Justices Clear Way for Execution of Harris : Judiciary: U. S. Supreme Court rejects appeal by killer of two San Diego teen-agers. Prosecutors say they will ask to have death penalty carried out in April or May.

The Supreme Court on Monday rejected what prosecutors said is the final legal appeal of San Diego murderer Robert Alton Harris, moving him closer to execution in California’s gas chamber.

State prosecutors in Sacramento announced that within two weeks they will ask a Superior Court judge in San Diego to set an execution date for Harris in April or May.

Unless judges on the U. S. 9th Circuit Court of Appeals in San Francisco intervene again, state Atty. Gen. Dan Lungren said that Harris will become the first condemned inmate to be put to death in the state since 1967.

“This is a day of good news for the families of two teen-age boys Harris brutally murdered in San Diego almost 14 years ago,” Lungren told a news conference. “In addition, we believe that this is good news for the people of California, who have repeatedly expressed their desire that our state death penalty be enforced.”

In 1978, Harris abducted two teen-agers from the parking lot of a fast-food restaurant and then shot them in the head so he could use their car for a getaway after a bank robbery.

He is one of 323 inmates on California’s Death Row. Of those, 117 have had their sentences upheld by the state Supreme Court. Most of them have appeals pending in the federal courts.

For nearly a decade, Harris has been the focus of a legal battle between state prosecutors and the U. S. 9th Circuit Court of Appeals.

His case became a legal rarity in 1982. That year, the state Supreme Court, on a 4-2 vote, upheld his death sentence, one of only four affirmed by the state high court under then-Chief Justice Rose Elizabeth Bird.

The state court ruling came the same year that George Deukmejian was elected governor. He vowed to see to it that the California death penalty law was enforced. But Deukmejian served eight years in the governor’s office while the U. S. 9th Circuit Court considered various appeals in the Harris case.

In March, 1990, state attorneys thought the case was about to end in Harris’ execution when a federal judge ordered a stay. Judge John Noonan said that the courts needed more time to take a closer look at Harris’ claim that his court-appointed psychiatrists had been incompetent in 1978.

Noonan’s action was based on a 1985 Supreme Court ruling in the case of Ake vs. Oklahoma. The justices ruled that a murder defendant pleading insanity deserved the aid of a court-appointed psychiatrist, in addition to an attorney.

During his trial, Harris’ lawyers had the aid of two court-appointed psychiatrists. But neither concluded that Harris suffered from brain damage or other mental impairments that justified giving him a lesser sentence.

Harris’s new attorneys said that those psychiatrists were incompetent and that his rights were violated.

Harris’ mother drank heavily during her pregnancy, they said, and his father beat the young boy. As a result, Harris “suffered organic brain damage,” said Michael Laurence, an attorney affiliated with the American Civil Liberties Union of Northern California. That condition “impaired his ability” to control his impulses and “substantially reduced his moral culpability” for his crimes.

According to Laurence, Harris probably would have been sentenced to a long prison term, rather than the gas chamber, had the jury been told of his alleged mental impairments.

But state prosecutors countered that various psychiatrists had examined Harris and not found such a mental impairment. His murderous “act was not caused by any mental disease or defect. It was determined, strategic and showed foresight to accomplish a bank robbery without detection,” they said.

Last August, a federal appeals court panel, on a 2-1 vote, rejected Harris’ claims. Noonan dissented. The full appeals court split, 13 to 13, on whether Harris deserved a further hearing on his appeal.

There was no such division at the U. S. Supreme Court. Without dissent or comment, the high court refused his claim (Harris vs. Vasquez, 91-6990). Daniel Vasquez is the warden at San Quentin. It marked the fourth time that the high court has turned down appeals from Harris.

Laurence said he was disappointed but not surprised that the justices rejected the appeal. “I thought we had made a compelling case that he suffers from a debilitating mental condition,” he said. “Unfortunately, the Supreme Court had adopted a rigid rule of refusing to hear (multiple) petitions” from Death Row inmates.

The Supreme Court has repeatedly ruled in recent years that federal judges should not hear repeated appeals from state Death Row inmates. But Laurence nonetheless filed new appeals with the U.S. 9th Circuit Court of Appeals on Monday contending that new evidence shows Harris’ first mental exams were bungled by state officials.

Louis R. Hanoian, the deputy attorney general who represented the state, said the Harris case is not over yet. “There will be legal proceedings up to the very last minute,” he said. “But it’s inconceivable that he will have a legal issue with a scintilla of merit that has not been litigated over the last 14 years.”

In another action Monday, the court agreed to decide whether the government can retain custody of illegal immigrant children who do not have parents in the United States. In 1990, the U. S. Immigration and Naturalization Service took custody of 8,542 such children while they awaited deportation. But immigration lawyers in Los Angeles challenged this practice as unconstitutional. Rather than being held in “detention camps,” these children should be released to adults who will care from them, they argued.

Last year, the U. S. 9th Circuit Court of Appeals agreed and struck down the INS policy. The justices will hear arguments during the fall in the case (Barr vs. Flores, 91-905).