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State's death penalty on trial


The state's highest court heard lawyers argue for the first time yesterday that a U.S. Supreme Court ruling in June invalidated Maryland's death-penalty statute and requires that all 13 inmates on death row be resentenced.

Lawyers for Lawrence Michael Borchardt, sentenced to death for killing an elderly Rosedale couple in 1998, told the Court of Appeals that the sentencing requirements set in the case of Apprendi vs. New Jersey render Maryland's death penalty statute unconstitutional.

The state maintains that the ruling should have no effect on the statute.

The questions from the seven judges after the arguments showed the court could come down on either side of the issue.

The Court of Appeals stunned death-penalty supporters last month when it agreed to hear arguments that the Supreme Court ruling should require new sentencings for convicted killer Steven Howard Oken and the state's other death row inmates.

The decision indefinitely postponed at least two executions that could have been scheduled this summer.

It was announced a few days after a bill imposing a moratorium on executions failed to pass in the final hours of this year's legislative session.

The Apprendi case focused on the use of an enhanced penalty statute - one that lengthens the maximum jail term for a crime - to impose a 12-year sentence on a white gunman who said he wanted to "send a message" when he fired shots into the home of a black family that had moved into his neighborhood.

The Supreme Court vacated the sentence, ruling that any fact that increases a penalty beyond a statutory maximum must be proved beyond a reasonable doubt.

Maryland's death-penalty statute uses a lesser legal standard. It allows jurors to impose a death sentence if they determine there is a preponderance of evidence that aggravating factors outweigh mitigating factors.

"When the ultimate issue is life vs. death, when this very court has said that death is different, I urge you to say that the spirit of Apprendi requires proof beyond a reasonable doubt," Fred W. Bennett, Borchardt's lawyer, argued yesterday.

But Assistant Attorney General Annabelle L. Lisic argued that the Apprendi ruling struck down only the sentencing provisions of an enhanced penalty statute and that the ruling does not affect capital sentencing requirements.

"The holding in Apprendi simply doesn't apply," Lisic said.

Lisic noted that prosecutors must convince a judge or jury of guilt beyond a reasonable doubt at a defendant's trial. Nevertheless, she said, the weighing of aggravating and mitigating factors is a more subjective exercise.

"It is a discretionary kind of thing that either the judge or the jury is doing," she said.

Lisic and Bennett were peppered with questions from the judges.

"You're going beyond Apprendi," Judge Dale R. Cathell told Bennett. "Didn't the Supreme Court tell us this scheme didn't apply to capital sentencing cases?"

But Judge John C. Eldridge argued that Apprendi may have changed the rules for the due process protections required in Maryland's death penalty statute.

"When this statute was drafted, I don't think there was anything out of the Supreme Court, or this court, that suggested what Apprendi held," Eldridge said.

The court is under no deadline to decide Borchardt's case.

Bennett said that he felt the court was "receptive and well focused," but anticipates a split decision.

"I'd be shocked if it was a 7-0 vote," he said.

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