Appeal Judges Maneuvered Amid Chaos

As Robert Alton Harris waited to die, an extraordinary legal battle was taking place through the night via fax machine and telephone, pitting a faction of largely liberal judges scattered across the Western states against members of the nation’s highest court.

The condemned killer’s final appeal for mercy ultimately provoked a harsh response from the justices of the U.S. Supreme Court that is likely to speed hundreds of other death penalty cases in California.

For more than six hours, behind-the-scenes maneuvering by a group of stubborn judges delayed Harris’ execution as they sought to give every conceivable issue in his case a fair hearing.

So voluminous was the flurry of after-hour communications that chaos reigned through the night as the computer system of the far-flung U.S. 9th Circuit Court of Appeals got hopelessly bogged down and the judges argued over long distance phone lines about Harris’ fate.

The appeals court issued four stays of execution, one after another, in an attempt to block California’s first execution in 25 years. Finally, after repeatedly overturning the stays, the Supreme Court issued an unprecedented order prohibiting any federal judge from granting Harris another stay.

“No further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this court,” the court said in its final order at 5:45 a.m.

Harris was executed 36 minutes later in the San Quentin gas chamber.

“There was never much question that the 9th Circuit judges would lose and that Harris would eventually be executed,” said one dejected 9th Circuit judge. But he added: “Everybody does what they have to do. . . .You feel, just maybe, there will be enough people on the high court who will see it your way.”

The appeals court, once known for its liberal stands, now has a slight majority of conservatives. Nevertheless, the 9th Circuit and the Supreme Court had battled in the past over the pace of capital cases.

Harris was no stranger to the high court justices. On five previous occasions, they had denied his appeals, most recently on March 2.

Despite scores of Supreme Court rulings since 1976 that have upheld the death penalty and restricted the grounds for appeal, the judges of the 9th Circuit Court had successfully blocked executions throughout the West until an execution earlier this month in Arizona.

As recently as January, the justices issued a sharp rebuke to the appellate court for allowing a 2 1/2-year delay in acting on a pending death penalty case from the state of Washington.

But none of the earlier skirmishes matches the clash that began Monday evening.

At 6:30, the 9th Circuit issued its first order staying Harris’ execution for 10 days, a move spearheaded by liberal Circuit Judge Betty Binns Fletcher of Seattle, court sources said. The order contended that a sufficient hearing had not been granted on new evidence that Harris’ brother and partner in crime, Daniel, had shot one of the two victims Robert Harris was convicted of murdering.

Some judges thought the prospect of that stay being upheld by the Supreme Court was remote. “That was a weak case--newly discovered evidence after 14 years?” said one judge. “It’s a sitting duck. This was just the kind of thing the Supreme Court has been talking about.”

By 10:20 p.m., in a highly unusual move, 10 judges joined together to order a second stay to buy time to consider whether death in the gas chamber constitutes cruel and unusual punishment. Among them were Harry Pregerson, William A. Norris, Dorothy W. Nelson and Stephen Reinhardt all of Los Angeles, Fletcher, and John T. Noonan of San Francisco, who halted Harris’ execution in 1990 three days before it was scheduled.

“There’s no way as judges that we can not take seriously a new claim raised late in the day if it appears on its face to have merit,” one judge explained.

About 11 p.m. California time, and before the high court had acted on either matter, Judge Norris issued a third stay, also on the cruel and unusual punishment issue, according to court sources.

During the evening, the circuit court had polled its members on the two issues to see if there was sufficient support to convene an en banc hearing of 11 judges, but communications quickly broke down. Some judges said they were confused about which issue they were voting on, and at least one said he was never even contacted even though he was at home.

As each stay was issued it was immediately appealed by state Atty. Gen. Dan Lungren to the Supreme Court, where clerks were on hand to receive the appeals and relay them to the nine justices.

At 11:20 p.m California time, 40 minutes before the scheduled execution, the high court overturned the first stay, rejecting the contention that the allegedly new evidence deserved a hearing, and ordered the execution to proceed.

At 3 a.m., the high court rejected the other two stays by a 7-2 margin, clearing the way for the execution.

“This claim could have been brought more than a decade ago. There is no good reason for this abusive delay,” the court said in vacating the stays granted by the full 9th Circuit.

Justices John Paul Stevens and Harry A. Blackmun, the two Midwestern Republicans who have become by default the most liberal members of the court, filed a five-page dissent. “In light of all we know today about the extreme and unnecessary pains inflicted by execution by cyanide gas, and in light of the availability of more humane and less violent methods of execution, Harris’ claim has merit,” they wrote.

Within an hour of the Supreme Court’s action, Harris was taken to the gas chamber, strapped into the chair and was moments from his death when Circuit Judge Pregerson called the prison to say he had ordered one more stay of the execution.

At first, Harris remained in the gas chamber as Lungren scrambled to learn whether the stay was genuine or, as he put it, “a crank call.”

Pregerson’s stay, appealed to the high court, was quickly overturned--and brought the brief court order prohibiting any more stays.

Later, Pregerson said that he issued the stay because the issue of cruel and unusual punishment had never been fully aired in any court.

“Though the U.S. Supreme Court has seen it otherwise, I stand by my ruling,” Pregerson said. “I am satisfied that it was correct under the law.”

While the judges of the 9th Circuit generally shy away from publicity, some talked privately Tuesday of the confusion among the judges and their concern about the bad feeling the on-again off-again execution may have left among the public.

“Capital punishment cases test the ability of the judiciary to function fairly,” one liberal judge said Tuesday, “and yesterday the courts flunked the test. We just did not handle this case in a fair, orderly or judicious manner.”

Several judges said they were unaware that stays had been ordered because the internal court communication system had been backed up by more than an hour. Others said they went to bed thinking the execution had been stayed, only to wake up in the morning and learn from television that he had been put to death.

“I walked in this morning quite surprised that the execution took place without our being informed,” one said.

A conservative member of the court, however, questioned the sincerity of Harris’ lawyers in raising the issue of cruel and unusual punishment at the last minute. “I thought that was a gross miscalculation in a lot of ways. If you are really worried this is going to be painful, you don’t bring it the Friday before the execution.” All in all, however, the controversy is likely to spark considerable self-examination by the members of the 9th Circuit.

“I can’t say I’m proud of our performance, but this is something new to the judges on this court,” one judge said. “I can’t remember anything before quite like it. Hopefully we’ll learn from the experience and the next time the process will appear more understandable to the public.”

Times staff writers David Savage in Washington and Philip Hager in San Francisco contributed to this story.

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