The man accused of fatally shooting a Towson gas station owner in a murder-for-hire scheme is due in court this week — the first trial under Maryland's revamped death penalty law, legal experts say.
And the trial of Walter P. Bishop Jr., scheduled to begin Tuesday with jury selection in Harford County Circuit Court, could eventually test Maryland's definition of a capital case, as his lawyers argue that police improperly obtained a crucial piece of evidence.
DNA or other biological evidence, a video recording that "conclusively" links the defendant to the crime or a video of a "voluntary interrogation and confession."
Prosecutors have a video recording of Bishop talking for hours to homicide detectives in an interrogation room at Baltimore County police headquarters on March 6, 2010, the day he was arrested in the slaying of William R. Porter. Bishop sat there from the afternoon into the night and, according to an investigator's report, he confessed to killing Porter at the Hess station on East Joppa Road on the morning of March 1, 2010.
But defense lawyers say police never told Bishop his words were being recorded — or the consequences that those words carried. "He was never told that by giving a videotaped confession, he was making himself eligible for the death penalty, where otherwise he would not be eligible," said Stefanie McArdle, one of his public defenders.
Bishop, who is from Essex, at first told police he was not involved in the killing, but eventually he admitted that he was. According to the investigator's report, he asked for a piece of blank paper and drew a diagram of the gas station, showing how he got a signal from Porter's wife to walk into the station that Monday morning, how he stepped into the hallway to the office and pointed a handgun at the 49-year-old Porter. He told them he closed his eyes and fired several shots.
Bishop, 29, is one of six people implicated in the killing, including Porter's wife, Karla, her sister, brother and nephew.
He told detectives that Karla Porter had paid him $300 to $400 for the killing, had promised him $9,000 more, and had asked him more than once in the weeks before if he would kill her husband, court records show. He also told police where they could find the handgun he used.
Karla Porter is scheduled to be tried next year on a charge of first-degree murder, and will also face the death penalty if convicted, said John P. Cox, one of the two assistant state's attorneys handling the Bishop trial.
Two others implicated in the killing have been convicted and two have pleaded guilty, but the death penalty does not apply in their cases, Cox said. No sentences have been handed down in those four cases.
Baltimore County State's Attorney Scott D. Shellenberger believes the Bishop case is the first death penalty trial under Maryland's new law. Byron L. Warnken, a University of Baltimore law professor who teaches and publishes on criminal law and constitutional criminal procedure, said he knows of no other death penalty cases that have come to trial since the state law was changed.
Court documents show that Shellenberger chose last year to pursue the death penalty because of an "aggravating factor" — that Bishop carried out the killing under an agreement or promise of compensation. The basis for the death penalty is the same in the Karla Porter case, Cox said.
Under the new law, though, prosecutors could not pursue the capital case without the video recording of Bishop's incriminating statements, because there was no biological or DNA evidence and no other recording that would link him to the shooting.
Judge Mickey J. Norman ruled the recording of Bishop's statement to police can be used as evidence in the trial. A Baltimore County Circuit Court judge, Norman moved with the case when it was assigned to Harford County. The defense asked for the change of venue, but argued against a move to Harford or Carroll county, saying that neither would be far enough from Baltimore County to avoid the prejudicial impact of "excessive publicity" about the case.
Defense lawyers lost that argument, as well as their attempt to bar the recording from being used in the trial. Bishop's lawyers, McArdle and Harun Shabazz, both working for the Maryland Office of the Public Defender in Baltimore City, entered 10 motions to strike the prosecutor's move to seek the death penalty, according to court records.
They argued that Maryland's execution procedures had been struck down by the courts, rendering the sentence illegal. They argued that the video confession requirement in the new law was "arbitrary and capricious" and unconstitutional. They argued on the basis of the two well-publicized reports that found flaws in Maryland's death penalty, including racial and geographic disparities, effects on families of victims and the high cost compared to cases where the punishment sought is life without parole.
Norman denied each motion.
Defense lawyers also contended in a motion that without the recording, Bishop "would not have committed capital murder" as the new law defines it. Before he talked to the police, Bishop "had not committed the 'confession' element of capital murder," they said.
The lawyers argued that the police action of drawing out Bishop's confession therefore meets the U.S. Supreme Court's definition of "entrapment" — when government officials lure people into committing crimes.
Bishop was read his Miranda rights and waived them, court records show. That meant he was giving up his right to have a lawyer present and to remain silent, and knew that his statements could be used as evidence against him.
But the impact of a recorded confession was not explained to Bishop, McArdle said in an interview. She wondered whether the revamped law meant Maryland would need "some sort of heightened Miranda standard."
The questions Bishop's lawyers are raising about the recorded confession could end up before an appeals court, said Warnken.
"If [Bishop] is convicted and given the death sentence, then this is an issue on appeal," said Warnken. Unless Maryland legislators made it clear as they were drafting the law that the suspect's knowledge of the recording was not relevant, he said that question could be "problematic for the state."
On the other hand, said David Gray, associate professor at the University of Maryland School of Law, the courts have given police wide latitude in interrogations. Police cannot lie to a suspect about the penalty for a crime, but Gray said he did not believe investigators would be legally obligated to tell a suspect the specific legal consequences of a recorded confession.
"I can't think of an argument of why the police officers would have to inform him of the purpose of their questions," said Gray, who specializes in criminal law, procedure and philosophy of law. He expects the Bishop case to end up before the Maryland Court of Appeals.
Lawyers on both sides say they expect the trial in Harford County to run three to four weeks.