Bias in Capital Cases Argued in Md.

By Eric Rich
Washington Post Staff Writer
Wednesday, June 8, 2005

Defense attorneys for Wesley E. Baker told Maryland's highest court yesterday that their client, a black man sentenced to die for fatally shooting a white woman, deserves a hearing to attempt to prove that his prosecution was compromised by a racial bias that they said pervasively infects the state's death penalty process.

The proceeding marked the first time the Court of Appeals had heard claims based on a state-sponsored study that found disparities, by race and location, in the application of the state's death penalty statute. University of Maryland researchers announced in 2003 that prosecutors were far more likely to seek the death penalty for black suspects charged with killing white victims, a racial disparity that mirrored national trends.

Yesterday, citing those findings, attorney Gary Christopher said that seven of every 10 black men sentenced to death for killing a white victim would have been spared had their victims been black. Christopher said Maryland's criminal justice system has devalued the lives of the state's black residents, sending the message that "the Maryland death penalty statute is there to protect white suburbanite communities from the predations of black men."

Annabelle L. Lisic, the assistant attorney general representing the state, said Baker should not be granted the hearing, arguing that there was no evidence that race played a role in any decision in the case and that prosecutors in Maryland have broad discretion in deciding whether to pursue the death penalty. Disparities could be explained, she said, by such factors as the resources of a particular state's attorney's office and judgments that prosecutors might make about the likelihood of winning a death sentence.

"There is nothing illegal in Mr. Baker's sentence," Lisic told the court.

Baker is one of seven prisoners on Maryland's death row, and one of three who were convicted of crimes committed in Baltimore County. All but one of the condemned men are black, according to anti-death penalty activists, and all but one were found guilty of killing white victims.

Baker was convicted in 1992 of murdering Jane Tyson during a robbery in the parking lot of a Catonsville mall. According to trial testimony, Baker approached Tyson and her two grandchildren, pressed a gun to the left side of her head and squeezed the trigger.

He was within days of his scheduled execution in 2002 when Gov. Parris N. Glendening (D) stayed the death sentence. Glendening ordered a moratorium on executions to give Raymond Paternoster, a University of Maryland criminal justice professor, time to complete his analysis of the prosecutions of 6,000 homicides committed in Maryland from 1978 through 1999.

Glendening's successor, Robert L. Ehrlich Jr. (R), subsequently lifted the moratorium. Steven H. Oken was executed last June, the first capital sentence carried out by the state since 1998.

Paternoster, in announcing his findings, said the explanation for the disparities rested with state's attorneys, not juries, although he was careful not to impugn the prosecutors' motives. He said that his analysis "doesn't mean there is racial animus" by prosecutors but rather that "the product of their action does result in racial disparity."

Yesterday, under questioning by Judge Alan M. Wilner, Christopher conceded that he could not now present any evidence that race influenced the decisions of the prosecutors, judges or jurors involved in Baker's case. But he said that, considering Paternoster's findings, there is "a very strong and substantial probability that race" played a role in any particular case. He said he hoped to demonstrate that bias by calling prosecutors as well as Paternoster and other experts as witnesses in an evidentiary hearing.

Prosecutors and death penalty supporters point to a 1987 ruling in which the U.S. Supreme Court, though deeply divided, held that such statistical analyses were insufficient to show that an individual case was prosecuted unfairly.

In addition to a handful of anti-death penalty activists, the proceeding drew Phyllis Bricker, whose elderly parents were killed in Baltimore by John M. Booth-el, another of Maryland's death row inmates, more than 20 years ago. "To raise this issue now is absurd, obscene," Bricker said. "Either there is a criminal justice system or there isn't."

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