The state Supreme Court on Monday upheld the death sentence returned against a man convicted of murdering an Oakland woman to prevent her from identifying him as a rapist.
The court, by a vote of 6 to 1, affirmed the death penalty for Harvey Lee Heishman III of San Leandro, now 39, for the November, 1980, murder of Nancy Lugassy, a 28-year-old legal secretary he had been accused of raping.
The justices acknowledged that the trial judge had failed to state his reasons for upholding the jury's verdict of death, as required by law. Ordinarily, they said, they would send the case back for a new hearing "out of an abundance of caution" so that those reasons could be stated on the record.
But, the trial judge, Alameda Superior Court Judge Harold Hove, died in 1984, and the overwhelming evidence against Heishman made it highly unlikely that the judge's procedural error could have affected the outcome, the court said. Thus, the majority concluded, further proceedings were not required and the sentence would be upheld.
Justice Marcus M. Kaufman, writing for the court, took note of the defendant's previous convictions for rape and other violent crimes and the grave nature of the case before the justices.
No evidence offered in Heishman's favor could outweigh his "history of repeated, callous brutality toward women, culminating in the carefully planned, cowardly murder of a victim who sought to bring him to justice," Kaufman wrote.
In a lone dissent, Justice Stanley Mosk, while supporting Heishman's conviction, said the court should not have taken over the late judge's role of reviewing the jury's verdict. Instead, he said, the justices should reduce Heishman's sentence to life without parole or order a new penalty trial.
The law gives "the trial judge alone" the duty to decide whether a jury verdict of death should be modified, Mosk said, "and certainly not to an appellate judge or an appellate court."
"We cannot undertake the kind of review the Constitution requires when a man's life is at stake if all we can look to in the record is a void," Mosk said.
Heishman's attorney, Geoffrey Rotwein of San Francisco, said he would make the court's refusal to order a new penalty trial the focal point of a petition for rehearing before the justices and if that fails, an appeal to the U.S. Supreme Court.
"I'm really very disappointed and surprised the way the court majority treated this issue," Rotwein said. "They said that if the judge were alive, they'd send it back for re-sentencing, but since he's not, they'll do it themselves."
State Deputy Atty. Gen. Dane R. Gillette said that because the case was tried soon after a new capital punishment law had taken effect, it was possible that the judge simply did not realize he was required to state his reasons for upholding the jury's verdict.
Monday's ruling was a correct one, Gillette said, adding: "Certainly, this was a case where the death penalty was well deserved."
Kaufman's opinion was joined by Chief Justice Malcolm M. Lucas and Justices Allen E. Broussard, Edward A. Panelli, John A. Arguelles and David N. Eagleson.