Calif. Back To Square One In Restarting Executions

Deborah Denno in The Associated Press, September 30, 2010

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PAUL ELIAS, Associated Press Writer
SAN FRANCISCO (AP) ― The courts took much of the blame for the state's failure this week to execute a notorious rapist and killer.

In the end, though, the prison department's expiring supply of a drug used during lethal injections also helped derail the fast-track attempt to take the life of Albert Greenwood Brown.

Now, the attorney general's office is back to square one in its dogged five-year legal battle to resume executions, as prison officials try to restock the drug and U.S. District Judge Jeremy Fogel reconsiders whether the state's revamped lethal injection procedures amount to cruel and unusual punishment.

"He will decide the constitutionality of California's execution protocols," Fordham University law school professor Deborah Denno said. "All this rush wasn't really allowing him to do so."

The legality of the procedures was challenged in a 2006 lawsuit that led Fogel to cancel the execution of inmate Michael Morales just two hours before he was scheduled to die.

The concerns led the state to revamp its procedures and build a new death chamber at San Quentin prison that was unveiled last week.

Fogel was preparing to determine by the end of the year if the changes passed constitutional muster when the state suddenly announced it wanted to execute Brown.

Fogel initially gave his consent but was then ordered by the 9th U.S. Circuit Court of Appeals to reconsider. He blocked the execution and now intends to resume his in-depth review comparing California's new procedures to the old ones.

Fogel said in court documents the state shouldn't expect a quick ruling, especially since the prison department will have to wait until next year to restock its supply of sodium thiopental, a sedative given to prisoners before two lethal drugs are injected.

In addition, legal experts said Fogel's ruling, whatever it is, will likely be appealed, causing further delay.

Even so, "California will probably have an execution in 2011," said University of Pacific law school professor Michael Vitiello.

Until Aug. 30, legal observers assumed there would be no executions until Fogel ruled in the case of Morales, whose lawsuit was seen as a test case that put him at the top of the list of the 700 death row inmates facing execution.

Fogel, however, was taken by surprise when a Riverside County prosecutor and deputy attorney general received a Sept. 29 execution date for Brown from a local court.

Despite his reservations about resolving the Morales suit, Fogel gave a green light to the new procedures and decided to allow the execution of Brown to go forward.

But he changed his mind Tuesday, after the 9th U.S. Circuit Court of Appeals ordered him to reconsider whether the new lethal injection procedures amounted to cruel and unusual punishment.

As part of his ongoing review, Fogel also plans to tour San Quentin's new death chamber.

He will also have a U.S. Supreme Court ruling to use as guidance. The high court ruled in 2008 that Kentucky's lethal injection process was legal, and the California attorney general's office said it is similar to the one proposed at San Quentin.

Prison officials say they made two significant changes to the way the execution team determines a prisoner is truly unconscious after receiving the sedative and at no risk of feeling pain when given two lethal drugs.

Team members are now required to brush the eyelashes of prisoners while speaking and shaking them to ensure they are unconscious.

The next move is up to Fogel.

"The court fully intends to undertake that review now, and to do so as quickly as is reasonably possible," he said in court records.