The Central Prison warden has told Samuel Flippen that only his parents can attend the execution, which defense attorneys say violates a state law that allows any relatives to attend an execution of a family member, according to a copy of the complaint given to The Associated Press late Friday night.
The lawsuit was filed in Wake County Superior Court by 46 family and extended family members of Flippen, defense attorneys said in a statement.
Flippen, 36, was convicted of first-degree murder for the 1994 beating death of his 2-year-old stepdaughter, Britnie Nichol Hutton, in Forsyth County. He is scheduled to die at 2 a.m. Friday.
The complaint said that Central Prison Warden Marvin Polk gave Flippen a letter Aug. 8 explaining only his mother and father may attend the execution.
In a written statement, Flippen's attorneys said they will ask a judge for a temporary restraining order Monday to stall the execution unless all relatives are allowed to attend.
The room where witnesses usually watch an execution is small and typically must accommodate reporters, law enforcement, and family members of both the victim and death row inmate.
In another attempt to stall the execution, defense attorneys had asked a federal judge to rule the execution method of lethal injection unconstitutional because it amounted to cruel and unusual punishment.
The judge rejected the argument Thursday, and Flippen's attorneys have now asked the judge to stay his ruling until they can appeal to the 4th U.S. Circuit Court of Appeals, according to a spokesman for the state Attorney General's Office.
Defense attorneys said they plan to file the request Sunday with the federal appellate court.
A spokeswoman for the state Attorney General's Office did not return after-hours messages Friday inquiring about the case.
Forsyth County prosecutors argued that Flippen beat his stepdaughter because she was crying. He dialed 911 to report the child was injured about 40 minutes after his wife of five months left for work. He told paramedics and detectives he believed the toddler had fallen from a chair.
The child later died of what prosecutors said was a blow to the abdomen.
After his trial in 1995, the jury recommended Flippen be executed. The state Supreme Court overturned that sentence and ordered a second jury to consider Flippen's lack of prior criminal convictions before recommending its sentence. The second jury deliberated for more than six hours before recommending a death sentence in 1997.
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