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Mason OKs Effort to Block His Execution : Death penalty: Condemned killer allows attorney to ask for a stay from state Supreme Court. At same time, he opposes such a move in federal court where he could easily prolong appeals.

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TIMES STAFF WRITER

The legal maneuvering in the case of condemned murderer David Edwin Mason took an odd turn Thursday as his attorney asked the state Supreme Court for a stay of execution but prepared to fight against a stay in federal court today.

As a result, it remains uncertain whether Mason will go to the gas chamber Tuesday as he once requested; indeed, it was unclear Thursday whether Mason was still a volunteer for his own execution.

“I don’t know what he feels,” said his attorney, Mike Brady.

Mason, who was convicted of strangling five people in the early 1980s, dropped his appeals in federal court this year and asked to be executed in the gas chamber at San Quentin on Aug. 24.

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He had maintained that state courts gave his case a fair review over the last decade and that--unlike most Death Row inmates--he did not want to pursue a duplicative appeal through the federal court system. He won a federal judge’s permission to fire his appellate attorney, Charles Marson, and volunteer to die.

In recent weeks, however, Marson and other opponents of the death penalty prepared for Mason a detailed legal brief setting forth the allegation that his original public defender acted improperly during his 1983 trial.

The petition charges that the public defender’s office used private attorney Lincoln Mintz to notify authorities of alleged threats Mason had made against his lawyers. As a result, sheriff’s deputies searched Mason’s cell and found a sharp device often used in jail for tattooing. The device, considered a weapon by authorities, was later introduced as evidence by prosecutors during Mason’s sentencing hearing.

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Brady argued that the public defenders should have privately asked the judge for increased security. By arranging for word of the alleged threat to reach the sheriff, Mason’s lawyers hurt his cause when they should have been defending him.

Brady had harsh words Thursday for the attorneys involved, saying they should be disbarred. He also charged that Mintz committed perjury when testifying in 1983 about how he learned of the alleged threats. Brady, however, acknowledged he could not prove Mintz committed perjury and Mintz angrily denied he was involved in any improper conduct.

“His accusation is totally without foundation and is outrageous,” Mintz said.

Based on the new allegations, Mason authorized Brady to seek a stay of execution Thursday from the California Supreme Court--even though the high court in recent years has seldom sided with defendants in capital cases. The court is reviewing the request as a high priority, a spokeswoman said.

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Brady acknowledged that the appeal is a long shot and that the court is unlikely to grant a stay because it has already upheld Mason’s conviction and rejected other petitions he has filed.

If Mason really wants to stop his execution, he can probably do so by taking his appeal to federal court, where he has never taken advantage of the routine appeals given to all condemned prisoners. But so far Mason has not indicated whether he will make such a move.

In fact, Mason has fought a separate effort in federal court by Marson, his former attorney, to have Mason declared incompetent.

Times staff writer Matt Lait in Orange County contributed to this story.

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