A federal appellate court Wednesday lifted a stay of execution for Robert Alton Harris, clearing the way for San Diego prosecutors to go to court today to obtain a new date for the state's first execution in 23 years.
The U.S. 9th Circuit Court of Appeals in San Francisco lifted the stay in response to a request from the state attorney general's office that, following the rejection last week of Harris' appeal by the U.S. Supreme Court, the federal courts relinquish control of the case.
With the appellate court's procedural action out of the way, prosecutors now can ask a San Diego Superior Court judge to schedule a hearing at which an execution date will be set.
Deputy Dist. Atty. Paul M. Morley said he plans to go to court today to request the hearing date. The law requires the date to be at least 10 days after the request, so the earliest the hearing could be held would be Feb. 5, Morley said Wednesday.
An execution date would be set for between 30 and 60 days after the hearing. Once the execution date is set, to stop it Harris' attorneys must find a judge who will grant him a stay.
Harris' attorneys, meanwhile, have filed a separate appeal with the California Supreme Court seeking to halt his execution, contending, in part, that it would be cruel and unusual punishment to kill him because he has changed for the better in prison.
The state court has set March 16 as the deadline for written briefs in the matter.
Even if the state court hears Harris' new appeal, Harris still must obtain a stay to put off his execution once the date is set.
"Believe me, some form or another of appeal will be going on all the way to the end," Richard Iglehart, the chief assistant attorney general, said Monday night from his home in Oakland.
"It's just a matter of the courts, both states and federal, feeling that all the issues have been heard," Iglehart said.
Harris, 37, is on San Quentin's Death Row for killing two 16-year-old San Diego boys in 1978. His case has progressed further through the court system than the cases of any of California's 272 other condemned prisoners.
Harris was arrested July 5, 1978, by Steve Baker, a San Diego police officer, who did not know at the time that Harris' victims were Baker's son, Michael, and Michael's friend, John Mayeski.
Dan Morain reported from San Francisco; Alan Abrahamson reported from San Diego.