Justices Uphold Stay of Execution : Death penalty: The Supreme Court sends Harris case to appeals panel. Delay of weeks seen. Murderer was to have gone to San Quentin gas chamber today.

TIMES STAFF WRITERS

The Supreme Court refused Monday to lift a federal judge's order that blocked this morning's scheduled execution of Robert Alton Harris, who would have been the first murderer to die in California's gas chamber in 23 years.

The Supreme Court ruling will delay his execution for weeks, and possibly months, state officials said. It does not mean, however, that Harris is entitled to a new trial on his guilt or his death sentence.

"Oh, thanks," Harris said when informed of the news, San Quentin prison officials said. He was being visited by four family members at the time.

In a frustrating setback for the state's attorneys, the Supreme Court justices on a 6-3 vote ruled that Harris' case must go back to a federal appeals court in San Francisco for arguments over whether Harris had "competent" psychiatric assistance at his trial 11 years ago.

Harris, 37, was convicted of the 1978 murders of John Mayeski and Michael Baker, both 16. The two teen-agers were kidnaped from a fast-food restaurant and then shot by Harris so he could use their car to rob a bank. In early 1979, Harris was convicted and sentenced to death.

The key move to delay the execution, which had been set for 3 a.m. today, came Friday when Judge John T. Noonan of the U.S. 9th Circuit Court of Appeals, reacting to a final plea, said Harris' lawyers had raised a "debatable" claim that his psychiatrists failed him 11 years ago. They say Harris suffered brain damage as a child that could explain his violent nature. If this evidence had been presented to a jury, they argued, Harris might have been sentenced to life in prison rather than death.

On Monday, the Supreme Court was faced with the question of whether to rebuke Judge Noonan, an appointee of President Ronald Reagan, for having intervened in the last moments of the Harris case. Though a majority of the high court strongly supports the constitutionality of the death penalty, they decided not to overturn Noonan.

On Saturday, after Noonan had granted Harris a stay of execution, state lawyers filed a 40-page motion with the high court arguing that the stay should be lifted. They argued that Noonan had made fundamental errors in his decision.

On Sunday, lawyers for Harris countered with a 30-page motion arguing that Noonan's decision should be accorded "great deference" because he was familiar with the details of the case.

For most of Monday, the justices kept everyone in suspense. They gave no indication how they would rule, or even whether they would rule. But at 3:10 p.m. Pacific Daylight Time, the clerk issued a brief order on behalf of the court:

"The application of the attorney general of California to vacate the (appeals court) order, dated March 30, 1990, staying the execution of sentence of death, presented to Justice (Sandra Day) O'Connor and by her referred to the court, is denied."

Voting with O'Connor to leave the stay intact were Justices William J. Brennan Jr., Thurgood Marshall, Byron R. White, Harry A. Blackmun and John Paul Stevens.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Anthony M. Kennedy voted to overturn Noonan's order and to allow the execution to proceed as planned.

When word arrived at 3:30 p.m., the decision was cheered by anti-death penalty protesters outside the main gate of San Quentin prison, where Harris has been held on Death Row a few floors above the long-idle gas chamber.

Survivors of Harris' two teen-age victims were disconsolate.

"Hopefully, one day someone will just waste (Harris) in prison or something," said Linda Herring, an Escondido homemaker and sister of victim Michael Baker. "Not exactly waste him. I just hope someone in prison will take care of him. A criminal against a criminal. Obviously, the good people don't take care of the good people anymore."

She added, "It's all a big game. The politicians are getting off on it and the attorneys are getting rich on it and the family victims are suffering because of it."

In Sacramento, Gov. George Deukmejian, who as a state senator wrote the death penalty law under which Harris was sentenced, reacted angrily to the court action.

"Still no resolution, still no justice--just delay, delay and more delays," Deukmejian complained. "The facts in this case are not in dispute. Robert Harris murdered those two young boys in cold blood and he admits it . . . The federal courts--and I should make that the federal appellate courts--in this case have been anything but competent."

Atty. Gen. John K. Van de Kamp, a Democratic candidate for governor, expressed what he said was his "deepest sympathy" for the families of Harris' murder victims.

"The friends and family of the boys who were murdered have to relive this case every time it comes up for another court hearing," Van de Kamp said. "They must feel dismayed by the fact that in their minds justice has not been done."

Asked several times during Monday's news conference whether he personally believes Harris should be executed, Van de Kamp refused to give a yes or no response. He has said he is personally opposed to the death penalty, but insists that his personal views are not interfering with his responsibility to enforce the law.

