Appeals Court Turns Aside Harris Appeal, Opening Way for Execution : Crime: A judge will set a date Friday for the convicted killer to go to the gas chamber. Unless the court changes course, clemency from the governor is Harris’ only hope.

A federal appeals court has rejected the latest appeal by convicted killer Robert Alton Harris, moving him significantly closer to execution in California’s gas chamber.

The U.S. 9th Circuit Court of Appeals, in a ruling issued after the close of business hours last Friday, flatly turned down Harris’ bid to review what defense lawyers called “startling new evidence” that allegedly undermined his death sentence.

The 9th Circuit court also indicated it was unlikely to consider any new appeals, saying that this newest bid was “untimely,” and that earlier last week the U.S. Supreme Court had rejected a Harris plea for the fifth time.

Unless the 9th Circuit court reverses course and intervenes in the case, Harris is likely to become the first condemned inmate to be put to death in California since 1967. This Friday, a San Diego judge is due to set an execution date, probably in April or May.

Harris, 39, was convicted of the 1978 murders of two 16-year-old Mira Mesa boys, John Mayeski and Michael Baker, killing them after stealing their car for use in a bank robbery. He abducted the youths from a fast-food restaurant where they were eating lunch. Later, he ate their half-finished hamburgers.

For nearly a decade, his case has been the focus of a legal battle between state prosecutors and the 9th Circuit Court. The ruling last Friday, however, may have signaled an abrupt end to that.

“It means that the 9th Circuit is finished with the case,” said Louis R. Hanoian, the deputy attorney general in San Diego who has been prosecuting the case. “It means there’s no impediment to the setting of an execution date, or to executing Robert Harris,” he said.

“This is encouraging,” said Sharon Mankins, 48, Michael Baker’s mother. “If the 9th Circuit said no, they’re not going to hear any more appeals, that’s wonderful. Because it was always the hold-out.”

If the 9th Circuit court has, indeed, heard the last of Harris’ appeals. That leaves Harris with only one option--an appeal for clemency to Gov. Pete Wilson. The governor, however, is a longtime backer of the death penalty.

Bill Livingstone, a spokesman for Wilson in Sacramento, said the governor could not comment Monday on the possibility of a clemency hearing for Harris, calling it premature speculation.

Defense attorneys Charles M. Sevilla of San Diego and Michael Laurence of San Francisco, a lawyer affiliated with the American Civil Liberties Union of Northern California, could not be reached Monday for comment.

The California Supreme Court upheld Harris’ death sentence in 1982, one of only four death sentences affirmed by the state high court under then-Chief Justice Rose Elizabeth Bird.

For the next eight years, the case bounced back and forth between the U.S. Supreme Court and the 9th Circuit. Then, in April, 1990, when Harris was only hours away from the gas chamber, a 9th Circuit justice, John Noonan, called off the execution.

Noonan said the courts needed more time to look at Harris’ claim that his rights were violated because his court-appointed psychiatrists in 1978 were incompetent.

Defense lawyers contend Harris suffered brain damage, fetal alcohol syndrome and other mental defects that prevented him from forming the mental state to commit premeditated murder, a legal requirement for a verdict of death.

Last August, a 9th Circuit panel of three justices, on a 2-1 vote, rejected that claim. Noonan dissented. The full appeals court split, 13-13, on whether Harris deserved a further hearing on that appeal.

Last Monday, the U.S. Supreme Court turned Harris down, too. It refused his claim without dissent or comment.

In recent years, the Supreme Court has stressed in its rulings that federal judges should not hear repeated appeals from Death Row inmates.

Nonetheless, within hours of the Supreme Court rejection, Laurence filed a new appeal with the 9th Circuit court, contending there was “startling new evidence” showing that Harris’ first mental exams were bungled by state officials. “It was neither startling nor new,” prosecuting attorney Hanoian said Monday.