Harris Execution Delayed by Judge : Reprieve: Federal jurist in ACLU suit rules that gas chamber might constitute cruel and unusual punishment. State prosecutors quickly file an appeal.

Just 52 hours before he was scheduled to die, Robert Alton Harris won a reprieve Saturday night from a federal judge who found there was a “serious question” whether death in the gas chamber constitutes cruel and unusual punishment.

During a tense 90-minute hearing the night before Easter, U.S. District Judge Marilyn Hall Patel issued a 10-day temporary restraining order prohibiting the state from carrying out Harris’ execution at 12:01 a.m. Tuesday.

However, he could still be put to death in the gas chamber at San Quentin as scheduled if attorneys for the state succeed in quickly overturning Patel’s order in a higher court.

Within moments of Patel’s ruling, Deputy Atty. Gen. Dane R. Gillette filed an appeal with the U.S. 9th Circuit Court of Appeals seeking to overturn the stay and keep Harris’ execution on track. The court probably will hear the appeal today.

“Mr. Harris has had 14 years worth of opportunity to raise this question,” Gillette argued before the judge issued her ruling. “It is much too late to raise this now just four days before the execution.”

Michael Laurence, an attorney for the American Civil Liberties Union who filed the appeal on behalf of Harris and all inmates on San Quentin’s Death Row, applauded the judge’s decision.

“I am elated that a federal court has taken its mandate seriously and that it has not ignored what I thought was very compelling evidence that lethal gas executions are a very painful and torturous manner of killing people,” Laurence said.

He said he does not believe that the judge’s decision will be reversed because to do so a higher court has to find that she abused her discretion.

Patel, a former ACLU board member who was appointed to the federal bench by President Jimmy Carter, said the constitutionality of death in the gas chamber is serious enough to require further proceedings even if the state is barred from executing Harris, at least temporarily. She set a hearing for April 28 to hear evidence and arguments from both sides.

If no higher court overrules Patel and orders Harris to die Tuesday, the execution will be delayed at least until June because the state must obtain a new death warrant.

“The fact that the state may have to obtain another warrant of execution is something not so complicated considering the consequences (for Harris) should the court not grant the temporary restraining order,” the judge said in issuing her ruling.

The judge noted that California is only one of three states that mandates gas as a method of execution and that one of those states--Arizona--is considering a shift to lethal injections after the April 6 execution of Donald Harding.

Maryland also relies on a gas chamber for its executions. Three other states, Mississippi, Missouri and North Carolina offer the condemned a choice between the gas chamber and lethal injection.

Gillette told the judge: “The fact that other states have changed to other methods doesn’t mean that (gas) is cruel and unusual. This is a legislative question, not a judicial question. If California wants to make a change, it is free to do so.”

Two years ago, Harris was three days from execution when 9th Circuit Judge John T. Noonan granted a stay of the execution to hear claims by Harris’ attorneys that he was denied adequate psychiatric assistance at trial. Harris’ case has spent nearly 14 years in the courts and has gone to the U.S. Supreme Court four times.

Once again, Harris’ fate may end up before the Supreme Court. But first, the U.S. 9th Circuit Court of Appeals is expected to begin considering the state’s appeal today. The court could rule within the day. Whoever loses is expected to appeal immediately to the U.S. Supreme Court, which also could act before the scheduled execution Tuesday.

The Supreme Court has never ruled on the constitutionality of executions by gas. But the high court, reflecting impatience with delays in death penalty appeals, has issued recent rulings limiting the rights of defendants to bring last-minute constitutional challenges.

California used the gallows when the state first took over the role of executioner from county sheriffs in 1893. The gas chamber was installed in 1937 in response to complaints that hangings were gruesome, and since then 190 men and four women have died at San Quentin by lethal gas.

Although, technically, Patel’s order bars executions only by gas, Gillette said authorities had no legal power to execute by other means. It would take state legislation to use lethal injection.

Harris was convicted of murdering two 16-year-old San Diego boys, John Mayeski and Michael Baker, in 1978 so he could use their car in a robbery.

The families of the victims have been anxiously awaiting Harris’ execution and were disappointed by the judge’s ruling.

“Does this damn judge just want her name in the paper?” asked an angry Ed Mayeski, a brother of John Mayeski. “As far as I’m concerned, any type of killing wouldn’t be inhumane for him. . . . What did he do to my brother? That was cruel and unusual. He deserves it. Who cares if it’s cruel? I don’t.”

Steven Baker, father of Michael Baker, said: “I can’t say I expected it, but I can’t say it surprises me. . . . They’re just playing politics, and they’re doing it with the emotions of the victims.”

Patel, regarded as a liberal but known for her independence on the bench, was appointed to the District Court by Carter in 1980. As an attorney, she served on the boards of the ACLU and National Organization for Women.

Earlier on Saturday, a separate legal move for Harris was rejected by U.S. District Judge Howard B. Turrentine in San Diego. The judge was unmoved by Harris’ contention that he was mentally ill when he killed the two boys. Harris, the judge said, “has had his day in court many days over.”

On a separate issue, the judge also ruled there was no merit to the claim--rejected Friday by the California Supreme Court--that Harris’ brother Daniel shot one of the two San Diego teen-agers. If that was true, Turrentine said, it “would have been discovered a long time ago.”

After that defeat, defense lawyers vowed to continue pressing appeals. “I’m too numb to be discouraged,” said lawyer Charles M. Sevilla of San Diego.

Meanwhile at San Quentin, Harris conferred Saturday morning for more than an hour with his lawyers and met with relatives and friends until his allotted visiting hours ended at 2:30 p.m. “He was ready for (visiting time) to end. He was tired,” said his friend Michael Kroll, adding that Harris seemed a “little more depressed” and “a little bit more disconnected.”

Before the stay Saturday, protests against the death penalty began to gather momentum in the Bay Area. On San Francisco’s Marina Green, nearly 500 people lay down on the grass with mock tombstones to symbolize the 501 people executed in California’s history.

“I have not given up hope yet,” said Pat Clark, executive director of Death Penalty Focus of California, the state’s leading anti-death-penalty group. “There’s still time for a miracle.”

The protest was punctuated by shouted curses from passing motorists who favored the death penalty. “Gas him!” screamed one.

Times staff writers Paul Feldman, Dan Morain and Bob Baker in the Bay Area and Alan Abrahamson and Leonard Bernstein in San Diego contributed to this report.

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