Killer's attorney explains strategy

He says he didn't call some to stand in 2000 to limit testimony against client

February 18, 2005|By Jennifer McMenamin | Jennifer McMenamin,SUN STAFF

The attorney who took the lead in representing a convicted killer at a capital sentencing hearing in 2000 testified yesterday that the decision to elicit evidence from some witnesses while not calling others to the stand was part of a strategy aimed at limiting testimony that he feared would be most harmful to his client.

William Kanwisher spent nearly 3 1/2 hours explaining how he decided what testimony to present to jurors deciding whether to sentence Lawrence Michael Borchardt Sr. to life in prison or death by lethal injection for the Thanksgiving Day killings in 1998 of an elderly couple from whom he had tried to solicit money to buy drugs.

Kanwisher's explanations came on the third day of a Circuit Court hearing through which Borchardt's current lawyers are trying to have his death sentence overturned. They've argued that the failure of Kanwisher and co-counsel David P. Henninger to present expert testimony about the inmate's background and mental health - evidence that jurors might have considered mitigating factors - prevented Borchardt from receiving a fair sentence.

"We tried very hard to make sure we put as much positive mitigation in as possible without opening the door to things that might take the jury's eye off the ball," Kanwisher testified. Looking directly at Anne Arundel Circuit Judge Pamela L. North, who will decide whether to overturn Borchardt's sentence, Kanwisher added, "I may not have done a very good job of it. It's possible. That's what you're going to have to decide."

Kanwisher made no attempt to hide his displeasure at having been called by the prosecution.

In a particularly testy exchange with Baltimore County prosecutor Stephen Bailey, the defense attorney acknowledged that he had spoken this week to Borchardt's current lawyers but refused to speak with prosecutors Wednesday night. Asked why he would cooperate with the lawyers accusing him of incompetence and not the prosecutors put in the position of defending him, Kanwisher responded, "The reasons are simple: I don't want Mr. Borchardt to die. I don't want to help you. I'll answer truthfully, but I'm not going to help you."

Borchardt, 53, of Rosedale was convicted of fatally stabbing Joseph and Bernice Ohler. The couple had twice given money to Borchardt, a heroin addict who was going door to door claiming that his wife needed cancer treatments. He killed the couple when they told him they didn't have any more money to give. The case was moved from Baltimore County to Anne Arundel after Borchardt's lawyers requested a change of venue.

Kanwisher said he decided not to call mental health experts to testify, fearing that might allow prosecutors to ask about Borchardt's "braggings" of past and future violence. Among the more harmful claims, Kanwisher acknowledged, were Borchardt's statements to detectives that he had killed before the Ohler stabbings and would kill again, even in prison.

During questioning by Julie S. Dietrich, one of Borchardt's three attorneys, Kanwisher acknowledged that some of the testimony he was trying to preclude - including Borchardt's threats against a detention center nurse - came out anyway during the sentencing hearing. He testified that even then, he did not call as witnesses the psychiatric social worker and psychologist who might have offered evidence on Borchardt's behalf.

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