Following the 9th Circuit decision yesterday, Judge Fogel has decided to stay Brown's execution. The full text of his order is here.
As opposed to the previous decision, it is evident from the text that Judge Fogel feels a greater degree of freedom here, and he allows himself to more openly criticize the state's maneuvers here.
[I]n considering, as it was required to do, California’s “strong interest in proceeding with its judgment,” . . . the Court was mindful of the fact that there has been a de facto moratorium on executions in the state since its decision in Morales v. Tilton. . . and it understood that Defendants wished to set other execution dates in the near future. It now appears thatDefendants knew, but did not disclose to the Court, that their existing supply of sodiumthiopental will expire on October 1, 2010, and that additional quantities of the drug will not beavailable at least until the first quarter of 2011. . . At a status conference on September 21, 2010, this Court set an accelerated schedule for resolution of the Morales litigation under which a full review of the new regulations will be completed by the end of this year. Under these circumstances, the only execution that would be impacted either directly or indirectly by a stay is Brown’s, which as a result of a brief reprieve granted by the Governor is now scheduled only three hours before the expiration date of the sodium thiopental.
As required by the 9th Circuit, Judge Fogel assesses the old and new regulations under the Baze standard, which required a "demonstrated risk of severe pain". He finds that the old set of regulations fell beneath this standard. But what about the new regulations? Here's what the state thinks:
Defendants’ position is straightforward. They do not claim that the new regulations are radically different from previous lethal injection protocols; indeed, in most respects the documents are remarkably similar. Instead, they begin with the plurality’s observation in Baze that “a State with a lethal injection protocol substantially similar to [Kentucky’s] would not create a risk that meets [the ‘demonstrated risk’] standard.” . . . They then cite Justice Ginsburg’s approving reference in her dissent to the fact that “[i]n California, a member of the IV team brushes the inmate’s eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection.” . . . They argue that this “consciousness check” alone is sufficient to render the current regulations constitutionally adequate. They present a side-by-side comparison of key provisions of the regulations and the Kentucky protocol found constitutional in Baze, pointing out a number of ways in which the regulations provide greater protection to the inmate than the procedures used in Kentucky. Finally, they assert that subsequent to Baze, several courts have concluded that evidence of problems under preëxisting, superseded execution protocols is insufficient to show a presently existing “demonstrated risk” of a constitutional violation. . .
And here's what Brown thinks:
Although he does not concede that the new regulations are facially adequate under Baze, Brown argues principally that the “pervasive lack of professionalism,” . . . and “lack of reliability and transparency,” . . . that the Court found in Defendants’ actual application of O.P. 770 also has characterized Defendants’ subsequent efforts to revise the lethal-injection protocol. He contends that on the present record, unlike other courts that have had to assess the constitutionality of post-Baze protocols, this Court cannot simply presume that Defendants’ actual application of the new regulations will meet constitutional standards. Citing excerpts from the limited discovery that occurred in the instant case following the 2006 evidentiary hearing (as well as a large volume of exhibits), he argues that Defendants did not come close to conducting the “meaningful review” of the “infrastructure” of executions that the Court concluded was necessary. . . and that notwithstanding what the regulations say on their face, the deficiencies found by the Court in the selection and training of the execution team, the mixing and delivery of the drugs used in executions, and the adequacy and accuracy of execution records under O.P. 770 in fact have not been addressed and are present under the regulations as well.
These are heavy questions, says Judge Fogel. I would like to tackle them in the thorough, exhaustive way the 9th Circuit would like me to, but I cannot do so in the narrow time frame between now and Thursday evening.
[I]n light of the voluminous record in this case and the fact that the Court has been precluded from proceeding with the Morales litigation for more than three years by the pendency of a state-court injunction and the parties’ repeated mutual requests that the state-court litigation be resolved first, it is virtually impossible for the Court to assess other than in a very preliminary way prior to Brown’s scheduled execution date whether Brown can or will be able to make such a showing. Based solely on that very preliminary assessment, it appears that Brown has raised substantial questions of fact as to whether at least some of the deficiencies of O.P. 770 have been addressed in actual practice. Given what is at stake, this Court greatly appreciates the direction of the Court of Appeals that “[t]iming is everything and the district court should take the time necessary to address the State’s newly revised protocol in accord with Supreme Court authority.” . . . Given an execution date of September 30, 2010, the Court simply cannot
comply fully with that directive in time to render a reasoned decision and permit adequateappellate review.
Call this a conspiracy theory, but reading between the lines suggests that Judge Fogel was hoping for a 9th Circuit deus ex machina intervention which would allow him to stay the execution, and this may have driven his previous order. As portrayed in his previous decision, the state's modus operandi in this case has been, perhaps, dishonest and sneaky, but not illegal in the narrow sense of the word; at no point was the state required to ask for permission to resume executions, though given the lengthy process of regulation revision it was not unreasonable of Judge Fogel to expect them to do so. This is his opportunity to resume the review process in an orderly fashion, without being pushed into a race against the expiration date of some chemical.
For more on Judge Fogel and the Morales litigation, read this interesting 2008 piece by him in which he tells of his involvement in the Morales case. It provides some interesting insight into his thought process.
Props to Christoffer Lee for forwarding Fogel's article.