While citizen attitudes about the death penalty wax and wane, cases like that of the Beltway Snipers...tend to harden the wax. The Politics of Prosecution:
The Scum Also Rises

For 22 tense and horrendous days, the multistate region adjoining this nation's capital was terrorized by the murders of 10 citizens and the serious wounding of three, victims chosen at random, regarded only as targets of opportunity. While most citizens will wish simply to move on, we should not, for in the totality of the tale is much to be probed and questioned, albeit at a more considered and consequential level than talking-head television.

The suspects were apprehended within 22 days, a record for serial murders, but that accomplishment masks the mistakes and lost opportunities before and during the weeks of terror. What INS, ATF, FBI and other law enforcement procedures broke down? Why? How can they be fixed? Will anyone bother to try, and if they do, will a hidebound system defeat them? Was the motive radical Islam-inspired, homegrown terrorism, extortion, an acting out of "sniper culture," or all of the above? Regardless of outcome and recognizing that it is acceptable standard practice for police authorities to withhold information, is it permissible, ever, for authorities to manipulate the media and lie to people at risk? To what extent and in what instances did the media impede or aid the investigation?

For all the emerging incidents of investigation flaws, all the criticisms of the media, all the what ifs that are posed, those issues, which cannot yet be fully and objectively assessed, pale beside a current issue that is as clear as a mountain spring, as disgusting as a backed up sewer in a heat wave: the spectacle of politicians publicly jostling for the kill.

Given constitutional constraints against cruel and unusual punishment, the death penalty, applied against commensurate crimes, is the ultimate punishment afforded the state. While citizen attitudes about the death penalty wax and wane, cases like that of the Beltway Snipers (who seem to have ramped up to their concentrated reign of terror with at least several prior murders) tend to harden the wax, at least temporarily.

In this case, there is virtually no question regarding the strength of the evidence, none yet regarding appropriate police behavior. There is none from anyone who wouldn't have taken Hitler home to rehabilitate him that availability of the death penalty is the most important consideration in the jurisdictional turf war over prosecution.

While politicians seeking relevance and politician prosecutors busily shoving each other out of camera range may be more fascinating than watching an evidence truck take a tree stump into custody, the rare public display of such maneuvering engenders little respect for anyone involved.

Most egregious is the unctuous, shapeshifting Governor of Maryland, Parris Glendening. Having declared a moratorium on executions when that was trendy, he rushed before the cameras to assure us the moratorium would not apply in this case. Since he will not be governor when the issue presents itself, we had been losing sleep awaiting that gratuitous pronouncement. Glendening does have a significant stake in having Lieutenant Governor Kathleen Kennedy Townsend succeed him, so his positioning was also contrived to help her. Townsend, who has never ventured a thought not originated by ultra-liberal interest groups, appears on no one's list of law and order politicians.

Next comes Douglas Gansler, the baby-faced Montgomery County, Maryland, state's attorney, elected as a result of his predecessor's self-destruction in a sex scandal with another prosecutor. Gansler has a strong reputation for his passionate belief in the public's right to know everything he says and does. It should have surprised no one, then, that while the U.S. Department of Justice was appropriately trying to convene a private conference to address the jurisdictional issues of the case, Gansler was already before the cameras announcing indictments and making his pitch for control.

Gansler argues a "most victims, best evidence" case for jurisdiction, but in addition to his career-building grab, he has a fundamental problem. Maryland prohibits death penalty application to a juvenile, which one of the defendants may be. Gansler is thus forced to mumble unconvincingly about "appropriate punishment."

The role of Thomas DiBiagio, United States Attorney for Maryland, is currently unclear, but clouded by allegations. Unnamed law enforcement sources have told The New York Times that interrogation of one of the suspects, which may have produced a confession if allowed to proceed, was interrupted by DiBiagio's demands for immediate federal custody. Now, charges are flying every which way, including between Gansler and DiBiagio, and there is more mystery regarding the interaction of government authorities than about the original crimes themselves.

When the authorities finally get around to conducting themselves with the decorum and responsibility required by their offices, the bottom line of all this is fairly straightforward. A first-year litigator in any of the competing jurisdictions couldn't lose the case of the Beltway Snipers. Plea bargains should be off the table, even though the expense of any high-profile criminal trial is a tremendous burden on taxpayers. The decision, therefore, hinges on which jurisdiction can deliver the swiftest justice to both defendants. That's Virginia, where they start taking orders for Last Meal as the jury is coming in, and have served enough of them over the years to have established an orderly, constitutionally sound process.

October 31, 2002
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