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September 29, 2010

"Calif execution try collapses after court setbacks"

The title of this post is the headline of this new AP article providing the latest death penalty news from California.  Here are excerpts:

California's first execution attempt in nearly five years collapsed Wednesday amid two adverse court rulings in as many days and an impending shortage of drugs that made the lethal injection of a convicted rapist-murderer impossible.

State officials called off the execution of Albert Greenwood Brown after a state Supreme Court ruling made Friday the earliest possible day that Brown could be given a lethal injection. But by then, the state's entire supply of a drug used during the process would have expired.

It was unclear when the state might try again to execute Brown, since it won't receive a new supply of sodium thiopental until early next year at the soonest. Brown's attorney and death penalty foes had accused the attorney general's office of rushing to execute the inmate before the drug supply expired....

The state high court ruling came a day after U.S. District Jeremy Fogel blocked the execution that had been scheduled for Thursday night. Fogel said he wanted more than a few days to determine whether California's new lethal injection process passes constitutional muster by avoiding cruel and unusual punishment.

The attorney general appealed that decision Wednesday morning to the 9th U.S. Circuit Court of Appeals only to withdraw it in the afternoon. Senior Assistant Attorney General Ronald Matthias told the appeals court that "in light of the order of the Supreme Court of California ... no execution of Albert Greenwood Brown can occur on Sept. 30, 2010, as a matter of state law."

September 29, 2010 at 10:32 PM | Permalink


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After voting to allow the execution earlier this week, both Fogel and the California Supreme Court have done an about face and stayed it. I really can't understand the logic of these judges.

Posted by: MikeinCT | Sep 30, 2010 12:40:40 AM

Zealous, fearless, and tenacious advocacy by the defense team, upholding the Constitution.

Posted by: anon1 | Sep 30, 2010 12:47:14 AM

The California Supreme court did not do "an about face". They just refused to speed up the mandate of the State Court of Appeal that lifted the Marin county judges injunction. The bottom line is that the panel on the 9th Circuit and the California Supreme Court, both unanimously, said that the state was rushing things, cutting off appellate review. I would like to see Brown executed as much as anyone else, however, I think the state jumped the gun big time on this one. As in an earlier post a month or so ago, I think the state should have asked the Marin County Superior court and Judge Fogel to go over the new protocol/regulations, take evidence and prove to them that it satifies or is better than the Kentucky system approved in Baze. It would have taken another year or so, but none of this last minute lawyering would have been necessary. Once everything is done right, the inmate's attorneys would be unable to delay the executions. Remember, Fogel ordered the state 4 years ago to make improvements to the system. California is at fault here just as much as anyone else.

Posted by: DaveP | Sep 30, 2010 7:18:14 AM

If that is the case then how did Fogel approve the execution only to claim he'll need months to review it now? He seemed sure the necessary changes had been made a few days ago. That and trying to force the choice of execution method on Brown makes it looks like he makes it up as it goes along. As for the lawyers being unable to stall the execution once the hearings are held, I have a feeling the 8th Circuit could find a flimsy reason to drag it out for years longer.
And if the state courts felt the Marin County judge needed more time, why not leave the injunction in place 'unless and until' she is satisfied?

Posted by: MikeinCT | Sep 30, 2010 12:14:01 PM

How do you define 'fearless'? They were in no danger and they were doing their jobs.

Posted by: MikeinCT | Sep 30, 2010 12:50:20 PM

MikeinCT, by "fearless" I mean advocacy in the face of enormous and relentless societal pressure to execute persons who no doubt deserve death. These advocates are a lonely breed. Their clients are the most hated, vile, and depraved among us. In he face of the relentless pressure to execute thier clients, these advocates for the condemned stand up and say "not so fast." "you have to go though us first." Rarely finding comfort or supoprt from their neighbors, friends, or family, they represent the highest calling of the BAR. Congratulatons again and NEVER give up! As the Supreme Court has said the Constitution guarantees “the right of an accused to fearless, vigorous and effective advocacy, no matter how unpopular the cause in which it is employed.” Offutt v. United States, 348 U.S. 11, 13 (U.S. 1954). A criminal defense attorney “ is charged with zealously advocating for his client within the bounds of the law and is deemed to best serve[] the public . . . by advancing the undivided interests of his client.” Polk County v. Dodson, 454 U.S. 312, 318-19 (1984). The defense attorney’s “overarching duty [is] to advocate the defendant's cause.” Strickland v. Washington, 466 U.S. 668, 688 (1984).

Posted by: anon1 | Sep 30, 2010 3:21:21 PM

We are usually on the same side so I didn't post to criticize you. The 9th circuit's opinion basically told Fogel in so many words that he should have stayed the execution, briefed it and hear arguments. That is why he flipflopped in a couple of days. Why he is so intent on making CA change to 1 drug, I don't know. CA should in the future to avoid any more litigation. As for the 9th circuit, yes I wouldn't be surprised if they dragged it out for a couple of years. Lets be realistic. The 9th has a lot of judges on it who don't like the death penalty. They don't care what the Supreme Court rules or about AEDPA. I am sure if Fogel rules for the state, the inmate would ask for a stay pending appeal and most likely Fogel or the 9th would grant it. Also, I doubt the Supreme court would have let CA execute Brown if the 9th circuit stayed it. On to the state courts. If you read the order from the CA Supreme court they definitely want this to follow the normal appeal procedures, not cram it in a few days. Unfortunately, I don't see CA having any executions for quite a while. I hope that isn't the case.

Posted by: DaveP | Sep 30, 2010 5:48:28 PM

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