Lawyers for convicted murderer Steven H. Oken have asked the state's highest court to halt their client's execution so a Baltimore County Circuit Court judge can examine whether, in light of a new University of Maryland study, the state's death penalty is unconstitutional.
It is the first appeal based on the 2 1/2 -year study, which was released last month and reported geographic and racial disparities in how the state's death penalty law is applied.
The move gives the state's judiciary a chance to act on the study in a way Gov. Robert L. Ehrlich Jr. has said he would not: While the results have not kept Ehrlich from lifting the state's death penalty moratorium instituted by former Gov. Parris N. Glendening, capital punishment opponents hope the courts will look at them differently.
"This Court, and the whole of Maryland, has a historic opportunity to fully examine the inner workings of capital punishment, the most grave aspect of our criminal justice system," defense attorney Fred W. Bennett wrote in the motion he filed yesterday in Baltimore County Circuit Court.
Recent attempts in other states to use statistical analyses to overturn individual death penalty sentences have failed. But some who monitor death penalty cases say a growing concern exists among courts nationwide about racial and geographic disparities, and that the time might be ripe for arguments such as the ones Bennett is making.
"I certainly think we're on a tipping point when we come to the death penalty," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. "It's an accumulation of innocence cases based on DNA, the racial inequality. But the new element that wasn't in these cases before is the geographic disparities. I think if you add together these various problems there may well be a Supreme Court ruling or a state court ruling ... to stop the death penalty for a time."
The University of Maryland study found that Baltimore County defendants are more likely to get a death sentence than those in other jurisdictions. Of the state's 12 death row inmates, nine were prosecuted by the Baltimore County state's attorney's office.
Oken, 40, is white, and is scheduled to be executed the week of March 17. He was convicted in 1991 of raping and murdering a white woman - Dawn Marie Garvin, 20, of White Marsh - in 1987.
The study also found that someone convicted of killing a white person is more likely to receive a death sentence than someone convicted of murdering a black person. All 12 inmates on death row had white victims.
That inequality, Bennett wrote, violates various parts of the state and federal constitutions.
"It cannot be, in the State of Maryland, that the crime committed on one street corner deserves the death penalty, whereas an identical crime committed on another corner a town over does not," Bennett wrote. "It cannot be that a homicide that takes the life of a white victim is legally more culpable than a crime where a nonwhite victim meets an untimely death. ... . One would assume, at the dawn of the twenty-first century, that Maryland has moved beyond a capital punishment system that produces such racist and arbitrary results."
Bennett asked the court yesterday for a new post-conviction hearing - a forum in which a defendant can argue that a sentence or judgment was imposed in violation of the state or federal constitution.
Bennett said that Raymond Paternoster, the Maryland professor who wrote the study, and researcher David Baldus, a well-known expert on statistical analysis of the death penalty, should testify.
He asked the Court of Appeals to stay the execution while the Circuit judge considers his motion.
Baltimore County State's Attorney Sandra A. O'Connor could not be reached for comment yesterday. Her office will likely file a reply to Bennett's motion within days.
In the past, O'Connor and others in her office have pointed out that the study shows no racial disparity within Baltimore County. They say it has long been O'Connor's policy to seek the death penalty whenever the law says it is possible, thus eliminating any bias from the decision of whether to seek capital punishment.
But the death penalty needs to be applied consistently statewide, Bennett wrote.
Steven B. Bright, the director of the Southern Center for Human Rights in Atlanta, said that no court has held that geographical disparity renders a death penalty law unconstitutional.
Bright said that the last time a court altered the death penalty because of any statistical disparity was in 1972, when the Supreme Court ruled in Furman vs. Georgia that the law was too arbitrary.
"Since then, it's been extremely hard for anyone to get anywhere with a statistical argument," he said.
But death penalty opponents have gotten close, and Bright, like Dieter of the Death Penalty Information Center, said there could soon be a shift in court opinion.
"Every state that has capital punishment, you see what you see in Maryland - one or two jurisdictions counting for the disproportionate amount of death sentences," he said. "The death penalty depends so much on the personal policies and politics of the prosecutors, and that's not the way it's supposed to work."