Future of California Lethal Injection Case Unresolved

Judge Jeremy Fogel
Judge Jeremy Fogel

Federal Judge Jeremy Fogel has not yet decided whether he will give up control of the controversial challenge to California’s lethal injection process when he leaves in October to lead the Federal Judicial Center in Washington, D.C.

Five years ago Fogel halted executions in California after he found the way the state administered the three-drug cocktail created too much risk that the inmate suffered prior to death in violation of the violate the Constitution.

He has said passing off the case to another judge would create a time-consuming period of catch-up for the new judge.

In an interview Tuesday, Fogel said he is still doesn’t know whether to keep the case, Morales v. Tilton.

“I haven’t decided what to do with Morales yet. I may reassign it or I may keep it,” he said.  Fogel expects to hand over most of his caseload at the end of October when he leaves San Jose for the largely academic job at the Federal Judicial Center.  “I do plan to keep a few cases,” he said adding, “but I can’t compromise my day job.”

The Northern District court has agreed that his criminal cases will be redistributed among his colleagues in San Jose, but his civil cases will be spread among all the judges in the district, including the San Francisco and Oakland branches.

The court’s special order includes the decision not to assign any new cases to Fogel.  The 61-year-old judge was appointed last month to head the Federal Judicial Center, an educational resource for the judiciary.  He will be on leave for between four to seven years while at the FJC.

He presides over the capital case of Michael A. Morales.  Morales challenged the state’s administration of drugs used in executions.  Although Fogel twice rejected earlier challenges to the drug cocktail, he halted Morales’ execution after expert testimony suggested that in six of the last 11 executions inmate breathing may not have stopped as predicted and may have been terrifying to the inmate.

For now, the fate of who will resolve Morales’ constitutional challenge remains in flux.

Fogel’s departure, though temporary, will open a vacancy on the Northern District court for presidential appointment of a new judge.

The Federal Judicial Center operates to supply educational support and research resources for the judiciary.

One of the first issues confronting Fogel when he arrives will be a tentative 3.5% cut in the center’s budget.  “That is really serious,” said Fogel.

If the center hopes to avoid staff cuts that would make cuts to remaining programs difficult. 

“Trying to maintain the quality of what the center does with a smaller amount of money to work with will be an important focus right out of the box,” he said.

His personal preference for center projects includes upgrading technology, particularly the website, as a means to not only make more information readily available to the bench, bar and public, but also to save money.

“We can save some money by bringing technology up to state of the art standards.  An example is the website, which has tremendous information on it, but it is hard to find,” he said.  “That is not a big ticket item,” he said.

In the bigger picture, Fogel said he wants to give support to judges and enhance greater public understanding of the tough jobs judges have, not just the nuts and bolts of the job but judges’ role in society, he said.

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