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Prosecutors won't be called to testify on death penalty

Setback for prisoner challenging new rules on capital punishment

By Andrea F. Siegel

Baltimore Sun reporter

October 20, 2009

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In a setback to a prisoner challenging the state's new death penalty curbs, Maryland's 24 state's attorneys will not be called to testify how they decide whether to seek capital punishment in murder cases.

Lawyers for Lee Edward Stephens, 30, one of two inmates who face the possibility of execution if convicted of the 2006 killing of a state prison correctional officer at the now-closed Maryland Correctional Institute in Jessup, said they were disappointed with a judge's ruling on Monday.

They argued that the changes enacted this year by the General Assembly compound "the unevenness" of the law.

The disparity among counties is a well-known argument the defense had hoped to revive with the prosecutors' testimony.

Prosecutors around Maryland vary in their seeking the death penalty. Studies have documented that those in Baltimore County have pursued it in all eligible cases and those in Baltimore City rarely have.

Anne Arundel County Circuit Judge Paul A. Hackner, who is expected to rule in coming weeks on the constitutionality of the changed law, said he will consider the disparity argument, though it has been shot down by the courts.

The state's highest court has ruled that a defendant has to show that the law discriminated against him, not others, Hackner said.

"The only case that matters is Mr. Stephens' case. Everything else is for the legislature to consider," he said.

"We think the new statute narrows down the class of people that are even eligible for death, but not in a wise way," Michael E. Lawlor, one of Stephens' two lawyers, said after the hearing.

The law was amended this year to limit capital punishment to murder cases where there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

But prosecutors were pleased. They successfully argued that a week of explanations of how death penalty decisions are made elsewhere is irrelevant to the capital case against Stephens in an Anne Arundel County courtroom. Prosecutors from Montgomery and Prince George's counties joined Anne Arundel County Assistant State's Attorney Sandra Howell in saying the testimony would be a waste of time.

Stephens, in an orange prison jumpsuit, sat quietly in court, occasionally speaking with one of his lawyers. So few outsiders attended the hearing that at some points, the room held mostly security officials.

Stephens and co-defendant Lamar C. Harris, 39, are charged with the July 25, 2006, fatal stabbing of Correctional Officer David McGuinn, 42, who was known as a strict, by-the-book officer. Built in 1878, the Jessup facility was closed in 2007.

Both prisoners were teenagers when they committed the crimes that sent them there for life.

Stephens' trial, which is set to begin in February, is expected to last 10 weeks, and there will be at least one more hearing before that.

No trial date has been set for Harris.