DEATH PENALTY THE DEFENDANT’S PLEA : Blame His Disabilities, Not a Cold and Calculated Heart

The following is excerpted from the defense petition to the U.S. District Court for the Southern District of California that succeeded in gaining a stay of the scheduled April 3 execution of Robert Alton Harris. The defense appeal lawyers are Charles M. Sevilla, Michael K. McCabe and Michael Laurence of San Diego.

All of Robert Harris’ actions, both those “planned” and those which arose on the spur of the moment, were filtered through a brain that had been damaged by a sea of alcohol in utero and by fists and weapons wielded against him by his parents in early childhood. His plan to rob a bank was not a plan to violate social norms instinctively known to him but rejected out of selfishness and greed. It was merely a means of survival, learned from his parents and their associates and patterned after their behavior. Moreover, it was not even a “plan” in the sense of behavior chosen by one who had the ability to step back, recognize that bank robbery was socially inappropriate, and decide that he would carry out the robbery anyway because he rejected adherence to prevailing social mores. His “plan” was instead driven by impulse, without the mediation of that part of the brain capable of reflecting upon and weighing alternative courses of action in appreciation of the social fabric in which action takes place.

Every sequence in the crime thereafter reflected Robert’s inability to rein in or modulate his impulsivity with rational, socially conscious judgment. He could not steal a car, so he forced two young people into giving over their car. They attempted to assuage his fear of apprehension for taking their car, but as he got further and further into the events of the crime, the tension and stress grew, and with it, his already diminished ability to apply rational controls to his behavior became further subdued. The fear and paranoia associated with PTSD (post-traumatic stress disorder) (added to) his already heightened impulsivity and, without apparent reasons to the outside observer--in light of the victims’ seemingly successful attempts to reassure Mr. Harris--he began shooting. In the extraordinary stress of the moment, Mr. Harris’ impaired ability to empathize with the victims was so reduced that he could shoot them without having made a conscious choice to do so. Thus, the hallmarks of his interconnected disabilities--emotional lability, impaired rational control processes, inability to rely on instinctive guidance by social norms, and emotional distance from other human beings--were, when unmasked, the hallmarks of Mr. Harris’ crimes. Thus, the true answer to why he committed this crime could not have been more different from the answer given by the State at trial.

His apparently mean-spirited and cold-hearted behaviors thereafter were just as characteristic of his disabilities. His joking about the victims’ deaths and his eating their food were classic forms of socially inappropriate behavior engaged in by one who has little ability to have concern for--or to perceive others’ concern for--his transgressions. His violence in the jail is the violence of one (who) can be manipulated toward criminal behavior by anyone willing to show a modicum of kindness to him, and who has little ability to appreciate the gross impropriety of his actions--even in the fact of the obvious negative consequences these behaviors would have for his case. And his lies to the jury about what happened at the time of the crime at the guilt phase were living exemplars of his incapacity to engage in socially appropriate behavior at the very time where there was absolutely nothing to be gained, and all to be lost, by readily transparent dissimulation. In short, Robert Harris couldn’t make, even when his life depended on it, a judgment considerate of social conventions.

Without the evidence that Robert Harris has brain damage, organic personality disorder, fetal alcohol effects and PTSD, the jury which convicted him and sentenced him to death was thus fundamentally misled. Without the State’s misleading evidence to rely on, the jury could not help but conclude that Robert was, in truth, the mean-spirited, evil man which he appeared to be and which the prosecution said he was. Had the jury known instead that multiple, severe physical and emotional disabilities, not “a cold and calculated heart,” produced Robert’s repugnant behaviors, it would not, in all reasonable likelihood, have convicted Robert of capital murder or condemned him to die.