U.S. Judge Grants Stay of Execution for Harris : Court: Killer deserves time to prove his claim of incompetent psychiatric help at trial, jurist says.

By PHILIP HAGER

March 31, 1990 12 AM PT

TIMES STAFF WRITER

SAN FRANCISCO — A federal appeals court judge on Friday blocked indefinitely the scheduled execution Tuesday of Robert Alton Harris, ruling that the convicted killer was entitled to more time to prove his claim that he was denied competent psychiatric assistance at his trial 11 years ago.

Concluding a dramatic, hour-long hearing, Judge John T. Noonan of the U.S. 9th Circuit Court of Appeals abruptly rejected claims by state prosecutors that Harris’ latest appeal raised no significant new issues and was designed only to further delay the execution.

Noonan, a former UC Berkeley law professor appointed to the court in 1985 by President Ronald Reagan, did not rule on the merits of Harris’ contention itself. But the judge concluded that Harris had raised an issue that should be more fully explored by a three-judge panel of the appeals court. The panel, in turn, would decide whether to order a full evidentiary hearing on the issue in a federal district court.

“The state has a legitimate interest in its statutes being carried out and its just penalties exacted,” Noonan declared. “If the state’s interest in exacting the penalty is again postponed, it is in vindication of the state and federal interest that no one be put to death without due process of law.”

In an eight-page order, Noonan cited a 1985 ruling by the U.S. Supreme Court that a defendant is entitled under the Constitution to competent psychiatric assistance when the question of his mental condition and his future dangerousness is at issue in a capital sentencing proceeding.

The judge ordered further proceedings to examine Harris’ claims that psychiatric experts at his trial did not make proper examinations of brain damage and other mental disorders that could have affected Harris at the time of the crime. Such evidence, his lawyers say, could have persuaded jurors not to recommend a death sentence.

Such a proceeding could take months, and state Atty. Gen. John K. Van de Kamp said in a statement that authorities today will ask the U.S. Supreme Court to overturn Noonan’s order. The Supreme Court could take action as early as Monday but attorneys say the chances of the execution proceeding on Tuesday are slim.

“If this ruling stands, we fear it will open the door to years of endless litigation not only in this case but to hundreds of others,” Van de Kamp said. “Judge Noonan’s decision creates a brand new legal right for accused murderers like Robert Alton Harris--the right to challenge the competency of psychiatric experts years after the fact.”

Van de Kamp said defense psychiatrists at Harris’ trial had ample access to data on Harris’ mental condition from previous prison records and had agreed with a prosecution psychiatrist that there was little evidence that would help Harris.

Gov. George Deukmejian called it “unbelievable” that “after over 11 years of innumerable appeals and delays in attempting to have the judgment in a first-degree double-murder conviction carried out under the laws of this state, justice has once again been indefinitely delayed and denied by a single federal judge.”

Friday’s ruling came as a surprise from a judge who had been considered a judicial conservative. And it represented a stunning victory for Harris’ three-member legal team--attorneys Charles M. Sevilla and Michael J. McCabe of San Diego and Michael Laurence of San Francisco.

“Obviously, we’re elated,” said Laurence as the three attorneys dashed from the federal courthouse here to drive to nearby San Quentin state prison to inform Harris.

The appeal--Harris’ latest of about 20 appeals in the case--was filed just two days after U.S. District Judge William B. Enright of San Diego rejected a similar plea.

Under regular court procedures, the appeal was submitted to Noonan, a member of the three-judge Court of Appeals panel that had heard--and denied--previous pleas by Harris in 1988 and 1989.

Harris, 37, could become the first inmate to die in the gas chamber 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 other 275 prisoners now on Death Row.

Harris was convicted of murdering John Mayeski, 15, and Michael Baker, 16, in July, 1978, after he and his brother kidnaped the two boys and stole their car for use in a bank robbery.

