SAN QUENTIN, CA - MAY 15: A view of the California State Prison at San Quentin May 15, 2009 in San Quentin, California. In an effort to raise cash to help California's financial woes, California governor Arnold Schwarzenegger is proposing to sell some well known State properties. The Los Angeles Coliseum, San Quentin State Prison, The Cow Palace and the Orange County fairgrounds are some of the properties that the governor has named. (Photo by Justin Sullivan/Getty Images)
A federal judge in San Jose has blocked what would have been California's first execution in nearly five years, giving a death row inmate two days away from receiving a lethal injection a reprieve likely to last months.
U.S. District Court Judge Jeremy Fogel canceled the execution of Albert Greenwood Brown after the 9th U.S. Circuit Court of Appeals ordered him to use different legal standards to reconsider his previous decision clearing the way for the lethal injection.
Fogel said he halted the execution because he didn't have enough time to decide the weighty constitutional issues raised by lawyers for Brown.
The execution had been scheduled for 9 p.m. Thursday.
California's attorney general still can appeal Fogel's latest decision. But if the decision is not reversed by Friday, the state will be unable to execute Brown -- or any other death row inmate -- for several months because of Friday's expiration of the state's entire supply of sodium thiopental, a sedative used to knock out inmates before they are fatally injected with two other drugs.
The drug issue was spotlighted late Monday, when the 9th U.S. Circuit Court of Appeals ordered Fogel to reconsider the execution of Brown, who was convicted of abducting, raping and killing a 15-year-old girl on her way home from school in 1980.
"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 said.
The appeals court said Fogel needed to take more time than he did to assess the state's new lethal injection procedures adopted last month.
Fogel then gave attorneys just six hours to file legal arguments addressing whether the procedures avoided imposing cruel and unusual punishment.
In his response, David Senior, one of Brown's attorneys, attacked the narrow window of opportunity for the execution as having a "Cinderella quality."
Senior told Fogel the "fiasco" was created when the attorney general's office sought to execute someone soon after the new lethal injection regulations were adopted on Aug. 29.
"It appears they were so desperate to execute that they were seeking dates of execution even when they knew they wouldn't have the drugs to perform them, or were unaware of this," Senior wrote. "It is hard to figure out which is worse."
Deputy Attorney General Michael Quinn, the lead government attorney handling the execution, said he didn't know when prison officials had told him of the problem with the sodium thiopental. Quinn declined further comment and referred calls to the attorney general's press office, which in turn referred questions to the Department of Corrections and Rehabilitation. Prison department spokeswoman Terry Thornton declined comment.
In his filing to Fogel, Quinn didn't address the issue of expiring drugs. Instead, he urged the judge to allow the execution to proceed, arguing the state's new lethal injection regulations protect inmates from pain.
It was Fogel who ordered a halt to California executions in 2006 and ordered prison officials to overhaul the lethal injection
Prison authorities responded by building a new death chamber, overhauling the way executions teams are selected and trained, and making several other changes to its lethal injection procedures to comply with Fogel's order.
Last Friday, Fogel refused to block Brown's execution, saying it appeared the state had made significant process in improving its procedures.