Gov. Arnold Schwarzenegger and state corrections director Matthew Cate appealed to a federal circuit court in San Francisco today to allow California's first execution in nearly five years to proceed on Thursday.
The officials asked the 9th U.S. Circuit Court of Appeals to overturn a stay issued Tuesday evening by U.S. District Judge Jeremy Fogel of San Jose in the case of Albert Greenwood Brown.
Brown, 56, had been scheduled to be executed by lethal injection at San Quentin State Prison at 9 p.m. Thursday for the rape and strangulation of 15-year-old Susan Jordan of Riverside 30 years ago.
Fogel said he needed more time for a full review of whether the state's recently revised three-drug lethal injection protocol carries a risk of causing unconstitutional severe pain.
The stay order was in response to a ruling by a three-judge panel of the 9th Circuit late Monday instructing him to reconsider granting a stay and to “take the time necessary” to review the protocol.
But state lawyers, in an appeal petition filed this morning, said there is no proof that the revised protocol could cause pain.
The attorneys wrote, “Over the course of the last four years, California has dutifully endeavored to ensure the quality of its lethal injection processes.
“There is no evidence demonstrating any risk to Brown or any condemned inmate under this current protocol,” the state lawyers said.
Any decision by the circuit court can be appealed to the U.S. Supreme Court.
There is now only a narrow window of three hours Thursday evening in which Brown could be executed because the state's supply of one of the drugs used will expire on Friday. Authorities have said that because of a nationwide shortage, they don't expect to obtain more of the drug, the sedative sodium thiopental, until early next year.