DEATH ROW DEFIES FINALITY\Advocates seek faster process.

Byline: Keith Stone Daily News Staff Writer

On San Quentin's Death Row, they were ready to execute William Kirkpatrick Jr. this week with California's first lethal injection.

But just days before his scheduled execution, the convicted double murderer made a life-prolonging decision - one that could hold the executioner at bay for four more years or perhaps even forever.

He decided to file an appeal.

A judge Friday granted Kirkpatrick a stay of his execution, setting in motion his appeal in U.S. District Court in Los Angeles. He joins 126 other California Death Row inmates whose district court appeals are pending, some lingering for as many as eight years.

California's Death Row is packed with a record 432 inmates, with more arriving every month. Yet the state has used its gas chamber only twice since the U.S. Supreme Court removed its self-imposed ban on executions in 1976.

Until last week, even the 35-year-old Kirkpatrick voiced frustration that the wheels of justice are at best square.

"Give me my execution date and kill me!" he wrote last year in a letter to the U.S. Supreme Court.

California's last execution took place when it did, in 1993, only because David Mason chose to give up his appeals. It took him 11 years to get to the gas chamber, from the day he was convicted of five murders.

Now, with public sentiment firmly in favor of capital punishment, Congress and the courts have been bent on removing obstacles to executions.

California prosecutors insist that not enough has been done. Defense attorneys, predictably, assert that Congress and the courts are rushing executions. What both sides readily agree on is that justice is not being served.

"Justice takes time. If we don't want to take time - we can lynch people," said Yale University Law School professor Stephen Bright, director of the Southern Center for Human Rights.

"The courts today, and not so much in California, but in many parts of the country, are beginning to give these cases very short shrift. And I think in terms of the outcome, that is unfortunate," Bright said.

But prosecutors say the courts are allowing inmates to abuse the system.

"These guys are not innocent, and they cannot make a showing they are colorably innocent and at that point the litigation should be at an end - and the judgment should be enforced," said Deputy Attorney Dane Gillette, who is capital case coordinator for the state Attorney General's Office. "It just unnecessarily prolongs that process for the survivors. I think they are entitled to have the issue brought to finality and completion."

Kirkpatrick was convicted of shooting to death 16-year-old James Falconio and 27-year-old Lindell Wayne Hunter while robbing a Burbank Taco Bell in 1983.

Rose Falconio, mother of James Falconio, said Kirkpatrick's appeal is a purposeful attack on the victims' families.

"At the trial, he enjoyed every minute of seeing the families suffer," she said. "He thrives on that stuff."

More than half the inmates on Death Row are tied up in appeals.

The California Supreme Court alone is considering 259 capital case appeals, with 125 indefinitely stalled because the inmates don't have attorneys. Four more inmates await rulings from the 9th District Court of Appeals.

In theory, so much courtroom wrangling and brainstorming should create enough case law to eventually accelerate the rate of California's executions.

"Whether it will or whether it won't remains to be seen," Gillette said.

Death penalty expert Franklin Zimring predicts it won't.

While new laws and court decisions appear to tighten the noose on condemned inmates, Zimring asserts that in reality they provide attorneys on both sides with new issues to debate in court.

For each new law and Supreme Court decision, there needs to be a court hearing to determine whether it applies to the case at hand.

"What it becomes is a seven-layer cake," said Zimring, a professor at the University of California's Boalt Hall Law School in Berkeley. "Ideally, if you really want the trains to run on time, you want an unchanging, substantive legal system."

Lawmakers are now debating a bill that would strengthen limits on the number of times inmates could file habeas corpus appeals seeking to overturn state court verdicts.

Derived from English common law, habeas corpus was used to challenge unlawful detentions by the king. In the United States, habeas corpus has evolved into an appeal for Death Row inmates and other prisoners.

At the same time that Congress tries to tighten the rules, the attitudes of judges themselves are shifting toward the affirmance of death penalty cases.

A 1993 Supreme Court ruling told one inmate that new evidence of his innocence would not be reviewed. In 1991, the high court told another inmate that he was barred from a federal review because his lawyer had filed his state appeal a day late.

In California, the state Supreme Court has become the nation's leading state court in upholding death sentences. Last year, that court reversed no capital cases - in marked contrast to 1986, when it affirmed 64 out of 68 appeals.

This sharp turnabout can be attributed to a single reason: Justice Rose Bird and two liberal colleagues were voted from office and replaced with conservative judges.

Now, Congress is debating legislation that would limit the ability of federal courts to overturn the decisions of California's highest court and those in other states.

Prosecutors herald such legislation as a major, necessary reform, but defense attorneys view it as a major gutting of the Constitution.

What is likely is that such a law would tie up death penalty cases initially while attorneys on both sides debate its constitutionality.

Contained in the anti-terrorism bill, the legislation seeks to limit inmates to a single habeas corpus petition in federal court, unless the inmate proves clear evidence of innocence.

The legislation also would set a deadline for such a filing.

"We have never before, in this country, imposed a statute of limitations on habeas petitions," said George Kendall, assistant attorney for the NAACP Legal Defense and Education Fund in New York.

Perhaps most important, the law would further tell federal judges under what conditions they could overturn a state court's ruling.

Federal courts would have to defer to state courts, unless the lower court's ruling was "contrary to" or was an "unreasonable application" of a federal law as determined by the U.S. Supreme Court.

Existing law allows federal courts far more latitude in taking a fresh look at many issues in appeals that have passed through a state court.

According to Bright, the legislation seeks to "strike a fatal blow at fairness," particularly because the state court judges serve at the mercy of voters.

California Attorney General Dan Lungren staunchly supports such change in habeas provisions and, in fact, was among its earliest architects when he served in the House of Representatives during the early 1980s.

In a May 1995 letter to President Clinton, Lungren joined other state attorneys general to push for passage of the law. "Unless habeas corpus reform is enacted," they wrote, "capital sentences for such acts of senseless violence will face endless legal obstacles."

The state Attorney General's Office estimates that the law, on average, could cut in half the amount of time spent on habeas litigation.

Prosecutors point to other delays wrought by the courts.

The California Supreme Court needs a record of the inmate's trial before it can rule on the appeal. In one case that Deputy Attorney General Bob Foster recalled, the defense spent two years ordering corrections in the record.

"Amongst the corrections they wanted were spelling corrections, which, of course, made no difference to the outcome," Foster said. "But it was part of the delaying technique."

California's first execution since the death penalty was reinstated, of Robert Alton Harris in 1992, became mired in the 9th Circuit Court of Appeals, which issued an extraordinary series of overnight rulings that were overturned ultimately by the Supreme Court.

Another key logjam for capital cases is the lack of defense attorneys.

There are now 125 inmates on Death Row without attorneys, including one whose case dates back to 1992, said Robert Reichman, automatic appeals monitor for the state Supreme Court.

Each month the court appoints two attorneys, while during that same time an average of three more people head for Death Row, he said. "At a certain point, the number of new cases makes it rather difficult to eliminate a backlog."

Cutbacks in federal grants for legal defense in capital cases have made it even more difficult to defend inmates.

But that is the least of the problems in recruiting attorneys, said Laurie Zelon, a Los Angeles attorney who is chairwoman of the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants.

"It is heart-wrenching and incredibly difficult work on an emotional level," she said, "knowing that someone's life can quite literally rest in your hands."

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William Kirkpatrick Jr. Execution may be a long way off