State Asks High Court to Speed Up Death Row Appeals : Justice: Case has been on judge’s desk for four years. Congress weighs law to reduce time for rulings.

Thirteen years after Fred B. Douglas lured two Anaheim teen-agers to their deaths with offers of modeling jobs, 10 years after a jury sentenced him to die, and five years after the California Supreme Court denied his final appeals, his case sits on the desk of a federal judge in Los Angeles.

It has sat there now for four years.

This week, an exasperated state Atty. Gen. Dan Lungren asked the U.S. Supreme Court to take the highly unusual step of intervening to order a final decision within 120 days.

The move is not likely to succeed. The high court, which may act by Monday, rarely steps in before a judge decides. But the unusual appeal in Douglas’ case highlights a glaring problem, state prosecutors say.

These days, California’s condemned murderers keep their cases--and themselves--alive through seemingly endless litigation before federal judges, who are not elected and thus unaccountable to the voters.

“This one is not all that unusual. It is becoming standard for them [appeals] to sit around four or five years” before a single federal judge, said Dane Gillette, the state’s capital punishment coordinator. “Then there are tremendous delays at the [U.S.] Court of Appeals.”

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Inmates on San Quentin’s Death Row are far more likely to die of natural causes than to be executed, according to state data.

Since 1977, when the state’s new death penalty law took effect, 491 inmates have been condemned to die. Only two have been executed, one of whom, David Mason, refused to appeal. The other execution, of Robert Alton Harris in 1992, came only after the U.S. Supreme Court intervened to lift four separate stays of execution issued by federal judges in California.

During that time, however, 11 inmates have died of natural causes and eight have committed suicide.

But change could come soon, perhaps even before the high court acts.

The House and Senate have passed bills that would set deadlines for federal judges to act in death penalty cases. For example, a district judge would have to rule on an appeal within 180 days. The court of appeals would have another 120 days to act.

On Wednesday, the House Rules Committee attached those provisions to the debt-ceiling bill. But President Clinton is likely to veto the bill. Either way, however, Republican leaders say they are committed to passing the new death penalty provisions.

“We’re closer now to getting it done than ever before,” Lungren said of the pending bills.

If finally enacted, the legislation would mark a profound change in the handling of death penalty cases.

Typically, U.S. district judges issue a stay of execution while federal appeals are considered. In recent years, this extra round of litigation has been well-funded by the federal government, thanks to a little-noticed 1988 measure.

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That year, Congress authorized a federal death penalty for drug kingpins, but Democratic leaders added a provision to pay for two private lawyers to work on death penalty appeals that move into federal court.

In Los Angeles and San Francisco, these lawyers are routinely paid at the top rate of $150 an hour.

“The yearly cost of providing assigned private counsel services in California federal habeas corpus capital cases averages $100,000” per inmate, according to a report issued in June by the U.S. Judicial Conference. Last year, the federal government paid out $14,712,766 to fund extra appeals by the state’s Death Row inmates, the report said.

Douglas’ two attorneys, Mark Overland of Santa Monica and Mark Borenstein of Los Angeles, said they have raised “approximately 56 claims” in a 140-page brief filed with U.S. District Judge Ronald S.W. Lew.

“It is absolutely false” to say nothing has happened in Douglas’ case since 1991, Overland said in an interview. “Plenty has happened. This involves complex issues of fact and law. They can’t be decided in a few days.”

At Douglas’ sentencing in 1985, an Orange County judge called him a “sadistic, unbelievably cruel and senseless killer” who took the lives of two young women to “gratify some weird sexual fantasy.”

A furniture upholsterer from Garden Grove, Douglas had been arrested and tried in 1977 for trying to lure young women to appear in a “snuff movie”--a film in which they might have been killed. His trial ended with a hung jury, but he later pleaded guilty to a lesser charge and served a short prison term.

Five years later, he offered $500 to two Anaheim teen-agers, supposedly to pose nude in the desert, but Douglas tied them up and strangled them. He and a hired worker fled to Mexico after the bodies were discovered.

In April, 1990, the state Supreme Court issued a long opinion detailing the evidence against Douglas and unanimously upholding his conviction and death sentence.

The next year, Lew issued a stay of execution to consider the many federal claims filed by Douglas’ lawyers. In May of this year, he rejected the state’s request for a speedy decision and said that it is “misleading . . . to claim a four-year delay in this case.” He noted that he had weeded out some claims and sent others back to be considered again by state courts.

When the U.S. 9th Circuit Court of Appeals also refused to order an immediate ruling, Lungren’s office appealed to the Supreme Court. The case, which came before the justices Friday, is Calderon (the warden at San Quentin) vs. Douglas, 95-420. The court may act on the appeal as early as Monday.

Three years ago, the justices chided the 9th Circuit Court for undue delays in death penalty cases. Judges have a duty to rule “promptly” on appeals, the high court said.

To give teeth to this imposed duty, Lungren urged the justices to set a 120-day time limit for federal judges to act. In response, Douglas’ lawyers decried Lungren’s “unprecedented and dangerous demand” and urged that it be rejected.

“The great delays are in the federal courts, not the state courts,” Lungren said in an interview. “If we get this package of habeas reforms [through Congress], we could get delays down from 15 years now to five years” from the time a jury sentences a killer to execution.

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BACKGROUND

In U.S. law, the Habeas Corpus Act dates back to the Civil War era. It was intended to allow federal judges to take up the cases of those who were held by state officials in violation of the Constitution. Since 1976, when capital punishment resumed, habeas corpus claims have assumed a crucial role in death penalty cases. Once a condemned murderer has lost on all his appeals in the state courts, he is free to try again in federal court by filing a writ of habeas corpus.