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More California Execution Developments

Think you got short deadlines? "A federal judge on Tuesday gave lawyers six hours to file written arguments on whether California's first execution in nearly five years should go forward," Paul Elias reports for AP.  I noted here that I did not think Judge Fogel's "choice" order was valid. The Ninth Circuit panel didn't think so either and kicked it back to him. The panel is Judges Kleinfeld, McKeown, and Fisher, not the panel I expected.

The panel says, "Timing 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."  The Supreme Court authority on point says (emphasis added):

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

It should not take much time to decide that California's new protocol is better than the Kentucky procedure at issue in Baze v. Rees, and, therefore, "a stay of execution may not be granted...."

Meanwhile, back at the ranch, the Attorney General wants the California Supreme Court to make the Court of Appeal decision lifting the Superior Court's stay final forthwith. The Court wants the opposition by noon today and the reply by 3:00 p.m. The case is California Dept. of Corrections and Rehabilitation v. Superior Court (Morales), S186751.

The Governator granted a one-day reprieve to allow Cal. Supreme to consider the case. Under California's unusual execution-date-setting mechanism, missing the date due to a court stay means you have to go back to Superior Court and get a new date set. However, missing the date due to a Governor's reprieve means "the execution shall be carried out on the day immediately after the period of the stay or reprieve without further judicial proceedings."  Cal. Penal Code ยง 1227.5. So there is a reverse Brer Rabbit effect here.  A reprieve nominally benefits the condemned inmate, but he may not actually want it.

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