William A. Norris, one of the 10 federal appeals court judges who attempted to halt the execution of Robert Alton Harris, criticized Gov. Pete Wilson on Thursday night for attacking those judges before considering everything that led up to four last-minute stays of execution.
On Wednesday, Wilson said "manipulative lawyers and indulgent judges" who issued the stays created a "macabre legal circus" in trying to prevent Harris' execution.
"Before blaming everything on the judges who had a hand in issuing the stays of execution," Wilson should have considered the way in which two other federal appeals court judges issued "a highly extraordinary" order paving the way for the execution to go forward immediately, Norris said.
If those two judges had not issued that order, he said, there would have been no confrontation between the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court early Tuesday morning.
Norris, appointed in 1980 by President Jimmy Carter, said he was speaking out because he was frustrated by the failure of the media to explain the reasons underlying the actions of the judges who issued the stays.
"The 9th Circuit and its individual judges are not and should not be immune from public criticism for issuing the stay orders," Norris said in Los Angeles.
"But it seems to me that the press has overlooked the importance of the writ of mandate" issued by a 2-1 decision of a 9th Circuit panel on Sunday night, said Norris, 64. "A writ of mandate is a highly extraordinary remedy . . . a drastic remedy. It is rarely used."
In this instance, he said, the panel "invoked that extraordinary remedy" to vacate a temporary restraining order issued by U.S. District Judge Marilyn H. Patel on Saturday.
Acting in response to a class action suit by the American Civil Liberties Union, Patel's restraining order prohibited the state from executing any Death Row inmate, including Harris, by lethal gas during a 10-day period. The purpose of the restraining order was "to preserve the status quo until Judge Patel could conduct a hearing on whether to issue a preliminary injunction based on the claim that execution by lethal gas is unconstitutional," Norris said.
The writ of mandate, issued by the two federal appeals court judges--Arthur L. Alarcon and Melvin Brunetti--knocked out the restraining order, setting the stage for Harris' execution to proceed on schedule. In his decision, Alarcon said Harris should have raised the lethal gas issue in state court and had ample opportunity to do so in six previous state appeals. Alarcon also said Patel should not have considered the ACLU suit.
The other judge on the three-judge panel, John T. Noonan, dissented, saying that Patel had a right to consider the case. Noonan added that a serious constitutional issue had been raised and that the decision violated the 9th Circuit's precedents, which discourage tampering with a trial judge's restraining orders.
Norris said the immediate issuance of the mandate made it "extremely difficult" for the 26 other 9th Circuit judges to invoke their procedures for overriding the action of the panel. Had its ruling been overturned, Patel's restraining order would have been reinstated, preventing Harris' immediate execution.
Then, Norris said, the state attorney general's office would have had to ask the U.S. Supreme Court "to take the drastic step" of issuing its own writ of mandate "to interfere with a single trial judge's broad discretion to issue a temporary restraining order."
"Perhaps the Supreme Court would have been willing to take that drastic step," Norris said. "We have no way of knowing. But in any case . . . there would have been no confrontation between the Supreme Court and the 9th Circuit to write about. The sole news would have been that the Supreme Court had taken the extremely rare step of interfering with the broad discretion of a trial judge to issue a temporary restraining order, particularly when the effect was to allow an execution to take place."
Late Wednesday, Alarcon and Brunetti withdrew their original order, saying it had become moot. The action enables Patel to resume consideration of the class action suit over use of the gas chamber.