Tirado hearing may set a first "Victim impact" evidence may be considered.

July 22, 1991|By Jay Merwin | Jay Merwin,Evening Sun Staff

The sentencing hearing of Eric Tirado, who was convicted last week of murdering a Maryland State Police trooper, could be the first in Maryland to include "victim impact" evidence since the U.S. Supreme Court ruled last month that it can be considered in sentencing.

The sentencing hearing will begin Thursday in Howard County Circuit Court.

Richard Rosenblatt, senior counsel for capital litigation with the Maryland Attorney General's office, said this is the first capital sentencing in Maryland to come up since the June 27 Supreme Court ruling.

That ruling reversed a 1987 precedent, set in a Maryland case, in which the court had forbidden victim impact evidence in sentencing for capital crimes.

Tirado was found guilty last Thursday of first-degree murder in the death of Cpl. Theodore Wolf on March 29, 1990. Wolf had stopped Tirado and another man for speeding on I-95 in Jessup.

At the time of the conviction, Wolf's widow, Virginia, would not say whether she would testify at the sentencing hearing.

Under court rules, the defense may respond to prosecution testimony about the impact of the crime on the victim's family with its own character witnesses for the defendant.

Such testimony from either side is difficult to challenge in cross-examination, Rosenblatt said.

Not only would the defense be hard put to cross-examine a widow testifying to her loss, Rosenblatt said, but "when the defendant's mother goes on the stand to plead for his life, how do you cross-examine that? It goes both ways."

An expert witness, such as a psychologist explaining hardships and other circumstances that may have led to a criminal act, is likelier to be challenged, he said.

The defense chooses whether to have the judge or jury make the sentencing decision. Tirado's lawyers have not yet indicated their choice.

Rosenblatt, who handles death penalty appeals for the state, said he has no special knowledge of the evidence of the Tirado case, but noted that defendants often choose the jury over the judge.

As a defense lawyer trying to avert a death penalty, "you only have to convince one juror" to choose against death, he said. For the prosecution, the death penalty, like the conviction before it, must be a unanimous decision.

"The state has to convince all 12," he said.

Although a jury has already convicted a defendant, it may think differently about his fate in sentencing. "The question of guilt is not the question of whether a man should live or die," Rosenblatt explained.

At such a hearing, the prosecution must show that the defendant pulled the trigger, or wielded the knife, Rosenblatt said, rather than aided or abetted the first-degree murder for which he was convicted.

In addition, the prosecution must prove at least one of 10 "aggravating circumstances" to make the case "death eligible" at the sentencing hearing, Rosenblatt said. If the murder victim was a police officer performing his duty, that is one such aggravating circumstance, he said.

The defense has the opportunity to present any of eight defined "mitigating circumstances," such as mental problems or no prior convictions. The defense has a lower standard of proof for these than the prosecution has for aggravating circumstances.

Eventually, the jury will weigh aggravating and mitigating factors against each other and make its decision.

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