Steven H. Oken was to decide today whether the judge who presided over his trial or the jury that convicted him of murder should impose his sentence -- either the death penalty or life imprisonment.
Yesterday, Baltimore County Circuit Court Judge James T. Smith Jr. rejected Oken's plea that he was insane at the time of the slaying. "I must tell you, Mr. Oken, that the jury will be present [today] and we will proceed," Smith warned.
Oken nodded, the judge called a recess until today and the defendant was escorted out by two sheriff's deputies.
A jury of seven men and five women Friday convicted Oken, 29, of the Nov. 2, 1987, murder of Dawn Marie Garvin, 20, in her White Marsh apartment.
Because the murder occurred during a first-degree sexual assault, Oken faces the death penalty.
Earlier yesterday, Smith, after hearing testimony from three psychiatrists, a psychologist and Oken's mother, said he was convinced Oken is sane and criminally responsible for his actions.
The judge rejected two defense psychiatrists' contentions that Oken has a sexual sadism disorder that rendered him unable to conform to acceptable standards of conduct.
"I believe the defendant is sadistic and a sexual deviant," Smith said, but those problems and Oken's drug and alcohol addiction did not render him incapable of knowing right from wrong.
Oken, who until recently had said he could not remember anything about Garvin's murder, began remembering aspects of the crime Jan. 16 and recalled it in detail to two psychiatrists Sunday.
Smith said he found it "curious" that Oken's memory about the Garvin murder returned, while his professed amnesia of Nov. 15-17 remains intact. Oken is awaiting trial in the Nov. 15, 1987, slaying of his sister-in-law, Patricia Hirt.
"Based upon his selected amnesia," Smith said, "my judgment is that he thought it was in his best interest to not remember anything about the Garvin matter" until confronted with the state's "overwhelming evidence" against him.
After Smith's rejection of his insanity plea, Oken was reluctant to choose who would sentence him.
"May I have a word with my attorney?" he asked in the soft voice he has used to answer questions in open court.
He then whispered into defense attorney Benjamin Lipsitz's ear. Lipsitz then asked for a bench conference -- the third such private conversation with Smith in two days.
At the bench, Oken animatedly spoke to Smith. "That's exactly how I feel about it," he said loudly at one point.
It turned out Oken still didn't want to make his choice. First, he wanted to know what a prosecution witness planned to say at his death-penalty hearing.
The judge granted the request and the witness told the court what his testimony would be.
Even after that, Oken still was unwilling to make a decision and asked for more time. Smith gave him until today.