- The Washington Times - Wednesday, October 10, 2001

ANNAPOLIS An attorney for death-row inmate Steven Oken asked the state's highest court for a new sentencing hearing yesterday, arguing that Maryland law does not set a strict-enough standard for jurors to use in deciding whether to impose capital punishment.
A retroactive decision by the Court of Appeals in Oken's favor could entitle all 13 men facing the death penalty in Maryland to a new hearing, said Oken's attorney, Fred Bennett.
Mr. Bennett said he was "cautiously optimistic" that the appeals judges will grant a new sentencing hearing. There was no indication when a decision would be made.
Oken's appeal is based on the U.S. Supreme Court's ruling in Apprendi vs. New Jersey, striking down a New Jersey hate-crime law. A divided Supreme Court said the law should not have given judges the discretion to increase prison time by considering factors not weighed by jurors or proven beyond a reasonable doubt.
Mr. Bennett argued yesterday that Maryland's sentencing law is invalid because juries determine whether to impose the death sentence after considering aggravating factors that weigh in favor of capital punishment and mitigating factors that weigh against the death sentence.
That process amounts to a moral judgment by a jury based on a preponderance of the evidence instead of the reasonable-doubt standard needed for conviction.
Divorce lawsuits and fender-bender automobile-accident cases are rightly decided on a preponderance of the evidence standard, but a higher standard is needed when a life is at stake, Mr. Bennett argued.
Ann Bosse, a deputy attorney general, urged the court to uphold Oken's sentence and the law.
She said Mr. Bennett described the current sentencing system "as a weighing process" by the jury. "I would disagree," she said.
Oken was sentenced to die for the Nov. 1, 1987, murder of Dawn Garvin in Baltimore County. Two weeks after killing Miss Garvin, Oken sexually assaulted and murdered his sister-in-law, Patricia Hirt, in Maryland and then traveled north to Kittery, Maine, where he killed Lori Ward, a clerk at a motel.
He received life sentences for killing Mrs. Hirt and Miss Ward.
The Court of Appeals also heard arguments yesterday in a second case involving one of the 13 men now awaiting execution.
Attorneys for Wesley Baker, convicted of killing a woman in front of her grandchildren at a mall in 1991, argued he was not eligible to be sentenced to death because prosecutors did not specify in the charging documents that he was a "principal in the first degree."
But Judge John C. Eldridge suggested that was implicit in the documents since prosecutors can only ask for the death penalty for a murderer who is a principal in the first degree.

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