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.)