Virginia Allowed To Set Execution

By Jerry Markon and Robert Barnes
Washington Post Staff Writers
Tuesday, May 20, 2008; B01

The U.S. Supreme Court yesterday allowed Virginia to set an execution date for a death row inmate who is challenging the state's method of lethal injection as painful and inhumane.

The court granted Virginia's request to lift a stay of execution it allowed last fall for Christopher S. Emmett, who fatally bludgeoned a co-worker in Danville in 2001. At the time, the stay signaled a de facto moratorium on executions nationwide as the court considered the constitutionality of lethal injection. Executions have since resumed.

Yesterday's decision, from which three justices dissented, means that a court in Danville will set a date for Emmett's execution. But his fate will remain uncertain until the U.S. Court of Appeals for the 4th Circuit rules on Emmett's challenge to Virginia's lethal injection procedures, legal experts said. That court heard arguments last week and could send the case back to a lower-court judge.

Yesterday's ruling is not expected to affect the 18 other death row inmates in Virginia, four of whom have execution dates scheduled in the next two months. Last month, Gov. Timothy M. Kaine (D) halted all executions, but he lifted the hold after the Supreme Court ruled April 16 that the most common method of lethal injection is constitutional.

Kaine's office declined to comment yesterday. David Clementson, a spokesman for Virginia Attorney General Robert F. McDonnell (R), said the ruling "means the commonwealth will move forward with setting an execution date and proceeding under Virginia law." It was unclear when a date would be set for Emmett's execution.

Matthew S. Hellman, an attorney for Emmett, said the Supreme Court had "put the case back into the 4th Circuit's hands, and that's appropriate. The 4th Circuit seems to be grappling with the issues that this case presents."

Emmett's lawyers told the 4th Circuit last week that Virginia's lethal injection procedures are unconstitutional, saying that prisoners are not fully anesthetized before being administered drugs that can cause excruciating pain.

State lawyers say Virginia's lethal injection protocol is "virtually identical" to the procedure used in Kentucky that the Supreme Court upheld as constitutional. A federal judge last year upheld Virginia's method; Emmett's attorneys are asking the 4th Circuit to send his case back to the trial judge for further review.

The Supreme Court justices who granted Virginia's request to lift the stay on Emmett's execution did not explain their reasoning. Justice John Paul Stevens wrote a dissent, joined by Justices David H. Souter and Ruth Bader Ginsburg.

"We should leave our stay in place until the Fourth Circuit has an adequate opportunity to render a decision on the merits of Emmett's claim," Stevens wrote. He noted that Emmett's attorneys are challenging whether Virginia's lethal injection methods are "substantially similar" to the Kentucky procedures the court upheld.

Stevens added that Emmett's lawyers could request a new stay of execution from the 4th Circuit, "a request that the court may well grant in order to complete its consideration of Emmett's appeal without the pressure of a looming execution date." Hellman said that such a request is premature.

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