Calif execution attempt collapses after setbacks in federal, state courts, problem with drugs

By Paul Elias, AP
Wednesday, September 29, 2010

Calif execution try collapses after court setbacks

SAN FRANCISCO — California’s first execution attempt in nearly five years collapsed Wednesday amid two adverse court rulings in as many days and an impending shortage of drugs that made the lethal injection of a convicted rapist-murderer impossible.

State officials called off the execution of Albert Greenwood Brown after a state Supreme Court ruling made Friday the earliest possible day that Brown could be given a lethal injection. But by then, the state’s entire supply of a drug used during the process would have expired.

It was unclear when the state might try again to execute Brown, since it won’t receive a new supply of sodium thiopental until early next year at the soonest.

Brown’s attorney and death penalty foes had accused the attorney general’s office of rushing to execute the inmate before the drug supply expired.

“I’m relieved,” John Grele, one of Brown’s attorneys, said about the canceled execution attempt. “This was a hastily designed plan.”

The state high court ruling came a day after U.S. District Jeremy Fogel blocked the execution that had been scheduled for Thursday night. Fogel said he wanted more than a few days to determine whether California’s new lethal injection process passes constitutional muster by avoiding cruel and unusual punishment.

The attorney general appealed that decision Wednesday morning to the 9th U.S. Circuit Court of Appeals only to withdraw it in the afternoon. Senior Assistant Attorney General Ronald Matthias told the appeals court that “in light of the order of the Supreme Court of California … no execution of Albert Greenwood Brown can occur on Sept. 30, 2010, as a matter of state law.”

Brown was sentenced to death in 1982 for raping and killing 15-year-old Susan Jordan. Brown had taunted Jordan’s mother with a phone call saying she would never see her daughter again.

“The appeals process in California has proven to be nothing more than a never-ending war of attrition against justice and the rights of victims and their families,” said Karen Jordan Brown, the victim’s sister. “The distress that this process has brought upon the Jordan family is profound and unfathomable, but has only tempered our convictions in favor of capital punishment.”

The attorney general’s office gave no new date for the execution of Brown but said one would “be sought in accordance with applicable law and in conformity with all court orders.”

Before the execution was canceled, Gov. Arnold Schwarzenegger had declined Brown’s request for clemency.

“He was convicted and sentenced to death by a jury of his peers, and now 30 years later the state is still unable to carry out his execution,” Schwarzenegger said. “It is absurd that our legal system continues to prevent the state from carrying out the will of the people.”

In August, the attorney general’s office said execution dates would be sought for several of the more than 700 death row inmates who have completed the trial appeals process. But soon after, prosecutors canceled a hearing that had been set for Sept. 14 in Ventura County to obtain a death warrant for Michael Morales, who came within two hours of being executed in February 2006.

Prison officials called off the execution of Morales after conceding they couldn’t comply with Fogel’s order concerning the participation of medical personnel. In December 2006, Fogel placed a de factor moratorium on executions when he ordered prison officials to overhaul the lethal injection process.

Since then, the Department of Corrections and Rehabilitation has built a new death chamber and changed how the execution team at San Quentin prison is selected and trained.

The state formally adopted new lethal injection regulations on Aug. 29. The next day, the Riverside County District Attorney’s Office obtained an execution date for Brown.

Now, it’s unclear when California can schedule another execution.

On Friday, it will run out of sodium thiopental, and the only company in the country that makes the drug said it can’t provide a new supply until the first of the year.

The state’s battle to resume executions will most likely return to Fogel’s court where a lawsuit filed by Morales has been pending since 2006.

“The state is confident it will ultimately prevail on this issue,” prison department spokeswoman Terry Thornton said.

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