Maryland's new death penalty restrictions will get their first courtroom challenge today, as lawyers for one of two men facing trial in the killing of a prison correctional officer take the amended law to task.
"It was arbitrary who got death before, but now it's even more so," said Gary E. Proctor, a lawyer for Lee Edward Stephens, 30.
The law passed this year restricts when prosecutors can seek capital punishment to murder cases in which there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.
"How freakish is it that the operability of a video recorder can be the difference between life and death?" Proctor and Stephens' other lawyer, Michael E. Lawlor, wrote in briefs. The amendment, Proctor said, was poorly written "on the fly, off the cuff, on the legislative floor."
In an unusual move, Stephens' lawyers have subpoenaed all 24 of Maryland's state's attorneys to testify about how they decide when to seek the death penalty - testimony that could take a week. The defense lawyers argue that differences among prosecutors make the law unconstitutional.
Stephens and Lamar C. Harris, 39, are charged with the July 25, 2006, fatal stabbing of Correctional Officer David McGuinn, 42, at the Maryland House of Correction in Jessup. The facility, built in 1878, was closed in 2007.
Stephens is scheduled to be tried in February, but Harris' case is on hold because of a pretrial appeal.
Anne Arundel County prosecutors would not discuss the Stephens case, but the court file shows DNA testing was done. Security tapes have been used in other prison homicide cases, but prosecutors would not say whether they have them in this one.
In court briefs, prosecutors wrote that the capital sentencing law "remains constitutional after the amendment" and does not change the way a judge or jury decides between life imprisonment and execution.
Sen. Bobby A. Zirkin, a Baltimore County Democrat who proposed the amendment that became law, took issue with Proctor's characterization of the limitations and how they were drafted. Several prosecutors who support the death penalty testified last spring against them, saying they were haphazard and did not make sense.
"I'm pretty proud of what we did last year. It's a little odd to hear some defense attorney talk about a process they weren't involved in. This was a very thorough and thoughtful process," Zirkin said.
Sen. Brian E. Frosh, a Montgomery County Democrat and death penalty opponent, said he would have preferred to repeal the death penalty.
"It was one of those compromises where it left no one completely happy. But perhaps it leaves us better than where we were," he said.
"The new law in many ways hinders the prosecution's ability to seek the death penalty in the most heinous of cases," said Kristin Fleckenstein, spokeswoman for the Anne Arundel County State's Attorney's Office.
Baltimore County State's Attorney Scott D. Shellenberger said the law has affected his decision-making process, but so far, no actual decisions. Most Maryland death penalty trials come from Baltimore County.
Prosecutors are fighting the subpoenas.
Assistant State's Attorney Sandra F. Howell is expected to argue today before Anne Arundel Circuit Judge Paul A. Hackner that what each prosecutor does on his or her home turf is irrelevant.
"It really shouldn't matter in Anne Arundel County what we do in Baltimore County," Shellenberger said.
"What I said in the minority report and I say now is if you are going to have a system of independent county prosecutors, then the people can elect a state's attorney who's a strong supporter of the death penalty," he said, referring to his role on the Maryland Commission on Capital Punishment.
The group voted in 2008 to recommend abolishing the death penalty.
Earlier, Lawlor and Proctor claimed that their poor pay should be reason enough for Hackner to throw out the death penalty. As private lawyers hired by the Office of the Public Defender, their pay rate is the nation's second-lowest for a capital case.
The $20,000 maximum leaves them to decide between defending Stephens to the best of their ability and facing financial ruin, and neglecting him so they can stay in the black while booking Stephens "a bunk in death row."
Hackner denied the motion. They have asked the state's highest court, the Court of Appeals, to hear their argument.
Baltimore Sun reporter Julie Bykowicz contributed to this article.