New Appeals in Harris Case : Punishment: The convict visits with relatives and prepares for the gas chamber. His attorneys wage a frantic battle to save their client.

With the odds against them and time slipping steadily away, lawyers for Robert Alton Harris on Monday waged a frantic legal battle to save their client from his appointment with death at 12:01 this morning.

As a somber Harris visited with relatives and prepared to die in San Quentin’s gas chamber, his attorneys filed an appeal asking the U.S. 9th Circuit Court of Appeals to delay the execution and consider their claim that death by cyanide gas is unconstitutionally cruel and unusual punishment.

After a hearing Saturday night, U.S. District Judge Marilyn Hall Patel granted such a delay, raising the possibility that the execution--California’s first in a quarter-century--could be postponed at least until June.

But lawyers for the state of California appealed Patel’s order to the 9th Circuit, and a three-judge panel lifted Patel’s stay on Easter Sunday after an extraordinary session that stretched late into the night.

On Monday afternoon, lawyers for Harris and the American Civil Liberties Union struck back. In a 20-page appeal, the attorneys asked all 28 justices of the 9th Circuit to set aside the panel’s ruling and refer the case to an 11-judge panel for further proceedings.

Permitting the execution, Harris’ lawyers argued, would “allow the state of California to inflict upon Robert Harris a method of execution not even acceptable for euthanasia on animals.”

“That a state may obtain from this court permission--indeed approval--for what it is about to do is unfathomable in a civilized society,” the appeal said.

Since 1983, most states that used lethal gas have abandoned it for more humane methods, the appeal said. Only three states--California, Arizona and Maryland--still mandate the use of gas in executions.

Lawyers for Harris planned--if rejected by the the 9th Circuit--to seek an emergency review by the U.S. Supreme Court in time to halt the execution. The high court, however, has voiced impatience with repeated delays in death cases.

Also Monday, the 9th Circuit panel rejected a separate appeal by Harris’ defense team. In that petition, attorneys claimed that Harris’ younger brother, Danny, may have shot one of the two San Diego teen-agers his brother was convicted of murdering in 1978.

Inside the walls of San Quentin, meanwhile, the precise execution routine continued as planned. Harris started the day with a 7:30 a.m. breakfast then said final goodbys to fellow Death Row inmates and several staff members. Lt. Vernell Crittendon, a prison spokesman, said Harris wished them well and urged them not to take his death too hard.

The condemned man told them “it was nice knowing you” and shook their hands, Crittendon said. The other inmates, under lock-down according to state procedures, were “rather quiet,” the spokesman said.

Harris--who learned that his reprieve had been overturned by watching the morning news on San Francisco television--spent the afternoon with family, friends and attorneys in the prison visiting room. Crittendon said Harris showed “no outward signs of emotion” and seemed “much more solemn . . . than in previous days.”

By late afternoon, Crittendon said, Harris had grown subdued and “resigned himself to the fact that the execution is moving forward.”

At 6 p.m., the condemned man was to be moved to a deathwatch cell just 15 paces from the gas chamber. There, he was to be served a last meal of his choice--two Domino’s pizzas, a 21-piece bucket of Kentucky Fried Chicken and Pepsi. Harris also asked for a pack of Camel cigarettes. His second cousin, Leon Harris of Mobile, Ala., was scheduled to serve as his spiritual adviser through the night.

Randy Harris, an older brother who traveled from Colorado to comfort Robert in his final days, prepared Monday to witness his sibling’s execution. The brothers were best friends as children, and often would hide together from their abusive father.

“I don’t think my brother should die with everyone having bad thoughts (for him),” Randy Harris said. “I do love my brother. . . . Someone who has love in his heart for him should be there when he dies.”

Randy Harris said he knew the sight would be horrifying: “I don’t have to watch,” he said. “I don’t think I can watch. But I’ll be there.”

Elsewhere in the Bay Area, four relatives of Harris’ victims confronted different emotions as they prepared to witness the execution. Marilyn Clark, the sister of John Mayeski, told CNN she did not want to watch Harris die but believed “this is the only thing we can do to get justice.”

Asked about legal arguments that gassing criminals is cruel and unusual punishment, Clark said: “What Harris did to my brother was cruel and unusual, very unusual. What Harris is getting for the execution is very mild compared to what he did to my brother.”

In Sacramento, state Atty. Gen. Dan Lungren echoed those comments and accused Harris’ attorneys of a “cynical manipulation of our system.”

“Mr. Harris has every right to ensure that his rights are protected,” Lungren told reporters, but added “there has to be some finality . . . there has to be some peace given to the family members (of the victims).”

Mayeski and Michael Baker, both 16, were shot by Harris in 1978 after he kidnaped the boys to get their car for a San Diego bank robbery,

A spokesman for Gov. Pete Wilson said the governor would be standing by Monday night in case he was needed by the courts, lawyers or prison officials. Wilson has received about 4,000 pieces of mail on the Harris case and about 3,500 phone calls, spokesman James Lee said.

“He’ll be available near a phone,” Lee said, in case “he changes his mind and issues a stay.” That did not appear likely, Lee said, noting that “the governor’s stand on clemency was very clear and he’s very firm on it.”

