Defense Lawyer Backing Killer’s Right to Die : Courts: Death Row inmate David Mason is fending off legal challenges to his Aug. 24 execution. Attorney says final choice should be his client’s.

For the past five years, defense attorney Michael K. Brady has been trying to keep accused murderers from going to the gas chamber. But now he has a new role: making sure his client is executed 30 days from today.

The pugnacious Sacramento lawyer is representing convicted killer David Edwin Mason, who has decided to drop his remaining legal appeals and allow his death sentence to be carried out.

After firing his previous lawyer, the Death Row inmate hired Brady to keep the execution on track and fend off any last-minute appeals by opponents of the death penalty.

Brady views his job as guarding Mason’s right to decide for himself whether he is ready to die.

“It is a very strange experience for me to be on the other side,” Brady said. “But I’m not advocating that Dave be put to death. I’m just making sure his right to choose is protected.”

So far, two legal challenges have emerged that threaten to derail the execution, which is scheduled for Aug. 24 at 12:01 a.m. in the gas chamber at San Quentin State Prison.

In one federal lawsuit, the American Civil Liberties Union is seeking to ban use of the gas chamber on the grounds that it is cruel and unusual punishment.

In the second case, Mason’s former attorney is appealing a federal judge’s ruling that the prisoner was mentally competent to waive his appeals and be executed.

Brady said he will join forces with Atty. Gen. Dan Lungren to fight both lawsuits, which he contends are an attempt by opponents of capital punishment to manipulate the judicial process.

“These lawyers are abusing the legal system for their own social purposes,” Brady said. “They don’t really care what Dave wants.”

Despite the fact that he specializes in defending accused murderers, Brady says he believes in the death penalty.

The short, broad-shouldered Brady is an aggressive attorney who learned to box as a child and was kicked out of high school for fighting. Once, when an opponent in a lawsuit attacked him outside a courtroom, Brady fought back and put the man in the hospital; the man’s head left a crater in the hallway wall.

“I’m kind of a street fighter,” Brady says. “I’m not going to run away.”

Mason was convicted in 1983 of strangling five people and his case was on appeal for nearly a decade. Now he is the first person in recent California history to drop his appeals and volunteer to die.

After last year’s harrowing, off-again on-again execution of Robert Alton Harris, the state enacted legislation allowing condemned prisoners to choose whether they would die in the gas chamber or by lethal injection.

Mason, however, selected neither option, saying that the San Quentin warden should decide.

“Dave has accepted responsibility for his actions,” Brady explained. “He accepts the death verdict. At the same time, he feels the state should accept responsibility for its actions. The state chose to put him to death, it should choose the method.”

Deputy Atty. Gen. Catherine Rivlin said that under the law, Mason’s failure to choose means he will be executed in the gas chamber. And that opens the door for the ACLU to revive its lawsuit challenging the constitutionality of execution by lethal gas.

Last year, the same ACLU suit was instrumental in temporarily blocking Harris’ execution. U.S. District Judge Marilyn Hall Patel issued a stay three days before the scheduled execution, prompting a heated exchange of court orders between the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court.

At one point, prison officials were forced to unseal the locked door, loosen Harris’ straps and remove him from the gas chamber until the high court swept away the final stay of execution and insisted that Harris be put to death.

ACLU lawyers say their purpose now in pursuing the case--which remains before Patel--is to eliminate the gas chamber, not to delay Mason’s execution.

“It is clearly a barbaric form of punishment,” said ACLU lawyer Michael Laurence. “It is an unnecessarily torturous method.”

The attorney general’s office is opposing the ACLU’s motion.

If ACLU lawyers succeed in blocking use of the gas chamber, it is unclear whether Mason’s execution could proceed as scheduled with the alternative of lethal injection.

ACLU lawyers say the state would have to obtain a new death warrant, causing a delay of at least 30 days. Prison officials say the law allows them to change methods of execution without waiting.

During the next month, Brady and lawyers for the state also will be busy fighting off a challenge by Mason’s former attorney, Charles Marson. He is asking U.S. District Judge Ronald Whyte to reconsider his June ruling that Mason was competent to waive his appeals.

Marson argues that Mason is mentally unfit to make such a decision because of abuse he suffered as a child. The attorney, an opponent of the death penalty who handled Mason’s appeals for eight years, will not discuss the case publicly.

An attorney representing three of Mason’s siblings and two friends filed a separate petition last week seeking to join in Marson’s competency challenge. But Brady charged that the five were lured into signing the petition on the pretense that it would be filed only if Mason changes his mind.

The family members and friends will contact the judge this week, he said, and ask that the petition be withdrawn.

The only way the execution can be halted now, Brady said, is if Mason seeks to reinstate his appeal--an option he has at any time. The attorney said Mason is unlikely to have a change of heart, but he will represent the condemned man’s wishes, whatever they are.

“If Dave chose not to be executed,” Brady said, “I would support him in that also.”