Commentary : Why the Robert Harris Case Has Taken So Long : Process: The case owes its long journey to several factors: the clogged court system, the complexity of the case and the life-or-death nature of the outcome.

Robert Alton Harris is scheduled to be executed by the state of California on the night after Easter, a Sunday when many will be recalling Christ’s teachings of love, mercy and redemption. That we should be killing a man within hours of this holy day bespeaks of our collective numbness to our professed belief in his message: “Vengeance is mine saith the Lord.”

If it happens, it will be a sad and painful day for me as well as the many dedicated people who have worked in Robert Harris’ behalf. This work was done not to demean his victims--Michael Baker or John Mayeski--or the seriousness of the transgressions. We challenged the right of the state to take his life after a trial where the crimes were presented in their awful detail, but little was presented about Robert’s victimization and nothing about his psychiatric hospitalization and mental disabilities.

People ask why it has taken so long for court review of this case. The best answer might be given by two men in Los Angeles named Clarence Chance and Benny Powell, who were just released from prison after serving 17 years for the murder of a policeman, a murder they did not commit. Had they been executed, no one would be checking into their case years later.

As with Chance and Powell, much of the legal struggle in Robert’s case has been in trying to persuade the courts to allow us to demonstrate that the picture painted of him at trial was wrong.

Contrary to the misimpression created by the state, this tragic case did not begin with the shooting of two boys on July 5, 1978. What we now know is that Robert Harris’ mental state and behavior on that day was profoundly affected by the unimaginable physical and psychological abuse that he suffered long before those who now clamor for his death knew or cared who he was.

Social service records that have come to light since Robert’s trial document that, beginning in his first year of life, he was systematically tortured by his alcoholic mother and sexually deviant father. His mother’s drinking during pregnancy caused Robert to be born with fetal alcohol syndrome, a devastating condition that permanently deforms the fetal brain and produces lifelong mental disabilities.

Although fetal alcohol syndrome is today a standard, uncontroversial medical diagnosis, during Robert’s youth it was unheard of, and was largely unknown to the general medical field at the time of his trial.

The disabling effects of the syndrome were magnified by the abuse inflicted on Robert in his childhood. Records from military hospitals during the time Robert’s father was in the service, and from other agencies, paint a picture of horrific abuse: Robert, at age 18 months being beaten about the face and head with a bamboo pole, or being strangled with a sheet or being repeatedly knocked unconscious.

There is no serious dispute among medical and psychiatric experts that such unremitting abuse, particularly when inflicted on a victim of fetal alcohol syndrome, would likely produce organic brain damage and the other serious mental impairments that Robert suffers. Indeed, Robert’s history and impairment has led preeminent experts in child psychiatry and fetal alcohol syndrome--as well as a former justice of the state Supreme Court who signed the opinion affirming Robert’s death sentence--to urge Gov. Pete Wilson to commute Robert’s sentence to one of life without parole.

This compelling evidence no doubt would have moved an impartial jury to spare Robert’s life at the time of the trial, but it was never presented. Recognition of Robert’s fetal alcohol syndrome in 1978 would have required extensive consultation by highly specialized experts. But the court denied Robert’s appointed attorney the time he needed. He was rushed to get ready for two trials, guilt and penalty, with little in the way of resources to assist him and at low pay. The entire time from the shootings to the beginning of Robert’s trial was just four months.

The rush to trial was a critical lapse, which may well be the reason his experts did not make the inquiries that could have uncovered Robert’s hospitalizations and mental defects. The jury thus had none of this information when it had to decide whether Robert should live or die.

Moreover, the few months between the crimes and the trial were ones of inflammatory media coverage. Editorial cartoons depicted Robert as human sewage. The district attorney and the U.S. attorney bickered publicly over who would get first licks at prosecuting the case. A local television show asked viewers the question (before the trial): Should Robert Harris be executed? The overwhelming answer was yes.

In this atmosphere, the jury was selected. During their selection, one of the prospective jurors complained to the judge about the hostile comments being made by the other jurors in the jury lounge about Robert Harris. At least three-fourths of the jurors selected were aware of the case from the pretrial publicity.

The legal history that followed Robert’s conviction is a chronicle of American death penalty law. In the process, we have heard bitter complaints that we, his attorneys, have misused the court system solely to delay the finality of the judicial process. But much of the time was taken in litigating the many constitutional questions that had to be resolved before California could be granted the awesome power to use its death-dispensing machinery.

In Robert’s case, U.S. 9th Circuit Court Judge John T. Noonan Jr. wrote in 1990 that “the years of litigation are not the fault of the petitioner, nor are they attributable to manipulation by his lawyers. In the petition for habeas corpus, whose adjudication has taken so much time, the petitioner presented not frivolous, not unsubstantial, but serious questions whose resolution required argument, research, analysis and deliberation. It was the state’s own interest in constitutional process that was protected in the resolution of those questions.”

What were those issues that took this much time to resolve?

First, there were formidable constitutional questions about California’s questionable statute. Instead of copying Georgia’s, Texas’ or Florida’s statutes, which had been constitutionally approved by the Supreme Court, the California Legislature passed its own unique one over Gov. Jerry Brown’s veto in 1977. As broadened the next year by the Briggs Initiative, the new statute was riddled with vagaries. So attorneys for California’s first death penalty cases had to test the legality of the new law.

