The legal struggle surrounding condemned killer Steven Oken's fate moved at a furious pace yesterday, 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 today. 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 yesterday, 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 a 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 of 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 last 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 yesterday at East Madison Street and Greenmount Avenue, 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."
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.