Robert Barnes reports, "State Asks Supreme Court to Allow Execution," in the Washington Post.
The U.S. Supreme Court will consider next month whether to allow Virginia to set an execution date for a death row inmate who contends that the commonwealth's lethal injection procedures do not meet the standards that the court recently found constitutional.
Virginia Attorney General Robert F. McDonnell (R) has asked the court to vacate the stay of execution it granted Christopher Scott Emmett last fall, after the court agreed to hear a case challenging the constitutionality of Kentucky's lethal injection procedure.
The court ruled 7 to 2 in favor of Kentucky, and Virginia contends that because its procedures are "virtually identical" to those the court found constitutional, Emmett's stay should be vacated and the state should be allowed to set an execution date.
But Emmett's attorneys told the court Monday that the stay should remain in place while the U.S. Court of Appeals for the 4th Circuit in Richmond reviews the case. The appeals court has scheduled a hearing May 14 on Emmett's case and has asked both sides for briefs that take into consideration the Supreme Court's April 16 ruling in Baze v. Rees.
"The state's motion is an ill-founded attempt to disrupt the orderly consideration of Emmett's issues," said a brief filed with the Supreme Court by the Virginia Capital Representation Resource Center.
At SCOTUS Blog, Lyle Denniston has updated a post, "Virginia execution method challenged."
Lawyers for Virginia death-row inmate Christopher Scott Emmett told the Supreme Court on Tuesday that the state follows a “unique and uniquely dangerous” method of execution by lethal injection. In opposing a request by the state for the Court to lift an order blocking Emmett’s execution, the inmate’s lawyers called the Virginia protocol
“far more dangerous” than the Kentucky version the Supreme Court upheld in Baze v. Rees (07-5439) on April 16. The opposition to the state’s motion can be found here. (The case is docketed as 07A304, Emmett v. Johnson.)The state filed its request five days ago. A post discussing that motion can be read here. The state argued that the Supreme Court stay should be lifted, so that Virginia could go ahead and set an execution date for Emmett for the murder of a co-worker in Danville, Va., in 2001. Emmett should have to ask lower courts for any further stay, the state contended.
In response, Emmett’s counsel said the Fourth Circuit Court was moving rapidly to consider his challenge to the state’s execution method, with new briefs on the impact of the Baze decision due on Friday of this week and a hearing set for May 14.
And:
On the merits of Virginia’s lethal injection protocol, Emmett’s counsel cited what they said were two facets that indicate that procedure may fail the constitutional standard the Supreme Court spelled out in the Baze rulinig: a lethal drug procedure may not pose “a substantial risk of serious harm” to the inmate.
First, the brief conended, when an inmate in Virginia takes longer than expected to die, prison officials inject more of the second and third drugs in the three-drug sequence (the drugs that paralyze the individual and then cause the heart to stop), but do not inject more of the first drug (the one that causes unconsciousness). The injection of more of these other drugs “happens routinely” in the state, the brief said, citing its occurrence in ten executions.
Second, the brief said, the Virginia procedure involves injection of the second and third drugs “within a minute” after the first drug is administered — an insufficient time to assure that the inmate is completely unconscious.
The lethal injection index, with full coverage of Baze v. Rees, is here.
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