Death penalty defines contest

Baltimore County prosecutor rivals split on selectivity

Maryland Votes 2006

6 Days Until Election Day

November 01, 2006|By Jennifer McMenamin | Jennifer McMenamin,sun reporter

As the two men campaigning to be Baltimore County's top prosecutor drop in on retirement communities, candidate forums and political club gatherings, the questioning inevitably turns to one topic: the death penalty.

In a county that has drawn national notice for how many convicted killers it has sent to death row, voters will choose next week between a veteran prosecutor who says he will continue his boss's policy of seeking a death sentence in virtually every eligible case and a career litigator who says he will evaluate each case before deciding what sentence to pursue.

The issue presents a stark difference between Republican Stephen Bailey, the handpicked successor of longtime State's Attorney Sandra A. O'Connor, and his Democratic opponent, Scott D. Shellenberger, a former county prosecutor who has spent the past 13 years with the law firm of Peter G. Angelos.

"Like it or not, Sandy O'Connor has had this legacy," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "If you take her time as state's attorney and what she did with the death penalty out of the picture, that takes out more than half of the [death row] cases. It's a huge chunk of Maryland's history of the death penalty."

O'Connor is retiring this year at the end of her eighth term -- and her 32nd year -- as the county's top prosecutor. This year marks the first time there has been a contested election for the job since 1982, when a Democratic challenger lost to O'Connor, receiving only 32 percent of the vote.

Her stated policy of seeking death sentences in all eligible murder cases -- with the exception of those that would depend on a co-defendant's testimony and those in which the victim's family objects -- has attracted national attention and death penalty opponents' criticism.

In 2002, researchers from Columbia, Rutgers and New York universities ranked Baltimore County second among large counties nationwide in the rate at which convicted murderers are sentenced to death. A year later, a state-funded University of Maryland study found racial and geographic disparities in the state's use of capital punishment, including the fact that Baltimore County prosecutors sought death sentences more often than any others in the state.

Bailey and Shellenberger describe themselves as death penalty supporters, and both have prosecuted capital cases. They also both characterized the task of standing before a jury and asking 12 men and women to sentence someone to death as an "awesome responsibility."

Bailey, 44, of Towson, has spent his entire 20-year career in the county prosecutor's office. He describes capital punishment as "something I wrestled with."

In 1988, within months of becoming a prosecutor, Bailey served as second chair in his first death penalty case -- a case that also happened to be his first jury trial. Kenneth L. Collins was convicted and sentenced to death for the 1986 robbery and shooting of a banker from Towson. The sentence was later overturned.

After the trial, Bailey said he asked O'Connor not to assign him to any more capital cases.

"It wasn't that I didn't think it was an appropriate sentence in that case, because I absolutely did," Bailey said in an interview. "But I had never been thrust into that situation before. People think they know what they believe about the death penalty until they're called upon to participate in a trial like that or serve as a juror. It takes it out of the realm of theory."

In 1993 or 1994, Bailey said, after several years of prosecuting serious, noncapital crimes, watching victims' families struggle with the criminal justice system and "feeling like they hadn't received a full measure of justice with a life sentence," he told his boss that he would again handle capital cases.

If elected, Bailey says, he would continue O'Connor's policy.

Under Maryland law, prosecutors have discretion in seeking punishments but generally can pursue a death sentence for a convicted killer -- not an accomplice -- in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape.

Bailey, now one of O'Connor's two deputies, has repeatedly defended her practice as the best way to ensure the process is not discriminatory. He stresses that prosecutors' decision to file notice of intent to seek a death sentence means only that death will be one option for the judge or jurors to consider when deciding a defendant's sentence. And he has often criticized his opponent's promise to abandon O'Connor's approach and evaluate cases individually.

"That sounds like a pretty good idea," Bailey told a gathering of voters at a Republican club event. "But that's like saying, `I'm going to put my pants on before I go to work in the morning.' The question is, what standard will you use? Saying you're going to decide on a case-by-case basis is like having no standard at all."

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