Judge Clears Way For California's 1st Execution Since '06
SAN FRANCISCO (CBS 5 /KCBS/AP/BCN) - California can proceed with its first execution in more than four years, a federal judge has ruled, and a new KPIX-TV CBS 5 poll finds a majority of Bay Area residents support resuming capital punishment.
U.S. District Court Judge Jeremy Fogel ruled Friday that an execution scheduled at San Quentin State Prison next week can proceed, but only if state officials give the condemned inmate the choice of being executed with one drug instead of the usual three.
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Meanwhile, a poll conducted for CBS 5 by SurveyUSA on Friday found that 61% of Bay Area residents supported the death penalty. In addition, the poll found that 54% supported giving inmates the choice of deciding which drug mixture is administered.
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Albert Brown, 56, convicted for the 1980 rape and murder of a teenage girl in Riverside County, is scheduled to be executed on Wednesday.
Prosecutors said the date was long overdue. "It's gotten to the point of being ridiculous. It should not have taken this long. Every court that has ever looked at this case has not found an error," said Riverside County District Attorney Robert Pacheco.
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Fogel turned down a request by Brown for a stay of his execution, but on the condition that Brown is given the choice of being put to death with only one drug -- the sedative sodium thiopental.
If the lethal injection execution is carried out, it will be the first in the state since January 2006.
Fogel also noted in his 11-page ruling that a separate challenge to executions in the state is still pending in Marin County Superior Court.
Inmates who filed that case are also seeking a stay of all California executions, and a Marin County judge is due to consider that challenge on Monday, according to Fogel's ruling.
The Superior Court lawsuit contends the state's adoption of a revised lethal injection protocol in July violated requirements of the state's Administrative Procedures Act.
Fogel issued his ruling in connection with a lawsuit in which another condemned inmate, Michael Morales, claims the state's three-drug lethal injection procedure risks being unconstitutional cruel and unusual punishment because an inmate could suffer extreme pain.
Morales claims that the third drug in the protocol, potassium chloride, can cause excruciating pain, while the second drug, pancuronium bromide, masks the pain by paralyzing the inmate.
Fogel wrote, "The court is satisfied that it can address this concern by allowing Brown himself to choose whether the second and third drugs in the protocol will be withheld."
Fogel said that if the state does not agree to the condition of allowing Brown to choose the use one drug, "a stay of execution shall issue without further order."
A spokesman for state Attorney General Jerry Brown said his office did not yet have a comment on the ruling.
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