Prison guard’s accused killer seeks delay in trial

Daily Record Legal Affairs Writer//April 8, 2011

Prison guard’s accused killer seeks delay in trial

By Steve Lash

//Daily Record Legal Affairs Writer

//April 8, 2011

With another bid to end capital punishment in Maryland about to die with the General Assembly session, the intent of the lawmakers who passed a compromise measure to restrict the death penalty two years ago took center stage in the state’s highest court on Friday.

The case marks the Court of Appeals’ first look at the revised law that restricts eligibility to cases in which guilt is established through DNA evidence, a videotaped confession or a video recording that conclusively links the defendant to the murder.

Lee E. Stephens, who is already serving a life term, is seeking to delay his trial on charges of murdering David W. McGuinn, who was stabbed to death in the Maryland House of Correction in July 2006. Prosecutors are seeking the death penalty for Stephens.

A judge in January improperly denied Stephens’ request for a pretrial hearing on whether the new law’s requirements are met in his case, attorney A. Stephen Hut Jr. argued before the Court of Appeals.

Assistant Attorney General James E. Williams countered that Anne Arundel County Circuit Judge Paul A. Hackner did nothing wrong by denying Stephens a hearing. Hackner said the jury could determine if the DNA evidence is strong enough to prove Stephens’ guilt and if death should be his punishment if convicted.

Hackner also refused to delay Stephens’ trial, which had been scheduled for May 2, but the Court of Appeals later ordered a stay until it takes action on the case.

Stephens and Lamarr C. Harris are accused of stabbing McGuinn while both defendants were serving life sentences at the Jessup facility, which has since been closed. (Harris was deemed unfit to stand trial in 2008, a finding the state has challenged.)

Interlocutory appeal

During Friday’s hour-long session in the Court of Appeals, several judges said Stephens’ appeal might be premature.

“You’ll have the right to appeal from an adverse [final] decision,” Judge Joseph F. Murphy Jr. told Hut. Murphy also voiced concern that permitting a challenge to Hackner’s pretrial decision in this capital case could spur similar challenges for much less serious crimes, causing delays in the trial courts.

But Hut said Murphy’s concern was unwarranted, as the right to an immediate interlocutory appeal could and should be limited to death penalty cases.

“Death is different,” Hut said. “Being subjected to a death trial is different.”

For example, when the death penalty is an option, jurors are seated only if they convince the court they could sentence someone to death. These “death-qualified” jurors are more likely to find the defendant guilty, Hut said.

That would not be an issue if a judge determined at a mandated pretrial hearing that the case was not eligible for the death penalty, said Hut, of Wilmer Cutler Pickering Hale & Dorr LLP in Washington, D.C.

“It is incumbent upon the circuit judge [to hold a hearing] as a matter of fundamental fairness,” Hut said.

Williams countered that Maryland’s death penalty statute does not “in any way, shape or form” require judges to hold a pretrial hearing on the DNA evidence, which he said can be challenged during trial.

Allowing defendants to appeal pretrial rulings like this one would result in death-penalty cases being “disrupted or brought to a grinding halt.”

That argument, however, led several judges to ask Williams if the state would still be opposed to an interlocutory appeal if a judge were to rule before trial that a defendant could not be sentenced to death if convicted.

“What’s good for the goose is good for the gander,” Judge Glenn T. Harrell Jr. told Williams.

Williams responded that the state and capital defendants are not similarly situated: The state cannot appeal a jury’s sentencing decision because it was short of death, but a defendant can challenge a jury’s sentence.

The Court of Appeals did not indicate when it will rule in the case, Stephens v. State, No. 114, Sept. Term 2010.

Last-minute compromise

The 2009 law underlying the high court case was a grudging last-minute compromise between legislators who sought to abolish Maryland’s death penalty and those who wanted to preserve it.

Hut, citing that legislative history, said the General Assembly’s goal was “to create much, much higher barriers” to the imposition of capital punishment. Among those barriers is the requirement that judges determine via a pretrial hearing if a defendant qualifies for the death penalty based on the presence of DNA or a videotape linking him to the slaying, Hut said.

Williams agreed that lawmakers in 2009 enacted “a narrow and restrictive death penalty statute.” But the legislators intended for jurors to determine during trial if DNA or videotape evidence is valid and links the defendant to the killing, Williams said.

While legislation to abolish Maryland’s death penalty was introduced this year, neither the House of Delegates nor the Senate had voted on H.B. 1075 or S.B. 837 as of Friday evening.

Maryland has been under a de facto moratorium on the death penalty since December 2006, when the Court of Appeals invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedure Act.

The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements, or the legislature amends the APA to exempt execution protocols.

Gov. Martin O’Malley’s administration in February withdrew its proposed lethal injection rules from a General Assembly committee, saying further review was required because a drug used in the executions — sodium thiopental — is no longer available for purchase in the United States.

“I will resubmit the regulations to you after the conclusion of this review,” Gary Maynard, secretary of the Maryland Department of Public Safety and Correctional Services, wrote in a February letter to lawmakers. Maynard did not state how long the review would take.

Five men are on Maryland’s death row. The last person to be executed in Maryland was Wesley E. Baker in December 2005.


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