Fordham Law


Judge opens way for possible execution next week, but there are conditions to his ruling

Deborah Denno in The San Jose Mercury News, September 24, 2010

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A federal judge on Friday paved the way for California to carry out its first execution in nearly five years next week, but his ruling attached enough conditions to guarantee further legal uncertainty before condemned Riverside County killer Albert Greenwood Brown can be escorted into San Quentin's new death chamber Wednesday night.

In an 11-page order Friday, U.S. District Judge Jeremy Fogel concluded that he does not have the authority to block Brown's scheduled execution, despite the fact he put a hold on executions in California in 2006 while he considered a constitutional challenge by another death row inmate to the state's lethal injection method.

In the four years since then, Fogel said, many of the legal obstacles to lethal injections in California have been removed, as the U.S. Supreme Court clarified the law and California amended its procedures.

But the San Jose judge put a difficult choice before Brown -- one that may determine how quickly his execution can proceed. Under Fogel's order, Brown can choose to be executed by a single drug, or face the prospect of being put to death under the state's preferred method of execution, a combination of three drugs. He must decide by tonight, and among the options is appealing Fogel's order to a federal appeals court.

California prison officials have adopted a new procedure that rests on a combination of three drugs. But around the country, states are opting and courts are endorsing
the use of a single drug, sodium thiopental.

If Brown opts for the single drug and California officials refuse to comply with that restriction, Fogel said he will block the execution. But if Brown declines the single-drug option, Fogel said, the state can execute him with the three-drug cocktail.

In his order, Fogel indicated that a fatal dose of sodium thiopental appears to avoid the chief concern about lethal injection executions: that the other two drugs may mask the agonizing pain an inmate experiences before death.

And the judge said he found that by giving Brown a choice, it would address the state's concern that they may not have the legal ability to carry out an execution with that method.

Fogel noted that nine single-drug executions have been carried out in Ohio and Washington without any "apparent difficulty."

The judge's ruling triggered a host of possible scenarios over the coming days that will leave Brown's fate in doubt. Brown has been on death row since 1982 for the rape and murder of a 15-year-old girl.

John Grele, a lawyer for Brown, said there has been no decision on how to proceed, although they may consider appealing Fogel's order to the 9th U.S. Circuit Court of Appeals.

With California's new lethal injection procedures yet to be tested in court, lawyers for death row inmates have argued that no executions should take place, regardless of the number of drugs used.

"To ask them to do any execution right now is unfair and unconstitutional," Grele said.

Attorney General Jerry Brown, whose lawyers have been intensifying the push to resume executions, declined to comment.

Fogel put a hold on executions in California in early 2006 after death row inmate Michael Morales sued, arguing that California's lethal injection procedures at the time were so flawed they exposed death row inmates to the prospect of a death that violates the constitutional ban on cruel and unusual punishment.

After conducting an unprecedented hearing, Fogel found the state's method was flawed for a variety of reasons, ranging from poor training of the execution team to an antiquated death chamber at San Quentin.

He ordered the state to devise improvements that would rectify the problems, and the state responded with a new three-drug regimen that went into effect in August.

The judge expressed regret that the legal review of the lethal injection procedures could not proceed in "a more orderly fashion." But, he added, "The court recognizes there was no legal impediment to the setting of Brown's execution date."

Deborah Denno, a Fordham University law professor, said Fogel had "introduced a new, but sensible vehicle" for trying to ensure a humane execution, "while also sending a clear message to the state that progress is needed on how (prison officials) conduct lethal injection executions."

Meanwhile, whatever happens with Fogel's order, the state courts could still intervene. A Marin County judge on Monday is expected to consider a separate legal challenge to whether California complied with its administrative rules in approving the latest version of the lethal injection method.

That same judge has twice before put executions on hold on those technical grounds, and with the regulations yet to be fully examined, lawyers for death row inmates say it should happen again.

"There will certainly be more litigation here," said Natasha Minsker, death penalty policy director for the American Civil Liberties Union. "This isn't the end of it."

If Brown's execution goes forward, it could encourage the state to seek more executions. The state has more than 700 death row inmates.

The attorney general's office has already indicated that prosecutors plan to soon ask for execution dates for several death row inmates who've exhausted their appeals, including David Allen Raley, on death row since 1988 for killing a Peninsula teenager and the attempted murder of her friend.

Raley would become the first Santa Clara County death row inmate executed since the state resumed capital punishment in 1978.

Raley's lawyers in the past few weeks have tried to revive his legal appeals, arguing that he was mentally retarded at the time of his crimes and should be ineligible for the death penalty.

The California Supreme Court and a San Jose federal judge are considering those claims.