OAKLAND -- The murder conviction against John Frederick Thanos for the killing of two Middle River teen-agers will stand, but he will have a new sentencing hearing, the judge who threw out the sentencing phase on a technicality said today.
Ironically, the jury foreman, Raymond Bixler, told prosecutor Sue A. Schenning last night that she didn't need the testimony of Dr. Michael Spodak, a psychiatrist whose testimony prompted the mistrial.
"We would have given him the death penalty anyway," Mr. Bixler said.
Speaking from the bench today, Garrett County Circuit Judge Fred A. Thayer said that Mrs. Schenning did nothing improper when she spoke to a witness during yesterday's lunch recess.
"The conversation itself was innocent," said Judge Thayer, referring to Mrs. Schenning's brief talk yesterday with Dr. Spodak, her witness, outside court. "But it gave the appearance of impropriety. I do not believe Mrs. Schenning coached" Dr. Spodak.
Judge Thayer denied a defense motion to forbid the state from seeking the death sentence for Thanos.
The judge said the case must be rescheduled for sentencing but he did not know when that could happen.
He also ruled that the 28-minute videotaped confession Thanos made to police must be released to Baltimore television stations.
But the judge denied a request from The Evening Sun to make public a pre-sentence report on Thanos, which was read by the jury. He said it is a confidential file.
The trial and death sentencing hearing of Thanos, 42, a convicted murderer, rapist, kidnapper and armed robber, ended abruptly yesterday with Judge Thayer's declaring a mistrial.
Without immediately explaining the decision, Judge Thayer left the courtroom, came back briefly to dismiss the jury, then left again.
The jury of seven men and five women had convicted Thanos last Friday of robbing and killing Billy Winebrenner, 16, a gas station clerk, and his girlfriend, Melody Pistorio, 14, in a Labor Day 1990 holdup at the Big Red gasoline station in the 9000 block of Pulaski Highway.
Yesterday, it appeared to Mrs. Schenning and many other courtroom observers that Judge Thayer was angry over Mrs. Schenning's lunchtime conversation with Mr. Spodak, saying, "I find it incredible," and, "I believe there has been a miscarriage of justice." He would not let Mrs. Schenning explain the incident yesterday.
Today, after Mrs. Schenning explained herself, the judge said he "accepted her proffer." He repeated the explanation for the mistrial he gave in a statement last night.
Baltimore County State's Attorney Sandra A. O'Connor, for whom Mrs. Schenning works, said she was pleased that Judge Thayer gave the state a chance to respond today and cleared the prosecutor of wrongdoing.
"We were concerned that there was a misconception that Mrs. Schenning had done something improper," Mrs. O'Connor said. "Ms. Schenning is an excellent attorney . . . I trust her with this case and I trust her until this case is over."
Though Mrs. O'Connor acknowledged her disappointment that sentencing could not continue and said she understood the hardship that will place on victims' families, added that "in a death penalty case there is no question that a judge feels obligation to give the defendant every conceivable advantage because of the severity of the penalty.
"We are ready to resentence as soon as it can be scheduled."
The mistrial was necessary, Judge Thayer said, because the jury had been indirectly exposed to information contained in a December 1990 psychiatric evaluation of Thanos, in which Thanos made threatening statements to psychiatrists who interviewed him.
Dr. Spodak did not quote those statements to the jury, or even refer to the report, except on cross-examination. But he consulted the report and Judge Thayer said he believed that action violated an earlier court ruling by Baltimore County Circuit Court Judge Dana M. Levitz.
James McCarthy, one of Thanos' public defenders, argued that Levitz' March 11, 1991 order meant the report could not be used at all. Mrs. Schenning argued that the ruling meant statements in the psychiatric report could not be put before the jury.
"Judge Levitz ruled that I could not use those statements in regard to future dangerousness," Mrs. Schenning said. "I did not use them before the jury."