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Life and death decisions

The murders they committed were strikingly similar, but their punishments are not.

Michael P. Stewart and Lawrence Borchardt Sr. were heroin addicts who, in November 1998, went out separately to hunt for drug money in quiet residential neighborhoods.

Both men murdered elderly victims in brutal home-invasion robberies - crimes that occurred just seven miles apart. One murdered a Greek immigrant who built a restaurant business, raised two daughters and doted on his grandchildren. The other killed a married couple who gave freely to charities and watched over their elderly neighbors.

Both killers also left behind evidence that helped convict them: Stewart a bloody palm print, Borchardt a handwritten IOU.

But once convicted, they received very different punishments.

Borchardt, 50, who murdered the couple in eastern Baltimore County, was sentenced to death.

Stewart, 49, who murdered the retired restaurant owner in North Baltimore, was sentenced to life without parole.

Their cases bring into focus the public debate about the fairness of Maryland's 24-year-old death penalty statute. Death penalty supporters say the most brutal murderers deserve the harshest possible sentence. Opponents say capital punishment has failed as a deterrent and is racist and arbitrary.

Amid that debate, Gov. Parris N. Glendening has ordered a halt to all executions until a University of Maryland study is completed and reviewed.

But even without a study, a review of the Stewart and Borchardt cases makes one point clear: A killer's chances of being sentenced to death depend largely on the crime's location.

In the metropolitan area, homicide cases prosecuted by Baltimore County State's Attorney Sandra A. O'Connor are much more likely to yield a death sentence than those handled by Baltimore State's Attorney Patricia C. Jessamy.

State law sets certain standards for capital punishment, and not all murders qualify. But even when a crime meets those standards, the law gives Maryland's 24 elected prosecutors wide discretion in seeking a death sentence, and Jessamy and O'Connor have starkly contrasting policies.

Jessamy says the death penalty should be reserved for particularly heinous murderers, such as serial killers. Since she took office in February 1995, there have been more than 2,100 homicides in Baltimore; she has sought the death penalty only once.

O'Connor, by contrast, seeks a death sentence in almost every murder that meets the standards set by state law. That happens about three times a year, even though the county has far fewer killings - an annual average of 31 since 1990, compared with the city's average of 310.

There are other factors at work as well. Kurt L. Schmoke, a former Baltimore mayor and prosecutor, says city prosecutors would be overwhelmed if they sought the death penalty in every eligible case. City residents, meanwhile, tend to be less trusting of police and less supportive of capital punishment - sentiments that can influence verdicts and sentences.

The result: Nine of the state's 14 inmates on death row were prosecuted by Baltimore County. Only one was prosecuted by the city, in a robbery-murder that occurred in 1983.

Death penalty supporters say Maryland's law places the decision-making authority where it should be: with local prosecutors, judges and juries.

"When someone's committed the most serious crime possible, why shouldn't a judge or jury have all the options possible? Shouldn't the people most affected by crime be the ones to decide what the punishment should be?" asks Scott Shellenberger, a former Baltimore County prosecutor who is in private practice.

But critics say the geographic imbalance shows that the law is unfair.

"How fair is that - if a murder in the county gets you the death penalty while you don't get it if you cross the county line?" asks Michael Stark, a spokesman for the Campaign to End the Death Penalty.

Glendening stressed geographic disparity - and concerns about racial discrimination - when he declared a death penalty moratorium May 9. His order came just days before the scheduled execution of Wesley Eugene Baker, who shot a woman to death during a robbery at a western Baltimore County mall in 1991.

Glendening has halted all executions while the University of Maryland study is completed and reviewed over the next year. The $225,000 state-mandated study, scheduled to be released in September, is expected to include recommendations on whether - and if so, how - the state's death statute should be changed.

And much of the ensuing debate is likely to focus on the contrast between city and county prosecutions of killers such as Stewart and Borchardt.

Murder in the city

By the fall of 1998, James Chilis had seen enough crime.

Chilis' modest one-story brick home near Loyola College had been broken into twice in recent months, a neighbor had been the victim of a home-invasion robbery, and Chilis was ready to move. With his home at 4505 Underwood Road for sale, he planned to move in a few weeks to his daughter's spacious house in Mays Chapel.

"We had been begging him to come stay with us," says Connie Tsakiris, a Parkville Middle School teacher who had renovated rooms in her home to take in her father.

