Death row inmate Jody Lee Miles asked an appeals court this week to rule that Maryland's death penalty repeal applies to inmates who were already sentenced to die when executions were outlawed last year.

Attorneys for Miles, who was convicted in a 1997 murder on the Eastern Shore, said the General Assembly was so thorough in its dismantling of the laws that governed capital punishment in Maryland that the state no longer has the authority to kill anyone.

"Mr. Miles cannot be executed and his sentence must be set aside," the attorneys wrote.

Miles is among four inmates on death row — a fifth died last weekend — who have been in limbo since a 2006 court decision that threw out procedures for lethal injections.

The repeal of the death penalty last year has made their situations even more complicated. Miles' lawyers, in mounting the first challenge based on repeal, argue it offers them a chance at resolution.

No new rules for executions were put in place after 2006. Legislators took away the authority of the state corrections department to come up with regulations for death sentences, Miles' attorneys argued in papers filed Wednesday with the Court of Special Appeals, making executions illegal.

A spokesman for the corrections department has said its lawyers told officials they no longer have the power to develop new regulations. But the Attorney General's Office, which is handling the appeal for the state, declined to comment on the specifics of Miles' argument. It has until the end of the month to file a response in court.

Miles was convicted in 1998 of the robbery and murder of Edward Joseph Atkinson, a musical theater director, and sentenced to death.

Atkinson's brother, Wayne Atkinson, said he was not aware of the latest appeal but said he expected the courts would reject Miles' arguments, as they have done several times before.

"Only thing he's doing is soaking up the government's money," said Atkinson, 52. "And we're paying for it."

Miles is seeking a new sentence. The move was contested by prosecutors from Wicomico County, where the killing took place.

"He was tried under the law which existed at the time and he was sentenced to death," said Joel Todd, an assistant state's attorney. "To me the clear legislative intent when the death penalty was done away with ... was that the bill was not to affect anyone who had been sentenced to death."

A judge in Queen Anne's County rejected Miles' move last year.

Judge Thomas G. Ross acknowledged that the lack of rules for executions was "troubling" but found that even after the repeal went into effect, the Division of Corrections retained the authority to develop new rules.

Attorneys for other death row inmates in the state could not be reached for comment.

Sen. Lisa A. Gladden, who has been closely involved with the campaign to eliminate the death penalty, said she did not understand the repeal to affect those already on death row.

"We've been working on the death penalty repeal for almost a decade," the Baltimore Democrat said. "To just get the bill moving, to get the issue moving in any kind of way made a lot of sense to usv… whether it was retroactive or any kind of active."

Gladden said a botched execution in Oklaholma this week — the three-drug cocktail apparently failed to sedate the inmate, and he moaned and struggled against restraints before dying of a heart attackunderscored her belief that it's impossible to execute someone humanely.

"The people who saw that … are going to have nightmares for the next 20 years," she said.

Gladden, who is a public defender, said she thinks it's unlikely Miles will prevail in court. She said she wants to introduce a bill next year aimed at getting him and the other three inmates off death row.

The other avenue open to the four men is to seek a commutation of their sentence from Gov. Martin O'Malley. The governor's office has said he will consider each case individually, but the repeal act limited his powers. He is required to impose a sentence of life without parole if he makes a change.

Miles' attorneys argue that he should eventually have a chance to apply for parole.

If all Miles' efforts are successful and ever gets out of prison, Atkinson said he'd be ready.

"Let him out of jail, I'll kill him myself," he said. "I don't care."

iduncan@baltsun.com

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