Judge Jeremy Fogel

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Death penalty suit gets new judge

With Federal District Judge Jeremy Fogel taking off on a leave of absence, a new judge will take the helm of California’s long-running lawsuit over capital punishment. Fogel will leave his position, at least temporarily, to head up the Federal Judicial Center in Washington D.C. Judge Richard Seeborg, based in the district court branch in San Francisco, will take over the case

Fogel–previously best known as a brilliant technology patent law judge–has presided over the case since it began in 2006. In 29 years as a judge, Fogel has said the case is the most challenging he’s handled. “It brings all of your dimensions as a person into play,” he told the Recorder, a legal newspaper. From the emotions the issue provokes, to the politics, to the fact that there’s so little existing law to look to, there are challenges he said. “It’s very humbling to have that type of responsibility,” he told the paper.

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No executions in California in 2011

Michael Angelo Morales is among the inmates on death row who are eligible for execution.

There will be no executions scheduled in California in 2011, according to lawyers for the California Department of Corrections and Rehabilitation. At a hearing last week in the court room of Federal District Judge Jeremy Fogel, lawyers defending the state’s lethal injection process from allegations that it violates the Eighth Amendment’s ban on cruel and unusual punishment said that executions would not be feasible until 2012. The reason? There’s a new warden at San Quentin State Prison and per state regulations, he’s assembling his own lethal injection team. According to the Stockton Record:

That execution team will be chosen by late August and attorneys for the condemned prisoners won’t get documentation of their qualifications until December, lawyers for the state’s attorney general told a federal judge Friday.

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Judge Fogel tours San Quentin

Rina Palta

Protest over a planned death row expansion outside San Quentin State Prison

As part of an ongoing lawsuit over California’s lethal injection procedure, federal district Judge Jeremy Fogel visited San Quentin State Prison today to examine the prison’s lethal injection facility. Fogel has been presiding over a six-year court battle that put executions on hold in 2007. At issue is whether the lethal injection process, as performed in California, leaves too great a risk that an inmate will experience serious pain while dying.

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What death penalty lawyers want to ask Schwarzenegger

CDCR

Questions persist about California's lethal injection process.

As reported in the San Jose Mercury News, lawyers for clients on death row want to question former Governor Arnold Schwarzenegger under oath. The case at hand is an ongoing federal lawsuit over the state’s lethal injection procedure. Lawyers for the plaintiffs, all men on California’s death row who’ve been slated for execution, claim that the state’s procedure for executing inmates violates the Eighth Amendment’s ban on cruel and unusual punishment. A corresponding lawsuit claims the procedure interferes with the First Amendment’s guarantee of freedom of the press.

What do these lawyers want to ask the former governor? Mainly, why state officials, when they rewrote the state’s lethal injection procedure, opted to continue using three drugs instead of one. Here’s why that matters. Both the old lethal injection and new lethal injection procedure in California involve multiple injections: the first drug is an anesthetic, meant to put the inmate to sleep; the second paralyzes the inmate; and the third stops his or her heart. The idea is that the inmate, by the time he or she is put to death, is already asleep and can’t feel the pain caused by the heart-stopping drug. In past hearings, lawyers for inmates produced evidence that raised serious questions over whether inmates were actually asleep when they were put to death. Whether issues of properly injecting the drug or the anesthetic’s effectiveness, lawyers said, inmates were likely experiencing serious pain while dying–and no one could tell, because the second drug had paralyzed them. That, inmates’ lawyers contend, is unconstitutional.

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Will California restart executions in 2011?

CDCR

28 people were sentenced to death in California in 2010, meaning that with 717 inmates, the state's death row is the most crowded in the country.

California hasn’t carried out any death sentences since Clarence Ray Allen was executed by lethal injection at San Quentin in 2006. That year, Federal District Judge Jeremy Fogel–who up until then had been largely known as a brilliant patent law mind–put a halt to executions in the state, saying California’s procedure violated the 8th Amendment’s ban on cruel and unusual punishment. At issue was the state’s particular lethal injection procedure, which the court decided was prone to error, and the cramped conditions of the gas chamber where members of the execution team barely had room to move. Now that California has rewritten its procedure, built a new facility, and secured a large stock of execution drugs, will executions resume this year? Before that happens, a number of questions await resolution:

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California orders more execution drugs

As the mystery continues over where states are getting stocks of the scarce anesthetic, sodium thiopental (commonly used in lethal injections), California filed papers today to tell a federal court that the state has ordered more–521 grams. Three grams are theoretically needed for a single execution (more if the first two injections are not sufficient to put the inmate to sleep). The state already has 12 grams and this latest order will bring the supplies to 533 grams, technically enough to execute 177 people.

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