U.S. District Judge Jeremy Fogel expressed concern about the short time we had to assess the status of the newly revised execution procedures and gave Brown the possibility of being sentenced to death by a single injection, as practiced in Washington and Ohio, instead of by the state of three drug method.
Fogel said the internal conflict on his decision, saying that his court was "painfully aware of who decides a case of this nature, there will be many who disagree profoundly with his decision. The moral and political debate on capital punishment will continue, as should. "
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But the state has "a great interest in continuing his sentence," admitted the judge. He said it was offering the option of an injection to relieve residual concerns about the potential for the method of three shots to subdue the inmates sentenced to cruel and unusual.
In at least seven of the last 11 deaths by lethal injection carried out in San Quentin State Prison, there were reports that the prisoner could not have been completely anesthetized by the first injection, powerful barbiturate sodium thiopental, Fogel said in his failure.
"The fact that nine runs in a single drug have been conducted in Ohio and Washington, with no apparent difficulty is genuine and substantial," said Fogel, giving Brown the option.
Fogel asked the Department of Corrections and Rehabilitation earlier this week if you could use the method of a single injection. Attorneys for the state, said Fogel, the necessary corrections personnel only three days to re-train the implementation team for the one-drug method, in which a much higher dose of barbiturates would put the prisoner in a deep sleep their bodies close.
One of Brown's lawyers, John R. Grele said the legal team was weighing its options and may appeal to the U.S. ninth Circuit Court of Appeals. The September panel proposals consisting of three judges appointed to the court by former President George W. Bush.
On Monday, lawyers for Brown is expected to argue before a court in Marin County that the State did not follow required procedures when it was on the drafting of new lethal injection policy to correct the deficiencies identified by Fogel when it is actually execution of a sentence was in 2006.
Santa Clara University law professor Ellen Kreitzberg, an expert on the death penalty, said Friday's ruling surprised.
Five years ago, said Fogel spent much time carefully examining the setting, the training and testing process was behind California's lethal injection before finding fault with it. But the judge's decision in the Brown case came without examining the new execution chamber has been built in the meantime and without consideration of training for those administering medication.
"There are so many unanswered questions and many uncertainties to allow the execution to go ahead with them is really troubling," said Kreitzberg, who opposes the death penalty. "Surprisingly, after five years the whole world is rushing to have these performances move so quickly."
Brown had asked Fogel court last week to join the case brought by fellow death row Michael Morales, who had challenged the earlier proceedings in the state of lethal injection as a violation of the constitutional ban on cruel and unusual punishment.
State lawyers objected, arguing that the procedure challenged by Morales are no longer in use. Were replaced by new protocols adopted by a state agency in late July.
After stopping the execution of Morales in February 2006, Fogel held hearings that led to its decision that the methods of delivery ex risked exposing prisoners unconstitutional levels of pain.
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