Court Defers Appeals Until 3 Days Before Execution

A judge’s order blocking the execution of murderer David Edwin Mason will not be considered by the U.S. 9th Circuit Court of Appeals until three days before Mason’s scheduled execution date, the appellate court announced Friday.

In an unusual order, the 9th Circuit said a panel would meet Aug. 21 to consider the question of whether Mason is competent to volunteer to die in the gas chamber at San Quentin at 12:01 a.m. Aug. 24.

By setting such a schedule, the three-judge panel will leave little time for the losing side in the case to bring subsequent appeals to the entire 9th Circuit or the U.S. Supreme Court.

However, the court’s ruling could very well touch off a flurry of last-minute court orders by the 9th Circuit and the U.S. Supreme Court reminiscent of last year’s high-level court battle that delayed the execution of Robert Alton Harris by six hours. At one point, Harris was removed from the gas chamber only to be strapped in again when the final stay was overturned by the Supreme Court.

Mason, who was convicted of murdering five people in the early 1980s, appealed his conviction for nine years before deciding earlier this year that he was ready to face his punishment. He won court permission to fire his attorney, drop his remaining appeals, and accept his date with the gas chamber.

The attorney he fired, Charles Marson, went to court to challenge Mason’s competence to volunteer for execution. After a lengthy hearing, U.S. District Judge Ronald M. Whyte of San Jose ruled that Mason was competent to make his own choice.

This week, however, the judge agreed to grant a stay of execution until the matter could be considered by the 9th Circuit.

On Thursday, Mason and Atty. Gen. Dan Lungren joined to file an emergency motion asking the appeals court to dissolve the stay so the execution could proceed on schedule.

The appellate court, however, said it would consider not just the stay but the entire issue of whether Mason is competent to make his own choice. The court set an accelerated schedule requiring attorneys in the case to file written arguments during the next two weeks.