It took much of the next decade for the courts to modify and clarify the statute; parts of it were nullified.

That it took so long attests to the clogged conditions in the courts, the complexity of the issues and the life-or-death nature of the outcome. Judges were being asked to put their stamp of approval on a law that could put dozens of people to death each year. They, and we attorneys, had a moral, ethical and professional responsibility to be thorough. Subsequent appeals will depend on these first cases, and some avenues of appeal will be eliminated.

In Robert’s case, the automatic appeal granted every condemned prisoner was decided by the California Supreme Court in 1981. The justices were divided 4-2 in affirming Robert’s conviction and penalty. The dissenters found the pretrial publicity so hostile and prejudicial that the resulting trial was unfair. They also found that the California statute was unconstitutional.

The case then spent eight years in the federal courts, resolving issues of the basic fairness of the death penalty process, such as:

* Do the state courts have a constitutional duty to review the appropriateness of each death penalty to insure it is not arbitrarily inflicted on one person where many others similarly situated receive life sentences?

In California, such a review is guaranteed by law for every prisoner, except those with death or life sentences. One of the awkward realities for death penalty proponents is that most killers get life for the same crimes (or worse) that a few get death for committing, a phenomenon that a rational- and equality-based system of justice would not tolerate. This issue went to the U.S. Supreme Court and in 1984, a divided court ruled that such a review was not required. This decision guarantees the continued unequal application of death sentences.

* Is it constitutional, before the trial on guilt or innocence even starts, to screen jurors through intensive questioning about the death penalty?

An uncontradicted body of scientific studies demonstrate what common sense tells us--that asking jurors about their willingness to impose the death penalty before the trial results in a biased panel of jurors programmed to find guilt and then impose death. The Supreme Court, in more elegant language said, “So what?” and permits this unfair practice to this day.

* Is racial discrimination in the distribution of the death penalty provable?

In California, persons who kill white victims are four times more likely to be sentenced to death than when the victims are nonwhite. Yet the U.S. Supreme Court ruled that to prove racial bias, a defendant has to bring in the very jurors who condemned him and have them admit in court that race bias motivated their decision.

* The most recent litigation has concerned a futile eight-year attempt to have the courts consider Robert’s mental disorders. Throughout this time, the state has successfully held the truth hostage while shouting “enough, enough,” and caused the public to believe the case has been “thoroughly” reviewed.

Because the doctors who saw Robert prior to his trial in 1978 did not note his psychiatric history, we attempted to use the subsequently discovered findings of a neurologist, who in 1971 diagnosed Robert’s organic brain damage, as a basis to obtain court funds to hire a neutral expert. Such requests were made in state courts and repeated in federal courts from 1982 to 1989. All were denied.

Following the last denial, we used our own funds to commission psychiatrists to see Robert. These doctors confirmed what the doctors years before the crimes had found: the existence of organic brain damage. They also found post-traumatic stress syndrome and fetal alcohol syndrome. Since then, numerous mental health experts who have seen Robert have confirmed these lifelong disabilities. That’s when we sought a new trial.

If fault had to be attributed for the delay in bringing this issue to the courts, then it should be placed on the prosecution psychiatrist, or the trial attorney, or on his appointed defense psychiatrists, or on us.

But irrespective of who should have discovered and presented this evidence to the jury, and what the courts ruled, the fact is, this was newly discovered evidence and warranted a new trial.

Robert should not be put to death because of a sin of oversight by his appointed lawyers and doctors.

Yet that’s just what the courts are doing, in this case and others. In 1991, the U.S. Supreme Court ruled that a condemned person’s petition could be thrown out of court without judges even having to look at the merits of the claims, if the person’s attorney failed to file them in the first federal petition. A Georgia man has been executed as a result; a Virginia man is to be put to death next month, despite new evidence pointing to his innocence.

Without affording Robert Harris a chance to be heard, or to prove the validity of the new evidence, a divided U.S. 9th Circuit Court ruled in 1991 that the mental illness claims should have been raised in 1982. The Supreme Court denied review last month.

That is where the legal odyssey of Robert Alton Harris stands today.

No society that calls itself moral could employ its death machinery without meeting and resolving the legal and moral challenges put forward in Robert’s case. And no attorney appointed to defend a condemned man could ignore these issues simply because public clamor demanded a more prompt resolution.

In our constitutional system where the right to life is inalienable, legal challenges to the fairness of a process that would take life cannot be sloughed off, or, put more colloquially, to kill first and ask questions later. To do so would be indefensible in a system worth defending.

Yes, it takes time. Powell and Chance are free today because it took time for the truth to emerge and the courts to recognize it. In Robert’s case, the truth about who he was in 1978 also took time to emerge, although without judicial recognition.

Now we are nearing the scheduled execution of a brain-damaged human being who has lived nonviolently on Death Row for 13 years. Surely, his impulsive, life-destroying conduct 14 years ago was atrocious, but our premeditated action on April 21 will be no better.