Chilis arrived in Baltimore from Greece's Mani peninsula in 1947 and worked at a variety of jobs before opening the House of Neptune, a small seafood restaurant in Dundalk, the next year. He operated the restaurant at Merritt Boulevard and Holabird Avenue - now the site of the Boulevard Diner - for a quarter of a century, retiring in 1973.

By 1998, James Chilis was a 79- year-old widower who spent much of his time doting on his daughters or playing cards with friends in the Greek coffee shops around Highlandtown.

"He had lived the American dream," says Denise Chilis, his other daughter. "He came to this country with no money, worked hard, saved, and then when he finally had time to enjoy it, his dream turned into a nightmare."

On the day James Chilis was attacked, the trunk and the back seat of his black Chevy Lumina were loaded with groceries - steaks, breakfast cereals and canned goods bought at the Super Fresh store on York Road - that he was planning to drop off at his daughters' homes.

Stewart forced his way into Chilis' home on the afternoon of Nov. 6. He ripped a heavy, rotary-dial telephone from a wall and beat Chilis on the head with it. Stewart then locked the doors from the inside so he wouldn't be disturbed while ransacking the house.

When Stewart returned to his apartment, he had his girlfriend, Debra Harris, count the money - about $2,400 - that he had taken from Chilis' home.

Prosecutors used the cash to implicate Stewart, pointing out that a week before the attack, Chilis had cashed a check for $2,467 at the Maryland National Bank branch on York Road in Rodgers Forge.

Tsakiris says her father received the check as a rent payment for office space he leased out at the site of his restaurant.

"He always carried cash, that was how he paid for things," she says. "He didn't even have a credit card."

At Stewart's murder trial, Tsakiris told jurors that she knew something was wrong the day after the attack because her father was not answering his telephone.

She drove to his house Nov. 7 and met a real estate agent, and they found the doors locked. They called police, who broke through the back door and found Chilis bloodied and beaten in a first-floor hallway.

Stewart was charged after police found his bloody palm print on a wall near the telephone. He left the print when he ripped the phone from its base, prosecutors said.

Assistant State's Attorney Lawrence Doan would later tell jurors: "He has left a confession on the wall."

But authorities say Stewart - a ninth-grade dropout and a longtime heroin addict who used 10 aliases - had a history of beating the elderly in home-invasion robberies. Chilis, they say, was not Stewart's first elderly murder victim.

On June 15, 1984, retired machinist Ralph Hagenbuch, 77, died from being beaten on the head and arms during a robbery in his home. Stewart was charged with first-degree murder after police found his fingerprints on a metal cash box in Hagenbuch's home on North Linwood Avenue in Baltimore.

A city jury convicted Stewart of robbing Hagenbuch but acquitted him of murder.

Stewart was sentenced to the 20-year maximum for the robbery. He was released from the Maryland House of Correction in Jessup on March 18, 1998, after serving about two-thirds of his sentence.

Eight months later, police asked North Baltimore residents to be cautious because of a string of home-invasion robberies targeting the elderly. The robberies had begun Oct. 13, when 82-year-old Margaret Brown, who lived two houses away from Chilis, was beaten on the head, tied up with a telephone cord and stuffed in a closet.

When Stewart was arrested Nov. 10, police said he was a suspect in at least six home invasions. He was initially charged in two robberies: an attack on Maryann Provenza, 83, who was beaten unconscious when she answered her door Oct. 28 on East Cold Spring Lane; and the Nov. 1 beating of Eunice Heath, 70, and her husband, David Johnson, 79, in their St. Paul Street home.

Stewart was later charged with murder after two robbery victims died from their injuries. Chilis died at St. Joseph Medical Center on Feb. 19, 1999, more than three months after he was attacked. Heath died at a nursing facility May 3, 1999.

Police also named Stewart as a suspect in the death of Joseph Vowels, 75, who was beaten Oct. 21, 1998, in his East Biddle Street upholstery shop and spent 12 days in a coma before dying at Johns Hopkins Hospital.

Stewart was never charged in the Vowels case. But he was charged with first-degree murder in the killings of Heath and Chilis, after autopsies showed that they died from injuries suffered when they were beaten.

Still, city prosecutors declined to seek a death sentence.

Assistant State's Attorney Mark Cohen, who is head of Jessamy's homicide unit, says that although the evidence was sufficient for a conviction in the Chilis case, it may not have been strong enough to persuade a jury to impose a death sentence.

Chilis lived for three months after the attack but could never identify his assailant, Cohen says. And unlike Borchardt, Stewart never confessed, Cohen adds.

