Judges weigh Thanos execution challenge Stay extended pending decision JOHN THANOS--THE STRUGGLE OVER THE DEATH PENALTY

October 28, 1993|By Glenn Small | Glenn Small,Staff Writer

After an hour and 45 minutes of argument, with tough questions for prosecutors and defense attorneys alike, Maryland's highest court yesterday continued a stay of execution for convicted killer John Frederick Thanos and retired to deliberate his fate.

The seven judges of the Maryland Court of Appeals gave no indication of how quickly they would decide whether Thanos was competent when he fired his attorneys last month, and whether he should be allowed to waive an automatic 240-day stay of an execution that had been scheduled for next week.

Thanos has said he wants no further appeals of death sentences he received for killing two Baltimore County teen-agers in a gasoline station holdup during a weeklong 1990 crime spree. Should the court grant his wish, he will be the first person executed in Maryland's gas chamber in 32 years.

In addition to his sentence for killing Billy Winebrenner, 16, and Melody Pistorio 14, Thanos faces death for the St. Mary's County slaying of Gregory Taylor, an 18-year-old Hebron welder. The Taylor case was not involved in yesterday's deliberations.

Thanos' public defenders appealed the sentence in the Baltimore County case without his permission and won a stay of execution pending yesterday's arguments in Annapolis. They were joined by the American Civil Liberties Union.

After the hearing, the high court issued a brief order reaffirming the stay until it can rule.

"We're hopeful that we won today," said Michael Braudes, an assistant public defender who argued that Thanos' mental illness made him unstable and incompetent to make a "rational" choice to fire counsel and waive appeals. But he added, "I was surprised by the issue in which they [the judges] showed the most interest."

That issue was brought up at the last minute by the ACLU, which intervened as a friend of the court. ACLU attorney Kathleen Behan argued that an automatic 240-day stay of execution added to Maryland's death penalty law in 1991 is not a procedural right that a defendant can waive, but a requirement that serves society's interests.

Should the court rule that the ACLU is right, Thanos could not be executed until early May.

From their numerous questions, the judges appeared more interested in the stay of execution law than in Thanos' competency. They have already ruled him competent twice this year in mandatory appeals.

Ms. Behan argued that the language providing the 240-day stay uses the mandatory verb "shall" and cannot be waived. She said society has an interest in seeing that laws governing executions are carefully adhered to.

Judge John C. Eldridge asked Ms. Behan how the court could deal with the issue, even if she's right, since Thanos himself has not complained.

"You need someone aggrieved to take an appeal," Judge Eldridge said. "I don't know that we have the authority if no one is complaining."

"State officials have an interest in making sure all these procedural rights are carried out," Ms. Behan replied.

Judge John F. McAuliffe asked whether it might not be inconsistent for the ACLU -- a defender of individual rights -- to take "a big brother approach" in arguing against Thanos' individual choice. Ms. Behan replied that society's interests outweigh Thanos' own.

For the prosecution, Assistant Attorney General Gary Bair argued that the 240-day stay was added to the law in 1991 to hold attorneys to a deadline in filing post-conviction appeals on behalf of death row inmates.

He said it would be "ironic" if the court were to delay the Thanos execution by invoking a law designed to speed up the death penalty process.

"You're assuming that he's not going to change his mind," Judge Howard S. Chasanow interjected. He asked if the 240-day stay was also intended to give a defendant time to make up his mind on whether to file an appeal.

Mr. Bair replied that Thanos has the right to change his mind and invoke the automatic stay at any time until the very moment before his execution.

On the competency issue, Mr. Bair told the panel that Garrett County Circuit Judge Fred A. Thayer acted properly by conducting a separate competency hearing for Thanos last month, and by carefully questioning Thanos to determine if he wanted to waive his right to counsel and further appeals.

The trial was shifted to Garrett County because of intense publicity in Baltimore County.

"It was clear from an early point that [Thanos] didn't want to pursue appeals beyond the mandatory first appeal," Mr. Bair said.

When the argument was finished, the judges filed out of court, and the lawyers began trying to guess what the judges' questions meant for their cases.

"They seemed to be divided, and they want to resolve the issues in an orderly manner," said Thomas Saunders, head of the public defender's capital defense division.

"The arguments, you can only read so much into them," said Mr. Bair.

He said that when discussing the case later in private, the high court might bring up issues that never arose in questioning.

Should the high court rule before the current death warrant expires Nov. 7, Mr. Bair said, it is likely that other, last-minute legal efforts will be made to spare Thanos.

For example, anyone can file a petition in Baltimore City Circuit Court, challenging Thanos' competency. An appeal might also be taken in federal district court in Baltimore.

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