Lawyer questions Calif. execution before election

SAN FRANCISCO (AP) - San Quentin Prison's warden walked to the death row cell of Albert Greenwood Brown on Aug. 31 and read a warrant informing him of his scheduled execution this week.

Prison staff then examined the convicted rapist and murderer to ensure his veins were healthy enough to handle a lethal injection scheduled for Wednesday. And, then, just as quickly, a federal judge on Friday refused to block the execution, or reconsider the decision on Saturday.

With that, Brown made a surprising leap to the top of the long list of California death row inmates facing execution. Certainly, it was unforeseen by legal experts, by the federal judge who halted executions in 2006 and by Brown's own lawyers.

Late Saturday, U.S. District Court Judge Jeremy Fogel extended a deadline until noon Sunday that allows Brown to choose his execution method. He can decide between a lethal injection of one drug or the three-drug cocktail California has used in its last 12 executions.

Fogel said he would cancel the execution if prison officials refused a request for a one-drug execution. But in court filings Friday and Saturday, the state said it was prepared to carry out such an execution.

Brown's lawyers have wasted no time in blaming the possible execution on election-year politics, saying that Attorney General Jerry Brown's office initiated it because the state's top lawyer is locked in a tight campaign battle with Republican Meg Whitman.

Brown's campaign called the charge "patently false."

For the past five years, defense lawyers have assumed that no executions would be scheduled until another death row inmate's challenge to the state lethal injection process was decided. Michael Morales came within two hours of being executed in 2006. He was thought to be at the top of the list, and his lawsuit was viewed as a test case.

But the attorney general's office and county prosecutors are also pursuing execution dates for several other death row inmates who have exhausted their appeals, which Albert Brown's lawyers said violates an informal agreement to wait on the outcome of Morales' challenge.

"I had personal assurances from the state to that effect," Brown's co-counsel, John Grele, told a federal judge on Tuesday in a bid to delay his client's execution. "It's an orchestrated effort to move things forward."

Attorney General spokeswoman Christine Gasparac said "there was never such an agreement."

Attorney General Brown has always had a fractious relationship with the death penalty, dating to his time as governor in the 1970s and 1980s when he openly opposed capital punishment. In 1977, he vetoed death penalty legislation that the Legislature quickly overrode.

During his campaign for attorney general - and now for governor - Jerry Brown promised to "enforce the laws" of California, including defending the death penalty. Defense lawyers and others see the newly scheduled execution as a way for Brown to woo fence-sitting voters who favor the death penalty.

"The position from the attorney general previously was that they would not pursue any executions until the Morales lethal injection lawsuit was resolved," said David Senior, who also represents the inmate Brown. "It appears that Jerry Brown is flipping on his office's position. It seems that it is an apropos time for him to do so while he is in the heat of battle in a political campaign."

Not true, said spokeswoman Gasparac.

"Attorney General Brown played no role whatsoever in the scheduling of the execution date," she said.

But his office does play a role. Gasparac said the attorney general's office notifies district attorneys when inmates from their counties have exhausted all their appeals. The office also informs the county prosecutors of the California Department of Corrections and Rehabilitation's schedule. From there, the district attorneys obtain an execution date from their local court, which is what happened in Albert Brown's case.

"There's a lot of different entities that are involved in the execution of a condemned inmate," Riverside County Chief Assistant District Attorney Bill Mitchell told a judge during an Aug. 30 hearing held to schedule Albert Brown's execution. Mitchell said he also consulted with the governor's office and the state Supreme Court in picking Sept. 29 as Albert Brown's execution date.

Deputy Attorney General Annie Featherman Fraser was also present at Riverside County hearing.

"It was picked because of a lot of various factors and after careful consideration," Fraser told the judge.

In an interview Thursday, Riverside County District Attorney Rod Pacheco said he has never discussed the case with Jerry Brown, nor has the attorney general "encouraged us to move forward."

Pacheco, who supports Whitman for governor, said it's unfair to accuse Jerry Brown of using the case for political gain. Pacheco said his office has been seeking to execute Albert Brown for 28 years.

On Sept. 14, Pacheco wrote Gov. Arnold Schwarzenegger to deny Albert Greenwood Brown's plea for clemency.

"This man showed no clemency to the young girl that he tormented before strangling her to death and dumping her body in an orange grove," Pacheco said of the 1980 rape and murder of 15-year-old Susan Jordan. "He is least among us who deserves clemency."

The prosecutors told Schwarzenegger that Albert Brown has never expressed remorse for abducting Jordan on her way home from school and raping and killer her. Investigators said he called Jordan's mother several times on the day of her disappearance, taunting her with messages that she would never see her daughter alive again.

He has been on death row since his 1982 conviction.

"I have not forgotten that cruel, chilling phone call in which you so proudly made the statement, 'You will never see your daughter alive again,"' Jordan's mother wrote in a letter attached to the prosecutors' packet sent to the governor. "It was then that God revealed to me that I would indeed see my daughter again, and I eagerly await that day."