Murder sentence is called incorrect

Lawyers say mother, sister did not intend to kill Rita Fisher, 9

January 05, 2001|By Laura Cadiz | Laura Cadiz,SUN STAFF

Attorneys for two Baltimore County women convicted in the starvation death of 9-year-old Rita Fisher told the state's highest court yesterday that their clients never intended to kill the girl and should not have been found guilty of second-degree felony murder.

In a second set of oral arguments before the Maryland Court of Appeals, lawyers for Mary E. Utley, the girl's mother, and Rose Mary Fisher, the girl's adult sister, also argued the second-degree murder conviction was inappropriate because child abuse is not "inherently dangerous" to life, and the crime doesn't qualify as a felony.

The attorneys maintained the women might not have known they were harming Rita, who died of starvation and malnutrition in June 1997. Malnutrition, even so severe that it can cause death, might not be apparent, said Michael R. Braudes, Utley's attorney.

Thomas J. Saunders, Fisher's attorney, said Fisher's psychological profile shows she didn't intend to harm her younger sister.

"She did not know her actions were harming the child," Saunders said.

Yesterday's arguments were solicited by the high court, which had questions about the effectiveness of the child abuse statute and the appropriateness of the second-degree murder charges after the appeals were first addressed in April.

In April 1998, a Baltimore County Circuit Court jury convicted the two women and Frank E. Scarpola Jr., Fisher's boyfriend, of second-degree murder and other child abuse charges. In September 1999, the Court of Special Appeals upheld the convictions. Scarpola, who was found guilty of intentional murder, did not pursue another appeal.

Utley is serving a 75-year sentence, Fisher is serving 30 years and Scarpola is serving 95 years.

Assistant Attorney General Ann N. Bosse argued that child abuse is not a specific-intent crime and that the women's frame of mind shouldn't matter.

She also pointed out that the court should consider the purpose of the child abuse statute, which states a person can be sentenced to 20 years for child abuse that results in death, when looking at the extent of criminal liability.

"The legislature intended that people like Rose Fisher and Mary Utley should be subjected to maximum exposure as far as penalties are concerned," Bosse said.

However, Braudes argued that he considers the statute's sentencing enhancement as a way to "fill a gap" because child abuse is not a felony.

"If indeed second-degree felony murder in the course of child abuse existed, that perceived gap would not have existed," he said.

"As reprehensible as child abuse certainly is, it is not inherently dangerous," he said.

But the judges questioned the validity of that logic.

"What type of child abuse that results in death would be inherently not dangerous?" Judge Dale R. Cathell asked.

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