The San Francisco Examiner from San Francisco, California • 12

A-12 Monday. April 20, 1992 SAN FRANCISCO EXAMINER LegaKti i HARRIS from A-l es asiae, i Hi High court awaits 1 th by gas is aeai 1 3-- fm Bf i 4W No Death Wctkfc, I' Can Ciinmtir poisoning crue immmm1 TceturC last Harris appeal state attorney general's request to overturn the temporary gas-chamber ban issued late Saturday by U.S. District Judge Marilyn Hall Patel. Judge John Noonan voted to leave the stay in place. It is extraordinary for an appeals court to overturn a district court's temporary restraining order.

On Monday, the same panel rejected Harris' contention that prosecutors withheld evidence showing that Harris' brother may have fired the first shot in the 1978 murder of two San Diego boys for which Harris was condemned. A federal judge in San Diego rejected that argument on Saturday. If the Supreme Court restores the gas-chamber ban and it remains in effect past Tuesday, when Harris' current death warrant expires, state prosecutors would be required to obtain another death warrant a process that takes at least 40 days. '7 i in hy fx -5s', S7 I i i 7 EXAMINERELIZABETH MANGELSDORF Bearing signs and determined faces, about 30 activists march down Bridgeway Road in Sausalito toward San Quentin. The 21-mile march to protest the planned execution started at the Palace of Fine Arts in The City.

cians who used a nail polish remover called SuperNail, a substance that when inhaled converted to cyanide in the body. It's also contained in the inside kernels of peach, apricot and cherry pits but it would take about 50 pits to kill an average adult. Hydrogen cyanide kills by blocking the body's ability to pull oxygen from the blood. It does this by irreversibly binding to an enzyme, called cytochrome oxidase, that is responsible for grabbing the oxygen and delivering it to the tissues. When bound up by cyanide, this enzyme becomes completely nonfunctional.

Involuntary gasps Oxygen is still circulating in the bloodstream but the heart and brain can't use it. Because the body is fooled into thinking it doesn't have any oxygen, it works harder to try to get it. There are involuntary gasps. Breathing becomes more labored. Deprivation of oxygen causes symptoms of headache, nausea, confusion, fainting spells and seizures, followed by coma.

The heart, deprived of oxygen, beats slower and slower and then stops. During the execution, a stethoscope is attached to the inmate's chest and connected to a long hose, so that doctors can confirm that the heart has truly stopped. Lethal gas is the only method authorized in California, one of only three states that rely on this means of execution. Arizona and Maryland are the others. Many other states have instituted death by lethal injection.

Supporters of lethal injection as a "more humane" way of death say a painless death comes in a matter of seconds. Other methods of execution still in use in the United States include: firing squad, where, assuming the executioners aim true, death occurs instantaneously; hanging, where death, despite a broken neck, may take 15 minutes or more; and the electric chair, the history of which contains lurid accounts of obviously painful deaths, with smoke erupting from the con-demned's temples, screams and other evidence of agony. The how-to book "Final Exit," which guides people through the complexities of carrying out one's own painless, nonviolent, non-messy death, strongly recommends against cyanide. what we're going through, and believe me, it is a nightmare," she said. "We live with the death penalty every day.

It feels like sliding off a cliff and you can't do anything about it." While it is not uncommon for families to be split in the wake of a death sentence, some surprisingly grow closer, says sociology Professor Radelet. Research has shown, for instance, that a greater proportion of death-row inmates receive family weekend visits than prisoners serving life terms, he says. "Even after a horrible crime, dads are still dads, moms are still moms, and they still love their kids," Radelet says. "The reason that the death penalty is so horrible is because (inmates) see what their families go through. The pain of the death penalty is not the last five or 10 minutes.

The pain is the last five or 10 years when the offender and his family go through the anticipation." Evelyn Stankewitz got a frightening first taste of what her husband might someday go through last November when an execution date was set for him. Condemned inmates typically have a number of execution dates set, then rescinded as they move through the legal system. For Stankewitz, an outreach counselor in Fresno, those days are now indelibly etched in her mind. "They even asked him what he wanted for his last meal," she says. "I was going crazy.

For me there was the knowledge that one day this will be a iality. It brought it very close to home." Life r. w.a:..-. i The cases went before the same appeals panel that has heard the Harris case previously. Alarcon of Los Angeles was appointed by President Jimmy Carter.

