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Wednesday, November 08, 2006

Death penalty defines contest

This article appeared in the Baltimore Sun on November 1, 2006:

Death penalty defines contest
Baltimore County prosecutor rivals split on selectivity

By Jennifer McMenamin
sun reporter


As the two men campaigning to be Baltimore County's top prosecutor drop in on retirement communities, candidate forums and political club gatherings, the questioning inevitably turns to one topic: the death penalty.

In a county that has drawn national notice for how many convicted killers it has sent to death row, voters will choose next week between a veteran prosecutor who says he will continue his boss's policy of seeking a death sentence in virtually every eligible case and a career litigator who says he will evaluate each case before deciding what sentence to pursue.

The issue presents a stark difference between Republican Stephen Bailey, the handpicked successor of longtime State's Attorney Sandra A. O'Connor, and his Democratic opponent, Scott D. Shellenberger, a former county prosecutor who has spent the past 13 years with the law firm of Peter G. Angelos."

Like it or not, Sandy O'Connor has had this legacy," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "If you take her time as state's attorney and what she did with the death penalty out of the picture, that takes out more than half of the [death row] cases. It's a huge chunk of Maryland's history of the death penalty."

O'Connor is retiring this year at the end of her eighth term -- and her 32nd year -- as the county's top prosecutor. This year marks the first time there has been a contested election for the job since 1982, when a Democratic challenger lost to O'Connor, receiving only 32 percent of the vote.

Her stated policy of seeking death sentences in all eligible murder cases -- with the exception of those that would depend on a co-defendant's testimony and those in which the victim's family objects -- has attracted national attention and death penalty opponents' criticism.

In 2002, researchers from Columbia, Rutgers and New York universities ranked Baltimore County second among large counties nationwide in the rate at which convicted murderers are sentenced to death. A year later, a state-funded University of Maryland study found racial and geographic disparities in the state's use of capital punishment, including the fact that Baltimore County prosecutors sought death sentences more often than any others in the state.

Bailey and Shellenberger describe themselves as death penalty supporters, and both have prosecuted capital cases. They also both characterized the task of standing before a jury and asking 12 men and women to sentence someone to death as an "awesome responsibility."

Bailey, 44, of Towson, has spent his entire 20-year career in the county prosecutor's office. He describes capital punishment as "something I wrestled with."

In 1988, within months of becoming a prosecutor, Bailey served as second chair in his first death penalty case -- a case that also happened to be his first jury trial. Kenneth L. Collins was convicted and sentenced to death for the 1986 robbery and shooting of a banker from Towson. The sentence was later overturned.

After the trial, Bailey said he asked O'Connor not to assign him to any more capital cases.

"It wasn't that I didn't think it was an appropriate sentence in that case, because I absolutely did," Bailey said in an interview. "But I had never been thrust into that situation before. People think they know what they believe about the death penalty until they're called upon to participate in a trial like that or serve as a juror. It takes it out of the realm of theory."

In 1993 or 1994, Bailey said, after several years of prosecuting serious, noncapital crimes, watching victims' families struggle with the criminal justice system and "feeling like they hadn't received a full measure of justice with a life sentence," he told his boss that he would again handle capital cases.If elected, Bailey says, he would continue O'Connor's policy.

Under Maryland law, prosecutors have discretion in seeking punishments but generally can pursue a death sentence for a convicted killer -- not an accomplice -- in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape.

Bailey, now one of O'Connor's two deputies, has repeatedly defended her practice as the best way to ensure the process is not discriminatory. He stresses that prosecutors' decision to file notice of intent to seek a death sentence means only that death will be one option for the judge or jurors to consider when deciding a defendant's sentence. And he has often criticized his opponent's promise to abandon O'Connor's approach and evaluate cases individually.

"That sounds like a pretty good idea," Bailey told a gathering of voters at a Republican club event. "But that's like saying, 'I'm going to put my pants on before I go to work in the morning.' The question is, what standard will you use? Saying you're going to decide on a case-by-case basis is like having no standard at all.

"Shellenberger, 47, of Parkville spent 11 years in the county prosecutor's office before joining Angelos' firm to do criminal defense work and plaintiffs' cases. He says he has supported capital punishment for as long as he can recall.

"I can specifically remember, at the age of 22, as a law clerk in the state's attorney's office, being asked if I wanted to work on a death penalty case, and I had absolutely no hesitation," he said.

On the campaign trail and in his mailings, Shellenberger frequently promotes his role in prosecuting Steven H. Oken, who was convicted of sexually assaulting and killing three young women in 1987. The mother of one victim has campaigned for him. After years of appeals, Oken was put to death in 2003.

Shellenberger, who has prosecuted four men in capital cases, says a state's attorney should evaluate each eligible murder case on its merits before deciding whether to seek a death sentence.

"Every day, the state's attorney makes decisions as to what charges to pursue and what sentence to ask for in every criminal case that gets prosecuted," he said in an interview. "Why is it that when it comes to whether to seek the ultimate punishment, the state's attorney doesn't do that?"

Shellenberger has, on occasion, blended his stated intention of taking a different approach to capital cases by pursuing death sentences "for those who commit the most heinous murders" with a promise to "continue" O'Connor's policy -- a pair of seemingly contradictory claims. Asked to explain, Shellenberger said that he used the word "continue" to signal that he would "be a strong advocate for the death penalty."

Supporters of both men say the death penalty issue is important."

Scott's got the right read on that," said Baltimore County Executive James T. Smith Jr., who oversaw a dozen capital cases during his 16 years as a judge. "I think a policy of pursuing the death penalty in every case that technically allows for it is not even consistent with the legislation that sets up the death penalty.

"You shouldn't just turn it over to a judge or jury to decide," added Smith, who appears in Shellenberger's TV and print ads and has indirectly contributed $315,000 from his own election coffers. "There is a first level of responsibility, and I think Scott is accepting that level of responsibility."

Lisa Dever, a county prosecutor who has contributed financially to Bailey's campaign, countered that O'Connor and Bailey's approach is the fairest way to handle the imposition of the nation's most serious punishment.

"People who oppose the policy say it should only be applied to the most heinous crimes," she said. "Who are we to tell that family that the loss of their family member is not a heinous crime? It's not for us to decide. ... If you do go for it in every eligible case, you take away all the bias and prejudice that's inherent whenever you start choosing."

jennifer.mcmenamin@baltsun.com

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