Defense Claims It Would Be a ‘Cruel Hoax’ to Deny Hearing to Harris

Responding to prosecutors’ claims that Robert Alton Harris should die, defense attorneys insisted Monday in a fat legal brief that the condemned murderer instead is due a hearing on his new claim that mental disorders drove him to kill two teen-age San Diego boys.

Without that hearing, Harris’ San Diego defense lawyers said, the federal Constitution’s promise of a fair trial “will be a cruel hoax.”

The legal papers, filed late Monday with the San Francisco-based U.S. 9th Circuit Court of Appeals, were the last scheduled briefs ordered by the intermediate-level appellate court before it conducts oral argument May 14 on Harris’ new claim.

The papers, filed in response to a brief that state prosecutors filed last week, center on the same arguments that persuaded 9th Circuit Judge John T. Noonan to stay Harris’ scheduled April 3 execution--with only four days to spare--to allow Harris’ bid for a fact-finding hearing.

Harris, whose case has progressed farther through the court system than that of any of the other more than 270 prisoners on Death Row, had been in line to become the first person executed in California in 23 years.

Harris, 37, was convicted and sentenced to death for the July, 1978, murders of Michael Baker and John Mayeski, both 16, of San Diego. He killed the boys after stealing their car for use in a bank robbery.

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

Although, in an April 2 decision, the U.S. Supreme Court affirmed Noonan’s decision to block the execution indefinitely, it has rejected Harris’ appeals four times, most recently on Jan. 16.

In the new appeal, defense lawyers Charles M. Sevilla and Michael McCabe claim that Harris suffers from mental disorders--including damage to the part of the brain that controls impulse--that affected him and impulsively drove him through the killings.

Michael Laurence of San Francisco, an ACLU attorney and death-penalty expert, also has taken part in the new appeal.

Evidence of those disorders, the lawyers said, was not presented to the jury that sentenced Harris to death in 1979 because the two psychiatrists who examined him did not do a good job. The jury should have heard that evidence, the attorneys said.

In the brief they filed last week, prosecutors said Harris’ new contentions are “ridiculous” and urged a three-judge 9th Circuit panel to reject his challenge. If Harris’ position were upheld, they said, the result would be “unending litigation to challenge the competence of previous (psychiatric) experts.”

Prosecutors contended that Harris got what he had coming to him--access to an examination by psychiatrists who were known to be competent. In the brief filed Monday, however, the defense attorneys repeated their claim that what he should have received, but did not, was a competent examination by each of the two psychiatrists.

Without “some assurance that the psychiatrist will perform competently,” defense lawyers said, “there can be no fair access.”

Defense lawyers also repeated their request that, should the 9th Circuit grant Harris a hearing, which would be held in federal court in San Diego, it be reassigned to someone other than U.S. District Judge William B. Enright.

In ruling for the third time against Harris, Enright said last March that the defense team was “professionally not responsible” in bringing the new appeal. To ensure the “appearance of justice,” the case should be reassigned, the defense lawyers said Monday.

The 9th Circuit panel that will hear oral argument in San Francisco consists of Noonan and Judges Arthur L. Alarcon and Melvin Brunetti.