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July 29, 2010
Washington Supreme Court lifts stay of execution for Cal Brown

Decision upholds state’s authority to develop death penalty protocol

Olympia — The Washington State Supreme Court today issued an important opinion dismissing various  challenges to Washington's method of carrying out lethal injection and lifting the stay of execution for convicted killer and rapist Cal Coburn Brown.

“Holly Washa’s family has waited a long time for justice,” Attorney General Rob McKenna said. “Hopefully, today’s decision will finally bring that about.”

“The state has contended all along that it has complied with the law and will continue to do so,” said Assistant Attorney General John Samson, who argued the case at trial.



The court issued its unanimous ruling in the cases of Brown and Gentry v. Vail and Stenson v.  Vail brought by death row inmates Brown, Darold Stenson and Jonathan Lee Gentry. The justices agreed that the Legislature properly delegated to the state Department of Corrections the authority to enact and implement an execution protocol. The Court also declared the inmates’ constitutional challenge to Washington’s three-drug lethal injection protocol as moot now that the state is using just one lethal injection drug, sodium thiopental. Brown, Stenson and Gentry argued in the trial court that that the current one-drug protocol would not inflict pain, and would therefore would be constitutional.

Justice Debra L. Stephens wrote:

“The legislature properly delegated authority to the Department to develop and implement the death penalty protocol. And we decline to issue a declaratory judgment invalidating the Department's use of the substances involved in lethal injection on the basis of state and federal controlled substances acts. As a result of the Department's adoption of a one-drug lethal injection protocol instead of three-drug protocol on March 8, 2010, the Appellants' constitutional challenge to the protocol is moot. Accordingly, though this lawsuit is timely brought, we affirm the trial court's dismissal of the Appellants' nonconstitutional claims and dismiss their constitutional claims as moot.”

The court also lifted the stay of execution it had granted to Brown. Brown, 52, was convicted in December 1993 of aggravated first-degree murder in the May 24, 1991, death of Holly Washa. Brown abducted Washa, 22, as she was leaving a hotel near the SeaTac airport then raped, strangled and stabbed her.

Under state law, the date of execution automatically resets for 30 judicial days. Brown’s new execution date is set for Sept. 10, 2010. He could try to take the case to the U.S. Supreme Court, but that would not automatically stop his execution. Pursuant to state law, 14 days before his execution date Brown will be given the option to die by hanging or lethal injection. If he does not make an election, the means of execution will be lethal injection.

Gentry, who killed a 12-year-old girl in Kitsap County, and Stenson, who shot his wife and his business partner in Clallam County, were also part of the lawsuit. But their executions were stayed by court orders in unrelated cases, and the justices noted they were “not in a position to act on those orders.”


McKenna and Samson spoke about the case with reporters this morning. Their comments can be seen and heard here.

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Contact: Kristin Alexander, Media Relations Manager, (206) 464-6432,




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