UPDATE Tuesday night

Virginia Gov. Tim Kaine turned down a request for clemency, allowing the execution of Kevin Green to proceed.  A statement by the governor can be found here.

The Supreme Court early Tuesday evening refused to delay the execution in Virginia of Kevin Green.  Simultaneously, the Court denied review of a new appeal by Green, raising issues about the time allowed for filing a habeas challenge.  The Court’s order, along with a dissent by Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, can be found here.

Since the Court’s ruling in Baze v. Rees (07-5439) on April 16, clearing the way for the resumption of executions, the Justices have stayed only one scheduled execution — in the case of Edward Nathaniel Bell, another death-row inmate in Virginia.  The Court granted review of Bell’s appeal (Bell v. Kelly, 07-1223) on May 12; the key issue in that case is whether federal courts, in hearing challenges by state prisoners, must defer to state court findings even if the state court did not consider the evidence at issue.

In Virginia, Kevin Green was convicted of murder and sentenced to death for the 1998 shooting death of Patricia L. Vaughn at the grocery store she and her husband owned in Brunswick County, VA.  Green had previously been a customer at the store, mainly to cash his payroll checks from a nearby lumber company.

In his new appeal (Green v. Johnson, 07-10988), Green contended that his defense lawyers had improperly failed to appeal the robbery portions of his guilty verdict, even while appealing the murder conviction. They won a new trial on the murder count, but not on the robbery count, and this, Green contended, allowed the jury to learn about the robbery conviction — information that he argued increased the chances of his being convicted anew of murder and sentenced to death.  He was denied a chance to raise this issue in his first federal habeas petition; that petition was denied by the Fourth Circuit Court, leading to Green’s new appeal.

Justice Stevens’ dissent complained that the state of Virginia planned to execute Green before the Court had a full opportunity to review his legal claims.  As he has before, Stevens argued that the Court should follow the regular practice of staying all executions that are scheduled before the Court had time to review the denial of a first habeas petition.

Green’s stay application was 07A913.   In denying that application and the petition for certiorari, the Court provided no explanation.  Green’s stay request was filed with Chief Justice John G. Roberts, Jr., Circuit Justice for the Circuit that includes Virginia.  Roberts referred the matter to the full Court.

Green’s execution was scheduled for 9 p.m. Tuesday.

 The next scheduled execution is in Texas, where Derrick Sonnier is to die next Tuesday, followed by Curtis Osborne in Georgia on Wednesday. At present, eight executions, including Sonnier’s and Osborne’s, are due in June — three in Texas, two in Virginia, and one each in Georgia, South Carolina and Oklahoma.

Posted in Bell v. Kelly, Uncategorized