moved at a furious pace Tuesday, as a federal judge delayed the
execution — and attorneys for the state promptly appealed so that
he may yet be put to death before week’s end.
A
decision from the three-judge panel from the U.S. Court of Appeals for the
4th Circuit in Richmond, Va., could come as early as Wednesday. The judges
could let stand the lower court decision to hold further hearings in
the case next month. Or they could clear the way for Oken to be executed
by lethal injection before his death warrant expires at midnight
Friday.
Either side could appeal to the Supreme
Court.
Fred Warren Bennett, Oken’s lead attorney,
called the federal ruling a “big-time win.”
“Mr.
Oken is very relieved that the court … signed the order,” Bennett
said. “He has read it … and he hopes to continue to be able to
live.”
The family of one of Oken’s victims continued
to call for his execution, holding a vigil outside the state
penitentiary complex in Baltimore, where Oken is being held.”It’s
time to end the injustice,” said Fred A. Romano, the brother of Oken’s
first victim, Dawn Marie Garvin, after learning of the federal
judge’s decision. “It’s time to go with what a jury of his peers
decided would be his fate.”
A dramatic day of legal
developments began at 10 a.m. when U.S. District Judge Peter J.
Messitte’s decision was posted on the court’s Web site. He called for
a hearing July 19 to determine whether Maryland’s execution
procedures violate the constitution’s ban on “cruel and unusual
punishment.”
Monday, Oken’s attorneys had argued
before Messitte in his Greenbelt courtroom that there had been a leak
in the intravenous line that delivered the anesthetic and deadly
chemicals during the execution of Tyrone X. Gilliam in 1998, meaning
he may have suffered before death.
Lawyers for the
state did not deny that a leak had occurred, but asserted that the
procedure did not constitute a violation of the Eighth Amendment’s
prohibition on cruel and unusual punishment. The Department of
Public Safety and Correctional Services issued a statement Tuesday,
saying that the Gilliam execution was “performed humanely and
painlessly.”
Oken asked the state last month for its
execution protocol, according to his attorneys. Messitte wrote that
he found it “troubling” that the state did not quickly provide a
complete copy of its procedures, which had been recently amended.
“Fundamental fairness, if not due process, requires
that the execution protocol that will regulate an inmate’s death be
forwarded to him in prompt and timely fashion,” the judge wrote.
Messitte wrote that he is “deeply solicitous of the
family and friends of Dawn Marie Garvin and acknowledges their
desire, after so many years, to see closure in this case.
“Nevertheless it is the court’s duty … 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.”
By early afternoon, the Maryland Attorney General’s
office had sent its written argument to the Richmond court via fax.
Oken’s team quickly filed its response.
At day’s end, the Virginia judges had the documents before them.
Both sides have already prepared
appeals to the Supreme Court in response to whatever the 4th Circuit’s
decision may be.
Andrew D. Levy, an instructor
at the University of Maryland’s law school and trial lawyer for more
than 20 years, said he expected “a race” if the appeals court
overturns Messitte’s ruling.
“Oken’s lawyers would
then rush to get the Supreme Court to reinstate the stay, and the
state might immediately try to execute Oken,” he said.
Three inmates have been put to death by lethal injection since
the state resumed executions a decade ago.
Oken
was sentenced to death in 1991 for the 1987 rape and murder Garvin, a
White Marsh newlywed. He also was convicted of sexually assaulting
and murdering two other women: Patricia Antoinette Hirt, his
wife’s older sister, and Lori Elizabeth Ward, a motel clerk in
Maine.
Death penalty opponents who gathered near the
Supermax prison Tuesday night said they were pleased with the federal
judge’s ruling.
“What’s the problem with
waiting until July 19?” asked Max Obuszewski, a peace activist who
lives in Charles Village. “What’s the rush to kill the guy.”
Earlier Tuesday, Garvin’s friends and relatives gathered
with signs that urged the state to “kill the beast” and noted
that the women Oken murdered “weren’t given any appeals.”
They were there, at the tree-shaded corner of East Madison
Street and Greenmount Avenue, when they got word that the fed
eral judge had indefinitely delayed the execution.
Garvin’s brother said his family has grown accustomed to the delays
and appeals that have accompanied Oken’s capital-murder
conviction.
“If the criminal justice system was
there for justice, Steven Oken would have been dead 17 years ago,”
said Fred A. Romano said, wearing a sign with photographs of his
sister and the two other women Oken killed.
Romano
said he hopes the state legislature will pass a law limiting the
number of appeals death row inmates can file. And he said he and his
family remain optimistic that Oken will be put to death.
“I’m only sorry he will fall asleep peacefully,” he said.
“Call it vengeance. Call it revenge. Call it what you will. I call it
justice.”
Sun staff writer Gus G.
Sentementes, Jennifer McMenamin, Laurie Willis contributed to this
article.
