The lawyer for Wesley Baker, whose execution was halted by Gov. Parris N. Glendening's death penalty moratorium, claims in a state appeals court case that the Harford County judge who sentenced Baker lost his judicial authority when he moved out of the county in 1986.
Stuart Robinson, Baker's lawyer, says in papers filed with the Court of Special Appeals that Harford Circuit Judge Cypert O. Whitfill lost his judicial authority when he moved to a Cockeysville apartment for at least a year.
The Court of Special Appeals, Maryland's intermediate appeals court, has agreed to hear arguments in the case in December, Robinson said.
Whitfill sentenced Baker to death in 1992 for fatally shooting Jane Tyson in front of her grandchildren in the parking lot of Westview Mall in Catonsville.
Baker's trial was moved out of Baltimore County at his request.
Whitfill, who retired in 1999 but serves part time in Harford County, did not return phone calls seeking comment yesterday. He was appointed by Gov. Harry R. Hughes in 1982 and ran for a 15-year term in 1984.
Robinson said in the papers that Whitfill moved out of Harford to Baltimore County while experiencing marital problems and that state law requires Circuit Court judges to live in the county or the city in which they serve.
He said that Whitfill moved back to Harford before the Baker trial, but that the move to Cockeysville nullified his judicial authority and could invalidate not only Baker's sentence, but any decisions Whitfill made as a judge from the time he moved.
"When he left the county, he gave up his judicial authority, period," Robinson said.
But lawyers for the state attorney general's office said Whitfill never lost his judicial authority because he never established permanent residency outside Harford.
Ann N. Bosse, an assistant attorney general, said judges are bound by the residency requirements spelled out in 1988 when the Court of Appeals permitted state Sen. Clarence W. Blount to continue serving the 41st District in Baltimore after an opponent claimed in a suit that he had moved from the district.
The court ruled in that case that just because Blount occasionally stayed at a second address, he never intended to change his "true, fixed permanent home."
The state constitution specifies that Circuit Court judges must be over 30 years of age and reside in the county or city in which they serve for at least six months prior to their appointment. They also must have lived in the state for five years before they're appointed.
Bosse also said that similar claims by Robinson were rejected in previous legal appeals.
"This residency requirement has been addressed and rejected before," Bosse said.
The Court of Appeals, Maryland's highest court, rejected Robinson's request for permission to file an appeal and argue the residency issue May 6, three days before Glendening halted Baker's execution.
Baltimore County Circuit Judge Dana M. Levitz also denied a request for a new trial in 1990 when Robinson claimed that Whitfill lacked jurisdiction to sentence Timothy Scott Sherman to two life terms for the 1987 shotgun slayings of his parents in their home in Gibson Manor in Harford.
Robinson said those appeals were denied based on written motions without formal hearings into Whitfill's residency.
"The denials by those courts were never on the merits of the claim itself," Robinson said. "We never got the hearing that we're now seeking."
He said such a hearing is a necessity to determine whether Whitfill took steps to give up his Harford residency by changing the address listed on his driver's license, his voter registration listing and his mailing address.