The Harris Case: 14 Years of Emotional Twists, Turns

It began with two deaths, in the dry scrub of a dusty little gully at the edge of San Diego.

It could end tonight with one death, in the megawatt midnight of an airtight steel chamber owned and operated by the state of California.

And in between--well, there is a lot of in between.

Bookended by death--by eight gunshots that killed two boys, and by the hiss of cyanide gas that may execute their killer--are nearly 14 years of writs and petitions and appeals that have given shape and motion to the death penalty law of California.

Five times already, the case that began as “People vs. Harris” has traveled the vast loop to the U.S. Supreme Court and back. A dozen times more it has rebounded through lesser courts. Sometimes, “Harris” won a round. Sometimes, “People” prevailed. And it may not be over yet.

“People” is incarnated in an unbroken chain of men in suits, a prosecutorial bucket brigade that has carried this case from scruffy interrogation rooms to the U.S. Supreme Court to the ocher walls of San Quentin. Few of them ever met “Harris”; the prosecutor who shouldered the case for 10 years came close once, walking past the cells of the condemned--past one cell in particular where Robert Alton Harris, he believes, sat silently in the dark.

On the hot July midday in 1978 when Harris prodded two teen-age boys up a deserted little draw and murdered them, the state’s death penalty law was not yet a year old, and virtually untested. If and when Harris is executed, the law will have been tempered, challenged and streamlined from a problematic abstraction into the keenest tool that justice can administer.

The guilt of Robert Alton Harris was not at issue in virtually any of these appeals. But the years spent traversing the long road of legal switchbacks have not been without instruction. They clarified some untested procedural questions in rulings that will affect other Death Row inmates long after Harris is dead.

Harris’ case was one of only four death penalty cases upheld by the state Supreme Court in the divisive Rose Elizabeth Bird years; the very cleanness of the case, virtually unencumbered by any issues but constitutional questions on the death penalty itself, sped it out ahead of the field among California’s condemned men.

One by one, clearing obstructions from the road to the gas chamber, those rulings:

* Rejected a proportionality requirement in California. Proportionality requires a state to compare one case to another to show that a death sentence is not being imposed arbitrarily. Did others commit similar or worse crimes and get lesser sentences? It was also ruled that Harris’ discrimination claims--that more killers are condemned for killing white victims, and proportionally more men are sentenced to death than women--were inapplicable.

* Agreed that those who would automatically impose or reject the death penalty can be excluded from a capital case jury. And a trial need not be moved if the jury pool is big enough and pretrial publicity not so overwhelming as to preclude finding impartial jurors.

* Found no grounds for renewed appeals just because new psychiatric evaluations challenge the competence of psychiatric assistance during the trial.

* Found that some matters are two-edged: mitigating and aggravating. For example, a mental disorder could not only be used by the defense to argue that a defendant was not responsible for his actions, but could also be used by prosecutors to show that he was dangerous.

* Found that Harris had abused the appeal process by repetitive petitions, and by raising issues that could have been raised long before. Deputy Atty. Gen. Lou Hanoian, who has carried this case since 1989, said: “Robert Harris is the poster child for habeas corpus reform.”

The men of the legal bucket brigade expended their years and their learning on what they knew was a landmark case, one that has outlasted promotion, retirement and any frustration at the slow grind of justice.

For 10 years, Deputy Atty. Gen. Michael Wellington, now a Superior Court judge, took “Harris” through the appeals labyrinth. His boss offered him the case on a Friday in 1979. He asked for the weekend to think it over, and accepted on Monday--in part for the challenge, and in part because “here I’d been a prosecutor since 1971 and I wasn’t entirely sure what I thought about the death penalty. I thought, I’ll take this case, and by the time I’m through with it I’ll know what I think of the death penalty.”

A baker’s dozen years later, it still is not that clear-cut. A case of such import “takes a lot emotionally, and frankly, my belief is that the intellectual game becomes much grimmer as Mr. Harris is dragged into a little green diving bell and killed.”

It absorbed Wellington 10 years ago. It engages him now. “I used all the skills I had when I was doing it, to represent those interests and see to it that judgment was carried out. I remain convinced it’s an appropriate judgment . . . but it doesn’t change the extraordinarily grim and unpleasant realities of it.”

The Crime

The first man on the bucket brigade did not get to hold the bucket for long.

Around lunchtime on July 5, FBI Agent Ken Vardell was called in on what looked like a ho-hum bank robbery: a $3,009 haul by two guys who got caught before the engine had cooled on their stolen getaway car.

What Vardell could not understand was why 18-year-old Daniel Harris confessed right off to robbery but got “real nervous every time I asked him about the getaway car. Why would you be reluctant to tell us you stole a car when you committed a 25-year (sentence) bank robbery?”

At last, Daniel Harris asked every lawman but Vardell to leave the room.

