COLUMN LEFT : A Penalty That Demands Our Patience : In capital cases, wrong decisions can’t ever be righted.

On April 20, the lawyers representing Robert Alton Harris faced one of the most formidable tasks an attorney can expect in a career: saving a client’s life. As the hours sped by and the State of California watched, a final effort was made by these attorneys to raise important constitutional issues on behalf of a man scheduled to die that night.

Gov. Pete Wilson said that consideration of such legal issues in the final days and hours was the work of “manipulative lawyers and indulgent judges.” In truth, however, it was the last chance for the attorneys and judges to make sure that all of the evidence was examined before making a judgment that could not be reversed. In any other type of case, attorneys can spend the next days, weeks and years reviewing the legal issues that might change the fate of a client. But with capital punishment, the door closes, not only on the person to be executed but on the legal system’s opportunity to right a wrong or ensure that an inappropriate execution is not taking place.

Recently, California was witness to an extraordinary event. Clarence Chance and Benny Powell, two men convicted in 1975 of murdering a police officer, were released from jail. They had been convicted by a jury that was convinced of their guilt beyond a reasonable doubt. The jury had no way of knowing that critical evidence had been withheld from them by police officers. As a result, the two men spent the next 17 years in prison, pleading their innocence. If the crime for which Chance and Powell were convicted had occurred in a year when California’s death penalty was in effect, they, too, might have died in the gas chamber.

The Chance and Powell case is a classic example of why ample time must always be given to the consideration of meritorious legal claims.

In the case of Robert Alton Harris, there was tremendous popular pressure on judges and politicians to carry out this execution. However, judges are required to do their jobs despite the pressure of public opinion, and lawyers must be zealous advocates for their clients.

In Harris’ case, 10 judges of the 9th Circuit Court of Appeals (including appointees of Presidents Reagan and Bush) voted to reinstate a district court’s stay of Harris’ execution so that all 28 of their colleagues could be polled for their views on the class action challenging the constitutionality of execution by lethal gas.

This followed an extraordinary ruling by Judges Melvin Brunetti and Arthur L. Alarcon, whose antipathy to Harris’ earlier appeals is a matter of public record. In a fit of pique, they had vacated the stay, apparently concluding that Harris’ immediate death was more important than the serious 8th Amendment questions raised by the use of lethal gas.

The significance of this issue--whether lethal gas is cruel and unusual punishment--is beyond question. Indeed, Alarcon and Brunetti withdrew their own extraordinary order some 36 hours after Harris was executed. This action paved the way to resume consideration of this lawsuit on behalf of California’s 328 remaining Death Row inmates. It is clear that these appeals court judges were determined not to let the merits of the lethal gas issue stand in the way of a headlong rush to resume state killing.

The rush continued at the U.S. Supreme Court, with its unprecedented order that “No further stays of . . . execution shall be entered by the federal courts except upon order of this court.” What made this judicial temper tantrum unforgivable is that it directly caused a fellow human being to die without the opportunity to have his claims heard on their merits.

We Americans can take justifiable pride in our judicial system. But the ability of that system to deal fairly with all claims raised by a person sentenced to death is likewise something to be proud of and not to condemn. One of the most troubling aspects of Harris’ case was that no court or jury ever considered the overwhelming evidence that he was condemned in utero by the irreparable, lifelong injuries of fetal alcohol syndrome--a condition that greatly limited his mental capacity in vital and relevant ways that Wilson brushed aside in his disingenuous decision to deny clemency.

Wilson is right to say that America “has taught the free world the meaning of due process.” Perhaps the time will soon come when we will heed our own teachings.