State prosecutors have decided not to seek the death penalty in the case against David Lee Miller, the man accused of killing pregnant Charles Village Pub waitress Elizabeth Walters, due to a legal technicality in the state's new fetal homicide law.
Miller, 25, faces two counts of first-degree murder in the shooting last June of Walters, 24, who was seven months pregnant.
Prosecutors used Maryland's relatively new fetal homicide law to indict Miller on two counts of first-degree murder because Walters's seven-month-old fetus was deemed "viable" - able to survive outside the womb - by a state medical examiner.
Under the state's death penalty statutes, offenders who commit two first-degree murders in the same incident are eligible for capital punishment. The description of Miller's alleged offenses seems to imply that it would meet these stipulations.
However, "The statutory language based on the murder of the viable fetus does not allow the prosecution of this matter as a death penalty case," said Allan Webster, the assistant state's attorney, who is working on Miller's case with Baltimore County State's Attorney Scott Shellenberger.
"It follows that if Miller is convicted of both crimes, he will not have killed two persons. I understand and agree with the prosecutor's conclusion that the killing of two persons is required to make one eligible for the death penalty," said Michael Milleman, a professor of public interest law at the University of Maryland's law school.
This case therefore demonstrates that legally, there can be a distinction between being a "person" and being the victim of a homicide.
The state intends to seek two sentences of life without possibility of parole instead.
The State's Attorney's Office was unable to comment further on other aspects of the case prior to trial.
The state's fetal homicide law states: "Nothing in this [law] shall be construed to confer personhood or any rights on the fetus."
The purpose of the law is very specific: to make it a crime to kill a viable fetus. Before the law was enacted, the death of
a late-term fetus as a result of the assault or murder of a pregnant woman could not be legally recognized as a homicide. The legislation was enacted in the wake of the Unborn Victims of Violence Act, a bill passed by Congress following the well-publicized case of Laci Peterson in California. It was not meant to carry legal and political implications beyond making it a crime to cause the death of a viable fetus.
"Those who favor the right to choose and support abortion were concerned that their opponents would use the new crime of fetal homicide in their anti-abortion arguments, and therefore added this caveat," said Milleman. Miller's trial is slated to begin on March 24. It was originally set to begin in early January, but his public defender and lead counsel, Alvin Alston, successfully petitioned for a postponement due to a heavy case load that would have left him ill-prepared to begin building a defense.
Walters was shot while sitting in a parked car with her friend Heather Lowe outside of a shopping mall in Parkville, Md., just outside the Baltimore City limits. Lowe was also shot, suffering extensive injuries to her face.
State's evidence against Miller includes three witnesses so far: Lowe, Ronald Underwood and Craig Grey. Underwood was not present at the scene of the crime but told police that Miller picked him up shortly after it occurred and might therefore provide testimony as to the defendant's state of mind after Walters's killing. The weapon traced back to the murder was retrieved from Grey, who is Miller's cousin. The state's theory is that Miller gave the gun to his cousin to hide. Miller has denied giving it to Grey.
Surveillance tapes capturing the event will also be introduced into evidence. Additionally, Miller's fingerprints were found on the outside of the car in which Walters and Lowe were shot. Circumstantial evidence also exists against Miller: In the weeks leading up to the murder, it was discovered that Miller visited a practice shooting range on more than one occasion.
Lowe identified Miller to the police almost immediately, and an extensive manhunt was launched. Miller surrendered himself to the police the next day. However, he gave no confession and made no incriminating statements to the police.
"He has not admitted to anything. He wants to vigorously fight this case," Alston said.
Alston compared the scale of the proceedings to that of a capital case, although it is not a case involving the death penalty. Another public defender, Sherry Bailey, has been assigned to assist Alston in going through all of the State's evidence and developing defense strategies.
"A case of this magnitude, they normally assign two [lawyers] because there's so much work to be done on it, and it's better to have two in a case like this. This is almost as close to a capital case as you're going to get," Alston said.
Miller, who is married, had reportedly fathered Walters's baby after becoming romantically involved with her. He is being held at the Baltimore County Detention Center without bail.
The presiding judge is the Honorable Dana Levitz, who Alston describes as "a good judge, a fair judge, a 'Judge's Judge,'" one who "knows the law" and "gives everybody a fair shake in court. That's all you can ask for."
