9th Circuit Judge Criticizes High Court Over Execution

NEW HAVEN, Conn. —  Federal appellate Judge Stephen Reinhardt condemned the U. S. Supreme Court on Saturday for denying Robert Alton Harris his constitutional rights before he was executed, saying the high court placed a higher premium on legal procedures than a man’s life.

In rare public criticism, the Los Angeles judge said history will record the Harris case as a landmark decision that clearly established the high court’s willingness to execute a condemned man even though constitutional issues raised by the defense were never heard in the lower courts.

“The court has made it plain that constitutional principles are no longer its primary concern,” Reinhardt said in an address at Yale Law School. “What matters to the overwhelming majority of this court is not whether an individual was convicted in an unconstitutional manner or will be executed in an unconstitutional manner.”

Reinhardt also strongly defended four last-minute stays of execution he and other members of the U. S. 9th Circuit Court of Appeals granted Harris in the 12 hours before the condemned killer was put to death in San Quentin’s gas chamber Tuesday.

Staying the execution, he said, was supported by a majority of judges on the 28-member circuit court, who wanted to allow time for a hearing on whether the use of cyanide gas violated the constitutional protection against cruel and unusual punishment.

But the U.S. Supreme Court, ruling that the issue had been raised too late in Harris’ 14-year legal battle, overturned the four stays during the night and early morning hours, allowing the execution to proceed. Finally, in an extraordinary move, a 7-2 majority of the justices ordered the lower courts to grant no further stays.

The high court’s action climaxed a running battle between the conservative Supreme Court and the more liberal 9th Circuit over the appellate judges’ slow handling of hundreds of death penalty cases in the western states.

Speaking at his alma mater Saturday, Reinhardt questioned whether the Supreme Court exceeded its constitutional authority with its highly unusual order prohibiting lower court judges from acting further in the case.

“Is it proper for the Supreme Court to issue an order denying all other federal courts the ability to exercise the power given them not by the Supreme Court, but by law?” he asked. “Was this extraordinary action a proper and lawful exercise of legitimate power?

“Is it the proper role of the court to sit up all night, the individual justices in their bedrooms, issuing a series of orders designed to control the outcome of a single case, so that someone is executed on one day rather than another?”

Reinhardt, a former president of the Los Angeles Police Commission, is among the most liberal members of the 9th Circuit Court, which covers nine western states. He is married to Ramona Ripston, director of the American Civil Liberties Union of Southern California. The appeals on Harris’ behalf were brought by the ACLU of Northern California.

In the past week, Reinhardt and his allies on the court have come under harsh criticism from California Gov. Pete Wilson and other supporters of capital punishment for attempting to delay Harris’ execution. Wilson called what took place the night of the execution a “macabre legal circus.”

Reinhardt agreed Saturday that the “Harris case was a nightmare.

“It served no one well,” he said. “The process was ugly, cruel and injudicious. At a critical time in its history, the American legal system failed to function fairly or well.”

The final stay of the execution was issued by Judge Harry Pregerson after Harris had been strapped into the gas chamber and was moments from death. For the first time in San Quentin history, a prisoner was taken from the gas chamber alive. Later, some death penalty advocates charged that the judicial action itself amounted to cruel and unusual punishment.

But Reinhardt defended the last stay and attributed the episode to the high court’s unwillingness to let the issues be decided by lower courts in a proper judicial fashion.

“The responsibility for the off-again, on-again procedure lies squarely with the Supreme Court,” he said. “The series of immediate reversals was extraordinary, to say the least.”

The last-minute legal maneuvering was triggered by a temporary restraining order issued by U. S. District Judge Marilyn Hall Patel three days before the execution. She blocked the execution so that the question of death by lethal gas could be considered.

The next night, her order was overturned by a three-judge panel of the 9th Circuit who said the argument had come too late in Harris’ appeals. But procedurally, Reinhardt said, the panel did not have the authority to overturn Patel’s order.

Furthermore, he said, the panel did not release its opinion in the case until the next afternoon--seven hours before the scheduled 12:01 a.m. execution--making it difficult for the rest of the circuit judges to act.

After a chaotic evening in which the circuit court’s communication system broke down while judges were being polled, a majority agreed that a stay should be issued.

“This is not about liberal judges opposed to the death penalty seeking to block executions,” he said, noting that two moderate Republican justices of the Supreme Court, Harry A. Blackmun and John Paul Stevens, wrote a strong dissent against overturning the stays.

“The 9th Circuit has and will follow Supreme Court decisions no matter how distasteful it may be,” Reinhardt said.

Reinhardt called for a change in the California law that permits a death warrant to be valid only for 24 hours. If the execution was authorized for a longer period, he said, the final appeals would not have to be handled so quickly.

“Could Harris’ attorneys have raised the questions earlier? Yes,” the judge said. “Should he be executed because they didn’t?”

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