Dissension Over Death Penalty Flares Again Among Judges : Courts: A pro-capital punishment jurist says some colleagues broke ethics code in public criticism of Harris case. His comments prompt debate about what judges may say off the bench.

The deep discord over the death penalty among federal appeals court judges has boiled up again: A pro-capital punishment judge has accused some of his foes of violating judicial ethics in off-the-bench remarks they made about the California execution of Robert Alton Harris 15 months ago.

Judge Arthur L. Alarcon, 67, a Los Angeles Republican, charged in a recent speech that unnamed but readily identifiable U.S. 9th Circuit Court of Appeals judges transgressed the judicial code of conduct by criticizing both the decisions of colleagues and the U.S. Supreme Court in the Harris case. He said the actions of those judges could erode public confidence in the judiciary.

In an even more unusual move, Alarcon suggested that the judges be sanctioned if they repeat that sort of public comments.

Alarcon’s speech has prompted intense debate among attorneys, judges and law professors about what judges are permitted to say off the bench. There is very little case law on the issue.

The brouhaha also is a sign of growing contentiousness within the judiciary, said Arthur Hellman, a University of Pittsburgh law professor and federal court specialist. “All these things wouldn’t have happened 20 years ago or even 10 years ago,” he said. “Judges are less willing to accept the constraints which in prior years were taken as a given.”

Moreover, the friction is likely to intensify in coming years as the appeals of nearly 600 inmates on Death Row in the nine western states within the jurisdiction of the 9th Circuit wend their way through the federal courts.

Alarcon, a federal judge since 1979, issued his broadside in a graduation speech at Loyola Marymount School of Law in Los Angeles. “In off-the-bench comments about a well-publicized death penalty matter,” some judges “have engaged in conduct that is threatening to the independence of the judiciary,” he charged.

“In issuing court orders, some appear to have acted upon their own personal and political views rather than the rule of law,” said Alarcon, one of the judges who rejected Harris’ last appeal and whose ruling was criticized by those he now is attacking. “To justify their deeds, they have criticized the written opinions of their fellow judges--in press conferences,” op-ed pieces and law review articles.

To support his contention that his colleagues had overstepped their bounds, Alarcon cited a section of the judicial code of conduct that says, “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.”

Alarcon said one of his colleagues “went so far as to accuse seven members of the Supreme Court of being ‘traitors to the Constitution.’ . . . I think I can safely say that a federal judge who accuses seven members of the Supreme Court of the United States of being traitors is not concerned about promoting confidence in the judiciary.”

Although Alarcon named no names, the latter remark was a clear reference to an article by Judge John T. Noonan, who unsuccessfully urged Alarcon and Circuit Judge Melvin Brunetti to grant a stay to Harris and other Death Row inmates in California, challenging the constitutionality of execution by lethal cyanide gas.

Also attacked by reference was Judge Harry Pregerson, who granted the last stay of execution and later told a reporter that he considered the death penalty “a barbaric form of punishment,” causing him to be open to staying requests backed by a “reasoned argument.”

Some of Alarcon’s remarks also could be interpreted as criticism of two other 9th Circuit judges--William A. Norris and Stephen Reinhardt--who sought to halt the execution and spoke out publicly afterward. Reinhardt, in a speech at Yale Law School just a few days after Harris’ death, asserted that the Supreme Court “has made it plain that the Bill of Rights is no longer its primary concern.”

In perhaps his boldest pronouncement, Alarcon said: “Those judges who continue deliberately to violate the code of conduct should be disciplined by their judicial peers, and publicly criticized by the Bar for violating their ethical canons.”

Prof. Hellman noted that if Alarcon truly believes action is warranted against his colleagues, he can file a formal complaint with the chief judge of the circuit, which would trigger an internal investigation. Thus far, no 9th Circuit judge has filed such a complaint, according to court sources.

Neither Alarcon nor any of the judges he criticized, explicitly or implicitly, would comment on his speech. However, sources close to some of the criticized judges said that for Alarcon to attack them in a public speech was a case of the pot calling the kettle black. They also noted that although several judges had spoken out of court, none held a news conference.

On the other hand, sources close to Alarcon said he felt justified because he was speaking out primarily on the judges’ manner of presentation rather than on the substance of their opinions, even though he accused his colleagues of acting on “their own personal and political views, rather than the rule of law.”

Scholars said that the law is in flux over what judges may say off the bench. “It’s an area with a large degree of ambiguity,” said New York University law professor Stephen Gillers, a legal ethics specialist.

Some professors, such as William D. Ross at Samford University’s Cumberland Law School, have contended that judges usually should not criticize their colleagues on the bench since it might give the public the impression that courts are highly politicized.

But other professors said that Alarcon’s position on what is permissible is too restrictive and would inhibit judges’ 1st Amendment rights.

DePaul University law professor Jeffrey M. Shaman, who is a senior fellow at the American Judicature Society, a public interest organization devoted to improving the nation’s courts, said he saw a benefit in the judges’ off-the-bench debate.

“Because judges occupy a unique place in our society and are uniquely qualified to comment on court systems, we need to encourage judges to speak out in a thoughtful way, even when they’re criticizing their colleagues,” Shaman said. “Enforced silence does nothing to improve public confidence in the courts.”

The Harris case, which consumed 14 years, has been the subject of ferocious debate for some time between death penalty foes, who maintain that there is a duty to utilize all possible avenues of appeal before a state sanctioned execution is conducted, and capital punishment proponents, who say the case is a classic example of how the legal system can be manipulated to frustrate the wishes of society. Indeed, just five months before the execution, Alarcon said “the Harris case is a textbook example” of judicial abuse.

The judges who issued four stays of execution in the final hours before Harris was executed April 21, 1992, said they were following proper procedure and attempting to ensure that due process of law was followed.

Within a few days of the execution, Noonan, a 1986 appointee of President Reagan, wrote a commentary for the New York Times in which he lambasted the Supreme Court for issuing an order telling 9th Circuit judges not to issue any more stays for Harris.

He said that in order to comply with that order, the 9th Circuit judges had to “commit treason to the Constitution” by failing to exercise their lawful jurisdiction--including issuing more stays if warranted. But Noonan did not say any Supreme Court justices were traitors, noted UC Berkeley’s Barnett.

Reinhardt launched his salvos in a speech at Yale Law School four days after Harris was executed. He blasted the Supreme Court for rapidly reversing four stays of execution in 12 hours in an attempt to expedite the execution:

“Is it the proper role of the (Supreme) Court to sit up all night, the individual justices in their bedrooms, issuing a series of orders designed to control the outcome of a single case, so that someone is executed on one day rather than another?”