Weight of Harris Case Testimony Downplayed : Justice: Convicted killer admitted his guilt to others, deputy attorney general stresses as special hearing ends.

Even if prosecutors had illegally used a government informant in the 1979 trial of Robert Alton Harris, it would not change the fact that Harris is guilty of murder and “richly deserving of the death penalty,” a deputy attorney general argued Tuesday.

Louis R. Hanoian recited a litany of other evidence that prosecutors used at Harris’ murder trial to prove his guilt and motive for killing two 16-year-old boys, evidence Hanoian said was independent of jailhouse informant Joey Dee Abshire’s testimony.

Included in that evidence was testimony by Harris in the penalty phase of his trial, in which he corroborated Abshire’s testimony, Hanoian said. Although Harris was sentenced to death, his execution in the gas chamber has been postponed several times by numerous appeals filed by his lawyers.

Harris also freely admitted his guilt to several people, including police officers, he said. After his arrest, Harris swaggered into the County Jail downtown on July 6, 1978, and bragged about the murder charges against him to anyone who would listen, Hanoian said.

Hanoian’s comments were included in closing statements made by five attorneys Tuesday in a special hearing in U.S. District Court, where Harris’ attorneys argued that their client deserves a new trial because prosecutors illegally recruited Abshire to elicit information from Harris on July 26, 1978, while the two men shared a jail cell. Abshire later testified against Harris at the trial.

Charles Sevilla, one of Harris’ attorneys, argued that Abshire’s testimony was crucial to the prosecution in the district attorney’s attempt to prove that Harris planned the deaths of John Mayeski and Michael Baker in San Diego on July 5, 1978.

Prosecutors needed to prove Harris’ intent to kill the boys in order to persuade a jury to sentence him to death.

“How does the Abshire claim apply to factual innocence?” Hanoian asked. “Whether he (Abshire) is an agent or informant, it doesn’t matter.”

Judge William Enright, who presided over the five-day hearing, is expected to issue an oral ruling this afternoon. The 9th U.S. Circuit Court of Appeals ordered Enright to hold the hearing so he could decide if Abshire was a police agent when he questioned Harris and if this latest appeal by Harris’ lawyers is an abuse of the habeus corpus writ.

If Enright finds that Abshire was acting as a police agent, he will also have to find that Harris attorneys are not abusing the writ process by bringing the Abshire claim at this late date. Harris testified during the penalty phase of his trial that he knew Abshire was an informant when he discussed the killings with him.

Prosecutors have denied that Abshire was ever a police agent or government informant.

The judge also must decide whether Abshire’s testimony deprived Harris of a fair trial. If Enright finds that Harris’ rights were violated by Abshire’s testimony, he has the authority to overturn Harris’ conviction and order a new trial. If that is the case, the attorney general will probably appeal.

Twelve years after his testimony helped convict Harris, Abshire, 44, has emerged as a controversial figure in an equally controversial case. Last week, Abshire, a career criminal who is serving a 16-year prison sentence in Nevada, recanted his 1979 testimony and said he was encouraged to lie by district attorney investigators.

Abshire said the prosecution team agreed to give him favorable treatment while he served a jail sentence if he obtained information about the killings from Harris and testified at the trial. But Chief Deputy Dist. Atty. Brian Michaels argued Tuesday that the only deal prosecutors reached with Abshire was that they would block his extradition to Louisiana, where he was wanted on a prison escape charge.

Prosecutors also dropped two felonies and a misdemeanor jail escape charge before Abshire testified.

In a reference to Abshire’s 1979 testimony and his testimony last week, Michaels said Enright must decide “whether Abshire is (now) telling the truth about lying or lying about telling the truth.”

Abshire’s legal entanglement in 1979 was made more confusing because, at the time of his testimony at Harris’ trial, he was charged with several felonies and a misdemeanor jail escape by local authorities. Michaels said prosecutors made it clear to Abshire that they would not seek a favorable prison sentence for him in exchange for his testimony.

Abshire “did in fact assist the prosecution in some small way. He testified that he had substantial conversations with Harris,” Hanoian said in his statement. “ . . . It’s Harris himself who corroborated Abshire’s testimony while being questioned (by the prosecutor) at the penalty phase.”

The state prosecutor argued that there was compelling evidence, even without Abshire’s testimony, to prove that Harris acted with premeditation when he shot Mayeski and Baker.

“You have compelling circumstances. The victims were shot in the back. . . . They were executed, and the method of execution showed without question this was a premeditated killing,” Hanoian said. “ . . .You didn’t need to wrangle anything from Harris. All you had to do was listen.”

Harris “forgets he testified himself in 1979 that he knew Abshire was a snitch,” Michaels said. “ . . .His problem today is that his execution date is coming close.”

Sevilla made a passionate appeal Tuesday in his argument before the court on Harris’ behalf. He acknowledged that Abshire’s criminal career hurts his credibility, but said the man is now telling the truth. Abshire voluntarily admitted his complicity in prosecutorial misconduct in order to right a wrong, Sevilla said, even at the risk of putting his life in jeopardy.

“He wove himself into the most dangerous garment an inmate can wear, a snitch jacket,” Sevilla said. “ . . .Contrary to 1978 and 1979, he’s not getting multifelonies dismissed (in exchange for his testimony) . . . extradition retainers dropped, and he’s not getting promised any reduction in his sentence.”

Abshire has “nothing to gain by coming forward and everything to lose,” Sevilla said.

The defense attorney argued that prosecutors decided to recruit Abshire as an informant to undermine a possible diminished-capacity defense by Harris in order to avoid the death penalty. Sevilla pointed out that Abshire was the only witness who testified he had a direct conversation with Harris about the murders and the reason for the killings.

According to Abshire’s trial testimony, Harris said he killed the teen-agers to eliminate them as witnesses. Harris’ brother, Daniel Harris, also told authorities that Harris killed the boys so they could not identify them. The Harrises had kidnaped Mayeski and Baker to steal their car to use in a bank robbery.

“On July 26, 1978, (the date of Abshire’s jailhouse interview with Harris) and before that date, the state had no way of using that evidence (Daniel Harris’ statement). They still needed the statement directly out of Robert Harris’ mouth,” Sevilla said.

Because Daniel Harris was an accomplice, prosecutors were required by state law to corroborate any information he gave them. Daniel Harris testified against his brother but was never asked about a possible motive for the killings.

The prosecution also relied heavily at the trial on a statement made by Harris to a San Diego police officer when he led investigators to the wooded area where the teen-agers were killed. The officer testified that Harris told him, “Danny didn’t know I was going to kill the boys.”

On Tuesday, Sevilla pointed out that Harris also told the officer: “I don’t know why I did it.”