Posted May 7, 2008 | comments Leave a comment

Justices to tackle Bell’s case at conference

By Garren Shipley -- Daily Staff Writer

U.S. Supreme Court justices are slated to talk over the case of condemned killer Edward N. Bell at a conference on Thursday.

Meanwhile, another inmate on Virginia’s death row is arguing that the same execution protocols that would be used to carry out Bell’s sentence are unconstitutional under last month’s high court decision in Baze v. Rees.

Bell, a Jamaican national, was sentenced to death in 2001 for the 1999 murder of Winchester police Sgt. Ricky L. Timbrook. Bell was slated to die on April 8, but Democratic Gov. Timothy M. Kaine postponed the execution until July 24.

His case was originally set for high court discussion on April 28, but the justices did not announce whether they had agree to hear the case.

Bell’s appellate lawyers have asked the court to use Bell’s case to settle what they say is a conflict between various federal appellate courts over whether it is reasonable to present no evidence in mitigation if most of the evidence is “two-edged.”

Review by the entire court is rare. More than 8,000 applications are made to the court each year, but only about 100 are heard.

In the meantime, Bell’s fellow death row inmate, Christopher Scott Emmett, is preparing to argue at the U.S. Court of Appeals for the Fourth Circuit in Richmond that Virginia’s execution protocols are unconstitutional.

The Supreme Court held last month that Kentucky’s protocols are constitutional, but Emmett’s lawyers say they don’t look anything like Virginia’s.

“Emmett has developed a compelling record showing that in Virginia there is a substantial risk that he will be inadequately anesthetized during his execution,” his lawyers wrote in court filings last week.

At issue is whether Emmett can show, as Chief Justice John Roberts wrote in the Baze opinion, that Virginia’s “lethal injection protocol creates a demonstrated risk of severe pain.”

Condemned inmates challenging a lethal injection protocol must “show that the risk is substantial when compared to the known and available alternatives.”

That’s just what the record demonstrates in Virginia, according to Emmett’s lawyers.

“Inmates in Virginia routinely take longer to die from the potassium [chloride] than the State’s expert predicted should be the case, suggesting that they have not received all of the potassium, which in turn suggests that they have not received all of the thiopental,” Emmett’s lawyers wrote.

That means that the inmates could have felt the burning chemicals in their veins, but were unable to move to alert the execution team that they were in pain, according to Emmett’s legal team.

But the Baze decision also holds that capital punishment, by its very nature, carries some risk of discomfort, according to lawyers from the office of Republican Attorney General Bob McDonnell.

“[The Supreme Court] observed that the ‘Constitution does not demand the avoidance of all risk of pain in carrying out executions,’” the state attorneys wrote.

A lower court determined that “the evidence demonstrated that the risk of pain to Emmett was [0.03 percent,] a risk that is not constitutionally significant,” they wrote.

“The district court therefore concluded that Emmett cannot prevail because, although there will always be the possibility of risks, Emmett failed to demonstrate a substantial risk of harm,” the attorney general’s staff lawyers wrote.

A three-judge panel in Richmond will hear oral arguments in the Emmett case on May 14.

* Contact Garren Shipley at gshipley@nvdaily.com

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