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Time Out

Change To Patriot Act Could Shorten Death-Row Inmates’ Time To Appeal Cases

By Lawrence Hurley | Posted 3/29/2006

The five current residents of Maryland’s death row probably don’t pay much attention to the actions of members of Congress down the road in Washington. But earlier this month, when President Bush signed into law the reauthorized version of the anti-terrorism USA Patriot Act, some of them may have—at the stroke of a pen—moved at least six months closer to execution.

That’s because of a little-noticed provision in the act aimed at speeding up the procedure through which death-row inmates appeal their cases in federal courts—a process known as habeas corpus.

Defense lawyers and most state judges—including the national Conference of Chief Justices, of which Maryland Chief Judge Robert M. Bell is president-elect—opposed the measure.

The new law isn’t good news for those death-row inmates languishing in their cells at Baltimore’s bleak Supermax facility on East Madison Street, though at first glance, it doesn’t appear that the provision will change much. The legislation amends a 10-year-old system for expedited appeals in federal courts—a system that never took off because, for a state to be allowed to expedite an appeal, federal judges had to rule that the state could provide competent defense lawyers. Only Arizona met that burden; many states never made much attempt to apply.

Congress has now decided that the U.S. attorney general, rather than a federal judge, should make the decision as to whether a state has provided a defendant a competent defense lawyer. Critics of the change say this puts the decision in the hands of a prosecutor, current Attorney General Alberto Gonzales, who is likely to favor execution. A judge, on the other hand, would be a neutral arbiter.

“Presumably it will be easier” for states to join the expedited-hearing process, says Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based organization opposed to capital punishment. Dieter predicts that the Patriot Act provision will have “a speeding-up affect on a lot of cases” around the country.

If a state joins the expedited-hearing schedule, lawyers’ deadlines to file motions are shorter, reduced to 180 days from a year. Another provision in the act redefines the point at which a case is considered pending in federal court, which controls when a judge can issue a stay. Under current law, a federal court can issue a stay even when a petition for a stay has not yet been filed. But under the changed law, a petition is only considered pending after it has been filed (unless the inmate does not have a lawyer).

Gary E. Bair, a criminal defense lawyer who used to head the criminal appeals division of the Maryland Office of the Attorney General most recently in 2004, believes the new system could cut about six months off the average death-row case.

“Maybe the average time for Maryland cases is now eight to 10 years, and perhaps it will decrease to 7.5 to 9.5 years,” he says in an e-mail regarding the matter. Bair is not working on any capital cases at the moment, although his law partner, Fred Warren Bennett, represents death-row inmate Jody Miles.

Prosecutors who favor the death penalty have welcomed the change to the appeals law. They say that their opponents—the defendants’ lawyers—often wait until the last minute to meet court deadlines. And if a particular judge is so inclined, he or she may push deadlines for filings back for years, according to Stephen Bailey, deputy state’s attorney in Baltimore County, the Maryland jurisdiction most likely to seek the death penalty.

“Our arguments have come with defense counsel who have no interest in moving the matter forward in a timely fashion, who game the system,” he says. Bailey understands why defense lawyers try to draw out the process, but he says the pending Patriot Act provision will take the issue out of their hands. “In individual cases it certainly could move the process forward,” he says of the change to the law.

The good news for those currently on Maryland’s death row is that these changes aren’t likely to take place anytime soon. The law may face legal challenges around the country, and Maryland has to formally apply to “opt in” to qualify for the expedited appeals process.

There is no word yet from state Attorney General J. Joseph Curran Jr., who has voiced his opposition to the death penalty in the past, as to whether Maryland will apply to act under the changed law. Kevin Enright, spokesman for Curran’s office, says the state is still studying the new law and has not yet reached a conclusion about whether it should apply here.

Vernon Evans, the death-row inmate closest to execution, would not be affected if the state does opt in to the new law because he has already exhausted nearly all of his appeals. Evans was convicted of murdering Susan Kennedy and her sister’s husband, David Scott Piechowicz, in April 1983 in the lobby of the Warren House Motor Hotel in Pikesville. Fellow death-row inmate Anthony Grandison was sentenced to death for hiring Evans to commit the crime.

One candidate for execution who would be affected by the revised law is Lawrence Borchardt. He is technically not on death row because he is being resentenced after winning an appeal last year. But if his death sentence is reinstated following yet another appeal, the new time lines may apply, Bailey says.

Borchardt, who was a long-term heroin addict, stabbed an elderly couple to death in their home in eastern Baltimore County on Thanksgiving Day 1998.

The remaining inmates on Maryland’s death row are Miles, convicted in Wicomico County, John Booth, convicted in Baltimore City, and Heath Burch, convicted in Prince George’s County. The last man to be executed in Maryland was Wesley Baker last December.

As Dieter notes, the intense scrutiny of Maryland’s death-penalty statute by the courts means that most defense attorneys will—at the moment, at least—be more interested in Evans’ last-ditch appeal than the changes to the Patriot Act.

The Maryland Court of Appeals is set to consider Evans’ fate in May in a case that could affect all capital cases, as it raises issues concerning the legality of lethal injection and also alleges racial bias in the way the death penalty is implemented. If the court rules against Evans, and he is subsequently executed, similar cases that are at present stalled will then start wending their way through the federal courts, Dieter says.

After that, defense attorneys may start worrying about the Patriot Act.

“In the short term, nothing is imminent,” says Dieter. “But it will have a big affect on all states, including Maryland.”

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