U.S. Court Acts to Curb Power of Single Judge to Delay Executions : Justice: Panel that clashed with Supreme Court over Harris prepares rules to eliminate the authority of only one judge to stay death penalty.

SAN FRANCISCO —  The federal appeals court that clashed with the Supreme Court over California’s execution of Robert Alton Harris proposed Thursday to curb the power of its individual judges to issue last-minute stays of execution.

The 9th U.S. Circuit Court of Appeals announced that it was preparing rules to eliminate the authority of a single judge to issue stays for up to seven days in some circumstances, and make other one-judge stays immediately reviewable by court panels.

The rules would not apply to a condemned prisoner’s first federal appeal, but would cover later appeals. They could take effect next summer, said court spokesman Mark Mendenhall.

The proposal “is certainly moving in the right direction,” said Dave Puglia, spokesman for state Atty. Gen. Dan Lungren. “This indicates the court is taking seriously the concerns that Lungren and others have put forth.”

Attempts to contact death penalty lawyers at the California Appellate Project and the American Civil Liberties Union were unsuccessful.

Harris, convicted of the 1978 murders of two San Diego teen-agers, was put to death in the San Quentin gas chamber this April, California’s first execution since 1967.

During the final night, judges of the 9th Circuit imposed four separate stays of execution, which were lifted by the Supreme Court; in its last order, generally described as unprecedented, the high court said no further stays by lower courts would be allowed.

Several of the stays were imposed by one of the appeals court’s 28 judges. Under current rules, after a three-judge panel of the court rules that an execution can proceed, any judge can order a stay for up to seven days to let the entire court vote on whether to refer the case to an 11-judge panel for further review.

The 9th Circuit, which covers nine Western states and is the largest of the federal appeals courts, is the only court that has such a rule. In a speech to the appeals court’s annual conference this August, Supreme Court Justice Sandra Day O’Connor questioned one-judge stays and urged the court to speed up its procedures.

The proposal announced Thursday would eliminate automatic seven-day stays. Instead, once a three-judge panel has ruled against a prisoner, any judge could still request a vote by the full court, but no stay would be imposed unless approved by a majority of the 11-judge panel, which would have been appointed when the appeal was filed.

The idea behind the change, Mendenhall said, is that a seven-day stay to allow consideration by the full court will no longer be needed because the 11-judge panel will already be in place and can act quickly.

Another change would affect a procedure that was used to block Harris’ execution for two years: allowing any member of a three-judge panel to issue a stay that cannot be lifted until the court decides the appeal.

After a federal judge in San Diego rejected an appeal on psychiatric issues, 9th Circuit Judge John Noonan, a member of the three-judge appellate panel, held a hearing, ruled that the defense had a plausible claim and stayed Harris’ execution, then scheduled for April 1990. The state appealed unsuccessfully to the Supreme Court to lift the stay, which then remained in place until the case was argued before the panel last year.

Under the new proposal, a stay imposed by a single judge would be referred immediately to the three-judge panel, which would decide whether to lift it. If the panel imposed a stay, it could be removed by the 11-judge panel before the merits of the case were argued.

Mendenhall said the rule changes were proposed by the court’s Death Penalty Committee--Judges David Thompson, Arthur Alarcon and William Canby--and approved in principle by the court at a meeting Oct. 14. The rules, not yet formally drafted, are to be circulated to lawyers and judges for comment early next year, Mendenhall said.