Justices Clear Way For Md. Execution

At an early afternoon news conference, defense attorneys emphasized Oken's constitutional right to question the manner and method by which he will lose his life. The defense no longer contested the Baltimore County man's capital sentence, only the specifics of how it will be carried out. Bennett argued that Maryland's last execution in 1998 was botched by ill-trained prison staff -- the state acknowledged in court Monday that an intravenous line leaked during the procedure -- and said he feared a repeat would subject Oken to extreme suffering.

"Any defendant that faces death by lethal injection has the right to raise an Eighth Amendment claim," Bennett said.

The U.S. Court of Appeals for the 4th Circuit, the conservative court in Richmond that denies most death row appeals, granted Oken relief by a 2 to 1 vote that maintained the execution stay that U.S. District Judge Peter J. Messitte ordered Tuesday. Over the years, Oken's case had gone before the 4th Circuit several times; yesterday marked the first time the judges gave him what he wanted.

In its emergency application to Rehnquist, Maryland said Messitte never should have granted the prisoner's "last-minute legal plea." It urged the Supreme Court to distinguish the case from one the justices decided unanimously three weeks ago, in which they allowed an Alabama death row inmate a late challenge to a surgical technique that his executioners told him -- with little notice -- they would use to prepare him for lethal injection.

In that opinion, the justices said David Nelson should be given a hearing. Still, they stressed that their finding was "extremely limited" and should not "open the floodgates to all manner of method-of-execution challenges."

The Maryland attorney general's brief reminded the justices of their wording. It said Oken has known for years that he could die by injection, as well as the basic steps the state follows.

"Oken insists even now the information he has been given does not suffice to ensure that his lethal injection will not entail cruel and unusual punishment," the state asserted. "This is a red herring and a tactic for delay."

Columbia University law professor James S. Liebman, who has studied capital convictions and appeals across the country, expected the Alabama case to portend the Supreme Court's response. Like Nelson, he noted, Oken was not fighting the state's right to execute him, or its right to employ lethal injection. And, like Nelson, Oken contended that officials withheld key information about their plan until just before his execution date.

Liebman predicted that the execution stay would hold.

Last night, he said the justices' action clearly signaled how restrictive they consider their previous ruling. "It just indicates that a good majority of the court thought Nelson was narrow and applies to a very narrow set of circumstances," Liebman said.

Staff writer Lori Montgomery contributed to this report.