Court rejects bid to have death sentence overturned

Inmate based appeal on study finding racial disparities


Maryland's highest court turned down yesterday a bid from death row inmate Wesley Eugene Baker to have his sentence overturned based on a University of Maryland study that found racial and geographic disparities in the state's use of capital punishment.

While not ruling on the merits of Baker's argument, the Court of Appeals ruled that Maryland law does not allow a defendant to use "an empirical study" as the basis for a request that a death sentence be declared illegal.

"It's awfully confusing on how to get information of this magnitude to the court at this stage in the process," said Gary W. Christopher, a federal public defender who argued Baker's case before the court in June. "The path we took, the court has said, was the wrong path. They've now given us a road map how to do it, I think, and we'll bring the issue to them again."

Stephen Bailey, Baltimore County's deputy state's attorney, said the county state's attorney's office will seek a death warrant for Baker as soon as the court's decision becomes official in 30 days.

Baker, 47, who is black, was sentenced to death in October 1992 for the murder of Jane Tyson, a white woman who was shot outside Westview Mall in Baltimore County.

He was the first death row inmate to ask the appeals court to overturn his sentence in light of a study by Raymond Paternoster, a University of Maryland professor.

The state-funded study found that black defendants who killed whites were the most likely to be charged with capital murder and sentenced to death in Maryland.

It also noted a geographic disparity in how death sentences are handed down, saying that defendants in Baltimore County are much more likely to be sentenced to death than are defendants in other jurisdictions.

Lawyers for death row inmate Vernon L. Evans Jr. also used the study in arguments before the Court of Appeals last month, and at least four other death row inmates are using the Paternoster report in new appeals of their sentences.

Christopher said he intends to file a motion asking the court to reopen Baker's post-conviction proceedings to hear an appeal based on the Paternoster study.

The court denied such a request in January, but Christopher said yesterday, "I think the landscape is a little different now. It seems to me that in a matter of this importance, there must be some procedural vehicle for getting it to the attention of the court. I can't believe there isn't."

Bailey said he does not see another legal avenue.

"Although the decision in this case was based on a procedural issue, the court made pretty clear in the opinion that the Paternoster report is not going to provide Wesley Baker the grounds to invalidate his death sentence," the prosecutor said.

He pointed to the last footnote of the opinion, in which the judges wrote that they "need not address" whether a general statistical study published after a capital sentencing hearing would ever "demonstrate constitutional error in a specific death sentence."

The court then noted McCleskey v. Kemp, a 1987 U.S. Supreme Court case in which Warren McCleskey, a death row inmate in Georgia, cited a study similar to the Paternoster report. The court, in a 5-4 vote, rejected McCleskey's appeal, ruling that a defendant must prove racial prejudice influenced the judge, prosecutor or jury in his case.


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