Dissenting Judges Decry Process in Arizona Execution : Law: The 9th Circuit appellate court was improperly rushed by the U.S. Supreme Court in deciding the fate of murderer John Brewer in March, two justices say.

Apparently eager to speed the pace of executions, the U.S. Supreme Court authorized Arizona officials to kill a man in March, even though federal appeals court judges were still considering whether to grant a stay that would have prolonged his life, according to a blistering opinion released in San Francisco by two of the judges.

In a case that drew scant attention outside Arizona, John George Brewer, 27, was executed by lethal injection in the Florence prison in the early hours of March 3 without a full hearing on a key legal question: whether he was mentally competent to waive review of his death sentence.

The manner in which Brewer’s case was handled has precipitated another death penalty controversy in the U.S. 9th Circuit Court of Appeals, which has jurisdiction over nine western states with nearly 600 people on Death Row, many of them with federal appeals pending.

The latest battle comes a year after the Supreme Court took the extraordinary step of telling 9th Circuit judges not to issue any more stays in the case of San Diego murderer Robert Alton Harris, who was then killed in the San Quentin gas chamber.

“Once again, this time almost unnoticed, a man has been executed without fair or orderly consideration of a habeas corpus petition that raises important constitutional questions,” wrote 9th Circuit Judge Stephen Reinhardt in an opinion released last week.

The veteran liberal jurist, joined by his colleague Harry Pregerson, issued the 30-page dissent from the full court’s March decision. At the time, the full court declined to grant review to an emergency appeal that would have temporarily halted Brewer’s execution.

The unusual after-the-fact dissection was written by Reinhardt and Pregerson in an apparent attempt to illustrate the difficulty of trying to resolve a complex legal issue under crisis conditions.

“Because we failed to convene” a full court “to issue a stay, and to order a competency hearing, we will never know whether our constitutional system seriously malfunctioned--whether in our rush to ‘get on with it’ we permitted an incompetent man to submit to an unconstitutional execution,” Reinhardt wrote.

His opinion also emphasized that unlike the Harris litigation, which had dragged on for years, the entire federal review of Brewer’s case was compressed into two weeks. That occurred after Brewer’s mother, against his wishes, attempted to prevent the execution, contending that he was not competent to spurn his opportunities for appeal.

Ever since the Harris execution, Reinhardt and other liberal 9th Circuit judges have come under attack from death penalty advocates, who charge that the judges use specious reasoning to halt executions. In his opinion, Reinhardt said critics have unfairly characterized him and his colleagues as “a group of vigilante judges who oppose capital punishment” and follow their personal convictions rather than the law. “Nothing could be further from the truth.”

The case started when Brewer strangled his pregnant girlfriend Rita Brier, 23, in November, 1987. While on Death Row, Brewer wrote letters to friends, telling them that after his execution he would rejoin Brier--who he said was now a deity--on the planet “Terracia.”

Brewer and Brier had moved to Flagstaff, Ariz., from Pennsylvania just two months before the murder. The couple lived in an apartment with another woman.

Early on the morning of Nov. 11, 1987, Brewer became angry while arguing with the two women over whether he was too dependent on his mother. Several hours later, Brier told Brewer she loved him and because she did, she would leave him so that he could prove he was capable of living by himself.

Brewer became enraged, attacked Brier, then 22 weeks pregnant, and tried to strangle her with his hands, he later told police. A violent struggle ensued for 45 minutes. Eventually, Brewer found a necktie, wrapped it around Brier’s neck and strangled her.

Then, Brewer said, he undressed, threw his clothes on the victim, took a shower and engaged in sexual intercourse with Brier’s body.

Soon thereafter, he admitted the killing to a 911 dispatcher he had called. After the Flagstaff police arrived, he confessed again. Evidence at the scene corroborated his story of the killing.

Brewer was indicted by a grand jury. Seven months later, against the advice of his appointed counsel, he pleaded guilty to first-degree murder. The judge found Brewer competent to plead based on a conversation with him and reports from two psychologists.

One psychologist, Michael Bayless, said that Brewer suffered from “borderline personality disorder,” exhibited a dependency on his mother and had a phobia about being alone. Additionally, Bayless said Brewer had developed a “pathological dependency” on Brier. Nonetheless, Bayless concluded that Brewer, with an IQ of 132, was legally competent and could distinguish between right and wrong.

Manifesting his desire to die, Brewer objected to the presentation of any mitigating evidence at the sentencing hearing, but a priest was allowed to testify that Brewer had expressed bewilderment and remorse over the killing. Brewer not only asked for the death penalty but said again that he had sex with Brier’s corpse. Some medical evidence and expert testimony indicated that he might have lied about the act of necrophilia.

