News-Letter

Media Credit: John Prendergass Elizabeth Walters was well-loved by Hopkins students who frequented CVP.

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.

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