Fed Up With Death-row Petitions High Court's Unusual Order Shows Its Impatience

Posted: April 22, 1992

WASHINGTON — The execution of Robert Alton Harris yesterday provided the most dramatic demonstration yet of the conservative Supreme Court's mounting impatience with last-minute petitions from death row.

Awakened through the night by four attempts to put off Harris' execution, the justices issued an apparently unprecedented order forbidding any more federal court delays. Harris was pronounced dead 36 minutes later.

"To my knowledge, it's never happened before," said University of North Carolina law professor Jack Boger, who handled death penalty cases for the NAACP Legal Defense Fund from 1978 to 1990. "It's a more authoritarian act of the Supreme Court than I've ever seen."

Even before Harris died at dawn in San Quentin's gas chamber, his case had come to symbolize a criminal appeals system gone awry. It is a system that has consumed an average of six or seven years from sentence to execution.

Many legal experts argue that a lengthy process of federal review is necessary to uncover injustices. During the last 15 years, federal judges have found serious constitutional errors in nearly 40 percent of all death penalty cases brought before them.

But to families of victims of crime, most prosecutors and a majority of Supreme Court justices, the system encourages an irrational maze of piecemeal, chaotic and seemingly endless appeals.

Nearly 14 years have passed since Harris killed two San Diego high school boys. He was convicted and sentenced to death 13 years ago. But he remained alive while his resourceful lawyers carried numerous issues through 75 state and federal court reviews, including four separate appeals through the federal courts up to the Supreme Court.

For the last three years, the justices have been cracking down on the power of federal judges to upset state convictions.

In a battle of faxed messages on the final night of Harris' life, the

justices received four requests from California Attorney General Daniel E. Lungren to cancel successive stays of execution obtained by defense lawyers

from the Ninth U.S. Circuit Court of Appeals in San Francisco.

At 6 a.m. Eastern time yesterday, the justices voted 7-2 to nullify the second and third stays with a blistering attack on Harris' defense lawyers for an "obvious attempt at manipulation."

Harris' claim - that his execution by lethal gas would be cruel and unusual punishment, in violation of the Eighth Amendment - "could have been brought more than a decade ago," the court majority declared in an unsigned opinion.

"There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process."

Justice John Paul Stevens, joined by Justice Harry A. Blackmun, dissented. Stevens, recalling the "barbaric use of cyanide gas in the Holocaust," cited the conclusions of numerous medical and legal experts that execution by cyanide gas is "extremely and unnecessarily painful."

An hour and 15 minutes later, at 7:15 a.m., the justices received notice of the fourth - and final - stay of execution from the Ninth Circuit.

This time, Judge Harry Pregerson, had authorized a one-day delay to permit Harris' lawyers to present "unexhausted claims" to the California Supreme Court.

At 8:45 a.m., the frustrated court majority called a halt, declaring: "No further stays . . . shall be entered by the federal courts except upon order of this court." Stevens and Blackmun again disagreed.

The lethal gas was released in the chamber 20 minutes later; Harris died at 9:21 a.m. (6:21 a.m. Pacific time).

"The message to defense lawyers has been clear for some time: If you have (reasonable) claims, you'd better put them in early and not at the last minute," Boger said.

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