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Harris Case Splits Appeals Court : Execution: A 13-13 vote denying a new hearing to the murderer of two San Diego teen-agers reveals bitter division over capital punishment. The action could bring him closer to the gas chamber.

TIMES STAFF WRITER

A decision last month by the U. S. 9th Circuit Court of Appeals that could speed California’s first execution since 1967 came on a sharply divided vote, with 13 of 26 judges favoring a hearing for murderer Robert Alton Harris, The Times has learned.

The split vote underscores the division on the appeals court that exists over the Harris case 13 years after he murdered two San Diego teen-agers and 10 years after the state Supreme Court affirmed his death sentence and shifted the case to the federal courts.

Citing one of its rules, the appeals court did not disclose the exact vote when it refused Harris’ plea that a special 11-judge panel be convened to decide if he should get a new trial. But sources close to the court said the vote was 13-13, with one judge not voting.

Harris had sought the special hearing to review an earlier decision denying him a new trial. Under court rules, a majority of the judges must vote in favor of convening a so-called en banc panel, so the tie had the effect of removing one of Harris’ final chances to escape the gas chamber.

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“That was a very, very troubling case for us,” a judge said, adding that the appeals court is having “internal struggles” over “vexing problems” raised by death penalty cases. Appeals court judges have written stinging opinions on both sides of the Harris case in recent weeks.

In a related move, state Atty. Gen. Dan Lungren has called on the U .S. Supreme Court to revoke a stay of Harris’ execution left in effect by the appeals court. The attorney general filed the request on Nov. 22, after Appeals Judge Arthur Alarcon, in an unusual opinion, called the delay in Harris’ case “unconscionable.”

The high court could lift the stay as early as Monday, thus raising the possibility that Harris would be put to death in early 1992. Harris, who has been on death row since 1979, would be the first person executed in California since Aaron Mitchell died in the San Quentin gas chamber in 1967 for the murder of a Sacramento police officer.

Although Harris has appealed to the U. S. Supreme Court, his lawyers have said that their best chance of having his case heard and the death sentence reversed rested with the U. S. 9th Circuit Court of Appeals. The U. S. Supreme Court, which has reviewed his arguments three times, is increasingly impatient with the length of time spent on death penalty appeals.

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The number of votes in support of Harris’ petition surprised his defense lawyers.

“If it was so closely divided, that says something about the issues we’re raising,” said Charles Sevilla, one of Harris’ lawyers. “It shows there was not even a majority, evidently, of the people on the circuit who were willing to let this opinion go without en banc review.”

Harris’ lawyers argued in their petition that he should be granted a new trial because court-appointed psychiatrists failed to properly diagnose the severity of his mental problems at the time of the crime.

In August, a regular three-judge panel of the appeals court rejected that plea on a 2-1 vote. Harris’ lawyers appealed to the full court seeking an “en banc” review of the contentions.

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In announcing its refusal to convene the special panel of 11 judges, the court said in a brief Nov. 8 order that the matter “failed to receive a majority of the votes of the nonrecused active judges.”

In an unusual dissent, Judge Stephen Reinhardt, while not revealing the vote, lashed out at the court for keeping the vote secret, saying “history should fully record the judicial votes in death penalty cases.”

Reinhardt, who wanted an 11-judge panel to decide the case, predicted that although the U. S. Supreme Court finds that capital punishment is constitutional now, the courts of this nation will revisit the issue in years to come.

“When we do, the historical record should be full and complete,” Reinhardt wrote. “At that time, as well as now, the people should know whether in the present case we failed to go en banc by an equally divided vote, a closely divided vote, or an overwhelming vote.”

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The tie vote came at a time when 27 members were on the court. It was not clear why only 26 judges voted, but not all judges are required to cast votes on en banc petitions, and a judge also could have recused himself because of a conflict.

However, Reinhardt noted in his dissent that, “failure to vote has the same effect as a negative vote, and a tie vote defeats the call.”

After the vote was tallied, The Times was told, judges voted a second time on whether to suspend their rules and vote yet again because a 28th member of the court had been sworn in. Judges on the court who wanted to hear Harris’ case anew lost on that issue, too.

Circuit Court Chief Judge Clifford Wallace, refusing to confirm the vote tally, said in an interview that release of the vote amounted to a “direct violation of our general orders.” Wallace and other judges said they were not sure of the rationale behind the nondisclosure rule, which took force before all but a handful of them joined the court.

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One judge said he believed the rule was adopted to limit lobbying from within the court. Others say judges want votes kept secret because their decisions to oppose en banc review do not necessarily mean they oppose reviewing a case. Some simply hope that by turning down en banc review, a case will get to the Supreme Court faster.

Sources told The Times that the issue of whether the rule should be changed to make en banc votes public will be raised at a Dec. 11 meeting of the appeals court.

The appeals court differs from the U. S. Supreme Court, which reviews a case if four of the nine justices want to hear it. The state Supreme Court hears cases if a majority votes to review, and announces its vote when it grants or denies review.

Times staff writer Henry Weinstein contributed to this story.

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