State's top court gets first look at Maryland's new death penalty law

Attorneys for Stephens seek assessment of evidence in capital murder trial

April 08, 2011|By Andrea F. Siegel, The Baltimore Sun

In an appeal that offers the state's highest court its first look at Maryland's new death penalty law, attorneys for a prisoner awaiting a capital murder trial said Friday that the judge who will try the case should be allowed to assess prosecutors' evidence and decide if it merits such a trial.

But an assistant attorney general urged the court to throw out the appeal. He argued the Court of Appeals should rule that the defense has no right to a pretrial hearing that one judge said would be "a preview of coming attractions" in the case against prisoner Lee Edward Stephens.

During hourlong arguments in Annapolis, Assistant Attorney General James E. Williams said the defense request to question the strength of the evidence that is now required in a death penalty case amounts to a move "to not only test the state's case, but take the state's case for a test drive" before Stephens is tried on charges that he fatally stabbed correctional officer David McGuinn, 42. The July 2006 killing at the Maryland House of Correction contributed to the facility's closing.

Stephens' appeal is rooted in 2009 changes in Maryland's death penalty law. They limit prosecutors' authority to seek execution for first-degree murder convictions to killings in which there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

The law restricts prosecutors, but it does not provide for a judge to hold a hearing to decide whether their evidence qualifies for a death penalty case, Williams said. That's what Stephens' lawyers sought from Anne Arundel County Circuit Judge Paul A. Hackner in October 2009.

Hackner turned them down, leading to this appeal. Pretrial appeals in all criminal cases are tightly limited, and Williams also argued that the issue should wait, like others, for the outcome of a trial. No trial date has been set for Stephens, 31.

But lawyer A. Stephen Hut Jr. told the judges that a few words in the 2009 state Senate proceedings would indicate that Hackner did not have to rule out a pretrial hearing for Stephens. Hut cited a statement in which Sen. Bobby A. Zirkin, a Baltimore County Democrat who drafted the restrictions, said the proposed change "would say if you did not have any DNA evidence, you're not moving forward with capital punishment."

Hut also said that "at a time of increasing budgetary pressures," having a judge determine if the prosecution has evidence for a death penalty case would potentially save resources. Stephens' case, for example, is expected to take 10 weeks and require the jury office to contact hundreds of potential jurors.

Hut is a partner with a Washington firm that is helping at no charge the two private attorneys hired by the Office of the Public Defender to defend Stephens.

The arguments came a month after death penalty opponents made a failed plea for state legislators to abolish capital punishment and amid a five-year de facto moratorium on carrying out the death penalty.

Stephens' co-defendant, Lamar Cornelius Harris, 41, also has no trial date, because of a pending appeal.

andrea.siegel@baltsun.com

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