Maryland's top court upheld the way the state imposes the death penalty yesterday, dashing the hopes of death penalty opponents and moving Baltimore County killer Steven Oken closer to execution.
In its 4-3 decision, the Court of Appeals rejected Oken's appeal - the fourth it has heard - saying last year's U.S. Supreme Court decision Ring vs. Arizona does not affect Maryland's capital punishment system.
Oken, along with death penalty opponents, had argued that the ruling, which forced Arizona to change the way it sentenced defendants to death, also meant that Maryland's system was unconstitutional. If he had won his appeal, at least eight of Maryland's 10 death row inmates might have been entitled to new sentencing hearings.
Oken was tried in Baltimore County for the 1987 murder of Dawn Marie Garvin, and was sentenced to death in 1991.
Fred W. Bennett, Oken's lawyer, said he and his client would soon decide whether to ask the Court of Appeals to reconsider its decision. Oken also has 90 days to ask the Supreme Court to take a look at his case.
Assistant State's Attorney S. Ann Brobst said prosecutors will wait until the case returns to Baltimore County before they start seeking another death warrant for Oken. She said prosecutors will also have to see what moves Oken's attorney makes before they decide on strategy.
To anti-death penalty activists, the decision was a blow. Many had thought that the court would change the way defendants are sentenced in Maryland.
For a convicted murderer to be sentenced to death in Maryland, prosecutors must prove beyond a reasonable doubt that the defendant directly caused the victim's death. Prosecutors also must prove beyond a reasonable doubt that there is at least one "aggravating factor" - that the murder was committed during the course of a rape or kidnapping, for instance.
Finally, a prosecutor must prove by a preponderance of the evidence - the lowest burden of proof in the justice system - that the aggravating factors surrounding a murder outweigh any mitigating factors.
Oken had argued that this last step uses the wrong burden of proof. He said that prosecutors should have to prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, as they would have to do in any other fact-finding part of a trial. He said the Supreme Court's Ring vs. Arizona decision last year backed up his position.  In Ring, the Supreme Court said a defendant has the right to have a jury decide whether to impose the death penalty.
The state contended that this part of the sentencing hearing was a judgment call, not a factual determination, and said that Ring did not apply to Maryland's law.
In an opinion that delved into recent history of death penalty statutes, four judges agreed and supported Maryland's law.
"The weighing process is purely a judgmental one," Judge Glenn T. Harrell Jr. wrote for the majority.