As execution clock winds down, the racial debate lingers

Death penalty foes urge review of 2003 study


When a major study found glaring disparities in the imposition of the death penalty in Maryland, opponents of capital punishment hoped it would spark reform -- or even the abolition of executions in the state. But as Wesley Eugene Baker faces a scheduled execution that could occur as soon as tomorrow, death penalty opponents are incensed and frustrated that so little has been done to address what they consider disturbing patterns of race and geography in the way the state imposes the ultimate sanction.

Baker is a black man convicted of killing a white woman in Baltimore County -- circumstances that the study found most likely to lead to a death sentence in Maryland. He would be the first black man to be put to death in the state since the 2003 release of the state-funded study.

"Absolutely nothing -- and I mean nothing -- has been done, and it's kind of outrageous," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "All three branches of government in Maryland are refusing to deal with this."

FOR THE RECORD - A graphic Sunday incorrectly identified the jurisdiction where Wesley Eugene Baker was sentenced to death. Baker was sentenced by a Harford County judge after the case was moved from Baltimore County. The graphic gave an incorrect middle name and sentencing date for another inmate, Heath William Burch. Burch was sentenced to death March 29, 1996.

Legislation to appoint a commission to examine the study's findings and make recommendations never emerged from the General Assembly. Efforts to extend a moratorium imposed in 2002 by then-Gov. Parris N. Glendening or to repeal Maryland's death penalty law failed. And the state's highest court has refused to rule on the merits of legal claims filed by death row inmates, including Baker, who have asked to have their sentences overturned based on the study's results.

Prosecutors -- especially in Baltimore County, which accounts for the majority of capital cases in Maryland -- are frustrated, too, but for different reasons. They dispute some of the report's finding and say it has played too large a role in the death penalty debate.

Three top prosecutors have gone so far as to hire an expert statistician to review the study by University of Maryland professor Raymond Paternoster.

"The Paternoster study continues to be cited as if everything he had done was correct, and all his data was accurate and there were no flaws in his methodology and certain conclusions were just foregone conclusions," said Stephen Bailey, the deputy state's attorney in Baltimore County. "People seemed to put greater weight in Ray Paternoster's report simply because he was the study's author."

Paternoster's is the fifth study conducted on Maryland's death penalty since it was reinstated in 1978, and it is the most comprehensive. Efforts to reach the professor last week were unsuccessful.

A longtime member of the University of Maryland's criminal justice faculty, Paternoster began by examining nearly 6,000 first- and second-degree murder cases prosecuted in Maryland from 1978 to 1999. He whittled down that number to the 1,311 cases eligible for the death penalty.

Under Maryland law, a convicted killer cannot be sentenced to death unless there is an "aggravating factor," such as the killing of a police officer or multiple victims, a killing by someone who was imprisoned at the time of the murder, or a killing committed during a robbery, carjacking, kidnapping or rape.

The $225,000 study found "no evidence that the race of the defendant matters in the processing of capital cases in the state," but that statistically, black defendants who killed whites were the most likely to be charged with capital murder and sentenced to death. The researchers also found that Baltimore County prosecutors are far more likely than their peers in other jurisdictions to seek the death penalty.

Baker's lawyers filed a motion in October 2004 asking that their client's death sentence be overturned on the grounds that "evidence now available suffices to establish that Maryland's death law, in its operation, creates a substantial risk -- indeed, a probability -- that the irrelevant factor of race is in fact very relevant."

The Maryland Court of Appeals heard arguments on Baker's legal challenge in June of this year but rejected the appeal in October without ruling on the merits of the claim. His lawyers said they had apparently chosen the wrong legal procedure and would refile their claim. But last month, 20 days after Gov. Robert L. Ehrlich Jr. signed a death warrant for Baker, the appeals court denied the second appeal for a new sentencing hearing without comment.

Gary W. Christopher, a federal public defender and one of Baker's attorneys, said that the state's highest court's refusal to hear his client's Paternoster claims is "one of the greatest disappointments of my professional career." That includes 14 years as a state public defender and 11 years on the federal level.

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