SAN FRANCISCO (CBS/AP/BCN) — A federal appeals court ordered a trial judge late Monday to reconsider his ruling that paved the way for California’s first execution in nearly five years.

The move comes hours after Governor Arnold Schwarzenegger pushed the execution back almost two days to allow courts more time to consider the condemned inmate’s appeals.

The 9th U.S. Circuit Court of Appeals said U.S. District Court Judge Jeremy Fogel erred when he offered death row inmate Albert Greenwood Brown the choice of being put to death with a one-drug lethal injection or a three-drug cocktail.

Such a decision is “not consistent with California law” and placed “an undue burden” on Brown, the appeals court said in an unsigned opinion.

The court left it for Fogel to schedule a new hearing, though time is of the essence. Brown’s execution is scheduled for 9 p.m. Thursday, three hours before the state’s entire stock of sodium thiopental expires.

Brown initially was scheduled for execution at 12:01 a.m. Wednesday.

California Department of Corrections and Rehabilitation spokeswoman Terry Thornton said that while an execution warrant is good for only a 24-hour window, state law provides that the window is moved forward if there is a reprieve.

“If there’s no matter pending before any court that would preclude the execution from proceeding, the CDCR will administer the death penalty by lethal injection on Sept. 30 pursuant to the state law,” Thornton said.

Brown’s attorneys have filed simultaneous appeals in federal and state courts, claiming California improperly adopted its new lethal injection procedures. They also allege that execution under the new regulations would amount to cruel and unusual punishment.

The 45-hour reprieve pushes the execution to within hours of the Friday expiration date on the state’s supply of sodium thiopental, one of the drugs used in the lethal injection process.

Hospira, the only company in the country that makes the drug, said it has production problems and can’t deliver any new shipments until early next year. Several other states have rescheduled executions because of the drug shortage.

The company has also told prison officials across the country, “we do not support the use of any of our products in capital punishment procedures.”

The California attorney general’s office said Monday it would recommend not scheduling any more executions after Thursday until the state can secure a fresh supply of the drug, an anesthetic that renders condemned inmates unconscious before lethal drugs are injected. That would further extend the de facto execution ban Fogel put in place in 2006 when he found California’s lethal injection process deeply flawed.

“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 court said.

Lawyers in the attorney general’s office said in August that execution dates would be aggressively pursued for four other inmates who, like Brown, had completed the federal and state trial appeals process. But that was before the California shortage was disclosed in a court filing Saturday.

Already, prosecutors have canceled a planned Sept. 14 court hearing to set an execution date for Michael Morales, who came within two hours of execution in February 2006 before prison officials canceled his lethal injection and moved to comply with a federal judge’s order to overhaul the state’s capital punishment system.

Three other death row inmates — Kevin Cooper, David Raley and Mitchell Sims — may have also benefited from the shortage because they were on the short list of execution candidates.

Sodium thiopental would be the first drug administered to Brown, who is to receive two shots each of 1.5 grams of the sedative. If the warden determines Brown is still awake, he would receive two more shots of 1.5 grams, according to the state’s regulations. Once he is unconscious, Brown would be injected with pancuronium bromide and potassium chloride, which should prove fatal.

Brown’s attorneys argue that the process puts the inmate at risk of suffering extreme pain. They also argue the regulations were drafted improperly and ignored the many public comments warning about the perils of the three-drug cocktail.

On Monday, Brown asked Marin County Superior Court Judge Verna Adams to halt his execution until a lawsuit he filed with another death row inmate is resolved. The suit challenges the lethal injection regulations

California deputy attorney general Jay Goldman told the judge the regulations were adopted legally after a lengthy process that included public input.

Adams said she would not halt Brown’s execution.

“Mr. Brown cannot prove that he will suffer pain if he is executed under the current regulations,” Adams said.

Corrections officials revised the procedures after a federal judge halted the death penalty in California in 2006 amid concerns that its method of lethal injection was a form of cruel and unusual punishment.

Brown was convicted of abducting, raping and killing a 15-year-old girl on her way home from school in 1980.

(© 2010 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Assoicated Press and Bay City News contributed to this report.)

Comments (39)
  1. Bloodhounds says:

    Bring back the electric chair and the gas chamber. Let Peterson be the next one in line. Bring back justice to all!

  2. Pit Bull says:

    Extreme pain? This piece of trash raped and killed a 15 year old kid! He doesn’t deserve an injection, he deserves a firing squad. He deserves pain.

