Death-row inmate Christopher Scott Emmett asked the 4th U.S. Circuit Court of Appeals yesterday to restore his lawsuit challenging the way Virginia conducts lethal injections.

Emmett says U.S. District Judge Henry E. Hudson erred when he tossed out his case last year before it came to trial. Emmett wants the state to use only the first of three drugs now injected via intravenous lines -- an anesthetic that renders the inmate unconscious.

Virginia and other states also use a second drug that paralyzes and a third that stops the heart. Any of the three drugs is lethal in sufficient doses.

The U.S. Supreme Court halted Emmett's execution shortly before it was to take place Oct. 17. No executions were held in the country for seven months while the justices considered a challenge to Kentucky's lethal-injection procedures.

The justices upheld Kentucky's three-drug procedure last month, but yesterday's hearing shows issues regarding lethal-injection procedures are far from settled.

In response to questions from Judge Dennis W. Shedd yesterday, Matthew S. Hellman, a lawyer for Emmett, said that if the state agreed to use only a massive dose of the first drug, the suit could be dropped.

Richard C. Vorhis, a senior Virginia assistant attorney general, told Shedd that a change in procedures could be considered.

But he also said, "We can't just willy-nilly accept any alternative that comes down the pike." He said the Department of Corrections will use only a procedure that is quick and humane.

Hellman said after the hearing that he said hoped there would be settlement negotiations. Spokesmen for Gov. Timothy M. Kaine and Virginia Attorney General Bob McDonnell declined to comment.

9Among other things, opponents of the three-drug procedure contend that if the first drug is not administered properly, an inmate could regain consciousness and feel great pain but be unable to show or express it because of paralysis.

Hellman said Kentucky's procedures differ from Virginia's and that Kentucky has conducted only one lethal injection. Hellman said that Virginia has readministered the second and/or third drugs at times when it took longer than expected for the inmate to die.

But Hellman said the first drug, which would ensure the inmate was unconscious, was not readministered because Virginia procedures do not allow it. Hellman said that leads to a "substantial risk" of a torturous death.

Vorhis told the appeals-court panel that there was no indication that any of the 70 men executed by injection in Virginia were conscious.

He said that Hudson, in dismissing Emmett's suit, "found that there was no substantial risk of severe harm to Mr. Emmett."

Judge Roger L. Gregory asked Vorhis how the state knows an inmate is unconscious.

Vorhis said it is determined by "the lack of obvious signs" of consciousness. "These are signs anybody can observe," he said. "There is no touch test and there is no monitoring."

If an inmate regains consciousness, protocol permits the execution team to amend procedures on a case-by-case basis and readminister the first drug if needed, Vorhis said.

It is unclear when the appeals court will rule. Emmett's stay of execution issued by the U.S. Supreme Court remains in effect, but the Virginia attorney general's office has asked that it be lifted.

Emmett, 37, was sentenced to death for the 2001 slaying of John F. Langley, 43, a co-worker beaten to death for drug money in a Danville motel room.

Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.