Legal Chaos Over Harris Reveals a Clash of Views : Execution: Flurry of last-minute rulings reflects the struggle over resumption of death penalty in California.

Underlying the legal chaos of Robert Alton Harris’ final hours was a fierce battle between two strongly held judicial viewpoints: one that seeks to speed the pace of executions, the other insistent that every last appeal be considered.

As new details emerged Wednesday of the last-minute maneuvering among some of the most powerful judges in the country, legal experts and judges agreed that the struggle demonstrated the intensity of feeling among jurists over the landmark resumption of executions in California.

“People who believed in the Constitution did what they had to do to preserve it,” said one anti-death penalty judge on the U.S. 9th Circuit Court of Appeals. “People who want to keep executions going without delay did what they have to do.”

The complex legal process that kept Harris alive for more than a decade became, in the end, a form of torture. After an initial delay of nearly four hours, Harris was strapped into the gas chamber and was moments from death when a final stay postponed the execution for two more hours.

Harris felt it was an act of God when he was removed from the gas chamber and returned to his cell, said Michael Laurence, Harris’ lead attorney, at a Wednesday news conference, his first public comments since the execution. The on-again, off-again nature of the execution was the result of three desperate appeals by Harris’ lawyers. They managed to win four separate stays of execution from judges of the 9th Circuit in the final 24 hours of Harris’ life, and all were lifted in quick succession by the U.S. Supreme Court.

Not widely known until Wednesday was that the California Supreme Court also weighed in and rejected a final late-night appeal for mercy on a 6-1 vote. The flurry of late legal maneuvers included a a Marin County Superior Court judge’s visit with Harris and a federal judge’s midnight order that the execution, if it occurred, be videotaped as evidence for future court proceedings. “The whole thing was a script. It was co-written by Kafka and the Marx Brothers,” Stanford University law professor Robert Weisberg said. “In a way, the system worked right. But all the ceremonies and procedures were done in such a bizarre way and at such lightning-fast speed that it made you wonder exactly what our legal system amounts to.”

To some of the jurists involved, the four last-minute stays issued by members of the U.S. 9th Circuit Court of Appeals were simply an effort by liberal judges to derail the resumption of the death penalty in California.

“This was clearly a renegade court at work and the Supreme Court had to pull rank on it and order that justice be done,” said Michael D. Rushford, president of the pro-prosecution Criminal Justice Legal Foundation.

But to others the series of stays were appropriate legal steps designed to permit the court to consider any remaining issues before the state took the irrevocable step of putting a man to death.

“Careful evaluation should be made in every case,” said one member of the 9th Circuit who asked not to be identified. “We judges are supposed to stand up to public opinion when necessary. It’s not easy, but that’s why we’re appointed for life.”

In the end, however, no one was happy with the way the process worked. The maneuvering focused on a crucial 24-hour period. If opponents of the execution could delay Harris’s death until midnight Tuesday, the state’s warrant to execute him would expire and his execution would be postponed for at least 40 days.

The final chapter of the Harris saga began on Good Friday, when the ACLU filed a civil rights suit before U.S. District Judge Marilyn Hall Patel, a former board member of the organization. In an extraordinary hearing Saturday night, Patel issued a temporary restraining order blocking the execution for 10 days so she could consider the merits of the suit.

She said the order was justified because there were serious questions as to whether lethal gas was cruel and unusual punishment and that, in weighing the legal “balance of hardships,” the state would suffer less harm from the delay than Harris would if the execution went forward.

State prosecutors immediately asked a three-judge panel of the U.S. 9th Circuit Court of Appeals to overturn Patel’s order. Just before midnight Sunday, the panel did so by a vote of 2 to 1.

In his opinion, Judge Arthur L. Alarcon, joined by Judge Melvin Brunetti, said Harris should have raised the issue in state court and had ample opportunity to do so in his six previous state appeals. Federal courts should not intervene in state court matters, Alarcon said, and Patel should have abstained from hearing the suit.

The third panel member, Judge John T. Noonan, issued a dissent hours later defending Patel’s authority to issue a temporary restraining order. Such orders should be overturned only when “clearly erroneous,” he said, adding that there was a serious constitutional issue to be heard.

