Harris Lawyers Ask for Hearing on Lack of Psychiatric Help

Attorneys for Robert Alton Harris, aiming for a permanent reprieve for the killer of two San Diego teen-agers, urged a federal appeals court Friday to order a hearing on a new claim that he was denied competent psychiatric help at his trial in 1979.

Harris deserves the chance to prove that he is not a cold and calculating sociopath who killed without feeling, but instead someone who suffers from mental disorders that affected him and impulsively drove him to the crime, his San Diego attorneys said.

Lawyers Charles M. Sevilla and Michael McCabe also told the U. S. 9th Circuit Court of Appeals that the hearing, if ordered, should be assigned to someone other than the San Diego judge who so far has rejected Harris’ appeals three times.

The lengthy brief, filed late Friday with the San Francisco-based federal appellate court, essentially repeats the same arguments that convinced 9th Circuit Judge John T. Noonan Jr. to block indefinitely Harris’ execution, scheduled for April 3. Harris had been in line to be the first person executed in California in 23 years.

The only new contention is the claim that U. S. District Judge William B. Enright, the San Diego judge who castigated Sevilla and McCabe when the case was before him late last month for bringing the new appeal--saying it was “professionally not responsible”--should be removed from the case.

Enright, the brief says, had prejudged the issues and expressed dismay, if not hostility, toward the lawyers when he rejected Harris’ appeal at a March 28 hearing in San Diego. Two days later, however, Noonan indefinitely blocked the execution to allow time to consider the new claims that Enright said were without merit, the defense lawyers said.

To send the case back to Enright for a hearing would mean that, “at the very least, the appearance of justice would (be) compromised,” the defense lawyers said.

Harris, 37, was convicted of the July 5, 1978, killings of San Diego teen-agers Michael Baker and John Mayeski, both 16. He killed them after stealing their car from a fast-food parking lot to use in a bank robbery. Later, he ate their half-finished hamburgers.

In early 1979, Harris was convicted and sentenced to death.

The California Supreme Court affirmed Harris’ death sentence in 1981, and since then has consistently rejected his appeals.

Before it affirmed Noonan’s stay of execution, the U. S. Supreme Court had rejected Harris’ appeals four times, most recently on Jan. 16.

That rejection set into motion a frantic, two-month appeal by Harris’ lawyers, who claimed they had newly discovered evidence of the mental disorders.

The California Supreme Court denied that appeal March 16, and Enright followed suit on March 28.

Noonan, however, ordered the execution stayed March 30. April 2, the day before the execution was to take place, the U. S. Supreme Court declined to overrule Noonan’s order.

A three-judge panel of the 9th Circuit, a court that ordinarily considers appeals at a far more leisurely pace, ordered a May 14 hearing on Harris’ new claim. The brief filed Friday is the first round in the legal papers due to be filed before that hearing; state prosecutors are due to respond next week.

In the brief filed Friday, the defense lawyers reiterated their contention that a 1971 brain scan performed on Harris should have alerted the two psychiatrists who examined him before the trial that Harris suffered from mental disorders.

Among the disorders, the lawyers contend, is organic damage to the part of the brain that controls impulse. Others include post-traumatic stress disorder, the condition usually associated with military combat.

Although the two doctors interviewed Harris before the trial, they ran no other tests and obtained no school or medical records, the defense said. Since no one knew about the disorders at the trial and no evidence of them was presented to the jury that returned a verdict of death, it would be improper to execute Harris, the lawyers say.

The defense team maintains that it first learned of the 1971 scan in 1982, or three years after Harris was sentenced, when McCabe was alerted to it. McCabe and Sevilla contend that they spent the next seven years asking state and federal courts for funding for a confirmatory neurological evaluation, but were turned down each time.

Sensing that time would run out on Harris if no further examinations were performed, the defense lawyers paid out of their own pockets last fall for the evaluations, they have said. The examinations turned up the newly discovered evidence, they claim.

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

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

State prosecutors have maintained that the ruling provides 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 evidence to second-guess previous exams in any case where the defendant’s mental state is at issue.