Court to hear bias challenge against Md. death penalty

Sun Staff

Lawyers for a death row inmate are to present this week the first oral arguments before the state's high court using a state-sponsored study to try to show that Maryland's application of the death penalty is racially biased.

Wesley Eugene Baker's case is one of at least five in which the issue has been raised since the University of Maryland study by Professor Raymond Paternoster was released in January 2003 but is the first to earn a spot on the docket of the Court of Appeals.

Baker's attorney is expected to argue a central theme tomorrow: that his client, a black man convicted of killing a white woman in Baltimore County 14 years ago, was illegally sentenced to die under a system riddled with racial and geographic disparities. At the least, his attorney contends, Baker deserves a lower court hearing on the issue.

Nearly two decades after the U.S. Supreme Court knocked down a race-based death penalty challenge that relied on a statistical analysis, the mere granting of a hearing based on Paternoster's report is significant, said David Baldus, a University of Iowa law professor who has written several death penalty analyses, including one in Maryland in 2001.

Several states and organizations have commissioned similar studies, and Kentucky officials passed legislation in 1998 that allowed defendants to explore before trial whether race was a factor in the decision to seek the death penalty. But challenges based on statistical analyses are usually rebuffed before the courts ever reach the meat of the argument, Baldus said.

"People say, the Supreme Court says there's no problem, so therefore, there's no problem," Baldus said. "Getting to a hearing is a major enterprise."

Ripe for review

But the time is ripe for the country's highest court to revisit that decision, death penalty opponents say. The current justices have shown a willingness to reverse course on capital punishment, they say, noting a recent decision to end executions of defendants who were under 18 years old when they committed their crimes.

"I think a lot of issues have been given closer scrutiny, ... and race is ripe for that. It needs to be reviewed again," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center.

But supporters of capital punishment say the 1987 Supreme Court ruling on the death penalty and race is still valid today. In the Georgia case, the court held that general statistics detailing racial disparities are not enough to show that decision-makers abused the system, which relies on their discretion, in individual cases.

Studies such as Paternoster's do not show that a defendant was singled out for capital prosecution because of race but instead illustrate that some communities are more likely than others to push for death, said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, Calif.

The Maryland study found that Baltimore County homicides "dominate the state's capital punishment data."

"The people in more conservative communities elect tougher-on-crime district attorneys and they form tougher juries," Scheidegger said. "That's not discrimination. That's local government."

While three other death row inmates have been granted future Circuit Court hearings based on the Paternoster study, Baker's request was rebuffed by a Harford County judge last year, a decision that set up his appeal.

"This is a terribly important case, and not just for the inmates under sentence of death," said Baker's attorney, Gary W. Christopher. "It's really less about the death penalty than about the integrity we expect from our criminal processes."

The Paternoster report

There have been other studies that have looked, at least in part, at racial influences on Maryland's death penalty. But lawyers for death row inmates say the Paternoster report treads new ground, providing the most complete statistical look at how the death penalty was applied from 1978 to 1999 and accounting for outside influences that could affect the numbers.

The University of Maryland study looks not only at who was ultimately prosecuted for capital murder and sentenced to die but at what happens early on in the process, starting with a prosecutor's decision to seek the death penalty, said Julie S. Dietrich, one of several Washington lawyers representing death row inmate Vernon L. Evans Jr.

"This is the first thorough, comprehensive study that examines the influence of race and geography in Maryland's death penalty system, and [Paternoster] concluded there is a great impact," she said.

Evans, like Baker, raised the Paternoster report in a pleading and was denied a Circuit Court hearing. His appeal was originally scheduled to be heard with Baker's by the Court of Appeals but has been rescheduled.

Lawyers arguing the case for the state would not comment on the case, but in a brief filed with the Court of Appeals, the state attorney general's office argues that the report's findings do not warrant overturning Baker's death sentence - or even granting him a Circuit Court hearing.

Paternoster never concluded that the race of the defendant matters in death penalty decision-making, and though the professor found that defendants accused of killing white victims in Maryland were statistically most likely to face death penalty prosecutions, he also found that the most significant factor in whether to seek the death sentence was where the crime occurred, the state lawyers argue in their brief.

"In Baker's case, as in all capital prosecutions, the State's Attorney considered a variety of factors in deciding to seek the death penalty," the lawyers wrote. "Baker has never asserted, as he cannot, that he was singled out for prosecution based on his race or that the State's Attorney displayed a discriminatory purpose in his case."

In Baltimore County, where prosecutors have a policy of seeking the death penalty in any eligible case that does not rely solely on a co-defendant's testimony and in which the victim's family is in agreement, prosecutors have said that race has never been a factor in their decision-making.

Baker, 47, one of eight people on Maryland's death row, was convicted in 1992 of robbing and fatally shooting 49-year-old Jane Tyson in front of her grandchildren in the Westview Mall parking lot.

Watching closely

With the Baker arguments pending last week, prosecutors and lawyers who represent the state's death row inmates said they were watching the proceedings closely.

Three other inmates have legal proceedings based on the study in the works, although it was unclear whether Lawrence Borchardt Sr., who was recently granted a new sentencing hearing, would pursue his.

Prosecutors in the Baltimore case of John Booth-El have asked the Circuit Court to stay any proceedings related to the Paternoster study until the high court rules, and Prince George's court officials will probably hold a hearing this winter in the Heath William Burch case.

"We're clearly very interested to see how the Court of Appeals approaches the issue," said William Kanwisher, who represents Burch. "In matters of life and death, the Court of Appeals speaks strongly and loudly."

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