U.S. Court to Change Rules on Death Penalty Appeals

SAN FRANCISCO —  The federal appeals court whose judges ordered controversial delays before the April 21 execution of Robert Alton Harris is planning to change its rules to speed processing of last-minute death penalty appeals.

The U.S. 9th Circuit Court of Appeals has proposed new rules to curtail the power of a single judge to temporarily block an execution. Under the proposed rules, a three-judge panel could immediately vacate a stay of execution issued by a single judge--and an 11-member court could overturn a stay by the panel.

The proposals were welcomed by state prosecutors who criticized the four late-hour stays by 9th Circuit judges in the Harris case--the last just before 4 a.m. as the condemned killer sat strapped in the gas chamber.

The Supreme Court overturned all four stays and took the unusual step of barring any further such action by a lower court. Harris then was executed, but the debate has continued over the courts’ handling of the case.

“These proposals would go a long way to addressing the concerns we have,” Deputy Atty. Gen. Dane R. Gillette, the state’s coordinator of capital cases, said Friday. “We’re very pleased the court is taking a look at this.”

Gillette said the proposed procedures might have brought a quick reversal of another stay issued by Circuit Judge John T. Noonan in 1990 shortly before a scheduled Harris execution. Under the new rules, Noonan’s order could have been overruled by two other judges on the panel handling Harris’ case, the prosecutor said. As it was, the case continued another two years.

The proposed rules drew sharp criticism from a capital defense attorney as largely unwarranted. “The desire to bring more rationality to the process is understandable,” said Dylan Schaffer of San Francisco. “But the faster you do these things, the less likely it is you’ll be able to give serious consideration to the appeals . . . There should be no rush in a capital case.

“The court seems to be telling us that what we do in last-minute appeals in death cases is frivolous, but that’s not the case,” Schaffer said. “There were all sorts of issues raised in the Harris case that had serious merit. But they’re all moot now because Harris is a goner.”

The proposals, announced by the court Thursday, were adopted at a meeting of the 28-member appeals court Oct. 14, said Mark Mendenhall, assistant circuit executive. He said a three-judge committee will draft specific rules based on the proposals. The rules then would be circulated for comment and could be adopted next year. No executions are expected in California until 1994.

The proposed rules would apply only to appeals filed by condemned inmates like Harris who have lost their initial appeals in federal court. Among other things, the new rules would:

* Require defense attorneys who file appeals in federal district court to lodge their legal papers with the 9th Circuit at the same time, thus giving judges on the higher court more time to prepare for the case.

* Eliminate the rule--unique to the 9th Circuit--that allows a judge to halt an execution for seven days while the full court decides whether to hear the appeal.

* Provide that the original three-judge panel in the case can uphold or overturn a stay issued by a single judge. Meanwhile, an 11-member special court would be appointed and could uphold or vacate a stay issued by the panel.