Doan, who prosecuted Stewart for the murder of Chilis, says that he dismissed the charges from the string of other robberies because Stewart could not have received a sentence longer than life without parole, even if convicted.

He says the evidence in the Chilis murder was the strongest available and offered a better chance for a conviction than that in the Heath murder case.

"After what happened with the Hagenbuch case, I was just glad that we got life without parole."

In that case, a city jury acquitted Stewart of murder after his attorney argued that Stewart was not a violent person and that although he may have broken into the house, there was insufficient evidence to prove that he attacked Hagenbuch.

Chilis' daughters have no complaints about how prosecutors handled the 1998 murder. Denise Chilis would have preferred a death sentence but understands why prosecutors did not seek it. Tsakiris says Stewart will suffer more by knowing he must spend the rest of his life behind bars.

But both are angry that Stewart was on the street after a robbery left Hagenbuch dead in 1984.

"He had done this before and was caught, that's what bothers me," Tsakiris says. "He had done this before."

Murder in the county

Joseph and Bernice Ohler, both in their 80s, were known for helping people in Rosedale, a working-class community of tidy brick homes just inside the Beltway.

They were active in the neighborhood watch program and worked to have state highway crews repair potholes in nearby streets. Each morning, Joseph Ohler, a retired electrician, would pick up newspapers dropped off in the street near his elderly neighbors' homes and place them at their doorsteps.

They quietly gave money to the Salvation Army, to the Nebraska-based Girls and Boys Town organization, and to other charities. Their wills included a $40,000 bequest to Prince of Peace Lutheran Church, where Joseph was frequently an usher at Sunday services.

The Rev. Gerry R. Rickel, pastor of Prince of Peace, used the money to set up an endowment that pays for nurses to visit homes of the elderly and for outreach programs for handicapped and underprivileged children.

"They were quiet, mild-mannered, peaceful people," Rickel says.

Brought together by death and loneliness, the Ohlers were enjoying "their second chance at life," says Bernice Ohler's brother, Clarence Pond, 83.

"They lived next door to each other, and first Bernice's husband died and then Joe's wife died, so you had a widow and a widower living next door to each other," he says.

The marriage - the second for each of them - lasted 34 years.

Perhaps because they had lived in their neighborhood for five decades, they felt safe enough to welcome a stranger who knocked on their door at 6513 Golden Ring Road.

The Ohlers gave money twice to Borchardt, who was going door to door and obtaining money by claiming that his wife needed cancer treatments. At one point, Joseph Ohler gave Borchardt a ride to a street corner near Patterson Park, supposedly so he could pick up a prescription to help with those treatments.

But Borchardt was conning the Ohlers.

It was about 8 p.m. Thanksgiving night, Nov. 26, when Borchardt and girlfriend Jeanne Sue Cascio knocked one last time on the Ohlers' door. The Ohlers had just returned from a holiday dinner at the Old Country Buffet restaurant on Joppa Road in Carney and were still dressed in their best clothes.

Borchardt and Cascio had taken heroin earlier that day, but it didn't give them the high they wanted. So they had returned to the Ohlers' home to try to get more cash.

That night, next-door neighbor Irvin Tarbart became suspicious when the lights in the Ohlers' house remained on later than usual. Joseph Ohler, 81, who was raised on an Emmitsburg farm during the Depression and kept handwritten ledgers of every penny he spent, always turned out the lights when the couple went to bed.

Just before midnight, Tarbart went next door to investigate. "I saw the lights on in the bedroom, in the hallway and in the breezeway - all these lights that normally aren't on - and I knew something was wrong. So I backed up, and that's when I saw Joe."

Tarbart had almost tripped over the eviscerated body, which was lying face up near some carefully tended rosebushes. After Tarbart called 911, police found Bernice Ohler, 82, in the rear of the house, stabbed three times.

Borchardt and Cascio were quickly charged with the killings. Two days before the murders, Borchardt had left a handwritten IOU for $60 on a table in a back hallway. Police also found Cascio's welfare card on the floor nearby.

Borchardt later confessed, telling detectives that he wanted money for heroin and stabbed the Ohlers when they refused to give him $40. He also told police that the murders had left him with a "taste" for blood and a desire to kill again.

Cascio, also a heroin addict, was convicted of first-degree murder and sentenced to life without parole after testimony showed that she struggled with Bernice Ohler and held her while Borchardt stabbed her.

