- The Washington Times - Tuesday, December 7, 2004

ANNAPOLIS (AP) — A judge who said she would not allow relatives of two slaying victims to make impact statements before sentencing reversed her decision yesterday.

Anne Arundel County Circuit Judge Pamela North’s move came after the relatives asked the state Court of Special Appeals to block her from deciding whether convicted murderer Kenneth Abend should live or die until after they have had a chance to make the statement in court. The statements could be made in court this week, the Baltimore Sun reported.

Presiding over the penalty phase of Abend’s trial, Anne Arundel County Circuit Judge North angered prosecutors by saying Friday that she would not hear from the family until after she has decided on a sentence.

Judge North had ruled that victim impact, in this case, is not among the “aggravating” or “mitigating” factors the law says must be considered in deciding whether Abend should die for the January 2002 slayings of his landlady, Laverne M. Browning, and her daughter-in-law, Tamie C. Browning.

Debbie and Randy Browning — who were to have been the first persons to testify in the weeklong proceeding — moved Monday to challenge the judge’s ruling.

The Maryland Crime Victims’ Resource Center, Inc., acting on their behalf, asked the state’s Court of Special Appeals to allow an immediate appeal and to halt the sentencing hearing until the appeal is decided.

Without such a halt, the judge “will already have made a decision on death” by the time the relatives have their say, Russell P. Butler, executive director of the group, told the Sun. If that happens, he said, “the victims’ voices are meaningless.”

The Brownings are children of the older victim, and Randy Browning was married to the younger woman.

Experts on both sides of the capital-punishment debate say the decision to delay hearing the victims’ impact statements, while not unprecedented, was unusual.

The statements provide balance to “mitigating” factors describing hardship faced by the accused, said Michael D. Rushford, head of the California-based Criminal Justice Legal Foundation, a pro-death penalty group.

“You can’t allow all this stuff on behalf of the defendant if the victim’s survivors can’t come forward,” he said.

At the same time, “in general, bench trials are a lot more unemotional,” Mr. Rushford said. “Judges usually follow the law and just apply the statute.”

Richard C. Dieter, executive director of the Washington-based Death Penalty Information Center, which does not support capital punishment, sees problems with the victim impact statement.

“It can sway a jury solely because a family is articulate and were particularly devastated and seem to be a family that the jury identifies with, as opposed to a forgotten person whose death has no one to speak for [the victim],” he said.

“A judge can decide whether this information can be relevant, whether it can be prejudicial, whether it could be inflammatory.”

Abend decided that Judge North alone, and not a jury, should sentence him. On Friday, Judge North decided that she first will hear the arguments for executing Abend and for sparing his life — the aggravating and mitigating factors that must be considered by law. After she makes a decision, she will hear the victim-impact evidence.

“If the court does not order death, the victim-impact evidence will be used to assess the appropriate sentence,” Judge North wrote.

If she decides to impose a death sentence, the relatives still will be allowed to speak, “to allow the victims’ representatives the opportunity to be heard on the matter.”

But Anne Arundel County State’s Attorney Frank R. Weathersbee, whose office is seeking a death sentence for Abend, called Judge North’s ruling “incomprehensible” and “wrong.” He added, “certainly the victims should be heard.”

Judge North convicted Abend last month of three counts of capital murder in the Jan. 12, 2002, deaths of the two women, committing a sexual offense against Tamie Browning, and related charges.

Abend, 34, did not contest the prosecution’s description of the evidence, which included his DNA, his bloody apartment and his remarks to a friend.

Defense attorney Carroll McCabe, however, started what is expected to be a week of testimony Monday by telling Judge North that she would learn about Abend’s bizarre upbringing, his head injuries, his heavy drug use, and how he has mended during life as a prisoner and should not be put to death.

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