Attorneys Seek to Delay Hearing on Harris Appeal

Attorneys for condemned killer Robert Alton Harris urged a federal appeal court Wednesday to delay an upcoming hearing into alleged government concealment of evidence in the case.

Harris, 38, came within hours of being the first man executed in California in 23 years when the 9th U.S. Circuit Court of Appeals stopped his execution in April, 1990, in order to hear new claims by Harris.

He was convicted of the July 5, 1978, kidnaping and murder of two San Diego teen-agers and of stealing their car to use in a bank robbery. The two boys were John Mayeski and Michael Baker, son of the police officer who arrested Harris.

Charles Sevilla, the San Diego attorney who has represented Harris since 1982, has also asked the appeals court to remove him from the case. That will clear the way for Michael Laurence, the American Civil Liberties Union attorney in the case, to pursue an argument that Sevilla may have failed to adequately investigate alleged prosecution misconduct.

Laurence could pursue a claim of incompetence of counsel only with Sevilla off the case.

In court documents, Laurence said, “The revelations that have come to light in the past few months suggest quite strongly that Mr. Harris is innocent of capital murder and that the government engaged in a systematic effort to elicit and present false evidence at his trial.”

The defense contends prosecutors used Joseph Abshire, Harris’ cellmate in San Diego jail, as a police agent to gain incriminating statements from Harris.

Laurence also maintains that San Diego police have failed to turn over any documents sought by the latest subpoena checking into their handling of Abshire and the investigation.

The defense contends Harris was not of the mental state to commit a premeditated murder and they are seeking a new trial. A portion of the hearing, now scheduled for May 7, is expected to include testimony about alleged incompetence of psychiatric testimony in the case.

A U.S. Supreme Court ruling on April 16 drastically altered the ability of defense lawyers to bring successive habeas corpus petitions, which are essentially constitutional challenges to a conviction or sentence.

That could throw into doubt Harris’ right to even argue the alleged government misconduct in the use of Abshire.

Harris contends he needs more time to interview witnesses and investigate documents needed to meet the new and tougher requirements for an appeal under the April 16 Supreme Court decision.