By Matthew A Ward
CHESAPEAKE, Va (Reuters) - A man convicted of raping and killing an elderly Virginia woman will on Thursday be the first inmate put to death in that state this year unless the U.S. Supreme Court intervenes to stop the execution.
Jerry Terrell Jackson, 30, is scheduled to be executed at 9 p.m. local time on Thursday at the Greensville Correctional Center, south of the state capital, Richmond, using a cocktail that includes the drug pentobarbital, a sedative.
Governor Bob McDonnell has declined to grant clemency in the case, and only an appeal currently before the Supreme Court could stay the execution.
Jackson, on death row since 2003, entered the Williamsburg apartment of 88-year-old Ruth Phillips on August 26, 2001. He told police he did not know Phillips was home.
But she was lying in bed at the time and confronted Jackson. She told him to take what he wanted and leave, but he held a pillow against her face until she stopped screaming, raping her at the same time.
Jackson later left the apartment through a back window with $60. He stole Phillips' car and used the money to purchase marijuana. Phillips' body was found by her son after she did not attend church or answer her telephone.
A fingerprint on a piece of paper inside a wallet next to Phillips' bed and DNA from hair found on and around her body implicated Jackson, and a jury found him guilty of capital murder.
The Virginia Supreme Court has upheld Jackson's convictions and sentences. But a planned execution in 2006 was stayed by the U.S. District Court for the Eastern District of Virginia two days before it was due to take place.
In April, the Fourth Circuit Court of Appeals reversed the district court's grant of relief on some of Jackson's claims, and denied his petition for a rehearing.
Governor McDonnell, in rejecting clemency last week, said in a statement that he found "no compelling reason to set aside the sentence of the jury, imposed and affirmed by the courts."
The final appeal to the U.S. Supreme Court could be decided within hours of the scheduled execution, experts say. Jackson's appeal is two-pronged, calling for a review of the appeals court's decision and for another stay of execution.
Jackson's lawyers in the appeal argue that his trial defense failed to present an adequate picture of the sexual, physical and psychological abuse he endured as a child.
Notably, Jackson's brother and sister were not called to testify at trial, reportedly because Jackson's defense believed it would harm his case as his brother suffered the same abuse and has no criminal record.
"It boils down to whether the trial lawyers conducted an adequate investigation of the evidence that might have led at least one juror to vote for life (imprisonment), because it only takes one," said senior staff attorney Michele Brace of the Virginia Capital Representation Resource Center, which is representing Jackson.
Virginia, like multiple other states, switched to using pentobarbital instead of sodium thiopental in its lethal injection regime after the sole U.S. supplier of sodium thiopental ceased production.
Inmates in Virginia have a choice of being executed by lethal injection or electrocution, and Jackson's appeal was not based on the drug. Challenges to pentobarbital elsewhere have generally failed to prevent executions from being carried out.
The Florida Supreme Court last month temporarily halted the execution of a man convicted of killing a police officer and ordered a hearing on his concerns about pentobarbital.
A separate execution in Georgia went ahead last month using the drug, which is often used to euthanize animals. But that execution was ordered filmed after lawyers for another death row inmate raised concerns.
(Editing by Cynthia Johnston)