A top prosecutor is switching sides

Lawyer: State Solicitor General Gary Bair will team up with a noted defense attorney with whom he has faced off in death penalty cases.

August 12, 2004|By Julie Bykowicz | Julie Bykowicz,SUN STAFF

In his two decades with the Maryland attorney general's office, Gary E. Bair has played a key role in the legal maneuverings that sent Maryland prisoners from death row to the execution chamber. He even stood before the nation's highest court to oppose an argument meant to save a convicted killer's life.

But Bair is stepping down as solicitor general this month to become partners with Fred Warren Bennett, a well-known capital defense attorney who represented two of the last three Maryland inmates put to death.

"I've never really been a fan of capital punishment," Bair said in his typically measured manner during a recent interview. "Enforcing it was something that went with the job."

The two lawyers were on opposing sides recently. As Bennett filed last-minute appeals from Towson in Richmond, Va., and Washington in an effort to save Steven Howard Oken's life, Bair was advising lawyers on how to ensure the state could carry out its ultimate punishment.

Oken was put to death June 17 for the 1987 rape and murder of a White Marsh woman. A week later, Bennett said, he called Bair to discuss forming a law firm. The two have known each other since 1979, when Bair worked for Bennett in the Prince George's County public defender's office. They both teach law courses at American University.

Their new Greenbelt-based law firm, Bennett and Bair, will go into business next month and include another lawyer from the attorney general's office and a Prince George's County prosecutor. Bennett, 62, said he hopes the 53-year-old Bair will take over the practice when he retires.

Bair began his career with five years of defense work. In 1982, he represented Jack Ronald Jones in a Prince George's County death penalty case. Jones was convicted of killing 22-year-old college student Stephanie Roper after torturing and raping her. He shot her in the head and then mutilated her body and set it on fire.

Prosecutors sought the death penalty, but Jones was instead sentenced to two life terms. In part because of the sentence, Roberta Roper, Stephanie's mother, became an outspoken victims' rights advocate.

A year later, prompted by what he said was a desire to broaden his experience, Bair joined the attorney general's office. He has worked there ever since, beginning in the Medicaid fraud unit and then moving to the criminal appeals division.

Like his boss, Attorney General J. Joseph Curran Jr., who opposes the death penalty, Bair said his personal views have never interfered with his work.

He has worked on hundreds of cases, including final appeals for the last four Maryland death row inmates who were executed: Oken, Tyrone X. Gilliam, Flint Gregory Hunt and John Thanos. Bennett represented Oken and Hunt.

Bennett, a lifelong defense attorney and outspoken death penalty opponent, said he never pressed Bair on his views on capital punishment.

"My gut judgment - just from vague discussions with him - was that he was not enamored with the death penalty," Bennett said.

He said he wanted Bair to work with him because of his expertise in post-conviction appeals and federal and constitutional law, which have been cornerstones of Bennett's practice in recent years.

Judges think highly of Bair, said Court of Appeals Judge Irma S. Raker. He is married to Court of Special Appeals Judge Mary Ellen Barbera, and the two live in Ellicott City.

"I always looked forward to Gary Bair's cases before the Court of Appeals because I knew they would be well-prepared and argued professionally," Raker said. She called him the "complete lawyer" and said he "brings together brains, experience and confidence."

Bair has twice argued before the nation's highest court. In November, he took a Fourth Amendment case to Washington, saying that police had the right to arrest the passenger in a car pulled over during a routine traffic stop in Reisterstown because a search of the vehicle turned up bags of crack cocaine.

The justices unanimously ruled in his favor. He called that the most fulfilling moment in his legal career. A large painting of Bair presenting oral arguments in the case remained recently in his office, full of boxes packed in preparation for his move.

Bair also presented the state's side in a death penalty case before the Supreme Court. In March 2003, he argued that public defenders did not err in failing to present evidence of an abusive childhood during the original trial of death row inmate Kevin Wiggins. By a 7-2 vote, the justices sided with Wiggins, and he was taken off death row.

Bennett said Bair's experiences as a lawyer for the state will round out the law firm.

"Gary is one of the premier appellate lawyers in the state," Bennett said, "and he'll be equally effective on the defense side."

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