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 California 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 11th-hour 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 Fogel 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, one of Brown's attorneys, 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 gubernatorial 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."