Ruling Paves Way for 1st Execution Since ’67 : Death Penalty: U.S. high court rejects California murderer’s appeal. He may face gas chamber by April.

The U.S. Supreme Court on Tuesday moved San Diego murderer Robert Alton Harris a giant step closer to becoming the first person executed in California in 23 years by flatly rejecting a broad challenge to Harris’ death sentence.

The action, taken without comment on a 7-2 vote, means that Harris could die in San Quentin’s gas chamber as early as the spring.

Unless his lawyers can grab a judge’s attention with a new appeal, “Harris will likely be executed sometime towards the end of March or early April,” Atty. Gen. John K. Van de Kamp said at a press conference in San Diego.

“Now, the end is in sight,” Van de Kamp said. “This is a somber moment. There can be no joy in taking a human life. But nor can there be any justice in prolonging this case any longer.”

The 37-year-old murderer of two San Diego teen-age boys has avenues open to him. He appealed earlier this month to the California Supreme Court. But 11 years after he was sentenced to die, the possibility that he will obtain more delays of any length is slim.

His case is much further along than that of any of the other 272 prisoners on California’s Death Row, located at San Quentin prison. No other inmate is within a year of exhausting all appeals. Harris has had his case rejected by the U.S. Supreme Court four times, and the California Supreme Court upheld his death sentence in 1981.

Death penalty opponents, aware that Harris’ time may be running out and that California will resume executions, are laying plans for protests. Gov. George Deukmejian’s staff is looking into how to handle any clemency plea, although the governor is not expected to seriously consider such a request. Department of Corrections officials are rechecking procedures for carrying out an execution at San Quentin.

Members of the families of the slain boys hold out hope that the state will exact their revenge, but are not convinced that Tuesday’s ruling will result in Harris’ death.

“After 11 years, I’m not bringing out the champagne yet,” said Kathryn Mayeski Sanders, 68, the mother of victim John Mayeski.

If Harris is executed, California will join 13 other states that have carried out death sentences since 1976, when the Supreme Court reinstated capital punishment. More than 2,200 convicted murderers are on Death Rows throughout the country, but only 120 people have been put to death since Gary Gilmore was shot by a Utah firing squad in 1977.

Most executions have occurred in four Southern states: Texas, Louisiana, Florida and Georgia. The only states outside the South that have carried out executions since 1976 are Nevada (4), Utah (3) and Indiana (2).

Death penalty foes fear that an execution here will foreshadow executions in other major states outside the South, as well as more in California. Prosecutors, however, do not predict a flood of executions any time soon.

Deputy State Atty. Gen. Louis R. Hanoian, who is handling Harris’ case, said he plans to ask the federal courts to return jurisdiction to the state court system. Once that is done, the San Diego district attorney must ask a Superior Court judge to set an execution date. The date must be 30 to 60 days after the hearing.

“Enough is enough,” Van de Kamp declared. “I urge the courts to grant no further stays of execution. It is time for Robert Alton Harris to pay the penalty prescribed by law.”

Van de Kamp has long said he personally opposes the death penalty but has insisted that he will carry out the law. Van de Kamp’s decision to hold twin press conferences Tuesday in San Diego and Los Angeles prompted Michael Laurence, of the ACLU’s death penalty project in San Francisco, to blast the Democratic gubernatorial candidate.

“This is the first time that I can think of that a politician was willing to use a human sacrifice for his own political advancement,” Laurence said.

“It is legally and ethically irresponsible for the highest law enforcement officer in the state to exhort state and federal judges to disobey the law and deny stays of execution before they have even seen the pleadings.”

Harris’ lawyers, Michael McCabe and Charles Sevilla of San Diego, issued a brief statement Tuesday saying they were “disappointed by the ruling.” They vowed to press the new appeal in the state Supreme Court.

“We know the obvious. The guy is not feeling very good about it,” Sevilla told The Times. “I don’t think anybody can imagine what it is like to live with a death sentence over your head for 11 years while living in the abominable conditions of San Quentin.”

Harris was sentenced in March, 1979, to die for the July 5, 1978, murders of Mayeski and Michael Baker near Miramar Reservoir in San Diego County. His main accuser was his brother, Daniel, who was his accomplice. As recounted in Daniel’s testimony, Harris’ crime was especially cold--though Harris contends that details about him laughing about the murders afterward are lies.

The brothers had decided to rob a bank and needed a car for their getaway. In a parking lot, they saw the boys in a green Ford. Mayeski and Baker were eating Jack-in-the-Box lunches, and planned to spend the day fishing.

Harris pulled a pistol, slipped into the back seat and told them to drive up a fire road near the reservoir. After reassuring the boys that he would not harm them, Harris shot Mayeski from behind, then pumped another round into his head.

Harris chased down Baker. As the boy pleaded, Harris, according to court testimony, declared: “God can’t help you now, boy. You’re going to die.” He shot the high school sophomore four times.

