Panel’s Blocking of Execution May Worsen Tensions With Supreme Court

Tensions between the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court have run high ever since the execution five years ago of Robert Alton Harris, the first person executed in California after a 25-year hiatus.

Ninth-Circuit judges issued so many last-minute rulings to stop Harris’ death that the high court, incensed, took the extraordinary step of ordering the judges in the middle of the night to butt out of the case.

These strains have grown and probably will be exacerbated by the 9th Circuit’s decision Sunday to spare Thomas M. Thompson on the eve of his scheduled execution--although the U.S. Supreme Court stepped in Monday night and agreed to review the Thompson case.

An 11-member panel of the 9th Circuit voted 7 to 4 Sunday to halt Thompson’s execution for a 1981 rape and murder. The judges who voted in favor were appointed by Democrats. The four dissenters were appointed by Republicans.

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The court attributed its last-minute turnabout in the Thompson case to what it called an unprecedented procedural error, citing internal misunderstandings of a deadline for the late hearing and decision.

“From the perspective of the U.S. Supreme Court, it’s, ‘Here we go again,’ ” said J. Clark Kelso, a professor at McGeorge School of Law. “That has got to be frustrating for them.”

The 9th Circuit has long been considered the most independent circuit in the nation and recently has become the federal appeals court most likely to be reversed by the Supreme Court. The high court overturned 28 of 29 cases that it reviewed last year from the 9th Circuit.

Kelso called the 9th Circuit’s failure to convene an 11-member panel weeks ago to review the Thompson case “embarrassing” and predicted that it would fuel an ongoing drive by some conservative U.S. senators to split up the 9th Circuit. Federal judicial rules call for the court to vote to review such cases in a matter of weeks after a hearing.

“It is amazing to me that the 9th Circuit could have gotten so many things messed up,” Kelso said after reading the court’s Sunday ruling on Thompson. “It is clear from the opinion that a number of judges on the court knew there was a procedural mistake . . . and they deliberately decided to postpone action.”

Last spring, a three-member panel of the court overturned a federal district judge’s decision to grant Thompson a new trial. At the time, none of the circuit’s 19 judges called for a broader “en banc” review by a panel of 11 judges to review that ruling.

The court said Sunday that two judges had wanted to review it at the time, but a misunderstanding resulted in a delay. The court then decided to wait to act until the California Supreme Court and Gov. Pete Wilson reviewed Thompson’s case. The 9th Circuit finally held its en banc hearing Friday, one day after the governor rejected Thompson’s clemency request.

“I think they delayed, hoping the state would fix it and they wouldn’t publicly have to announce their embarrassment,” said Hastings School of Law professor Rory K. Little. “They have got to be embarrassed. This is like a lawyer missing a filing deadline.”

But by blaming the late decision on its own error, the 9th Circuit panel also may have been trying to get around a new federal restriction on last-minute appeals from condemned prisoners. The majority took pains to say that the eleventh-hour turnabout resulted from the court’s mistake, not a last-ditch appeal by Thompson.

“It has all the looks of a circuit that is just in disarray entirely,” Kelso said.

The Supreme Court watches the 9th Circuit carefully. Over the past 10 years, the high court has overturned the 9th Circuit in about 75% to 80% of its cases, compared to a reversal rate of about 50% to 60% for other circuits, Little said.

“The Supreme Court has its eye on the 9th Circuit a lot more closely than it does on the others,” Little said. Although the Supreme Court probably would uphold a similar decision by another circuit, the justices are likely to be more skeptical of the 9th because of the previous tensions, he said.

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The late reversal by the 9th Circuit “simply reflects the intense differences in feelings about the death penalty,” Little said. “That is, the people who are voting for Thompson right now are voting for him because they think he was unconstitutionally convicted and that he could very well not be guilty of a rape-murder. They are saying they have grave doubts about his guilt.”

The Supreme Court has been “suspicious” of the 9th Circuit since the Harris execution, Little said. Ninth Circuit judges issued four separate stays of execution on the night Harris was to die. One came as he was strapped into the death chamber and acid used to form the lethal gas flowed into a vat beneath his seat. An exasperated Supreme Court finally ended the coast-to-coast faxes and deliberations with an order to forbid any federal court from meddling further in the execution.

If procedures had been followed, the 9th Circuit would have voted on whether to hold an en banc hearing on Thompson last spring. “What they have done by issuing this extremely unusual order is to say we are going to reach back four and half months and grab that case and revive it in our court,” Little said.

The 9th Circuit covers nine Western states and is the largest federal appeals court. Unlike many other circuit courts, the 9th Circuit still has many liberal judges who were appointed by former President Jimmy Carter.