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.
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