Stephens sentencing could test Maryland death penalty law

This week's sentencing of the prisoner convicted of killing a correctional officer will be the first case in Maryland in which prosecutors must establish a DNA "link" in order to pursue a death sentence, and it could become the first real test for the state's new capital punishment law.

The Anne Arundel County jury — or judge, depending on who does the sentencing — will have to decide if prosecution evidence that the victim's blood was on the defendant's clothes is conclusive enough to consider putting Lee Edward "Shy" Stephens to death.

Stephens, 32, was convicted Thursday of first-degree murder in the fatal stabbing of Cpl. David McGuinn at the now-closed House of Correction. His sentencing is scheduled to begin Monday.

The hearing will be watched closely in Maryland, where Gov. Martin O'Malley and the General Assembly moved in 2009 to limit the death penalty to first-degree murder cases in which there is biological or DNA evidence, a video recording of the crime or a videotaped confession.

"To my knowledge, this is the first one that is testing the DNA section of the statute. Anytime you are the first one you are in uncharted waters,' said Scott D. Shellenberger, state's attorney for Baltimore County.

His office recently sought the death penalty for Walter P. Bishop Jr., who was convicted in a murder-for-hire plot, but that effort was based on a confession. The jury sentenced Bishop to life in prison.

The big question for the judge or jury in the Stephens case, experts say, will be whether the DNA evidence "links the defendant to the act of murder." They'll also have to decide what that wording means.

"This is a unique provision in death penalty statutes across the country, so it has never been interpreted by a Maryland court or any other court," said Michael A. Millemann, a University of Maryland law professor who has been involved in capital defense work. "It is likely in this case that if the jury returns a death penalty, the Maryland Court of Appeals will have to interpret this language."

All death sentences are automatically appealed to the state's highest court.

McGuinn's blood was on Stephens' clothing, according to testimony for the prosecution during the trial. But the defense contended that the victim's blood was spread over a large area, including other cells, and claimed that evidence was improperly handled and contaminated.

McGuinn, 42, was ambushed by two prisoners who emerged from cells as he was doing the 10 p.m. prisoner count on July 25, 2006, on a tier of the Maryland House of Correction, prosecutors told jurors during the trial.

In addition to Stephens, Lamar (also spelled Lamarr) Cornelius "Junebug" Harris, 41, is also charged, but his trial date has not been set, amid questions about whether he is mentally competent to stand trial.

One issue the defense may raise is whether the law refers to the victim's DNA or the defendant's.

A major concern with the death penalty has been over how the state can make sure it never executes an innocent person. During chaotic hearings on proposed restrictions to the death penalty law, legislators heard examples of DNA evidence showing that prisoners did not commit the crimes of which they'd been convicted — for example, another person's DNA might be found at the crime scene.

In this case, however, testimony during the trial said the victim's DNA found on the defendant, not the other way around.

State Sen. Bobby A. Zirkin, a Baltimore County Democrat who drafted the 2009 changes to the law, said the law doesn't specify the victim's or defendant's DNA.

"The application [of the law] in this case is appropriate," he said.

There are other questions about the law that this case may illuminate, Milleman said.

"How closely must the DNA evidence link the defendant to the act of murder? What burden of proof must the state meet?" he asked.

The law doesn't say.

The 2009 changes add to already complex death penalty issues and the sentencing process. In Maryland, only in death penalty cases can the jury determine the sentence.

Stephens must say Monday whether he wants to be sentenced by the jury that took nearly six days to convict him or by Anne Arundel Circuit Judge Paul A. Hackner, who presided over the trial. Whichever he chooses, the process remains the same.

Meanwhile, Hackner's gag order on all trial participants remains in effect. Nobody involved with the trial is allowed to comment on the proceedings.

If the jury — or judge — finds that the DNA evidence shows Stephens is eligible for a death sentence, a second part of the sentencing will begin. The various circumstances the jury must consider when deciding whether to impose the death penalty are spelled out in state law, and legislators did not change that aspect of the law three years ago.

"What the jury does is it balances the aggravating circumstances and mitigating factors," said Shellenberger.

That Stephens was in prison when McGuinn was slain is an aggravating factor. He was serving a sentence of life plus 15 years after being convicted of murder in the April 1997 killing of a man outside a Salisbury nightclub. Stephens was 17 at the time.

The list of mitigating factors includes whether the defendant's actions were the immediate cause of death and whether he acted under duress. It also has a catch-all provision, where jurors can consider such testimony as whether the defendant endured a miserable childhood.

The sentencing hearing could continue into the following week.

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