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Murderer-rapist denied execution stay; execution set for Wednesday would be California's first in 5 years

September 24, 2010 |  2:44 pm

A federal judge on Friday denied a stay of execution for murderer-rapist Albert Greenwood Brown but gave the condemned man a choice whether to die Wednesday by a single injection or the state's recently revised three-drug method.

The decision is expected to clear the way for the state to carry out an execution for the first time in nearly five years.

U.S. District Judge Jeremy Fogel observed that his court was "painfully aware that however it decides a case of this nature, there will be many who disagree profoundly with its decision. The moral and political debate about capital punishment will continue, as it should."

Fogel had asked the California Department of Corrections and Rehabilitation earlier this week whether it could use the single-injection method as practiced by Ohio and Washington in executing nine prisoners in recent months without incidents suggesting the men were subjected to intense pain in the process.

"The fact that nine single-drug executions have been carried out in Ohio and Washington without any apparent difficulty is undisputed and significant," Fogel said in a ruling that allowed Brown to join a legal challenge brought by a fellow death-row inmate Michael Morales.

Fogel observed that he was being asked to decide the Brown case "in a severely limited time frame," as the 56-year-old's execution has been set for Wednesday at San Quentin State Prison. But the judge said he acknowledged that the state has "a strong interest in proceeding with its judgment."

Brown had petitioned Fogel's court last week to join the case brought by fellow death row inmate Michael Morales, who had challenged the state's former lethal-injection procedures as violating the Constitution’s prohibition of cruel and unusual punishment.

Attorneys for the state objected, claiming the procedures challenged by Morales are no longer in use, as the California Department of Corrections and Rehabilitation drafted new execution protocols over the last three years. The new procedures were approved by a state agency in late July.

Fogel halted Morales' execution in February 2006 after the convict's attorneys contended some of the previous prisoners executed by lethal injection in California may not have been fully anesthetized at the time they were administered the third and fatal dose of the three-drug execution sequence. If conscious, and paralyzed by the second injection, the inmates would have suffered intense pain from the injection of potassium chloride that induces cardiac arrest.

-- Carol J. Williams