- The Washington Times - Thursday, June 17, 2004

The U.S. Supreme Court last night vacated a stay of execution given to convicted killer Steven Howard Oken.

The high court also denied an earlier request from Oken that it grant a stay of execution and a petition in which he said the way Maryland performs lethal injections is unconstitutional.

Oken’s attorney, Fred Warren Bennett, has filed a petition for clemency with Maryland Gov. Robert L. Ehrlich Jr. and will ask that the governor spare his client’s life.

The stay of execution had been upheld yesterday morning by the 4th U.S. Circuit Court of Appeals in Richmond. Maryland’s Attorney General’s Office immediately filed a motion asking that the stay be lifted to allow Oken to be executed this week as scheduled.

Oken’s death warrant expires at 12:01 a.m. Saturday.

The Supreme Court handed down the orders at 7:35 p.m. The court did not say how each justice voted, but three justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer went on record opposing the majority’s action.

The 4th Circuit earlier ruled by a 2-1 vote to uphold the stay granted Tuesday by U.S. District Court Judge Peter J. Messitte in Greenbelt. Judge Messitte ruled that the state delayed giving Oken a copy of the state’s lethal-injection protocols and, as a result, denied him the chance to show the process violated his Eighth Amendment protection against cruel and unusual punishment.

Judge Messitte had scheduled a July 19 hearing where Oken’s attorneys were expected to argue that the executioners are poorly trained and the injection system might not deliver enough tranquilizer to knock Oken unconscious before another drug stops his heart, possibly causing a painful and lingering death.

In the appeals court’s decision yesterday, Judges M. Blane Michael and William B. Traxler Jr., both appointed by President Clinton, voted to uphold the stay. Judge J. Harvie Wilkinson III, appointed by President Reagan, dissented.

Dawn Marie Garvin was a 20-year-old newlywed when Oken raped and sexually tortured her, then shot her twice in the head after talking his way into her White Marsh, Md., apartment in 1987.

Outside the prison where Oken would be executed, Fred J. Romano, Mrs. Garvin’s father, marched with about a dozen death penalty supporters. He received word about 7:55 p.m. that the high court had vacated the stay.

“I was elated,” Mr. Romano said, adding that cheers erupted among the crowd as he shouted out the news. “This is a win for us. This is a good win.

“Today was stressful. We just kept waiting and waiting. We were in a really down mood today.”

Oken, 42, was sentenced to death for Mrs. Garvin’s murder in 1991. He also was convicted of raping and killing his sister-in-law, Patricia A. Hirt, 43, of Maryland, and Lori Ward, 25, of Maine. Oken received life without parole in both murders, which occurred two weeks after Mrs. Garvin’s slaying.

In the motion filed with the Supreme Court, assistant Maryland Attorney General Ann N. Bosse argued that Oken is manipulating the system to prolong his life. “Oken is not entitled to a stay of execution to have his Eighth Amendment claim heard because he purposefully waited until the last minute to raise it,” the motion read.

In its two-sentence order, the 4th Circuit did not give any reasons why it rejected the motion, which was filed Tuesday by the state Attorney General’s Office.

Judge Messitte on Tuesday wrote that the state failed to provide Oken’s attorneys with copies of the execution protocols in a timely manner. Oken’s attorneys requested the protocols May 10, but did not receive them until Friday [-] three days before Oken’s death warrant took effect.

Maryland has executed three men since the Supreme Court reinstated the death penalty in the 1970s. The last man the state put to death was Tyrone X. Gilliam in November 1998, for killing Christine Doerfler during a carjacking 10 years earlier.

Oken would be the first person executed since Gov. Parris N. Glendening, a Democrat, ordered a death penalty moratorium in May 2002. Mr. Ehrlich, a Republican, lifted that moratorium when he took office in January 2003.

Shareese Deleaver, a spokeswoman for Mr. Ehrlich, said late yesterday, “The governor has said that each appeal for clemency will receive his full attention, which this case will receive.

“The governor will have conversations with his legal counsel and his senior staff, including the lieutenant governor [Michael S. Steele], who is traveling abroad in Africa, and will make his decision shortly.

“He recognizes the separation of powers, and once all legal options are exhausted, he will make a decision.”

Judge Messitte, who was appointed to the federal bench by Mr. Clinton, referred to last month’s unanimous U.S. Supreme Court ruling in the case of Alabama death-row inmate David Larry Nelson, who had challenged planned procedures for lethal injection.

Nelson, who was convicted of three murders in the 1970s, said his veins are so damaged from drug abuse that executioners might have to cut deeply into his flesh to administer the fatal injection.

This article is based in part on wire service reports.

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