� 14/12/01

Divided Md. High Court Backs Death Penalty Law

By Daniel LeDuc  and Matthew Mosk

Maryland's highest court upheld the state's death penalty law in a close decision yesterday, clearing the way for executions and prompting opponents of capital punishment to plead to Gov. Parris N. Glendening to impose a moratorium on executions.

 The decision came eight months after the Court of Appeals effectively halted executions while it considered appeals from death row inmates about whether the law was applied fairly. Now, death penalty cases can move forward, and there could be an execution in Maryland next year.

 Voting 4 to 3, the court ruled that a recent U.S. Supreme Court decision that struck down a New Jersey law on hate crimes did not invalidate Maryland's death penalty.

 The decision was a major setback for opponents of capital punishment not only in Maryland but throughout the nation. Similar challenges using the U.S. Supreme Court decision have been launched in other states; success in Maryland would have bolstered those cases.

 The decision came in the case of Lawrence Borchardt Sr., who in May 2000 was convicted of murdering an elderly Baltimore County couple in their home two years earlier. But it may have more immediate ramifications for another man on Maryland's death row: Steven Howard Oken used the same grounds for an appeal pending with the Court of Appeals.

 Borchardt has rounds of federal appeals to go before facing execution, but Oken has exhausted his federal appeals. Oken was convicted of raping and killing three women in 1987. Once the state court rules in Oken's case, he will have one more appeal to the U.S. Supreme Court and, if unsuccessful, could be the next person to face execution in Maryland.

 "Obviously, this decision is not good news for Mr. Oken," said Greenbelt defense attorney Fred Warren Bennett, who represents both Oken and Borchardt.

 "I'm very disappointed," he said. "Basically, one vote makes a difference to everybody on death row."

 Borchardt and Oken were among four  condemned men to appeal their cases based on a complex argument challenging the constitutionality of Maryland's death penalty law. The U.S. Supreme Court had invalidated a New Jersey hate crimes law because it allowed judges to weigh the criminal's motive in deciding the sentence. Motive, the high court ruled, was never considered by a jury beyond a reasonable doubt.

 A series of aggravating and mitigating circumstances help a Maryland jury determine whether to sentence someone to death. Bennett had argued that a jury must consider such issues and decide beyond a reasonable doubt whether they apply.

 The Maryland court ruled that a lower standard, based on the preponderance of evidence, applies.

 "As individual judges, we might well entertain the personal belief that it would be more fair, or better public policy, for the jury to apply the reasonable doubt standard," Judge Alan M. Wilner wrote for the majority. But "that is a judgment for the legislature to make."

 Yesterday, death penalty opponents called on Glendening (D) to impose a moratorium to ensure that the death penalty is meted out fairly.

 The decision "puts the ball in Glendening's court, and it's time for him to declare a moratorium," said Jane Henderson, co-director of the Quixote Center, a national anti-death penalty organization based in Maryland. "I think we're probably going to see executions in 2002 unless the governor does something or else the legislature does something."

 Glendening is a supporter of the death penalty who has refused to institute a moratorium. He has said he thoroughly reviews each death penalty case. Glendening has approved two executions as governor and commuted one death sentence to life in prison. Eleven men are on Maryland's death row.

 Spokesman Michael Morrill said Glendening had not yet reviewed yesterday's court decision to determine what implications it may have on his policies toward capital punishment.

 Legislators said the court opinion, coming less than a month before the General Assembly convenes Jan. 9, was sure to reignite the issue in Annapolis.

 Del. Kenneth C. Montague Jr. (D-Baltimore), who serves on the Judiciary Committee, said the issue of how to weigh evidence may appeal to lawmakers who last session grappled with the emotional issue of whether race plays a factor in the application of the death penalty. Opponents of capital punishment fought unsuccessfully for a moratorium on executions while criminologists study Maryland's death penalty to determine if it is fair.

 "The moratorium raises the question of whether the death penalty is being applied in a way that is unfair because of race," Montague said.

 "But this is a strictly neutral question. . . . This one may actually be considered by the General Assembly more easily than questions about the disparity in the application."