Time Begins to Run Out for Killer’s Legal Appeals of Death Sentence : Capital punishment: Authorities say his chance of winning a reprieve are slim. After 11 years of legal maneuvering, his is the most advanced death penalty case in the state.

The arduous bid by Robert Alton Harris to escape the executioner has lasted nearly 11 years, one of the longest series of appeals since California reinstated capital punishment in 1977. His pleas now have been rejected four times by both the U.S. and California supreme courts.

But while his legal battle is still not over, time is clearly running out for the 37-year-old convicted killer, whose case is the most advanced, procedurally, of those of the 273 inmates on San Quentin’s Death Row.

Legal authorities say Harris’ chance of winning a reprieve are slim. At this late stage of the process, experts say, the courts ordinarily will not intercede to block an execution unless there is important new evidence or a change in the law that could affect a case.

“Issue after issue after issue has been decided against Harris and one expects that the likelihood is not great that a court will intervene now,” UC Berkeley law professor Phillip E. Johnson said. “There comes a time when a case must be decided and a penalty imposed. . . . Judges are well aware that it breeds public cynicism to keep cases going on forever.”

Even before Tuesday’s action by the federal high court, Harris’ lawyers had filed a separate attack on his death sentence before the state Supreme Court. Harris has admitted the slayings of which he was accused, and his conviction itself is not at issue.

If the state high court turns down Harris’ latest plea for life, his lawyers can continue the fight right up to the time of execution with emergency appeals to federal district and appeals courts and, ultimately, the U.S. Supreme Court. His execution date--to be set by a state trial court in San Diego--would remain in effect unless some court issued a stay.

His last hope would rest with a petition for clemency from Gov. George Deukmejian. However, few legal observers expect a reprieve for Harris from the governor, a supporter of the death penalty. And, because Harris is a twice-convicted felon, an act of clemency would also need approval from the state Supreme Court, as provided in the state Constitution.

Harris contends now in his appeal to the state Supreme Court that his 11-year incarceration on Death Row violates the constitutional prohibition against cruel and unusual punishment. He argues, as a result, that he is entitled to a new penalty trial.

In a petition for a writ of habeas corpus, his lawyers, Charles M. Sevilla and Michael J. McCabe of San Diego, say the delay was not his fault. The long legal journey is attributable to the “exceedingly poor draftsmanship” of the state death-penalty law, the complex constitutional questions involved, overcrowded court dockets and the time required by judges to thoroughly consider what are literally matters of life or death, the attorneys say.

“If the state and federal justice systems cannot conclude that a conviction and/or penalty is properly obtained within a decade, then something is wrong,” Sevilla and McCabe say.

State prosecutors have not yet been asked by the court to respond to this latest Harris appeal. But officials say there is nothing significantly new in his current appeal. And on the issue of delay, the state can argue that Harris has not been harmed but indeed has benefited from the years his case has been in the courts.

“It’s ironic that somebody who has been trying to delay the process (with appeals) is complaining that it’s taking too long to execute him,” state Deputy Atty. Gen. Louis R. Hanoian says. “If the people of the State of California had had their druthers, he would have died back in 1983 or thereabouts.”

Harris is also raising other claims, saying he is entitled either to a new penalty trial or outright reduction of his sentence to life in prison. Among other things, Harris’ lawyers argue that:

- A psychologist, called as a witness for the prosecution to support its request for the death penalty, wrongly testified that Harris was a sociopath who was incapable of feeling remorse and could never be rehabilitated. Since then, the accepted scientific definition of sociopathy has changed, rendering the psychologist’s assessment invalid. And Harris has made a change for the better, becoming a model prisoner who is liked and respected by other inmates and even some prison guards, the petition says.

- Newly discovered evidence shows that Harris had been adversely affected by several mental disorders--post-traumatic stress disorder, attention-deficit disorder, organic brain damage and fetal alcohol effect. Harris suffered “shocking and unconscionable” physical and psychological abuse as a child from “horribly abusive, alcoholic parents,” the petition says. His childhood would score a “9.0 on a Richter scale for traumatic stress.” Such evidence should have been presented to a jury as mitigating factors supporting a sentence of life in prison rather than death, the petition contends.

- Harris should have another chance to show that he was the victim of discrimination because of his sex. While scores of men have been sentenced to death in California since the reinstatement of capital punishment in 1977, only one woman has been sentenced to the death penalty.

Somewhat surprisingly, Harris’ case moved relatively fast at its early stages before the state Supreme Court, which, under then-Chief Justice Rose Elizabeth Bird, had been widely criticized for its reluctance to uphold capital sentences.

Harris was convicted and sentenced to death in March, 1979. Less than two years later--in February, 1981--the state Supreme Court, in its mandatory review of the case, upheld the capital verdict against Harris.

Further appeals to both the federal and state high courts were rejected. But in 1982, the U.S. 9th Circuit Court of Appeals in San Francisco blocked Harris’ execution, ruling that capital sentences must be reviewed to make sure they are not disproportionate to punishments imposed in other, similar crimes.

The next year, the U.S. Supreme Court reversed that ruling, saying such “proportionality” review was not required by the U.S. Constitution. Harris went back to the lower courts to pursue other issues.

It then took five years for the federal appeals court in San Francisco to reject Harris’ arguments, sending the appeal back once again to the high court in Washington to be turned down Tuesday.