Mur­derer’s ex­e­cu­tion OKd

Judge rules Al­bert Brown can be put to death Wed­nes­day by lethal in­jec­tion.

Los Angeles Times - - Front Page - Carol J. Wil­liams

A fed­eral judge on Fri­day cleared the way for the first ex­e­cu­tion in Cal­i­for­nia in nearly five years when he re­fused to halt mur­derer-rapist Al­bert Green­wood Brown’s death by lethal in­jec­tion, sched­uled for Wed­nes­day.

U.S. District Judge Jeremy Fo­gel expressed con­cern about the limited time he had to eval­u­ate the state’s newly re­vised ex­e­cu­tion pro­ce­dures and gave Brown the choice of be­ing put to death by a sin­gle in­jec­tion, as prac­ticed in Washington and Ohio, in­stead of by the state’s three-drug method.

Fo­gel expressed in­ner con­flict over his rul­ing, say­ing his court was “painfully aware that how­ever it de­cides a case of this na­ture, there will be many who dis­agree pro­foundly with its de­ci­sion. The moral and po­lit­i­cal de­bate about cap­i­tal pun­ish­ment will con­tinue, as it should.”

But the state has “a strong in­ter­est in pro­ceed­ing with its judg­ment,” the judge con­ceded. He said he was of­fer­ing the sin­gle-in­jec­tion op­tion to al­le­vi­ate his resid­ual con­cerns about the po­ten­tial for the three-in­jec­tion method to sub­ject con-


demned in­mates to cruel and un­usual pun­ish­ment.

In as many as seven of the pre­vi­ous 11 lethal-in­jec­tion deaths car­ried out at San Quentin State Prison, there were re­ports that the pris­oner might not have been fully anes­thetized by the first in­jec­tion, the pow­er­ful bar­bi­tu­rate sodium thiopen­tal, Fo­gel noted in his rul­ing.

“The fact that nine sin­gle-drug ex­e­cu­tions have been car­ried out in Ohio and Washington with­out any ap­par­ent dif­fi­culty is undis­puted and sig­nif­i­cant,” Fo­gel said, giv­ing Brown that op­tion.

Fo­gel had asked the Cal­i­for­nia Depart­ment of Corrections and Rehabilitation ear­lier this week whether it could use the sin­gle-in­jec­tion method. Attorneys for the state told Fo­gel the corrections staff needed only three days to re­train the ex­e­cu­tion team for the one-drug method, in which a much larger dose of the bar­bi­tu­rate would put the pris­oner into a deep sleep as his or­gans shut down.

One of Brown’s attorneys, John R. Grele, said the le­gal team was weigh­ing its op­tions and might ap­peal to the U.S. 9th Cir­cuit Court of Ap­peals. The mo­tions panel for Septem­ber con­sists of three judges ap­pointed to the court by for­mer Pres­i­dent Ge­orge W. Bush.

On Mon­day, Brown’s lawyers are ex­pected to ar­gue be­fore a Marin County court that the state did not fol­low manda­tory pro­ce­dures when it went about draft­ing the new lethal-in­jec­tion pol­icy to ad­dress de­fi­cien­cies iden­ti­fied by Fo­gel when he ef­fec­tively stayed ex­e­cu­tions with a rul­ing in 2006.

Santa Clara Uni­ver­sity law pro­fes­sor Ellen Kre­itzberg, an ex­pert on the death penalty, said Fri­day’s rul­ing sur­prised her.

Five years ago, she said, Fo­gel spent a lot of time metic­u­lously ex­am­in­ing the set­ting, train­ing and test­ing that lay be­hind Cal­i­for­nia’s lethal in­jec­tion process be­fore find­ing flaws in it. But the judge’s rul­ing in Brown’s case came with­out his hav­ing ex­am­ined the new ex­e­cu­tion cham­ber that has been built in the mean­time and with­out his ex­am­in­ing the train­ing for those who ad­min­is­ter the drugs.

