ANNAPOLIS -- Derrick Quinton White, who killed a retired Baltimore County printer 10 years ago during an attempt to steal the man's moped, had his death sentenced overturned for the second time yesterday.
The Court of Appeals ruled unanimously that Circuit Judge John G. Turnbull II used the wrong test in deciding on a punishment, even though the judge filed an affidavit later explaining that he understood the law but might have inadvertently transposed words in his sentencing statement.
Such "after-the-fact statements of subjective decision-making" cannot be substituted for statements made "at the time of sentencing," the state's highest court held as it sent White's case back to Baltimore County for a third sentencing hearing.
"You just don't know how frustrating it is, how hard it is," sighed Rita Furst, the widow of Victor Furst, 61, who was killed in August 1981. "I just can't believe this state, this court. They have this death penalty. It's like they're obstructing justice by not imposing it."
Mrs. Furst, who later became a prominent victim's rights lobbyist in Baltimore County and Annapolis, worried that White -- who has been in prison since he was arrested shortly after the murder -- could be paroled in a few years if he did not remain under a death sentence.
White was sentenced to death in February 1982 by the same jury that convicted him two days earlier of killing Mr. Furst, who had been riding his moped along Dogwood Road in Woodlawn on his way to buy crabs.
The Court of Appeals upheld that sentence, but in a subsequent review a special three-judge panel overturned it and sent the case back to Baltimore County.
In the second hearing, Judge Turnbull, presiding without a jury, said he could not "find that the aggravating circumstances have outweighed the mitigating circumstances" and imposed the death penalty.
Maryland's death penalty statute requires the state to prove that the aggravating circumstances outweigh the mitigating circumstances.
Writing for the unanimous court, Judge John F. McAuliffe conceded that Judge Turnbull might have accidentally transposed the words "aggravating" and "mitigating" in his statement.
But he found another spot in the transcript of the hearing in
which Judge Turnbull made the same error, as well as a third point at which the circuit judge seemed to suggest that the defendant shared some responsibility in proving that mitigating circumstances outweighed aggravating circumstances.
"Even if we assume a thrice repeated transposition of words, there remains the fact that the trial judge, in a close case, apparently utilized the wrong test in the final weighing process," Judge McAuliffe wrote.
S. Ann Brobst, who prosecuted White in Baltimore County, said she would talk with Mr. Furst's survivors and State's Attorney Sandra A. O'Connor about whether to try again for the death penalty or to settle for a sentence of life in prison.
She and Richard Rosenblatt, who works in the attorney general's appellate division, said they were aware of Judge Turnbull's statements but were not sure whether they would be enough to overturn the sentence.
George E. Burns Jr., the public defender who argued White's case before the appellate judges, said he "obviously felt they should do something."
"When you're deciding whether someone should live or die, you should at least know that you're using the right standard," he said.