Supreme Court Stops State From Setting Harris’ Execution Date During Appeal

The Supreme Court refused Monday to let a California judge set a new execution date for Robert Alton Harris while the court reviews what may be Harris’ final appeal of his death sentence.

The justices, without comment or recorded dissent, left intact a Nov. 15 order by the 9th U.S. Circuit Court of Appeals allowing Harris’ case to remain in the federal courts for 60 days while he appeals to the Supreme Court.

California Atty. Gen. Dan Lungren had asked the Supreme Court to lift the stay and allow a judge in San Diego to set an execution date. Had the request been granted, the execution would have been scheduled in 40 to 70 days, unless the high court itself intervened and granted a stay.

Harris was convicted of the July 5, 1978, murders of San Diego 16-year-olds John Mayeski and Michael Baker, whose car he used to commit a bank robbery the same day.

His case has advanced further through the court system than those of the state’s other 300 condemned prisoners. California’s last execution was in 1967.

Harris’ current federal appeal, his third in the case, says new examinations conducted by experts hired by his lawyers found evidence of longstanding brain damage that should have been detected by the psychiatrists who assisted his trial lawyers.

A panel of the San Francisco-based appeals court voted 2-1 in August not to consider the claim, saying it violated a new Supreme Court standard that requires prisoners to raise all constitutional challenges in their first round of federal appeals or forfeit those issues.

The court on Nov. 8 denied review by an 11-judge panel. A week later, the same three-judge panel voted 2-1 to let Harris keep his federal appeal alive for 60 days while he appeals to the Supreme Court, rather than returning the case immediately to a San Diego Superior Court to set an execution date.

Harris’ lawyers say the high court recently agreed to review another case that raises a key issue in his appeal: whether the new restrictions on federal appeals by state prisoners apply to appeals that have already been filed.

Lungren asked the high court to lift the stay, saying federal courts had “continually thwarted” the implementation of the state’s judgment on Harris. Justice Sandra Day O’Connor, who handles emergency appeals from the circuit, forwarded his request to the full court.

Deputy Atty. Gen. Louis Hanoian said in court papers that Harris was not entitled to a further stay after his third federal appeal was found to be an abuse of the procedure. He said Harris would have enough time to seek a stay from the high court during the period of at least 40 days before his execution.

If the Supreme Court decides not to review Harris’ appeal, “the state should not have to wait 40 days to enforce the judgment,” Hanoian wrote. “It is now more than 13 years since Robert Harris murdered John Mayeski and Michael Baker. Justice is long overdue.”

American Civil Liberties Union lawyer Michael Laurence, one of Harris’ attorneys, said the court’s action Monday “supports our view that this case involves substantial constitutional questions of due process and fairness.”

Lungren’s “questionable decision to waste taxpayers’ money on this frivolous application should be investigated,” Laurence said in a statement.