Harris Loses Latest Appeal on Execution : Justice: Judge dismisses recent testimony of informant. 1978 case returns to 9th Circuit Court that stayed murderer's death.

TIMES STAFF WRITER

Condemned killer Robert Alton Harris lost his latest appeal Wednesday when a federal judge rejected arguments that Harris' rights were violated in 1979 when a jailhouse informant testified at his double-murder trial.

Harris' latest attempt to avoid the death penalty rested on the argument that informant Joey Dee Abshire was secretly recruited by prosecutors to obtain information from Harris about the killings of two 16-year-old boys in San Diego and then testify at his trial. Attorneys for Harris had asked for a new trial on grounds of prosecutorial misconduct.

Defense attorney Charles Sevilla argued that Abshire was acting as a police agent instead of a casual observer when he pumped Harris for information while the two shared a cell for a few minutes on July 26, 1978.

On Wednesday, U.S. District Judge William Enright said he was strongly influenced by a 15-minute tape recording of Abshire's meeting with district attorney investigators on July 26, 1978. Abshire is heard on the tape talking freely with the investigators, telling them about his conversation with Harris earlier in the day.

"It (tape) completely and unequivocally impeaches his testimony in open court," Enright said. " . . . It devastates his credibility as a witness" at the hearing.

No deal was discussed on the tape. Prosecutors said they made no deals with Abshire and denied that he was secretly recruited as an informant.

Enright called the tape "damning" for Abshire and said the recording "makes him a liar."

The 9th U.S. Circuit Court of Appeals stayed Harris' execution until this issue was resolved. The court ordered the special evidentiary hearing to decide if Abshire was a police agent.

Although Harris was sentenced to death more than a decade ago, his execution has been delayed by numerous appeals. Deputy Atty. Gen. Louis R. Hanoian said Wednesday that a new execution date will not be set until the 9th Circuit lifts the stay of execution.

Harris, 38, and his brother Daniel kidnaped two 16-year-old boys, John Mayeski and Michael Baker, on July 5, 1978, to steal their car to use in a bank robbery. Daniel Harris plea-bargained with prosecutors and was charged only with kidnaping. He testified against his brother and was sentenced to six years in state prison.

Abshire, 44, a career criminal now serving a 16-year sentence in a Nevada prison, later testified that Harris told him he killed the teen-agers to eliminate them as witnesses. In filing the appeal for a new trial, Sevilla argued that Abshire's testimony was crucial to the prosecution's case because it helped establish a motive for the killings.

Showing a motive was important to prosecutors in their efforts to get the death penalty for Harris. By establishing a motive, they were able to prove that the killings were premeditated and that Harris did not act on impulse.

Abshire testified last week that he lied 12 years ago when he testified at Harris' trial. He said two district attorney's investigators asked him to return to a holding cell he shared with Harris and question him about the murders.

Furthermore, the two investigators encouraged him to lie about his role as a police agent and coached him before his trial testimony, Abshire said last week. The investigators also promised him favorable treatment in return, he added.

But on Wednesday, Enright ruled that Abshire testified truthfully in 1979 and recanted his story only because of an inmate code that looks unfavorably on prisoners who testify as informants. Abshire admitted that he wears a "snitch's jacket" in prison and has been threatened by other inmates.

"This he viewed as an opportunity to protect himself from his peers," Enright said in the oral ruling.

After the ruling, Sevilla was asked if he thought Abshire lied during the hearing.

"I wouldn't have put him on (the witness stand) if I thought he was lying," Sevilla snapped angrily.

In issuing his ruling, Enright picked Abshire's testimony apart. Abshire testified that investigators John Boulden and Raymond Cameron had him removed from a cell he was sharing with Harris. He was then put back in the cell with instructions to question Harris about the murders, Abshire said.

However, Enright said the taped interview clearly refuted Abshire's testimony at the hearing. There was only one meeting that day with the investigators, and it occurred several hours after Harris was removed from the holding cell, Enright said.

In addition, Harris' trial attorney testified at the hearing that prosecutors gave him a copy of the taped interview with Abshire within three days of the meeting with investigators.

"I find it extremely fortunate that a tape was made . . . and think it was delivered promptly (to Harris attorney). Otherwise, we would be moving in very murky seas," Enright said.

Harris' own testimony at the penalty phase of his trial came back to haunt him. Reading from a transcript of the trial, Enright noted that Harris answered, "I'm pretty sure I did," when the prosecutor asked him if he told Abshire that he shot the two boys because he did not want to leave any witnesses behind.

Enright also rejected Sevilla's argument that Abshire's trial testimony was crucial for the prosecution's case. Prosecutors would not have been able to obtain the death penalty without Abshire's testimony, Sevilla contended.

But Enright said there was a preponderance of evidence presented by prosecutors to establish special circumstances and qualify Harris for the death penalty. This included physical evidence at the scene of the murders, Harris' statements to various law enforcement officers and Daniel Harris' statements to police and the prosecutor.

However, Daniel Harris was not questioned about a motive for the murders when he testified at the trial.

Perhaps the most damaging evidence against Harris came from retired marshal's Sgt. Charles Shramek, Enright said. Shramek testified at the trial and at last week's hearing that he overheard Harris' conversation with Abshire while standing outside the cell door, and took notes.

Shramek's trial testimony corroborated Abshire's. He testified that Harris admitted the killings to Abshire and said he killed the teen-agers to eliminate them as witnesses.

The judge also ruled that the appeal based on Abshire's recantation is an abuse of the habe a s corpus writ. Enright said this issue should have been raised earlier because Harris testified during the penalty phase of the trial that he knew that Abshire was an informant when the two of them discussed the murders.

Enright's finding that the appeal was an abuse of the writ means that Harris' attorneys can no longer raise Abshire's trial role as an issue.

The judge's findings will now be reviewed by a three-judge panel from the appellate court. If the panel sustains Enright's findings, Harris' attorneys could ask for a rehearing before the panel, where they could ask for the entire 9th Circuit to rehear the issue.

If the entire appeals court upholds Enright's ruling, Harris' attorneys can appeal to the U.S. Supreme Court.

Meanwhile, the 9th Circuit is still considering another appeal from Harris' attorneys, who questioned the competency of the psychiatric assistance provided Harris. The attorneys said new evidence shows that Harris is mentally ill and suffers from brain damage and that psychiatrists should have discovered that earlier.

Relatives of the slain teen-agers sat through the federal hearing but said they do not think Harris is any closer to execution.

"It will just keep on going in the courts. His attorneys will find something else to appeal," said Linda Herring, Michael Baker's sister.

"Every time we think there's light at the end of the tunnel, there's another hearing," said Sharron Mankins, Michael Baker's mother. "We had no idea this would still be going on 13 years later."

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