ANNAPOLIS – Maryland’s six-month unofficial moratorium ends today, but it’s not likely to be lifted until the state Court of Appeals deals with four cases questioning the constitutionality of the death penalty.
The outcome of these cases could lead to the re-sentencing of all 13 inmates on Maryland’s death row, said Gary Bair, chief of the criminal appeals division of the Attorney General’s Office.
Last session, a Senate bill placing a two-year moratorium on executions died, quashing the hopes of many death penalty opponents.
However, the four cases before the court now have effectively halted executions since April.
The court has yet to rule on one case heard in May. Lawrence Borchardt Sr., convicted of murdering a Baltimore County couple in their home in 1998, appealed his case to the Maryland Court of Appeals, turning to the U.S. Supreme Court’s ruling in Apprendi v. New Jersey, he hoped, to save his life.
The Maryland court is also expected to hear cases from Wesley Baker, Clarence Conyers Jr. and Steven Oken in October.
The Harford County Circuit Court convicted Baker of murdering and robbing a grandmother in a mall parking lot in 1991.
Conyers was convicted of murdering his girlfriend’s mother and his alleged accomplice in that murder in 1994 in the Wicomico County Circuit Court.
And, Oken was convicted in Baltimore County Circuit Court of murdering a woman during a sexual offense in 1987.
All three men are sitting on death row and are using the Apprendi ruling in their appeals.
Apprendi concerns the second part of a capital case. There are two phases to death penalty cases – the trial phase, which establishes guilt or innocence, and the sentencing phase, when a judge or jury hears evidence on aggravating and mitigating circumstances and then determines a penalty.
Charles Apprendi Jr. challenged a New Jersey hate crime statue that allows the judge to increase the punishment beyond the maximum penalty during the sentencing phase.
The New Jersey statute allows the court to do this if it finds, by a majority of the evidence, the defendant purposely intimidated an individual or group based on race, gender, religion, etc.
Apprendi was charged with a number of offenses including harassment, attempted murder and two counts of firearm possession after he fired eight rifle shots into the home of a black family in Vineland, N.J., in 1994.
Apprendi could have received 20 years’ imprisonment without parole for the first 10, however, the court found the shooting was racially motivated and extended the sentence to 12 years’ imprisonment on the shooting count and concurrent terms of seven and three years’ imprisonment on the remaining charges.
The U.S. Supreme Court, however, ruled a jury couldn’t increase the sentence unless the fact used to increase the penalty was found beyond a reasonable doubt, and not by the lesser standard of a majority of the evidence.
Maryland law has a similar majority of evidence requirement in its death penalty statute. More than half the evidence must persuade the judge or jury that aggravating circumstances outweigh mitigating ones, and therefore justify the ultimate penalty.
Maryland law also states the penalty for first-degree murder ranges from life in prison to death.
The four cases before the Maryland Court of Appeals argue that in order to apply the maximum penalty, death, the jury would need to find aggravating facts beyond a reasonable doubt, as stated in Apprendi, rather than by a majority of evidence as Maryland’s death penalty now allows.
Gary Christopher, an assistant federal public defender for Baker, said he thinks the Apprendi ruling applies to Baker’s case, but doesn’t know how far the courts will extend it.
The state, on the other hand, is arguing the Apprendi ruling addresses a narrow issue and doesn’t apply to capital punishment cases.
In addition, the state argues in Oken, by applying the death penalty, the court is choosing one of the alternative sentences for first-degree murder, not increasing the sentence beyond the maximum.
Depending on the outcome of any one of these cases, the General Assembly may have to enact a new death statute in compliance with the Apprendi ruling, said Fred Warren Bennett, defense lawyer for Borchardt and Oken.
“This is the most important death penalty case since Furman v. Georgia,” said Bennett. In that 1972 case, the Supreme Court declared death statutes nationwide invalid, saying states were applying them arbitrarily.
No one has been executed in Maryland in nearly three years. The last was Tyrone Gilliam, of Baltimore County, who was executed Nov. 16, 1998, after the court convicted him of the shotgun murder of a woman after he kidnapped and robbed her in December of 1988.
– 30 – CNS 09-28-01