Federal judge denies stay of execution for Cal Coburn Brown

A U.S. District Court judge on Tuesday refused to block the execution of Cal Coburn Brown, who is scheduled to die by lethal injection sometime after midnight Sept. 10.

The request for a stay before Judge John Coughenour in Seattle was the last remaining motion pending in court, but appeals are expected.

"This ruling moves Mr. Brown closer to facing the verdict that a jury imposed on him more than 16 years ago when he was found guilty of aggravated first-degree murder," state Attorney General Rob McKenna said in a statement. "While he has confessed to his crimes, we anticipate Mr. Brown will continue to seek additional delays in the 9th Circuit or the U.S. Supreme Court, which we will contest as they occur as we seek justice for the victim, her family and the state."

Seattle attorney Gil Levy, who is on Brown's defense team, said Tuesday afternoon that an appeal would be filed with the 9th U.S. Circuit Court of Appeals on Wednesday. "We disagree with the decision denying the stay," Levy said.

Brown, 52, was convicted of the 1991 rape, torture and murder of Holly Washa, 21, whose body was found in the trunk of her car in a parking lot near Seattle-Tacoma International Airport. Her throat had been slashed, and she had been tortured and raped repeatedly.

Brown's lawyers had argued that he is protected under the federal Civil Rights Act, which guarantees that citizens should not suffer a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" at the hands of federal authorities. Brown's defense team also argued that he also is guaranteed protections against "cruel and unusual punishment" under the Eighth Amendment.

In his ruling, Coughenour said that filing for a court injunction based on the Civil Rights Act and the Eighth Amendment does not entitle a death-row defendant to an automatic stay. He cited the U.S. Supreme Court, which has determined a "stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the state's strong interest in enforcing its criminal judgments without undue interference from the federal courts."

Coughenour said that Brown has not argued "that he is entitled to live. He argues only that he should not be made to suffer as he dies."

"Given the strong interest of crime victims in finality, and given that more than nineteen years have passed since Plaintiff murdered Ms. Washa, this Court cannot say that the public interest favors an injunction," Coughenour wrote in his order. "Neither the family and loved ones of Ms. Washa nor the State of Washington can claim an interest in executing an innocent man, or a man convicted after an unfair trial. Plaintiff nowhere argues that he is innocent or that his trial was unfair, however. Those arguments were heard and foreclosed long ago."

Brown's execution was stayed by the state Supreme Court in March 2009, less than eight hours before he was scheduled to die, because of an argument over the way the state performs lethal injections. In July, the state Supreme Court lifted the stay.

The last person to be executed in Washington state was James Elledge, 58, who died by lethal injection in August 2001 for the 1998 strangling and stabbing of Eloise Jane Fitzner, 47, at a Lynnwood church.

Information from Seattle Times archives is included in this report.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com