Court Denies Harris New Murder Trial

A federal appeals court on Wednesday rejected a renewed bid for a new trial for Robert Alton Harris, the condemned killer who could become the first person to die in the state’s gas chamber in 24 years.

A panel of the U.S. 9th Circuit Court of Appeals held that Harris’ latest legal claims came too late, and voted 2 to 1 to reaffirm a ruling it made last August upholding Harris’ death sentence for the slayings of two teen-age boys in a robbery in San Diego in 1978.

The panel noted that Harris, now 38, had made no showing that he was innocent of the killings or that the sentence of death represented a “miscarriage of justice.”

Of the more than 300 inmates on Death Row, Harris is closest to execution. But while Wednesday’s action moved him nearer to the gas chamber, he still can seek a rehearing before an expanded, 11-judge panel of the Court of Appeals. And if that move fails, he can go once again to the U.S. Supreme Court, which has rejected his previous appeals.

State Deputy Atty. Gen. Louis B. Hanoian welcomed the panel’s ruling. “They’ve moved this case one step closer to its resolution,” he said. “We had to get through this barrier first--and now that’s over.”

An attorney for Harris, Charles M. Sevilla of San Diego, said he was disappointed in Wednesday’s ruling and added that the defense would promptly seek further review by the expanded appeals court panel. “We’re going to take a number of the issues (to the expanded court), where they have never been ruled on before,” he said.

The appeals panel originally upheld Harris’ sentence last Aug. 29 in an opinion by Judge Melvin Brunetti, joined by Judge Arthur A. Alarcon. Judge John T. Noonan dissented. The judges split along the same lines in their ruling Wednesday.

Then, Harris’ attorneys sought a hearing to present what they said was new evidence showing that authorities improperly recruited and enticed a former cellmate to lie when he testified at Harris’ trial.

The panel asked U.S. District Judge William B. Enright to review the defense claim, and later directed the judge to determine as well whether Harris’ attorneys were raising the informant issue too late, and to consider whether Harris was wrongly denied competent psychiatric assistance at trial.

Last May, after conducting a weeklong evidentiary hearing, Enright rejected the defense contentions, finding that the informant lied when he said he had been coached to lie by the prosecution. The judge also held that under a recent U.S. Supreme Court ruling, Harris’ newest claims should have been raised in his first federal appeal years ago.

In Wednesday’s action, the appellate panel upheld Enright’s findings and refused to reconsider its earlier decision against Harris. The panel based its ruling primarily on recent high court rulings that have placed new limits on federal constitutional challenges by prisoners like Harris, who were convicted and sentenced in state court proceedings.

Brunetti and Alarcon found that Harris’ claims of inadequate psychiatric assistance and perjured testimony by the informant were made far too late and could not be considered now.

Noonan, in his dissent, reiterated his belief that Harris was denied his right to competent psychiatric assistance and said that recent U.S. Supreme Court rulings should not bar consideration of that claim now.