Va. Executes Man, Ending De Facto Moratorium

Killer of Store Owner Is First to Die Since Supreme Court Put Cases on Hold
By Jerry Markon
Washington Post Staff Writer
Wednesday, May 28, 2008; B01

Convicted killer Kevin Green was put to death by lethal injection
last night after a federal judge rejected a last-minute request to
stop the execution. He became the first inmate to die by lethal
injection in Virginia since 2006.

The execution, which was scheduled to take place at 9 p.m. last
night, was delayed for about an hour when Green's defense attorneys
filed a request for a temporary restraining order blocking the
execution in federal court in Richmond. It was rejected by U.S.
District Judge James R. Spencer in Richmond at 9:40 p.m., according
to the Virginia attorney general's office.

Officials said Kaine then instructed authorities at the Greensville
Correctional Center in Jarrett to proceed with the execution, and
Green's attorneys decided against pursuing an appeal to the U.S.
Court of Appeals.

At 10:05 p.m., Virginia officials said Green, who killed a
southeastern Virginia convenience store owner 10 years ago, became
the first person executed in the state since 2006, as the U.S.
Supreme Court considered the constitutionality of death by lethal
injection.

But it was the first time in recent memory that last-minute legal
maneuvering had caused such a dramatic delay.

"The Vaughan family suffered a horrible loss as a result of Mr.
Green's crime," said Timothy M. Richardson, an attorney for Green.
"Nevertheless, we just executed a man with the IQ of an 11-year-old
child."

The U.S. Supreme Court rejected a stay of execution for Green
yesterday, although Justices John Paul Stevens and Ruth Bader
Ginsburg said they would have granted the stay. Kaine denied a
petition for clemency, saying he had carefully reviewed the case but
found "no compelling reason to set aside the sentence that was
recommended by the jury."

Green's attorneys had argued to the governor that he could not be
constitutionally put to death because, with an IQ of 65, he is
mentally retarded. The Supreme Court outlawed the execution of
mentally disabled people in 2002, but left it up to states to define
mental retardation.

Although the Supreme Court upheld the constitutionality of lethal
injection last month, a federal appeals court in Richmond is weighing
a challenge to the three-drug method of lethal injection used to put
Green to death last night. Attorneys for convicted killer Christopher
S. Emmett are arguing that Virginia's protocol is unconstitutional,
saying that prisoners are not fully anesthetized before being
administered drugs that can cause excruciating pain.

The execution would signal the resumption of capital punishment in
the state after it was effectively put on hold in the fall because
the U.S. Supreme Court was debating the constitutionality of lethal
injection. Kaine also twice delayed the execution of another inmate
in 2006.

Virginia has executed 99 people since the U.S. Supreme Court
reinstated capital punishment in 1976, second only to Texas, which
has executed 405. The last inmate executed in Virginia was John
Yancey Schmitt, who died by lethal injection in November 2006.

State lawyers say Virginia's lethal injection protocol is "virtually
identical" to the procedures in Kentucky that the Supreme Court upheld.

Green was convicted in the killing of Patricia L. Vaughan, who along
with her husband owned a small grocery store in Brunswick County.

Staff writer Robert Barnes contributed to this report.

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