As the countdown progressed Monday, lawyers for Harris worked feverishly on appeals and tried to fight off a mounting sense of gloom. By early afternoon, despair had settled over the two defense attorneys who had worked for Harris the longest--Michael J. McCabe and Charles M. Sevilla of San Diego.

While there were still last-ditch appeals afoot, the lawyers said it had become clear a reprieve was unlikely.

“A tremendous injustice is about to be perpetrated in the name of the people of the state of California, and there isn’t a damn thing we can do about it,” McCabe said. Sevilla drove to San Quentin to comfort Harris as the afternoon dragged on.

In Los Angeles, attorney Howard I. Friedman spent much of the day “cross-examining” himself to determine whether any argument was mishandled or ignored on behalf of the condemned man. Friedman, normally a civil lawyer, took time out from his practice to handle Harris’ clemency plea before Wilson.

“I always said I wouldn’t handle criminal cases,” Friedman said. “I didn’t mind being responsible for people’s money, but I didn’t want to be responsible for their liberty. This goes beyond liberty. . . . I was very much aware that I have a man’s life in the palm of my hand. That is very sobering.”

The last man put to death at San Quentin was Aaron Mitchell, a lifelong thief who was gassed in 1967 for the murder of a Sacramento police officer. A crowd of 300 people protested outside the prison as Mitchell was dragged to the gas chamber. He did not go quietly, screaming “I am Jesus Christ” repeatedly until the poison gas silenced him.

After that, execution chambers across the country were idled as courts considered whether capital punishment violated the U.S. Constitution. In 1972, the U.S. Supreme Court outlawed the death penalty as unconstitutionally arbitrary and capricious. But four years later, the high court said states could conduct executions if juries were given guidelines as to which crimes merited a sentence of death.

California voters reauthorized the death penalty with a 1978 initiative.

Harris’ epochal saga began on July 5, 1978, when he and his younger brother abducted two high school sophomores from a fast-food parking lot in San Diego. After forcing the boys to drive to a rural area, Robert Harris ordered them to walk up a dusty wash and shot them. He was convicted and sentenced to death in 1979.

Harris’ case embarked on a legal zigzag through state and federal appellate courts. In 1990, he came within 12 hours of an execution but was spared after the U.S. Supreme Court refused to overturn a stay issued by 9th Circuit Judge John T. Noonan.

The latest blizzard of legal papers was launched after Wilson refused to grant clemency for Harris after a hearing in Sacramento last week.

In asking Wilson to spare their client, defense attorneys revisited Harris’ nightmarish childhood to argue that he suffered from fetal alcohol syndrome and thus acted impulsively without regard for consequences. Attorneys also described years of abuse, neglect and torment aimed at Harris by his parents and unearthed reports diagnosing a teen-aged Harris as schizophrenic.

Wilson, however, sided with prosecutors, who described Harris as a “psychopath” and pointed out particularly cruel aspects of his crime. Harris, they say, mercilessly ordered one of the teen-agers to “stop crying and die like a man.” After the boys were dead, authorities said the killer nonchalantly ate what remained of their lunch.

The 1978 killings, prosecutors noted, were only the most brutal episode in a life of violence that began when police discovered that Harris was killing cats at age 10.

On Saturday night, Harris’ sympathizers had pulled off an extraordinary victory when Patel granted a 10-day stay to consider whether death by lethal gas is cruel and unusual punishment. That claim was made in a class-action suit filed by the American Civil Liberties Union on behalf of Harris and the 330 other Californians under sentence of death.

Patel’s stay threw a curve at state prosecutors, but they quickly appealed, alleging that Patel had overstepped her authority.

After a closed-door conference Sunday night, a three-judge panel of the 9th Circuit Court issued an order agreeing with the state, paving the way for the final legal maneuvers on Monday.

The gripping legal drama being played out in recent days echoes the down-to-the-wire battles that often preceded executions when capital punishment was routinely carried out in this state.

One of the most memorable was the back-and-forth duel over the fate of Joseph Francis Regan. Regan got four reprieves from the governor in 1933 during the course of his legal appeals, but the last one came too late. Just as the governor’s clemency secretary was shouting, “Stop the execution!” over the telephone, the San Quentin hangman let the gallows drop.

Barbara Graham, whose celebrated case became fodder for a Susan Hayward movie called “I Want to Live,” also was granted several last-minute reprieves--including one issued just 90 seconds before she was scheduled to die in 1955. She found them agonizing.

“Why do they torture me?” Graham lamented after she learned of one stay while walking in high heels and stylish dress toward the gas chamber. She returned briefly to her holding cell, then later the same day was executed.

In 1989, Robert Harris told California magazine that his long wait as a condemned man had prepared him for death.

“Over the years, you quit living in a fantasy world. At least, I have,” Harris said. “You learn to face it. I’m ready. If it was my time, I’d walk down there and sit in that chair and say, ‘Let’s do it.’ ”

Those last three words are eerily reminiscent of the phrase uttered by Gary Gilmore of Utah, whose 1977 death by firing squad made him the first man executed in the U.S. after a decade-long hiatus. After a long glance at the cinder-block ceiling of Utah State Prison, Gilmore--who had asked to be executed--told the warden, “Let’s do it.”

Times staff writers Philip Hager, Richard C. Paddock and Alan Abrahamson contributed this story.

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