Appeal Process Stands Between Killer, Execution : Death penalty: Dalton Prejean is scheduled to go to the electric chair Friday. His case is at the center of a national debate.

This may be the last time around for Dalton Prejean.

Ten times before he has been given a reprieve from execution. His 11th appointment with the electric chair is Friday morning in the isolated Louisiana prison of Angola, located on a bend in the Mississippi River to the north of the state capital of Baton Rouge.

Prejean’s latest appeal, now in the hands of the U.S. Supreme Court, is at the vortex of the nation’s death penalty debate.

Death penalty foes point out that the state pardon board has recommended on two occasions that the mildly retarded Prejean be sentenced instead to life imprisonment without possibility of parole, only to have the recommendations be rejected by the governor.

But prosecutors, the family of Prejean’s victim and others argue that the execution has been postponed long enough. U.S. Supreme Court Chief Justice William H. Rehnquist sounded a similar note Tuesday, saying in general that the lag time between sentencing and execution that results from the death penalty appeals process is causing a “serious malfunction in our legal system.”

The story of Dalton Prejean is that of a young killer who has now been on Louisiana’s Death Row for 12 years, longer than any person in the state’s history. The first time he killed was when he was 14. He shot a cabdriver during a bungled robbery attempt. Next came 2 1/2 years of reform school before he was released.

Finally came a day of drinking beer, vodka and wine, of smoking marijuana and angel dust. A state trooper named Donald Cleveland pulled Prejean’s car over for a broken tail light.

In Prejean’s version, the trooper was abusing his brother, holding his face against the hood of the car. But he does not deny shooting Cleveland twice in the face with a .38-caliber pistol. At the time, Prejean was 17.

He was convicted of first degree murder and sentenced to die in 1978. The appeals process has kept him alive since then.

“I was 35 and Dalton was 17 when I took the case,” said one of Prejean’s lawyers, Tommy Guilbeau of Lafayette. “Now I’m 48 and Dalton’s 30. There’s been a lot of water under the bridge.”

While Guilbeau has remained Prejean’s lawyer throughout, he has been joined over the years by other attorneys, including those from the prestigious New York firm of Debevoise & Plimpton.

In the intervening years, the lawyers have attempted to challenge the death sentence on a number of issues. They have argued, among other things, that he was a teen-ager at the time of the murder, that he was mentally deficient, that he was convicted by an all-white jury.

The first two arguments fell by the wayside when the Supreme Court ruled last June that both teen-agers and the retarded could be put to death. A 1986 court ruling said that prosecutors could not use their peremptory challenges to exclude jurors on the basis of race. But the decision was not made retroactive.

The argument posed to the court this time around is that Prejean was improperly denied competent psychiatric assistance at his original trial and is therefore entitled to an evidentiary hearing. That is the same argument being used in a celebrated California case of convicted killer Robert Alton Harris, who murdered two San Diego teen-age boys in 1978 and could be the first person to die in a California gas chamber since 1967.

Those kinds of motions are what has Rehnquist on a campaign to redo the system.

“The system cries out for reform,” he said in his speech at the American Law Institute in Washington. “Fair-minded people, whether they personally oppose or favor the death penalty, should have no difficulty in agreeing that the present system is badly in need of reform.”

Meanwhile, Andrea Robinson, another of Prejean’s lawyers, said she is still hoping for a stay of execution from Gov. Buddy Roemer.

“At the very least, we’re hoping the governor will at least meet with Dalton or at least speak to him,” she said.

But the governor, a hard-liner on these matters, has said repeatedly that the execution should go through, despite the recommendation of the pardon board. And Cleveland’s wife and children want Prejean to die in the electric chair, the sooner the better.

Still, the work goes on to buy more time for Prejean, work that will probably continue until the early hours of Friday, when the convicted murderer is to die.

“It’s a special case,” said John Hall, a third Prejean lawyer. “It’s not over yet.”