  3. pro death penalty says:

    What a whimp, he deserves pain. Kill him on schedule.

  4. jean says:

    Who cares about his pain. He got to stay alive for 30 years. Should have been executed within 5 years. His victim did not have a choice. She was raped and murdered. Give him an extra injection/

  5. Mark says:

    Punishment should fit the crime. Who cares if this sad case for a human being is comfortable while he dies. Whatever the case, his victim wasn’t given the same opportunities.

  6. Kim says:

    Agreed with everyone. These kind of criminals don’t deserve our tax dollars.

  7. erudite says:

    Reading these comments makes me believe that we have not, as a human race, evolved far from the apes. Shame on us all for continuing these barbaric acts of execution

    1. asmith says:

      Some people just don’t deserve to live. This man intentionally killed a young girl. Some people are just killers and they kill because they get enjoyment from it. That’s not going to change so why should we continue to keep them alive. Their victims didn’t have the that luxury.

    2. sammieb says:

      Precisely HOW is this a barbaric act of execution? This is virtually the same way they put animals down. And frankly, he is an animal.

      He’s lived for 30 years since this horrible rape and murder. In some countries they are walked directly to the execution following sentencing. I hope he cries all the way to the chamber and it finally sinks in what he did to that girl and her friends and family. But I doubt it will. He’ll only be thinking of himself.

    3. Joseph James says:

      Tell that to the 15 year old girl…..

    4. imnotrich says:

      Oh no, we’ve evolved – this rapist murderer is the animal. Now we need to get busy and eradicate all the predatory animals who (it’s a known fact) cannot be rehabilitated and will only breed more criminals. Darwin’s theory.

    5. Joseph James says:

      Her last name was Jordan. I wonder if she felt what happened to her was cruel and unusual punishment. How about if it was your daughter? Do you REALLY believe that this animal deserves our sympathy? The only civilized thing to do is say goodbye, adios, aloha.

  8. Major_Sakk says:

    @ erudite – by barbaric acts of execution are you referring to the rape and murder of the 15yr old girl?

  9. Big G says:

    It would be one thing if his atty was filing these motions if the guy was innocent, instead it so he won’t feel pain. She should have some nerve wasting taxpayers money on this. Why do we have to keep putting up with these progressive liberals in our communities. Are we becoming a state that cares more about criminals or the victims?

    1. richard says:

      you hit that right on the nail,i was told to go get a mri at a local office.they called and asked if i was going to pay my 500 dollar deductable….so they can say IF i have a pinched nerve. in still dealing with the pain… with inmates they complain they have a pain and state dr. sends them to go get mri …and we pay for that…

  10. Gary says:

    Unbelievable that these attorneys and others would go to these lengths for the sake of this p.o.s. and others like him.

  11. johnnytwocent says:

    Given the financial condition of California, change the venue to Candlestick, sell tickets (proceeds to go to California and victims families) and lets all watch this piece of SH!T die! In fact, lets change the method back to death by hanging so the evenings events can last longer and we can all celebrate! Its a WIN WIN! The state gets money from the ticket proceeds, the families get some well deserved money (not that it is fair compensation), the local economy makes money, the concession stands profit, etc. Somebody give me a Governor that has the FLIPPIN’ balls to do something like this!!!!!!!!!!!!!!!!!!

  12. Allie says:

    Since when do criminals have more rights than the victims???? I am sorry, but if you are sentenced to death take them out behind the courthouse and put a bullet in them. Why do the tax payers have to spend millions of dollars to keep these people alive……What purpose does it serve?

    I think the criminal should have to choose the form of execution regardless if it is painful or not….

  13. The Almighty says:

    Why is this POS still alive after 30 years!? It’s a disgrace he is still breathing. Let the victim’s family have their way with this waste of flesh.

  14. McD says:

    I hope it burns like battery acid before it kills him….raping and murdering pile of maggot vomit…….he NEEDS to suffer…..I can’t beilieve what he put his victims through…..He should have been kept in the jungle where he belongs

  15. tn says:

    Now when HIS life is at stake, this piece of trash is concerned about extreme pain and “proper” government protocols. What about the extreme pain that he caused during the rape and murder of the 15 year old, and her family’s grief? The law is the law and no one shall be above it. As the parents of the slain girl in the movie, “The Green Mile,” just before execution of the big black dude, “Kill ’em twice.” May God be merciful in this judgment day of the condemned convicted killer, as we ponder, what Mr. Brown’s last meal will be? Maybe he should be punished and forced to consume a MacDonald’s Extra Value Meal Deal, minus the drink.

