Conduct Unbecoming the Justice System

Two months ago, as the pale sun rose on a chilly Tuesday morning, California executed Robert Alton Harris in the gas chamber at San Quentin.

By any reasonable standard, that grim event should have closed a case that began more than 10 years ago, when Harris was convicted of murdering two young men in San Diego.

And so it has--for everyone but members of the state Assembly’s Republican Caucus. Not content with Harris’s death, they also want to punish the lawyers who fought to save his life and, not incidentally, to discourage other attorneys from making similarly vigorous efforts on their clients’ behalf. According to a caucus staff member, Republican Atty. Gen. Dan Lungren has advised and supported the GOP lawmakers in their efforts.

The question of whether they will be allowed to proceed with their campaign of harassment and intimidation is in the hands of the California State Bar’s Board of Governors. In fact, the fate not only of Harris’ lawyers, but also of the 320 people under sentence of death in this state may be decided in some large measure by whether the bar accepts or rejects two extraordinary requests the Republicans have put before it.

The first was contained in a letter dated May 5 and signed by Assembly minority leader Bill Jones of Fresno and 25 members of his party’s caucus.

They allege “that counsel representing Robert Alton Harris filed sworn documents with a federal tribunal alleging that Mr. Harris’ brother had in fact committed the crime for which Mr. Harris was sentenced. While Robert Harris’ counsel employed this legal position, Mr. Harris’ brother stated in local and national media reports that such position was false. . . .” (Harris’ brother was present when the murders occurred.)

The lawmakers also contend that “Michael Laurence, Charles Sevilla and the other lawyers who represented” Harris “unethically abused the judicial process” with “numerous last-minute appeals.”

Jones and his colleagues conclude by demanding that the bar “formally investigate” Harris’ attorneys under the California Rules of Professional Conduct. (The bar has the power to impose penalties ranging from “private reproof” to disbarment for violations of those rules.)

In a separate letter also dated May 5, Republican caucus member Mickey Conroy of Tustin urged the board of governors to amend the Rules of Professional Conduct to forbid what he calls “bad faith” appeals. More ominously, he argued that the bar ought to terminate the funding of any legal service program found to have violated his proposed revisions. (Since all but two death row inmates are indigent and, therefore, represented by lawyers paid by a legal service program, the implications are obvious.)

The charges leveled in the GOP caucus letter should be disposed of easily: Harris’ lawyers never claimed his brother “committed the crime for which Harris was sentenced.” What they did argue was that law enforcement agents had told Harris’ brother that his own plea bargain would be abrogated if he ever contradicted his original statement that he had fired no shots during the murder. In other words, if the initial statement was a lie, he’d better stick by it.

The notion that lawyers representing Harris “abused the judicial process” is equally spurious. All Harris’ appeals were taken to the California Supreme Court and denied on their merits , not on procedural grounds. Although denied, his final appeal--that death by gas constitutes “cruel and unusual punishment”--was sufficiently compelling that 13 federal judges, including two justices of the U.S. Supreme Court, felt it warranted a stay. As recently as last week, U.S. District Judge Marilyn H. Patel refused to dismiss a class-action suit challenging the legality of execution by lethal gas.

There is nothing abusive about an appeal that excites this sort of judicial division. Proof of good faith does not require unanimous judgments.

Taken together, the political implications of the Republican Caucus and Conroy letters are particularly chilling. As one attorney with long experience in death penalty litigation told me this week: “By going after people like Chuck Sevilla, Michael Laurence and the others, the Assembly Republicans and the attorney general are trying to send a message.

“Chuck is one of the most admired members of the defense bar and one of the most respected legal scholars engaged in appellate work in this state. The message is, if they can punish him for strongly representing his client, they can punish anybody. If he is attacked in this way, there’s no question in my mind that other lawyers will be deterred from even taking death penalty appeals.

“Maybe more important, I see this as part of a wider trend in which many opportunistic politicians regard lawyers who represent indigents, like Harris, as fair game. In their minds, poor people accused of crimes are worthless and those who represent them, who speak up for them, aren’t much better.”

A lawyer who worked in the attorney general’s office, and who still maintains close ties to former colleagues there, agrees that the attempt to punish Sevilla and Harris’ other lawyers is part of a political rather than a legal agenda:

“Any case involving life and death--the death of the victim, maybe the death of the convicted person--is bound to stir up a lot of passion on both sides. If it didn’t, there’d be something really wrong. But if the system is going to continue functioning, it’s important that both sides play by the rules--that they behave honorably and fairly, that when the case is decided they, in effect, shake hands and go back to work. That’s the way lawyers are supposed to behave.

“I think that is still the attitude of the majority of professional prosecutors in the AG’s (attorney general’s) office. They’re a very ethical group of lawyers. I think there are doubts, though, about Lungren and the people close to him--and with good reason. They’re politicians, and their attitude toward a lot of cases, including the death cases, is basically a political one. They don’t think like prosecutors; they think like politicians. For them, it’s not enough to win the case in court. They also want to destroy the people who opposed them, to get them out of the way. It’s the old political thing of rewarding your friends and punishing your enemies.”

That is indeed the conduct proper to partisan politicians--and schoolyard bullies. It is not the standard by which Californians, whatever their views on capital punishment, wish to see justice administered. The state bar’s board of governors must recognize that fact.