- The Washington Times - Monday, December 6, 2004

Three death-row inmates, running out of appeals, have filed or plan to file challenges to their death sentences based on a nearly 2-year-old study of race and Maryland’s death penalty.

That means judges likely will have to determine whether Maryland’s death penalty law allows race to seep into the decisions prosecutors make.

“The race issue will finally get litigated and resolved,” said Michael Millemann, a University of Maryland law professor who also represents death-row inmate John Booth.

In the state-commissioned study released in January 2003, University of Maryland professor Raymond Paternoster studied 6,000 murder cases between 1978 and 1999, including 1,311 homicides that were eligible for the death penalty under state law.

He concluded that race plays a major role in how the death penalty is used. Prosecutors were much more likely to seek death sentences in cases with black defendants and white victims, Mr. Paternoster found.

Geography was also key. Baltimore County, where prosecutors pursue the death penalty in all eligible cases, sought the most death sentences. Prince George’s County and Baltimore, with the state’s highest homicide rates, rarely ask for executions.

Three inmates, all black men with white victims, argue that Mr. Paternoster’s findings prove they were unfairly sentenced.

Attorneys for Wesley Eugene Baker, who committed his crimes in Baltimore County but faces trial in Harford County because of a venue change, have filed appeals saying his sentence was imposed under the influence of racial prejudice.

In Prince George’s County, a judge signed a death warrant for Heath Burch but stayed the order while his attorneys file their appeal based on the Maryland study. Booth’s case is expected to be heard sometime next year in Baltimore city.

Some prosecutors disagree with the study’s conclusions. In Baltimore County, where four of the seven inmates on death row committed their crimes, State’s Attorney Sandra O’Connor pursues capital punishment in every case that is eligible.

That prevents prejudice of any kind from entering the decision-making process, said Assistant State’s Attorney Ann Brobst, who is prosecuting the Baker case.

“I think either never to seek the death penalty or to seek it whatever factors exist is clearly racially neutral,” she said.

The courts may be as skeptical of the role of race as these prosecutors.

A Supreme Court ruling in the 1987 case McCleskey v. Kemp over a similar study in Georgia found that discrepancies in sentencing “are an inevitable part of our criminal justice system.”

That has significantly dulled the effect of appeals based on broad, statistical analyses of capital punishment, said University of Iowa law professor David Baldus, who wrote the Georgia study.

Defense attorneys must prove that the decision to seek the death penalty was driven by racial prejudice in a specific prosecutor’s office or with a particular prosecutor, he said. Broad studies rarely go that deep.

“The court says statistical evidence is irrelevant,” he said. “You’ve got to come up with an admission by a prosecutor or jury that they took race into account. That’s impossible to do.”

Cornell University law professor John Blume, who has litigated several appeals based on racial studies, said the chances that any of the Maryland inmates will succeed are slim.

Appealing a sentence on racial grounds is best done by focusing on a specific office, he said. That means doing a miniature study on a prosecutor’s office to get close to McCleskey’s requirement that there be some specific proven racial animus.

“By looking at it on a smaller level, you can attempt to demonstrate more likelihood of bias,” Mr. Blume said.

The three Maryland inmates using the Maryland study may be using that tactic. Mr. Paternoster said all three have asked him to cull his data for detailed reports on death penalty decisions in Baltimore, Baltimore County and Prince George’s County.

Mr. Blume also noted that the U.S. Supreme Court has been willing recently to take on death penalty questions. The court has barred the death penalty for the mentally retarded and people younger than 16 and is considering whether those younger than 18 should be eligible for execution.

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