NEWS ANALYSIS : 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.

After he was ushered from the sealed gas chamber on a temporary reprieve, Robert Alton Harris told his attorney it was “an act of God.”

In fact it was the most dramatic event in a remarkable string of legal maneuvers that became so rushed and complex that new details--including a dawn vote of the California Supreme Court to allow his execution--only came to light Wednesday.

As criticism of the ordeal mounted Wednesday, legal experts and judges agreed that what occurred was a fierce battle between two strongly held judicial viewpoints: one that sought to speed the pace of executions, the other insistent that every last appeal be considered before California resumed capital punishment.

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

The on-again, off-again nature of the execution was triggered by 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--all of which were lifted by the U.S. Supreme Court before the execution at dawn Tuesday.

The flurry of late legal maneuvers included 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 . . . (could have been) 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 judges and legal experts, the four last-minute stays issued by members of the U.S. 9th Circuit Court of Appeals were simply an effort by liberal judges--many of them opposed to executions--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. Among the critics was Gov. Pete Wilson, who criticized the panel for leading 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.”

The maneuvering focused on a crucial 24-hour period. If opponents of the execution could delay Harris’ death until midnight Tuesday, the state’s warrant to execute would expire and his death would be postponed at least 40 days.

The final chapter of the Harris saga began on Good Friday, when the American Civil Liberties Union filed a civil rights suit before U.S. District Judge Marilyn Hall Patel, a former ACLU board member.

In an extraordinary Saturday night hearing, Patel issued a temporary restraining order blocking the execution for 10 days so she could consider the merits of the suit.

She said that the order was justified because of serious questions as to whether lethal gas was cruel and unusual punishment and that in weighing the legal “balance of hardships,” she determined that 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, sharply criticized Harris for trying to circumvent the established justice system. Harris should have raised the gas issue in state court and had ample opportunity to do so in his six previous state appeals, Alarcon wrote.

The third panel member, Judge John T. Noonan, issued a dissent hours later defending the 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.

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.

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 death penalty.

On Monday evening, 9th Circuit Judge Betty Binns Fletcher, with the backing of other judges, issued the first stay of execution on a separate claim of new evidence in the case. That first stay 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 so that the court could consider the lethal gas issue before Harris was executed. However, questions quickly arose within the court over whether a stay signed by more than one judge was procedurally correct, sources said.

Just before midnight, Circuit Judge William A. Norris, one of the 10, issued a parallel stay of execution, the evening’s third.

Three hours later, the Supreme Court lifted both stays on the lethal gas issue, criticizing what they called “Harris’ obvious attempt at manipulation.”

The high court said Harris’ civil rights suit on the gas issue was an effort to evade previous rulings by the justices sharply limiting the number of appeals that inmates can bring after their death sentences already have been upheld.

“This claim could have been brought more than a decade ago,” the court said. “There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process.”

Two court members, Justices John Paul Stevens and Harry A. Blackmun, issued a dissent, saying the use of gas reflects unnecessary cruelty and should be reviewed in the courts.

Harris was strapped into the gas chamber for the first time just before 4 a.m. Then a fourth stay, by Circuit Judge Harry Pregerson, was issued on the grounds that Harris should have had an opportunity to pursue another suit about the legality of gas his lawyers filed a few hours earlier in the state Supreme Court.

Just before 6 a.m., an exasperated U.S. Supreme Court lifted Pregerson’s stay, bluntly ordering the 9th Circuit judges to issue no more stays.

“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,” said UC Berkeley law professor Phillip Johnson. “At some point, you have to resolve things and go on.”

But one liberal circuit court judge who asked not to be identified said the court’s order not to file any more stays “made it absolutely clear that the question of constitutionality is no longer of primary importance, even when the state’s killing someone. This is a concerted attack on the ability of people to raise constitutional issues.”

Some legal experts suggested the 9th Circuit justices were engaging in a form of “civil disobedience” in filing their stays even though they had little chance of success.

“So why bother doing it?” said Weisberg, the Stanford law professor. “Well, why do people dissent? They want their position recorded for symbolic reasons. They do it for the moral elevation of others. They hope that maybe some future court will follow their point of view.”

Shortly after 6 a.m., the California Supreme Court again entered the fray, and rejected Harris’ final lawsuit by a vote of 6 to 1, saying he had “waited until the last minute to raise a claim regarding the constitutionality of the use of lethal gas that could have been brought more than a decade ago. The claim comes too late.”

Justice Stanley Mosk dissented, arguing that Harris was entitled to a hearing on his challenge to the use of cyanide gas.

Harris was sitting in the gas chamber when the Supreme Court rejected his suit, along with an accompanying request for another stay. The office of Atty. Gen. Dan Lungren said Harris would have been executed even if the court had not acted on the stay request.

And so Harris’ time had run out. The cyanide gas began flooding the gas chamber at 6:10 a.m. Harris was pronounced dead 11 minutes later.

Execution witnesses said that prison officials appeared to be in a rush to execute Harris. On Wednesday, his attorney criticized the state for rushing the execution before another stay could be imposed. “The Department of Corrections’ actions were despicable,” said Laurence, the ACLU attorney representing Harris.

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

GOVERNOR’S REACTION: Wilson criticizes “macabre circus” of execution. A36