Harris Retracts His Clemency Hearing Plea

Condemned murderer Robert Alton Harris on Tuesday withdrew his application for a clemency hearing, saying in a letter to Gov. George Deukmejian that he does not believe the governor can be a fair and impartial judge of his request for mercy.

In his handwritten letter, Harris said it would accomplish nothing to go through with the hearing, set for next Tuesday, because Deukmejian, a longtime proponent of the death penalty, has made it clear he does not “believe in interfering with my execution.”

Harris, scheduled to be executed April 3, said his participation at the hearing would only “give the show the look of being fair when it is not.” He added, “I cannot be part of that kind of empty game.”

Harris, 37, convicted of the 1978 killings of two teen-age San Diego boys, is in line to become the first person executed in California in 23 years. His case has progressed farther through the court system than that of any of the more than 270 prisoners on Death Row in California.

Deukmejian received a copy on Tuesday of Harris’ letter, which is dated Monday, but had no response to it, press secretary Bob Gore said.

It was unclear whether Deukmejian could go ahead with the hearing, anyway, or whether he would want to do so, although one of Harris’ attorneys said the withdrawal request cut off any legal basis for holding the session.

The clemency hearing had been one of Harris’ two remaining avenues of review. The other lies with the courts, and in his letter to Deukmejian, Harris said that is where he has “put (his) trust.”

The U.S. Supreme Court has rejected Harris’ case four times, most recently on Jan. 16. The California Supreme Court upheld Harris’ death sentence in 1981.

Last Friday, the state Supreme Court turned down a last-ditch appeal Harris had filed Jan. 5. The court declined to grant a formal hearing to review Harris’ claim that new psychiatric evidence shows he had suffered from brain damage that could have led to the killings.

Harris’ only surviving hope is to win a reprieve from the federal courts. His San Diego attorneys, Charles M. Sevilla and Michael McCabe, plan to file legal papers within a few days in the San Diego federal court urging immediate review of the appeal the state Supreme Court rejected, Sevilla said Tuesday.

The case most likely will be assigned to U.S. District Judge William B. Enright, who presided over Harris’ first federal appeal in 1982. At that time, Enright denied the appeal and called Harris’ death sentence “an appropriate and deserved penalty.”

If Enright denies the appeal again, Harris must turn to the U.S. 9th Circuit Court of Appeals, the San Francisco-based federal appellate court that serves nine Western states and Guam.

Not only must Harris persuade a federal court to hear his appeal, he must also persuade either Enright or the appeals court to put off the execution while his case is considered.

Harris’ move to withdraw his clemency application removed any legal basis for Deukmejian to hold next week’s hearing, Sevilla contended Tuesday.

The law provides for a hearing only at the request of the prisoner, Sevilla said. Since Harris has retracted his request, that “should end the matter,” Sevilla said.

Harris asked for the clemency hearing in a Jan. 26 letter he wrote to Deukmejian. On Feb. 22, the governor said he would hold the hearing, at San Quentin, and announced he would preside.

In a March 5 letter, Harris asked Deukmejian to step aside at the hearing, saying a politician “committed to my execution” should not decide whether he should be spared from the gas chamber.

That letter was based on Deukmejian’s longtime support for the death penalty--he wrote the 1977 law reinstating the death penalty in California, the law under which Harris is sentenced to die--and his campaign promises not to interrupt an execution.

In the March 5 letter, Harris also said that Deukmejian, who served as attorney general before being elected governor, had a conflict of interest in presuming to judge Harris, since he prosecuted the early rounds of Harris’ appeals.

Sevilla and McCabe issued a statement Tuesday saying that the factors detailed in the March 5 letter prompted Harris’ decision to withdraw his application for a clemency hearing. The idea to withdraw was “Robert’s decision although I support it,” Sevilla said in an interview.

One other factor troubled Harris particularly, Sevilla said. The hearing was to be televised, although it was unclear whether the signal was to be shown only to reporters on a closed-circuit feed or be available for broadcast over on-air stations, Sevilla said.

The purpose of televising the proceedings, Harris became convinced, was to hold “(Harris) up to public ridicule and promote political careers,” Sevilla said in his statement. In his new letter, Harris said he wanted no part of “this media production you call clemency.”

Harris was arrested July 5, 1978, by Steve Baker, a San Diego police officer, who did not know at the time that Harris’ victims were Baker’s son, Michael, and Michael’s friend, John Mayeski.

Harris killed both 16-year-old boys after stealing their car for use in a bank robbery.

Harris told Deukmejian that, although he has “nothing to say to you and certainly nothing to say to the media,” he did have “something to say to the familys (sic) of Michael Baker and John Mayeski, but I have already done that privately.”

A “couple weeks ago,” Sevilla said, Harris sent a “private communication to the Baker family.”

What Harris said “was between them,” Sevilla said. “You can imagine what it says.” He declined to elaborate.

Baker could not be reached Tuesday for comment.

Harris “has not spoken to us,” said John Mayeski’s mother, Kathryn Mayeski Sanders, 68, a former civilian electronics technician with the Navy. “He has had no contact with us at all.”