Federal Court Clears Way for Execution : Capital punishment: Sharply divided panel rules that triple-murderer in Washington may be hanged within 42 days. Appeal to Supreme Court is planned.

A sharply divided federal appeals court in San Francisco ruled Friday that a Washington man may be hanged within 42 days, even though he is entitled to 90 days to file an appeal with the U.S. Supreme Court.

The 6-5 decision came as the U.S. 9th Circuit Court of Appeals rejected the final appeal of triple-murderer Charles R. Campbell, who has been on Death Row in Washington state for more than a decade. He sought further review by all 26 9th Circuit judges, a process that is theoretically possible but never has been carried out.

In February, the 9th Circuit, also by a 6-5 majority, rejected Campbell’s claim that execution by hanging violates the U.S. Constitution’s bar against cruel and unusual punishment.

After it upholds a death sentence, the 9th Circuit Court usually grants an automatic stay to allow an appeal to the Supreme Court. However, the court’s majority said that “exceptional circumstances” justified different treatment in this case, noting that the 9th Circuit was criticized by the Supreme Court two years ago for failing to resolve Campbell’s appeals.

“We are under a duty to ensure a prompt resolution of the matter,” said the majority, led by J. Clifford Wallace, the 9th Circuit’s chief judge.

Appellate Judge Stephen Reinhardt, joined by four colleagues, issued a blistering dissent. “Our decision demonstrates once again that in capital punishment cases, the current federal judiciary is less concerned with rules of law and constitutional principles than with ensuring that defendants are executed speedily,” Reinhardt wrote.

“By our decision, we pronounce our willingness to hang Campbell first and submit the serious constitutional issues he raises” on cruel and unusual punishment to the Supreme Court for decision later, Reinhardt wrote. “So the 9th Circuit returns, at least for now, to the rough Western justice of frontier days: Hang ‘em first, ask questions later.”

James Lobsenz, Campbell’s attorney, said he will appeal to the Supreme Court immediately.

It is possible that either Supreme Court Justice Sandra Day O’Connor, who handles emergency appeals from the 9th Circuit, could grant Campbell a stay, or that the full court could issue a stay if five of the nine justices vote to do so. But legal observers said a stay is unlikely.

Now 39, Campbell was convicted of slashing the throats of two women and a child in Clearview, Wash., in 1982. The women had testified in a 1976 trial in which Campbell was convicted of attacking and sodomizing one of them.

There has been a stay of execution in effect since March 28, 1989, because of appeals on various issues. The Supreme Court has declined to review the case twice.

“We’re extremely pleased that the 9th Circuit has finally cleared the way” for the execution, said Paul D. Weisser, an assistant attorney general in Washington who has been critical of the lengthy appeal process. This will allow “justice to be done at long last,” Weisser added.

The prosecutor said 9th Circuit officials told him that the stay of execution will be lifted immediately. Under Washington law, that would permit the execution to be conducted “within 30 judicial days,” meaning an execution date of May 27.

“We anticipate that there is going to be a flurry of activity between now and that date as Campbell concocts various mechanisms to try to forestall that date,” Weisser said. “We will do whatever we have to do to ensure that the execution occurs on time, without further delay.”

The majority opinion noted that the 9th Circuit’s action does not prevent Campbell from seeking a further stay of execution with the Supreme Court.

“However,” Reinhardt objected, “that should not ease the conscience of any member of this court or serve as an excuse for anyone’s failure to perform his or her duty properly.”

Reinhardt said the 9th Circuit was obligated to issue a stay unless Campbell made a frivolous claim or appealed solely to delay matters.

Campbell’s claim that hanging constitutes cruel and unusual punishment, Reinhardt said, clearly is not a frivolous claim for a variety of reasons, including the fact that Washington is one of only two states that permit execution by hanging. The other is Montana.

Washington law gives a condemned individual the choice of death by hanging or lethal injection. But Campbell declined to choose, and under the law, that means execution by hanging.

Laurie Levenson, a Loyola University criminal law professor, said Friday’s majority opinion “is a clear indication that the 9th Circuit got the message from the Supreme Court and will move to expedite death penalty cases.”

Levenson said Campbell faces an uphill battle in his attempt to gain a stay from the Supreme Court.

Levenson also said Friday’s opinions reflect the continuing deep divisions within the 9th Circuit on all aspects of the death penalty. All six judges in the majority were appointed by Republican presidents. The five dissenters were appointed by President Jimmy Carter.