Sara Eisenberg, a lawyer for Albert Greenwood Brown, said late today that Brown’s attorneys would ask Judge Verna Adams at a Monday hearing for a temporary restraining order suspending executions.
Brown, 56, is slated to be executed by lethal injection at San Quentin State Prison early Wednesday for the 1980 rape and murder of a 15-year-old girl in Riverside.
If the execution takes place, it would be the first in California since January 2006.
Brown and another death row inmate claim in the Marin County case that the state’s preparation of a revised protocol for lethal injection executions violated a California law on procedures for new regulations.
“We think the state did not follow the rules,” Eisenberg said.
The announcement of the Superior Court hearing came after a federal judge in San Jose, acting in a separate case, earlier today conditionally turned down Brown’s request for a stay of execution.
U.S. District Judge Jeremy Fogel said corrections officials could go ahead with the execution on the condition Brown is given the choice of being put to death with a single drug, the sedative sodium thiopental, instead of the usual three.
Brown and inmate Michael Morales claim in the federal lawsuit that the state’s three-drug procedure could cause extreme pain amounting to unconstitutional cruel and unusual punishment.
They contend the third drug, potassium chloride, can cause excruciating pain when it stops the heart, while the second drug, pancuronium bromide, masks the pain by paralyzing the inmate.
Fogel said the option of sodium thiopental alone, which is not considered to cause pain and has been used in two other states, would allay those concerns.
“The fact that nine single-drug executions have been carried out in Ohio and Washington without any apparent difficulty is undisputed and significant,” Fogel wrote.
Fogel gave Brown until 6 p.m. Saturday to say whether he chooses the one-drug option. If Brown chooses one drug but the state does not agree to that procedure, the execution will be stayed, Fogel said.
But late today, Brown’s lawyers filed papers asking Fogel to reconsider his decision, arguing it was “based on mistake of fact and law.”
The attorneys said Brown was given a Hobson’s choice – meaning a false choice – because there are no details about how the state would carry out a one-drug execution–or even whether it is willing to do so.
Thus, Brown can’t make an “informed, knowing and intelligent decision,” they argued.
The lawyers asked Fogel to allow both sides to submit briefs on the request for reconsideration by 5 p.m. Saturday.
Christine Gasparac, a spokeswoman for California Attorney General Jerry Brown’s office, which is defending the state in both lawsuits, said that office had no comment on either case.
The Superior Court lawsuit, filed by condemned inmate Mitchell Sims in August and joined by Brown this month, is based on the state’s Administrative Procedure Act.
Sims and Brown claim the state failed to meet requirements for public review of the revised regulations, including mandates to make documents available to the public and to respond to public comments.
They also contend the three-drug plan, with the alleged potential for pain, violates the law’s requirement that new regulations must be “reasonably necessary.”
“The law requires necessity, clarity and consistency” in new regulations, Eisenberg, Brown’s lawyer, said.
Fogel’s decision and any ruling issued by Adams on Monday could be appealed, adding to the potential for further uncertainty about whether executions will be resumed in California.
“It’s very difficult to predict what will happen,” said Natasha Minsker, director of death penalty policy for the American Civil Liberties Union of Northern California.
“We think the stakes are too high and there are too many uncertainties to allow the execution to happen,” Minsker said. “Our hope is that the state courts will stop this so the courts can carefully review and consider the issues at stake.”
The revised execution protocol was prepared by the Schwarzenegger administration in 2007 in response to Fogel’s concerns about inadequate training of the execution team and inadequate lighting, overcrowded conditions and poor design of San Quentin’s execution chamber. The state also built a new execution chamber.
An earlier Marin County Superior Court lawsuit filed by Sims and Morales in 2007 challenged a lack of public comment on the revised protocol and caused the administration to undertake the public review process, completed in July.
The new Superior Court lawsuit claims that process was inadequate.
In the meantime, proceedings before Fogel in the federal lawsuit were put on hold while the state court case was continuing.
On Monday, a state appeals court dissolved an injunction issued in the earlier lawsuit, thus leaving no order in place that blocked executions.
But the appeals court said Sims could continue his claims in the current lawsuit.
Eisenberg said that if Adams grants a temporary restraining order in the new lawsuit on Monday, the order would remain in effect until the Marin County court decides whether to issue a longer-term injunction while the procedural claims are weighed.
Julia Cheever, Bay City News