updated 8/8/2006 5:45:55 PM ET 2006-08-08T21:45:55

Lawyers for a death row inmate are appealing his conviction, in part because the judge barred jurors from smoking during deliberations.

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According to the appeal on behalf of Phillip Elmore, attorneys said the lack of smoke breaks made jurors antsy and overly eager to finish the case.

A jury deliberated for six hours before convicting Elmore in 2003 of aggravated murder and other charges in the death of his ex-girlfriend. A week later, the jury needed three hours to recommend the death sentence.

Common Pleas Judge Jon Spahr would not let them smoke during either deliberation.

"The judge's refusal to make any accommodation of jurors' request to smoke predisposed those jurors to agree on a quick decision," Elmore's lawyers wrote.

Prosecutor Robert Becker said he believes the verdict and sentence will stand. "I don't think I've ever heard of this one. It's relatively novel," he said.

The state Supreme Court was to hear arguments in the case Tuesday.

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