May 14 Review Ordered on Harris’ Psychiatric Claim

A federal appeals court on Tuesday set a hearing for May 14 to review a claim by condemned killer Robert Alton Harris that prosecutors warned could have a far-reaching impact on the judicial system if upheld.

A three-judge panel of the U.S. 9th Circuit Court of Appeals will decide whether Harris, convicted of the 1978 murders of two teen-age boys in San Diego, was improperly denied a competent psychiatric examination before his trial. Such a finding ultimately could lead to a reversal of Harris’ death sentence.

The May 14 hearing was ordered with unusual speed after the U.S. Supreme Court on Monday left intact a stay of execution granted Harris by Circuit Judge John T. Noonan. Last Friday, Noonan held that Harris--who was set to die at 3 a.m. Tuesday and become the first person executed in California since 1967--was entitled to more time to try to show that his constitutional rights had been violated.

A state prosecutor, Chief Assistant Atty. Gen. Richard B. Iglehart, welcomed the swift scheduling of the panel’s hearing and expressed confidence that the courts will reject Harris’ latest appeal.

But if Harris’ claim is ultimately upheld by the high court, his case could go on for years, Iglehart said. Meanwhile, he said, hundreds of prisoners in the United States could raise claims to a competent psychiatrist, asserting a new constitutional right rivaling the landmark 1963 decision, known as Gideon vs. Wainwright, guaranteeing the right to counsel in criminal cases.

“If his interpretation of the law were to hold, we’ll be into this kind of thing forever,” Iglehart said. “The public has a right to be furious about this case. . . . It’s not that people are angry because they want Harris to die--but because they think this damned criminal justice system just doesn’t seem to work.”

Harris’ lawyers, however, said Tuesday that they are confident he will win this round of appeals and ultimately receive a new penalty trial. A win would make it “quite possible” that Harris will never be executed, said Michael Laurence, an attorney for the American Civil Liberties Union in San Francisco and a death-penalty expert.

“All the politicians are going to have to find themselves a new whipping dog,” Laurence said. “They’re not going to have Robert Harris and the death penalty to kick around anymore.”

Led by San Diego lawyers Charles M. Sevilla and Michael J. McCabe, Harris’ defense team explained in legal papers filed last week that the claim of mental disorders stems from a 1971 brain scan Harris underwent.

Whether that claim ultimately will succeed depends on the reading of a 1985 U.S. Supreme Court ruling. In that case, Harris’ lawyers say, the high court held that a person facing the death penalty is entitled to competent psychiatric help at trial when his mental state is at issue.

Harris underwent the 1971 brain scan when, as a teen-ager, he was already in federal custody, Laurence said Tuesday. The scan, ordered because of Harris’ psychological disturbances, including suicide attempts, revealed evidence of mental disorders, according to the defense.

Defense lawyers, however, did not learn of the existence of the scan until April, 1982--three years after Harris was sentenced to death--when a federal probation officer told McCabe about it, according to legal papers filed in San Diego.

For the next seven years, defense attorneys asked the state and federal courts to provide the funds for a confirmatory neurological evaluation, the papers said. The request consistently was rejected, most recently on Sept. 28, 1989, by the 9th Circuit, the defense said.

Sensing that time would run out on Harris if no further examinations were performed, defense lawyers paid “several thousand dollars” themselves for a series of evaluations last December, Laurence said.

The new tests show that Harris suffered from a variety of mental disorders that affected him when he killed Michael Baker and John Mayeski, both 16, after stealing their car for use in a bank robbery on July 5, 1978, the defense lawyers said.

Among the ailments was organic damage to the brain, particularly to the part that controls impulse, according to the defense. Thus, Harris’ lawyers contend, he was driven to kill the boys by uncontrollable impulses.

Since the mental disorders were not considered by jurors who returned a verdict of death, it would be improper to execute Harris, they said. No one knew about the disorders then because the two court-appointed psychiatrists who examined Harris interviewed him but ran no other tests and obtained no school or medical records, the defense said.

The defense maintains that the 1985 Supreme Court ruling guarantees not only a psychiatrist reputed to be competent, but one who actually performs a competent evaluation.

“The right to the competent assistance of a psychiatrist would be meaningless if the state was only required to provide a warm body with a degree in psychiatry,” Laurence said. The Supreme Court ruling, instead, assures a minimum standard of professional care, he said.

Lawyers for the state reply that the 1985 Supreme Court ruling guarantees only the right to access to a competent psychiatrist--and not the right to a post-trial, judicial review of the competence of any psychiatric evaluation.

If such a new right is upheld, defense attorneys will seek new psychiatric evaluations to “second-guess” previous exams in any case where the defendant’s mental state was at issue, state attorneys said. The result, they said, will be almost limitless court battles between warring experts.

Judge Noonan was incorrect in concluding that the 1985 decision gave appeals courts the authority to evaluate the competence of mental examinations, the state asserts.

Iglehart on Tuesday described that interpretation as “earthshaking,” saying that if upheld, “this decision would be the most far-reaching ruling since Gideon.”

The right to effective assistance of trial counsel has been established and now is raised in virtually every appeal of death sentences, Iglehart said. If a similar right is established to an “effective” trial psychiatrist, “you can imagine what a fertile field that will be” for defense lawyers, he said.

The issue of “competent” psychiatric assistance is under scrutiny in a number of state and federal courts across the country, according to Dick Burr, director of the Capital Punishment Project for the NAACP’s Legal Defense Fund. So far, courts have offered conflicting rulings on the question.

In addition to alleging that Harris did not get competent psychiatric help, his new appeal contains a variety of other claims contesting procedures at his penalty trial. Among them is a contention that a jail inmate who testified that Harris confessed to the killings was, in fact, acting as a “government agent,” and it was improper for him to have taken the stand.

The panel that will hear arguments about these claims May 14 includes Noonan of San Francisco and Judges Arthur L. Alarcon of Los Angeles and Melvin Brunetti of Reno. Its decision could then be appealed to the full, 27-member Circuit Court--and that ruling, in turn, could be taken to the U.S. Supreme Court.

Lawyers on both sides of the dispute said that in view of the complexities of the appeals process, it is impossible to say precisely when the case will be resolved.

If Harris loses before the appeals court and the high court, an execution could be held within months, in the view of some attorneys. But if Harris succeeds in obtaining an evidentiary hearing on his claims in federal court and gets a new penalty trial in state court, a final resolution could take years, lawyers say.

DEATH PENALTY--Prosecutors don’t know who will next enter gas chamber. A3