U.S. Court Denies Harris New Hearing on Execution : Capital punishment: Action by federal appeals panel leaves U.S. Supreme Court as condemned killer’s last hope to avoid gas chamber.

A federal appeals court on Friday refused a new hearing for Robert Alton Harris, forcing the condemned killer to turn now to the U.S. Supreme Court as his only hope to avoid becoming the first person executed in California since 1967.

Unless the federal high court grants review of his impending appeal, Harris stands to face the gas chamber at San Quentin State Prison next year. The Supreme Court already has turned down three earlier appeals by Harris.

By an undisclosed vote, the 28-member U.S. 9th Circuit Court of Appeals declined Harris’ bid to send the case to an 11-judge panel to consider his claim of newly discovered evidence showing he was mentally impaired when he shot two teen-age boys to death in San Diego in 1978.

The appeals court had twice before turned down Harris’ current appeal, ruling last August that his claims were invalid and that in any event, under recent U.S. Supreme Court decisions, they had been made too late.

Judge Stephen Reinhardt, joined by Judge Harry Pregerson, issued a sharp, 16-page dissent Friday, denouncing the court’s action and saying it appeared Harris “in all likelihood” now will be the first to be executed in this state in nearly a quarter-century.

Reinhardt expressed regret that court rules prevented the disclosure of the number of judges who voted for review of the case by an 11-member panel. “The people should know whether in the present case we failed to go (to such a hearing) by an equally divided vote, a closely divided vote, or an overwhelming vote,” he said.

Close scrutiny of capital appeals provided a necessary “critical safeguard” against error, Reinhardt continued. “When a human life is at stake, we should provide (such) review in all cases in which legitimate questions exist concerning a panel’s decision in favor of the state. Common decency and fairness--as well as due process--require that we rehear this case (by the larger panel).”

State Atty. Gen. Dan Lungren praised Friday’s action, saying he was now optimistic that after 13 years, Harris’ sentence “will eventually be carried out.”

“The people of California can be optimistic as well that today’s decision will finally require enforcement of a law that they have overwhelmingly supported over the years,” Lungren said.

Charles M. Sevilla of San Diego, an attorney for Harris, said an appeal will be filed with the Supreme Court within 90 days, enabling the justices to decide by early next year whether to grant formal review. Meanwhile, a previously issued stay of execution will remain in effect.

If the high court denies review, state attorneys then will appear at a hearing in federal district court in San Diego to request a new execution date, to be set within 30 to 60 days. Harris still could seek clemency from Gov. Pete Wilson, a backer of capital punishment.

Sevilla and Michael Laurence of the American Civil Liberties Union of Northern California noted that other courts around the country were divided over when and how new high court restrictions on federal appeals could be applied to pending cases. The attorneys expressed hope the high court would grant review to resolve the issue.

Laurence called Friday’s action “a miscarriage of justice,” saying an 11-member panel should have been convened to review Harris’ bid for a retrial on grounds his court-appointed psychiatrists failed to undertake a complete examination of his mental condition, denying him his right to competent psychiatric assistance.

Last Aug. 21, a three-member panel of the court voted 2 to 1 to reaffirm its ruling last year upholding Harris’ death sentence for the murders of John Mayeski and Michael Baker, both 16, during a robbery.

Friday’s action by the 28-member court came in a brief order from the same three-judge panel announcing the denial of a rehearing. The denial was supported by judges Arthur L. Alarcon and Melvin Brunetti, who formed the majority in the August ruling. Judge John T. Noonan--who had issued a stay blocking Harris’ previously scheduled execution April 3, 1990--dissented in the August decision and voted for the rehearing on Friday.

Harris, now 38, has been at the center of a continuing controversy over the length of capital appeals in California. This state reinstated the death penalty in 1977, but no executions have since been held. In the meantime, over 300 convicted murderers are on Death Row.

Critics of the federal appeals process, led by Lungren, have cited the Harris case in their call for reforms that would restrict the number of constitutional challenges prisoners could make to their sentences.