The Sun

Inmate fights death penalty - High court's ruling renders Md. statute invalid, lawyer says; Constitutionality assailed; Use of argument by more prisoners likely

By Dennis O'Brien Sun Staff - Originally published March 12, 2001An inmate on Maryland's death row who is expected to be executed this year will raise an argument this month never before heard here: that the U.S. Supreme Court invalidated the state's death penalty law a year ago. Lawyers for Steven Howard Oken, sentenced in 1991, plan to argue March 21 in Baltimore County Circuit Court that the Supreme Court nullified Maryland's death penalty statute in June when it struck down a New Jersey hate crime law. The high court ruled in Apprendi vs. New Jersey that to increase a defendant's prison sentence beyond the statutory maximum, as the hate crime statute allowed, prosecutors must prove the existence of aggravating factors beyond a reasonable doubt. Fred W. Bennett, Oken's attorney, says Maryland's death penalty law fails to meet that test because jurors use a lesser standard at sentencing. He views capital punishment as an enhancement of the maximum sentence for first-degree murder -- life without possibility of parole. "We're attacking the constitutionality of the entire death-sentencing scheme in Maryland," Bennett said. Bennett said he also will use the Apprendi ruling before the Court of Appeals on May 3 when he argues for a new trial for Lawrence Borchardt, who was sentenced to death last spring for the killing of an elderly Rosedale couple in 1998. But state lawyers say that the Apprendi decision does not apply to Maryland's death penalty law because it addressed only statutes -- such as hate crime legislation -- that extend sentences beyond the maximum provided for by law. They deny that the death penalty is an enhancement of the established punishment for first-degree murder. "We're not enhancing any penalties when we seek a death sentence. Death is the maximum penalty in first-degree murder cases," said Assistant State's Attorney S. Ann Brobst, who prosecuted Oken. The Maryland General Assembly is reviewing a proposal to impose a moratorium on executions until researchers at University of Maryland complete a study on whether the death penalty is unfairly imposed on African-Americans. The study was approved last year by Gov. Parris N. Glendening. Thirteen inmates are on Maryland's death row, said Assistant Attorney General Gary Bair. Bair, who oversees the criminal appeals division, said Bennett would be the first lawyer to raise the issue in the state appeals process since the Apprendi decision was handed down. At least three other death row inmates -- who like Oken have nearly exhausted their appeals -- are expected to use Apprendi in similar arguments in the next few months. The Supreme Court is expected to rule soon on petitions seeking review filed by Anthony Grandison and Vernon Evans, who were convicted of the April 28, 1983, murders of David Scott Piechowicz and Susan Kennedy in Pikesville, legal experts said. The Supreme Court denied Oken's petition for review last month. The court also denied a petition two weeks ago filed by Wesley Baker, who was convicted of the 1991 killing and robbery of Jane Tyson at Westview Mall in Catonsville. "I would expect all four of the defendants currently up for review will be raising Apprendi-related issues," said Gary Christopher, a federal public defender who represents Baker. The Apprendi case involves a Vineland, N.J., man who was convicted of a gun violation for shooting into the home of a black family that had moved into his white neighborhood. The crime carried a 10-year maximum sentence. But the judge found by a preponderance of the evidence that the shooting was racially motivated and sentenced Apprendi to a 12-year term under the enhanced penalties provisions of New Jersey's hate crime statute. The Supreme Court ruled that enhanced penalties must be decided by a "reasonable doubt" standard -- the toughest test in law. Bennett said that ruling means jurors who sentenced Oken to death rather than to life in prison in 1991 -- based upon a "preponderance of evidence" standard -- used a standard that was "unconstitutionally low." Bennett plans to request a new trial during a hearing before Judge James T. Smith Jr. on March 21. He is scheduled to argue before Judge Dana M. Levitz the same day that the state gave Oken insufficient notice of the aggravating factors to be used against him to seek a death sentence. Oken sexually assaulted and killed Dawn Marie Garvin, a 20-year-old White Marsh newlywed, on Nov. 2, 1987. Two weeks later, he killed his wife's sister, Patricia A. Hirt, 43, at his White Marsh townhouse. Oken fled to Kittery, Maine, where he killed Lori E. Ward, 25, a motel clerk. He was arrested Nov. 17, 1987, in Kittery and sentenced to life in prison for the murder of Ward. - On Jan. 25, 1991, he was sentenced to die in the gas chamber for the murder of Garvin. The next April, he pleaded guilty to murdering Hirt and was given another life sentence to be served concurrently with a life sentence he received for sexually assaulting Garvin.