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Va., Del. death row inmates challenge lethal injections
Wednesday, May 14, 2008

By LARRY O'DELL, Associated Press Writer
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RICHMOND, Va. —

Attorneys for death row inmates in Virginia and Delaware argued Wednesday that their states' lethal injection procedures need changing despite a recent U.S. Supreme Court ruling that upheld the most widely used method of execution.

Some of the 35 states that use lethal injection moved swiftly to schedule executions put on hold for seven months while the Supreme Court considered a Kentucky case arguing that lethal injection was cruel and unusual punishment. Georgia became the first to kill an inmate last week.

But death row inmates in other states continue to press legal challenges on similar grounds, and federal courts held separate hearings Wednesday on two such cases.

In Delaware, death row inmates have filed a class-action lawsuit claiming the state's lethal injection method is substantially different from the Kentucky method.

Virginia inmate Christopher Scott Emmett claims the state Department of Corrections presents a substantial risk of harm because it does not allow the option of a second dose of anesthesia to make sure the inmate is unconscious before paralyzing and heart-stopping drugs are injected.

In Richmond, attorneys for Emmett and the state told a three-judge panel of the 4th U.S. Circuit Court of Appeals that they would consider settling the case if they can agree on changes to the state's execution protocol to satisfy Emmett's concerns _ in his case only.

Richard Vorhis, an attorney in the state attorney general's office, argued that while the protocol does not specifically authorize a second dose of anesthesia, it gives the corrections director broad latitude to adjust on the fly to ensure a smooth and humane execution.

He also said there is no evidence any of the 70 inmates Virginia has executed by injection were conscious by the time the fatal drugs reached their heart. But he acknowledged that executioners must watch for physical signs of discomfort, such as talking, movement and gasping.

Vorhis said Virginia's protocol is essentially the same as Kentucky's. But Emmett's attorney, Matthew J. Hellman, argued that Virginia's longer history of lethal injections _ 70 compared to Kentucky's one _ has exposed problems with the protocol. He said many of Virginia's lethal injections have required a second round of the heart-stopping drug, and that alone suggests a problem.

In Delaware, U.S. District Judge Sue Robinson said she must decide whether the state's procedure is significantly different from Kentucky's, as claimed by an attorney representing ax murderer Robert Jackson III and other death row inmates.

Deputy Attorney General Elizabeth McFarland said Delaware's protocol is even more detailed than Kentucky's, leaving even less to chance. "The protocol is very clear as written," she said.

The judge set a June 23 hearing to consider which specific issues and expert witnesses will be heard in deciding whether Delaware's protocol presents a substantial risk of unnecessary pain to the condemned inmate.

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Associated Press Writer Randall Chase in Wilmington, Del., contributed to this report.