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Originally published in The Baltimore Sun November 25, 2004

By: Laura Cadiz

Lawyers seeking to have death row inmate Heath William Burch's sentence thrown out have filed court papers pointing to the University of Maryland death penalty study that suggested race plays a role in the state's application of the death penalty.

Burch, 35, is the first black man to be scheduled for execution since the Maryland study was released in January last year. The execution is set for the week of Dec. 6, but a judge has granted a stay of execution while his attorneys attempt their new legal challenges.

In the motion filed Monday in Prince George's County Circuit Court challenging his sentence as illegal, Burch's lawyers argue that the study shows that Burch's situation - a black defendant and white victims - is "the one that is most subject to discrimination throughout the process, from the decision to seek the death penalty, to the decision to maintain the prosecution as a death penalty case."

"If you look at the study, the way at which the prosecutors seek death sentences in Maryland is skewed in white-victim cases, and it's skewed even worse with white victim cases and black defendants," Michael E. Lawlor, one of Burch's attorneys, said yesterday.

Prince George's County State's Attorney Glenn F. Ivey, who did not oppose the stay of execution, said his office had not thoroughly read the motion and could not comment on it.

Burch's lawyers pointed out that professor Raymond Paternoster's study concluded that the state is more likely to seek the death penalty when a black defendant is accused of killing a white person. Blacks who kill whites are 2 1/2 times as likely to be sentenced to death as whites who kill whites, the study found.

Burch's attorneys also referred to the study's finding that in Prince George's County - which, along with Baltimore City has the highest rate of withdrawing death notices in the state - 31 of the 36 cases where the notice was not withdrawn involved black defendants and that 20 cases had white victims.

In 1996 Burch was convicted of stabbing his elderly Capitol Heights neighbors Robert and Cleo Davis with a pair of scissors during a drug-fueled burglary. Burch has exhausted his mandated appeals, and his lawyers do not plan to contest his guilt.

Burch's lawyers say they will prove that "race systematically operates as a factor in Maryland's capital sentencing process and that a substantial risk exists that (Burch's) sentence was a product of or was influenced by that factor."

Burch's lawyers say Paternoster was denied access to the files of the Prince George's state's attorney's office, and in a separate motion the lawyers asked the court to require the state to provide all the information Paternoster requested for his study.

While the Maryland study was being conducted, then-Gov. Parris N. Glendening imposed a moratorium on executions. Gov. Robert L. Ehrlich Jr. lifted the moratorium when he took office last year.

Two other defendants on Maryland's death row - both black men who killed white people - have also filed legal papers raising claims of racial bias regarding the death penalty.

John Booth-El - the only man on death row convicted in Baltimore, for the 1983 slaying of an elderly couple - is scheduled for a hearing in the summer in Baltimore Circuit Court.

Wesley Eugene Baker, who was sentenced to death in Harford County in 1992 after being convicted of fatally shooting a woman in front of her grandchildren during a robbery in Catonsville, is awaiting the state's response to his filing.