Countdown to 1st Execution in 25 Years to Start

In a brief ritual today in a San Diego courtroom, the countdown is expected to begin again for the first California execution in 25 years, and with it an intense monthlong public paroxysm over the death penalty.

If past practice holds, San Diego Superior Court Judge Frederic L. Link will solemnly read, then sign a warrant setting the date on which Robert Alton Harris, the killer of two 16-year-old boys, finally walks to his death in the San Quentin gas chamber.

Unlike the four previous times that Harris has been given a date, this time there is a growing belief in many camps--from the state Capitol to the warden’s office at San Quentin to Harris’ defense team--that the execution is more likely than ever. The date will probably be set for April 21 or May 5, sources said.

“Restoring the death penalty in California has been a long and winding road,” Atty. Gen. Dan Lungren said, adding that it “appears we are reaching the end of the road.”

Voters have been demanding resumption of the death penalty since 1972--five years after the last execution at San Quentin--and the courts have made it plain that they are tired of Harris’ repeated legal appeals. Even his lawyers concede that they seem to have run out of novel claims for mercy.

The last time Harris was scheduled to die in a cloud of cyanide gas--on April 3, 1990--the killer’s life was spared in the final days by federal appeals Judge John T. Noonan, a conservative appointee of President Ronald Reagan. Noonan granted a stay so that Harris could pursue a new argument that he was denied competent psychiatric testimony at his trial in 1979.

In the weeks before the stay, as prison officials prepared the 55-year-old gas chamber, passions on both sides of the death penalty issue became inflamed. Anti-death penalty protesters held vigils at the prison gate and Mother Teresa issued a public plea for mercy, while state officials and prosecutors clamored for the sentence to be carried out.

The 1990 execution date came, as this one will, during a heated election season, posing potential campaign obstacles for candidates who oppose the gas chamber. Two days before Harris’ last date with death, a Times Poll found that the public supported capital punishment by a 4-1 margin.

The last time, pro-death penalty candidates sought to take advantage of the public’s support for the gas chamber. U.S. Sen. John Seymour, then a Republican state senator from Anaheim, asked to attend the execution, only to be denied.

There have been 190 men and four women executed in the gas chamber since it was installed in 1937, but none in the quarter century since Aaron Mitchell was put to death for the slaying of a Sacramento police officer.

At the court hearing today, Link could set Harris’ execution date as early as April 12--the 25th anniversary of Mitchell’s death. That is a Sunday, and the traditional execution days in California have been Tuesdays and Fridays.

Harris, 39, was convicted more than 13 years ago of murdering Michael Baker and John Mayeski, who were 16-year-old best friends in San Diego.

Harris abducted them from a parking lot outside a Jack-in-the-Box, where they were eating lunch, stole their car for use in a bank robbery, and shot them to death in an isolated spot near a San Diego reservoir.

Later, he ridiculed his accomplice and brother, Daniel Harris, for not having the stomach to finish off the teen-agers’ lunches.

One of the loudest voices calling for Robert Harris’ execution is Steve Baker, a San Diego police officer and father of one of the victims, who was in on the arrest of Harris.

“It’s a story without an end at this point,” said Baker. “It’s time we brought this to an end.”

Defense lawyers have promised to press new claims for sparing Harris, but their chances for judicial relief grew slimmer last week when the U.S. Supreme Court turned Harris down for the fifth time.

In the coming weeks, Harris’ advocates and death penalty opponents also intend to mount a media campaign in the hope of raising doubts about the death penalty in the collective mind of a public that overwhelmingly demands capital punishment.

Harris also may plead for executive clemency from Gov. Pete Wilson. But Wilson advocates capital punishment and was mayor of San Diego when Harris committed the crimes.

In February, 1991, Wilson declared his impatience with the drawn-out judicial process in the Harris case, including eight years of legal limbo as appeals of the death sentence bounced between the U.S. Supreme Court and the federal appeals court that serves California, the U.S. 9th Circuit Court of Appeals.

“This is a situation which, frankly, is intolerable for the very simple reason that justice delayed is not only justice denied, but it totally undermines the whole deterrent concept of capital punishment,” Wilson said.

