Next to Die in Gas Chamber: It’s Anybody’s Guess : Death penalty: Frustrated prosecutors believe an execution is unlikely soon unless a prisoner drops all appeals and volunteers to die.

With convicted killer Robert Alton Harris’ case back in the courts indefinitely, frustrated prosecutors cannot say with certainty who will become the first to die in California’s gas chamber in more than two decades.

Deputies in the attorney general’s office believe that any one of 26 Death Row prisoners whose cases are pending before federal courts could become the first to be executed.

But prosecutors also know that federal judges can take years to decide the cases and the attorneys increasingly believe that the only way the death penalty will be carried out in California any time soon is if a condemned prisoner drops all appeals and volunteers to die.

“I have six more years to retirement,” said Deputy Atty. Gen. Edmund D. McMurray of Sacramento, “and I question whether I will see an execution where the guy fights it.”

McMurray bristled, however, at any suggestion that capital punishment laws be taken off the books.

“We cannot let the defense paper us out of a job” by coming up with new legal arguments, McMurray said. “That would be giving in and that would be dead wrong.”

Late last month, when it looked as if Harris might be executed, Atty. Gen. John K. Van de Kamp cited Edgar Hendricks, a male prostitute who was convicted of murdering two men in San Francisco in 1980, as a likely candidate to be next in line for the gas chamber.

Other prosecutors have pointed to Clarence Ray Allen as a candidate for that infamous distinction. Allen was sentenced to die for ordering the 1980 murders of three Fresno grocery store employees, including a young man who had testified against him in a 1977 murder.

But Deputy Atty. Gen. Dane Gillette, one of Van de Kamp’s death penalty case coordinators, pointed out that Hendricks and Allen are only two of the 26 Death Row prisoners whose cases are pending in U.S. district courts around the state. The California Supreme Court has affirmed the sentences of the 26, and each has entered into a second round of appeals.

“There’s no way of telling” which of the 26 cases is at the front of the line, Gillette said.

Susan Frierson, a death penalty coordinator in the Los Angeles branch of the attorney general’s office, said she would not put “any money” on an involuntary execution taking place in the next five years.

But she said she believes that executions will commence in California, given the strong public support for them.

She and others said the U.S. 9th Circuit Court of Appeals decision to stay Harris’ execution heightened the frustration among deputy attorneys general. With more than 275 people sentenced to death in California, few deputies see an end in sight for any of their death cases.

In the nine Western states covered by the 9th Circuit Court of Appeals, four people have been executed since the current era of capital punishment began in 1977. All four gave up their appeals and volunteered to be put to death.

“Given the history in the 9th Circuit,” Gillette said, “it’s arguable that there will be an involuntary execution.”

In California, many prisoners have said they want to drop their appeals and go the way of Gary Gilmore, who voluntarily stood before a Utah firing squad on Jan. 17, 1977, ending the nation’s 10-year moratorium on executions.

One who has repeatedly proclaimed a desire to die is Ronald L. Deere, who has admitted killing three people in Blythe in 1982. The state Supreme Court has overturned his sentence twice. His case is pending before the high court for a third time.

Another who has said he wants to die is Jerry F. Stanley, 45, who was convicted of murdering two of his wives. He rarely leaves his cell and complains of claustrophobia, migraines and anxiety attacks.

“I don’t wish to die, but I don’t wish to live under these conditions,” Stanley said.

Under California law, condemned inmates cannot stop the state Supreme Court from deciding their direct appeal. However, once the state court upholds their sentences, the law in California becomes less clear.

In states where condemned prisoners have tried to drop their appeals, defense lawyers, family members and even other inmates have asked courts to block the executions by arguing that the prisoners are not mentally competent to make such a decision. If the prisoner is deemed competent, there is little defense lawyers can do to stop it.

Most prisoners who have stated a desire to die have changed their minds. One who did so was Harris. After the state Supreme Court affirmed his sentence in February, 1981, he wrote to the court asking that his lawyers be fired and he be put to death, only to change his mind and press his case.