The Case of Robert Alton Harris

By granting convicted killer Robert Alton Harris a stay of execution Friday, Judge John Noonan of the U.S. Court of Appeals not only vindicated Americans' traditional confidence in the integrity of the federal bench but also demonstrated the difficulty of imposing a death sentence with complete confidence in its fairness.

Noonan, a strong conservative appointed to the court by President Ronald Reagan, did not base his ruling on what many would call a "legal technicality," but on the most fundamental question of legal equity. "The issue before us," he wrote Friday, "is not the rightness or wrongness of the death penalty or the constitutionality or the unconstitutionality of the death penalty. . . Our task is to determine if the petitioner's rights under the constitution have been violated."

Harris' lawyers long have argued that the psychiatrists who testified at his trial behaved incompetently by not testing their client for physical and emotional disabilities. Noonan found that lower courts erred in not granting Harris a full hearing on this critical issue. "The state has no interest in putting people to death unconstitutionally," he said. Rather there is a "state and federal interest that no one be put to death without due process of law."

California is unusually scrupulous in providing competent counsel and full appellate review in capital cases. For years, however, Harris' lawyers have been legally denied the funds they sought to conduct medical tests for physical and emotional disabilities. When, in desperation, they finally paid for those tests out of their own pockets, Harris was found to suffer from fetal alcohol effect, organic brain damage and post-traumatic stress disorder stemming from what one physician termed his "extraordinary history of recurrent and unremitting childhood abuse."

Would the knowledge of these infirmities have made a difference to the jury that sentenced him to die? A recent poll found that 57% of Californians favor life imprisonment without parole instead of death when "the murder was committed by a person under the influence of an extreme mental or emotional disturbance." By 4 to 1, Californians favor imprisonment without parole "if the convicted person had been seriously abused as a child." Said Harris' attorney to Noonan: "Had the jury known that multiple, severe physical and emotional disabilities, not a cold calculating heart, produced (his) repugnant behavior, it would not, in all likelihood, have convicted him of capital murder or sentenced him to die."

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