Judges Overturn Stay of Execution : Courts: Federal appeals panel votes 2 to 1 to vacate Harris’ temporary reprieve issued Saturday. Prison continues preparations for enacting the death penalty.

A federal appeals panel late Sunday night overturned a temporary reprieve from the gas chamber for condemned slayer Robert Alton Harris that had been granted the day before by a federal district judge.

The panel voted 2 to 1 to strike down a temporary restraining order issued by U.S. District Judge Marilyn Hall Patel that barred Harris’ execution while she considered a civil rights action on behalf of Harris and 330 inmates on Death Row challenging the use of lethal gas as cruel and unusual punishment.

In a brief order issued just before midnight, the appellate panel directed Patel to vacate her stay, allowing Harris’ execution to proceed as scheduled Tuesday at 12:01 a.m. Judges Arthur A. Alarcon and Melvin Brunetti voted in the majority. Judge John T. Noonan dissented.

Lawyers for Harris were not immediately available for comment, but it was expected that they would file an appeal with the full, 28-member U.S. 9th Circuit Court of Appeals or proceed directly with an appeal to the U.S. Supreme Court.

A spokeswoman for the American Civil Liberties Union, which filed the class-action suit, said an appeal was planned but declined further comment.

Meeting into the night, the panel reviewed arguments from attorneys for the state of California that Patel acted improperly this weekend when she postponed the execution to mull arguments that death by gas is cruel and unusual punishment under the U.S. Constitution.

The panel members, who conferred by telephone with attorneys for both sides from the court’s headquarters in San Francisco, were focusing on whether Patel abused her discretion in granting Harris the reprieve Saturday night.

The conference, which began about 5 p.m. on Easter Sunday, lasted 90 minutes and ended with the judges asking for additional legal briefs to be filed by attorneys for Harris. The briefs were filed shortly after 10 p.m., court clerks said.

Harris, who gunned down two San Diego teen-agers in 1978, was scheduled to be executed in San Quentin’s gas chamber at 12:01 a.m. Tuesday, becoming the first person put to death in this state in a quarter-century.

But on Saturday night, the double-murderer was given some hope by Patel, who issued a 10-day restraining order requiring that Harris be kept alive at least until a hearing was held on claims that state killing by cyanide gas is “barbaric” and should be banned.

In response, the state attorney general’s office late Saturday night asked the 9th Circuit to invalidate the order and allow the gassing to occur according to plan.

The appeals filed by Harris were under review by the same three-judge panel that has ruled on his case before.

Last August, the panel voted 2 to 1 to reaffirm Harris’ death sentence, finding that his claim of inadequate psychiatric assistance during the trial had been filed too late. The dissent was cast by Noonan, who had issued a stay blocking Harris’ previously scheduled execution on April 3, 1990.

In a ruling on the Harris case seven months later, Alarcon expressed frustration over the long history of delays and accused Harris of “skillful manipulation” of the law.

Explaining his vote, Alarcon wrote: “I decline to participate further in the unconscionable delays that have occurred in reaching a final determination in this manner. . . . The Harris case is a textbook example of how the (law) can be abused.”If another stay is issued and not overturned by Tuesday, Harris’ death warrant will expire and the execution would have to be rescheduled, but could not be held sooner than June.

Lawyers for Harris also were pressing their appeal on another legal track, asking the 9th Circuit to postpone the execution based on new evidence that Harris was legally insane when he killed the two boys in a remote dry wash.

This appeal also claims that Harris’ younger brother Daniel shot one of the teen-agers but was pressured by prosecutors to keep quiet about the information. Daniel Harris, who provided crucial testimony against his brother at trial, served three years for bank robbery for his role in the crime. The claim was rejected Friday by a federal judge in San Diego.

State Atty. Gen. Dan Lungren has attacked the defense claims as old or without merit.

Before the panel’s decision, news of the last-minute legal machinations sparked a wide array of reactions on Easter Sunday. Foes of capital punishment celebrated with guarded optimism at church services and demonstrations around the state, while advocates of the execution expressed frustration that California’s legal process seems so prone to false starts.

