JUSTICE : Will Clinton Again Oppose Executions? Old Pal Says Maybe : A death penalty supporter, the President may face clemency requests. Friend says he once was against the punishment.

By MARK I. PINSKY

Jan. 31, 1995 12 AM PT

TIMES STAFF WRITER

LITTLE ROCK, Ark. — They were two old friends talking on the telephone--more than 20 years of personal history behind them and facing the gruesome reality of the death penalty. As they spoke, a third man’s life hung in the balance.

Rickey Ray Rector, a poor black man who barked like a dog and thought he’d be back for dessert after his execution, was dead within hours. Then-Arkansas Gov. Bill Clinton was back on the road to the White House. Attorney Jeff Rosenzweig returned to his battle against capital punishment, wondering about how much people can change.

Before too long, legal experts say, a U.S. President again will have to decide whether to block an execution. And the 42-year-old Rosenzweig, Arkansas’s best-known anti-death penalty crusader, provides an insight into what Clinton may do if he is that President.

At first glance, Clinton’s often-stated support for capital punishment suggests that any appeals that reach his White House would face the same fate as Rector’s.

As governor, Rosenzweig said, Clinton set dates for execution well in advance of when he was required to, and he refused to support a hike in the $1,000 fee limit on private attorneys assigned to capital cases. Clinton did not commute a single death sentence, allowing four convicted killers to be executed during his terms.

In the most controversial of these cases, Clinton left the New Hampshire campaign trail in January, 1992, to preside over Rector’s execution. Rector was convicted of killing a bar patron and a police officer in 1981, and then shooting himself in the head--a wound doctors testified left him effectively lobotomized, with an I.Q. of 63.

So, is it actually possible that President Clinton would react any differently than Gov. Clinton to pleas to block execution? Rosenzweig thinks he might, because once upon a time--before he was a practicing politician--Clinton was an ardent death penalty opponent.

Rosenzweig, who grew up in the President’s hometown of Hot Springs, Ark., has known Clinton most of his life. His physician father once treated the teen-age Clinton for pneumonia. Bright and idealistic, Rosenzweig and Clinton gravitated to one another in 1969.

“We became fairly good friends that summer,” Rosenzweig said. “We stayed in decent touch for four or five years.”

The two young men shared many opinions, including opposition to the death penalty.

“He was against it,” Rosenzweig recalled. Clinton felt “that there were a number of problems with the legal system and its inherent racism. He felt the risk of error, the chance of the death penalty being given for an improper reason, was too great.”

Just as Clinton had left Hot Springs for the wider world of Georgetown, Oxford and Yale Law School, Rosenzweig later departed for Princeton and Southern Methodist University Law School. But when each returned to Arkansas, their career paths diverged.

Teaching at the University of Arkansas Law School in Fayetteville, Clinton continued his opposition to capital punishment as he launched his political career. In the early 1970s, while teaching with her husband, Hillary Rodham Clinton wrote an appellate legal brief credited with saving a retarded man, Henry Giles, from execution in Arkansas.

However, as Clinton’s political star rose, his opposition to capital punishment shifted to qualified support. After his election as Arkansas attorney general in 1976, it became Clinton’s job to defend the state in death penalty appeals. In the late 1980s, Clinton told a high school audience that he believed the death penalty was not wrong, even though there was no compelling evidence that it was an effective deterrent.

During this same period, Rosenzweig was emerging as the state’s chief death penalty litigator, at one point serving as president of the state’s criminal defense lawyers association and adjunct professor of law at the University of Arkansas at Little Rock. Yet Rosenzweig was reluctant to criticize Clinton’s transformation to a death penalty advocate.

“I am not going to say that his position was . . . changed as a result of expediency,” said the burly, bearded lawyer. “On the other hand, he obviously could not have gotten elected to a state office in Arkansas being perceived as being against (the death penalty). . . . We drifted apart some when he really went into elective politics.”

Rosenzweig, who was named one of 10 “Arkansas Heroes” by Arkansas Times magazine in 1990, said he continued to support Clinton with his votes and contributions, and he still considered the governor his friend.

