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.

The Supreme Court refused Monday afternoon to lift a federal judge’s order that blocked today’s scheduled 3 a.m. 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 ensures Harris a new hearing in federal court but does not mean that he is entitled to a new trial on his guilt.

“Oh, thanks,” Harris said when informed of the news, San Quentin prison officials said. His sister and two other relatives were visiting at the time and the family embraced each other, an attorney for Harris said.

In a 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 San Diego 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.

Two years later, the state Supreme Court upheld the death verdict--one of only four death sentences the court affirmed while Rose Elizabeth Bird was chief justice. Subsequent appeals by Harris were rejected, four times each by the California and U.S. Supreme Courts.

The execution had been stayed Friday by Judge John T. Noonan of the U.S. 9th Circuit Court of Appeals in San Francisco after a final plea by Harris’ lawyers.

They contended that new mental evaluations found evidence of brain damage that psychiatrists failed to detect before Harris’ murder trial. If the mental disorder indicated that he killed based on irrational impulse rather than premediation, jurors may have been persuaded not to return a death sentence, Harris’ attorneys argued. That specific point was not raised in earlier appeals.

Last Wednesday, U.S. District Judge William B. Enright of San Diego rejected those and other claims and refused to postpone the execution.

But on Friday, Noonan ruled that Harris should get more time to press his claim. Under a 1985 decision by the U.S. Supreme Court, defendants are entitled by the Constitution to competent psychiatric help when their mental condition is at issue, Noonan said.

On Saturday, state lawyers filed a 40-page motion with the high court arguing that Noonan’s stay should be lifted because of fundamental errors in his ruling.

In the motion, Atty. Gen. John K. Van de Kamp argued that the courts should not “second-guess” the psychiatric experts who examined Harris 12 years ago. Also, the 1985 Supreme Court ruling should not be applied to Harris, who was tried six years before that ruling was issued, the state argued.

As a small crowd gathered Monday outside the San Quentin gates and Harris received a final visit from his family, the Supreme Court justices gave no indication how or when they would rule. But at 3:10 p.m., 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.

The decision was cheered by anti-death-penalty protesters outside the 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 disappointed.

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

Edward Condon Jr., 27, Mayeski’s second cousin and a childhood friend, said from his Rancho Cucamonga home, “For the Supreme Court, it’s just another name, just another murder. I don’t believe they feel the full impact of their judgment.”

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.”

Van de Kamp, a Democratic candidate for governor, expressed 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.

Under questioning, Van de Kamp refused to say if he personally feels Harris should die. He has said he opposes the death penalty, but insists that his personal views do not interfere with his responsibility to enforce the law.

Harris’ San Diego defense lawyer, Charles M. Sevilla, 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 Harris, the product of a violent family, was visiting with his sister, a niece and the niece’s husband when news of the Supreme Court ruling came. “They obviously were overjoyed,” Sevilla said. “I understand that even the guard who brought the news and saw the reaction wept.”

They were in a visiting room where contact was forbidden, Sevilla said, but the guard allowed them to hug.

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--composed of Noonan, Judge Arthur L. Alarcon of Los Angeles and Melvin Brunetti of Reno.

The panel will review not only Harris’ claim of incompetent psychiatric assistance but other issues 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 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 back before Judge 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 but allowed to see visitors.

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 had asked that each of the 33 prisoners on his tier of Death Row receive a pint of ice cream.

San Quentin Warden Daniel B. Vasquez, who would have presided over his first execution, said of the stay, “I think it’s frustrating for everybody that wanted to see or get a feel of a sense of justice.”

Brian E. Michaels, chief deputy district attorney for San Diego, estimated that the next legal phase could take six weeks to 18 months to complete.

“We are very, very disappointed,” Michaels said. “We feel for the victims, the survivors of the boys who were killed. The right of a state prisoner to seek relief from federal courts by way of these petitions . . . is almost unlimited.”

Harris’ lawyer agreed with frustrations expressed about the legal system, even though it has kept his client alive for 12 years.

