Federal judge blocks California execution

Deborah Denno in Daily Me, September 28, 2010

Media Source

Sept. 29--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 whether California's new lethal injection procedures protect a death-row inmate against a cruel and inhumane death. 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 will run out of one of the three drugs needed to carry out a lethal injection 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 blamed state officials for rushing to set an execution date.

State Attorney General Jerry Brown's office did not comment on the ruling, but can appeal to the 9th U.S. Circuit Court of Appeals. The

9th Circuit, however, on Monday night set 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 has been on death row since 1982 for the rape and murder of a 15-year-old girl.

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 a 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.

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

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."

The appeals court ordered Fogel to evaluate whether the new procedures, coupled with the newly constructed death chamber, would hold up under the U.S. Supreme Court's ruling.

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 is also 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.