Divided Court Upholds Harris’ Death Penalty

SAN FRANCISCO — A divided federal appeals court Wednesday reopened the way for California’s first execution in 23 years, upholding the death sentence of Robert Alton Harris for the murders of two San Diego youths in 1978.

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals rejected Harris’ bid for a new hearing to present claims that he was denied competent psychiatric assistance at his trial 11 years ago.

Harris received adequate access to the services of licensed psychiatrists at the trial, the panel noted. Requiring judicial evaluations of the competence of such assistance years later would plunge the courts into a “psycho-legal quagmire,” it said.

The court, in a 54-page majority opinion by Judge Melvin Brunetti, also expressed the hope that all questions about the validity of Harris’ death sentence now “will finally be resolved after 11 years of writs and appeals.”

The impending execution of Harris, previously scheduled for April 3, had been blocked indefinitely by Judge John T. Noonan, who dissented in Wednesday’s ruling.

Attorneys for Harris said they will ask the appeals court for a rehearing before an 11-judge panel, and if that fails, take his case once again to the U.S. Supreme Court, which has already turned down four previous appeals. Lawyers said the process could take months and it was unlikely Harris could go to the gas chamber before next year.

The 37-year-old convicted killer would become the first to die since the execution of Aaron C. Mitchell in 1967. California last reinstated the death penalty in 1977, and Harris’ case has advanced farther procedurally than any of the 286 prisoners now on Death Row.

Harris’ lawyer, Charles M. Sevilla of San Diego, said he was disappointed in the ruling but hopeful of winning a rehearing. “This was a 2-1 vote, clearly indicating we’ve raised a debatable issue,” Sevilla said.

State Atty. Gen. John K. Van de Kamp welcomed the removal of what he said was “a major roadblock” to Harris’ execution. “I think he’s pretty much run out of appeals,” Van de Kamp said in Sacramento. “Regardless of how you feel about the death penalty, it makes a mockery of the democratic process when you have a case like this literally dragging through the system for so many years without any finality.”

Deputy Atty. Gen. Dane R. Gillette said prosecutors will seek a new execution date, but only after the stay Noonan issued is lifted by the appeals court. “It’s hard to predict when that will happen,” Gillette said. “It’s possible--but not likely--there will be an execution this calendar year.”

Harris was convicted and sentenced to death for murdering John Mayeski and Michael Baker, both 16, in July, 1978, after Harris and his brother kidnaped the two teen-agers and stole their car for use in a bank robbery.

In their most recent appeal, Harris’ lawyers sought a new penalty trial, citing what they said were new psychiatric evaluations indicating that he suffered from a series of related mental disorders that drove him to act by impulse, rather than premeditation, when he shot the two youths.

The attorneys argued that the two psychiatrists who aided Harris’ trial counsel failed to uncover such evidence because of an incompetent examination of Harris. The lawyers contended that Harris was entitled to a retrial under a 1985 Supreme Court ruling that recognized the right to competent psychiatric assistance in capital cases.

State prosecutors disputed that contention, arguing that the 1985 decision created only a right to the help of a licensed, competent psychiatrist--not to a competent mental exam. And even if there were such a broad new right, it should not be applied retroactively to Harris’ 1979 trial, the state said.

In Wednesday’s ruling, Brunetti, joined by Judge Arthur Alarcon, rejected a series of contentions raised by Harris’ lawyers.

The court majority said first that Harris’ claims should have been raised long before now and that his appeal could be dismissed solely on those grounds. But the court said that in the “interests of justice,” it would decide all the issues raised by Harris “with the hope that all questions . . . will finally be resolved.”

The panel said the 1985 high court ruling required only that capital defendants have “access” to a competent psychiatrist, which in fact Harris had received at his trial. Harris’ two state-paid psychiatrists, selected by his trial lawyer, had all the available background material on Harris and they interviewed and evaluated him, the court noted. His trial lawyer’s decision not to call those psychiatrists as witnesses could have been justified for defense tactical reasons, the panel said.

The court said further that, in any event, recent U.S. Supreme Court decisions barred defendants from retroactively invoking the constitutional right established in the 1985 high court ruling after their trials and initial appeals.

The high court has prohibited such retroactive application of a constitutional right unless it would affect the “fundamental fairness and accuracy” of a criminal proceeding, the panel said. A judicial evaluation of psychiatric opinion was “not essential” to obtain a fair trial, it said.

