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Denial of Stay Puts Montana Killer One Step Closer to Death


A sharply divided federal appeals court on Monday denied a stay of execution for a Montana man who has been on Death Row longer than anyone else in the nation, moving him one step closer to being put to death by lethal injection Wednesday.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals, based in San Francisco, denied the stay to Duncan P. McKenzie, 43, who was convicted of murdering Lana Harding, a rural Montana schoolteacher, in 1974.

McKenzie, who has had eight stays of execution during his 20 years on Death Row, had sought the stay on several grounds, primarily that being on Death Row so long constituted cruel and unusual punishment.

However, Monday night a majority of the 9th Circuit's 24 active judges voted to have a larger, 11-judge panel review the case today, according to Jereldine W. Curtis, the circuit's death penalty clerk.

Those judges could sustain Monday's ruling or vote to grant a stay. If the stay is granted, Montana attorneys are expected to ask the U.S. Supreme Court to void it.

If McKenzie is put to death, he would be the first person executed in Montana since 1943.

In rejecting McKenzie's request earlier in the day, Circuit Judge Alex Kozinski's majority opinion put considerable emphasis on the U.S. Supreme Court's 1992 decision spurning San Diego killer Robert Alton Harris' bid for a stay on the grounds that execution by lethal gas constituted cruel and unusual punishment, in violation of the Constitution's 8th Amendment.

In that case, the Supreme Court said that Harris' claim should have been made earlier in the appeal process: "There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief."

Comparably, Kozinski's decision states that McKenzie's claim also could have been raised much earlier: "We are not confronted with a situation where the state of Montana has set up a scheme to prolong the period of incarceration, or rescheduled the execution repeatedly in order to torture McKenzie. The delay has been caused by the fact that McKenzie has availed himself of procedures our law provides to ensure that executions are carried out only in appropriate circumstances." Judge Robert Beezer joined in the majority opinion.

Judge William Norris' dissent contends that the majority misrepresented what was at issue. Norris maintained that a federal trial judge in Montana had committed a clear error in dismissing, without a hearing, McKenzie's appeal on the issue of cruel and unusual punishment and other claims. Norris wrote that the 9th Circuit should have overturned that ruling and sent the case back to the Montana judge with instructions to hold a hearing on the 8th Amendment issue and other claims raised by McKenzie.

Norris maintains that the majority seriously misconstrues and erroneously extends the Supreme Court's ruling in the "extraordinary" Harris case, "and wrongly concludes that the facts of this case are comparable to those in Harris."

In particular, Norris wrote that McKenzie's request is "not an effort to stay an execution with an end run" around federal requirements by filing a class-action suit on behalf of a large group of inmates, as occurred in the Harris case.

In addition, Norris stressed that "McKenzie had a viable claim of miscarriage of justice. Harris did not. Harris' challenge to the method of execution could not have saved him from execution."

Kozinski, appointed by President Ronald Reagan, and Norris, appointed by Jimmy Carter, disagreed on who bears the responsibility for McKenzie's lengthy stay on Death Row.

McKenzie's lawyer, Timothy K. Ford, argues that "state actions and errors" are responsible for about 14 years of the delay, while Montana Assistant Atty. Gen. Pamela Collins contends just the opposite. Kozinski, in essence, agrees with the Montana lawyers. Norris says that Kozinski does not have adequate facts to reach that conclusion and, however the issue is decided, "in no way throws into doubt the viability" of McKenzie's claim of cruel and unusual punishment.

Norris contends that McKenzie has a claim worthy of a full hearing. "In fact, examining whether or not McKenzie's execution at this point in time would further the two principal social purposes identified by the (Supreme) Court as justifying capital punishment--retribution and deterrence-- . . . it becomes clear that McKenzie presents a strong case."

Norris stresses that McKenzie's lengthy stay on Death Row, when combined with harsh prison conditions, satisfies Montana's interest in retribution. The passage of 20 years without executing him, combined with other factors, has "arguably nullified" the deterrent value of executing him now, Norris adds.

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