Noonan of San Francisco and Brunetti of Reno were appointed by President Ronald Reagan. It was Noonan who two years ago granted Harris an llth-hour stay to allow his attorneys to pursue their argument that he had "been denied adequate psychiatric counsel during his 1979 trial. However, Alarcon and Brunetti later voted 2-1 against Noonan to deny the appeal. In a later appeal, the full 9th Circuit reportedly split 13-13, which under court rules de-nied Harris' request for a hearing on whether he should be allowed a new trial on his mental state at the time of the killings. The three judges voted 2-1 last November to give Harris 60 days to seek review of his case, a move denounced by Alarcon as the court's acquiescence to "skillful manipulation" of the appeals process by Harris' lawyers.

Evelyn and Douglas Stankewitz posed marriage in San Quentin. Douglas is steps of the Capitol, demonstrating in San Francisco, picketing outside San Quentin with her hand-crafted portrait of Robert Harris, drops of blood running down his face. Gay, a grandmother who helped launch an organization three years ago called Wives, Families and Friends of People on Death Row, says the families of condemned -1 'i. fcw.innnlirr Courts will decide constitutionality of cyanide execution, but whether the condemned feels pain is unknown By Lisa M. Krieger EXAMINER MEDICAL WRITER Is it cruel to execute using lethal gas? While a legal test of the issue remains uncertain, the actual test of what dying by gas does to one physically also remains unclear because there is no one left who can give direct testimony.

Inhalation of the deadly cyanide gas causes a person to convulse and uncontrollably gasp for breath, say toxicologists. "But is there pain? Is there consciousness? It's hard to say," said Dr. Thomas Kearney, managing director of the San Francisco Bay Area Regional Poison Center. A person's response to so-called "chemical asphyxiation" is individual, depending upon age, health history, concentration of the deadly gas and other factors, he said. Accounts vary about the experiences of California's previous 194 gas executions.

Some say that death is swift, with unconsciousness and brain damage caused by a single breath. Others, such as American Civil Liberties Union lawyer Michael Laurence, who represented Robert Alton Harris before U.S. District Judge Marilyn Hall Patel on Saturday, say that lethal gas can take as long as eight or 10 minutes to kill a person. Jonestown killer When the cyanide pellets are dropped into sulfuric acid under the chair, they produce a deadly gas. Cyanide is the same stuff that the Rev.

Jim Jones used to lace the soft drink that killed 900 of his followers. It is also what killed two Washington state residents in a notorious Sudafed-tampering case. And it's used as a chemical weapon in warfare. Sometimes it is released during a fire, when wool or polyurethane burn. Cyanide was also the culprit in the sudden sickening of beauti- for this picture after their 1988 a condemned murderer.

prisoners are often treated like social pariahs. "People scream at us and say we have no rights," says Gay, a San Rafael resident who works as an artist and nurse's aide. She married Kenneth Gay nearly three years ago. He is currently on the first rung of the appeals ladder. "We're the ones who know No explanation The appeals panel ruling on Sunday followed hours of deliberation and a 90-minute telephone conference with lawyers for both sides.

The panel did not immediately explain its decision, which came after state lawyers argued that Judge Patel had exceeded her jurisdiction and made a "clearly erroneous" ruling. The action came in a class-action civil-rights lawsuit filed Friday by the ACLU in San Francisco federal court on behalf of inmates Harris, David Fierro, Alejandro Ruiz and all other current and future California death-row inmates. It alleges that gas executions are needlessly long and torturous, and as evidence included five volumes of statements from medical experts, Holocaust survivors and witnesses to gas executions, as well as San Quentin gas-chamber logs. Patel ordered the temporary ban on cyanide-gas executions after a hearing in the case Saturday, during which ACLU lawyer Michael Laurence argued that the gas chamber is inhumane. "Like crucifixion, a torturous execution by lethal gas in violation of contemporary standards of decency falls within the core definition of 'miscarriage of he said.

Patel's ruling Patel concluded the ACLU had presented enough evidence to warrant a further hearing on whether gas-chamber executions are cruel and unusual. She did not rule on the validity of Harris' death sentence or the death penalty. She said a temporary restrain ing order was proper because the ACLU had raised serious questions about whether gas executions are constitutional, and had shown that if no stay were issued the plaintiffs would suffer major hardships in particular, that Harris might be executed in a cruel and unusual manner. Her 12-page order rejected the state's contention that the civil rights suit should be thrown out as an invalid attempt by Harris to avoid unfavorable rulings in state court. She also denied the state's as sertion that federal courts should abstain from the case because it would interfere with the state's administration of justice.

