Ruling Puts Harris Closer to Execution

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

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

The judge also sharply criticized Harris’ attorneys for the tactics they pursued in filing the appeal. And he said the 11-year odyssey Harris’ case has taken through the state and federal courts was an abuse of legal process that has 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 that was solemnly and legally made by the jury 11 years ago should be carried out.

“All things I know of in this world have a beginning. All things have an end. And this matter should now 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 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. His case has progressed further through the court system than any of the other more than 270 prisoners on Death Row.

His only hope for reprieve lies with the federal courts because last week he withdrew a request that Gov. George Deukmejian consider clemency--that is, commute his death sentence to life in prison. In a letter to the governor, Harris said he did not think he could get a fair hearing from Deukmejian, a longtime advocate of capital punishment.

The state courts repeatedly have denied Harris’ pleas for mercy.

The California Supreme Court upheld Harris’ death sentence in 1981. Two weeks ago, that court turned down a new appeal that Harris’ San Diego attorneys, Charles Sevilla and Michael McCabe, filed Jan. 5.

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

Defense attorneys contended that new psychiatric evidence shows that Harris suffered from a variety of mental disorders that played a part in the July 5, 1978, killings of San Diego teen-agers Michael Baker and John Mayeski.

It would be unfair to execute Harris because those conditions were not considered when he was sentenced, the lawyers said.

Among the ailments was organic damage to the brain, particularly to that part that controls impulse, defense attorneys said. The murders did not occur because Harris is an unredeemable sociopath, as prosecutors contended at the trial, but because he was driven by uncontrollable impulse, defense lawyers said.

Since the mental disorders were not considered when Harris was sentenced, it would be unfair to execute him, the attorneys said.

Harris killed both 16-year-old boys after stealing their car for use in a bank robbery. He abducted them from a fast-food restaurant’s parking lot, where they were eating lunch. Later, he ate their half-finished hamburgers.

No one knew about the disorders when Harris was sentenced in 1979 because the psychologists who tested him didn’t do a good job, the defense lawyers said. And his lawyer at the trial, San Diego attorney Thomas Ryan, did Harris a disservice because he relied on the psychiatrists’ reports, they contended.

The state attorney general’s office maintained that the claim of new evidence 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. His review of the trial record indicated that the doctors and Ryan had done a fine job, he said.

It was “very difficult” to understand why the defense lawyers had chosen to “belittle the efforts and demean the professional reputation of those who have labored in the same vineyard previously,” Enright said.

The judge said he wondered if claims such as the ones raised by Sevilla and McCabe served only to deter other doctors or lawyers from taking part in demanding cases. It was no encouragement to work diligently on a case and then later have “unchallenged” professional reputations “unmercifully pilloried,” Enright said.

“Now I wonder if this is really part of the normal appellate process in a case like this,” he said. He added, “I am fearful that this approach does substantial disservice to the profession,” referring to the practice of law.

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

After questioning the approach the defense lawyers took, Enright also made it clear that he thought it 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.”

The judge closed the hearing by discussing the danger that Harris’ lengthy appeals pose to the legal system.

“Regardless of the differing views many of us may hold on capital punishment, I think it should be said that capital punishment is the law of this state,” Enright said. “It has been repeatedly and expressly validated by the citizens of this state.

“It makes a mockery of our law, which is the very fabric of our society, a bond of a self-governing people, to conclude that capital punishment is incapable, incapable of being enforced,” Enright said. “If judgments are to have any validity at all, if courts mean anything at all, they must have the ability to enter final judgments.”

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

GRIM BUSINESS--News organizations quietly bid for space near San Quentin Prison as Tuesday’s scheduled execution nears. B10