  16. johnnytwocent says:

    This is EXACTLY why you should have stuck to acting Arnold! You are worthless as a leader and your acting wasn’t much better. Always so damn concerned about making sure you sit right in the “middle of the fence” to avoid criticism!!!!!!

  17. mike says:

    bullet in the temple, quick and easy.

  18. imnotrich says:

    Pity Chelseas law can’t be applied retroactively, and get these killers and rapists off the street for good. Minimum life in prison with the possibility of the death penalty, case closed. No repeat offenders. Oh, wait. That would be cruel and unusual to the CRIMINAL who not only sucked the life out of a young girl, but also sucked my tax dollars for another 30 years of “due process.”
    I have no problem with the death penalty. Some people cannot be rehabilitated, regardless what the liberals and democrats will claim.

  19. couplewords says:

    I’d say something nasty about his lawyer but she might turn around and sue me!

  20. American says:

    Hey Erudie… When your 15 year old daughter gets raped and murdered, I pray you are there standing up for the life of the man that did it. Barbaric? Not in the slightest. I wish I could pull the trigger on tis waste of life…

  21. reginapacis says:

    When a man killed someone and go free, that is barbaric. No law at all.
    If he got punishment. that is civilized.

  22. Sandra says:

    I’m sue Brown was concerned if his victim was suffering or wanted to be raped and murdered. Arnold is a jerk and so glad he’s almost out of office. Kill Brown Now!!!

  23. capthowdy says:

    General anesthesia + Drano = Problem Solved

  24. anon says:

    The 15 yr old girls name was Susan Jordan. Although I am no longer for the death penalty for various reasons other than ..I support her mother and family 100%! For the taunting phone calls he made to them and the massive lies he told following he has earned his place in the death chamber.
    She was my classmate and I will never in this lifetime forget that horrible day 28Oct1980


    Wow, a 15 year-old is kidnapped, raped and brutally murdered, she didn’t ask for that. Yet he lives, eats, sleeps and has all the healthcare he wants or needs, something is so very WRONG with the system. Seems as if NO ONE has the balls, wrong is wrong, he should have been swinging from tree or have faced a firing squad. Come on people, this could have been your daughter, sister, mother, aunt, grandmother.

    1. Daany says:

      Why are we evern concerned about his ‘pain’. He never thought about the fear and pain he inflicted on his victim. Put him on ‘FAST TRACK’ and get it done today. Then move everyone else on death row through and finish it up by the weekend!!!

  26. stef says:

    death is too good for this guy… he can not suffer if he is dead…make him scrub toilets to earn his keep….We can rent out his ocean view Private condo and pay the mortgage!! yeah… make it a time share…instead of paying, I don’t know how many tax dollars keeping him comfotable….

  27. oldfart says:

    our judges and politicians need some backbone, do you job, forget about political correctness, We deserve better than what we have now, but we can only blame ourselves for voting them in. Come November vote them out and lets start making changes we can live with.

  28. jah says:

    This really sucks! They should start offing these guys twice a week until they are all gone.

  29. M. Buckmaster says:

    Come on people, quit trying to draw lines in the sand! Thais has nothing to do with Democrats & or Liberals, but everything to do with that young girls rights that were raped & chocked out of her! As well as her families rights, I’m sure they would love to have closure as well as satisfaction of their rights as parents & decent human beings. The best thing for everyone as well as this P.O.S.”like he deserves it” is to quickly without spending millions keeping him alive, end his life! He was found guilty, sentenced to death! He will be dead,what rights? HELLO!

  30. Bob Q says:

    Erudite…thank you for posting some post 18th century thoughts.
    Sammie B…which countries march the criminals out for immediate execution?
    Richard…eye for an eye; do you live your life by these rules?

    just some quick notes

  31. I Want Justice says:

    I have never met Ms. Jordan, but I do know the family. Knowing what they went through when she died and now more recently with the “non exicution” makes me sick. That monster deserves to die.

    erudite and Bob Q, you were not there to see what this family has gone through; what this family is still going through. What if that was your child who was brudally raped and murdered? Would you not want some justice because your child suffered? My only negative comment is that I wish this happened in Texas: he would have been dead by now.

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