Death penalty statute upheld

Court of Appeals supports way Md. law is imposed

Ruling is in Oken murder case

Supreme Court decision seen as not applicable

November 18, 2003|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

Maryland's top court upheld the way the state imposes the death penalty yesterday, dashing the hopes of death penalty opponents and moving Baltimore County killer Steven Oken closer to execution.

In its 4-3 decision, the Court of Appeals rejected Oken's appeal - the fourth it has heard - saying last year's U.S. Supreme Court decision Ring vs. Arizona does not affect Maryland's capital punishment system.

Oken, along with death penalty opponents, had argued that the ruling, which forced Arizona to change the way it sentenced defendants to death, also meant that Maryland's system was unconstitutional. If he had won his appeal, at least eight of Maryland's 10 death row inmates might have been entitled to new sentencing hearings.

"I'm depressed, to say the least," said Fred W. Bennett, Oken's lawyer. "We are very disappointed in the decision. We were cautiously optimistic, and obviously the court sees it differently than we did by the narrowest of margins."

The family of Dawn Marie Garvin, 20, a White Marsh newlywed tortured and killed by Oken in 1987, greeted the ruling with as much caution as joy, said her brother, Fred Romano.

"I can't say I'm excited because you never know what happens," Romano said. "It's a good thing. But the history of this case is whenever a good thing happens, as soon as you turn around a bad thing happens."

In the days after he killed Garvin, Oken killed his sister-in-law, Patricia Hirt, and fled to Maine. In Kittery, Maine, he killed Lori Ward, a motel clerk.

Oken was tried in Baltimore County for Garvin's murder, and was sentenced to death in 1991.

Bennett said he and his client would soon decide whether to ask the Court of Appeals to reconsider its decision. Oken also has 90 days to ask the Supreme Court to take a look at his case.

Assistant State's Attorney S. Ann Brobst said prosecutors will wait until the case returns to Baltimore County before they start seeking another death warrant for Oken. She said prosecutors will also have to see what moves Oken's attorney makes before they decide on strategy. "We're just sort of in an extended period of limbo," she said.

To anti-death penalty activists, the decision was a blow. Many had thought that the court would change the way defendants are sentenced in Maryland, and had put off other death penalty lobbying while they waited for the opinion.

"I really thought they were going to [overturn] the law," said Jane Henderson, co-director of the Quixote Center, which fights against the death penalty. "It goes to show you, you never know what the court is going to do until they do it."

The law in question has to do with how a jury or a judge - whichever the defendant has elected - decides whether to impose a death sentence.

For a convicted murderer to be sentenced to death in Maryland, prosecutors must prove beyond a reasonable doubt that the defendant directly caused the victim's death. Prosecutors also must prove beyond a reasonable doubt that there is at least one "aggravating factor" - that the murder was committed during the course of a rape or kidnapping, for instance.

Finally, a prosecutor must prove by a preponderance of the evidence - the lowest burden of proof in the justice system - that the aggravating factors surrounding a murder outweigh any mitigating factors.

Mitigating factors are facts that would dissuade a jury or judge from imposing death - such as a defendant's troubled childhood or his lack of previous convictions.

Oken had argued that this last step uses the wrong burden of proof. He said that prosecutors should have to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, as they would have to do in any other fact-finding part of a trial. He said the Supreme Court's Ring vs. Arizona decision last year backed up his position.

The state contended that this part of the sentencing hearing was a judgment call, not a factual determination, and said that Ring did not apply to Maryland's law.

In Ring, the Supreme Court said a defendant has the right to have a jury decide whether to impose the death penalty.

That ruling immediately affected states that had death penalty sentencing systems similar to Arizona's in which only a judge made that decision.

But defense lawyers and anti-death penalty activists said it also affected other states, such as Maryland, where juries can decide death penalty sentencing. They said the Supreme Court decision showed that sentencing was a fact-finding process, not simply a judgment call. Therefore, they said, the burden of proof needed to be increased.

Three Court of Appeals judges agreed yesterday.

"We pay mere lip service to the principle that death is different and yet continue to impose a lower level of certainty in the death penalty context than we do for other lesser important interests in Maryland," said Court of Appeals Judge Irma S. Raker, writing for the dissenters.

But in an opinion that delved into recent history of death penalty statutes, four judges supported the law.

"The weighing process is purely a judgmental one," Judge Glenn T. Harrell Jr. wrote for the majority.

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