The 9th U.S. Circuit Court of Appeals instructed U.S. District Judge Jeremy Fogel to evaluate whether the state’s recently revised lethal injection protocol has remedied flaws that were previously found by Fogel to create a “an unnecessary risk of unconstitutional pain.”
A three-judge appeals panel said, “Timing is everything and the district court should take the time necessary to address the state’s newly revised protocol in accord with Supreme Court authority.”
Albert Greenwood Brown, 56, is scheduled to be executed by lethal injection at San Quentin State Prison at 9 p.m. Thursday for the 1980 rape and murder of a 15-year-old Riverside girl.
The execution, if carried out, would be the state’s first since January 2006.
Executions since then have been put on hold by a combination of proceedings in Fogel’s court on a 2006 constitutional lawsuit and a separate procedural challenge filed in Marin County Superior Court.
Brown this month joined the federal lawsuit, originally filed by death row inmate Michael Morales.
The suit claims the heart-stopping third chemical used in the state’s three-drug execution could cause extreme pain in violation of the Constitution’s ban on cruel and unusual punishment.
Fogel previously declined on Friday to grant a stay, but said the state should offer Brown the choice of being executed with only one drug, the sedative sodium thiopental.
Brown did not make a choice. His lawyers said the one-drug procedure was “improvised” and untested, with potential for error, and it was impossible for Brown to make a knowing choice.
The appeals panel said a one-drug option is “not consistent with California state law and procedures” and “is beyond the power and expertise of the district court.”
The court stopped short of ordering Fogel to grant a stay, but quoted Fogel’s words in which he said Friday that he had not had an opportunity to review the new three-drug lethal injection protocol.
The panel also said the timing of Brown’s execution date “is apparently dictated in part” by the fact that the state has only 7.5 grams of sodium thiopental on hand, with an expiration date of Oct. 1.
State lawyers said in a brief today that the chemical is in short supply and the state doesn’t expect to obtain more until 2011, which would mean that no other executions are likely this year.
The panel wrote “After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug.”
The appeals court panel was made up of Circuit Judges Andrew Kleinfeld, Margaret McKeown and Raymond Fisher. They issued the order shortly after 10 p.m.
The order came on the same day Gov. Arnold Schwarzenegger granted a one-day reprieve of Brown’s original execution date on Wednesday.
The governor said the reprieve was to allow the required time for a state appeals court ruling lifting a previous ban on executions to take effect. That ban was imposed in a 2007 Marin County Superior Court case.
Also on Monday, Marin County Superior Court Judge Verna Adams refused to stay the execution in connection with a new Superior Court lawsuit in which Brown and inmate Mitchell Sims say the revised protocol was not given the full public review required by a state administrative law.
Brown’s lawyers are appealing that ruling to the Court of Appeal in San Francisco.
Julia Cheever, Bay City News