Harris’ Final Appeals Stress Brother’s Role

SAN FRANCISCO —  With time now their most fearsome enemy, lawyers for condemned killer Robert Alton Harris pressed last-ditch appeals in several courthouses Friday, searching for a judge who will delay California’s first execution in 25 years.

In their most surprising legal bid, defense lawyers presented what they called new proof that Daniel Harris, a younger brother of the condemned man, may also have shot one of the two San Diego teen-agers whom Robert Harris was convicted of murdering.

In asking for a stay of Tuesday’s 12:01 a.m. execution, the defense charged that prosecutors withheld evidence about Daniel that may have helped save Robert Harris from a death sentence at the 1979 trial. Prosecutors attacked the appeal Friday as a meritless tactic designed merely to delay the execution.

The request for a stay was quickly denied by the state Supreme Court. In an order signed by Chief Justice Malcolm M. Lucas, the court said it had “carefully read and considered” legal arguments from both sides.

In response, Harris’ attorneys filed a new lawsuit raising the same issues in a federal court in San Diego. A hearing is scheduled before U.S. District Judge Howard B. Turrentine at 9 a.m. today.

In another legal move Friday trying to spare Harris, his attorneys filed a federal civil rights suit in San Francisco seeking to block the execution on grounds that the use of lethal gas is a violation of the constitutional protection against cruel and unusual punishment. A hearing was scheduled in that case before U.S. District Judge Marilyn Hall Patel at 6 p.m. today.

The suit--which employs emotional statements from Holocaust survivors and physicians--argues that killing the condemned by forcing them to inhale hydrogen cyanide fumes in the San Quentin gas chamber inflicts “torture and unnecessary pain and suffering” when other, more humane methods--such as lethal injections--are available.

Dr. Howard Kornfeld, a San Francisco physician, said Harris will “experience the terror of air hunger, a sense of strangulation, and desperate gasping for breath for a period extending up to several minutes.”

Of the 36 states that have death penalty laws, only three--California, Arizona and Maryland--prescribe gas. Three others--Mississippi, Missouri and North Carolina--give the choice of gas or lethal injection. Arizona, which conducted its first execution in 30 years on April 7, is considering a switch to lethal injection.

A similar challenge to the constitutionality of the use of gas, raised in a case from Mississippi, was turned down by a federal appeals court in 1983.

The flurry of legal maneuvers was set off by Gov. Pete Wilson’s televised rejection Thursday of a clemency petition by Harris. In denying mercy, Wilson said he sympathized with Harris for having been the victim of alcoholic and abusive parents but said he could not “excuse or forgive the choice made by Robert Harris the man.”

In Los Angeles on Friday, a lawyer for Harris held a news conference to urge Wilson to reconsider his decision. Howard I. Friedman criticized Wilson for ignoring scientific evidence that Harris suffers from fetal alcohol syndrome.

Friedman, in a letter to Wilson, also asked the governor to authorize a 10-day reprieve to allow defense lawyers to refute “factual errors, misstatements and omissions” contained in Wilson’s statement rejecting clemency.

“I am deeply troubled by several aspects of the decision you rendered,” wrote Friedman. “Chief among my concerns, of course, is the damage your decision may do to the public’s understanding of fetal alcohol syndrome.”

At San Quentin prison, where Harris is under a deathwatch, a spokesman said Wilson’s rejection of clemency had turned Harris more somber. Harris was visited by several people Friday, including a brother, Randy, and a friend, writer Michael Kroll.

They met in a small conference room and were monitored by three officers. Harris was bound in handcuffs and a waist chain. Kroll said Harris was not surprised by Wilson’s denial of clemency, but continued to “talk about the future,” as if he held out hope that a court would grant an Easter weekend reprieve.

“He was somewhat distracted and, at times, seemed depressed,” Kroll said.

The visitors were not allowed to bring anything to Harris, but they shared sodas and sandwiches supplied by the prison. Kroll said a television has been removed from Harris’ cell, but that he has books.

Elsewhere in Marin County, Superior Court Judge William H. Stephens ordered that Warden Daniel B. Vasquez allow Harris’ second cousin, Leon Harris, to act as the condemned man’s spiritual adviser in the waning moments of his life.

Vasquez had planned to provide a prison chaplain for Harris, but opposed allowing the prisoner’s second cousin into the prison on the night of the execution, saying that it might lead to a desperate act to free Harris or interfere with the execution.

But citing the 1st Amendment right of freedom of religion, the judge concluded that Harris would be more willing to “clear his conscience” to a confidant rather than a stranger offered by the prison. The judge denied other requests by Harris’ sister, his lawyer, and a psychiatrist that they be allowed to remain with Harris on Monday night.

Rev. Harris describes himself as a drug and alcohol counselor, a Southern Baptist minister and a sheriff’s deputy in Mobile, Ala. In a letter earlier this month, he wrote: “Robert has looked to me for the strength to seek the Lord’s forgiveness and face his own death.”

Outside the prison, foes and advocates of the death penalty used the twin occasions of Good Friday and Passover to argue their respective religious positions.

While a priest held a Good Friday service, two Evangelical preachers recited biblical passages in support of their belief that God would endorse California’s first execution in a generation.

Perhaps the most unexpected development in the legal drama was the re-emergence of Daniel Harris in court papers filed Friday on behalf of his condemned brother.

Over the last 13 years, Daniel Harris has made a variety of conflicting statements about his brother and the slayings of John Mayeski and Michael Baker, both 16, who were found dead in a remote San Diego wash.

Under terms of a plea bargain--in which he received three years for kidnaping for his role in the crime--Daniel Harris testified during his brother’s trial that Robert had shot both victims.

Earlier this year, Daniel Harris told the San Diego Union-Tribune that Robert is “a nut” who “always liked hurting and killing something.”

“Enough is enough,” Daniel Harris said in urging the execution.

But in an affidavit filed Friday, Daniel Harris said he at first told prosecutors that he may have fired the first shot from a rifle he carried to the scene. Daniel Harris claims that when he told authorities this, they threatened him with the death penalty if he made such statements at his brother’s trial.

Defense lawyers said such evidence--that Robert began shooting only after his brother opened fire--would have supported the claim that Robert had not planned the killings but had gone into an uncontrollable mental state, thus making him legally insane at the time of the crime.

The older Harris brother, Randall, confirmed Daniel’s latest account of the facts in a sworn affidavit, noting that Daniel had confessed a few years after leaving prison that his rifle went off first and that Robert then “just went crazy” and opened fire.

Friday’s appeal also says that Daniel was hypnotized, apparently at the behest of authorities, before his brother’s trial.

In their reply, state lawyers said the claims were “patently without merit” and noted that Harris has already filed more than a dozen appeals in piecemeal fashion in an attempt “to delay his execution ad infinitum. “

State Deputy Atty. Gen. Louis Hanoian said no evidence was withheld and the claim that Daniel Harris was hypnotized was an “outrageous lie.”

Times staff writers Jenifer Warren and Bob Baker in San Francisco, Paul Feldman in Los Angeles and Alan Abrahamson in San Diego contributed to this story.