Albert Greenwood Brown Scheduled to be Executed September 29

Albert Greenwood Brown, convicted in 1980 of the abduction, rape and murder of a fifteen year old girl in Riverside, is scheduled to be executed Wednesday, September 29. His lawyers have asked Judge Jeremy Fogel of the Northern District Court to delay the execution in order to examine whether his 2006 order to upgrade lethal injection procedures has been respected. Executions have been barred since 2006 and this will be the first one since Judge Fogel’s order. These are the new regulations as they appear on the CDCR website.

More details about Brown, the case, his subsequent appeals, and the execution ban due to the order can be found on the CNN news blog; and here is the 9th Circuit decision rejecting Brown’s arguments regarding ineffective assistance of counsel and 8th Amendment arguments regarding lethal injection. For readers unfamiliar with ineffective assistance claims, the appellant or habeas petitioner needs to prove the two-prong “Strickland standard”: first, that the attorney’s services fell beneath the minimum expected from a professional (the “performance prong”), and also that, had the attorney done his or her job properly, the outcome of the trial would have been different (the “prejudice prong”).

Brown’s first argument pertained to his attorney’s decision to put a psychiatrist on the stand for the penalty phase. The psychiatrist portrayed Brown as someone capable of feeling shame and remorse, suffering from sexual dysfunction, but otherwise subscribing to societal norms. The attorney testifies that, in hindsight, he would have done things differently, but at the time he thought the psychiatrist would humanize Brown and portray him in a more sympathetic light.

Although Myers’s decision to put Dr. Summerour on the stand came with some risks, it came with benefits to Brown as well, in an attempt to explain the genesis of his behavior and portray him as more human and sympathetic to the jury. These benefits were available only if Dr. Summerour were called. We therefore agree with the district court that Myers’s decision to have Dr. Summerour testify “might be considered sound trial strategy,” Strickland, 466 U.S. at 689, as a reasonable attorney could conclude that the positive outweighed the negative[.]

Brown’s other argument, regarding the attorney’s failure to conduct an appropriate background check (in particular, not inquiring about his history as an abused victim and his military records), was also rejected. The standard for ineffective assistance requires proof that, absent the lawyer’s mistakes, the trial outcome would have been different. There is no reason to assume, said the 9th Circuit, that the penalty would have been different had Brown presented evidence of the abuse:

Brown provides no specifics as to the severity, duration, or frequency of these beatings, nor does he offer the testimony of any family member to corroborate his allegation. . . [t]he state, on the other hand, had evidence that Brown had recently raped another young girl [Kelly Porterfield] and had also been involved in a voyeuristic sexual incident with a 12-year-old girl before that. The rape and murder of Susan Jordan was bad enough by itself, but it was also coupled with taunting phone calls to torment her family. The jury deliberated less than three hours before reaching a death verdict. . . [a]t best, the additional information about childhood abuse would have probably bolstered Summerour’s diagnosis, but in light of the other information before the jury, there is no reasonable probability that this information — particularly in the vague manner presented by Brown — could have resulted in a different outcome of the penalty phase of the trial.

The court also rejected Brown’s argument about the unconstitutionality of lethal injection:

On appeal . . . Brown attempts to rely on two recent California district court decisions holding that the current lethal injection protocol utilized by California violates the Eighth Amendment: Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) and Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). These cases. . . do not hold that lethal injection is cruel and unusual in and of itself (as rown’s petition alleges), but only that the protocol as currently implemented in California may violate the Eighth Amendment because the state does not have procedures in place to insure that inmates are unconscious (from an initial and rather painless injection of sodium thiopental) prior to injecting fatal doses of pancuronium bromide and potassium chloride.

For more of a general picture, the CDCR website offers various demographics on death row population, by gender, age, year and county.