State Supreme Court, Gregoire reject killer's request for stay

As the hours tick down before his scheduled execution early Friday, Cal Coburn Brown knows that nothing is certain.

While Brown's latest pleas for a reprieve were turned down Wednesday by the state Supreme Court and Gov. Chris Gregoire, he planned to remain "hopeful" that a stay would be issued at the eleventh hour, according to Judith Kay, a University of Puget Sound ethics professor who spoke with the condemned killer late last month.

Brown knows how a last-minute decision can alter a pending death sentence. In March 2009, he was granted a stay less than eight hours before he was supposed to enter the death chamber at the Washington State Penitentiary in Walla Walla.

But Brown's options are rapidly dwindling.

Wednesday night, an emergency appeal for a stay remained pending before the U.S. Supreme Court. That appeal alleges the U.S. District Court and the 9th U.S Circuit Court of Appeals erred in denying his motion for a stay in his challenge to the state's lethal-injection protocols.

Another appeal, challenging a King County Superior Court judge's recent ruling that Brown's "mood disorder" is not severe enough to keep him off death row, is also pending before the state Supreme Court.

Earlier Wednesday, Gregoire rejected Brown's appeal for clemency based on his mental illness. In Washington state, trial juries may consider a mental disorder as a reason to grant leniency in capital cases.

Gregoire said in a news release that the King County jury that heard Brown's case in 1993 "heard this evidence and considered whether he knew right from wrong and was in control of his conduct at the time of the murder of Holly Washa.

"The torture, rape and murder of Holly Washa were horrible acts of brutality," Gregoire said in the news release. "My sympathies and prayers are with Holly Washa's family, who has suffered immeasurably from Cal Brown's actions. No one can do anything to take away or lessen their pain. As a mother, my heart goes out to them for their tragic loss. I pray for Holly Washa. I will also pray for Cal Brown."

Jeff Ellis, one of Brown's defense lawyers, said he was "deeply disappointed" with Wednesday's developments.

"I remain optimistic that the Washington State Supreme Court or a federal court after that will pause and say that a hearing should happen," Ellis said.

"We're dealing with hours now. There's a tremendous amount of pressure."

Brown, 52, was convicted of raping, torturing and killing Washa, 21, in a SeaTac hotel in 1991, before leaving her body in the trunk of her car.

He fled to California and was arrested after being accused of another brutal sexual assault and murder.

Brown has never disputed that he tortured and murdered Washa, but he has claimed the sex he had with her was consensual.

During a hearing before the state Clemency and Pardons Board on March 12, 2009 — just hours before his scheduled execution — Brown apologized for Washa's slaying.

The board was split 2-2 on whether Brown should be executed.

About an hour later, the state Supreme Court stayed Brown's execution based on his appeal that the state's method of execution constituted cruel and unusual punishment.

No executions have occurred since then, while the courts heard similar challenges to the state's long-standing three-drug method of lethal injection — an anesthetic, a paralyzer and a heart-attack-inducing drug.

Defense attorneys argued that the procedure was unconstitutionally painful and prone to mistakes.

In July, the state Supreme Court lifted the stay after the state Department of Corrections switched to a one-drug method of execution, making the initial argument moot. Washington and Ohio are the only states that use the one-drug method.

Brown is scheduled to die by lethal injection shortly after midnight Friday.

The state's last execution was in August 2001, when James Elledge, 58, died by lethal injection for the 1998 slaying of Eloise Jane Fitzner, 47, at a Lynnwood church.

In recent months, Washa's family has remained quiet and has declined media interviews until after the execution.

Last year, family members drove from Nebraska to Walla Walla for Brown's execution only to have the stay issued shortly after they arrived. Washa's father, brother and two sisters will fly to Walla Walla on Thursday, where they will join King County Prosecutor Dan Satterberg as witnesses to the scheduled execution.

"They're very close knit. They really treat Holly as though she's still there with them as a member of the family," Satterberg said. "They feel there is an empty hole in their family. They want to be at the execution not because they want to see him die but they want to be there for Holly."

During Brown's clemency hearing last year, Becky Washa, the slain woman's youngest sister, said their family looked at the execution as "an opportunity for this to be brought to a conclusion."

"We don't have to ever be concerned that he could escape from prison or that any other person would have to go through what my sister went through," she said.

Information from Seattle Times archives is included in this report.

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