BALTIMORE (AP) – Lawyers for a death-row inmate seeking to avoid execution this week in Maryland are telling the federal courts that because the execution team might have to cut deeply into his flesh to administer the lethal drugs, his death could be unconstitutionally cruel.

A federal district judge rejected that argument Thursday, however, and attorneys for Steven Oken were appealing the issue to the 4th U.S. Circuit Court of Appeals in Richmond, Va.

“That will be on an expedited basis,” Fred Warren Bennett, Oken’s lawyer, said at a midday news conference. “We expect to hear on that, yes, clearly, by 5 or 6 o’clock p.m. The judges are waiting for our pleadings in Richmond.”

A procedure called a “cut down” is used to deliver drugs when problems, such as a history of intravenous drug use, complicate reaching a vein in an inmate’s arm, neck or thigh.

The U.S. Supreme Court ruled last month that an Alabama inmate could pursue a similar claim. The justices were told that if the cut-down was done improperly, the procedure could cause Larry Nelson to hemorrhage badly and suffer heart problems before the drug cocktail could kill him.

The Maryland prison system doesn’t have a procedure for checking in advance to see if Oken will need a cut down, and therefore won’t know until the execution is about to begin if he will need one, said Jerome Nickerson, another of Oken’s attorneys. He also said the execution team is not experienced enough nor does it have adequate equipment for such a procedure.

“They don’t have a cut-down procedure in their protocol,” Nickerson said.

U.S. District Judge Peter J. Messitte refused Thursday to issue a stay on those grounds, Bennett said.

Oken, 42, also has a request before Gov. Robert Ehrlich for clemency, Bennett said. He said he understands the governor is studying the issue “hourly” but that Ehrlich will not meet with Oken’s legal team.

“I don’t have a whole lot to say,” Ehrlich said, speaking with reporters at an economic development event in Sparrows Point. He noted that while he will not meet with Oken’s attorneys, he has also not meet with the families of the victims or with prosecutors.

Oken was sentenced to death for the 1987 murder and rape of Dawn Marie Garvin, a 20-year-old newlywed. He also was convicted of killing Patricia Hirt, his wife’s sister, and Lori Ward, a motel clerk in Kittery, Maine, during a 15-day spree.

The case has been “a 17-year odyssey,” Ehrlich said. “We’re clearly coming to the end, according to my analysis.”

Oken could be executed before midnight Friday. State law prohibits corrections officials from disclosing the exact date and time of an execution. Instead, a judge signs a death warrant that runs for a five-day period, starting with a Monday.

Messitte issued a stay Tuesday in the case on grounds that the state had turned over the details of the execution procedures too late to Oken’s defense team, saying they deserved time to examine the “execution protocol” document.

Bennett has said the state botched the 1998 execution of Tyrone Gilliam, the last person it put to death. An IV line used to administer the barbiturate to Gilliam leaked, raising doubts that he got a sufficient dose to put him to sleep before he received two other drugs – one that paralyzes muscles and another that stops the heart, Bennett said. The state has acknowledged that the IV line leaked, but maintains Gilliam was executed in a humane way and without pain.

The federal appeals court upheld the stay Wednesday, but the Supreme Court reversed it Wednesday night and denied a separate request from Oken for another stay.

Meanwhile, the Supreme Court received another appeal Thursday in Oken’s case that was based on arguments that his trial attorney didn’t do every thing he could to save his life.

Bennett described Oken’s legal predicament as like being “down 10-3 in the bottom of the ninth. And you know who’s up? Your worst hitter.”


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