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.
