Condemned Maryland inmate Steven Oken received an indefinite stay of execution yesterday from a federal judge critical of the state's diligence in turning over key documents to defense attorneys. But an appellate court could decide today whether to restart this week's countdown to his death.
With Oken's execution warrant set to expire at midnight Friday, both sides responded immediately to the ruling by U.S. District Judge Peter J. Messitte, who said the defense was hurt by the state's "late, last-minute production" of lethal injection procedures it would use to carry out his capital sentence.
"Fundamental fairness, if not due process, requires that the execution protocol that will regulate an inmate's death be forwarded to him in a prompt and timely fashion," the judge wrote. He ordered the state within 48 hours to provide Oken's attorneys a complete copy of its just-revised execution manual, which he said should have been given to the defense by the end of May.
The stay -- the third for Oken in as many years -- battered relatives of Dawn Marie Garvin. The 20-year-old Baltimore County college student and newlywed was the first of three women Oken sexually assaulted and shot during a two-week killing rampage in late 1987. Her distraught mother, Betty Romano, said Messitte let the family down "just like the rest of the judicial system has let us down. . . . I want someone to tell me what's the best way to put someone to death for murdering three innocent women."
The news reached Garvin's brother as he demonstrated with his father and friends outside the Supermax prison in downtown Baltimore, just a short walk from the state's execution chamber. They had planned on remaining until Oken was dead. "We're going to keep the faith that this is going to happen," Fred Romano pledged.
Messitte took note of the torment Garvin endured before her death and the pain her survivors have dealt with since. "The suffering that this young woman underwent, that her family and friends have undergone since, is unimaginable," his opinion opened.
"Nevertheless," he concluded 16 pages later, "it is the court's duty, strongly reinforced in light of current world events, to see that the guarantees of the U.S. Constitution are respected, even in the case of someone who may be despised by the entire polity."
Within hours, the state asked the U.S. Court of Appeals for the 4th Circuit to vacate his order, and the defense countered. The conservative appellate court has seldom overturned a death sentence, but a three-judge panel of the court recently delayed the December execution of a Virginia death row inmate challenging lethal injection procedures.
The Oken case probably will not end today in that court. "Whoever loses in the 4th Circuit will go to the Supreme Court," predicted Maryland Solicitor General Gary Bair. "The Supreme Court ultimately will be the last word on this."
Although Bair said it is "absolutely" possible that those justices could rule by Friday, should the warrant lapse, prosecutors would have to start over with a new request.
During a two-hour hearing Monday, defense attorneys did not contest the state's right to put their client to death. Instead, they argued that they needed to receive the manual early to determine whether the state's methods would subject Oken to a painful, lingering and therefore unconstitutional death. They got an incomplete copy of the information less than three days before his "execution week" was to begin.
"This is the most important document that the state of Maryland will generate because it has to do with the taking of human life," said attorney Jerome H. Nickerson Jr., who also represented the last person executed in Maryland in what he claims was a botched procedure. "They're changing [the protocol] at the last minute. They're inconsistent on quantities. They don't have the right stuff down, and they don't have the procedures."
Messitte sided with the defense, saying Oken "is not limited to taking defendants' word that his rights will not be violated by what they propose to do."
"Judge Messitte got it right," Oken attorney Fred Bennett said. "This was a violation of fair notice and due process.
A spokesman for the state Division of Correction denied that officials delayed turning the manual over to defense attorneys.
"This was a standard request for public information, which . . . carries with it a strict time frame," Mark Vernarelli said yesterday. "We answered that request within the time frame." He said there is "no constitutional requirement or statute" forcing the state to have an execution manual.
Death penalty opponents used the case's latest turn to again call on Gov. Robert L. Ehrlich Jr. (R) to commute Oken's sentence to life without parole. Ehrlich, who could act until the moment of execution, has the "great gift" of mercy, "of sparing a person's life in a world where there is so little of that virtue," said Dick Dowling of the Maryland Catholic Conference.
Ehrlich remained silent on his intentions. "My task is to fulfill my promise to look at all the facts and make a decision at the appropriate time," he said. With the stay, he added, that time has not come.
Staff writers Ruben Castaneda, Jerry Markon and Brigid Schulte contributed to this report.