Brain Test Challenged, New Hearing Sought

Only hours after the U. S. Supreme Court rejected his latest appeal, condemned killer Robert Alton Harris on Monday asked a federal appeals court for a new hearing to consider his bid to escape the gas chamber.

An attorney for Harris told the U. S. 9th Circuit Court of Appeals there was “startling new evidence” undermining an August appellate court ruling that denied a hearing on claims that Harris was suffering from brain damage when he killed two San Diego teen-agers in 1978.

But state Atty. Gen. Dan Lungren hailed the high court action and cast doubt on the ability of Harris’ attorneys to prevail in any further appeal.

“I do not want to suggest that this is an absolute, 100%-guarantee slam dunk,” Lungren said in Sacramento. “We believe we are on the verge of carrying out the death penalty for the first time since 1967. We think it’s appropriate. We think it’s necessary. We think it’s about time.”

Lungren said he will oppose any attempt by Harris to seek further delays. He said he expects that the trial court in San Diego will hold a hearing March 13 and then set a new execution date between April 12 and May 12.

A spokesman for Lungren declined comment on the appeal filed Monday by Harris, pending study of its contents.

In court papers filed Monday, Harris’ attorney, Michael Laurence of the American Civil Liberties Union of Northern California, said that a 1976 prison electroencephalogram examination of Harris--one relied on by the appeals court in its August ruling--was administered by inmates, not trained technicians.

Laurence filed declarations by two medical experts casting doubt on the reliability of the 1976 exam’s finding that there was no evidence of organic brain damage. The lawyer said in court papers that Harris was entitled to “a chance to explain how he was mistakenly convicted and why no impartial and decent group of jurors would condemn him to die.”

Harris’ move in federal court Monday represented a legal long-shot in his 14-year effort to overturn his death sentence. The condemned 39-year-old slayer previously has been turned down six times in federal court actions and eight times in state court proceedings.

Harris had come close to execution in the spring of 1990, when a federal judge halted further proceedings just three days before Harris was to go to the gas chamber.

Lawyers in the case have long believed the best of Harris’ dwindling hopes lie with the federal appeals court, which voted 2 to 1 last August to reaffirm an earlier decision upholding his death sentence. In November, the full 28-member court refused a new hearing. No vote was announced but The Times later reported that the rehearing was denied on a tie vote.

Monday’s action by Harris’ attorneys reflected a new twist in their continuing bid for a hearing to show that Harris suffered from brain damage, fetal alcohol syndrome and other mental defects that prevented him from forming the mental state to commit premeditated murder--a legal requirement for a verdict of death.

In 1990, Harris submitted new psychological evaluations to support his claim and to refute evaluations submitted at his 1978 trial that had reported no evidence of brain damage.

The appeals court, in rejecting Harris’ request last August, concluded that his claim had been filed too late under new Supreme Court guidelines. The appellate panel noted further that psychiatrists frequently differ--and that if it accepted Harris’ claims now, defendants would always be hiring new experts to refute previous evaluations. In the papers filed Monday, Harris’ lawyers said the 1978 evaluations had been based in part on an unreliable electroencephalogram taken while Harris was in prison on a prior offense in 1976. The attorneys presented a declaration by Dr. Benjamin Blassingille, prison neurologist at the time, saying that the EEG was not administered by trained technicians.

“Prison inmates at the California Men’s Colony were responsible for the complete technical management of the machine, which included applying the electrodes, monitoring the channels and documenting the readings at regular intervals,” Blassingille’s declaration said.

Another neurologist, Dr. James R. Merikangas of New Haven, Conn., signed a declaration agreeing with Blassingille that the questionable procedures rendered the test invalid.

In San Diego, Edwin Mayeski, brother of John Mayeski, who along with Michael Baker was slain by Harris, expressed hope that the execution would finally take place.

“We’ve been up so many times and down so many times we’ll just have to wait and see,” Mayeski said. “The last year has been so quiet, but every time it comes up I have bad dreams. I start thinking about the situation a lot, reliving it in my mind. In the middle of the night, I wake up. It hurts.”

Hager reported from San Francisco and Jacobs from Sacramento. Times staff writer Alan Abrahamson in San Diego also contributed to this story.