All that changed in the final hours of Rickey Ray Rector’s life.

As Rector, 40, moved closer to execution, Rosenzweig joined the team of lawyers trying to save him. In rejecting Rector’s final appeal, which was based on his inability to understand the meaning of his execution, the Arkansas Supreme Court suggested that the issue was best addressed in the form of a clemency appeal to the governor. The state appeals board agreed.

Clinton flew from New Hampshire to Little Rock to preside over the execution. Rosenzweig said he believes that Clinton returned to Arkansas because of “his potential vulnerability on the law-and-order issue,” symbolized by the debate over capital punishment.

Several days before, at a Democratic campaign debate in the New Hampshire primary, Clinton had said: “If you get someone who’s really bad, I think capital punishment is appropriate.”

On Jan. 24, 1992, Rosenzweig pleaded with Clinton for Rector’s life from a pay telephone while on the way to meet with Rector at Cummins prison.

“I thought he (Clinton) needed to hear from someone whom he knew, or at least knew fairly well, that Rector really was brain-damaged.

“He asked me a few questions about (the case),” Rosenzweig recalled. “The conversation lasted between five to 10 minutes. I didn’t have any delusions that he was not going to order it (the execution). He heard what I had to say.”

Although Clinton questioned Rosenzweig in detail about the case, and indicated to friends and aides that he agonized over the decision, he didn’t budge.

Later, at the prison, “Rector told me that he was going to vote for Clinton that fall. . . . He was saying he was still a Clinton supporter,” Rosenzweig said.

It took prison officials 50 minutes to find a vein for the fatal injection, as Rosenzweig waited in the witness section.

Presidential clemency did not save Victor H. Feguer, a 28-year-old convicted kidnaper who had the distinction of being the last federal prisoner executed. He was hanged on March 15, 1963, at the Iowa State Penitentiary. The most famous contemporary case of denied executive clemency came when President Dwight D. Eisenhower refused to stop the executions of Julius and Ethel Rosenberg, electrocuted for espionage on June 19, 1953.

When Clinton signed a crime bill last year adding 60 capital offenses to the federal code, the machinery set in motion had one certain result: Pleas to commute executions would someday again land on a President’s desk.

“They will be accumulating,” predicted David Bruck, an attorney with the Federal Death Penalty Resource Counsel Project in Columbia, S.C.

Under the new law, offenses such as carjackings, kidnapings and drive-by shootings that result in death can carry the death penalty.

Federal “drug kingpin” laws, mandating the death penalty for murders committed in connection with drug trafficking, were already on the books when Clinton signed the crime bill. Experts say the first clemency appeals from kingpin cases involving six people sentenced to death could reach the Oval Office as early as 1996.

In addition to the vigorous anti-crime mood of the country, a variety of factors suggests that federal death penalty convictions will be heading for the White House at an unprecedented rate:

* New federal death penalty statutes have been written to conform with the most recent Supreme Court decisions.

* The federal judiciary, especially at the appellate level and above, is full of death penalty supporters appointed by Presidents Ronald Reagan and George Bush.

* A proposal, offered by House Speaker Newt Gingrich (R-Ga.), in the GOP’s “contract with America” would sharply limit federal death penalty appeals.

In his recent State of the State message, California Gov. Pete Wilson urged the federal government to make capital punishment “more than just an idle threat” by streamlining the federal appeals process that “is making a mockery of the death penalty.”

“It’s not unrealistic to think that by end of this century, the first cases will reach the end game” of commutation appeals to the White House, said Kevin McNally of the Federal Death Penalty Resource Counsel Project.

So what might Clinton do if a clemency case like Rector’s--or one perhaps even more vexing, like the Texas case of Jesse DeWayne Jacobs, executed Jan. 5 amid charges that he was innocent--were to come to his desk? Would he spare someone sentenced to death?

“It’s certainly possible, certainly possible,” Rosenzweig said. “But I think it’s much more possible in 2000 than in ’96 (when Clinton would be facing reelection). . . . I could see the circumstance of--I mean it would have to be pretty compelling.”