The defense of a capital judgment by state counsel is a long-term commitment of time and resources.
On March 6, 1979, Robert Alton Harris was sentenced to death by the Superior Court in San Diego, California, for the July 1978 murders of two teenaged boys. The California Supreme Court affirmed the death judgment in February 1981.1 For the next 11 years deputies from the California Attorney General's Office defended Harris's death judgment against habeas corpus attacks in the state and federal courts, including the United States Supreme Court.2 With all challenges to the judgment apparently resolved, in March 1992, the San Diego County Superior Court scheduled an execution date of April 21, 1992. Prison officials announced that the execution would take place at 12:01 a.m. on that date.
On Thursday, April 16, Harris filed his ninth state habeas corpus challenge to the death judgment in the California Supreme Court. At 10:00 a.m. on April 17, he filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of California challenging the state's use of lethal gas as a method of execution. The next day Harris filed his fourth federal habeas corpus petition in the United States District Court for the Southern District of California. Later that day he moved in the Ninth Circuit Court of Appeals to recall the mandate from denial of his previous federal habeas corpus proceeding.
Over the weekend state attorneys replied to all of these last-minute efforts to stay Harris's execution. The lethal gas challenge resulted in a hearing in the district court on the evening of April 18, after which the district court issued a temporary restraining order that effectively vacated the execution date. The state's petition for writ of mandamus seeking to overturn the stay was argued telephonically to the Ninth Circuit on the evening of Easter Sunday, April 19. The petition was granted late that night, thus reinstating the execution date.
Although the state and federal courts rejected all of Harris's habeas corpus challenges, beginning on the evening of April 20, the Ninth Circuit began issuing a series of stays based on the lethal gas case. By 3:00 a.m. on April 21, the United States Supreme Court had vacated three stays and prison authorities prepared to execute the death warrant.3 At 3:51 a.m., with Harris in the execution chamber, a Ninth Circuit judge called the prison to issue yet another stay. The state again asked the Supreme Court to vacate the stay and an order to that effect was issued at 5:45 a.m.4 Harris was finally executed at 6:21 a.m.
In the 13 years since the Harris litigation, California has completed 10 other executions. Two of those executions were stayed at the last minute by Ninth Circuit orders and they had to be reset following additional litigation. In one of those cases the Supreme Court granted certiorari and following argument vacated a Ninth Circuit order belatedly granting rehearing en bane.5 In a 2004 case the Ninth Circuit granted a last-minute application to file a successive habeas corpus petition and that litigation is still pending.6 Even in two cases involving inmates who sought to waive further review and accept the judgment, various efforts were made by interveners to challenge their competence to do so.7 Before an execution in January 2005, the attorney general's office filed responsive pleadings in several state and federal courts and made appearances in the San Mateo County Superior Court and the United States District Court in San Jose, and argued three times before the Ninth Circuit, twice in Pasadena and once in San Francisco, during a five-week period.8
As these events illustrate, last-minute litigation in capital cases can be extensive and intense. It is, however, but a small part of the responsibilities faced by state attorneys defending death penalty judgments. In California, the attorney general's office is responsible for all post-conviction proceedings in capital cases, including direct appeal before the California Supreme Court, all state and federal habeas corpus challenges and appeals arising from those challenges, as well as any other collateral attacks on the judgment or execution procedure. …