Post by Anja Nieser on Sept 26, 2006 16:14:31 GMT -5
Judge debating state execution procedure respected by lawyers
Some of the warmest compliments for Jeremy Fogel, the federal judge
pondering a challenge to California's lethal injection procedures, come
from lawyers on the losing end of his rulings.
Fogel is "very capable, very smart, very principled," said Richard Jones,
an attorney who represented two French organizations battling Yahoo over
its posting of Nazi memorabilia on a Web site available in France. Fogel
ruled in 2001 that French court orders requiring Yahoo to restrict access
to the material were unenforceable in the United States.
"If I were to (draw) him in a new case, I'd feel pretty good about it,''
said William Kennedy, an attorney who lost an arbitration-law case before
Fogel in 2003.
Fogel, a 1998 appointee of President Bill Clinton, begins a 4-day hearing
in his San Jose court today on an issue that could affect the future of
the death penalty: whether medical monitoring is needed to reduce the risk
of a condemned inmate suffering an agonizing death from lethal injection.
Executions in California are on hold while Fogel considers the state's
proposed changes in its lethal injection procedures. Those changes were
prompted by his rulings that led to a stay of Michael Morales' execution
Feb. 21 for the 1981 rape and murder of a 17-year-old Lodi girl.
The case is one of an increasing number of challenges around the nation to
lethal injection, used by 37 of the 38 states with death penalty laws. In
preparation for the hearing, Fogel has visited San Quentin State Prison,
examined the death chamber and taken testimony from the leader of the
prison's execution team.
A law professor who has appeared in Fogel's court said the judge is well
suited for a case on the cutting edge of the law, neither too timid nor
too reckless.
"He's very independent, but he really has a sense of restraint ... a very
good instinct in terms of how far you can push something,'' said Gerald
Uelmen of Santa Clara University.
"He's willing to be courageous if he needs to be, but he's not someone who
will leap to a decision prematurely," said Jon Streeter, a San Francisco
attorney who won rulings from Fogel that led to a 2003 settlement banning
racial profiling in traffic stops by the California Highway Patrol.
A San Francisco native, Fogel, 55, graduated from Stanford University and
Harvard Law School and began his law practice in 1974. Four years later he
became directing attorney of the Santa Clara County Bar Association's
Mental Health Advocacy Project.
Gov. Jerry Brown appointed him to the Santa Clara Municipal Court bench in
1981, and he won election to the Superior Court in 1986. Over the next
decade, he established a moderate reputation while handling several major
civil cases.
He upheld Santa Clara County's 1996 sales tax for transportation, a 1994
Los Altos referendum that overturned the city's mandate to build
affordable housing, and a 1993 San Jose ordinance barring anti-abortion
protesters from picketing residences.
Fogel also heard divorce and custody disputes, an assignment he described
in a 2003 article as the most emotionally intense of his career and one
that made him more inclined to settle cases.
In a recent opinion piece in the San Jose Mercury News, Fogel disavowed
the concept of the judge as an impersonal arbiter or umpire.
"Philosophy and life experience do sometimes matter with the close calls,"
he wrote. The judge, who worked at a legal clinic for poor people while in
law school, also described the "pervasive impact of economic inequality on
the quality of justice people receive."
He did not respond to The Chronicle's request for an interview.
Some of his cases in 8 years as a federal judge have illustrated the
tension between Fogel's philosophical inclinations and his judicial
caution.
One involved a Santa Cruz medical marijuana clinic represented by Uelmen.
Fogel said during a 2003 hearing that he was moved by accounts of patients
who had died after federal agents confiscated their cannabis, but didn't
see how federal law allowed him to prohibit raids or order the return of
the marijuana.
Soon afterward, the Ninth U.S. Circuit Court of Appeals ruled in a
separate case that federal drug laws didn't prohibit patients from
obtaining locally grown marijuana. The ruling led Fogel to reconsider the
Santa Cruz case and issue an injunction that kept the clinic operating for
nearly a year, until the U.S. Supreme Court overruled the appellate
decision in June 2005.
Fogel has no experience in death penalty trials. But before Morales' case,
he rejected federal appeals from two condemned prisoners challenging
California's lethal injection procedures. In each case, he cited a state
expert's finding that the inmate was unlikely to be conscious when
paralyzing and heart-stopping drugs were injected. Both inmates were
executed.
But he reversed course in Morales' case, saying there was new evidence:
records and observations of California executions suggesting that inmates
were still breathing beyond when the same state expert said they should be
motionless.
Rather than halting executions, though, the judge proposed alternatives:
The state could arrange to have medically trained personnel monitor
Morales and make sure he was unconscious, or it could kill him with a
single massive dose of a barbiturate.
Only when prison officials were unable to comply did Fogel issue a stay of
execution and order this week's hearing.
The outcome is unpredictable, but lawyers who have appeared before Fogel
make one forecast with confidence: He will take an active role questioning
both sides.
"He seems to enjoy the process of exchanging observations and analyses of
legal problems he's wrestling with,'' Streeter said. "He loves to engage
with counsel on the hardest questions.''
That may unnerve some lawyers.
Jones, who represented the French organizations against Yahoo in the suit
over Nazi memorabilia, said he entered the courtroom confidently, looking
for a quick win. He knew he was in trouble, he said, when "the first words
out of Judge Fogel's mouth were, 'This is the most interesting case I've
had the privilege of working on.' "
(source: San Francisco Chronicle)
Some of the warmest compliments for Jeremy Fogel, the federal judge
pondering a challenge to California's lethal injection procedures, come
from lawyers on the losing end of his rulings.
