Patt Morrison Asks: Donald Heller, death-penalty advocate no more

'Remanded" -- taken into custody. In his career as a New York prosecutor and a federal prosecutor in California, Donald Heller has asked the court to remand guilty defendants countless times. He helped put away Lynette "Squeaky" Fromme, who tried to assassinate President Gerald Ford, and a big-time heroin dealer, a man Heller believed destroyed many lives. At the dealer's sentencing hearing, the prosecutor remarked that were the death penalty an option, he would volunteer to "throw the switch." After that, a law clerk called him "Mad Dog," and the nickname stuck. Heller left the U.S. attorney's office in 1977 -- the "remanded'' sign was a farewell gift -- but he didn't give up his law-and-order cred. He's the author of the Briggs initiative, a 1978 ballot measure (named for its sponsor, state Sen. John Briggs) that broadly expanded the kinds of murders eligible for capital punishment. It helped make California's the most populous and expensive death row in the nation. But for more than a decade, Heller has been saying it's time to stop. Now a defense attorney with a mostly white-collar clientele, he testified recently at the state Capitol about the need to undo his legal handiwork, which has changed so many lives -- and ended some.

How did you go from writing Proposition 7, the Briggs initiative, which broadly expanded the categories of death-eligible crimes, to opposing the California death penalty?

Multiple things. When I wrote it, I believed in capital punishment. I thought I could write a comprehensive statutory scheme that would be effective and fair, and I did my job. My wife was very opposed to capital punishment, so it was always a big topic of conversation. When I wrote it, I had only been married a little over a year; her goal was to try to change my views.

And eventually she did?

I started thinking of some things that I never really thought about when I wrote it. One was the enormous toll it took on people involved. The human element -- not [so much] the defendants but the people in the system. I was in a restaurant bar in Sacramento celebrating a settlement. At the bar was a lawyer I [knew]; his head was down on the bar and he was completely drunk. I said, "Are you OK?" He said: "They just sentenced my client to death, and I really like him and it's just a bad decision." Eventually he got out of criminal practice. I [also] started noticing the toll it took on judges pronouncing a sentence of death.

I have a high regard for prosecutors -- I could count on one hand the prosecutors I felt were unethical -- but I saw the aggressiveness to get death. It became, with some, a game. I would see the quality of the court-appointed lawyers. Some were good, some mediocre, some less than mediocre. Defendants didn't get what they were entitled to, and that's why you [saw] quite a few reversals of verdicts in the Rose Bird court. That incensed the public. What the death penalty brought about [was] bad decisions and bad law.

When I testified in front of the Legislature [on July 7], I was in front of a committee. There was a dialogue. In the initiative process, there was no input from anyone else but me. There was no fiscal analysis, which frankly I never really thought about. While the initiative was supported overwhelmingly by voters, in retrospect it was people voting for capital punishment without reading any of the details of the multiple sections of the initiative.

Were you, a la Capt. Renault, shocked, shocked to realize Californians didn't read the initiatives?

I wasn't shocked, but I realized you could fit anything in there. Voters will vote for the lead line, not knowing what [else] is in it.

As a kid, one of my favorite movies was "Mr. Smith Goes to Washington" -- no dirty words, no sex, but a great movie. I always thought [that is] how a government should function. Of course, it had corruption, but I know a lot about corruption because I prosecuted corruption cases and defended corruption cases. But there's a corruption of the process: People aren't doing what they are supposed to be doing -- having a thoughtful debate and then reaching a compromise decision for the public good.

Your mind was changing within a few years of the Proposition 7 vote. What was the tipping point?

It took the Tommy Thompson execution [in 1998] for me to become very vocal. It was an example of a clear abuse of the death penalty law.

Thompson was convicted of special- circumstance murder and rape under the Briggs initiative. There were two defendants. Thompson was tried first. He was alleged to be the actual rapist-murderer. He was convicted of murder and sentenced to death in large measure due to the testimony of a professional jailhouse snitch.

In the co-defendant's trial, the prosecutor switched theories. It was no longer Thompson as the rapist-murderer but the accomplice. While you can aid and abet to qualify for the death penalty, an accomplice must have the intent to kill to be death penalty eligible. The co-defendant accomplice was convicted of second-degree murder, but the prosecutor made no effort to notify Thompson's trial judge that evidence now showed that Thompson was not the actual murderer. The trial judge has the authority to rectify an erroneous judgment.

This issue was raised on habeas corpus, and ultimately the U.S. Supreme Court upheld the conviction on a technicality.

I was contacted by Thompson's appellate lawyer about testifying at a clemency hearing. I laid out in detail the reasons that I felt this was wrong, that it violated the letter and spirit of the initiative, the fundamental law, the prosecutor's obligation, and was an injustice. Gov. Wilson refused to commute his sentence. In 1998, Thompson was executed. I've been a vocal advocate in favor of abolition ever since.

The way I look at it, what I created can and may already have resulted in the death of an innocent person. And that's pretty heavy.

A number of arguments are now marshaled against capital punishment: DNA evidence, the racial inequity question, the lengthy process, cost. If all of those concerns were remedied, could you then support capital punishment?

My view is that as a civilized society, we've reached the point where capital punishment should be completely abolished. And we are a civilized country, with some idiosyncrasies, capital punishment being one.