A Baltimore County judge yesterday dismissed a death row inmate's constitutional challenge to Maryland's gas chamber and, in doing so, denied a request to have the execution of convicted killer John F. Thanos videotaped as evidence.
The unexpected ruling in an appeal by Donald Thomas surprised prosecutors and defense attorneys, who had expected to wait until next week to argue Thomas' contention that execution by lethal gas constitutes cruel and unusual punishment.
Yesterday's hearing was supposed to involve Thomas' request to have Thanos videotaped and monitored by an electroencephalograph (EEG) as he dies to determine how much suffering the gas chamber inflicts. Only two other states, California and North Carolina, still use the gas chamber. Their inmates choose between gas and lethal injection.
But instead of ruling strictly on the videotape issue, Circuit Judge Thomas J. Bollinger dismissed the entire appeal, noting that Maryland legislators rejected a lethal injection bill this year. He also noted that a Maryland Court of Appeals decision affirmed the constitutionality of the gas chamber a decade ago.
"The only issue left to determine is whether it is appropriate to revisit [that decision] in light of 'the evolving standards of decency that mark the progress of a maturing society,' " the judge said, quoting from another case.
If Thanos' execution goes forward as scheduled the first week in November, he will be the first Maryland prisoner put to death in 32 years. He was sentenced for the fatal shootings of two eastern Baltimore County teen-agers during a 1990 convenience store robbery.
Thomas, 35, was convicted in the October 1981 fatal stabbings of a former state trooper and his wife in Arbutus, and the rape of their female boarder. No execution date has been set in his case.
Thomas' attorney, H. Mark Stichel, said he would go immediately to the Court of Appeals, as Judge Bollinger recommended, and ask that Thomas' case be heard Wednesday at the same time as motions brought by others on behalf of Thanos.
Although Thanos has said he does not want to appeal his case further, he was willing to cooperate with Thomas.
Mr. Stichel produced a release signed Thursday by "John F. Thanos, AKA The Hound," agreeing to have a videotape, EEG and other medical records of his execution released to Thomas' attorneys.
Thomas has argued that such evidence could show how long it actually takes a man to die in the gas chamber and confirm or deny eyewitness accounts of prisoners screaming, writhing and banging their heads as they die.
Assistant Attorney General Richard Rosenblatt intervened on behalf of the Maryland Penitentiary warden to oppose the taping, the EEG and the presence of a medical expert on Thomas' behalf at Thanos' execution, as requested by Thomas' attorneys.
"Now Mr. Thomas wants Mr. Thanos to go out . . . as a guinea pig, with extra wires attached to his body, on video -- and an expert to provide color commentary," Mr. Rosenblatt argued.
Mr. Stichel responded, "The state fears it would show things it doesn't want this court to know." Death by lethal gas "is akin to being drowned," he said.
Although the state won't run its own tests or tape Thanos' execution, Mr. Rosenblatt noted afterward that the attorney general supports a change to lethal injection on practical grounds.
Judge Bollinger first heard testimony in Thomas' challenge in August but adjourned the hearing because the defense is trying to get a videotape of a California execution, now sealed in a federal court there.