SAN JOSE (KCBS) _ The legal wrangling over the execution of convicted murderer and rapist Albert Greenwood Brown continues.

He faces a 9 p.m. execution Thursday evening, the first since the death penalty was suspended in California in 2006.

On Monday, the 9th U.S. Circuit Court of Appeals ordered U.S. District Court Judge Jeremy Fogel to reconsider his decision refusing to block the execution.

KCBS Margie Shafer Reporting:

Now, the judge has briefs from both sides.

“The state’s brief says that there is no reason to hold up this execution because Brown had the burden of coming up and saying that these are protocols that do not meet the standards,” said Loyola Law School Professor Laurie Levenson.

She said protocols have been redone, but have not been reviewed by the court and the plaintiff’s brief reflects that fact.

“That there is so much that we still don’t know about these protocols that are untested, that the court should take the next three months to do the type of review to make sure that they’re constitutional,” said Levenson.

The process has been further complicated by the fact that this Friday is the expiration date on the drugs used during the execution.

“My guess is based on his past analysis, he’ll probably want the extra time, especially since these drugs are going to expire very quickly,” Levenson said.

Judge Fogel has not indicated when he might rule on the case.

(© 2010 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)


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