Defense plans racial bias appeal; Study to be used to contest Md. Death Penalty
/- The Baltimore Sun October 22, 2004
By: Julie Bykowicz and Jennifer McMenamin
For the first time since a study suggested that race plays a role in the state's application of the death penalty, a black man has been scheduled for execution - raising the prospect that a court may soon review the contentious issue.
Yesterday morning, at the request of prosecutors, a Prince George's County judge signed a death warrant for Heath William Burch, scheduling his execution for the week of Dec. 6.
But the judge also granted a defense request for a stay of execution while Burch's attorneys mount another round of legal challenges, which they said would incorporate the University of Maryland death penalty study that was released in January last year. Prosecutors did not oppose the request.
"We agreed with them that they should have a chance to raise the issues they want," Prince George's County State's Attorney Glenn Ivey said in an interview yesterday afternoon, adding that he favors a moratorium on executions.
The last Prince George's County man to be executed was Lott Glover, who was hanged for murder more than 50 years ago.
Burch, 35, was convicted in 1996 of stabbing an elderly Capitol Heights couple with a pair of scissors. Robert and Cleo Davis, neighbors he had known for years, were killed during the drug-fueled burglary. Burch has exhausted his mandated appeals and will not contest his guilt, said William Kanwisher, one of Burch's lawyers.
Instead, Burch's legal team will focus on such issues as the racial disparities cited by the University of Maryland study, Kanwisher said.
Professor Raymond Paternoster found that defendants who kill white people are more likely to be charged with capital murder and sentenced to death than killers whose victims are not white. The study found that blacks who kill whites are 2 1/2 times more likely to be sentenced to death than whites who kill whites.
Paternoster also noted a geographic disparity in how death sentences are handed down, saying that defendants in Baltimore County are much more likely to face the death penalty than defendants in other jurisdictions.
As the study was under way, then-Gov. Parris N. Glendening imposed a moratorium on executions. That moratorium was effectively lifted when Gov. Robert L. Ehrlich Jr. took office last year.
Five of the seven men on Maryland's death row, housed in a high-security Baltimore prison known as "Supermax," are black men who killed white people. Burch and two others who fit that profile are contesting their sentences based in part on Paternoster's study.
John Booth, the only man on death row convicted in Baltimore, has filed legal papers that, in part, raise the issue of racial bias. Baltimore Circuit Court is scheduled to hear the issue next summer, Booth's lawyer said. Booth was convicted of fatally stabbing Irvin S. Bronstein, 78, and his wife, Rose Bronstein, 75, in their home near Pimlico in May 1983.
Booth's attorney, Michael Millemann, said he will argue next summer that the death penalty process is "racially biased from the beginning to the end."
"An overriding question is whether the death penalty in Maryland is administered in a racially discriminatory fashion," Millemann said. "It's hard to imagine a more important question."
Last Friday, death row inmate Wesley Eugene Baker filed an appeal on similar grounds in Harford County, where he was sentenced to die in 1992. Baker was convicted of fatally shooting Jane Tyson, 49, in front of her grandchildren during a robbery in Catonsville.
In the 36-page appeal, Baker's lawyers asked that their client's death sentence be vacated in light of the University of Maryland study on the grounds that "evidence now available suffices to establish that Maryland's death law, in its operation, creates a substantial risk - indeed, a probability - that the irrelevant factor of race is in fact very relevant."
Consequently, the lawyers wrote, Baker's sentence "was imposed under the influence of cognizable racial prejudice."
With an execution date - though one that is stayed - scheduled in Burch's case, his lawyers have begun working on his version of a racial disparity-based appeal. Judge Steven I. Platt, who set the execution date and granted the request for a stay, ordered that Burch's legal team file its motions by Nov. 22.
"Racial disparity is obviously a significant issue. It was enough of an issue that the study was commissioned in the first place," Kanwisher said. "The question is whether it rises to the level that one can label as racist. That's what we're going to attempt to answer."
The lawyers for all three men are alleging violations of the Maryland Declaration of Rights, which guarantees equal protection without regard to race. But they're also claiming what they believe to be violations of the U.S. Constitution.
Should appeals based on the University of Maryland study reach the U.S. Supreme Court, it would not be the first time the nation's highest court weighed the question of whether race influences the application of the death penalty.
In a case that helped shape death penalty law, the justices heard in 1987 from Warren McCleskey, a death row inmate in Georgia who cited a study similar to the one completed at the University of Maryland.
But the Supreme Court, by a 5-4 vote, rejected McCleskey's appeal, ruling that a defendant must prove that racial prejudice influenced the judge, prosecutor or jury in his case.
The most recent execution in Maryland was of Steven Howard Oken, a white man whose victims were also white.
His lawyer, Fred Warren Bennett, referred to the Paternoster study in one of the motions he filed in the weeks before Oken's execution June 17, but a Baltimore County Circuit Court judge dismissed it without a hearing and the Court of Appeals refused to take up the matter.
Bennett said that because Burch is black, he might stand a better chance of getting an audience with a judge on the issue of racial disparity.
