Justices Move Harris a Step Closer to Death

The state Supreme Court on Friday rejected a last-ditch appeal by condemned killer Robert Alton Harris, refusing to block his scheduled execution April 3 and removing one of the last major obstacles to California’s first imposition of capital punishment since 1967.

The justices unanimously declined to grant a formal hearing to Harris to review his claim that new psychiatric evidence shows he had suffered brain damage that could have affected his behavior in the killing of two San Diego youths in 1978.

If Harris is to avoid execution, he now must obtain an 11th-hour hearing in the federal courts--or win a reprieve from Gov. George Deukmejian, who will preside over a March 27 clemency hearing to decide whether Harris’ sentence should be reduced to life in prison without parole. As a state senator, Deukmejian sponsored legislation in 1977 that reinstated capital punishment in California.

Among the cases involving more than 270 inmates now on Death Row at San Quentin state prison, Harris’ case has advanced furthest in the complex and time-consuming capital appeals process. If he is unsuccessful in his latest bid for life, he will become the first prisoner executed in California since Aaron C. Mitchell went to the gas chamber 23 years ago.

The high court’s rejection of Harris’ appeal came in a brief order signed by Chief Justice Malcolm M. Lucas. None of the seven court members dissented.

Charles M. Sevilla of San Diego, an attorney for Harris, expressed disappointment and said an appeal will be filed next week in federal district court in San Diego.

“Believe it or not, I’m still optimistic we are going to get some relief in the courts,” he said. “We believe our showing (on the need for retrial) has been very strong.”

Sevilla rejected suggestions that the claims of mental disorder were merely “last-minute” contentions. He said defense lawyers had sought for several years to obtain court funds--as permitted for indigent defendants--to conduct neurological examinations of Harris.

In recent days, he said, the defense paid for such an examination “out of our own pockets” and found further indications that Harris had suffered damage to the frontal lobe--a finding that would strengthen claims he was unable to control his impulses and should not have been found guilty of first-degree murder and sentenced to death.

“That’s a very relevant fact the jury should have had placed before it,” Sevilla said. “To this day, Robert does not know why he did it.”

Friday’s action, however, was welcomed by Deputy Atty. Gen. Louis R. Hanoian, one of a team of state prosecutors who urged the court to uphold the impending execution.

“It’s evident that the state Supreme Court found the same lack of merit we found in this appeal,” Hanoian said. “It’s unlikely the court would hereafter grant a stay in this case.”

In a statement, Atty. Gen. John K. Van de Kamp said that at this point in the proceedings, Harris has “had more than his day in court.” Harris’ appeals over the years “have been addressed fairly and rejected by our courts,” Van de Kamp said.

Hanoian added that he expected the same issues to be raised by the defense in subsequent federal court proceedings and expressed hope that those courts, too, would reject the claims.

If Harris fails in his bid for reprieve in federal district court, he can file subsequent appeals in the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court. But, as his execution date draws closer, such last-ditch moves are widely seen as less and less likely to succeed.

Harris, 37, was convicted and sentenced to death in March, 1979, in the fatal shootings of Michael Baker and John Mayeski, both 16. According to authorities, Harris gunned down the boys after he and his brother abducted them and stole their car to use in a subsequent bank robbery.

Over the years, Harris’ appeals, raising a wide range of legal issues, have been rejected four times each by the California and U.S. Supreme Courts.

In the latest challenge, defense lawyers do not contend that Harris was legally insane at the time of the crime, but instead that he suffered from a series of mental disorders that could have reduced his culpability in the killings but were not properly explored at the time of trial.

His attorneys, in briefs filed with the court, said a recent psychological examination of Harris indicated that “organic brain damage” and other disorders caused him to act impulsively in the killings, rather than with the deliberation and premeditation required in cases of first-degree murder.

They claimed further that a psychiatrist for the prosecution presented “false testimony” that Harris, as a sociopath, could not be rehabilitated. Such a theory has since been disproved, they said, adding that Harris’ exemplary behavior as a prisoner since his conviction refuted such an analysis.

Among other things, the defense lawyers also argued that Harris was entitled to a reprieve because of his psychologically and physically arduous, 11-year confinement on Death Row. Any delays in the appeals process over the years were not his fault, the attorneys said, and such prolonged incarceration as a condemned prisoner violated the constitutional ban against cruel and unusual punishment.

In response, state prosecutors urged the court to refuse to halt the execution, saying Harris was presenting “tired, repetitive” legal claims that already had been examined and rejected in previous appeals. “Enough is enough,” the state lawyers said in a brief to the court. “It is time to execute the sentence long ago imposed and repeatedly upheld.”

The state also defended the prosecution’s psychiatric evidence presented at trial, saying the defense had distorted the psychiatrist’s testimony and that it was not “false,” but merely a different assessment from that of the defense.

The attorneys for the state said Harris’ claim that he had suffered cruel and unusual punishment was “so preposterous as to leave one breathless.” His prolonged confinement on Death Row was attributable to delays he himself had injected in the appeal process, they said.