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By Robert Patrick
Capital News Service
Friday, April 20, 2001

ANNAPOLIS - Maryland's high court will hear a case early next month that has the potential to save the life of everyone on the state's death row.

Lawrence Michael Borchardt Sr. will appeal his death sentence on the grounds that a U.S. Supreme Court decision, Apprendi v. New Jersey, restricted a court's ability to increase sentences by using factors that were not proved in front of a jury.

State officials dismiss the argument, saying Apprendi cannot apply to capital cases because a capital sentence cannot be "increased" -- death is death.

Borchardt is not the first man in Maryland to use Apprendi to challenge his death sentence: The Court of Appeals earlier this month delayed a hearing on Steven Howard Oken's Apprendi appeal until its fall term.

Borchardt's hearing is scheduled for May 4, and a ruling could come in as little as two to three months, said his lawyer, Arcangelo Tuminelli.

Borchardt was convicted May 10, after a weeklong trial, for the 1998 murders of Joseph Ohler, 81, and his wife Bernice, 83, in their Baltimore County home. Jurors began the sentencing phase of his trial later that month.

During sentencing in a capital case, jurors determine "beyond a reasonable doubt" if there were "aggravating factors" in the murder -- such as whether the victim was a police officer or whether it occurred during the commission of another violent felony -- that would argue for the death penalty.

They then determine if there are "mitigating factors," based on a "preponderance of the evidence," that would argue against the death penalty. Finally, they weigh the factors against each other and come to a unanimous sentence based on a preponderance of the evidence.

Borchardt's jury could not unanimously agree on any mitigating factors in his case, although court records show that some jurors thought life without parole would be "severe enough" due to his health problems and the emotional, physical and sexual abuse he received as a child.

Tuminelli said Maryland's death penalty statute is unconstitutional because it permits a death sentence to be imposed even if aggravating factors outweigh mitigating factors by only a preponderance of the evidence. Under that standard, a jury can be as little as 51 percent sure the evidence is true, while reasonable doubt, the standard used to determine guilt or innocence, requires a jury is 99 percent sure.

The Supreme Court ruled in the Apprendi case that "facts (that enhance the sentence) must be established by proof beyond a reasonable doubt."

Tuminelli also said that Borchardt's indictment was defective, under Apprendi, because it did not list all the aggravating factors that contributed to the death sentence. The indictment only charged Borchardt and his girlfriend, Jeanne Sue Cascio, with murder, possession of heroin and felony robbery for taking $11 from Ohler.

But the Maryland Attorney General's office does not agree that Apprendi even applies to capital cases, according to its brief in the case. The state also contends that since the law allows for "death, imprisonment for life, or imprisonment for life without parole," a death sentence is not an increase in the maximum penalty as defined by Apprendi.

Finally, the state argues that the aggravating factors used to support the death penalty are "proved beyond a reasonable doubt." The only issues using the lower, preponderance of the evidence standard, are the mitigating circumstances and the weighing of the competing aggravating factors and mitigating circumstances.

State officials could not predict when a verdict would be rendered in either Borchardt's or Oken's case, but Tuminelli said that a ruling would likely be issued in the Borchardt case first.

He stressed that a ruling in the Borchardt case would not necessarily apply to Oken, because the cases are different. While Borchardt's case is still in the initial appeal process, Oken has already completed his direct appeals.

If Borchardt wins his Apprendi appeal, Tuminelli said, it would not necessarily mean a victory for Oken. But he said a defeat for Borchardt could significantly weaken Oken's case.

Regardless of how the Court of Appeals rules in Borchardt's appeal, Tuminelli said, the decision will probably be appealed to the U.S. Supreme Court.  

Copyright © 2001 University of Maryland College of Journalism.