Judge calls off killer’s ex­e­cu­tion

He cites a lack of time to re­view new lethal in­jec­tion pro­ce­dures. The state will ap­peal.

Los Angeles Times - - Latextar - Carol J. Wil­liams

A fed­eral judge Tues­day or­dered a halt to the ex­e­cu­tion of con­victed rapist and mur­derer Al­bert Green­wood Brown, say­ing there was “no way” the court could con­duct a proper re­view of new lethal in­jec­tion pro­ce­dures be­fore the in­mate was sched­uled to die Thurs­day.

U.S. District Judge Jeremy Fo­gel re­versed a de­ci­sion he handed down Fri­day that the ex­e­cu­tion could go for­ward if the state gave Brown the op­tion of dy­ing by a sin­gle-in­jec­tion method used in other states, rather than the three-drug cock­tail pre­scribed by Cal­i­for­nia’s new reg­u­la­tions.

A fed­eral ap­peals court re­turned the case to Fo­gel late Mon­day, say­ing he had “erred” in of­fer­ing Brown an ex­e­cu­tion method unau­tho­rized in this state.

In his Tues­day night rul­ing, Fo­gel said Brown had raised se­ri­ous ques­tions about whether the state had ad­dressed all prob­lems with the for­mer ex­e­cu­tion pro­to­cols Fo­gel found to be flawed in a 2006 rul­ing.

He also noted that the state has so lit­tle of a key drug needed for lethal in­jec­tions — and what it has ex­pires Fri­day — that no fur­ther death sen­tences could be car­ried out this year af­ter Brown’s. But he said that sup­ply is­sue was “hardly a rea­son to forgo proper ex­am­i­na­tion” of the new pro­ce­dures, which the judge ex­pects to vet by the end of the year. Brown is one of 708 pris­on­ers on Cal­i­for­nia’s death row, and his ex­e­cu­tion would have been the first in the state in nearly five years.

A spokes­woman for the state at­tor­ney gen­eral’s of­fice, Chris­tine Gas­parac, said that Fo­gel’s rul­ing would be ap­pealed and that her of­fice would be rep­re­sent­ing Gov. Arnold Sch­warzeneg­ger in the 11thhour chal­lenge.

Brown’s ex­e­cu­tion had been set for 9 p.m., just three hours be­fore the state’s only sup­ply of sodium thiopen­tal ex­pires. Fresh sup­plies are un­avail­able un­til next year.

The U.S. 9th Cir­cuit Court of Ap­peals asked Fo-

gel late Mon­day to re­con­sider his re­fusal to stay the ex­e­cu­tion and ex­am­ine whether the state’s new lethal in­jec­tion pro­ce­dures com­port with con­di­tions set down by a U.S. Supreme Court rul­ing two years ago.

Brown’s lawyers said in court fil­ings that they couldn’t an­swer the com­plex ques­tions posed by the ap­peals court “in such a com­pressed time frame” and asked for de­lay of the ex­e­cu­tion. Call­ing the state’s drug shelf-life prob­lem a “fi­asco” of its own mak­ing, the pris­oner’s plead­ing said “so much for the solemn dig­nity and thought­ful con­sid­er­a­tion de­served by Mr. Brown and his fam­ily, the vic­tim’s fam­ily and the courts.”

In tes­ti­mony in Fo­gel’s San Jose court­room in 2006, wit­nesses con­tended that some of the 11 in­mates ex­e­cuted by lethal in­jec­tion in Cal­i­for­nia in re­cent years may not have been fully anes­thetized by the first of the in­jec­tions, a pow­er­ful bar­bi­tu­rate, be­fore the other two drugs, which in­duce sig­nif­i­cant pain, were given.

Brown’s attorneys told Fo­gel that the lethal in­jec­tion pro­ce­dures adopted in late July were “al­most a rub­ber stamp” of the pre­vi­ous prac­tices. They also faulted the reg­u­la­tions for train­ing ex­e­cu­tion team mem­bers with­out hav­ing them ac­tu­ally han­dle the drugs in­volved.

The state never un­der­took a se­ri­ous re­form of the ex­e­cu­tion pro­ce­dures, Brown’s lawyers said, de­scrib­ing the re­vi­sion adopted in late July as “a ruse, con­ducted grudg­ingly and in the shad­ows of fraud, in­com­pe­tence and de­ceit.”

David A. Se­nior, a Brown at­tor­ney, said Fo­gel’s de­ci­sion seemed like “the log­i­cal dis­po­si­tion of the case” and one that would pre­vent cap­i­tal pun­ish­ment from be­com­ing a po­lit­i­cal foot­ball in the gover­nor’s race.

Lawyers with the at­tor­ney gen­eral’s of­fice ar­gued that the pro­ce­dures have been changed con­sid­er­ably, with a manda­tory “con­scious­ness check” to be con­ducted af­ter the sodium thiopen­tal is in­jected to en­sure that the in­mate won’t feel the con­se­quences of the sec­ond two drugs.

The state ac­cused Brown of seek­ing to de­lay and avoid his ex­e­cu­tion, rather than im­prove the meth­ods by which it would be con­ducted. The state’s brief also cau­tioned Fo­gel against in­sert­ing the courts in mat­ters of govern­ment re­spon­si­bil­ity, say­ing that hav­ing judges de­cide what method of ex­e­cu­tion is best “would em­broil the courts in on­go­ing sci­en­tific con­tro­ver­sies be­yond their ex­per­tise.”

Kent Schei­deg­ger of the Crim­i­nal Jus­tice Le­gal Foun­da­tion, which sup­ports the death penalty, said Cal­i­for­nia’s ex­e­cu­tion pro­to­cols were su­pe­rior to those the U.S. Supreme Court found con­sti­tu­tional in a 2008 Ken­tucky case. He be­lieves there is a good chance Fo­gel will be over­turned on ap­peal.

Robert Gauthier

OP­PO­SI­TION: Foes of the death penalty walk along West­wood Boule­vard in Los An­ge­les on Tues­day in a protest over the pos­si­bil­ity of Cal­i­for­nia’s first ex­e­cu­tion in nearly five years. Al­bert Green­wood Brown had been set to die Thurs­day at 9 p.m.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.