The 9th Circuit Court of appeals said Judge Jeremy Fogel made an error when he offered condemned killer Albert Greenwood Brown a choice between a one drug or three-drug injection. The court says it put an undue burden on Brown.
Gov. Arnold Schwarzenegger also delayed the state's first execution since 2006 by nearly two days on Monday to allow more time for courts to consider the condemned inmate's appeals.
Brown is now scheduled to die by lethal injection at 9 p.m. Thursday. Brown initially was scheduled for execution at 12:01 a.m. Wednesday.
Schwarzenegger's order is only a temporary reprieve for Brown. He did not win his argument on the bigger issue about whether the drugs the state uses for executions is a cruel and unusual punishment.
Attorneys for Brown argued that his execution should be put on hold for two reasons; the first one being that offering him a choice between a one-drug execution and the three-drug method violated state regulations.
"The harm is that he is going to be executed pursuant to a protocol that has not been properly enacted," Brown's attorney John Grele said.
And second, that the three-drug method might still cause him pain and be considered a cruel and unusual punishment, even though that procedure has just been updated to eliminate that very argument.
The state argued that Brown was given the choice by order a federal judge and that Brown's lawyers have failed to show evidence of possible pain from the three-drug method.
"The state is continuing to do everything it can that is legally permissible to carry out the criminal court judgment against Mr. Brown and handle it in the near term to be executed if it is legally permissible at that time," Deputy Attorney General Jay Goldman said.
Judge Verna Adams refused to block the execution based on Monday's arguments.
"Mr. Brown cannot prove that he will suffer pain if he is executed under the current regulations and he has not demonstrated that he is likely to prevail on the merits of his conduct. For these reasons, the application for a temporary restraining order is denied," she said.
Brown was convicted in 1982 for the 1980 rape and murder of Riverside teenager Susan Jordan. If the execution ends up happening this week, it would be the first California execution since they were put on hold in 2006 over concerns about flaws in the injection procedure.
"This is the nature of death penalty litigation in the very last minutes, you have a team of lawyers who are trying to save their client's life and they're looking for any argument they can possibly raise," ABC7 Legal Analyst Dean Johnson said.
No matter what happens with Brown, California executions will be put on hold again after September 30 because of a shortage of the first drug in the three-drug method. The manufacturer, Hospira, says it has "raw material supplier issues for the drug sodium thiopental." The drug's maker says the soonest it will be available is early 2011.
The state's supply of the drug expires just hours later on October 1 and pushing the execution that close to the drug's expiration date concerns death penalty opponents.
"This drug here is the one drug that prevents the person being executed from feeling pain during the process. If this drug doesn't work, then everyone agrees that it will be an excruciating, painful death," Natasha Minsker with the ACLU said.
Johnson says there is a strong chance the execution may not happen at all this week.
"If there's an additional delay of as much as three hours, which is certainly a real possibility, the drug's expiration date passes and the execution cannot proceed because the drug has expired," Johnson said.
But opponents say this execution has been rushed from the start.
"It's really critical that this drug work and the fact that three hours later it would not be acceptable to carry out the execution, really raises questions. Why is it OK at 9 p.m.?" Minsker said.
If this execution does not happen Thursday, it may not happen for months. The attorney general's office said it will not schedule any future executions until California receives another shipment of the drug.