With California prosecutors pushing full speed ahead to resume executions after a hiatus of more than four years, a federal judge in San Jose on Tuesday suggested he may not have the power to block the state's effort to put a condemned Riverside County killer to death next week, despite an unresolved legal challenge to the state's lethal injection procedures.

U.S. District Judge Jeremy Fogel indicated during an hourlong hearing that he will rule by Friday on a request to block the planned Sept. 29 execution of Albert Brown, on death row since 1982 for the murder of a 15-year-old girl.

Fogel in 2006 declared a de facto moratorium on executions in California while he considered a lawsuit by death row inmate Michael Morales that maintains that the state's lethal injection method is unconstitutional. But a complex blend of events in recent weeks has put Brown in line to be the first San Quentin inmate executed in nearly five years.

Attorney General Jerry Brown, in the midst of a heated gubernatorial campaign, has intensified the effort to get executions back on track, arguing in various courts that newly revised lethal injection procedures that went into effect in August should permit the state to resume executions. The question now is whether the state can execute Albert Brown and other death row inmates before Fogel and other courts have a chance to fully review those revised procedures, as well as the adequacy of a newly constructed death chamber at San Quentin.


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The outcome of the latest legal wrangling could have ramifications for David Allen Raley, a Santa Clara County convict on death row for more than two decades for the killing of a Peninsula teenager and the attempted murder of her friend. Raley, who would by the first South Bay killer executed since the state restored the death penalty in 1978, is one of a handful of death row inmates who've exhausted their appeals and face the prospect of imminent execution if California's lethal injection method withstands legal challenges.

Lawyers for Albert Brown and Morales expressed concern that the state was pushing for executions without giving Fogel a chance to evaluate whether the new lethal injection procedures protect inmates against a cruel and inhumane death, the chief argument that has held up executions since 2006.

"It's a very rushed process," said attorney John Grele. "For the state of California to force us to do that is unfair and unjust."

The attorney general's lawyers declined to comment outside court.

But Deputy Attorney General Michael Quinn told Fogel that California's lethal injection method is "superior" to the three-drug cocktail used in Kentucky that was upheld two years ago by the U.S. Supreme Court.

Among other things, Fogel suggested there may not be legal justification for Brown's execution to be blocked, but that he may also have the right to impose conditions on the state, as he did just before he gave Morales a reprieve in February 2006. The judge indicated that one possibility is using just one drug in the execution procedure, sodium thiopental, instead of three; lawyers for death row inmates argue that the other two drugs mask that the inmate may be experiencing excruciating pain during an execution.

Fogel did tell lawyers on both sides that there is fresh urgency to resolving the broader Morales challenge to lethal injection and put the case back on a fast track to be argued by the end of the year. Fogel in 2006 found that the state's previous lethal injection procedures posed a threat of causing a cruel and inhumane execution due to poor training of execution team members and an antiquated death chamber.

The judge gave state officials the opportunity to revise the execution method, and prison officials this summer came up with new procedures they believe remedy any legal issues.

That triggered the new round of legal battles over resuming capital punishment in California, which now has more than 700 condemned killers on death row. In court papers filed this month, state lawyers have indicated they plan to ask for execution dates for several death row inmates who've exhausted their appeals, including Raley, but numerous hurdles remain for those executions to take place.

Lawyers for death row inmates have also challenged the new state regulations in state court in Marin County, and that case could still stand in the way of the state's effort to begin putting condemned killers to death at San Quentin.

Contact Howard Mintz at 408-286-0236.