Reprieve for Double Killer Upheld; Hearing Ordered

Convicted double murderer Jaturun Siripongs won a reprieve Tuesday from execution until at least early January, probably leaving the question of clemency in the hands of Gov.-elect Gray Davis.

A vote by the 9th Circuit Court of Appeals shortly before noon derailed the state’s plan to execute Siripongs by lethal injection as scheduled Tuesday. The U.S. Supreme Court refused earlier in the day to lift the stay issued by a U.S. district judge just six hours before Siripongs was scheduled to die.

A hearing is scheduled Dec. 3 before that judge, Maxine Chesney, on whether to issue a preliminary injunction barring Siripongs’ execution.

Because of death warrant procedures, the earliest possible new execution date would be Saturday, Jan. 2, Gov. Pete Wilson’s next-to-last day in office. California has customarily held executions on weekdays, a practice that would delay the date until after Davis takes office.

The legal maneuvering shed light on the deep divisions in California over the death penalty--even as the state gears up to execute more people in short order than it has since the 1960s.

The 9th Circuit decision on Siripongs, 43, marks the third time since Robert Alton Harris was executed in 1992 that the federal panel has upheld last-minute reprieves. This time the reprieve was particularly unexpected, being based not on questions of Siripongs’ guilt but on procedural questions about how a clemency petition to Wilson was handled.

With Wilson set to leave office at the end of the year, a clemency decision will provide an early test of Davis’ position on the death penalty. During the recent election campaign, Republicans attacked Davis’ support of capital punishment as a politically motivated stance that would evaporate if he won.

Davis’ spokesman Michael Bustamante said the newly elected governor meant what he said in the campaign and that Davis, in clemency situations, will not substitute his judgment for that of the courts.

“He does not believe he should second-guess the decision of the jury and the determination of the courts,” Bustamante said.

Experts say the emerging debate among the judiciary over the death penalty will probably lead to similar delays, as California seeks to step up the pace of executions of the 513 people on death row.

“Overall, there’s a discomfort with the whole process among many members of the judiciary, among the people who make the decisions,” said Edward Lazarus, a Los Angeles attorney who has written a book on death penalty appeals nationwide. “And they are going to look at these decisions very carefully before they allow executions to go forward without every ‘t’ crossed and ‘i’ dotted.

“California’s experience with its new death penalty law is still very new, and there is far from consensus on the issue.”

Such divisions in the judiciary appear to be significantly greater than among the public at large, which for more than 25 years has consistently favored capital punishment for certain serious crimes, according to Mervin Field of the nonpartisan Field Poll.

A March 1997 Field poll found that 74% of Californians favor capital punishment.

Siripongs had been scheduled to die at 12:01 a.m. Tuesday for robbing and killing two people at a Garden Grove market in 1981. However, Judge Chesney said Wilson’s office may have misled Siripongs’ lawyers about what information the governor would consider in deciding whether to reduce Siripongs’ sentence to life without possibility of parole.

The governor refused to grant clemency, and Siripongs’ attorneys complained that Wilson’s office told them not to include information about the crime and his trials in their clemency request.

In a statement, state Atty. Gen. Dan Lungren said he was disappointed in the court’s ruling.

“The court has overstepped its constitutional authority and infringed on the governor’s duties,” the attorney general said. “In one night of judicial activism, the balance of power held by the three branches of government has been dangerously tipped toward the judicial branch.”

Experts in clemency issues say the court’s stay of execution is extremely unusual nationwide. Most seriously considered last-minute appeals raise questions about the fairness of the trial or the appellate process.

Clemency issues are normally left to the discretion of the executive branch. Though complaints are raised regularly about the clemency phase, judges routinely dismiss them, according to Hugo Bedau, a professor of philosophy at Tufts University in Massachusetts who has written extensively on the issue.

But in California, where only five executions have gone forward since the death penalty was reinstated in 1977, death penalty experts say the court’s ruling on such a seemingly arcane point of law of should come as no surprise.

The 9th Circuit Appeals court first stepped into a death penalty case in April 1992, when a three-judge panel granted a stay of execution six hours before double murderer Robert Alton Harris was scheduled to become the first person put to death in California in a quarter century.

In 1996, a three-judge panel of the 9th Circuit reinstated the death sentence against killer Thomas Thompson. But a year later, an 11-judge panel of the 9th Circuit rushed in to block Thompson’s execution.

In both cases, the Supreme Court reversed the stays. In Siripongs’ case, the Supreme Court did not rule on the merits of the temporary restraining order that prevented his execution. It denied an emergency request by the state to lift the stay.

“This is a new legal issue that has been brought up, but it is reflective of the overall ambivalence about the death penalty among judges,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

Dieter said that there is far more consensus in legal circles about capital punishment in Texas, where 160 people have been executed since 1976, most with little fanfare, and in several other of the 38 states that have the death penalty.

“Because there is more of a mixed feeling about the death penalty [in California], there are those in the courts who will take a second look at a case and make sure it’s done properly,” Dieter said.