Although the Ohlers had more than $3,500 hidden in drawers and coat pockets around the house, Borchardt fled with only the money from Joseph Ohler's wallet.

The total: $11.

O'Connor's approach

Baltimore County's top prosecutor has a simple philosophy in cases such as Borchardt's.

Since 1980, O'Connor has sought the death penalty in every case that meets the state's legal requirements and does not rely solely on the testimony of a co-defendant. She also makes it a policy not to talk with defense attorneys before filing notice of her intent to seek a death sentence.

"We are not lobbied," says O'Connor, who meets with her 14 supervisory prosecutors every week or two to review homicides and other cases. "I feel very strongly that [the defense lawyer] could be somebody I used to work with, and I don't want to be put in a position of people lobbying me or people accusing me of playing favorites."

O'Connor, who has been state's attorney since 1975, says her policy is the best way to ensure that the death penalty is uniformly applied. Otherwise, prosecutors are making decisions about punishment that should be up to a judge or jury.

She says her policy also nullifies the criticism made by death penalty opponents nationwide - that minorities are unfairly targeted. "This way, everyone is treated the same."

State law requires prosecutors seeking a death sentence to show that a defendant was the principal in the murder - the person who fired the fatal shot or inflicted the fatal wound. There also must be an aggravating factor with the murder, such as a police officer as victim or an accompanying robbery, kidnapping or rape.

O'Connor says her prosecutors are just as successful at securing death sentences when a defendant insists on moving the trial outside Baltimore County.

Of the nine defendants put on death row by Baltimore County prosecutors, five were convicted and sentenced by judges and juries outside the county. That includes Borchardt, who was convicted and sentenced by an Anne Arundel County jury.

Still, the decision to seek the death penalty isn't automatic, O'Connor says. If a victim's family doesn't want prosecutors to pursue the death penalty, she will honor that request.

Pond, Bernice Ohler's younger brother, says he talked with prosecutors before Borchardt's trial and heartily endorsed their decision to seek a death sentence.

"This guy deserves the death penalty," Pond says. "He was a complete bum."

Pond, a retired railroad employee who lives outside Westminster, was disgusted when police testified that Borchardt had a taste for more killings. He is convinced of Borchardt's guilt but is unsure whether he will live to see him die by lethal injection.

"I just hope I live long enough to sit outside the glass and see them give that guy the needle."

Jessamy's approach

Discussions about seeking the death penalty for Stewart began over a wooden conference table in Jessamy's second-floor office in the Clarence M. Mitchell Jr. Courthouse. She meets every couple of months with a group of seven or eight top prosecutors to review the city's homicide cases.

Using as a guide a one-page typed summary that is filled out by a prosecutor, they go over the facts of each case. They review the evidence to be used at trial and the factors that a judge or jury would consider at sentencing, such as a defendant's mental capacity, education, family history and criminal record.

If a defendant has just turned 18, was abused as a child or has few criminal convictions, that weighs against seeking a death sentence. If the defendant confessed, has a history of violence or had multiple victims, that weighs for it.

There is no formal vote in Jessamy's meetings, and the reviews can occur at a brisk pace. At a meeting in April, prosecutors spent about two hours reviewing 57 homicide cases - just over two minutes per case.

Although six of the 57 cases discussed at the April 17 session met the state's legal requirements for the death penalty, Jessamy decided not to seek a death sentence in any of them.

Jessamy thinks the death penalty should be reserved for cases where the evidence of guilt is undeniable and the crime is "particularly heinous."

"It's not automatic or rote. We give a lot of attention to it," she says.

"We look at not only the brutality of the murder, but the background of the murderer," says Cohen, of the homicide unit.

Jessamy's office prosecutes about 200 homicide cases a year; about one in five of those defendants would be eligible for a death sentence, she says.

She has sought the death penalty only once, against Joseph R. Metheny, who was convicted by separate juries in the killings of two city women.

"It should be a case that is just so shocking to the conscience that it cries out for the death penalty," Jessamy says. "Like Metheny."

Metheny was sentenced to life without parole for the 1996 murder of Kimberly Spicer. In 1998, he was sentenced to death for murdering Cathy Ann Magaziner at the Southwest Baltimore pallet company where he worked.

His death sentence was reversed in July 2000 by Maryland's highest court, which ruled that there was insufficient evidence to show that he robbed Magaziner when he murdered her. He was resentenced to life without parole last year.

Schmoke and other experts say it would be impossible for the city to implement the same death penalty policy as Baltimore County. The sheer number of city homicides and the manpower involved in prosecuting death penalty cases "would grind the system to a halt," Schmoke says.

