California: Judge clears way for first execution since 2006

San Quentin's new execution chamber
Interior of holding cell

A federal judge cleared the way Friday for California's 1st execution in nearly five years, citing the state's efforts to revise its lethal injection procedure and a Supreme Court ruling making it more difficult for condemned inmates to delay their death.

Barring successful appeals to other courts, convicted murderer and rapist Albert Greenwood Brown is scheduled to die on Wednesday, after U.S. District Court Judge Jeremy Fogel refused to block the execution.

Brown failed to show "a demonstrated risk of severe pain" as required by a 2008 U.S. Supreme Court ruling upholding Kentucky's lethal injection process, the judge said in his ruling.

Brown's execution would be the 1st in the state since Fogel placed a de facto moratorium on capital punishment in California and ordered prison officials to overhaul the process in 2006.

The attorney general's office told Fogel this week the state has complied with his order by building a new death chamber at San Quentin State Prison, revising its training regimen and adopting new lethal injection regulations.

Fogel gave Brown the option of choosing a 1-drug injection of sodium thiopental instead of a 3-drug cocktail used by the state to put condemned inmates to death.

The judge said it appeared the 1-drug lethal injection was less risky than the 3-drug cocktail when it came to causing pain.

"The fact that 9 single-drug executions have been carried out in Ohio and Washington without any apparent difficulty is undisputed and significant," Fogel wrote.

Brown can still pursue at least two legal avenues to stop his execution. He can ask the 9th U.S. Circuit Court of Appeals to overturn Fogel's decision. His attorneys already plan to ask a Marin County Superior Court judge to halt the execution while a lawsuit challenging the new lethal injection regulations is pending.

"We have been given an awfully short time to make such a critical decision," said John Grele, one of Brown's attorneys.

Fogel ordered the Department of Corrections and Rehabilitation to overhaul its lethal injection process in response to a lawsuit filed by death row inmate Michael Morales, who came within 2 hours of a lethal injection in February 2006 before prison officials canceled his execution and conceded they couldn't immediately comply with the judge's orders.

Since then, the state spent more than $800,000 constructing a new death chamber at San Quentin prison and revised how its execution team is selected and trained.

Brown's lawyers argued that the judge should personally inspect the new death chamber and extensively review the new training procedures before allowing executions to resume. They also questioned how Brown came to be picked as the next inmate scheduled for execution when Morales was atop the list 5 years ago.

"It is highly unfair to single out Mr. Brown when all of these questions are still unresolved," Grele said.

Brown is among several death row inmates who have gone completely through their state and federal appeals. Lawyers with the attorney general's office said execution dates for at least four other inmates, including Morales, are expected to be scheduled soon.

Attorney general spokeswoman Christine Gasparac said her office notifies county prosecutors when a death row inmate has exhausted all of his appeals.

The office also informs county prosecutors of the prison department's schedule and available execution dates. From there, the district attorneys obtain an execution date from their local court, which is what happened in Albert Brown's case in Riverside County.

Brown was sentenced to death for the rape and murder of 15-year-old Susan Jordan several weeks after his release from prison, where he had served time for another rape.

Investigators said Brown called Jordan's mother several times on the day of her disappearance, taunting her with messages that she will never again see her daughter alive.

Source: Associated Press, September 25, 2010

With Conditions, Judge Clears Way for a California Execution

SAN FRANCISCO — A murderer and rapist has been cleared by a federal judge for execution in California next week in what would be the state’s first execution in more than four years. But the judge set specific conditions, including giving the condemned man the option of a single drug to be used in a lethal injection, an issue that has bogged down executions in the state before.

The condemned man, Albert Greenwood Brown Jr., was convicted in 1982 of raping and strangling a 15-year-old girl with a shoelace in an orange grove in Riverside, Calif. He is scheduled to be executed at San Quentin prison on Wednesday morning.

Bank of phones in
San Quentin's new execution chamber

This month, Mr. Brown sought to join a federal lawsuit filed in 2006 by Michael A. Morales, a murderer and rapist who argued that the state’s method of lethal injection, using three drugs, violated the constitutional prohibition on cruel and unusual punishment because of the pain inflicted on the condemned.

At the time, Judge Jeremy Fogel of United States District Court in San Jose ordered changes in the execution procedure and stipulated that Mr. Morales be put to death using a single barbiturate.

But the state balked, and Mr. Morales’ execution was stayed. And after a period of collecting evidence, the court also found deficiencies in the state’s execution process, including lack of training of the execution team, improper mixing of drugs, and poorly designed facilities. Judge Fogel asked the state to review and revise its protocols, which the state agreed to do, effectively halting executions while new regulations were developed.

In 2009, California’s Department of Corrections and Rehabilitation submitted new and detailed regulations on the lethal injection methods, outlining a three-drug protocol. The new regulations were later approved by the state’s Office of Administrative Law, which reviews all rules proposed by California state agencies. The state also built a new execution chamber at San Quentin.

But in his ruling Friday, Judge Fogel said that if Mr. Brown opted to use only one drug — sodium thiopental, a barbiturate — and the state refused, his execution would be stayed. If he opts for the three-drug protocol outlined in the new regulations, the order reads, the execution would proceed. The judge set a 6 p.m. Saturday deadline for Mr. Brown to make his decision.

George Kostyrko, a spokesman for the Department of Corrections and Rehabilitation, said that his agency was “operationally still proceeding” toward the planned execution, but that agency lawyers were still reading orders from Judge Fogel and consulting with the office of the state attorney general, Jerry Brown.

But in a brief filed before Judge Fogel on Wednesday, lawyers for the attorney general said that a single-drug execution would be possible by increasing the dosage of sodium thiopental to 5 grams, from the 3 grams used in the three-drug method.

John R. Grele, a lawyer for Albert Brown, said that he was mulling “appropriate response to the court’s order,” including an appeal to the United States Court of Appeals for the Ninth Circuit, in San Francisco. A state court in Marin County — where San Quentin is located — is also expected to hear a separate legal challenge to the new regulations on Monday.

California, whose last execution was in January 2006, has the nation’s largest backlog of condemned prisoners with some 700 inmates on death row.

Source: The New York Times, September 25, 2010