Murder sentence is called too strict

Attorneys tell court that women never intended to kill girl

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 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 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.

"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.

Braudes told the court that the women's conduct differed from Scarpola's because he "clearly inflicted the beatings constantly."

Georgia Fisher, the victim's sister, told the circuit court that the night before Rita's death, Scarpola tied Rita to a dresser with shoelaces, taped her mouth shut and left her there all night as a form of punishment, according to court records.

When she died, Rita weighed 47 pounds, had abrasions and bruises on her head, chest and buttocks, multiple rib fractures and ligature marks on her wrists and ankles, according to court records.

Bosse asserted the jury's findings in the lower court were clear.

"Did the jury find beyond a reasonable doubt that Rita Fisher died as a consequence of child abuse? Yes," Bosse said. "The legislature clearly intended that this was an appropriate sentence."

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