Albert Greenwood Brown is now scheduled to die by lethal injection at 9 p.m. Thursday. Brown initially was scheduled for execution at 12:01 a.m. Wednesday.
Schwarzenegger's order is only a temporary reprieve for brown. he did not win his argument today on the bigger issue, whether the drugs the state uses for executions is cruel and unusual punishment, and whether making Brown choose how he wants to die is constitutional.
Attorneys for Brown argued that his execution should be put on hold for two reasons, first, that offering him a choice between a one-drug execution and the three-drug method violated state regulations.
"The harm is that he is going to be executed pursuant to a protocol that has not been properly enacted," Brown's attorney John Grele said.
And second, that the three-drug method might still cause him pain considered cruel and unusual punishment, even though that procedure has just been updated to eliminate that very argument.
The state argued that Brown was given the choice by order a federal judge and that Brown's lawyers have failed to show evidence of possible pain from the three-drug method.
"The state is continuing to do everything it can that is legally permissible to carry out the criminal court judgment against Mr. Brown and handle it in the near term to be executed if it is legally permissible at that time," Deputy Attorney General Jay Goldman said.
Judge Verna Adams refused to block the execution based on Monday's arguments.
"Mr. Brown cannot prove that he will suffer pain if he is executed under the current regulations and he has not demonstrated that he is likely to prevail on the merits of his conduct. For this reasons, the application for a temporary restraining order is denied," she said.
Brown was convicted in 1982 for the 1980 rape and murder of Riverside teenager Susan Jordan. If the execution ends up happening this week, it would be the first California execution since they were put on hold in 2006 over concerns about flaws in the injection procedure.
"This is the nature of death penalty litigation in the very last minutes, you have a team of lawyers who are trying to save their client's life and they're looking for any argument they can possibly raise," ABC7 Legal Analyst Dean Johnson said.
No matter what happens with Brown, California executions will be put on hold again after September 30, because of a shortage of the first drug in the three-drug method.
The manufacturer, Hospira, says it has "raw material supplier issues for the drug sodium thiopental."