Federal Judge Turns Down Latest Appeal by Harris

A federal judge here Wednesday turned down Robert Alton Harris’ appeal of his death sentence, leaving the condemned killer with only the slimmest hope of avoiding execution next Tuesday.

U.S. District Judge William B. Enright, who twice before had denied Harris’ pleas for mercy, turned him down again, saying there was no merit to a new appeal that his San Diego lawyers filed Monday.

The judge also sharply criticized Harris’ attorneys for the tactics they took in filing the new appeal. And he said that the 11-year odyssey Harris’ case has taken through the state and federal courts was an abuse of the legal process that had generated disrespect for the judicial system among a frustrated public.

“In my opinion, this case, and all the tragedy it has brought to so many lives, has fully run its course,” Enright said. “The decision by the jury 11 years ago should be carried out.

“All things have a beginning,” he said. “All things have an end. This matter should be concluded.”

Defense attorneys appealed Enright’s decision immediately after the hearing to the U.S. 9th Circuit Court of Appeals, the next-to-last step Harris has left. If the San Francisco-based appellate court also rejects Harris, his sole hope in the judicial system lies with the U.S. Supreme Court--which has denied Harris’ appeals four times, most recently on Jan. 16.

Harris, 37, is in line to become the first person executed in California in 23 years. He put his sole hope for a reprieve with the federal courts after last week withdrawing a request that Gov. George Deukmejian consider clemency--that is, commute his death sentence to life in prison.

State courts repeatedly have denied his appeals. The California Supreme Court upheld Harris’ death sentence in 1981. This past March 16, the court turned down a new appeal by Harris’ San Diego attorneys, Charles Sevilla and Michael McCabe.

The federal appeal, filed Monday, essentially relied on the same arguments that failed to persuade the state Supreme Court to spare Harris.

Defense attorneys contend that new psychiatric evidence shows that Harris suffered from a variety of mental disorders that played a part in the killings. It would be unfair to execute Harris because those conditions were not considered when he was sentenced, the lawyers said.

The state attorney general’s office maintained that claim was nothing more than an attempt by defense attorneys to put new labels on old evidence.

Enright said Wednesday that he wondered why Sevilla and McCabe even tried the tactic. The papers the defense lawyers filed suggested that psychiatrists who examined Harris at the time of the trial did not do a good job and that his lawyer at the trial, San Diego attorney Tom Ryan, did him a disservice because he relied on the psychiatrists’ reports.

But the judge said the doctors and Ryan had done a fine job. It was “very difficult” to understand why the defense lawyers had chosen to “belittle the efforts and diminish the professional reputation of those who have labored in the same vineyard previously,” Enright said.

“I am fearful that this approach does substantial disservice to the profession,” Enright said, referring to the practice of law.

Sevilla said after the hearing that he and McCabe were being professionally responsible and were simply trying a tactic that had proven successful in similar cases.

Enright also made it clear he thought the appeal was without substance.

Harris has “had his day in court as no other (prisoner),” Enright said. “No constitutional error has occurred, no miscarriage of justice has been had. (Harris) has had his rights fully and fairly preserved at every level of trial and review.”

There was no indication late Wednesday when the 9th Circuit will take up Harris’ case. It is likely that any oral arguments in the case will be conducted by telephone conference, Sevilla said.