There may be no evidence of overt racism in the decision to seek death for convicted killer Wesley Eugene Baker, but a University of Maryland study that found racial and geographic disparities in the state's application of the death penalty bolsters the argument that his death sentence should be overturned, Baker's attorney argued before Maryland's highest court yesterday.
"Despite a generation of progressiveness, we still have not gotten over the pervasive influence of race," lawyer Gary W. Christopher told the Court of Appeals.
But an attorney for the state said the January 2003 study by Professor Raymond Paternoster shows nothing more than differences in the way top prosecutors in Baltimore City and various counties choose to prosecute cases -- decisions that she said are often influenced by economics and the views of the electorate, not by race.
"Much of what the argument is by this capital defendant is more anti-death-penalty rhetoric as opposed to law," said Assistant Attorney General Annabelle L. Lisic.
The lawyers spent about an hour yesterday in a packed Court of Appeals hearing room arguing the merits of the Paternoster study and whether its findings are enough to render Baker's death sentence illegal -- or to at least merit a lower court hearing on the matter.
It was the first time the court had heard arguments in an appeal based on the statistical study, and it brought out a standing-room-only crowd.
Lawyers, death penalty opponents, at least one representative from the National Association for the Advancement of Colored People and the family of a pair of murder victims filled the hearing room and offered divergent views on the importance of it all.
For those seeking to abolish capital punishment in Maryland -- or at least to save the life of a client on death row -- the study is the most solid evidence to date of what they say is a biased system weighted against defendants who kill white victims.
"Yes it is damn well a racial issue," said Bonnita Spikes, an organizer for Maryland Citizens Against State Executions. "I lived in Southeast D.C. and people are murdered every other day, yet when a white girl is missing in Aruba, they call in the feds."
But for Phyllis Bricker, appeals based on the study are just another stall tactic in the cycle of death penalty appeals. Bricker's elderly parents, Rose and Irvin Bronstein, were stabbed to death in their Pimlico home 22 years ago. The man convicted of killing the couple, John Booth-El, is one of eight defendants on Maryland's death row and one of five who has cited the Paternoster study in an attempt to overturn his sentence.
"Because he's black and he killed a white couple, that's supposed to excuse him from being executed," Bricker, 74, said, her voice shaking. "Do you think it makes any difference to victims what color a person is who kills someone they love?"
It was unclear yesterday when the court would issue a decision in Baker's appeal.
The seven judges on the Court of Appeals reserved their sharpest questions yesterday for Baker's lawyer, Christopher, asking him, for instance, whether he could show actual evidence of bias in the case, and why it took so long for Baker to file an appeal alleging racial discrimination.
Baker, 47, who is black, was convicted of murder and sentenced to death in 1992 for the fatal shooting of 49-year-old Jane Tyson, who was white, on a Westview Mall parking lot in southwestern Baltimore County.
Past studies of Maryland's death penalty system pointed to "some potential problems," but none has been as comprehensive as Paternoster's, Christopher said.
Unlike three other death row inmates who have been granted Circuit Court hearings on their Paternoster-based claims, Baker's request was denied by a Circuit Court judge last year, Christopher said. It would be unjust if Baker was executed and "his claims were vindicated" through a hearing granted to another inmate, he said.
But Lisic said the lower court was correct in denying the hearing in a case in which no overt racism has been shown.
Baltimore County Deputy State's Attorney Stephen Bailey, who attended yesterday's arguments, said Baker is raising race as one of his "last straws."
"I don't think any rational, reasonable person could look at the facts of Wesley Baker's case and conclude we sought the death penalty because his skin was black and Jane Tyson's was white," he said.
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