“There must be a more orderly way to do this,” Sevilla said. “I think this process is absolutely insane. I feel nothing but compassion for the families of the two boys. To put them through this is a terrible ordeal, and I feel for them as fellow human beings. . . . The same sort of torture is being felt by (Harris’) family as well.

Savage reported from Washington, Roderick from Los Angeles. Contributing to this story were Times staff writers Mark Stein and Miles Corwin at San Quentin; Philip Hager, Dan Morain, Alan Abrahamson and Russell Chandler in San Francisco; George Skelton, Carl Ingram and Douglas P. Shuit in Sacramento; Irene Chang in Rancho Cucamonga and Barry M. Horstman and Nora Zamichow in San Diego.

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

HARRIS’ LEGAL ODYSSEY

Here is a chronology of the key legal developments in the case of Robert Alton Harris : July 5, 1978: Harris, paroled just five months earlier after serving 2 1/2 years on a voluntary manslaughter conviction, is arrested on charges of murdering two San Diego teen-agers, Michael Baker and John Mayeski, earlier in the day. He forced the two 16-year-olds to drive their car to an isolated spot near Miramar Reservoir, where he shot them. Harris and a brother, Daniel, then used the car for a bank robbery. Jan. 8, 1979: Harris’ trial starts in San Diego. Jan. 24: Harris is convicted of premeditated murder, robbery and kidnaping for the purpose of robbery and receiving stolen property. His brother, who was a key witness against him, had pleaded guilty to a robbery charge. March 6: Harris is sentenced to die in the gas chamber by Superior Court Judge Eli H. Levenson. Feb. 11, 1981: The California Supreme Court denies an automatic death penalty appeal by Harris, who contended that the San Diego jury that convicted him was prejudiced because of local pretrial publicity. April 15: Execution date of July 7, 1981, is set for Harris. June 22: The scheduled July 7 execution is stayed by the California Supreme Court pending Harris’ appeal to the U.S. Supreme Court. Oct. 5: The U.S. Supreme Court affirms Harris’ death sentence. Oct. 19: New execution date of Dec. 15, 1981, is set. Dec. 9: The California Supreme Court grants another stay of execution to provide time for the court to rule on Harris’ petition for a new trial. Jan. 13, 1982: The California Supreme Court refuses to overturn Harris’ conviction. Jan. 26: Execution date of March 16, 1982, is set. March 12: The U.S. 9th Circuit Court of Appeals grants a stay of execution to review Harris’ case based on his argument that the state’s death penalty law is unconstitutional because it discriminates against men. Sept. 16: Ruling in the Harris case, the 9th Circuit orders a far-ranging review of the state death penalty law to see if it is being administered fairly. The decision has the effect of indefinitely blocking any executions. March 21, 1983: Responding to complaints from prosecutors about the 9th Circuit’s ruling in the Harris case, the U.S. Supreme Court agrees to review capital punishment in California. Jan. 23, 1984: Ruling in the Harris case, the U.S. Supreme Court reverses the 9th Circuit decision that had effectively blocked the imposition of the death penalty in California. Oct. 17: U.S. District Judge William B. Enright, based in San Diego, denies a new Harris appeal of his death penalty. July 8, 1988: The 9th Circuit affirms Enright’s decision. Sept. 28, 1989: The 9th Circuit denies a rehearing on its ruling affirming Enright’s decision. Jan 16, 1990: U.S. Supreme Court upholds the 9th Circuit by refusing to consider Harris’ appeal. Feb. 5: Harris is ordered to be executed in San Quentin’s gas chamber on April 3, 1990. March 27: Harris’ lawyers file a new appeal in federal district court in San Diego, alleging that psychiatrists called as part of his defense at his 1979 trial did not competently analyze his mental state. March 28: U.S. District Judge Enright rejects the new appeal. March 30: 9th Circuit Judge John T. Noonan grants a stay of execution so that Harris can have time to prove his claim of incompetent psychiatric help during his trial. March 31: The state attorney general’s office asks the U.S. Supreme Court to lift the stay so the execution can proceed as scheduled. April 2: On a 6-3 vote, the U.S. Supreme Court refused to alter Noonan’s stay of execution. Compiled by Times editorial researcher Michael Meyers.