Appeal Lost; State’s First Execution Since ’67 Likely

In a ruling that could result in California’s first execution since 1967, a federal appellate court Friday affirmed the death sentence of a San Diego murderer of two teen-age boys.

The ruling by the U.S. 9th Circuit Court of Appeals swept aside every issue raised by Robert Alton Harris, 35, whose case has advanced furthest through the court system of any of California’s 232 condemned men.

The 57-page ruling left Harris with few avenues of appeal and led some lawyers involved in the case to say there is a chance that he will die in San Quentin’s gas chamber by year’s end.

“This exhausts all of the claims he has ever made to date. . . . There’s no pending issue the resolution of which would favor him,” said Chief Assistant Atty. Gen. Steve White.

The California Supreme Court had already affirmed Harris’ death sentence more than seven years ago. The U.S. Supreme Court also has upheld key parts of Harris’ 1979 trial, making it unlikely that the court will review his case if his lawyers appeal the ruling, prosecutors say.

Harris’ lead attorney, Charles Sevilla, could not be reached, but he said in an interview two years ago that Harris’ “last best chance” was before the federal appellate court.

Now that he has lost there, Deputy Atty. Gen. Michael D. Wellington said that short of a postponement from the U.S. Supreme Court, “it is very likely the execution could be this year.”

“This case has been examined to exhaustion,” Wellington said. “There comes a time when a court rationally must say, ‘This is it. We’ve looked at it enough. This is an unpleasant thing, but we’ve looked at it enough.’ ”

Harris’ lawyers have 20 days to ask the 9th Circuit to rehear the case. If the court rehears it, Harris’ execution would be delayed. But if a rehearing is denied, the process could move quickly:

* Wellington, who has worked on the case for nearly a decade, would ask a San Diego Superior Court judge to set an execution date. By law, the date must be set within 60 days of the request.

* At the same time, Harris would have 90 days to ask the U.S. Supreme Court to review the case, while also seeking a stay of the execution.

* Harris could ask for stays from various state courts, including the state Supreme Court, which under Chief Justice Malcolm M. Lucas has affirmed 28 of 36 death cases it has decided.

* Harris could seek clemency from Gov. George Deukmejian, a strong advocate of the death penalty. But the governor’s authority is limited by law because Harris has been convicted of two felonies--the murders and manslaughter in Ventura County.

In the opinion by 9th Circuit Judge Arthur L. Alarcon, the court rejected Harris’ key claim--that the death penalty in California is enforced in a racially discriminatory manner against the killers of white victims.

Statistics Cited

Harris’ lawyers, attacking the entire state death penalty system, had cited statistics showing that a killer is five times more likely to receive a death sentence in California when the victim is white than when the victim is from a minority group. The case was argued in November, 1986.

But Alarcon, relying on a major U.S. Supreme Court ruling last year that rejected a similar claim in a Georgia case, said, “General statistical studies of the kind offered here do not prove discrimination.”

“California’s capital sentencing system does not contain the systemic arbitrariness and capriciousness in the imposition of capital punishment” that a court would need to invalidate the law, Alarcon said for a panel that included Judges Melvin Brunetti and John T. Noonan Jr.

The court also rejected claims that Harris was denied a fair trial because potential jurors opposed to capital punishment were not allowed to sit on the jury; that jurors were influenced by heavy media coverage of the crime, and that his lawyer was ineffective because he failed to bring up Harris’ brain dysfunctions in an effort to garner the sympathy of jurors who were considering Harris’ fate.

The court also rejected an argument that the state’s death penalty law gives jurors too much discretion in deciding whether to impose death or life in prison without the possibility of parole.

Harris was arrested July 5, 1978, by San Diego Police Officer Steve Baker, who did not know that earlier in the day Harris had murdered Baker’s son, Michael, and Michael’s friend, John Mayeski.

Kidnaped at Gun Point

The 16-year-old boys had been eating their lunches in the parking lot of a Jack-in-the-Box in northern San Diego when Harris kidnaped them at gunpoint in a scheme to steal their car and use it in a bank robbery. He ordered them to drive to a canyon near Miramar Reservoir where he killed them. Later, he ate their lunches.

In a telephone interview with reporters in San Francisco, Steve Baker, 46, a 15-year veteran of the San Diego police force, said he plans to attend Harris’ execution.

“At that time I’ll know that this whole saga is over with,” he said. “This last 10 years, it’s like an open sore. It just doesn’t heal.”

At San Quentin, officials were awaiting official word from the attorney general’s office before telling Harris of the ruling, although a spokesman there said he most likely had been told by his attorney.

“When something like this happens, the mood on Death Row is, as you might imagine, quite somber,” Department of Corrections spokesman Robert Gore said.

Aaron Mitchell, convicted murder of a police officer, was the last person in California to be executed. That occurred in 1967.