Fogel is "very capable, very smart, very principled," said Richard Jones,
an attorney who represented two French organizations battling Yahoo over
its posting of Nazi memorabilia on a Web site available in France. Fogel
ruled in 2001 that French court orders requiring Yahoo to restrict access
to the material were unenforceable in the United States.
"If I were to (draw) him in a new case, I'd feel pretty good about it,''
said William Kennedy, an attorney who lost an arbitration-law case before
Fogel in 2003.
Fogel, a 1998 appointee of President Bill Clinton, begins a 4-day hearing
in his San Jose court today on an issue that could affect the future of
the death penalty: whether medical monitoring is needed to reduce the risk
of a condemned inmate suffering an agonizing death from lethal injection.
Executions in California are on hold while Fogel considers the state's
proposed changes in its lethal injection procedures. Those changes were
prompted by his rulings that led to a stay of Michael Morales' execution
Feb. 21 for the 1981 rape and murder of a 17-year-old Lodi girl.
The case is one of an increasing number of challenges around the nation to
lethal injection, used by 37 of the 38 states with death penalty laws. In
preparation for the hearing, Fogel has visited San Quentin State Prison,
examined the death chamber and taken testimony from the leader of the
prison's execution team.
A law professor who has appeared in Fogel's court said the judge is well
suited for a case on the cutting edge of the law, neither too timid nor
too reckless.
"He's very independent, but he really has a sense of restraint ... a very
good instinct in terms of how far you can push something,'' said Gerald
Uelmen of Santa Clara University.
"He's willing to be courageous if he needs to be, but he's not someone who
will leap to a decision prematurely," said Jon Streeter, a San Francisco
attorney who won rulings from Fogel that led to a 2003 settlement banning
racial profiling in traffic stops by the California Highway Patrol.
A San Francisco native, Fogel, 55, graduated from Stanford University and
Harvard Law School and began his law practice in 1974. Four years later he
became directing attorney of the Santa Clara County Bar Association's
Mental Health Advocacy Project.
Gov. Jerry Brown appointed him to the Santa Clara Municipal Court bench in
1981, and he won election to the Superior Court in 1986. Over the next
decade, he established a moderate reputation while handling several major
civil cases.
He upheld Santa Clara County's 1996 sales tax for transportation, a 1994
Los Altos referendum that overturned the city's mandate to build
affordable housing, and a 1993 San Jose ordinance barring anti-abortion
protesters from picketing residences.
Fogel also heard divorce and custody disputes, an assignment he described
in a 2003 article as the most emotionally intense of his career and one
that made him more inclined to settle cases.
In a recent opinion piece in the San Jose Mercury News, Fogel disavowed
the concept of the judge as an impersonal arbiter or umpire.
"Philosophy and life experience do sometimes matter with the close calls,"
he wrote. The judge, who worked at a legal clinic for poor people while in
law school, also described the "pervasive impact of economic inequality on
the quality of justice people receive."
He did not respond to The Chronicle's request for an interview.
Some of his cases in 8 years as a federal judge have illustrated the
tension between Fogel's philosophical inclinations and his judicial
caution.
One involved a Santa Cruz medical marijuana clinic represented by Uelmen.
Fogel said during a 2003 hearing that he was moved by accounts of patients
who had died after federal agents confiscated their cannabis, but didn't
see how federal law allowed him to prohibit raids or order the return of
the marijuana.
Soon afterward, the Ninth U.S. Circuit Court of Appeals ruled in a
separate case that federal drug laws didn't prohibit patients from
obtaining locally grown marijuana. The ruling led Fogel to reconsider the
Santa Cruz case and issue an injunction that kept the clinic operating for
nearly a year, until the U.S. Supreme Court overruled the appellate
decision in June 2005.
Fogel has no experience in death penalty trials. But before Morales' case,
he rejected federal appeals from two condemned prisoners challenging
California's lethal injection procedures. In each case, he cited a state
expert's finding that the inmate was unlikely to be conscious when
paralyzing and heart-stopping drugs were injected. Both inmates were
executed.
But he reversed course in Morales' case, saying there was new evidence:
records and observations of California executions suggesting that inmates
were still breathing beyond when the same state expert said they should be
motionless.
Rather than halting executions, though, the judge proposed alternatives:
The state could arrange to have medically trained personnel monitor
Morales and make sure he was unconscious, or it could kill him with a
single massive dose of a barbiturate.
Only when prison officials were unable to comply did Fogel issue a stay of
execution and order this week's hearing.
The outcome is unpredictable, but lawyers who have appeared before Fogel
make one forecast with confidence: He will take an active role questioning
both sides.
"He seems to enjoy the process of exchanging observations and analyses of
legal problems he's wrestling with,'' Streeter said. "He loves to engage
with counsel on the hardest questions.''
That may unnerve some lawyers.
Jones, who represented the French organizations against Yahoo in the suit
over Nazi memorabilia, said he entered the courtroom confidently, looking
for a quick win. He knew he was in trouble, he said, when "the first words
out of Judge Fogel's mouth were, 'This is the most interesting case I've
had the privilege of working on.' "
(source: San Francisco Chronicle)