Harris’ advocates hold out hope that Wilson, unlike former Gov. George Deukmejian, will nonetheless give them a full hearing on clemency.

“I do not believe it is a foregone conclusion (that Wilson will deny clemency),” said Michael Kroll, a writer who has become close friends with Harris after visiting him in San Quentin.

The focus of the pitch will be Harris’ abysmal upbringing and life. Harris spent at least 23 of his 39 years in prisons and reformatories.

Harris, who arrived at San Quentin on March 14, 1979, is the fourth-longest tenant of the prison’s Death Row.

In the two years since Harris was last spared from the gas chamber, California’s condemned population has swelled to 327, surpassing Florida to become the second-largest in the nation behind Texas, which has 345 inmates awaiting death.

During those two years, Harris’ attorneys say, they have learned in greater detail the depth of Harris’ troubled childhood and mental impairments.

Defense-hired psychologists and psychiatrists tested Harris in an effort to persuade the courts that the jury did not grasp the depth of his mental problems. The tests showed him to be borderline retarded, and suffering from organic brain damage and schizophrenia.

Harris’ mother drank heavily while she was pregnant, and he also suffers from fetal alcohol syndrome, the defense team says.

So far, the defense investigation has been for naught. No court has been willing to reopen the case to hear the full extent of the testimony.

“These last two years have been the most frustrating that I’ve ever spent on any project,” said Michael Laurence, a San Francisco attorney affiliated with the American Civil Liberties Union’s death penalty project who has helped direct Harris’ recent appeals.

Last August, a three-judge panel of the U.S. 9th Circuit Court of Appeals ruled 2 to 1, with Noonan dissenting, that Harris could not press his newest claim of mental deficiency.

Underscoring the weighty issues raised, the full 9th Circuit considered taking up the case. But in an extraordinary action that reflected the deep division within the court over capital punishment, the 9th Circuit jurists deadlocked last fall, 13 to 13, on whether to allow Harris to present that claim.

Under court rules, a tie vote meant Harris lost.

The families of the two boys say the time has come.

Kathryn Mayeski Sanders, John Mayeski’s mother, died last year of cancer while waiting for Harris to go to the gas chamber. “She just wanted to see justice done before she died,” said her daughter, Kathryn Clark, 47, a nursing assistant in Maryland. “Now I’m waiting to see justice done. Justice. Fair is fair.”

The Death Penalty in California

Following are key dates in the death penalty’s history in the state: April, 1967: Aaron Mitchell is the 194th and last prisoner to die in the San Quentin gas chamber. Before 1937 all condemned were hanged. Both methods were used between 1937 and 1942. February, 1972: California Supreme Court declares that California’s death penalty statute violates the state Constitution. In June, the U.S. Supreme Court throws out all state death penalty laws, but leaves open the possibility that valid capital punishment statutes could be fashioned. July, 1976: U.S. Supreme Court rules that capital punishment is constitutional as long as jurors and judges who impose it are allowed some discretion. August, 1977: The state Legislature overrides a veto by Gov. Edmund G. Brown Jr. and votes in a new death penalty law sponsored by then-state Sen. George Deukmejian. July 5, 1978: Robert Alton Harris is arrested for the murders earlier that day of two teen-agers in San Diego. November, 1978: California voters, by 71% to 29%, approve the Briggs initiative that broadens the death penalty, but also leads to prolonged court fights over death sentences. February, 1981: California Supreme Court affirms Robert Alton Harris’ death sentence on a 4-2 vote. January, 1984: U.S. Supreme Court affirms Harris’ sentence. November, 1986: Chief Justice Rose Elizabeth Bird and two other justices of the California Supreme Court are ousted after a campaign that focused on the court’s record of reversing death sentences. January, 1987: Malcolm Lucas becomes chief justice of the California Supreme Court, and the court begins routinely affirming death sentences. By March, 1992, there have been 117 sentences affirmed, including four under the Bird court. April, 1990: Execution of Harris is stayed by a judge of the U.S. 9th Circuit Court of Appeals. January, 1992: The U.S. Supreme Court, in an unusual order, tells the 9th Circuit that any further delays in deciding death penalty cases will be “subject to a most rigorous scrutiny.”