The judge, relying in part on the necrophilia testimony, decided that the murder was committed in an especially heinous fashion and sentenced Brewer to death.

Over his objection, an automatic appeal was filed on Brewer’s behalf, as required by Arizona law. The Arizona Supreme Court upheld the conviction and sentence 3 1/2 years later in January, 1992. In October, 1992, the U.S. Supreme Court declined to review the case.

The next month, an Arizona judge, after questioning Brewer, found the defendant competent to represent himself and granted his request to waive his right to any review of the conviction or sentence.

That set the stage for Brewer to be executed on March 3, but then his mother, Elsie Brewer of Greensburg, Pa., got involved in the case.

First, she filed a motion in state court alleging that her son was not competent to waive his rights. That motion and several others filed on her behalf by the Arizona Capital Representation Project were rejected without a hearing, the last one on Feb. 18, just two weeks before the execution.

The next day, she filed a habeas corpus petition in federal District Court in Phoenix. She hoped to persuade District Judge Roger Strand that her son was legally incompetent, an absolute prerequisite if she was to be able to assert that his constitutional rights were being violated. She presented letters from friends about his plans to rejoin Brier on “Terracia,” and information about several suicide attempts.

Elsie Brewer also submitted an affidavit from Bayless withdrawing his 1988 opinion that her son was competent, in part, he said, because Brewer had “deteriorated substantially” since that time. Bayless also said that “treatment must be undertaken before (Brewer) will be able to make competent decisions that are not fueled by his self-destructive desire to be killed.”

The state submitted affidavits from four psychologists, all selected by Arizona officials, who had examined Brewer in recent months and found him competent.

Strand acknowledged that Brewer’s life “has been one that has continuously been involved with mental disturbances and mental episodes that have led to” suicidal tendencies. Nonetheless, the judge dismissed Elsie Brewer’s petition.

Strand concluded Feb. 23 that the mother had no standing to act for her son because she had failed to sustain “her burden of proving by clear evidence” that he suffered from an “inability to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation.”

Elsie Brewer immediately filed an appeal with the 9th Circuit, and a hearing was scheduled for March 1. Strand was upheld by 2-1 vote in a decision released at 2:48 p.m. California time the next day, a little more than eight hours before the scheduled execution.

Judge Cynthia Holcomb Hall, writing for the majority, said that Elsie Brewer had failed to provide the “meaningful evidence” required to show her son’s lack of competence. The judge said her conclusion was “bolstered by our obligation to accord a presumption of correctness to the state court’s determination of his competence.”

Judge William Norris dissented, saying numerous questions had been raised about Brewer’s current competence that were not adequately reviewed by the lower courts and that a temporary stay of execution was warranted on several grounds.

Norris asserted that under the 9th Circuit’s own rules, an automatic seven-day stay should have been granted because this was the first habeas corpus petition filed in the case. The majority disagreed, saying that the rule did not apply in a case where the petition was filed by a third party.

Unable to persuade his two colleagues that an automatic stay was required, Norris issued a stay in his own name, saying there were meritorious questions needing further examination. About seven hours later, about 9:30 p.m. California time, just an hour and a half before the execution was to be held, the Supreme Court voided the stay, without stating any reason.

At that point, a 9th Circuit judge called for a vote of the full circuit on a stay. Following Circuit rules, clerks in the 9th Circuit’s San Francisco headquarters started calling the Circuit’s 27 judges, scattered throughout the western United States, trying to determine in the next 90 minutes if a majority wanted to issue another stay.

The conditions surrounding the Circuit’s consideration of that stay request “were as far from conducive to rational judgment as I can imagine,” Reinhardt wrote.

“There was no time for legal research, no time to call for a response from the state, no time to consult with colleagues, no time to read cases, and precious little time even to review” the stay petition.

“We voted anyway. Although the vote was never concluded” because two judges were not reached, “Brewer’s execution was carried out on schedule.” It was the first execution by lethal injection in Arizona history.

Reinhardt acknowledged that the vote fell short of the majority needed to secure a stay. Nonetheless, he said the evening’s events were deeply troubling. “I thought it extraordinary that I was required to vote on so important a matter while ignorant of the reasons for the Supreme Court’s action.”

Even before Reinhardt’s opinion was released publicly, the Brewer case prompted the 9th Circuit to adopt a compromise change in its procedures for handling emergency death penalty appeals.

In the future, when a third party, such as Elsie Brewer, files an appeal, the court will immediately convene an en banc (11-judge) panel that will get all the briefs and be in position to review the decision of the original, three-judge appeals court panel. Consequently, court clerks would not have to conduct a last-minute stay vote among a large number of judges who had not previously studied the case.