COLUMN RIGHT : Cruel, Unusual Last-Ditch Acts in Harris Case : Even Court of Appeals flouted the law and higher authority.

This week we saw the American judicial system at its worst. The last-minute round of appeals and stays was an absolute disgrace. Robert Alton Harris’ lawyers filed claims at the eleventh hour that had no business being filed that late, if indeed they had any business being filed at all. Even worse, the U.S. 9th Circuit Court of Appeals spit in the face of both the law and higher authority until the Supreme Court ordered it to stop.

One of the claims filed on behalf of Harris states that his brother Danny may have fired one of the shots. The simple, common-sense answer to this claim is “so what?” Harris was still guilty of murder. He still fired the bulk of the shots. He was still the leader of the crime. On top of that, there is no apparent reason for this claim not to have been made much earlier. Danny Harris has been available to the defense for years. He signed another declaration for the defense two years ago, in one of his brother’s other numerous appeals. He had long since served his sentence for his part in the crimes and had nothing to fear from law enforcement.

To prevent these kinds of last-minute claims, the Supreme Court has laid down two eminently sensible requirements. There has to be a good reason for not making the claim earlier, and the claim has to be about something that actually made a difference. The last-minute filing of the claim regarding Danny Harris blatantly violated both requirements. The federal district judge in San Diego quite properly rejected it. The 9th Circuit’s action in granting the stay flew in the face of the law. The Supreme Court properly overturned it.

The claim that the gas chamber constitutes cruel and unusual punishment was far worse. The law making lethal gas the method of execution was passed in 1941. The law under which Harris was sentenced was passed in 1977. Harris was sentenced in 1979. Why did his lawyers wait 13 years to make this claim? It looks like intentional sandbagging.

The press reports that the ACLU filed 1,000 pages of documentation on the claim. Was all that paper produced in the last week? What is far more likely is that this claim was being held in reserve for the specific purpose of filing at the last minute to upset the date-setting mechanism. Filing a legal paper solely for the purpose of delay is unethical. There is no exception to ethics for capital cases.

Worst of all was the performance of the 9th Circuit on the gas-chamber claim. Even though the claim was an abuse of legal process beyond a shadow of a doubt, the 9th Circuit stayed a long-overdue execution to consider it. Then, after being properly reversed by the Supreme Court, it had the gall to issue another stay in defiance of binding precedent established only hours earlier in the very same case.

On Wednesday morning the usual suspects were on television questioning the Supreme Court’s authority to prohibit any more stays except by the high court itself. What utter nonsense. The Supreme Court not only has the power to reign in lower courts that have gone berserk, it has the duty to do so. The order was unprecedented, but the circumstances that made it necessary were unprecedented. Never before in the history of the federal judiciary has a court so clearly and blatantly violated the law.

Ironically, the only person on Harris’ side who conducted himself with dignity was Harris himself. After 14 years, he had apparently accepted that he would finally have to pay the full price for the crime he chose to commit. Harris was strapped in the chair and ready to go when Judge Harry Pregerson’s outrageous order robbed him of his mental preparation. If anyone inflicted cruel punishment in this case, it was Judge Pregerson.

Will the same circus happen again on the next execution? It is quite possible. Congressional Democrats, led by Sen. Joseph R. Biden (D-Del.) and Rep. Don Edwards (D-San Jose), want to overturn the Supreme Court’s reforms that made the Harris execution possible. Their proposed “limit” on repeated appeals has loopholes so large one could drive trucks through them. In the hands of the 9th Circuit, as we have just seen, any loophole at all will be used not only to the legal maximum, but well beyond it.