“There are so many unan­swered ques­tions and so many un­cer­tain­ties that to al­low the ex­e­cu­tion to go for­ward with those is re­ally trou­bling,” said Kre­itzberg, who op­poses the death penalty. “It’s sur­pris­ing af­ter five years that ev­ery­one is rush­ing to have these ex­e­cu­tions move for­ward so quickly.”

Brown had pe­ti­tioned Fo­gel’s court last week to join the case brought by fel­low death row in­mate Michael Morales, who had chal­lenged the state’s for­mer lethal-in­jec­tion pro­ce­dures as vi­o­lat­ing the Con­sti­tu­tion’s pro­hi­bi­tion of cruel and un­usual pun­ish­ment.

Attorneys for the state ob­jected, claim­ing the pro­ce­dures chal­lenged by Morales are no longer in use. They were re­placed by new pro­to­cols ap­proved by a state agency in late July.

Af­ter halt­ing Morales’ ex­e­cu­tion in Fe­bru­ary 2006, Fo­gel held hear­ings that led to his rul­ing that the for­mer ex­e­cu­tion meth­ods risked ex­pos­ing pris­on­ers to un­con­sti­tu­tional lev­els of pain.

Among the de­fi­cien­cies Fo­gel iden­ti­fied were in­suf­fi­cient train­ing of the ex­e­cu­tion team and cramped con­di­tions and poor light­ing in the gas cham­ber that was then in use for lethal-in­jec­tion ex­e­cu­tions. Two other pris­on­ers were ex­e­cuted by lethal gas in the early 1990s, bring­ing to 13 the num­ber put to death by the state since cap­i­tal pun­ish­ment was re­in­stated in 1976.

Corrections of­fi­cials in 2007 built a new Lethal In­jec­tion Cham­ber — four times larger than the gas cham­ber — and un­veiled the fa­cil­ity on Tues­day.

There are 708 pris­on­ers on Cal­i­for­nia’s death row, but only a few have ex­hausted all ap­peals and are el­i­gi­ble to be is­sued death war­rants.

Brown, 56, was con­victed of the ag­gra­vated murder of Ar­ling­ton High School stu­dent Su­san Jor­dan in 1980 in River­side. The 15-year-old was walk­ing to school when Brown pulled her into an orange grove, raped her and stran­gled her with her shoelaces. He called the girl’s par­ents and told them where to find her body.

Brown had been paroled four months ear­lier from a prison term im­posed for the 1977 rape of a 14-year-old girl.

A River side County judge last month or­dered Brown’s ex­e­cu­tion for Wed­nes­day.

John Hall, a spokesman for the River­side County district at­tor­ney’s of­fice, said pros­e­cu­tors were pleased with Fo­gel’s rul­ing.

“This is a hor­rific case with hor­rific facts,” Hall said. “This man showed no re­morse. He never claimed in­no­cence.... It’s time for this fam­ily to fi­nally see jus­tice. It’s been de­layed too long al­ready.”

Some ad­vo­cacy groups hailed Fo­gel’s de­ci­sion.

“To­day’s rul­ing marks the end of the in­jus­tice in this case, and we may be near the end in many oth­ers, where the sen­tences have been de­layed for rea­sons that have noth­ing to do with the guilt of the mur­der­ers or the fair­ness of their tri­als,” said Kent Schei­deg­ger, le­gal di­rec­tor for the Crim­i­nal Jus­tice Le­gal Foun­da­tion in Sacra­mento.

Eric Risberg

PRISON: Al­bert Green­wood Brown is sched­uled to be put to death Wed­nes­day at San Quentin, which houses a new lethal in­jec­tion cham­ber. There have been no ex­e­cu­tions in the state since Jan­uary 2006.

MUR­DERER: Brown raped and stran­gled a 15-year-old school­girl, Su­san Jor­dan, in 1980.

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