Federal judge OKs 1st Calif execution since ‘06 after state revises lethal injection procedure

Judge clears way for 1st Calif execution since ‘06

SAN FRANCISCO — A federal judge cleared the way Friday for California’s first 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 first 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 one-drug injection of sodium thiopental instead of a three-drug cocktail used by the state to put condemned inmates to death.

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

“The fact that nine 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 two 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 five 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.