Six months after the execution of Robert Alton Harris, debate still rages in legal circles over the remarkable judicial power struggle and last-minute delays that continued even as Harris sat awaiting death in the gas chamber.

“We had a disgraceful performance that night,” Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals said this week to a forum of lawyers. “Some blame the Court of Appeals and some blame the Supreme Court.”

For Reinhardt and other defenders of the appellate court, it was a clear case of the nation’s highest tribunal running roughshod to ensure that Harris was executed on schedule, even at the expense of his constitutional rights.

For others, it was a case of unwarranted delays by the 9th Circuit that finally justified the Supreme Court’s unusual order to end a 14-year legal dispute that had produced 21 separate appeals and four agonizing last-ditch stays of execution before Harris was put to death at 6:21 a.m. on April 21.


“It is hard to describe that as a rush to judgment,” said former U.S. Solicitor General Charles Fried, now a professor at Harvard Law School.

Harris, 39, was the first convicted killer to be executed in California in 25 years. The final act of the judicial drama surrounding the case began April 18, when U.S. District Judge Marilyn Hall Patel delayed the execution to hear a civil rights claim by Harris and other prisoners that inflicting death by gas was cruel and unusual punishment.

Late the next day, a federal appeals panel lifted the stay. Then on April 20, as Harris was readied to be executed at midnight, the first of four stays of execution was issued by 9th Circuit judges to hear constitutional claims by Harris--three involving his challenge to the use of lethal gas.

The last of the four stays was ordered by Appellate Judge Harry Pregerson as Harris sat in the gas chamber at 3:51 a.m.


Through the night, however, the four stays were vacated in turn by the high court, which in a rare move finally instructed the lower court at 5:45 a.m. to issue no more stays.

Speaking Tuesday night before the Federalist Society of Sacramento, Reinhardt, one of the most liberal jurists on the 9th Circuit, defended the delays in carrying out Harris’ sentence as valid attempts to protect constitutional rights. The Supreme Court, he said, is controlled by “proceduralists” who see their task as “ensuring daily executions.”

Reinhardt specifically defended his colleague Pregerson against criticism that the last pre-dawn stay, designed to let Harris live long enough to take his anti-gas claim to the state Supreme Court, was legally unjustifiable.

“I would not condemn him for a decision any judge who loved the Constitution would have taken,” Reinhardt said.


Fried, who served as the government’s chief court advocate during the Reagan Administration, defended the high court’s intervention, noting that the justices had taken similar action in the past to end lower-court defiance of orders to desegregate schools and to grant new death penalty trials.

In a written question to the panelists, state Atty. Gen. Daniel Lungren asked how 14 years of court proceedings could be justified to the families of the two teen-age boys that Harris murdered in San Diego in 1978.

Reinhardt expressed sympathy for the families, saying that if he were related to a murder victim he probably would want the killer executed on the spot. But the jurist went on to assail politicians “who criticize judges for following the law.” Death penalty cases are too complex to resolve in a year or two, he said, particularly when new evidence might emerge clearing the defendant.

In California, the judge noted, capital cases by law go directly to the state Supreme Court without benefit of initial review of their voluminous records by a state appeals court. “How the California Supreme Court can properly deal with death penalty cases, I can’t imagine,” he said.


On Wednesday, at a second discussion of the case at Hastings College of the Law in San Francisco, similar misgivings about the hectic four days before the execution were voiced by Stanford law professor Robert Weisberg and state Deputy Atty. Gen. Dane R. Gillette, the state’s coordinator of capital cases.

“What happened in the Harris case was crazy,” Weisberg said.

Gillette, among other things, defended the high court’s action, noting that Harris had confessed repeatedly to the crime and had “a full and complete opportunity to litigate every possible issue.”

Weisberg raised concerns that Pregerson’s last-minute stay was essentially a futile act and perhaps even cruel to Harris when there was little realistic possibility that the execution would be delayed more than a few hours.


The professor predicted that in view of recent Supreme Court restrictions on constitutional challenges by prisoners, few future capital cases would last as long as the Harris case.

Gillette reported that of about 85 California capital cases in the federal courts, only two are before the 9th Circuit and thus closest to resulting in an execution. It is unlikely, he said, that there will be another execution in California for at least two years.