Moreover, the decision to overturn a temporary restraining order violated the 9th Circuit’s own precedents that discourage tampering with another judge’s restraining orders. Noonan, who granted Harris a stay in 1990 that halted his execution three days before it was scheduled, said in his dissent that the prosecutor’s urgency in executing Harris was understandable. “Such urgency, however, cannot be the priority of this court, whose task is to enforce the Constitution of the United States,” he said.

The judge also said the panel had overturned Patel’s order in haste and had made an unprecedented extension of the doctrine requiring federal courts to defer to state courts in criminal proceedings.

Some judges were upset that the panel’s majority opinion was not released until late Monday afternoon, delaying any action by other appellate judges until the eve of the scheduled execution. “That slowed everything up badly,” said a liberal 9th Circuit judge who is regarded as opposing the penalty.

On Monday evening, the first stay of execution, spearheaded by 9th Circuit Judge Betty Binns Fletcher, was issued on a separate claim of new evidence in the case, but it was rejected before midnight by an increasingly impatient U.S. Supreme Court.

However, according to one member of the circuit, that stay bought time for the court to poll its members on the issue of new evidence and the constitutionality of lethal gas.

Later that evening, 10 of the judges joined in issuing a stay on the lethal gas issue. Just before midnight, Circuit Judge William A. Norris issued another stay of execution on the same matter.

In the middle of the night, Washington time, the Supreme Court lifted the second and third stays and Harris was strapped into the gas chamber for the first time just before 4 a.m. But then a fourth stay, by Circuit Judge Harry Pregerson, was issued on the grounds that Harris should have had an opportunity to pursue a suit he filed late Monday night in the state Supreme Court contending that the use of gas is unconstitutional.

Just before 6 a.m., an exasperated Supreme Court lifted the fourth stay, bluntly ordering the circuit judges to issue no more stays. Two court members, Justices John Paul Stevens and Harry A. Blackmun, issue a dissent, saying the use of gas reflects “unnecessary cruelty” and should be reviewed in the courts.

Shortly after 6 a.m., the California Supreme Court again entered the fray, and rejected Harris’ latest state suit, saying that it had no merit and had come far too late. Justice Stanley Mosk filed a dissent, saying Harris was entitled to an evidentiary hearing on his challenge to the use of gas. While the state high court has upheld the death penalty, Mosk said, it had never ruled on the use of gas to carry out a death sentence, Mosk said.

By then, Harris’ time had run out. The cyanide gas began flooding the gas chamber at 6:07 a.m. by the warden’s watch. Harris was pronounced dead 14 minutes later.

News of the gripping pre-execution drama echoed quickly around the world, and many newspapers condemned it in strong language, such as “grisly” and sadistic.”

Le Monde, France’s most respected newspaper, carried a front-page editorial Wednesday describing it as a “sinister spectacle.” In London, The Times called it “psychological torture” and the Evening Standard ran a harshly critical editorial headlined “Auschwitz in California.”

In California, however, criticism of the 9th Circuit judges began to mount.

Gov. Pete Wilson criticized the panel for masterminding a “macabre legal circus.”

“The behavior of the individual judges of the 9th Circuit has (brought) meaning to the phrase ‘contempt of court,’ ” the governor said. The court has “given people reason to believe that the criminal justice system has little to do with justice and everything to do with legal gamesmanship.”

UC Berkeley law professor Phillip Johnson, a leading critic of the state Supreme Court under Chief Justice Rose Elizabeth Bird, agreed.

“They really seemed out of control,” he said. “I don’t know what the motives of the 9th Circuit judges were, but I think it was clear they were allowing themselves to be manipulated by granting stays that couldn’t be tolerated.”

“When it became apparent that the judges were going off in every direction and indulging their personal feelings, the Supreme Court had to step in. At some point, you have to resolve things and go on,” Johnson said.

Others, however, said the 9th Circuit judges were making a last stand over issues of morality and the law that they believe are paramount.

“I don’t think there’s any question that was a kind of civil disobedience by judges,” said Weisberg, the Stanford professor.

Times staff writers Dan Morain and Jenifer Warren in San Francisco and Henry Weinstein in Los Angeles contributed to this story.