca rry out this s ection. The statute clearly requires the D.O.C. to use two substances, a barbiturate or similar -38- drug, and a c hemic al paralytic agent. It also describes the manner of inflicting the p enalty of death, how they are to be used in combination: continuous intraven ous ad ministra tion, in com bination , until dea th is pron ounce d. The metho d curre ntly empl oyed by the D.O.C . is not at all consisten t with this statutory requirement. It involves the use of three different chemicals - two syringes of sodium pentothal, a sedative, and one syringe each of both pancuronium bromide and potassium chloride, both lethal agents. The process as described by the majority, __ Md. at __, __ A.2d at __ [slip op. at 77], clearly describes the use of two bursts of the barbiturate, and two chem ical paralytic agen ts. This signific ant departu re from w hat the statute authorizes disturbs me. As I stated in Oken, 381 M d. at 582 , 851 A .2d at 53 9 (Bell, C .J., dissenti ng), Continuous intravenous admin istration of a quick acting barbitura te, in combination with a paralytic agent, is, I submit, vastly different from the intravenous administration, successively, of a barbiturate, a paralytic agent and potassium chloride, each discrete administration being separated by a saline flushin g of the line. It seems clear to me that the statutory langua ge is clear an d unamb iguous. Th is is not, as the majority characterizes, an issue of statutory construction, __ Md. at __, __ A.2d at __ [slip op. at 79]. We ve held, most recently in Kilmo n v. State, that [i]f the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as written . . . . 394 Md. 168, 172, 905 A.2d 306, 308 (2006). See also Chow v. State, 393 Md. 431, 443, 903 A.2d 388, 395 (2006), Mackey v. -39- Compass Marketing, Inc., 391 M d. 117, 1 41, 892 A.2d 4 79, 493 (2006 ), Collins v. State, 383 Md. 6 84, 689 , 861 A .2d 727 , 730 (2 004). The majority states that beca use the L egislatur e did not s ay one chemical p aralytic agent, when it clearly could have done so, this renders the actual meaning of the words an and a ambiguous, and thus, an exploration of legislative intent is required.11 The statute is so clear, no legislative digging is necessary. Indeed, even if there were ambiguities, the benefit of any ambiguity would be given to the defendant. As I explained in Oken, In any event, this statute is highly punitive, indeed, given the intended re sult of its impleme ntation, it could not be more so . As a result, even if it were ambiguous, the rule of lenity wou ld apply, that is, the b enefit of the am biguity would be required to be given to the defendant. 381 M d. at 582 -83, 85 1 A.2d at 539, citing Melton, 379 Md. at 488-89, 842 A.2d at 753. It is of little consequence that other States with similar statutes employ the same three chemicals with no legal challenge; we should only be concerned with Maryland law. The 11 The ma jority s discussion of a an d an as in definite articles , as oppose d to the, which they claim is a definite article, is without merit. While it is true that if I ask someone to give me the book as opposed to a book, the use of the word the necessarily imp lies a specific o bject, and the use of the w ord a m ay imply an indef inite object, this does not change that a refers to something singular. While the majority has cited cases w hich state that th e article a ca n be interpre ted as mo re than one in certain contexts, it is indeed the context which is most relevant. Under the plain language of § 3905, the w ords an and a c annot be u nderstood to refer to an ything excep t for single items. Assuming the ambiguity, the question remains, how does one explain that which is not ambig uous, the m anner of in flicting death , the continuo us injection, as opposed to short bursts. There certainly is nothing am biguous about that. Th e majority s strained amb iguity ap proach serves to comp letely vary the statute. -40- statute authorizes two chem icals, and three are used. This clearly violates § 3-905. The majority claims that the Legislature was well aware that, if it enacted the statute authorizing lethal injection, the statute would be implemented by the thre e-drug mixture . . . . There is no evidence that any member of the Legislature questioned whether the approach described by the Commissioner would be cons istent with the statute. __ M d. at __, __ A .2d at __ [slip op. at 84]. As I stated in Oken, 381 Md. at 583 , 851 A.2d at 540 (Bell, C.J., dissenting): ...[F]or me, the critical question is whether the proced ure comp orts with, is consistent with, or is the procedure contemplated by, the statute. Because I conclu de that it is not and , in fact, is violativ e of the statute, I d issent. Judge G reene auth orizes me to state he joins in Parts C an d D only of this dissent. -41-
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