New Hearing Ordered for Condemned Killer

A federal appeals court on Friday ordered a new hearing into defense claims that authorities recruited a former cellmate to testify falsely against condemned killer Robert Alton Harris at his 1979 trial.

In a 2-1 vote, a panel of the U.S. 9th Circuit Court of Appeals instructed a federal district court in San Diego to conduct an evidentiary hearing on the issue and report its findings within 60 days.

The action came as a victory for lawyers for Harris. It was not certain how long the move would delay the case, but it appeared that the panel wanted to render a ruling soon on Harris’ bid for a rehearing.

“Because of the extraordinary procedural posture of (Harris’ appeal), we believe immediate review by this court after the evidentiary hearing would materially advance the ultimate resolution of these proceedings,” the panel said in its six-page order.

Harris, 37, was convicted and sentenced to death for the murders of John Mayeski and Michael Baker, both 16, in San Diego in 1978. If Harris loses in his current round of appeals, he could become the first person executed in California in 24 years. But if the courts rule that his constitutional rights were violated, he could win a new trial.

In Friday’s action, Circuit Judges Arthur L. Alarcon and Melvin Brunetti voted to send the case back to U. S. District Judge William Enright to take evidence on the question of the cellmate. Judge John T. Noonan dissented, saying that “at this late date” there was no legal basis for the hearing.

It was Noonan who a year ago issued an order blocking Harris’ scheduled April 3 execution to hear defense claims that Harris had been improperly denied the right to competent psychiatric assistance at his trial. That claim was rejected by the appeal panel last August, with Noonan dissenting.

In late November, in another bid to save Harris from the gas chamber, defense lawyers asked the court to order a hearing so they could introduce what they said was new evidence that a jailhouse informant, acting as a “police agent,” had been placed in Harris’ cell before trial to obtain incriminating statements from Harris.

The informant, Joey Dee Abshire, testified at the trial that Harris told him he killed the boys to prevent them from identifying him in a robbery. That testimony was important because it supported the prosecution’s contention that the killings were premediated and deliberate, thus making Harris eligible for the death penalty.

Defense attorneys submitted an affidavit signed last Nov. 7 by Abshire claiming that investigators supplied him with details of the crimes and asked him to elicit statements from Harris. Abshire said Harris did say he killed his victims to prevent identification. But Abshire also said he had been coached to testify falsely about the details of the conversation and had been told to deny that he acted a police agent.

State prosecutors urged the appeals court to deny such a hearing, calling the new defense claims a “fanciful fabrication.” The state said new statements by Abshire that he had been coached to commit perjury at the trial were “baldfaced lies.” Even if the charges were true, they should be disregarded because of the overwhelming evidence that Harris deliberately killed the boys, the state said.

The appellate panel’s order Friday limited the evidentiary hearing to the question of whether Harris’ rights were violated by the jailhouse informant. It told the district court to make findings as to the “admissibility, credibility, veracity and materiality of such evidence.”

State Assistant Atty. Gen. Harvey D. Mayfield expressed disappointment with the order but welcomed the appellate court’s expressed intention.

“It’s good news that there’s a time limit, but it’s not good news that the court is requiring an evidentiary hearing,” Mayfield said. Nonetheless, the prosecutor voiced confidence that Harris’ claims ultimately would be turned down by the appeals court.

Dorothy Ehrlich, executive director of the American Civil Liberties Union of Northern California, hailed Friday’s action. “This is a very important development,” she said. “We claimed that the government effectively manufactured false information and concealed that fact for the last 12 years. It was Abshire’s testimony that gave the jury the information supporting the contention that the killings were deliberate, which led to the death sentence. It’s reasonable to assume he wouldn’t be on Death Row today were it not for these fabricated claims.”

In San Diego, relatives of the victims expressed exasperation with the action prolonging the case. “What do you expect?” said Linda Herring of Escondido, the sister of Michael Baker. “It’s the same old crap. It’s politics.”

Times staff writer Alan Abrahamson in San Diego contributed to this report.