Calif attorney general asks federal appeals court to allow 1st state execution since 2006

Wednesday, September 29, 2010

CA officials ask appeals court to allow execution

SAN FRANCISCO — Government lawyers have asked a federal appeals court to let California carry out its first execution in nearly five years.

Lawyers with the attorney general’s office want the 9th U.S. Circuit Court of Appeals to overturn a Tuesday ruling by a federal judge to block the execution of Albert Greenwood Brown.

The convicted killer had been scheduled to die by lethal injection at 9 p.m. Thursday.

But U.S. District Judge Jeremy Fogel halted the execution, saying he needs more time to determine if California’s new lethal injection procedure avoids imposing cruel and unusual punishment.

Government lawyers argue the new protocol ensures condemned inmates will suffer little pain.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP’s earlier story is below.

SAN FRANCISCO (AP) — A federal judge on Tuesday blocked what would have been California’s first execution in nearly five years, giving a death row inmate who was two days from receiving a lethal injection a reprieve that could last months.

U.S. District Judge Jeremy Fogel canceled Albert Greenwood Brown’s execution after the 9th U.S. Circuit Court of Appeals ordered him to apply different legal standards than the ones he used last week when he cleared the way for Brown to be put to death.

Fogel said he halted the execution scheduled for 9 p.m. Thursday because he didn’t have enough time “to render a reasoned decision and permit adequate appellate review.”

The judge said Brown’s lawyers had “raised substantial questions of fact as to whether at least some of the deficiencies” in California’s lethal injection process that prompted Fogel to halt California executions in 2006 remained.

Gov. Arnold Schwarzenegger’s office said an appeal would be filed Wednesday.

Time is of the essence because of a nationwide shortage of a key drug used in executions. California’s entire stock of sodium thiopental has an expiration date of Friday, and state officials say no executions can be carried out until they receive a new shipment early next year.

“The attorney general’s office will continue to vigorously advance the governor’s position,” state Attorney General Jerry Brown said in a brief phone interview after a debate with Republican Meg Whitman, his opponent in the race to succeed Schwarzenegger.

The three-judge appeals panel that ordered Fogel to reconsider on Monday said “it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug.” That same panel will consider the governor’s appeal.

In his nine-page decision Tuesday, Fogel noted that the attorney general’s office never told him that the Department of Corrections and Rehabilitation was running short of sodium thiopental. He said the shortage is significant because “it appears that there is an insufficient quantity of the drug available to permit the pre-execution training and mixing described in the regulations.”

Santa Clara University law professor Ellen Kreitzberg said it is unlikely the 9th Circuit will overturn Fogel, given its reluctance Monday to allow the execution to proceed.

“It is unfortunate that the victim’s families were put through this emotional roller coaster,” Kreitzberg said.

Albert Brown was sentenced to death for abducting, raping and killing 15-year-old Susan Jordan of Riverside County in 1980. Jordan’s sister, Karen Brown, was planning to witness the execution. Her husband said she was “pretty upset” with Fogel’s ruling.

Riverside County District Attorney Rod Pacheco’s office did not immediately return a call for comment.

Earlier in the day, Albert Brown’s attorneys attacked the narrow window of opportunity for the execution because of the drug shortage as having a “Cinderella quality.”

“It appears they were so desperate to execute that they were seeking dates of execution even when they knew they wouldn’t have the drugs to perform them, or were unaware of this,” Albert Brown’s attorney David Senior wrote earlier Tuesday. “It is hard to figure out which is worse.”

Deputy Attorney General Michael Quinn, the lead government attorney handling the execution, said he didn’t know when prison officials had told him of the problem with the sodium thiopental. Quinn declined further comment and referred calls to the attorney general’s press office, which in turn referred questions to the Department of Corrections and Rehabilitation. Department spokeswoman Terry Thornton declined to comment.

In his filing to Fogel, Quinn didn’t address the issue of expiring drugs. Instead, he urged the judge to allow the execution to proceed, arguing the state’s new lethal injection regulations protect inmates from pain.

It was Fogel who ordered a halt to California executions in 2006 and ordered prison officials to overhaul the lethal injection process.

Prison authorities responded by building a new death chamber, overhauling the way executions teams are selected and trained, and making several other changes to the state’s lethal injection procedures to comply with Fogel’s order.

Associated Press writers Lisa Leff and Terry Collins contributed to this report.

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