Harris picked up a photo of 16-year-old Daniel Mayeski, whose family owned the stolen green LTD, and began to cry. This kid is dead, he said. That car we stole--it wasn’t empty. This kid was in the car.

How do you know he’s dead? Vardell asked. Because, said Daniel Harris, I was feeling his pulse when my brother walked up to him and shot him again in the head.

And that’s not all. There was another boy. A friend.

Daniel Harris showed them where to go--a dry wash, way out by a reservoir. “I’ll never forget how quiet everything was--no birds, no traffic, no wind, no crickets, no nothing,” Vardell says. “And the first thing I saw was a tennis shoe sticking out from the underbrush, then a lock of golden-blond hair that the sun was picking up.”

Ken Vardell had 12 years with the FBI then. He has put in 14 more since. As he walked back into the police station, he saw Robert Harris watching him from behind the glass of a holding cell. “He knew where we’d been and what we’d seen. And he was grinning at me.

“A human life is a human life, and I’ve had cases where I could have taken a life--and I had legal and moral justification to do so--and I waited to that very last second to pull the trigger, and I didn’t have to, and I’m grateful for that.

“But I tell you, if I could have gotten hold of Robert Harris right then, there wouldn’t be any gas chamber.”

So it was that on a bright Wednesday afternoon, a two-a-penny bank robbery by a paroled ex-con and his little brother became a double homicide that would, in short order, serve as the legal packhorse for the death penalty in California.

The Trial

The murders became grand-slam, Page 1 news, and stayed there. When two kids heading out on a fishing trip get blown away--they don’t get much grimmer than that.

Homicide Detective Fred Dreis admits he was surprised when Chief Deputy Dist. Atty. Richard D. Huffman was named to try the case. “I knew him as an administrator. None of us had ever worked with him. I never even remember him prosecuting a case, and yes, I had a concern about it . . . as it turns out, I couldn’t say enough good things about Dick.”

Huffman spent 19 1/2 years as a prosecutor. He became a justice on the 4th District Court of Appeal in 1985.

This one was about as tidy as you could ask for: several confessions by Robert Harris, brother Daniel’s testimony, and a neat succession of physical evidence. This was “not a case that required the world’s greatest trial lawyer to put on,” Huffman says. He felt certain enough to tell the jury: “I submit that the evidence in this case is so strong that the toughest job you’ll have is picking a foreman.”

But far more than one man’s guilt was at stake.

Already, Huffman’s boss had turned down a plea bargain; if there was ever a capital case, this was it. From Day One, Huffman was looking beyond a guilty verdict, to bulletproofing his case “in a fashion to withstand appellate review.”

So “the trick,” says Huffman, “is to not make any mistakes.”

The closest he stepped to the precipice of error was on Wednesday, Jan. 17.

Near the end of more than five hours on the stand, Robert Harris “got himself into a box,” says Huffman. The defendant had to explain his fears about submitting to gunpowder residue tests the afternoon of the murders. He was an ex-con--something Huffman was not allowed to bring up in court--and handling a gun could get his parole revoked.

Harris had been plinking at trees a few days earlier with the stolen gun used to murder the boys, but didn’t want to say so. Even if it did not implicate him in murder, it would surely bring up his record, out of his own mouth.

I’m not supposed to have a gun, Harris said.

Ray Cameron was watching from a spectator’s seat, his palms sweating. Cameron, then a D.A.’s investigator and psychologist, has worked on more than 35 death penalty cases, and is now a private consultant. It was he who arranged for the Harrises’ psychiatric exams that first night after the killings.

“You could have heard a pin drop in that courtroom,” Cameron recalls. “There was a big long pause while Huffman thought about it at length. . . . He went for it and said, ‘Why not?’

“Harris looked at his attorney and he looked at Huffman and said, ‘That’s slick’. . . . It was low, but we could all hear it. He said: ‘Because I’m on parole.’ ”

Harris’ attorney asked for a mistrial--it was denied--and jurors were told not to take any notice of his felony record. But the point was made.

“That,” says Huffman, “was probably the only difficult moment.”

Once jurors had convicted Harris, they heard about his beatings at his father’s hands, and the earlier felony: the 1975 killing of his next-door neighbor, James Wheeler, a man Harris kicked and beat for six hours, doused with lighter fluid and dropped lighted matches around.

Even as the jury was deciding whether Harris should die, Harris was conducting a trial of his own, in jail, Cameron remembers: He put a fellow inmate on trial for cowardice. He chose a prosecutor and a defense attorney, and he made himself judge. He found the inmate guilty and sentenced him to be sodomized by other inmates.

The jury sentenced Harris to death, and on income tax day 1979, the first of Harris’ five execution dates was set.

