Double-Killer Harris to Get a New Hearing : Death row: Convicted in 1979 of murdering two San Diego boys, convict fights cellmate’s testimony.

A federal appeals court Friday ordered a new hearing into defense claims that authorities recruited a former cellmate to testify falsely against condemned killer Robert Alton Harris at his 1979 trial.

In a 2-1 vote, a panel of the U.S. 9th Circuit Court of Appeals instructed a federal District Court in San Diego to conduct an evidentiary hearing on the issue and report its findings within 60 days.

The action came as a victory for lawyers for Harris. It was not certain how long the move would delay the case, but it appeared that the panel wanted to render a ruling soon on Harris’ bid for a rehearing.

“Because of the extraordinary procedural posture of (Harris’ appeal), we believe immediate review by this court after the evidentiary hearing would materially advance the ultimate resolution of these proceedings,” the panel said in its six-page order.

Harris, 37, was convicted and sentenced to death for the murders of John Mayeski and Michael Baker, both 16, in San Diego in 1978. If Harris loses in his current round of appeals, he could become the first person executed in California in 24 years. If the appeals court finds that Harris’ constitutional rights were violated, he could win a new trial.

Circuit Judges Arthur L. Alarcon and Melvin Brunetti voted to grant Harris’ request for the hearing on the informant question. Judge John T. Noonan dissented, saying that “at this late date” there was no legal basis for the hearing.

It was Noonan who a year ago issued an order blocking Harris’ scheduled April 3 execution so he could hear defense claims that Harris had been improperly denied the right to competent psychiatric assistance at his trial. That claim was rejected by the appeals court.

In late November, in another bid to save Harris from the gas chamber, defense lawyers asked the court to order a hearing so they could introduce what they said was new evidence that a jailhouse informant acted as a “police agent.” The lawyers said the informant had been placed in Harris’ cell before trial to elicit statements showing that Harris killed his victims to prevent them from testifying against him in a robbery. That testimony, the defense said, was crucial in enabling the prosecution to obtain the death penalty.

State prosecutors urged the appeals court to deny such a hearing, calling the new defense claims a “fanciful fabrication.” The state said new statements by the informant, Joe Dee Abshire, that he had been coached to commit perjury at the trial were “baldfaced lies.”

On Friday, state Assistant Atty. Gen. Harvey D. Mayfield expressed disappointment with the order, but welcomed the appellate court’s decision to expedite this latest hearing in the 12-year-old case.

“It’s good news that there’s a time limit, but it’s not good news that the court is requiring an evidentiary hearing,” Mayfield said. Nonetheless, the prosecutor voiced confidence that Harris’ claims would be turned down by the court.

Harris’ San Diego lawyer, Charles Sevilla, declined to comment.

Dorothy Ehrlich, executive director of the American Civil Liberties Union of Northern California, hailed Friday’s action. “This is a very important development,” Ehrlich said. “We claimed that the government effectively manufactured false information and concealed that fact for the last 12 years. It was Abshire’s testimony that gave the jury the information supporting the contention that the killings were deliberate, which led to the death sentence. It’s reasonable to assume he wouldn’t be on Death Row today were it not for these fabricated claims.”

In San Diego, relatives of the two slain boys said the court’s decision added to a powerful sense of frustration with the criminal justice system.

Michael Baker’s sister, Linda Herring, 25, an Escondido homemaker, called it the “same old crap. It’s politics.”

Herring she said Harris’ execution “will never happen.”

“Hopefully,” Herring said, “somebody will kill (Harris) in prison. That’s the ultimate. I look forward to that. That’s the only way he’ll die, if someone in the prison system dusts him off.

“I know I sound vindictive. But what do you expect? The justice system has really let us down.”

Bill Stalder, 63, a retired San Diego city schools gardener and John Mayeski’s uncle, said Harris’ attorneys were “digging to find something to save his ass, is all they’re trying to do.

“Give (the lawyers) another 10 years, they’ll find out the cockroaches were spying on (Harris) in his cell,” said Stalder, who has served as spokesman for the Mayeski family.

Stalder added, “Why did it take this long to find this out?” Even if police violated Harris’ rights, Stalder said, “rights or no rights, he violated the kids’ rights. Where do they come in ? Where does the family come in?”

The real lesson of the 9th Circuit court’s ruling is one the Mayeskis had learned long ago, Stalder said. “As long as (Harris) bitches and hollers and complains, they’re going to keep him going,” he said.

Times staff writer Alan Abrahamson in San Diego contributed to this report.