Oken appeals death sentence again in '87 case

Sun Staff

Lawyers for one of Maryland's most notorious death row inmates were once again before the Court of Appeals yesterday, this time arguing that a Baltimore County judge used an unconstitutional decision-making process when he sentenced Steven Oken to death in 1991.

It was the fourth time the state's highest court has heard an appeal from Oken, who was convicted 12 years ago of raping and murdering 20-year-old Dawn Marie Garvin of White Marsh.

As has become typical in these proceedings, the courtroom was packed with death penalty opponents, mournful family members and at least one person holding a sign that said Oken should die.

The legal issue yesterday was whether a recent Supreme Court decision in an Arizona case means that Maryland judges and juries have been using the wrong standard of proof in deciding whether someone should be sentenced to death.

But for many of the onlookers, the court proceedings were about the emotional basics of the capital punishment debate: life and death and justice.

"My best friend was murdered by this serial killer, Steven Oken," said Vicky McNulty on the steps of the Court of Appeals building, holding a homemade sign urging Oken's execution. "He murdered three people, not one. It's time for the execution."

After Oken tortured and executed Garvin at her White Marsh home Nov. 2, 1987, he murdered his sister-in-law, Patricia Hirt, and then drove to Kittery, Maine, where he killed motel clerk Lori Ward.

McNulty was a close friend of Garvin, and had gone to a Halloween masquerade with her the Saturday before Garvin's murder.

A few yards below McNulty, representatives from Amnesty International and the Quixote Center's Equal Justice USA, an anti-death penalty advocacy group, held a news conference in support of Oken's position.

"We believe the issue before the court today is about jurors," said Jane Henderson, co-director of the Quixote Center. "This is about whether jurors should only be 51 percent sure about imposing a death sentence."

Behind her stood four volunteers, each holding a sign questioning the death penalty. They later passed out an American Civil Liberties Union news release in support of Oken's appeal.

Near the courthouse doors stood Davida Oken, Oken's mother.

"We just pray that the court sees the need for change," she said after the court proceeding. "It's a life you're dealing with."

Oken has been called the "poster boy" for Maryland's death penalty. There is no dispute about his guilt. And his crimes, which a psychiatrist at his trial described as "sexual sadism," are considered chilling.

"The people of Maryland have decided that the state will have capital punishment, and that decision is theirs to make," wrote Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation, in a brief. "Given that decision, this case is beyond question the kind of case that warrants the highest punishment the law allows."

Fred W. Bennett, Oken's lawyer, said there is no question Oken will die in prison or by lethal injection. Even if he wins his appeal, is resentenced and does not receive the death penalty, Oken will return to Maine where he was sentenced to life without parole for Ward's murder, Bennett said.

But the Court of Appeal's decision in Oken's case could have widespread implications. This year, the high court has heard two other appeals based on the same legal issue -- the impact of Ring vs. Arizona.

A decision in Oken's favor could remove all 12 people from Maryland's death row, and could entitle them to new sentencing hearings.

"It's probably one of the most important cases before the court in years," Bennett said.

For a convicted murderer to receive the death penalty in Maryland, prosecutors must prove, beyond a reasonable doubt, that the defendant is the person who directly caused someone's death.

Prosecutors must also prove beyond a reasonable doubt that there was an "aggravating circumstance" with the killing, such as a robbery or rape. Finally, prosecutors must show that these aggravating circumstances outweigh any mitigating factors, such as the defendant's young age, lack of a criminal record or difficult childhood.

But the state only needs to prove this last factor by a "preponderance of the evidence," the lowest burden of proof.

Defense attorneys said that using the low burden of proof is unconstitutional, and that prosecutors should have to prove this beyond a reasonable doubt -- the same standard used in deciding whether someone is guilty of a crime.

In the past, the Court of Appeals has rejected the defense argument.

Prosecutors said there is no reason for the court to change its position now. But defense attorneys said the Ring decision has altered the playing field.

Although on its face, Ring dealt primarily with whether judges or juries should sentence someone to death in Arizona, defense attorneys around the country have said the decision has broad impact.

In court yesterday, the judges appeared to take that claim seriously. They peppered assistant attorney general Ann N. Bosse with questions, while allowing Bennett to make his presentation largely unchallenged.

But lawyers cautioned that the high court is unpredictable. And there is no schedule for when it must return a decision.

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