Virginia authorities want the U.S. Supreme Court to lift the stay of execution it granted Christopher Scott Emmett last year shortly before he was to die by lethal injection.

Emmett was spared execution on Oct. 17 while the justices considered a challenge to Kentucky's lethal-injection procedures. Kentucky uses the same three drugs as other states, including Virginia.

Last month the divided court allowed lethal injections to resume, but also opened the door to more lethal-injection challenges. Emmett has such a case pending in the Richmond-based 4th U.S. Circuit Court of Appeals set to be argued May 14.

Emmett, 36, bludgeoned John F. Langley to death during a robbery on April 26, 2001, in a Danville motel room where the two roofing company workers were staying. Langley, 43, was from Roanoke Rapids, N.C.

While execution dates for three other inmates in Virginia are pending, a new date for Emmett cannot be set while the Supreme Court's stay remains in effect. The Virginia attorney general's office wants the stay lifted.

"Over six years ago, a jury determined that Emmett should be put to death," the state lawyers said in a motion now before the justices.

They point out that the death sentence has been upheld by all the federal and state courts with the authority to review it, and they argue, "the commonwealth's interest in executing Emmett without further delay is profound."

Emmett's lawyers counter that given the nearness of May 14, "it is unlikely that Virginia would even be able to carry out Emmett's execution before the argument, at which point the Fourth Circuit would be free to rule on Emmett's appeal."

Emmett's stay is set to be considered by the justices May 15, the day after the appeals court arguments.

Carl Tobias, a professor in the University of Richmond's School of Law, said the Emmett case could become a model for new lethal-injection challenges in other states.

"This has got to be one of the first ones," he said. "I think his lawyers made the right argument -- we're right before the Fourth Circuit, don't cut us off now," Tobias said.

Emmett's lawyers say the Kentucky case set the standard for considering a cruel and unusual punishment challenge to lethal injection based on whether there is a "substantial risk the chemicals would not be properly administered."

They contend Virginia's procedures differ from those in Kentucky and that evidence has "powerfully demonstrated that this risk exists because of Virginia's unique and uniquely dangerous lethal injection practices."

The Virginia attorney general's office disagrees that procedures in the two states differ. It contends that the Kentucky case holds that a stay should be granted only in cases where the procedure "creates a demonstrated risk of severe pain" and that the risk is "substantial" when compared to known and available alternatives.

"At the very least, 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."
Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.