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Judge refuses to set execution date
November 20, 2012, 05:00 AM By Michelle Durand Daily Journal Staff

A San Mateo County Superior Court judge Monday refused to set an execution date for a condemned inmate whose appeals have expired, saying she did not have authority to override other courts wrangling with questions over lethal injection.

Judge Barbara Mallach did not elaborate on her decision but the ruling rendered moot any further discussion yesterday on whether the California Department of Corrections and Rehabilitation is able to use a single-drug method rather than the controversial three-drug protocol that has essentially put executions on hold.

Prosecutors said prior to Monday’s hearing they didn’t anticipate a judge going ahead with a date for Robert Green Fairbank, who has spent 27 of his 58 years on Death Row for the 1985 torture and murder of San Francisco graduate student Wendy Cheek. Challenges to lethal injection remain tied up in court and although prosecutor Joe Cannon yesterday argued Mallach did actually have the authority to issue her own order she instead echoed the direction taken by a Los Angeles judge similarly asked to issue a death warrant based on the use of a one-drug method. As in that case, defense attorneys argued that judges cannot overrule other court orders staying lethal injection until the courts resolve the matter.

"We’re not writing on a blank slate here,” said federal public defender Mark Drozdowski, one of the four attorneys appearing for Fairbank.

Fairbank now joins more than a dozen California Death Row inmates without any appeals left and without an execution date.

Fairbank, already a convicted felon, pleaded no contest to the attempted sexual assault and murder of Cheek whose partially burned body was found near Hillsborough off Interstate 280. Cheek had been stabbed repeatedly with a barbecue fork, knife and screwdriver before being set on fire.

Fairbank has since run the course of mandatory appeals which is why District Attorney Steve Wagstaffe has said the next logical step was to follow through with the punishment handed down by jurors. But even with the momentum of California voters affirming the death penalty by defeating Proposition 34 on Election Day, Wagstaffe said he wasn’t surprised Mallach ruled as she did.

"I respect the judge’s decision but we simply didn’t want to sit there and continue with delays. We wanted to try to get the system moving. I agree the system is broken and we need to try to make changes and respect what the voters want,” Wagstaffe said.

California has not executed an inmate since January 2006 and the years since have been a tangle of legal questions, stalls and requirements to avoid inflicting cruel and unusual punishment on the condemned.

The last San Mateo County resident sentenced to death was Alberto Alvarez for the 2006 murder of East Palo Alto police Officer Richard May.

The last San Mateo County inmate executed was Donald Beardslee in January 2005 for the 1981 double murder of Patty Geddling and Stacey Benjamin. At the time, Beardslee, 61, was the longest sitting inmate on Death Row and the 11th executed by California since the state reinstated capital punishment in 1978.


 Michelle Durand can be reached by email: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 102.


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