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PENDING SUPREME COURT CASE

Va. Execution Is Likely to Be Delayed

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By Jerry Markon
Washington Post Staff Writer
Thursday, September 27, 2007

The Supreme Court's decision to consider whether lethal injection is cruel and unusual punishment is likely to delay at least one Virginia execution scheduled for next month, and could have a wide-ranging effect in the state, depending on what the justices decide, lawyers said yesterday.

The court announced Tuesday that it would use a Kentucky case to examine the constitutionality of the widely used method of execution, the first time it has considered a specific method of executing prisoners in more than a century. There have been 70 executions by lethal injection in Virginia since the mid-1990s.

If the court rules that lethal injection is unconstitutional, it would have a dramatic effect on capital punishment in Virginia and across the nation, experts said. But the ruling won't come until next year, possibly as late as June. Although Virginia has 20 inmates on death row, only one has an officially scheduled execution date -- Christopher Scott Emmett, on Oct. 17.

Attorneys for Emmett, who beat a man to death with a brass lamp during a robbery in Danville, said yesterday that they will ask Virginia Gov. Timothy M. Kaine (D) to delay the execution in light of the high court's announcement.

"I certainly think Mr. Emmett's execution should not go forward before the Supreme Court has had a chance to rule," said Matthew Engle, one of Emmett's attorneys.

Kevin Hall, a spokesman for Kaine, said the governor believes that Virginia's method of capital punishment "is constitutional until a court tells us it's not." But he is anticipating that Emmett's lawyers will renew their request for clemency. "The governor will give it the serious consideration it deserves," Hall said.

In June, Kaine delayed Emmett's execution until next month because the Supreme Court had not decided whether to hear his appeal. Five other death row inmates have petitioned Kaine, a Catholic who has said he personally opposes the death penalty, for clemency. He has delayed one other execution, but not granted clemency.

"The governor made a commitment to Virginia voters and took an oath to uphold Virginia law," Hall said. "Capital punishment is Virginia law, and he has proven that he has kept his word to Virginians."

Death penalty experts said they doubted that Emmett would be put to death before the Supreme Court issues its ruling, predicting that either Kaine or the courts would postpone the execution.

"I don't know where the delay will come from, but it's unimaginable that the execution will be carried out while the lethal injection case is pending before the Supreme Court," said Barry Boss, a Washington lawyer who has been involved in numerous death penalty cases.

The effect of the Supreme Court announcement will probably be limited to Emmett because other Virginia inmates are not far enough along in the appeals process to be executed before the high court issues its decision, said Robert Lee, executive director of the Virginia Capital Representation Resource Center, which is defending Emmett.

Emmett killed co-worker John F. Langley with the lamp after Langley refused to lend him $100 to buy crack cocaine. He confessed to repeatedly hitting Langley on the head in a motel room the two were sharing in April 2001, while they did a roofing job. Emmett was sentenced to death by a jury in October 2001.

Two hours before Emmett's scheduled execution by lethal injection in June, Kaine delayed the execution because the Supreme Court had not yet considered the merits of his appeal. "Basic fairness demands that condemned inmates be allowed the opportunity to complete legal appeals prior to execution," the governor said then.

The high court is expected to decide soon whether to hear Emmett's appeal, which contends that his former attorney did not provide him with adequate counsel. Emmett has filed a separate challenge to Virginia's proposed method of execution. A federal judge in Richmond said last week that those methods did not constitute cruel or unusual punishment.

Virginia inmates can choose to be executed by lethal injection or the electric chair. The last inmate executed in the state was John Yancey Schmitt by lethal injection in November 2006. Emmett has not chosen a method of execution, but under state law inmates who make no choice automatically die by lethal injection.

States began using lethal injection in 1978 on the grounds that it was more humane than electrocution or the gas chamber. More than 35 states now use it, but some studies have shown the combination of three toxic chemicals can be unreliable, causing inmates to suffer excruciating pain before they die.


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