Capital case flaw claimed

Death row inmate's lawyer appeals to Md. high court, sees wider challenge later

Study on race as issue to be used

September 14, 2004|By Julie Bykowicz | Julie Bykowicz,SUN STAFF

Lawyers for a death row inmate argued before the state's highest court yesterday that the process in Maryland for sentencing death penalty cases is flawed - and later said they are preparing a broader legal challenge that would explore the issue of race in capital cases.

Wesley Baker's attorneys plan to use in an appeal a University of Maryland study released last year that found racial and geographic influences on capital punishment in the state.

"It's a substantial issue that hasn't yet been addressed," said Baker's lawyer, William B. Purpura. He said he would probably file that appeal in Harford County Circuit Court, where Baker was convicted, before the end of the year.

Baker was convicted in 1992 of fatally shooting Jane Tyson, 49, in front of her grandchildren during a robbery that netted $10. The crime occurred in the parking lot at Westview Mall in Catonsville, but the case was moved to Harford County when Baker requested a change of venue.

The hearing yesterday at the Maryland Court of Appeals focused on the way a judge or jury weighs reasons to send a murderer to death against reasons to spare the killer's life.

A judge or jury must decide whether aggravating factors, such as a rape or another felony committed along with the murder, outweigh mitigating factors, such as a defendant's troubled childhood, using a measure called "preponderance of the evidence."

Preponderance of the evidence means that it is more likely than not that the aggravating factors outweigh the mitigating factors. It's a less stringent standard than "beyond a reasonable doubt," which is required in finding a person guilty of a crime.

Purpura argued that "fundamental fairness" requires that the state use a higher burden of proof when sentencing someone to die. He said that cases involving the termination of parental rights, forfeiture of property and civil commitment to an institution all are judged by a higher burden of proof than the decision to sentence someone to death.

Maryland Assistant Attorney General Ann N. Bosse, responding on behalf of the state, said that the judge in Baker's case determined there were no mitigating factors to weigh against the aggravating factor of armed robbery, so "whatever the standard is, it's irrelevant to this case."

In a study of Maryland's death penalty released in January last year, professor Raymond Paternoster found that defendants who kill white people are more likely to be charged with capital murder and sentenced to death than are killers whose victims are not white. The study found that blacks who kill whites are 2 1/2 times more likely to be sentenced to death than are whites who kill whites.

The study also found that prosecutors in some jurisdictions, such as Baltimore County, are much more likely to seek the death penalty than their counterparts in other jurisdictions, even in similar cases.

Wesley Baker is black. His victim was white.

Steven Howard Oken, who along with his victims was white, raised the study in one of his last-minute appeals before being put to death in June, but a Baltimore County judge dismissed the appeal, and the Court of Appeals declined to hear arguments on it.

Prosecutors in Baltimore County and Prince George's County, the jurisdictions with the men who appear closest to exhausting their appeals, said they have known that Paternoster's study would need to be dealt with in court.

Baker's current argument before the Court of Appeals means that it could be at least another year before a death warrant would be signed in his case, said Baltimore County Assistant State's Attorney Ann Brobst.

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