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Fairness counts in death cases

THE BALTIMORE SUN

IN MARYLAND, juries can kill using a level of certainty you might require to choose a brand of dish soap or motor oil.

They can sentence a man to death if they're just pretty sure that the state should take his life.

They don't have to reach a moral certainty. They aren't told to eliminate all but the slightest margin for error.

Life and death questions in this state are decided by a mere preponderance of the evidence -- a legal standard that's comparable to the personal judgment you'd apply to choices of little permanent consequence. It's the same basis upon which civil cases, such as fender benders or neighbors' squabbles over property lines, are decided.

Beyond a reasonable doubt, the rigorous, leave-no-questions-unanswered standard that's required in nearly all criminal matters, doesn't enter the picture when juries decide to take life.

No wonder it's so difficult to make heads or tails of why some death-eligible killers face the needle and others get jail time. No wonder so many are beginning to question the integrity of our state's death machine.

Maryland's death penalty statute treats final judgment as if it were fleeting whimsy. It's a grotesque incongruity that cheapens the lives of death-eligible defendants and collaterally shames the entire criminal justice system.

The Maryland Court of Appeals has agreed to hear pleas on behalf of two death-row inmates regarding the state's low death-sentencing requirements. The court's decision in either case could win new hearings for all death-row inmates, and fundamentally alter the course of Maryland's involvement with state-sanctioned killings.

The justices' decision should be a no-brainer. Unbridled certainty should precede death in all Maryland capital cases.

This may all seem like a technicality, a legal nuance being used by convicted killers and sneaky lawyers to weasel out of the capital system.

After all, the men on death row have been found guilty beyond a reasonable doubt. Their crimes have been determined to be death-eligible beyond a reasonable doubt. What difference does it really make that juries are determining that they actually deserve death by the lower standard of preponderance of the evidence?

A look inside some of the cases on death row is the only way to answer that.

Take Steven Oken's case. He's one of the two inmates whose appeal on the basis of sentencing requirements will be heard by the Court of Appeals.

Oken was convicted in 1991 of raping and killing a White Marsh woman in her home.

At trial, prosecutors had little trouble establishing Oken's guilt. The murder weapon had been found in his house. Rubber fragments from his shoes were found in the victim's living room, not far from where she was killed.

Oken had also killed two other women -- one in Maryland and one in Maine -- under similar circumstances.

But it was only the rape in the White Marsh incident -- a separate felony committed at the time of the murder -- that made Oken eligible for death under Maryland law. And at sentencing, Maryland law says the jury's job was to weigh the rape -- which aggravated the murder -- against the factors that mitigated Oken's involvement.

In Oken's case, those mitigators were formidable. He had already been sentenced to life in prison without the possibility of parole in the Maine killing, which meant that even if jurors in Maryland had found him not guilty, he'd still spend the rest of his life behind bars. He could never pose another threat to the community.

Oken also had a long history of drug and alcohol abuse -- factors that often result in lighter sentences or convictions for lesser crimes in all kinds of cases. (Example: Think of how many drunken drivers who kill actually get convicted of first-degree murder.)

And Oken suffers from a mental disorder called sexual sadism, which is characterized by intense urges to participate in sexual acts that involve psychological or physical suffering. It's incurable and untreatable. And it could explain why Oken, an educated, middle-class man from Pikesville, wound up raping and murdering three women.

If the jury had been told to weigh those issues against the lone aggravator and determine beyond a reasonable doubt which was more important, Oken might very well have been sentenced to something less than death.

But because Maryland law only required jurors to use the lower standard -- preponderance of the evidence -- it was easier to overlook Oken's glaring mitigators.

It's the difference between being absolutely sure and just making a decision because it seems like the right thing to do. And in Oken's case, it may mean the difference between life and death.

The same could be true for Lawrence Borchardt, whose case is also being reconsidered by the Court of Appeals on the basis of sentencing requirements. He had three serious mitigators at trial -- including profound psychological and physical abuse in his childhood, a mental disorder and longstanding medical problems. There was only one aggravator in his case.

Beyond such specific cases, the low sentencing standards also make it difficult for Marylanders to determine what general criteria are being used to send inmates to death row.

The highest standards would likely produce a death row that includes the worst of the worst among Maryland killers, inmates with no redeeming or mitigating factors.

The lower standard has produced a death row that looks nothing like that. Instead, it's a hodge-podge of inmates who seem to have randomly been sentenced to death, even though others who committed similar crimes and had fewer mitigators are facing lesser sentences.

Flint Gregory Hunt, for example, remains the only cop-killer in Maryland to have been executed -- even though his crime was not premeditated and he was high on drugs at the time. Others have slain police officers willfully, and soberly.

A higher sentencing standard might have spared Hunt. And even if it hadn't, it would have brought more certainty -- and yes, more fairness -- to the judicial process that ended his life but not others.

Maryland's high court has only one defensible choice in the cases it will decide in the coming months. It must insist that the state raise the bar on capital sentencing before anyone else is sent to death row.

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