Execution Still On Despite Racial Analysis
Md. Study's Disturbing Findings Have Been All but Ignored, Opponents Say

By Eric Rich
Washington Post Staff Writer
Sunday, December 4, 2005

Wesley E. Baker was born of rape and convicted of murder. If the state of Maryland has its way, he will die this week by lethal injection.

Absent intervention by the courts or Gov. Robert L. Ehrlich Jr. (R), Baker will be executed for the murder of Jane Tyson, who in 1991 was robbed in the parking lot of a Catonsville mall and then shot to death in front of her two grandchildren.

A poison drip will end an astonishing run of violence and tragedy that began even before Baker's birth 47 years ago, when his mother was attacked in an alley when she was not yet 14. "The product of serious trouble," Baker once said to a psychologist, recalling his view of himself as far back as elementary school.

"I knew I would end up dead, in prison for the rest of my life, on death row," his clemency petition says he told the psychologist. "If it could be worse, I knew I would be a part of it."

Although a death warrant signed by Ehrlich orders that Baker be executed this week, prison officials are prevented by law from disclosing the exact date and time in advance. His would be the first execution in Maryland since June of last year, when Steven Oken was put to death, and the fifth since the Supreme Court reinstated the death penalty in 1976.

Baker would also be the first black man to be executed in Maryland since researchers documented sharp disparities -- racially and by jurisdiction -- in how the state's capital punishment statute is used. Death penalty opponents and the study's author say neither the legislature nor the courts have responded adequately to the findings, announced nearly three years ago.

The study, commissioned by Gov. Parris N. Glendening (D) in 2000, found that prosecutors were far more likely to seek the death penalty for black suspects charged with killing white victims, as Baker was. It also found that slayings in Baltimore County were far more likely to result in death sentences than were slayings in other jurisdictions.

Six of the seven men on Maryland's death row are black, and all but one of their victims were white. Three of the condemned men were convicted for killings in Baltimore County.

In recent days, Baker's attorneys have filed a barrage of petitions and appeals, none successful. They have challenged the method of execution, contending that the trio of drugs used by the state has the potential to feel like a "fire traveling through the vein to the heart" and could cause Baker to be "tortured to death."

They have also asked Ehrlich to commute Baker's sentence to life without the possibility of parole, detailing circumstances of Baker's childhood that they say mitigate his crime. Ehrlich was considering the request this weekend, a spokesman said.

In his first 20 years, Baker was exposed to a catalogue of horrors, according to the accounts of his attorneys and psychologists in court documents and the clemency petition. Born unwanted to a teenage mother, he was sexually abused by age 5 and was using heroin regularly by age 10, his attorneys wrote in the petition to the governor. By 14, Baker was living with a prostitute twice his age, trading sex for drugs. He became a father the next year.

"In the garden of life, this is the formula for rearing antisocials," Circuit Court Judge Cypert O. Whitfill said during a 1993 hearing to review the death sentence he had given Baker the previous year.

At age 16, after being convicted for the first time in adult court, Baker was sentenced to three years in prison for unauthorized use of a motor vehicle. At age 19, in 1978, he was sentenced to 15 years for armed robbery. He was released in 1987, and the next year his youngest brother was shot in the back of the head in their neighborhood.

Baker was arrested again in 1989, on weapons and drug charges. He was released in September 1990, less than a year before he and another man encountered Tyson, a 49-year-old teacher's aide, at the Westview Mall, where she had been buying shoes for her grandchildren.

Assistant State's Attorney S. Ann Brobst, who won the death sentence against Baker, rejected the notion that he should be spared because of his background. "I've had death penalty defendants come from all kinds of different backgrounds," she said in an interview. "You see a lot of people from really rough backgrounds that go on to lead productive lives."

It is undisputed that Baker and the other man, Gregory Lawrence, committed the robbery that led to Tyson's death. And Baker's attorneys do not claim that he is innocent of murder.

But they say that Lawrence may have been the gunman, noting that a federal appeals court remarked that evidence that Baker shot Tyson "was not overwhelming." Under state law, only the actual killer can be given the death penalty.

Brobst dismissed the claim, saying a fingerprint on Tyson's window and blood on Baker's clothing left no doubt about which man fired the fatal shot. "One thing that's clear in this case is that there's no question who the shooter was," she said.

In a letter to Ehrlich, Baker's mother wrote that she understood the Tyson family's loss, having herself endured the killings of a brother and of her youngest son.

"I'm a mother begging for her son's life," Delores Williams wrote. "I've lost one son, please don't make it two."

Yesterday, at a demonstration outside the Maryland Correctional Adjustment Center in Baltimore, where her son is being held, Williams said, "We're just so very sorry, but we don't want to see anyone else lose a life."

Tyson's brother, Martin Andree, said that to this day, the older of the grandchildren who witnessed Tyson's murder has never spoken of it. Andree said the family believes that Baker's execution is overdue. "He killed my sister for $12 in broad daylight in front of her grandchildren," Andree said. "A jury decided he should have the death penalty, and I don't think anybody should stand in the way of that."

Tyson's family was tremendously pained, Brobst said, when Glendening granted Baker a stay in 2002, just days before he was to die.

At the time, Glendening said he was imposing a moratorium on the death penalty to give Raymond Paternoster, a University of Maryland professor, time to complete his study.

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

On Friday, he said executions should be stopped and the issue studied further.

"It's as if these facts are there and everyone is afraid of them," he said. "There's no question there are disparities. Whether they're the product of racial discrimination, I don't know, and I'm not sure it matters."

Baker's lead attorney, Gary Christopher, drew on the findings earlier this year in arguments before the state's highest court. Christopher said Maryland's criminal justice system has devalued the lives of black residents, sending the message that "the Maryland death penalty statute is there to protect white suburbanite communities from the predations of black men."

The court rejected his argument. Although the ruling was based on a procedural point, supporters of the death penalty were encouraged that the judges cited a U.S. Supreme Court holding that statistical analyses were insufficient to show individual cases were prosecuted unfairly.

In Virginia, Gov. Mark R. Warner (D) last week commuted the death sentence of Robin M. Lovitt because the state had thrown out evidence.

Cardinal William H. Keeler, the archbishop of Baltimore, has also urged Ehrlich to grant clemency. Keeler was joined in that request by Cardinal Theodore E. McCarrick, the archbishop of Washington, and Michael A. Saltarelli, the bishop of Wilmington, Del.

The governor's legal counsel, Jervis S. Finney, said Friday that the petition is under consideration. "Governor Ehrlich has been analyzing various aspects of this case -- including Paternoster and lethal injection -- over many months, and that is anticipated to continue through the weekend."

Staff writer Ann E. Marimow contributed to this report.

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