Federal Judiciary

Virginia seeks to move on execution

By Akin Gump Supreme Court Practice Group

In an early test of the Supreme Court’s willingness to let a number of states begin setting execution dates for death-row inmates, after an informal moratorium, Virginia officials on Wednesday asked permission to go forward with plans to use the lethal injection method in the case of Christopher Scott Emmett.  The state’s motion to vacate an existing stay can be found here.

Since the Court on April 16 ruled in a Kentucky case, Baze v. Rees (07-5439), that the lethal injection method is not unconstitutional at least as used in that state, it has not acted on any formal plea by a state for a chance to resume executions although it has denied review of inmate appeals from seven states.  A number of states have begun setting new execution dates in pending cases.

Emmett’s execution has been blocked by a Supreme Court order issued last Oct. 17, at a time when the Court was staying scheduled executions while it considered the Baze case. Emmett was sentenced to death in 2001 for murdering a co-worker in Danville, Va., and then robbing the victim of $100.

 Virginia’s attorney general argued that the Court’s stay should now be lifted, and any further delay should be considered, if at all, only by lower courts.  The Fourth Circuit Court has not ruled finally on Emmett’s latest challenge to Virginia’s execution procedure.  In fact, the Circuit Court last week  asked both sides to file new briefs by May 2 on the impact of the ruling by the Justices in Baze. A hearing in the Circuit Court is now set for May 14 in Richmond, VA (Emmett v Johnson, Circuit docket 07-18).

When the Justices imposed the stay in October, they did so “pending final disposition of the appeal” by the Circuit Court, or until “further order” of the Supreme Court. At the time, Emmett was asking the Supreme Court to bypass the Circuit Court so he could have his case reviewed directly by the Justices.

The new motion by the state noted that the Supreme Court, in Baze, had laid down strict new limits on when stays would be granted in any state using a lethal injection protocol.  “At the very least,” the state contended, “the Fourth Circuit should be required to make this determination, especially in a case from Virginia which employs lethal injection procedures virtually identical to those of Kentucky.”

While the Justices’ stay remains in effect, the state said, it “is unable even to set an execution date” that would then permit the Fourth Circuit to consider any stay request Emmett’s counsel then made.  “It therefore is essential that this Court vacate Emmett’s ‘Baze‘ stay,” the state argued.

Its motion was filed with Chief Justice John G. Roberts, Jr., who is Circuit Justice for the Fourth Circuit. He has the option of acting alone or of sharing the issue with his colleagues.  Emmett’s defense lawyer is expected to file shortly a response to the stay motion.

Full post as published by SCOTUSBLOG on April 24, 2008 (boomark / email).