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Two seek to have convictions in death of girl, 9, overturned; They challenge charge of second-degree murder in child abuse case


Two Baltimore County women asked Maryland's highest court yesterday to overturn their convictions for murdering 9-year-old Rita Denise Fisher, saying that child abuse should not have triggered second-degree felony murder charges.

In a case that could ultimately call for intervention from legislators and change how child abuse cases are prosecuted, Court of Appeals judges asked Assistant Attorney General Ann N. Bosse whether abuse was a serious enough crime to make any resulting death a felony murder.

Under state law, certain "inherently dangerous" crimes such as robbery or arson elevate a resulting murder to first degree. Any murder that is not first degree, the state argued, is second degree.

Procedural question

Child abuse is not a crime for which prosecutors can pursue a charge of first-degree murder. Therefore, in Rita's death in 1997, mother Mary E. Utley, sister Rose Mary Fisher and Frank E. Scarpola, Jr., Rose Mary's boyfriend, were convicted of second-degree murder.

At question in yesterday's hearing was whether second-degree felony murder stemming from child abuse was an appropriate charge under Maryland law.

The judges questioned whether child abuse is inherently dangerous. One judge said, for example, that vigorously shaking a 2-week-old could result in death, but shaking a 15-year-old probably would not.

"What is it we look at in inherent danger?" Judge Alan M. Wilner pondered while Bosse was arguing her case. "Under your interpretation, every manslaughter is elevated to second-degree murder."

Girl was bound, imprisoned

Bosse said the charge was appropriate in the Fisher case. Rita, a third-grader, died after being beaten, bound, imprisoned and denied food, according to testimony during the trial.

"I'm saying [the charge] is appropriate particularly in this case," Bosse said after arguments. "This definitely meets any acceptable definition they might come up with."

Information excluded

Lawyers for the women also argued that Circuit Judge Dana M. Levitz made a mistake in refusing to disclose the address of Georgia Fisher, Rita's sister and the only eyewitness to abuse. The omission, they said, violated the rules of disclosure.

A prosecutor relayed to the judge during the trial that Georgia did not want to speak to her family or defense attorneys. The girl's lawyer later confirmed her wishes through a letter, Bosse said.

Rose Mary Fisher's attorney, Thomas J. Saunders, argued that Rose Mary's psychological profile should have been presented in court.

"Our client testified to a defense that, 'I did certain actions, I did not do them with malice, and I did not know I was hurting my sister,' " he said. "What she was denied was a chance for [jurors] to understand how she was psychologically formed. Even when she tried to testify how she was raised, the judge denied it."

Bosse argued that the psychological profile was not an issue in the case because Rose Mary Fisher never admitted abusing her younger sister.

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