Federal Judge Turns Down Latest Appeal by Harris

A federal judge denied all appeals made by lawyers for condemned killer Robert Alton Harris on Wednesday, and said California’s first execution since 1967 should go on as scheduled Tuesday.

In making his ruling, U.S. District Judge William Enright said that despite heated debate over the ethics of the death penalty, “Capital punishment is the law of this state. It has been repeatedly and expressly validated by the citizens of this state.”

Harris, 37, is scheduled to be the first person to die in San Quentin’s gas chamber in 23 years for the July 5, 1978, murder of two teen-age boys in San Diego.

In a 114-page writ filed Monday, Harris’ lawyers argued for the first time in federal court that he should be spared the death penalty because he suffers from organic brain damage and other medical disorders that impaired his judgment at the time of the killings. Evidence of these disorders was not presented when Harris was convicted in 1979 of the two murders and sentenced to death.

The defense lawyers made a similar argument earlier this year in asking the state Supreme Court to grant Harris a formal hearing on the claims. But the state court rejected that request earlier this month.

The lawyers have said they will raise the same issues with a three-judge panel of the U.S. 9th Circuit Court of Appeals if Enright turned them down.

If that step fails, Harris’s last hope of survival rests with U.S. Supreme Court Justice Sandra Day O’Connor, who hears emergency matters from the West and would probably be asked for a stay of execution.

If any of the defense appeals are successful, Harris could win a new penalty trial before a jury to determine whether he should be given a lesser sentence than death. His conviction for the murders of Michael Baker and John Mayeski would stand.

If all appeals fail, Harris will become the first California inmate to die since Aaron Mitchell, who had killed a Sacramento policeman, was put to death in San Quentin’s gas chamber on April 12, 1967.

Harris received the death sentence for killing Michael Baker and John Mayeski, both 16, in the parking lot of a fast-food restaurant, using their car for a bank robbery and finishing off their half-eaten hamburgers.

Harris was first set to die July 7, 1981, and has since been given three separate execution dates, the last one on March 16, 1982. Over the past 11 years, he has four times gone before the California Supreme Court and the U.S. Supreme Court.

His current appeal is his 19th.

In the writ filed Monday, Harris’ lawyers contended that he was afflicted with “brain damage, organic personality disorder, fetal alcohol effects and PTSD (post-traumatic stress disorder).”

Had the jury known about the disorders, “it would not, in all reasonable likelihood, have convicted Robert of capital murder or condemned him to die,” they said.

California Atty. Gen. John Van de Kamp rebutted that argument, saying, “What is clear from the record of this case is that Robert Harris knew precisely what he was doing when he kidnaped, robbed and killed those boys.”

The attorney general also blasted the defense for dragging the case on. “It is time to execute the sentence long ago imposed and repeatedly upheld by every level of the state and federal judiciary,” he said.

Harris has already canceled his requested clemency hearing before Gov. George Deukmejian by telling the governor in a letter he did not believe he would get a fair hearing from the man who wrote the death penalty law under which Harris was sentenced.