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Originally published September 9, 2010 at 10:14 AM | Page modified September 10, 2010 at 1:13 AM

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Appellate court rejects Brown's request to halt execution

The 9th Circuit Court of Appeals has denied condemned killer Cal Coburn Brown's last-minute request for an emergency stay of execution.

Seattle Times staff reporters

Timeline of Cal Coburn case

May 23 and 24, 1991: Cal Coburn Brown kidnaps Holly Washa, 21, of Burien, near Seattle-Tacoma International Airport. He tortures and repeatedly rapes her before killing her by slashing her throat.

May 27: Brown is arrested in California after he attacks a woman in Palm Springs. He surprises detectives by confessing to Washa's slaying during questioning.

June 11: Brown is charged with aggravated murder in King County Superior Court.

Dec. 10, 1993: Jury finds Brown guilty of murder.

Jan. 28, 1994: Brown is sentenced to death.

June 29, 1997: The state Supreme Court affirms Brown's conviction and death sentence.

Dec. 8, 2005: The 9th Circuit Court of Appeals reverses the conviction and death sentence because of an alleged error in jury selection.

June 1, 2007: The U.S. Supreme Court reverses the appellate court's decision, finding that Brown had waived any challenge to jury selection by not objecting when a juror was excused for cause.

June 27, 2008: The 9th Circuit Court of Appeals affirms the conviction and death sentence after the case is returned from U.S. Supreme Court.

March 12, 2009: Less than eight hours before Brown's scheduled execution, the state Supreme Court issues a stay based on a last-minute appeal filed by Brown's attorneys challenging lethal injection.

July 29, 2010: The state Supreme Court rejects the challenge to the lethal-injection procedure and lifts the stay on Brown's execution.

Sept. 10: Brown is scheduled to be executed by lethal injection at the Washington State Penitentiary in Walla Walla.

Seattle Times staff and archives

Who's still on death row?

The following inmates remain on Washington's death row:

Jonathan L. Gentry, convicted in 1991 in Kitsap County of fatally bludgeoning 12-year-old Cassie Holden near Bremerton in 1981.

Darold Stenson, sentenced in Clallam County in 1994 for shooting his wife, Denise, 28, in an effort to collect $800,000 in insurance, and then killing Frank Hoerner, 33, to make it look like a love-triangle murder-suicide.

Clark Elmore, sentenced in Whatcom County in 1996 for raping and killing 14-year-old Kristy Ohnstad in 1995.

Dwayne Woods, convicted in 1997 in Spokane County of two counts of aggravated first-degree murder for killing Telisha Shaver, 22, and Jade Moore, 18.

Cecil Emile Davis, convicted in 1998 in Pierce County of killing Yoshiko Couch, 65, in 1997 after robbing and raping her and burglarizing her home.

Dayva Cross, convicted in 2001 in King County for the stabbing deaths of his wife, Anouchka Baldwin, 37, and stepdaughters Amanda Baldwin, 15, and Salome Holle, 18, near Snoqualmie in 1999.

Robert Lee Yates Jr., convicted in 2002 in Pierce County of killing Melinda Mercer, 24, in 1997 and Connie LaFontaine Ellis, 35, in 1998.

Conner Schierman, convicted April 12, 2010, of killing Kirkland neighbor Olga Milkin, 28, her sons, Justin, 5, and Andrew, 3; and Milkin's sister Lyubov Botvina, 24, in July 2006.

Sources: Seattle Times staff and Washington state Attorney General's Office

WALLA WALLA — The 9th Circuit Court of Appeals has denied condemned killer Cal Coburn Brown's last-minute request for an emergency stay of execution, according to the state Attorney General's Office.

Brown had asked the appellate court to overturn an earlier ruling Thursday by Seattle-based U.S. District Judge John Coughenour, who rejected Brown's claim that without medication he would be incompetent to be executed.

Brown maintained that he should not be executed because if he was taken off his medication for bipolar disorder it is likely he would be unable to understand that he is about to die.

In denying Brown's petition for an emergency stay, Coughenour said a logical reading of U.S. Supreme Court precedent "mandates no such thing."

Brown has medicated his mental illness "ever since he was incarcerated, presumably to improve his own quality of life," he wrote in a six-page order. "He has lived for the past two decades under the effects of medication, and now argues that he would be incompetent except for the effects of the medication."

Coughenour said he would not issue a stay based on speculation that Brown could become incompetent at some later date.

Earlier Thursday, the state Supreme Court had rejected a similar request for a stay.

"Given that the Washington Supreme Court has never decided what the competence standards should be, it's very concerning they didn't pause" the execution, said Jeff Ellis, one of Brown's lawyers. "It's nothing we can fix later."

Belinda Stewart, spokeswoman for the state Department of Corrections, said Brown had spoken with his family and attorneys by phone Thursday. Brown also spent an extended period in the prison yard, Stewart said.

Brown requested a last meal of pizza, apple pie, coffee and milk.

"His mood has been characterized by the fact he knows what's going to happen tonight," she told reporters outside the Washington State Penitentiary. "He's resigned to that."

Brown remained in his solitary cell on Thursday afternoon. He will be moved to a different cell closer to the execution chamber later in the evening, Stewart said.

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Brown, 52, is scheduled to be executed by lethal injection for the May 1991 rape and murder of Holly Washa, 21, in SeaTac.

Speaking outside the penitentiary on Thursday, King County Prosecutor Dan Satterberg told reporters that Washa should not be forgotten amid the attention paid to the scheduled execution.

"So many of the details surround the inmate, the offender," he said. "We want to remember Holly Washa in her prime. She was a young woman in her 20s when she was kidnapped and raped by Cal Brown. He is here tonight because he has earned his trip to death row."

Four members of Washa's family have flown to Walla Walla from Nebraska to witness the execution. Satterberg said the execution will mark the end of their commitment to follow the legal process and see Holly's killer punished.

"In their eyes there is no question that Cal Brown deserves to die for what he did," said Satterberg, who will also witness the execution.

Washa's family plans to speak to the media after the execution.

Brown's appeal before the U.S. Supreme Court had alleged the U.S. District Court and the 9th U.S Ninth Circuit Court of Appeals erred in denying his motion for a stay in his challenge to Washington state's lethal-injection protocols.

On Wednesday, Gov. Chris 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."

Outside the Washington State Penitentiary, state Department of Corrections officers blocked each entrance and lined the cyclone fence along the perimeter of the facility on Thursday morning. Officers from across the state were called in to beef up security in the hours leading up to the execution, said Maria Peterson, DOC spokeswoman.

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 would be the first inmate executed in the state by the single-drug method.

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.

Information from Times archives and The Associated Press is included in this report.

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

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