PROFILE / JUDGE HARRY PREGERSON : Choosing Between Law and His Conscience

Harry Pregerson may forever be known as the man who snatched a prisoner from the gas chamber.

The 68-year-old judge, the son of an immigrant postal worker, became part of the somber history of capital punishment when he issued a last-minute reprieve only minutes before double murderer Robert Alton Harris was scheduled to die late last month.

A shaken Harris was brought back and executed two hours later, after an irritated U.S. Supreme Court issued an unprecedented order saying there would be no further stays in the federal courts.

The resulting furor, whipped up by columnists writing on both sides of the political spectrum, has thrust the soft-spoken judge from Woodland Hills into the public eye in a way that hasn’t happened since his confirmation hearings to the U.S. 9th Circuit Court of Appeals 13 years ago. He made the front pages then when the Senate Judiciary Committee asked what he would do if he faced a choice between following the law or his conscience.

“My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn,” he said at the time. “If I had to follow my conscience or the law, I would follow my conscience.”

In his first interview since the execution, the man described by friends as an old-style compassionate liberal said he followed the law in the Harris case. Whether his decision conformed to the dictates of his conscience and his heart was beside the point.

“I made my decision, and I’m satisfied that it was right,” he said.

Pregerson issued his stay to give Harris’ attorneys time to argue before the California Supreme Court that an execution using lethal gas constituted cruel and unusual punishment. But the high court had earlier ruled that that argument should have been made earlier and quickly overturned the stay. “No further stays of Robert Alton Harris’ execution shall be entered by the federal courts except upon order of this court,” the justices ruled.

He said he did not want to be drawn into a dispute with the Supreme Court and quoted humorist Finley Peter Dunne, who said, “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

“I choose to follow the Constitution,” Pregerson said.

Exasperated, he asked: “Do I think our constitutional rights are being eroded away? Yes. Do I think someday we will regret it? Yes. Do I think the day will come when the pendulum swings the other way? Yes.”

The man in the middle of the public storm over capital punishment is hardly the firebrand one might expect. He has been married for 45 years to a woman who teaches microbiology at Pierce College. He likes to putter in his garden and tend his fruit trees. A mild-mannered intellectual, he prefers to reason out even the smallest issue rather than make a rash assumption.

“He looks at everything in great detail and takes everything perfectly seriously,” said a former law clerk. “He is the perfect judge.”

Pregerson is the son of Ukrainian Jews who emigrated to the United States around the turn of the century and settled in a small bungalow in East Los Angeles, where Jewish, Mexican, Russian, Asian, black, Slavic, Irish and Italian children all mixed together and got along.

“We used to have a League of Nations Day where everyone would show up in the costumes of the countries from which their parents came,” he said. “We would have a big parade around the football field.”

Abraham Pregerson stressed education, setting up a makeshift classroom in his garage where he tutored his two sons and a daughter for hours each night. Harry Pregerson knew he would be a lawyer some day. His father was an admirer of Clarence Darrow, the famed attorney who championed the cause of the little man.

“These legacies live on,” he said, “these concepts of helping working people to achieve a decent standard of living.”

Pregerson’s admirers say he carried those simple values into his legal work. If someone needed help, he took the case. Usually, they paid. If they could not, he reasoned, maybe they could refer other clients to him.

In 1965, he was appointed to the Los Angeles Municipal Court bench, moved up to the Superior Court the next year and in 1967 become a U.S. District Court judge in Los Angeles. He developed a reputation as a liberal jurist who didn’t limit his pursuit of justice to the courtroom.

“He’s like the embodiment of pure goodness,” said former law clerk Felicia Marcus, who is now president of the Board of Public Works in Los Angeles. She recounted an argument between two people who knew the judge over one of his decisions. “The only problem with Harry is he’s trying to do justice,” said one of the debaters.

Pregerson is more than a bench judge who rules on motions. “He’ll take people who are at each others’ throats and force them to talk to each other” to resolve problems, she said.

One example of that is the Hyperion case. The state and the federal Environmental Protection Agency filed suit against the city of Los Angeles in 1987 to reverse damage from sewage flows into Santa Monica Bay. Pregerson upheld the EPA and tried to craft a solution that would upgrade the waste treatment plant and stop the periodic spills of raw sewage into the bay.

“He locked everyone in the room for days,” Marcus said.

In the end, the city agreed to invest $100 million in its aging sewage treatment facilities and to start reusing waste water instead of dumping it into the bay.

“I retain a certain amount of benign control,” is the way Pregerson described his hands-on, lean-on efforts to resolve complex disputes.

Pregerson’s concern for the disenfranchised showed itself when in 1972 in response to a civil rights lawsuit he blocked construction of the Century Freeway from Norwalk to Los Angeles International Airport. As part of the settlement that allowed construction to go forward in 1981, Pregerson helped write an unusual agreement requiring many of the construction jobs to go to minorities and women.