Patel ruled the suit was a proper civil-rights case, and said federal courts have authority to act in cases charging the government with cruel and unusual punishment, which is prohibited by the Eighth Amendment to the U.S. Constitution. The U.S. Supreme Court has interpreted the Eighth Amendment as barring punishments that are incompatible with "the evolving standards of decency that mark the progress of a maturing society," she said. In deciding whether punishments are cruel and unusual, she said, courts must consider whether they involve torture, unnecessary infliction of pain or a lingering death.

Only one federal court has upheld gas executions as constitutional, in a 1983 Mississippi case, she said. But she noted that since then. MississiDDi. as well as North Wyoming aid Oregon, hps abf nHnnpH pos or fovided al- ternative means of execution. Changing views A key indicator of modern standards of decency are the views of state legislatures, Patel said, noting the ACLU had submitted evidence showing that many have shifted from gas to other means of execution.

In the last 15 years, eight of 38 U.S. jurisdictions with the death penalty have abandoned gas in favor of lethal injection, the evidence shows. Now, only Arizona, Maryland and California require death by gas. And of those, only Arizona has had an execution in the last 25 years, and its Legislature is in the process of eliminating gas executions, according to the ACLU's court papers. Patel set an April 28 hearing on whether the stay should be made permanent.

Immediately after Patel gave her order from the bench, state Deputy Attorney General Dane Gillette appealed. FAMILIES from A-l Their loved ones wait on death row chamber, a husband or brother or son could follow. "Each execution affects every family of every inmate on death row," says Michael Radelet, a sociology professor at the University of Florida, an anti-death penalty advocate and researcher who has studied the families of condemned prisoners. "With each execution it sends a wake-up call, a reminder to every family that their loved one could face the same thing," Radelet said. "It removes any denial.

There are plenty of reasons to hope some sentences are commuted to life in prison but an execution throws a bucket of water on those hopes." The last few months, while Harris was making his final bid to avoid the gas chamber, have been particularly hard on some family members of death-row inmates. "You feel wrung so tight, you don't know whether you're going or coming," says Lillian Duran, whose former brother-in-law is on death row. Even though her sister's marriage ended in divorce, Duran continues to visit the inmate, who she asks not be identified. "You teeter," she says. "Will it happen and if it happens how far will it go down the line? Will it affect our loved one?" On a Saturday morning about a' week ago, Duran drove to San Quentin from her home in San Jose to visit her former brother-in- law, who has been a condemned man for a decade.

In court papers, he conceded it was extraordinary for parties to appeal a temporary restraining order. But he said a reversal was proper because Patel's order was "clearly erroneous" and "an abuse of federal power." Gillette also argued that Harris should have challenged the constitutionality of the gas chamber in his prior appeals, and that because he didn't the suit was barred. He contended the class action suit was a "sham" and that its true purpose was to delay Harris' death. Gillette also argued that gas executions are not cruel and unusual. He said a federal appeals court rejected that claim in the 1983 Mississippi case, and that the California Supreme Court rejected it in 1953 and 1968.

Easter filing In court papers filed at 9:15 p.m. Sunday, the ACLU argued that both medical knowledge about lethal gas and legal standards had changed since those cases and defended Judge Patel's ruling. The prison's visiting room, permeated with the scent of micro-waved popcorn, resembles in some ways a workplace lunchroom, with microwave oven, condiments, sodas, candy bars and other snacks sold from vending machines. The walls of the room are decorated with inmate paintings. Cards and dominoes are available to the inmates and their visitors along with a stack of Bibles and, for the younger set, children's books.

With the purchase of a $1.50 ducat, visitors pose with inmates for an Polaroid photograph taken by a guard. Often they select a pastoral painting on one wall as their photographic backdrop. One visitor, a sibling of one of the 329 residents of death row, said that he supports capital punishment. Numerous other relatives, however, were adamantly opposed. "You get to know people, you talk to them.

I see families talking with their loved ones, laughing and hugging and eating as if they were in their living room," said Lillian Duran in an interview after her visit. "But just on the other side of the door is the gas chamber. All you can do is sit and cry or pray, which is what I do, and hope that the populace will see that it is wrong. It was wrong for them (to commit murder) but it is more wrong for the state to do this." Some family members take to public forms of protest. Janice Gay, whose husband was convicted of murder and has been on death row since 1985, spent the last week in a flurry of activism, lobbvine in SacraAfento on the 1 -v -t A 4.