State v. Borchardt (Ct. of Appeals)

Filed January 12, 2007--Opinion by Judge Irma Raker. Dissenting opinion by Chief Judge Robert Bell in which Judge Lynne Battaglia joins, in part, and in which Judge Clayton Greene, Jr., joins, in part.

The Defendant had been convicted of two counts of murder and robbery with a deadly weapon and had been sentenced to death. His conviction had been sustained on appeal. However, the Circuit Court for Anne Arundel County granted a Petition for Postconviction Relief pursuant to Md. Code (2001, 2005 Cum. Supp.), §7-102 of the Criminal Procedure Article. The Circuit Court concluded that the Defendant was denied effe ctive assistance of counsel in the sentencing proceeding.

The Court of Appeals held, in essence, that various decisions by the Defendant's counsel at the sentencing proceeding not to present certain evidence were expressions of reasonably sound trial strategy. In dissent, Chief Judge Bell, joined by Judge Battaglia, argued that the various decisions made by Defendant's trial counsel were not "fully informed."

Also, before the Circuit Court, the Defendant alleged, on the basis of Dr. Raymond Paternoster's study entitled "An Empirical Analysis of Maryland’s Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction" (the "Paternoster Study"), that the Maryland death penalty permits the arbitrary and capricious selection of capital defendants in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. This issue was not considered by the Circuit Court.

The Court of Appeals held that the Circuit Court erred and should have considered questions arising under the Paternoster Study. However, the Court also concluded that the Defendant's claim was without merit because he "makes no claim whatsoever that there is any specific evidence of discrimination in his case." Chief Judge Bell, joined by Judge Greene, argued that:

The simple fact is that [the Defendant] is asserting a claim that he was selectively prosecuted in violation of his constitutional rights,and that this affected his conviction.

Additionally, and more important, an adequate presentation of specific evidence of discrimination by the defendant cannot occur without adequate discovery from the State. It follows, then, that until an adequate presentation of specific evidence of discrimination is heard, the merits cannot be decided; to do so would be premature. The Paternoster study illustrates that death-eligible defendants in Baltimore County are more likely to receive a sentence of death than in any other county. This study alone satisfies the [U.S. v.] Armstrong standard, justifying further discovery.

The opinion and dissent are available in PDF.