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DELEGATE BOTHE: I am asking you
the leave to ask him several questions.
DELEGATE JAMES (presiding) : Dele-
gate Willoner's time has expired. After we
hear the debate, maybe we can have a
question period. It seems to the Chair that
Delegate Willoner's time has expired.
Let me check with the Parliamentarian
on this.
Proceed with the questions. I think that
is the simplest thing to do.
Delegate Bothe.
DELEGATE BOTHE: Delegate Willo-
ner, you have indicated that the recommen-
dation for deletion is unsupported by any
evidence, and that we may by failing to
continue the provision be making major
changes in the law and procedure of the
State. I wonder if you could state specifi-
cally what kinds of changes we could be
making, keeping in mind that forty-eight
states of the Union would be operating
under the same system as we will be if this
section is deleted?
DELEGATE JAMES (presiding) : Does
Delegate Willoner understand the question?
DELEGATE WILLONER: I understand
the question. However, there is a premise
in the question that I do not agree with,
and that is that the forty-eight states in
the Union are operating without this provi-
sion. I do not know how forty-eight states
in the Union are operating without this
provision. Perhaps they have managed,
when they have eliminated this rule, to
have other rules take its place that would
have solved the questions I raised.
I have raised these questions to Delegate
Bothe and Delegate Moser, and the ques-
tion was: Where the evidence clearly in-
dicated first degree murder as in the Green
case, or in Sharpe and Hanson v. the
United States, is the defendant entitled to
instruction on second degree murder and
manslaughter? They are not sure.
Secondly, would the Maryland Court
reach the same result that the Supreme
Court did in the United States v. Green
case? In that case, in a felony murder
situation, the defendant was found not
guilty of a first degree murder in a felony
murder but guilty of a second degree mur-
der. The Court held that the second degree
murder conviction could not stand, and
when they tried the defendant again for
first degree murder, jeopardy attached.
DELEGATE BOTHE: Is it your opin-
ion, Delegate Willoner, that if this provi-
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sion were removed from the state constitu-
tion, juries would not be free to render
verdicts as they saw fit based on the
evidence?
DELEGATE WILLONER: Under our
law, the jury has the power to disregard
the court's instructions. No one in this
body will deny that a man should only be
found guilty by the jury and not by the
directed verdict of a judge or should have
a directed verdict against him.
The judge does not have the power to
direct a jury to find him guilty under the
present Constitution. I will admit I have
not done a complete and thorough research
job, but I think the burden is on those who
would make a change to do this research
job.
It would appear to me this change would
raise a problem. If the jury did come in
with a verdict that was inconsistent with
the facts, could the judge, or the court
reverse the decision? For example, if it
were robbery and there were not any is-
sues, and they came in with assault with
intent to rob, where there was virtually
uncontradicted evidence in that, could the
verdict stand? I do not know the answer
to that. It appeared that it could not stand
from the few cases I looked at.
DELEGATE BOTHE: I know that you
personally have been both a prosecutor and
defense counsel. Is it your personal opinion
that juries should be able to decide what
the applicable law is?
DELEGATE JAMES (presiding) : Dele-
gate Willoner.
DELEGATE WILLONER: There are
times when I think that is true. For ex-
ample, to establish first degree murder in
Maryland you must prove there was some
premeditation. We have a rather poor defi-
nition of premeditated murder in Mary-
land. The courts have developed it. I can
certainly say from the debates we have had
today, that maybe judges and lawyers are
not so smart about the law after all. But
we have this definition of premeditation in
Maryland. It can be described roughly as
the deliberation it takes to aim a pistol for
the second shot. Evidence of this sort can
establish first degree murder, but it is very
difficult to get a jury to convict on this
kind of evidence unless it is a police officer
or some person like that who is shot. The
Court would instruct that to find the de-
fendant guilty, there must be evidence of
premeditation and if the jury found that
the defendant took a second shot, the de-
liberation it took to fire the pistol the
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