In San Diego, relatives of Harris’ victims--Michael Baker and John Mayeski, both 16--expressed bitterness at the prospect that an end to their ordeal may elude them once again. The state has issued five death warrants for Harris since his 1979 conviction; in 1990, he came within four days of death before a federal appeals court intervened.

“When is the state going to do the job and get it over with? It’s been a burden long enough,” said Anton Mayeski, 39, a brother of John Mayeski.

Frances Hutchens, 70, Baker’s grandmother, said: “I just don’t understand the judicial system.”

Harris’ relatives responded with a mixture of emotions to the developments. Daniel Harris--suddenly at the center of his brother’s pleas for mercy--seemed to contradict claims made by Robert Harris’ lawyers, repeating his earlier testimony that he had not fired a shot during the 1978 crime.

“It’s not true,” Daniel Harris, 32, told the tabloid television show “Inside Edition” in a spot to be aired today. “I mean, I couldn’t. I mean, it’s a lie. Flat out. Simple.”

Daniel Harris, who lives in Oroville with his wife and three children, left on a camping trip this weekend and could not be reached. On Sunday, his mother-in-law described him as being “on the verge of a breakdown.”

Another brother, Randy, told The Times he was gratified by the reprieve but fears that Robert will be executed--whether by gas or another method. Randy Harris, who cares for the criminally insane at a state hospital in Colorado, said he was shaken by what he called “the blood lust” of the attorney general.

“How can someone preach the death of another human being, in a premeditated way?” he asked, his voice breaking with emotion. “It made me think of the damned Nazis. . . . There is no reason in a civilized society to kill people.”

Randy, who is 13 months older than Robert and was his best friend growing up, has been meeting daily with his brother in a visiting room at San Quentin. At times, he says, Robert acknowledges he has mental impairment. Other times, he argues that he is normal. As Randy sees it, that’s “part of his sickness.”

Randy Harris also said his brother believes that his time is running out: “He knows they’re bloodthirsty.”

The condemned Harris was visited Sunday by his sister, Brenda, and his second cousin, Leon Harris, a Southern Baptist minister from Mobile, Ala., who has court approval to serve as Harris’ spiritual adviser on his final night.

Despite the stay issued by Patel, prison officials continued Sunday to treat Harris as a condemned man destined to die soon in the gas chamber. According to procedures, family members were told that their visits will be terminated at 3 p.m. today. Harris’ lawyers can meet with him until 6 p.m., when Harris is scheduled to receive his last meal. He requested Kentucky Fried Chicken, two Domino’s pizzas without anchovies and Pepsi.

Outside the prison gate, demonstrators continued the vigil they have held since Gov. Pete Wilson denied clemency for Harris last week. In recognition of Easter, clergymen held prayer services for the swelling crowd of sign-toting abolitionists.

Father Bill O’Donnell of St. Joseph the Worker Church in Berkeley led one of the services beside the busy two-lane highway that leads to the prison on San Francisco Bay. O’Donnell said he was not optimistic about Harris’ chances.

“I always have hope but if you asked me to lay a bet, I wouldn’t,” the priest said. “It’s just a postponement because the politicians are out for blood. They can taste it. They want it.”

As the opponents spoke and prayed beneath the clear blue skies, passing motorists expressed contrary views: “Fry him!” one shrieked. “You’ll feel different when someone you know is killed!” screamed another.

Although federal courts ordinarily confine their work to regular, weekday hours, they are equipped to deal quickly on nights and weekends with urgent matters. In the Harris case, the federal appellate court could hold a formal hearing or resolve the issues on the basis of written briefs.

The 28 judges who serve on the far-flung court, covering California and other Western states, maintain offices from Fairbanks, Alaska, to San Diego. All are quickly reachable by telephone and need not meet to render a decision.

Times staff writers Jenifer Warren and Bob Baker contributed to this story.

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