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Robbery convict will be tried for murder Defense raises issue of double jeopardy


ANNAPOLIS -- With approval from Maryland's highest court, Baltimore County State's Attorney Sandra A. O'Connor yesterday vowed to move quickly to try 28-year-old Michael Whittlesey for killing a Dulaney Valley High School senior 10 years ago.

But Whittlesey's public defender said his office may ask the U.S. Supreme Court to decide whether Whittlesey's trial would constitute double jeopardy.

The Maryland Court of Appeals on Wednesday ruled 4-3 that a murder trial for Michael Whittlesey would not violate the constitutional prohibition against being tried twice for the same crime.

Whittlesey, who is serving 25 years for his 1984 conviction of robbing 17-year-old Jamie R. Griffin, is now charged with killing the teen-ager and burying his body at Gunpowder State Park on April 2, 1982.

Prosecutors did not charge Whittlesey with murder at the time because there was no body to prove that a homicide had occurred. Jamie's remains were unearthed in March 1990 with the help of new electronic sensing devices, ending an eight-year search by the youth's father.

The court's majority opinion, written by retired Judge Charles E. Orth Jr., said a murder trial would not create double jeopardy because murder was not charged originally and new facts have emerged since the robbery trial.

Judges Lawrence F. Rodowsky, Robert L. Karwacki and John F. McAuliffe concurred. Judges Howard S. Chasanow and Robert M. Bell dissented, and Judge John C. Eldridge issued an opinion that concurred in part and dissented in part.

In his dissent, Judge Bell said the state had enough evidence to proceed with a murder trial in 1984 and should now be barred from another prosecution. Whittlesey was convicted in February 1984 of robbery, theft and assault with intent to rob in the incident.

Whittlesey's assistant public defender, George E. Burns Jr., said yesterday that officials were reviewing the decision in light of similar cases and would "strongly consider" appealing to the Supreme Court.

"I think there is a reasonable chance [that the Supreme Court would hear the case]," Mr. Burns said. "It was a 4-3 decision, it is an important issue, and there hasn't been a lot of Supreme Court litigation on double jeopardy lately."

He maintained that prosecutors could have sought a murder conviction even without having the victim's remains.

But Mrs. O'Connor said discovery of the boy's body was essential in this case. She said officials had not been able to determine whether Jamie's death was caused by first-degree murder, manslaughter or self-defense.

"There's no way the state could have proved that he murdered Jamie Griffin," she said. "Now that we have the body, we know that the manner of death was homicide."

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