Fate of 'predator' laws may hinge on murder trial

THE BALTIMORE SUN

FREDERICK - The body was found where children play.

Nine-year-old Christopher Ausherman had been molested and beaten and left in the third-base dugout of a baseball diamond, an open packet of Pokemon cards still in his coat pocket.

The location underscored the crime's horror: a ballfield used for youth baseball and football, a place that felt like the neighborhood's collective back yard.

Then there was the timing: The mentally retarded man who is standing trial in the November 2000 murder had a long history of violent and sexual offenses and had been released from a Hagerstown prison less than a week before the child's death, after serving 3 1/2 years of a 10-year sentence for assault.

And so, as he sits slumped in a chair this week at the defense table of a Frederick County Circuit courtroom, Elmer Spencer Jr., 46, is the focus not only of prosecutors who want to convict him but of state legislators who hope his case - and Frederick's outrage - will persuade the General Assembly to make it harder for violent repeat criminals to obtain release.

"This guy, the alleged killer, had just been released with good-behavior credits," says Sen. Timothy R. Ferguson, a Frederick County Republican. "I don't think five days had gone by before they rounded him up and he allegedly had blood on his clothing. Where is the safety in that for our children?"

This week, Ferguson introduced legislation aimed at toughening the way Maryland punishes some repeat offenders. One bill would allow judges to impose a life sentence without the possibility of parole on defendants with a history of child sex crimes. Another would limit plea bargains available to those charged with such crimes.

While hopeful of getting at least a portion of the legislation approved, Ferguson and other legislators say they recognize there are no easy fixes. Last year, the Assembly balked at passing measures similar to this year's until they could be studied further.

Mental health professionals have cautioned that the state needs to explore better treatment options, rather than trying to lock away all potential problems.

"We seem to think that whatever the problem is, the solution is going to be another law or stricter imposition of existing laws," says Johns Hopkins University psychiatrist Fred Berlin. "If there are people who are too much of a danger, society has a right to protect itself. But the real question is how we can be both safe and just."

Last month, the U.S. Supreme Court - in a case closely watched in Annapolis - told Kansas that it can't continue to incarcerate sex offenders who have completed their sentences unless it can show that the defendants are unable to control their behavior. Maryland lawmakers had considered a Kansas-like proposal of confining some potentially dangerous offenders with sexually violent histories after their terms had elapsed.

"I firmly believe there are categories of people in such a psychological state that they truly cannot change - sexual predators by definition," says Del. Sue Hecht, a Frederick Democrat who has followed the Spencer case and introduced measures to restrict parole and "good time" credits in such instances. Hecht adds, "There are no easy answers to this. It's the civil rights of the individual vs. the protection of the whole, and that's a big issue."

The legislative push by Ferguson, Hecht and others is tied inextricably to Spencer's trial, in which testimony began Friday and is expected to conclude next week.

Before it is over, State's Attorney Scott Rolle says, he will show through DNA evidence that Spencer's clothes were covered with the boy's blood. Monday, prosecutors played an audiotape of a 911 call placed after the boy had gone missing. The voice on the tape, they assert, was Spencer's.

"I just seen a little boy who's got beat up a couple minutes ago," says the man on the tape, identifying himself only as "Junior." He says the boy was hurt "over by the ballfield."

If they win a conviction, prosecutors say, they will seek a life term without parole. Even if convicted of first-degree murder, Spencer is sheltered from a death sentence because his IQ was tested below 70, and Maryland law forbids executing the mentally retarded.

As the trial progresses, Spencer - a slight, balding man with a goatee - sits at the defense table fidgeting or with his arms folded. He often looks down or straight ahead at the bench, not seeming to pay attention to the witnesses.

Despite his impairment, the state determined Spencer competent to stand trial, meaning he is able to understand the proceedings against him. It is uncertain whether he knows his case is being used to rally support for sentencing reforms at the State House.

"I can't remember many cases that evoke changes in law," says Rolle, 40. "I've been prosecuting or defending for 15 years, and this case is one of the few that has really caused a lot of emotions from the people that live here in Frederick."

Ferguson has named his legislation collectively "Christopher's Law" in the boy's honor. At Rolle's request, he waited to introduce the bills until the trial began to avoid additional pre-trial publicity that could have made it hard to seat impartial jurors.

The boy's mother, Mary Voit, and other relatives of the victim have attended the trial regularly, often dabbing their eyes with tissues.

A year after Christopher's death, a pear tree was planted as a memorial in a wooded area near his old school, South Frederick Elementary. "Kids would come ask what they could do," said guidance counselor Chuck Gill. "The kids wanted to - they wouldn't put it in these words - reclaim the neighborhood. We wanted them to have a little empowerment to effect positive change."

At Hopkins, Berlin says he sympathizes with the boy's family but hopes any remedy the Assembly produces will be equitable to all. He says part of the underlying problem is that impaired, troubled people such as Spencer are often left to fend for themselves.

According to trial testimony, Spencer had been living in woods and was homeless before being charged in the murder. "We just need to think this through," the psychiatrist says. "I'm concerned about a broad brush that doesn't allow a human judgment as to what is fair."

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