The brothers returned to Robert Harris’ girlfriend’s home, where Harris belittled his younger brother for not having the stomach to join him in eating the boys’ lunches, Daniel testified.

Later that day, they robbed a bank of $3,009. A witness tailed them to the girlfriend’s home and called police, who arrested them. That night, Daniel confessed to the murders. Robert confessed soon after.

In later testimony and occasional interviews, Harris has admitted killing the boys, though he blamed his brother for firing the first shot, a claim that prosecutors dismiss.

“Over the years you quit living in a fantasy world,” Harris said in a California Magazine article last September. “At least I have. I’ve become a realist. You learn to face it. I’m ready.

“If it was my time, I’d walk down there and sit in that chair and say, ‘Let’s do it.’ But I’m not gonna have them do it. I’m not going to volunteer for anything.”

For most of the nine years since the California Supreme Court affirmed his sentence, Harris’ case has been in the federal courts. At times, the progress was so slow that it seemed as if the matter had been forgotten.

The U.S. 9th Circuit Court of Appeals, for example, took 14 months to decide that it would not reconsider aspects of Harris’ case it had ruled on in July, 1988.

The U.S. Supreme Court action Tuesday upheld the circuit court’s ruling of July, 1988, that rejected an array of contentions. The high court’s action came without comment, though Justices William J. Brennan Jr. and Thurgood Marshall dissented, as they do in all affirmations of the death penalty.

Harris’ lawyers say in their latest appeal to the state high court that Harris is a changed man who has friends among prisoners, poses no problems for his keepers and is sorry for what he has done.

Deukmejian, who as a state legislator wrote the law under which Harris was sentenced, can consider clemency. But because Harris was convicted of an earlier felony--voluntary manslaughter--the state Supreme Court would have to concur. Given Deukmejian’s pro-death penalty views, clemency is unlikely.

“The law basically permits a clemency hearing to be held. It’s discretionary. It is not mandatory,” said Huston T. Carlyle Jr., Deukmejian’s legal affairs secretary.

Owing to California’s size and prominence, death penalty opponents are likely to mount strong protests.

“We will see widespread reaction in California, the rest of the nation and the international community,” said Laurence of the ACLU. “California will certainly become a lightening rod for the widespread international view that the death penalty is wrong and that it is a human rights violation.”

California has not used its gas chamber since 1967, when Aaron Mitchell was sent to his death for killing a Sacramento police officer. In 1972, the California Supreme Court led the country by holding that the death penalty violates the state Constitution. The U.S. Supreme Court followed two months later, striking down death penalty laws on the books in other states.

By 1976, the U.S. Supreme Court made it clear that a state’s death penalty law could be constitutional. California’s Legislature quickly drafted such a law. Over then-Gov. Edmund G. Brown Jr.’s veto, a law went into effect in 1977.

Savage reported from Washington and Morain from San Francisco. Times staff writer Alan Abrahamson in San Diego also contributed to this report.

ROBERT ALTON HARRIS

Here is a look, based on court records and interviews, at the man who could become the first person put to death in California since 1967:

Born in South Carolina on Jan. 15, 1953, 2 1/2 months premature. His mother went into labor after his father, an Army warrant officer, kicked her in her stomach. A sister recalled their father beating Harris, believing the boy was not his child. One of nine children, Harris lived with his mother in the Bakersfield area after she divorced his father. His mother kicked him out at 14; he had completed the eighth grade.

After living with a sister, Harris stole a car and was arrested in Florida in 1968. He spent four years in federal institutions. During his incarceration, he was raped, escaped once, and he slashed his wrists.

In April, 1975, he beat to death a neighbor of one of his brothers in El Centro. He pleaded guilty to voluntary manslaughter and served 2 1/2 years in prison.

On July 2, 1978, Harris’ brother, Daniel, broke into a neighbor’s home and stole a .22-caliber rifle and 9-millimeter pistol. The brothers drove to San Diego, where Harris was living, planning to rob a bank.

On July 5, Harris approached a car parked in a lot in Mira Mesa. John Mayeski and Michael Baker, 16-year-old high school sophomores, were in Mayeski’s car eating lunch, getting ready for an afternoon of fishing. At gunpoint, Harris forced them to drive to Mira Mesa Reservoir near San Diego. There, with his brother Daniel standing nearby, Harris shot and killed them, then stole Mayeski’s car for use in the robbery, which netted $3,009. The brothers were arrested later that afternoon at the Mira Mesa home of Harris’ girlfriend.

In San Diego County Jail, while his trial was pending, Harris was part of a kangaroo court that convicted an inmate of “cowardice” and raped him, the inmate testified.

On March 6, 1979, he was sentenced to death. The California Supreme Court by a 4-2 margin affirmed his sentence, sending his case into the federal court system, where it has remained since.

In 1982, an inmate on Death Row said prisoners planned to have a party when Harris was executed because he was so disliked. Now, his attorneys say, Harris is a changed man. They submitted statements from 17 prisoners saying Harris is generous, kind and remorseful.