- The Washington Times - Wednesday, February 12, 2003

Maryland's highest court stayed the execution of Steven Oken yesterday, delaying his death until at least May, when it hears the case.
Oken was scheduled to die the week of March 17 for the 1987 slaying of newlywed Dawn Marie Garvin. But by a 5-2 vote, the Court of Appeals halted the execution order signed Jan. 27 in Baltimore County.
Oken's attorney, Fred Warren Bennett, filed the stay motion Monday with the high court, arguing that Maryland's law does not force juries to give enough weight to factors that might discourage the death sentence.
The high court's decision to stay the execution likely signals its willingness to judge Maryland's law against two Supreme Court decisions dealing with those factors. The decision also could affect the sentences of Maryland's 11 other death-row inmates if the state law is deemed unconstitutional.
"This is good news indeed," Mr. Bennett said yesterday. "It shows the Court of Appeals continues to be interested in this case."
Mr. Bennett also appealed on the grounds that a recently released study of Maryland's death penalty proved the statute was unfair. The court did not act on that appeal in its stay, he said.
Baltimore County Circuit Court Judge Dana Levitz rejected a similar appeal based on the study yesterday, the attorney said.
In the state's response to Oken's stay motion, filed with the Court of Appeals earlier yesterday, the Attorney General's Office argued that Mr. Bennett's argument had been rejected before by the court.
Mr. Bennett contends that two recent Supreme Court cases, Apprendi v. New Jersey and Ring v. Arizona, set a high bar for juries considering evidence in the death-penalty phase of a trial.
Maryland's law requires juries to use a "preponderance of evidence" standard when weighing the aggravating factors of a case against factors that might benefit the defendant.
But Mr. Bennett argued that the Supreme Court cases show a jury must use the much tougher standard of "beyond a reasonable doubt" and give much more scrutiny to factors that might discourage a death sentence.
In the state's response to Mr. Bennett's motion for a stay, Solicitor General Gary Bair argued that several courts, including the Supreme Court, have rejected similar arguments by Oken before.
"Oken's current challenge to his sentence fails because his claim that Maryland's death penalty statute is unconstitutional, due to the burden of proof that applies during the weighing process, has been finally litigated," the response reads.
Mr. Bair did not immediately return a call seeking comment last night.
The decision comes as the death penalty is being heavily debated in Annapolis.
Former Gov. Parris N. Glendening imposed a moratorium on the death penalty while the study was being conducted. While Gov. Robert L. Ehrlich Jr. has lifted the moratorium, Lt. Gov. Michael S. Steele has called for further study. Attorney General J. Joseph Curran has advocated its abolition, and lawmakers have filed several bills that would narrow prosecutors' discretion in seeking capital punishment.
"We anxiously await the court's decision, and we'll let the judicial process play its course," said Shareese DeLeaver, a spokeswoman for the governor.
Fred Romano, the brother of Dawn Marie Garvin, faulted Mr. Curran for speaking out against the death penalty while his office defends Oken's death sentence in the appeals courts.
"I have no doubt it has something to do with Joe Curran's being in charge of the state's side of the house," Mr. Romano said.
Lawmakers and death-penalty opponents are hoping to change Mr. Ehrlich's mind with a measure that would block executions until after the state report is reviewed by the General Assembly and lawmakers make recommendations.
Leading that argument has been Delegate Salima Marriott, Baltimore Democrat. She praised the high court's decision.
"We have a system that is not just, it's problematic, and therefore no one should be executed in this state," Mrs. Marriott said.

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