Harris' San Diego defense lawyer, Charles M. Sevilla, said he was "elated" to hear the news of the Supreme Court's decision.

Sevilla said it was impossible to guess how long it would take to decide the new appeal. He also predicted that Harris would prevail and see his sentence reduced to life in prison without the chance of parole.

"We're going to win this," Sevilla said. "This is Robert's strongest appeal."

Sevilla said he talked to Harris once Tuesday morning and again Tuesday afternoon after hearing from Washington, and there was a "big difference in the conversations.

"He was very strong and ready for what might come, but understandably very anxious," Sevilla said. "He was spending what he thought might be his last day on Earth with his family. So he was very relieved when the word came down."

The next step in the case will be a hearing before the three-judge appeals court panel that had rejected a previous appeal by Harris in 1989--including Noonan of San Francisco and Judge Arthur L. Alarcon of Los Angeles and Melvin Brunetti of Reno, Nev.

The panel will review not only Harris' claim of incompetent psychiatric assistance but other issues his attorneys raise as well--such as whether prosecutors improperly employed another jail inmate, acting as a "government agent," to elicit incriminating statements from Harris while he was awaiting trial.

The panel will rule on whether Harris is entitled to a full-scale evidentiary hearing in federal District Court. The losing side in this ruling, whether it is the prosecution or defense, can appeal to the full, 27-member circuit court, and that ruling in turn could be taken back to the U.S. Supreme Court.

If Harris wins, the evidentiary hearing would be conducted before U.S. District Judge William Enright in San Diego. And if Harris wins before Enright, and that ruling is upheld, a new penalty trial would be held in the state trial court that convicted Harris in 1979 and sentenced him to death.

In preparation for what was to have been the first California execution since Aaron Mitchell was put to death in 1967, Harris had been kept in a special cell on Death Row for the past week, separated from other inmates by a heavy steel mesh screen.

Prison spokesman Fred Everly said Harris would be returned to his old cell "in the next few days."

Harris had chosen his spiritual adviser, Chaplain Earl Smith of San Quentin, to spend the final moments with him. His requested final meal, according to one source, was to have been steak, shrimp, pizza, chicken and ice cream. As a final request, he asked that each of the 33 prisoners on his tier of Death Row receive pints of ice cream.

"I'm very happy," said Randall Harris, a brother who came to California last week to visit Harris for what he had feared would be a final time, and spent an anxious day Monday awaiting word from the Supreme Court.

"It really was a roller coaster," said Michael Laurence, of the American Civil Liberties Union of Northern California, who joined the defense team in the past months. "This reaffirms my faith in the federal judiciary."

But for the families of Mayeski and Baker, the Supreme Court decision was another incomprehensible legal delay.

Kathryn Mayeski Sanders, the mother of Mayeski, said from her home in Ramona that she was "disappointed--very disappointed.

"There's something wrong somewhere with the system . . . ," said Sanders. "I've never heard of any case going on this long and having so many stays of execution and so many appeals. I was hopeful. I thought we had a chance. But we didn't."

The decision was particularly puzzling because the high court had turned down Harris' appeals four times before, said John Mayeski's sister, Kathryn Clark, 45, a nursing assistant from Port de Posit, Md.

"I can't understand the Supreme Court," she said. "They've denied him all the way up the ladder."

She said the ordeal was torturing Sanders, her mother, who is fighting cancer.

"I'm in the medical field and I know this stress aggravates cancer," Clark said. "The more this continues, they may be saving Harris' life but they are killing my mother, in so many words."

Earlier in the day, Steve Baker, the father of Michael Baker, made the trip to San Quentin, hoping that within hours he would watch the execution.

Baker, a San Diego police officer who helped arrest Harris without knowing that his own son was one of the victims, has made it known for years that he wants to watch Harris die.

"I want to see him punished," he said Monday.

Demonstrators began arriving outside San Quentin's main gate late Monday morning, supplementing the handful of death penalty opponents who had staged around-the-clock candlelight vigils there since Feb. 6, the day Harris' execution date was set.

However, their numbers were much smaller than law enforcement officials had expected, perhaps because of the uncertainty surrounding the scheduled execution. By noon, under a warm sun that sent temperatures soaring, the two dozen or so demonstrators still ran third in numbers behind journalists and police officers.

DEATH ROW SURVIVOR--Robert Page Anderson, whose appeal halted capital punishment in California, has no pity for Robert Alton Harris. A3

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