- The Washington Times - Tuesday, June 15, 2004

A federal judge in Maryland stayed the execution of condemned murderer Steven Howard Oken yesterday, saying the state gave Oken insufficient time to examine Maryland’s protocols for administering his lethal injection.

U.S. District Judge Peter J. Messitte ordered the state to immediately provide Oken’s attorneys a complete copy of the execution protocols. The judge scheduled a July 19 hearing for arguments on whether the execution plan would unlawfully inflict cruel and unusual punishment on Oken.

The ruling did not alter Oken’s death sentence, only postponed his execution. Oken was scheduled to be put to death sometime this week.

The delay brought further anguish to the family of Dawn Marie Garvin, a 20-year-old newlywed whom Oken raped, sexually tortured and shot twice in the head after talking his way into her White Marsh, Md., apartment in 1987.

“We were let down by the judicial system in the state of Maryland,” said Frederick A. Romano, Mrs. Garvin’s brother. “We will feel comfort when that scumbag is strapped to a gurney and the needle is stuck in his arm. That’s when my family will be able to heal.”

Mr. Romano said he has been embittered by 17 years of trials, appeals and myriad legal maneuvers that have prolonged Oken’s life.

“We have grown used to being abused by the judicial system,” he said. “The criminal justice system is more concerned about the criminals and the murders than they are about the victims and their families.”

The state Attorney General’s Office quickly appealed the judge’s ruling and asked the 4th U.S. Circuit Court of Appeals in Richmond to lift the stay so Oken’s execution by injection can take place this week.

“Oken was not [and is not] entitled to a stay of execution to have his Eighth Amendment claim heard because he purposely waited until the last minute to raise it,” the state’s motion reads. “Oken’s claim in federal court is a thinly veiled attempt to stop his execution.”

The motion said Oken, 42, had been aware of the method of execution for at least 10 years and could have challenged it earlier. Judge Messitte rejected that claim.

Oken was sentenced to death for Mrs. Garvin’s murder in 1991.

Mrs. Garvin was the first victim in his rape-and-murder spree in late 1987. Two weeks after he killed Mrs. Garvin, Oken raped, beat and murdered his sister-in-law, Patricia A. Hirt, 43. He stole her Mustang and drove to Kittery, Maine, where he raped and killed Lori Ward, 25, a clerk at the motel where he stayed. Oken received life without parole in both cases.

Last night in Baltimore, Mrs. Garvin’s relatives and friends protested the stay in front of the prison complex, where Oken is being held and is supposed to be executed.

Mrs. Garvin’s uncle, James Romano, 58, a retired steelworker, wore a sandwich board that read “Start Chokin’ Oken.” He said the court’s ruling sends a wrong message to would-be killers in Maryland. “It is a license to kill and get 17 years or more of the good life,” he said.

His wife, Cheryl, held up a placard that read “Snuff out Oken. No more stays.”

“They just want to torture us that much longer,” she said. “We’ve got to hear [Oken’s] name that much longer. … [Oken] has no remorse.”

State Sen. Nancy Jacobs, Harford County Republican, joined the protest. “They’ve been waiting long enough. Cruel and unusual punishment? I don’t think so,” Mrs. Jacobs said. “Nobody gave [Mrs. Garvin] anesthesia before he murdered her.”

Judge Messitte ruled that the state did not in a timely manner provide Oken’s attorneys with copies of the execution protocols. Oken’s attorneys requested the protocols May 10 but did not receive them until Friday — just three days before his death warrant took effect.

Lacking the protocol might haveaffected his failed bid last week to win a stay of execution in the Maryland Court of Appeals, according to the judge’s opinion.

In the opinion, Judge Messitte also addressed the effect the stay would have on the victims’ families.

“The Court 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,” he wrote. “Nevertheless, 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.”

Judge Messitte, who was appointed to the federal bench by President Clinton in 1993, referred to last month’s unanimous U.S. Supreme Court ruling in a case involving Alabama death-row inmate David Larry Nelson, who had challenged planned procedures for lethal injection in his case as “unconstitutionally cruel.”

The court ruled that Nelson was entitled to pursue a last-ditch claim that the lethal-injection process violated his Eighth Amendment protection against torture.

Nelson says his veins are so damaged from drug abuse that executioners might have to cut deeply into his flesh to administer the fatal injection. Nelson’s case led to a discussion at the court about a “cut-down procedure” needed when problems complicate reaching a vein in an inmate’s arm, neck or thigh.

The procedure risked bleeding Nelson to death before he were to receive the injection, the court had learned from physicians.

Nelson’s execution was hours away last October when the court agreed to hear his case. He was sentenced to die for the 1978 New Year’s Day killing of Wilson Woodrow Thompson in Kimberly in Jefferson County. He was also convicted of killing cabdriver James Dewey Cash a few hours earlier. And in 1971, he pleaded guilty to beating 82-year-old Oliver King to death in a Birmingham parking lot.

Judge Messitte said Oken, like Nelson, could raise questions about how he would be executed.

In Oken’s case, since it took so long for the state to give Oken the execution protocols, he didn’t have a fair chance to challenge the process as Nelson had done, Judge Messitte wrote. “Access to the Protocol … was Oken’s entitlement as a matter of fundamental fairness, if not due process,” he wrote.

Oken attorneys Fred Warren Bennett and Jerome Nickerson Jr. are expected to present arguments that parallel the Nelson case during the July 19 hearing.

At a hearing Monday, they questioned the training of the state’s execution team and the efficiency of the injection system, which delivers a three-drug mixture that renders the subject unconscious and then stops the heart.

Mr. Nickerson, a private attorney who specializes in representing death-row inmates, argued that the state botched its last execution in 1998, with drugs leaking from the intravenous tubes and possibly failing to render carjacking killer Tyrone X. Gilliam unconscious before his heart was stopped.

Mr. Nickerson rebuffed assurances by Assistant Maryland Attorney General David P. Kennedy that the protocols and the injection system were thoroughly refined. Judge Messitte quoted Mr. Nickerson’s remarks in an appendix to the opinion.

“Training is a huge issue, a huge issue,” Mr. Nickerson said. “I just want something more than, ‘Don’t worry about it, they’re trained.’ … This is where the unnecessary risks take place.”

Mr. Nickerson also questioned the recent changes made to the execution plan. “Some of the protocols are the same. Others have changed,” he said. “The quantities [of drugs] have changed. … In the new protocols, Judge, there is confusion.”

In the opinion, Judge Messitte said Oken deserved a hearing to make his claim. “Oken is entitled to show — or at least to attempt to show — how his rights have been affected by the changes in the Execution Protocol,” he wrote. “If the recent changes were indeed procedural, it may well be that Oken cannot succeed.”

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