BATON ROUGE — A man sentenced to death for the 1996 kidnapping, rape and murder of a New Orleans advertising account executive will die Tuesday night at the Louisiana State Penitentiary in Angola unless a state or federal court intervenes.

Since Louisiana's adoption of a nitrogen hypoxia death protocol six weeks ago, Jessie Hoffman's lawyers have been arguing that asphyxiating a Buddhist who practices meditative breathing would not only be a cruel or unusual punishment, but that it would also violate his religious rights guaranteed under the Constitution.

His latest plea in state court — and perhaps his last before a Louisiana judge — failed in the 19th Judicial District courthouse Tuesday morning. Judge Richard "Chip" Moore agreed with state lawyers who argued that a federal court decision over the same set of facts made additional arguments redundant.

"Louisiana threw up these procedural roadblocks in the face of his genuine moral motion to have his religion respected at the time of his death," lawyer Cecelia Kappel said after the hearing. "This is a moral issue. ... At what point does Jessie Hoffman get to say 'I cannot be tortured to death?'"

Hoffman is scheduled to die between 6 p.m. and 9 p.m. Central time. Hoffman has brought claims alleging his First and Eight amendment rights would be violated if he is asphyxiated because he is a Buddhist who practices meditative breathing to remain calm. He and his lawyers have argued that a violent death would impact his reincarnation.

"I thought in Louisiana we valued the right to practice religion and at no time is it more important than at the time of your death. Your last rites," Kappel said outside the courthouse. "I thought wrong."

It appeared Hoffman's legal team would concentrate its effort on an 11th-hour appeal to the U.S. Supreme Court.

"Jessie has asked us to fight for him until the end," Kappel said.

Hoffman's lawyers had wanted his spiritual adviser to tell Moore about Buddhist religious practices, but the state said there was no point because federal courts had considered the same evidence and ruled against the inmate.

"This matter has already been tried" and Hoffman lost, said lawyer Connell Archey, representing Louisiana said. It was pointless to follow the same path since precedent dictates that the execution should proceed, he said.

But Hoffman lawyer Kathryn Burke said Louisiana law allows people broader religious rights and that Hoffman should be allowed to pursue them. 

Archey also said Hoffman's team engaged in "gamesmanship" by preparing the current court case last Wednesday but not bringing it until Monday. Burke said the federal court stay in effect at the time and would have made the current suit moot.

The U.S. Supreme Court and federal courts in Alabama have upheld nitrogen hypoxia executions. Alabama has killed four people using the method.

Witnesses for the state said in a federal court hearing two weeks ago that, if Hoffman breathes deeply, the nitrogen will force oxygen from his lungs and render him unconscious quickly. At the same hearing, Hoffman's witnesses said instinct would likely lead the inmate to hold his breath and that he would die in a cruel or unusual manner

In a court filing Monday, Hoffman said breathing in pure nitrogen would impact his ability to practice meditative breathing and cause him to panic instead.

"When I have a panic attack, I cannot breathe," Hoffman wrote. Having a traumatic death can impact reincarnation, Hoffman's lawyers wrote.

"Mr. Hoffman sincerely believes that he must practice his Buddhist breathing exercises at the critical transition between life and death, called the Bardo," the lawyers wrote. "He believes that if he has traumatic final moments, they can negatively impact the Bardo, which can lead to a negative rebirth."

The inmate's lawyers said Tuesday that their request to have him in court for the hearing - set for 8.5 hours before the execution window opens - was rejected.

A federal judge said the nitrogen hypoxia method of execution relies on inmates taking an active part in their own executions. She stopped the execution to let Hoffman claim that other methods would be more humane, but a panel of the 5th U.S. Circuit Court of Appeals in New Orleans overturned her ruling.

Hoffman is to die for the killing of Mary "Molly" Elliot. She was abducted in New Orleans and taken to St. Tammany Parish, where she was raped and then shot execution-style and left in wetlands along the Pearl River.