Federal judge blocks California execution

Deborah Denno in The Santa Cruz Sentinel, September 28, 2010

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California's chief justice has often called the state's death penalty system "dysfunctional." The frantic final days before Albert Greenwood Brown's scheduled execution may be proving him right once again.

A San Jose federal judge on Tuesday reversed course and granted Brown a reprieve just two days before his scheduled execution, concluding that he didn't have enough time to complete his legal review of California's new lethal injection procedures. Unless overturned by a federal appeals court or the U.S. Supreme Court, U.S. District Judge Jeremy Fogel's ruling ensures that California will not be able to carry out its first execution in nearly five years.

In an unprecedented quirk, California's supply of one of the three drugs needed to carry out a lethal injection hits its expiration date on Friday, and Fogel's decision to grant a stay means the state will not be able to execute Brown -- or any other inmate -- until at least sometime next year. The 56-year-old Brown, who had already ordered his last meal of steak and onion rings, was scheduled to die at 9 p.m. Thursday.

Fogel, in his ruling, vowed to try to resolve the ongoing challenge to lethal injection by the end of the year, but he blamed state officials for rushing to set an execution date.

Attorney General Jerry Brown's office said they plan to appeal Fogel's ruling to the 9th U.S. Circuit Court of Appeals. The 9th Circuit, however, on Monday night set Albert Brown's reprieve in motion, ordering Fogel to reconsider his ruling last week denying a stay and strongly suggesting the case was moving forward without proper review of legal issues that have been brewing in the California courts since 2006.

Brown, on death row since 1982 for the rape and murder of a 15-year-old girl, is the latest example of California's protracted troubles with the death penalty.

From the infamous legal delays before Robert Alton Harris was put to death in 1992 to the frenetic reprieve of Michael Morales after he gulped down his last meal inside San Quentin in 2006, California has regularly experienced eleventh-hour chaos in its executions.

As Fogel was ruling Tuesday evening, the state was running out of time to execute Brown, primarily because it is running out of usable sodium thiopental, the first drug administered in the state's preferred three-drug method for lethal injection. And the Illinois-based company that makes the drug has said it will not have more of the anesthesia until 2011, which would prevent California from moving forward with plans to execute other inmates, including Santa Clara County's David Allen Raley.

Fogel put California executions on hold in early 2006 when Morales challenged the state's lethal injection procedures, and they have been tied up in legal knots since that time. Other states have been in the same position, including Kentucky, despite the fact that state's lethal injection method was upheld by the U.S. Supreme Court in 2008. Other than states such as Texas and Ohio, few states have been executing inmates in recent years.

"I don't think (California) is abnormal anymore," said Deborah Denno, a Fordham University law professor. "California is pretty consistent in its questioning of lethal injection."

Attorney General Brown, in the midst of his heated race for governor, has tried to change that in recent weeks, intensifying state efforts to resume executions.

Earlier Tuesday, the state urged Fogel to allow Albert Brown's execution to proceed on schedule, arguing that the state's newly revised lethal injection procedure and updated San Quentin death chamber comply with legal standards established two years ago by the U.S. Supreme Court. The state also invited Fogel to tour the new lethal injection chamber.

But Fogel, already chastised once by the 9th Circuit, rejected the state's arguments, saying he does not have "time to render a reasoned decision" about the state's procedures before Brown's scheduled execution. The judge also said the condemned Riverside County killer had "raised substantial questions of fact as to whether" California's new procedures remedy problems he identified in 2006.

At that time, Fogel found the state's lethal injection method flawed and ordered the state to fix a host of problems, including inadequate training of execution team members, lax oversight of the drugs used and an antiquated death chamber.

Albert Brown's lawyers, meanwhile, blasted the state for rushing to execute Brown before Fogel had an opportunity to review the state's new lethal injection procedures and for trying to squeeze the fatal event in before California runs out of the necessary drug.

In its order Monday night, the 9th Circuit called it "incredible" that Brown's fate is being decided on a deadline linked to the "expiration date of the execution drug," and said Fogel had overstepped his authority by giving the death row inmate a choice of being executed by a single dose of an anesthetic or the state's preferred three-drug lethal cocktail. Brown refused to make that choice, and Fogel admitted Tuesday his offer was "ill-advised."

State lawyers stressed that the California procedures are much different from when Fogel halted executions in 2006, including a requirement that an inmate be deemed unconscious before the final two drugs can be administered.

Critics of lethal injection say those two drugs can mask an inmate's agonizing pain before death. In court papers filed Tuesday, Brown's lawyers say the new regulations are just a recast version of the old ones found inadequate by Fogel four years ago.

In addition to Fogel's court, Brown's fate also is being considered in other forums. The state courts are reviewing a separate legal challenge to the way the state adopted its new lethal injection procedures, and Gov. Arnold Schwarzenegger is considering his bid for clemency.