Grand Jury Seeks Harris Case Documents

The six lawyers who defended executed killer Robert Alton Harris have been ordered to submit documents to a federal grand jury in San Diego investigating the testimony of a key witness in the case, sources said Monday.

None of the six lawyers is a target of the grand jury, which has been at work for at least a month investigating inconsistencies in the testimony of witness Joey Dee Abshire, who at one point shared a jail cell with Harris, sources said.

Evidence against Abshire could lead to a criminal perjury case against him. But, sources said, the six lawyers--four in San Diego, two in San Francisco--have been resisting the court order to turn over their files, in part because of concern that the probe may turn against them.

Three sources confirmed the details of investigation, but all demanded anonymity because the probe is in process. The grand jury operates in secret.

Abshire, 45, is a career criminal and jailhouse informant whose testimony helped convict Harris of first-degree murder. Federal prosecutors in San Diego have asked the six lawyers for any tapes and transcripts of statements Abshire made to government investigators in 1978, in the weeks after Harris killed two San Diego teen-agers.

Harris, 39, was put to death April 21 in the gas chamber at San Quentin. He was the first person executed in California in 25 years.

Harris was convicted of the July 5, 1978, murders of two 16-year-old Mira Mesa boys, Michael Baker and John Mayeski. Harris killed the teens after stealing their car for use in a bank robbery.

At Harris’ trial that ended in 1979, Abshire testified that Harris told him he killed the two teens to eliminate them as witnesses. Defense lawyers contended that Abshire’s testimony was crucial to the prosecution because it helped establish a motive for the killings.

In turn, a motive would suggest that the killings were premeditated, or considered beforehand. Only a premeditated killing can be first-degree murder--and only a first-degree murder can lead to the gas chamber.

One of Harris’ last legal appeals centered on a claim that San Diego prosecutors secretly recruited Abshire to pump Harris for information while the two shared a cell for a few minutes on July 26, 1978.

In a May, 1991, hearing in San Diego federal court, Abshire testified that two district attorney’s investigators had him removed from a holding cell he was sharing with Harris, then put him back with instructions to question Harris about the murders. That was prosecutorial misconduct, defense lawyers alleged.

But a 15-minute tape recording of Abshire’s July 26, 1978, meeting with the two investigators showed that Abshire “was a liar,” U.S. District Judge William B. Enright said at the 1991 hearing.

No deal was discussed on the tape. Prosecutors said they made no deals with Abshire and denied that he was recruited to be a secret informant.

Abshire, according to Enright, testified truthfully at Harris’ trial and recanted his story only because of an inmate code that looks unfavorably on prisoners who testify as informants. Abshire is in the midst of a 16-year sentence at a Nevada prison.

In August, 1991, the U.S. 9th Circuit Court of Appeals, the appellate court that serves California, said Enright was right to reject the claim of prosecutorial misconduct.

Last month, in disclosing the grand jury investigation to the six defense lawyers, federal prosecutors sent each of the six a subpoena demanding that the attorneys turn over the tapes or transcripts of any and all conversations Abshire held with investigators.

Apparently, sources said, prosecutors want to corroborate the dates and times about when defense lawyers learned about Abshire’s 1978 statements to investigators.

The subpoena also orders the disclosure of the dates on which Harris’ two trial attorneys, San Diego lawyers Thomas Ryan and Jerome Wallingford, first acquired any tapes or transcripts. It also seeks attorney notes or correspondence with Abshire.

Besides Ryan and Wallingford, the subpoenas were sent to the four attorneys who took up Harris’ case on appeal, Charles M. Sevilla and Michael J. McCabe of San Diego and Michael Laurence and Gary Sowards of San Francisco.

The subpoenas originally called for the lawyers to testify this week before the grand jury, sources said. But those dates have been set aside while defense and government lawyers talk behind the scenes, and no dates for testimony are set, sources said.

Some of the six defense lawyers, reached Monday by phone, declined to comment. Others could not be reached for comment.

Assistant U.S. Atty. Marian McGuire, who sources said is directing the grand jury investigation, declined comment.