Capital cases take more time and resources than other criminal cases, prosecutors and defense lawyers agree. Jury selection alone, which may take an hour or two in many murder trials, can take a week.

Sentencing in a capital case is a separate proceeding that often can take another week and require hiring state and defense psychiatrists who charge thousands of dollars to examine a defendant's background and testify about their conclusions.

Those sentenced to death are guaranteed appellate reviews not given to other criminal defendants, such as an automatic review by the Court of Appeals, the state's highest court.

Appeals in the state and federal courts can take more than a decade - and are a major reason why the state has not executed anyone since 1998.

Of the 14 people on Maryland's death row - housed at the Maryland Correctional Adjustment Center in Baltimore - six were convicted of murders committed in the 1980s.

The city's only death row inmate, John Marvin Booth, was convicted of a double murder committed in 1983, making his appeal one of the state's longest-running death penalty cases.

There are no estimates of what a death penalty case costs in Maryland. But when then-Gov. William Donald Schaefer created a seven-member commission to study the death penalty in 1992, his order estimated the cost for each death penalty case at $1.5 million.

But Jessamy says the expense and effort involved have nothing to do with her reluctance to seek the death penalty.

"It's not a matter of staffing or resources," she says. "All of these cases are labor-intensive; they do require a lot of work."

Two jurisdictions

O'Connor and Jessamy draw little criticism from their own constituencies for their positions on the death penalty.

That may be because of the nature of the communities they serve.

The Maryland Poll, conducted for The Sun in January, showed much less support for the death penalty in the city than in the county. Sixty percent of city residents surveyed would support a moratorium on executions; in Baltimore County, only 40 percent favored a moratorium.

The contrast reflects a difference in the localities' demographics. About 65 percent of city residents are black, compared with 20 percent in the county.

City juries are less likely to believe testimony from police officers over other witnesses, making it more difficult to obtain a first-degree murder conviction, experts say.

"In the city, on the juries, you're more likely to have jurors who've had mixed contact with the police," says Schmoke, who was state's attorney in Baltimore from 1983 to 1987.

Predominantly black juries in the city also are more reluctant to sentence someone to death than predominantly white juries in the county, Schmoke and others say.

"It just sets a different context when you ask ... to put someone to death," says Schmoke.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, says blacks oppose the death penalty in greater numbers because statistics show that a disproportionate number of blacks nationally and in Maryland are sentenced to death for killing white victims.

"You find that whites overwhelmingly support the death penalty, while blacks are more evenly divided," Dieter says.

Of the 14 inmates on Maryland's death row, nine are black. All but one of the 14 inmates were sentenced to die for killing white victims.

Borchardt is white, and Stewart is black; the murder victims were white.

Jessamy and O'Connor also face very different political landscapes.

Appointed in 1995, Jessamy ran unopposed in 1998. This year, she faces competition in the Sept. 10 Democratic primary from Councilwoman Lisa J. Stancil, a former city prosecutor, and Anton J.S. Keating, a defense attorney and former prosecutor who has practiced in the city for 35 years.

Jessamy presides over about 200 attorneys in a drug-ridden city on a $21 million budget for the coming fiscal year - which she characterizes as "shoestring."

She has been the target of repeated criticism from Mayor Martin O'Malley, and last month Stancil called for her resignation.

O'Connor is a Republican who is a formidable political force in a Democratic county. She has run unopposed since 1986 and presides over an office of 50 lawyers.

O'Connor says her death penalty policy is based not on politics but on her conviction that it's the right thing to do. "The policy came first, and the polls came later."

Death penalty opponents say the contrasting policies - and results - show that the system isn't working and that Maryland's law is unfair.

"When you look at the numbers, they jump out at you," says David P. Henninger, a former county prosecutor who represented Borchardt. "The system just makes no sense."

Now, as the state study of the death penalty nears completion, ideas for changing Maryland's law are being discussed. Glendening says there may be a need for a state panel to review capital cases before local prosecutors seek a death sentence.

But O'Connor and Jessamy see no reason to change Maryland's law. They say the discretion in seeking a death sentence should rest with prosecutors who answer to voters every four years.

Both say their policies on the death penalty are consistent with their constituencies.

"I think you have to have prosecutors who are in step with the people they serve," Jessamy says. "Voters hopefully are going to elect prosecutors who think like they do and make the right kinds of decisions."

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