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Posted March 29, 2008 | Copyright © The Northern Virginia Daily
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Lethal injection argument disputed

Attorney general’s office claims Bell made his choice

By Garren Shipley -- Daily Staff Writer

WINCHESTER — There is no reason for the U.S. Supreme Court to step in and stop the execution of Edward N. Bell, according to court documents filed by the commonwealth late Friday.

Bell, who was convicted in 2001 of the 1999 murder of Winchester police Sgt. Ricky L. Timbrook, ask-ed the high court earlier this week to, at a minimum, put his execution on hold until the court rules on the constitutionality of certain lethal injection protocols.

The justices are considering arguments in Baze v. Rees, in which a Kentucky inmate contends that the procedure used by that state — nearly identical to Virginia’s — can cause significant pain and suffering if it is applied incorrectly.

But Bell lost his right to complain about lethal injection when he opted not to pick death by electrocution, Virginia’s other method of capital punishment, Senior Assistant Attorney General Katherine P. Baldwin wrote in documents filed Friday.

When Bell declined to choose a method of execution earlier this week, he was automatically given the default option of lethal injection. His lawyers argued that since the commonwealth, not Bell, assigned the method, he can challenge it in court. Baldwin strongly disagreed.

“Bell’s apparent attempt now to escape [a Virginia Supreme Court] decision on direct appeal by proclaiming that he has not chosen a method but rather, by not choosing, the Commonwealth has chosen lethal injection for him, is most disingenuous,” she wrote.

Prison officials make it very clear to inmates that if they don’t choose one or the other, they will die by lethal injection.

“The federal courts … correctly have held that a decision to choose is a choice for lethal injection,” Baldwin wrote. “Clearly, Bell chose lethal injection when he knowingly chose not to choose.”

Death by the electric chair has been upheld by the courts as not violating prohibitions on cruel and unusual punishment.

“Because Virginia provides inmates with a choice, they always can choose a method that has been upheld as constitutional,” she wrote. “They thus should not be heard to complain about a method they do not have to choose.”

The request of Bell’s legal team to have the U.S. Supreme Court settle a conflict among the various federal appellate courts is equally without merit, according to Baldwin.

At trial, Bell’s lawyers made a solid, tactical decision to leave witnesses that could have “humanized” Bell, but also hurt him, off the stand, she said.

Evidence Bell offered that his appellate lawyers say could have been considered helpful, with only a slight “double edge,” was actually quite damning, Baldwin wrote.

“Character witnesses” Bell’s lawyers cite weren’t very good witnesses to any good character. His ex-wife and ex-girlfriends were left out for good reason.

“The fact that Bell had various children with various women and abandoned his wife was never known by the jury,” Baldwin wrote. Nor did the jury find out that he had beaten another mother of his children.

The case is presently in the hands of Chief Justice John Roberts, who can issue a stay at any time if he sees merit in Bell’s petition, or if he thinks that four of his fellow justices would vote to hear the case.

Bell is set to die on April 8.

* Contact Garren Shipley at gshipley@nvdaily.com

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