Appeals Court Reaffirms Death for Teens’ Slayer

A federal appeals court on Thursday reaffirmed the death penalty for a convicted San Diego murderer, opening the way for an execution--possibly by next spring--that would be California’s first in 22 years.

The U.S. 9th Circuit Court of Appeals, after a lengthy review of the case, denied a rehearing to Robert Alton Harris, 36, who was sentenced to death in 1979 for the execution-style killings of two teen-age boys, one the son of a police officer.

Of the more than 250 convicted slayers facing the death penalty in California, Harris’ case is the most advanced in the complex capital appeals process involving both state and federal courts.

An attorney for Harris, Charles M. Sevilla of San Diego, expressed disappointment with the decision and said review will be sought from the U.S. Supreme Court, which, like the state Supreme Court, has rejected previous appeals by the defendant.

But if such a bid fails again, Harris would be restricted to an 11th-hour emergency appeal--claiming some unresolved legal issue--and/or to a bid for clemency from Gov. George Deukmejian, who as a state senator was the principal sponsor of legislation reinstating capital punishment in 1977.

Neither of those possibilities appears promising for Harris, in the view of prosecuting authorities. “If he loses in the U.S. Supreme Court, he has essentially run out of courts,” said state Deputy Atty. Gen. Louis R. Hanoian.

Another state official, Deputy Atty. Gen. Dane Gillette, noted that under a little-noticed provision of the state Constitution, Harris would face an additional obstacle to obtaining gubernatorial clemency.

As a twice-convicted felon, he would need approval of a gubernatorial pardon or commutation of sentence from a majority of the seven-member state Supreme Court. In the regular appeals process, the newly realigned and more conservative court has upheld 60 of the 84 death sentences it has reviewed.

In the 11 years the case has been in the court system, Harris has survived three separate execution dates. In the wake of Thursday’s ruling, prosecutors said that early next month they will go back to court to obtain another execution date, which then would be set within 30 to 60 days.

Meanwhile, authorities said, Harris will have 90 days from Thursday’s ruling to seek a stay of execution and ask for review by the U.S. Supreme Court. If such review is rejected and Harris fails to win a commutation from the governor, his execution could take place soon thereafter.

“Exactly when it might take place is really hard to say,” said Hanoian. “But it looks like we’re about eight or nine months away.”

Harris was charged and convicted in the murders of Michael Baker and John Mayeski in 1978. The two 16-year-old victims were kidnaped at gunpoint by Harris and his brother as the victims sat eating lunch at a drive-in restaurant in San Diego.

Planning to use their car for a bank robbery, Harris forced the youths to drive to a canyon, where he shot them to death, authorities said. Later in the day Harris was arrested by San Diego Police Officer Steve Baker, who did not know at the time his own son had been murdered by Harris.

Harris was tried and convicted and his subsequent sentence to death was upheld by the state Supreme Court--one of four such sentences affirmed by the court under former Chief Justice Rose Elizabeth Bird. The U.S. Supreme Court in 1984 upheld the death penalty for Harris and the case was returned to the lower federal courts for further proceedings on unresolved issues in the case.

In July, 1988, a three-judge panel of the federal appeals court rejected a series of claims by Harris’ attorneys, once again upholding his sentence of death. Harris then asked for a rehearing before the full court. But after an unusually lengthy review of the request, the court turned him down in the ruling issued Monday.

The panel, made up of Judges Arthur L. Alarcon, Melvin Brunetti and John T. Noonan Jr., reaffirmed its July, 1988, decision that rejected Harris’ claim that his mental condition--diagnosed by a psychiatrist as an “anti-social personality”-- should have been considered as a mitigating factor favoring life in prison rather than the death penalty.

In an addition to its previous opinion, the panel said that unlike a mental “illness,” a mental disorder of the type attributed to Harris was not uncommon among violent criminals and was not necessarily to be weighed in favor of the defendant.

The court noted that in the view of the American Psychiatric Assn., people with such a mental condition are still capable of choosing their actions and understanding the consequences of their acts.

“We may go further and say that it is difficult to suppose that there are any persons who commit the kind of vicious crime for which the death penalty is now imposed in this country who do not possess (such) mental disorders,” the court said.