Texas killer seeks stay of execution; attorneys cite low IQ

By Molly Hennessy-Fiske

Sept. 20, 2012 12 AM PT

Houston — A former Dallas-area car wash employee who was convicted of killing two co-workers a week after he was fired in 2000 appealed to the U.S. Supreme Court on Thursday to stay his execution.

Robert Wayne Harris, 40, was due to be executed as of 6 p.m. Central time.

Harris had originally confessed to fatally shooting five people at the Mi-T-Fine car wash in Irving, Texas, was charged in connection with all five but tried in two of the deaths. His attorneys argue Harris should not be executed because he is mentally retarded and did not receive a fair trial.

Harris would be the eighth Texas inmate executed this year, the 485th since the state instituted lethal injection in 1982. The next scheduled execution is in less than a week, on Sept. 25.

Harris’ attorney Lydia Brandt argues in a petition submitted to the U.S. Supreme Court this month that Harris’ execution should be stayed because, at the time of his trial in 2000, prosecutors improperly removed all of the potential jurors who were black, like Harris.

“I’m hoping we can get traction on this one,” Brandt told The Times.

Brandt, who is based in the Dallas area, has also petitioned the Supreme Court to stay the execution based on Harris’s low IQ, citing a Supreme Court ban on the execution of the mentally impaired. Tests show Harris has an IQ of 68, mildly mentally retarded.

“If he’s mentally retarded, he’s not eligible for execution,” Brandt told The Times on Thursday as she awaited word on the appeals.

The Texas attorney general’s office has opposed the appeals for a stay, noting that judges have rejected tests purporting to demonstrate Harris’ mental impairment and that race did not taint his jury selection. A spokesman for the office declined to comment about the case Thursday.

One of Harris’ trial lawyers, Brad Lollar, said he challenged the jury composition at the time of the trial but was overruled by the judge.

Harris’s guilt is not at issue, because witnesses put him at the scene and he confessed, Lollar said. The issue is whether he knew what he was doing and deserves a death sentence.

Harris had a troubled background, “typical of what we see in death penalty cases,” Lollar said. As a child, he watched his father kill his mother. He was then “bounced around among relatives,” developed a stutter, was bullied, placed in special education classes and dropped out of school in the ninth grade, Lollar said.

Lollar, a Dallas-based lawyer, said he “always felt that Robert was mentally retarded,” and had him tested before trial by a psychologist who later testified to Harris’ low IQ.

At the time, mental retardation would not have prevented Harris’ execution.

The U.S. Supreme Court established the precedent against executing those with mental illness in 2002 in the landmark case of Atkins v. Virginia. The plaintiff in that case, Daryl Atkins, had an IQ of 59, also mildly mentally retarded.

“Had we had that law on our side back then, we would have certainly had a half dozen psychologists and psychiatrists testify,” Lollar said, referring to the Atkins decision.

But even after the Atkins decision, the U.S. Supreme Court has allowed for the execution of inmates pleading mental retardation.

“We have individuals who are being executed who should not be,” Brandt said.

On Aug. 7, Texas executed Marvin Wilson, 54, convicted of a 1992 murder in Beaumont, after the Supreme Court denied him a stay on the grounds of mental impairment. Wilson had an IQ of 61, also mildly mentally retarded.

“It’s a big issue in a number of cases in Texas and across the country — we’ve executed a lot of people who are mentally retarded,” Lollar said. “We’re still hoping. There’s a few hours left.”

Lollar said Harris had offered to plead guilty in exchange for a half dozen life sentences but “the district attorney wouldn’t go for that.”

Harris had served an eight-year sentence for burglary and other offenses and had been working at the Mi-T-Fine car wash for about 10 months when he was fired and arrested after exposing himself to a female customer on March 15, 2000, according to the Texas attorney general’s office.

The following Monday, Harris returned to the car wash before it opened, demanded staff open the safe and then shot the manager, his assistant, a cashier and three more employees who showed up later.

When another worker arrived, he called 911 and Harris was arrested the next day. Evidence showed Harris had used money taken from the safe to buy new clothes, checked into a motel and asked a friend to buy him some gold jewelry.

“I remember just the vicious nature of the offense and the fact it was very well thought out and conceived by Robert Harris. Guilt is just crystal clear,” Greg Davis, former Dallas County assistant district attorney and lead prosecutor in the Harris case, told the Associated Press. Davis did not return calls Thursday.

Prosecutors tried Harris for two of the killings: Agustin Villasenor, 36, the assistant manager, and cashier Rhoda Wheeler, 46. Harris was charged but not tried for killing Villasenor’s brother, Benjamin, 32, an employee; Dennis Lee, 48, the car wash manager and Roberto Jimenez Jr., 15, another employee.

The day after Harris confessed, he led police to the remains of a missing Dallas-area woman, Sandra Scott, 37, in a local field. Records show Harris was charged but never tried for capital murder in Scott’s death.

Harris declined to speak with reporters this week. A few weeks ago he initially agreed to meet a television reporter at a prison visiting area, then changed his mind at the advising of Brandt, his attorney, who said she had not been notified about the interview.

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