SAN FRANCISCO — Facing sharp questions from a federal appellate panel and concerns about a drug used in lethal injections, a federal judge in California has canceled what would have been California’s first execution in more than four years.
Albert G. Brown Jr., 56, was convicted in 1982 of raping and strangling a 15-year-old girl in Riverside, Calif., two years before and had been scheduled to die by lethal injection Thursday night.
But late Tuesday, Judge Jeremy D. Fogel of Federal District Court in San Jose issued a stay after a three-judge panel of the United States Court of Appeals for the Ninth Circuit ordered him to again consider the case.
The stay came a day after California officials announced that the state’s supply of sodium thiopental, a barbiturate used in executions, was good only until Friday, a revelation that seemed to shock the appellate panel. “It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the panel wrote.
In his stay, Judge Fogel seemed to agree, and indicated that he had been blindsided by the state’s admission about the drug’s expiration, calling it a “fact that the defendants did not disclose to this court.”
Mr. Brown’s execution would have been the first in California since 2006, when Judge Fogel effectively halted executions in the state after finding various deficiencies in the state’s methods. Since then, the state says it has addressed those problems by revamping regulations surrounding executions and building a new death chamber at San Quentin State Prison.
Judge Fogel ruled last week that Mr. Brown was ineligible for a stay, but legal questions and challenges continued to percolate. On Monday night, Gov. Arnold Schwarzenegger gave Mr. Brown a brief reprieve, pushing the execution to Thursday from Wednesday. The appellate panel weighed in later that night, raising questions about the constitutionality of the state’s new protocol for lethal injection using a three-drug cocktail.
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| San Quentin's new death chamber and gurney |
(CNN) -- A federal court judge blocked the execution of a murderer in California, two days before he was to receive a lethal injection.
A federal judge in San Jose ruled Tuesday, following furious legal maneuvering to keep Albert Greenwood Brown alive.
Brown's execution would've been California's first since 2006, when legal challenges prompted the state to revise its lethal injection procedure.
He was sentenced to death in 1982 for raping and murdering a high school student.
The ruling by U.S. District Judge Jeremy Fogel reversed a decision that he had made earlier, which paved the way toward the execution.
Fogel's earlier decision was overruled by the Ninth Circuit Court of Appeals on Monday night.
The federal appeals court said Fogel mistakenly ruled that the execution could proceed if Brown chose between a one-drug or a three-drug option for his lethal injection.
"The district court's decision to provide Brown the choice of a one-drug option is not consistent with California state law and procedures," the appeals court ruling said. "California law does not provide the condemned a choice between a three-drug protocol or a one-drug option."
The appeals court told Fogel to rethink that decision and review whether California's new lethal injection procedures protect an inmate from a cruel and inhumane death.
Fogel said it would be impossible to complete that review before Brown's execution date.
Brown raped and murdered 15-year-old Susan Jordan, who was walking to Arlington High School in Riverside when Brown pulled her into an orange grove, according to court documents.
He raped her, strangled her with her own shoelace, and took her school identification cards and books.
Later that evening, Brown looked up her family in the phone book and called their home, court documents say.
"Hello, Mrs. Jordan, Susie isn't home from school yet, is she?" court documents quoted him as saying. "You will never see your daughter again. You can find her body on the corner of Victoria and Gibson."
He also called police and directed them to her body. During the investigation, three witnesses placed Brown near the scene of the crime. Police found Susan Jordan's school books and newspaper articles about her death in Brown's home, and clothing with semen stains in Brown's work locker.
During the penalty phase of Brown's trial, his lawyer said his client was remorseful. He also presented psychiatric evidence suggesting that Brown had emotional problems, including sexual maladjustment and dysfunction.
The jury deliberated for three hours before returning a death-penalty verdict, according to court documents.
California's last execution was on January 17, 2006, when Clarence Ray Allen was put to death for three counts of first-degree murder with special circumstances. From behind bars, he had helped orchestrate a deadly armed robbery at a convenience store.
Source: CNN.com, September 29, 2010
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