“We talk about the death penalty,” says Huffman today, “but few people are called on to deal with it hands-on: jurors and prosecutors and judges and attorneys. It’s real when you deal with it like that. . . . It’s not a casual thing. It’s not a frivolous thing. It is important, and you have to realize you’re doing something significant.”

Onto the Appeals

The appeal of a death sentence in California is automatic. The work that ensues is not.

“My expectation,” says Michael Wellington, “was that I’d probably have (the case) for a year or two and it’d be reversed and I’d be off doing something different.”

Wellington would have the case for 10 years, through setbacks and advances, through at least six file boxes of documents, and--the pinnacle--one half-hour on Nov. 8, 1983, when he argued before the U.S. Supreme Court.

The prosecution was on the ropes then. In 1982, the U.S. 9th Circuit Court of Appeals had ordered a far-ranging review of the death penalty’s fairness, indefinitely blocking California executions. It would be more than seven years before another execution date would be set.

In his allotted 30 minutes--”it seemed like five”--Wellington argued against what had become a keystone of Harris’ appeal: that California law should require an inter-case comparison of equity of crime and sentencing.

And here is where the now-fabled hamburger emerged again. Huffman had used it to grim effect at the trial, and Wellington used it now: Harris had not only killed the two boys, mocking one who sobbed out a prayer--he had laughed and flicked bits of flesh off his pistol. And afterward, he had eaten some of the boys’ Jack-in-the-Box order of a hamburger, Jumbo Jack, large fries, apple and lemon turnovers, small and medium drinks.

“That was the centerpiece of my proportionality argument,” Wellington says now. “It isn’t just robbery in the course of murder, rape in the course of murder--there’s all the behavior surrounding it.

“For example, with the hamburgers: On a scale of one to 10, where do you put that? And how do you compare to the Jackson case (another convicted killer), where there was no eating of hamburgers but an 80-year-old woman was raped with a Coke bottle? . . . You have to allow for certain subjective elements.”

In January, 1984--”I remember the morning exquisitely”--Wellington was rousted out of bed by a phone call. The Supreme Court had agreed with him.

Wellington would spend five more years on “Harris.” He would be a judge by the time most of the same petitions had been dispensed with, and a fourth execution date set.

He was named to the bench in March, 1989, by Gov. George Deukmejian, who wrote the death penalty law that Wellington pressed for so long. “I’d be naive to suspect the opportunities I got (in ‘Harris’) weren’t helpful in showing the work I could do” and helped to suggest him as a candidate for jurist.

Of all his caseload, it was “Harris” that he handed off with regret and relief. “It’s a fascinating social, legal, political melodrama I got to play an important role in.”

Still On Appeal

In a case overladen with coincidence--Michael Baker’s father helped to arrest Harris before he knew his own son had been murdered; Michael’s sister Tammy was in the bank when the Harrises robbed it--Lou Hanoian brought his own.

In 1979, as a law class assignment, he had to sit in on a trial. “The trial I watched was the Harris case.” Now he is the state’s point man, inheriting the mantle--and all those files--from Wellington.

He seems to tote much of it around in his head. He can recite, with Gilbert and Sullivan speed, three years of legal zigzags: from the U.S. 9th Circuit Court of Appeals to the U.S. Supreme Court to the state Supreme Court, a third habeas corpus defense petition “that we got to respond to in 23 hours,” to a District Court judge, up to the Supreme Court, back to the 9th Circuit . . . writs and stays and applications to vacate and supplemental petitions for rehearing. “And that’s all I’ve done on the case,” he says, deadpan.

If nothing else, it has shown him this: “You don’t ever expect these things to be over till they’re over; Yogi Berra said it and he was right.

“I don’t let it really have any kind of an emotional toll on me at this point. When it’s all over, maybe I can sit back and reflect. . . . Have I changed? If so, how, and if so, what is the cause of it?”

April, 1992--How Does It End

As the state’s death penalty coordinator for San Diego, Deputy Atty. Gen. Jay Bloom played shortstop to Hanoian on “Harris,” until he was sworn in as a Municipal Court judge last New Year’s Eve.

What he has to say is not specific to Harris--he wants that known. It is the product of handling a thousand appeals over 19 years.

“The appellate process is very disconcerting. At a trial you’re dealing with right or wrong, guilt or innocence. Suddenly you get up on appeal and it seems like you’re trying everything but the defendant’s guilt or innocence: Did the prosecution do something wrong? Did the judge say the magic words?

“Sometimes you wonder if the whole appellate process hasn’t lost sight of what the whole thing is all about--criminal justice. That was always the thing that troubled me. . . . We weren’t worried about truth or falsity or guilt or innocence. We were involved in this technical morass of things, of procedures. . . . So many steps removed from the crime

“The emotion and the trauma of the event was often lost in the blur of technical issues. . . . No one ever thought about the victims or the culpability.”