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PROFILE / JUDGE HARRY PREGERSON : Choosing Between Law and His Conscience


Harry Pregerson may forever be known as the man who snatched a prisoner from the gas chamber.

The 68-year-old judge, the son of an immigrant postal worker, became part of the somber history of capital punishment when he issued a last-minute reprieve only minutes before double murderer Robert Alton Harris was scheduled to die late last month.

A shaken Harris was brought back and executed two hours later, after an irritated U.S. Supreme Court issued an unprecedented order saying there would be no further stays in the federal courts.

The resulting furor, whipped up by columnists writing on both sides of the political spectrum, has thrust the soft-spoken judge from Woodland Hills into the public eye in a way that hasn't happened since his confirmation hearings to the U.S. 9th Circuit Court of Appeals 13 years ago. He made the front pages then when the Senate Judiciary Committee asked what he would do if he faced a choice between following the law or his conscience.

"My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn," he said at the time. "If I had to follow my conscience or the law, I would follow my conscience."

In his first interview since the execution, the man described by friends as an old-style compassionate liberal said he followed the law in the Harris case. Whether his decision conformed to the dictates of his conscience and his heart was beside the point.

"I made my decision, and I'm satisfied that it was right," he said.

Pregerson issued his stay to give Harris' attorneys time to argue before the California Supreme Court that an execution using lethal gas constituted cruel and unusual punishment. But the high court had earlier ruled that that argument should have been made earlier and quickly overturned the stay. "No further stays of Robert Alton Harris' execution shall be entered by the federal courts except upon order of this court," the justices ruled.

He said he did not want to be drawn into a dispute with the Supreme Court and quoted humorist Finley Peter Dunne, who said, "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns."

"I choose to follow the Constitution," Pregerson said.

Exasperated, he asked: "Do I think our constitutional rights are being eroded away? Yes. Do I think someday we will regret it? Yes. Do I think the day will come when the pendulum swings the other way? Yes."

The man in the middle of the public storm over capital punishment is hardly the firebrand one might expect. He has been married for 45 years to a woman who teaches microbiology at Pierce College. He likes to putter in his garden and tend his fruit trees. A mild-mannered intellectual, he prefers to reason out even the smallest issue rather than make a rash assumption.

"He looks at everything in great detail and takes everything perfectly seriously," said a former law clerk. "He is the perfect judge."

Pregerson is the son of Ukrainian Jews who emigrated to the United States around the turn of the century and settled in a small bungalow in East Los Angeles, where Jewish, Mexican, Russian, Asian, black, Slavic, Irish and Italian children all mixed together and got along.

"We used to have a League of Nations Day where everyone would show up in the costumes of the countries from which their parents came," he said. "We would have a big parade around the football field."

Abraham Pregerson stressed education, setting up a makeshift classroom in his garage where he tutored his two sons and a daughter for hours each night. Harry Pregerson knew he would be a lawyer some day. His father was an admirer of Clarence Darrow, the famed attorney who championed the cause of the little man.

"These legacies live on," he said, "these concepts of helping working people to achieve a decent standard of living."

Pregerson's admirers say he carried those simple values into his legal work. If someone needed help, he took the case. Usually, they paid. If they could not, he reasoned, maybe they could refer other clients to him.

In 1965, he was appointed to the Los Angeles Municipal Court bench, moved up to the Superior Court the next year and in 1967 become a U.S. District Court judge in Los Angeles. He developed a reputation as a liberal jurist who didn't limit his pursuit of justice to the courtroom.

"He's like the embodiment of pure goodness," said former law clerk Felicia Marcus, who is now president of the Board of Public Works in Los Angeles. She recounted an argument between two people who knew the judge over one of his decisions. "The only problem with Harry is he's trying to do justice," said one of the debaters.

Pregerson is more than a bench judge who rules on motions. "He'll take people who are at each others' throats and force them to talk to each other" to resolve problems, she said.

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