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Virginia execution method challenged

UPDATE Tuesday 12:05 p.m.

The Supreme Court will consider this motion and the response at its Conference on Thursday, May 15, according to the Court’s electronic docket.


 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.

“Virginia now seeks to cut off review of Emmett’s claims just as the Fourth Circuit prepares to consider them,” the opposition brief asserted.  Virginia will suffer no harm if the Supreme Court’s stay remains in place, the brief added.

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 challenges to these two defects, the brief contended, should be allowed to go forward without Emmett and his counsel having to pursue a new stay in lower courts after an execution date has been set.