Harris has offered no evidence that his trial psychiatrists were unlicensed, inexperienced or unqualified, the panel said. Instead, he had presented only the opinions of new psychiatrists who viewed the previous psychiatric evaluations as incompetent, it said.

Further, Brunetti wrote, Harris has not shown that what he called “new evidence” of brain damage and other disorders would “probably produce an acquittal, or even that it would probably result in a penalty other than the death penalty.”

In dissent, Noonan said he believed that Harris did have the right to a hearing to present his claim of ineffective psychiatric assistance. Harris’ claims are “not frivolous” and he has never had a chance to fully present his evidence, the judge said.

If the claims of mental abnormality were proved true, “a humane and civilized jury” might well have decided not to bring the death penalty, Noonan said.

In San Diego, relatives of one of the victims said Wednesday’s ruling left them optimistic that Harris will be executed soon. “It’s a ray of hope,” said Mayeski’s sister, Kathryn Clark. The boy’s mother, Kathryn Mayeski Sanders, said: “We just have to sit back and wait for the next step.”

Michael Baker’s father, Steve Baker, a San Diego police detective, criticized the court system for allowing Harris “as many hoops as he wants.” The killer’s latest appeal was “bizarre and totally ridiculous, and yet it was allowed to go through,” Baker said. “So I’m really not hopeful this is the last shot.”

The American Civil Liberties Union of Northern California, which had supported Harris’ appeal, assailed the ruling as “unjust and unfair.” The group, in a statement, said it was a “travesty of justice . . . that a man should be put to death without even a hearing to examine the most essential elements of his defense.”

Times staff writers Alan Abrahamson in San Diego and Richard Paddock in Sacramento contributed to this report.

HARRIS CHRONOLOGY

Here is a chronology of the key legal developments in the case of Robert Alton Harris:

July 5, 1978: Harris is arrested on suspicion of murdering two San Diego teen-agers, Michael Baker and John Mayeski, earlier in the day.

Jan. 24, 1979: Harris is convicted of premeditated murder, robbery and kidnaping for the purpose of robbery and receiving stolen property.

March 6: Harris is sentenced to die in the gas chamber.

Feb. 11, 1981: The state Supreme Court denies an appeal by Harris, who contended that the San Diego jury that convicted him was prejudiced because of local pretrial publicity.

April 15: Execution date of July 7, 1981, is set for Harris, which is later stayed by the state Supreme Court pending Harris’ appeal to the U.S. Supreme Court.

Oct. 5: The U.S. Supreme Court affirms Harris’ death sentence.

Oct. 19: New execution date of Dec. 15, 1981, is set.

Dec. 9: The state Supreme Court grants another stay of execution to provide time for the court to rule on Harris’ petition for a new trial.

Jan. 13, 1982: The state Supreme Court refuses to overturn Harris’ conviction.

Jan. 26: Execution date of March 16, 1982, is set.

March 12: The U.S. 9th Circuit Court of Appeals grants a stay of execution to review Harris’ case based on his argument that the state’s death penalty law is unconstitutional because it discriminates against men. The court subsequently orders a far-ranging review of the state death penalty law to see if it is being administered fairly.

March 21, 1983: Responding to complaints from prosecutors about the 9th Circuit’s ruling

in the Harris case, the U.S. Supreme Court begins reviewing capital punishment in California. The court later reverses the 9th Circuit decision that had effectively blocked the imposition of the death penalty in the state.

Oct. 17, 1984: U.S. District Judge William B. Enright denies a new Harris appeal of his death penalty. His decision is later affirmed by the 9th Circuit.

Feb. 5, 1990: Harris is ordered to be executed in San Quentin’s gas chamber on April 3, 1990.

March 27: Harris’ lawyers file a new appeal in federal district court in San Diego, alleging that psychiatrists called as part of his defense at his 1979 trial did not competently analyze his mental state. The next day, U.S. District Judge Enright rejects the new appeal.

March 30: 9th Circuit Judge John T. Noonan grants a stay of execution so that Harris can have time to prove his claim of incompetent psychiatric help during his trial.

March 31: The state attorney general’s office asks the U.S. Supreme Court to lift the stay so the execution can proceed as scheduled.

April 2: On a 6-3 vote, the U.S. Supreme Court refused to alter Noonan’s stay of execution.

Aug. 29: By a vote of 2 to 1, a 9th Circuit Court panel upholds Harris’ death sentence with Noonan dissenting.