In San Diego, the family of John Mayeski said the decision reinforced their frustration with the legal system. “I’m disgusted,” said John Mayeski’s mother, Kathryn Mayeski Sanders, 68, a retired civilian electronics technician with the Navy. “I just can’t believe this. I just can’t believe it, that’s all.”

Earlier this week, Steve Baker, the father of Michael Baker, had said he feared the execution might be stayed once the case reached the federal appellate court.

The 9th Circuit, Baker said, has “been the weak link in this thing the whole time. “I think Harris is grabbing at straws,” Baker said. “But, again, I don’t trust the 9th Circuit court. And I haven’t really trusted them for some time.

Harris’ death sentence, challenged in a series of appeals over the years, has been upheld four times by the U.S. Supreme Court and five times by the state Supreme Court--most recently March 16.

The focus of Harris’ latest appeal is the contention that a new penalty trial was warranted because of what his attorneys said was new evidence, based on recent psychiatric evaluations, indicating Harris suffered from a series of interrelated mental disorders that drove him to act by impulse, rather than premeditation, when he shot the two boys.

They said Harris suffered from fetal alcohol effect, as a result of his mother’s drinking while pregnant with him; organic brain disorder, produced by repeated blows to the head by his parents and his mother’s boyfriend, and post traumatic stress disorder, a product of “recurrent and unremitting” childhood abuse.

The lawyers said Harris was denied his rights to effective assistance of counsel and due process of law because his trial counsel and defense psychiatrists failed to find and present such evidence to the jury.

In Friday’s hearing, Sevilla, representing Harris on appeal, argued that the trial lawyers and psychiatrists were under strong pressure and did not have enough time to obtain competent psychiatric evaluations.

“The investigation that was done was inadequate,” he said. McCabe, another appellate lawyer for Harris, added that as a result, the trial jury had not been given a “complete picture” of Harris’ mental state--evidence that could have resulted in a verdict of life in prison rather than death.

State Deputy Atty. Gen. Louis R. Hanoian urged Noonan to refuse a stay and to permit Tuesday’s execution to proceed on schedule. “This is the 20th time this case has come before a court,” Hanoian said.

The state prosecutor said that the reputedly new psychiatric evaluations represented merely a conflict of opinions among experts--and were not sufficient to warrant further proceedings.

But Noonan peppered the prosecutor with skeptical questions, increasingly suggesting as the hearing went on that he was about to issue a stay. When Hanoian noted the extraordinary length of the case--12 years--the judge cut in abruptly.

“There was nothing irresponsible about the previous appeals,” said Noonan. “Don’t keep dwelling on those 12 years. That’s a popular slogan but it’s quite inappropriate. The state is not interested in putting people to death unconstitutionally.”

After the ruling, inside San Quentin prison, Warden Daniel B. Vasquez planned to talk with Harris’ prosecutors before deciding whether to take Harris off the constant monitoring that is given a prisoner about to be executed.

“Everything is in a holding pattern,” said Lt. Cal White, a prison spokesman.

Outside San Quentin, Janice Gay, one of a handful of anti-death penalty demonstrators who has been keeping a vigil for the last month and a half, declared, “I’m thrilled.”

Gay, the wife of a Death Row inmate, said she called Brenda Harris, one of Robert Harris’ sisters. Gay said Brenda Harris tearfully repeated over and over, “God in heaven, you heard my prayers.”

At the California Appellate Project office in San Francisco, where Harris’ defense team gathered, Randall Harris, Robert’s brother, said Noonan’s ruling “reconfirmed my belief in this country.”

“The judge was not influenced by public opinion, only by what is right,” the brother said. “That is the way it should have been. It was great.”

Michael Kroll, Harris’ best friend, said Harris told him after the ruling, “If you talk to the press, tell them I said, ‘If I can find a judge who acts like a judge, I will be all right.’ ”

“This is so sweet, so very sweet,” Kroll said.

Times staff writers Alan Abrahamson in San Diego, Douglas Shuit in Sacramento and Dan Morain in San Francisco contributed to this report.