When he saw there were not enough trained minorities and women to fill the jobs, he established a training program near the freeway site where men and women learn the basics of carpentry and iron work. Now, he is a frequent visitor to the site.

“I wish they would have had a program like this when I was young,” he said to a young woman applying to enter the program on a recent afternoon. “I could have been a carpenter.”

Maurice Kane, director of the Century Freeway Preapprenticeship Program, told the judge that some trainees were using money given to them for gas to buy food instead. “There’s no reason we can’t get you some Desert Storm food,” Pregerson said, visibly bothered, referring to packaged turkey and beef stew left over from the invasion of Iraq and now stored in federal warehouses. “There’s no reason they can’t have a good lunch.”

“He is a man of enormous compassion,” said John Phillips, an attorney for the plaintiffs in the Century Freeway case.

Pregerson sees himself more simply. “What I do is keep raising issues, prodding people to move, getting people together. If we succeed, we all succeed. If we fail, we all fail.”

He is known best off the bench for his work with the homeless. So far, he has helped establish two shelters, one in Westwood and another in Bell. They are two of only four shelters located on federal property. In each case, his dogged persistence, cajoling and arm-twisting overcame stumbling blocks and opposition.

The Westwood shelter, on a former park and ride site, includes 15 mobile homes. Lunch guests are often surprised to learn that a Pregerson invitation to lunch in West Los Angeles means eating in the shelter’s noisy dining hall.

Salvation Army workers greeted him enthusiastically this week at the Bell shelter, which is located on a former military base. “This man here is the next thing to the man upstairs,” said Daryl Ogden, administrator at the cavernous warehouse, which houses up to 300 men and women each night.

But shelter workers also have learned to expect his military-type inspections; he was wounded with the Marines on Okinawa in World War II. “Better get that fixed,” he said, poking into a shower with a leak. Often, he grabs a wrench and fixes the plumbing himself.

“When I first came in here I weighed 130 pounds,” said Mike Mason, a former client who now works at the shelter. “The judge walked by me and said, ‘Son, it’s going to be OK.’ That was the first time anybody acknowledged me.”

After learning the shelter was short on men’s clothes, Pregerson drove over to a warehouse operated by Shelter Partnership, which supplies donated goods to charities all over Los Angeles. “Got any men’s clothes?” he asked the warehouse superintendent, a man in Army fatigues who, like everyone else, calls Pregerson simply “Judge.”

“I do get a special feeling out of this work,” Pregerson said. “It gives me a lot of satisfaction to look at homeless kids and know a program I’m involved with is helping them better their lives.”

A tall, blond woman with a firm handshake walked up to Pregerson at the partnership warehouse, packed to the ceiling with boxes of bleach, Nike tennis shoes, women’s makeup and other things. “As a California citizen,” she said, “I just want to thank you for what you did in the Harris case.”

He brushed off the compliment, and was generally reluctant to discuss his decision in the case.

During the frenzied final hours of Harris’ life, four separate stays of execution were ordered by 9th Circuit judges.

Pregerson’s was the last and was issued after Harris had been strapped into the chair in the gas chamber for 11 minutes. The judge said the cellular phone by his bed was not working that night so that when Harris’ attorney tried to reach him to request a stay, one of his law clerks had to drive to his house and knock on his door. Pregerson called the attorney, who outlined the request.

“They asked for a 24-hour stay and I told them I would grant it,” he said. “I called the warden” at San Quentin. “They weren’t too friendly.”

Pregerson did not know Harris was already sitting in the gas chamber, but, he said, “I certainly got the impression from his attorney that time was running short.”

Pregerson then got a call from a clerk at the 9th Circuit in San Francisco, who said the U.S. Supreme Court wanted a copy of his order. He faxed it from his office on the 11th floor of a Woodland Hills office building and went home. It was about 5 a.m. when he arrived, turned on the television and discovered the U.S. Supreme Court had already lifted his stay, allowing the execution to proceed.

Pregerson was shocked. “Instead of handling the matter dispassionately, I think there was a rush to execution,” he said.

Critics said 9th Circuit judges were engaging in gamesmanship to keep Harris alive. The legal arguments they used to support their stays were nothing more than flimsy parapets for their own opposition to the death penalty, according to the critics. Gov. Pete Wilson criticized the court for spearheading a “macabre legal circus.”

Soft-spoken and unemotional, Pregerson said he regrets nothing and is at peace with himself over his involvement in the bizarre death of Harris, which one law professor said is a story that might have been “co-written by Kafka and the Marx Brothers.”

But he agrees the Harris case reflected badly on the judicial system. He said the 28 members of the 9th had some communication difficulties the night before Harris was killed and that the court will try to create a procedure for handling last-minute orders prior to future executions.

Asked for his position on capital punishment, Pregerson said it has a corrosive affect on society. “Its infliction brings out ignoble human traits.”

The judge’s admirers say that to this uncomplicatedly noble man, that is the greatest sin.