Posted April 30, 2008 | comments Leave a comment

Va. court looking at procedures for man on death row

Outcome could also have impact on convicted Bell

By Garren Shipley -- Daily Staff Writer

WINCHESTER — The U.S. Supreme Court ruled 7-2 earlier this month that Kentucky’s lethal injection protocols are constitutional. Now a court in Richmond will train the same legal microscope on Virginia’s procedures in a case that will have significant ramifications for convicted killer Edward N. Bell.

Christopher Scott Emmett, under a death sentence for the murder of a Danville co-worker in 2001, has challenged the constitutionality of Virginia’s method of lethal injection.

The U.S. Court of Appeals for the Fourth Circuit will hear oral arguments on the case May 14.

Bell, the Jamaican national convicted in 2001 of the 1999 murder of Winchester police Sgt. Ricky L. Timbrook, is awaiting action by the U.S. Supreme Court on what is likely his last appeal.

But a favorable ruling in Emmett’s case could breathe new life into his efforts to stay out of the death chamber, as a direct challenge to Virginia’s protocols would be appealed to the Supreme Court.

Under a 2006 Supreme Court ruling, inmates have the right to challenge lethal injection procedures under the same federal civil rights provisions that govern conditions in prisons.

Emmett filed his challenge to Virginia’s protocol before the high court decided to take the case of Baze v. Rees. Judges of the U.S. Court of Appeals for the Fourth Circuit in Richmond agreed to hear the case, but declined to put Emmett’s execution on hold.

The U.S. Supreme Court disagreed, though, and put off the execution until the Fourth Circuit came to a conclusion one way or the other on Virginia’s execution methods.

In the meantime, the high court ruled that Kentucky’s lethal injection protocols are constitutional. But Virginia’s procedures are different enough to warrant change, Emmett’s attorneys argued in court filings this week.

Comparing the two directly is difficult, if not impossible, for the public.

Virginia has long held its execution protocols as secret and exempt from the state’s Freedom of Information Act — an opinion shared by the state’s Freedom of Information Advisory Council in 2003.

Two of the drugs used in lethal injection — the paralytic agent, pancuronium bromide, and the drug that stops the heart, potassium chloride — would create excruciating pain as they worked their way through the veins of the condemned, according to numerous court affidavits.

If the first dose of the two lethal drugs doesn’t kill the inmate, an additional dose is given without further anesthetic, Emmett’s lawyers wrote in court filings.

That creates a major potential for suffering.

“When the potassium fails to kill within the expected time, its suggests that the full dose did not reach the inmate, which in turn suggests what the inmate also did not receive the full dose of [the anesthetic sodium] thiopental,” they wrote.

That means the condemned could feel the full effects of the suffocating paralytic agent and the burning of the potassium chloride.

U.S. District Court Judge Henry E. Hudson disagreed, though, in a ruling last year.

The risk of an inmate not getting the full dose of anesthetic is exceedingly low, due in large part to the medical training of the team that insert the IV lines.

“Currently, the lead member of the IV team, who will participate in [Emmett’s] execution, has twenty years of hands-on medically related experience, which includes mixing medication and inserting and maintaining IV lines,” Hudson wrote.

“Additionally the [state] has retained a physician to train new members of the IV team,” he wrote, and all new IV team members get 20 hours of training before they can participate in an execution.

A physician also watches executions on occasion to assess what training may be helpful to the team.

“The physician has not observed any members of the IV team making a mistake during an execution and has noted that they are proficient in performing their tasks,” he added.

The U.S. Supreme Court will discuss lifting Emmett’s stay of execution at a conference on May 12.

They could also decide to hear or deny Bell’s appeal at any time.

* Contact Garren Shipley at gshipley@nvdaily.com

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