Saving the Monsters

by longformphilly


Michael Matza | The Philadelphia Inquirer | October 1997

Inside a modern 10th-floor courtroom at the Philadelphia Criminal Justice Center, Gary Heidnik is a dead man walking.

Sunlight streams through a picture window, highlighting streaks of gray in his grizzled black beard. His slate-red prison jumpsuit, stamped “AS1398” above his heart, hangs from a gaunt frame. White slip-on sneakers shuffle silently across a gray and red pin-dot carpet.

He is, certifiably, a damned monster, convicted of murder and condemned to die for enslaving and torturing two women to death 10 years ago. Shunned by a society whose only use for him now is to fill a coffin, he has spent the last decade on death row, locked in a cell 23 hours a day, transported in handcuffs, waist chain and leg irons whenever he is moved.

So detestable is the thought of touching him that the armed deputies who escort him wear latex gloves.

But attorney Billy Nolas, a razor-cut bantam in a crisp blue suit, reaches out for his hand. And now, Monday, April 14 – 24 hours before one of America’s most notorious killers is scheduled for death by lethal injection – Nolas and his law partner, Robert Dunham, embrace the chance to save a life.

Heidnik opposes the effort. What in the world is going on here?

In Pennsylvania, where 210 prisoners occupy the nation’s fourth largest death row, the work of Nolas and Dunham’s nonprofit Center for Legal Education, Advocacy & Defense Assistance, which they call LEADA, is denounced by their opponents as an abomination of justice.

Representing condemnees on the eves of their executions, these capital-case specialists seek another bite of the apple of justice for convicts who, critics charge, sit on their appellate rights until the governor signs a death warrant, then rise up to abuse the system with a barrage of last-minute appeals.

Yet defenders of these death-row lawyers say their work is vital. People sentenced to death have rarely had a clean bite of the apple at trial, they say, citing the fact that 40 percent of capital cases in America are sent back to the lower courts for resentencing or retrial after federal review. And whether the death penalty is fairly imposed is an entirely separate issue from whether there should be a death penalty at all.

Speaking to be heard in the four rows of mahogany benches that hold Heidnik’s pony-tailed, 19-year-old daughter, Maxine; 10-year-old son, Jesse; and spectators who support and oppose the death penalty, Common Pleas Judge John J. Poserina Jr., a gravel-voiced jurist with a shock of white hair, sets the rules: The unusual post-conviction hearing is not a retrial. It has a limited purpose, to assess Heidnik’s competency to waive all appeals, as he has since the Pennsylvania Supreme Court affirmed his conviction in 1989.

Arguing that Heidnik’s execution should be halted, Nolas appears supremely relaxed. While it may appear that he and his partner stop at nothing to stop executions, they say that’s only because they take seriously their duty to examine capital cases from every angle. If relentless appeals force society to confront the thornier moral questions about state-sanctioned killing, so be it, they say, but they are driven by the law, not a cause.

“They have a deeper commitment to the concept of justice and the rule of law than most attorneys,” says Andre Dennis, a former chancellor of the Philadelphia Bar Association who is a founding member of LEADA’s board. “Their work is sorely needed. “

In clear, patient tones Nolas tells the court that Heidnik is “mentally ill with paranoid schizophrenia” and unable to make rational decisions about his legal rights. Federal law prohibits executing anyone who is incompetent to understand the finality of capital punishment and the reason it is being imposed.

Charles Gallagher, the square-built assistant district attorney who prosecuted Heidnik, shakes his head and purses his lips. He sees where Nolas’ argument is going. Disgust shimmers over him like heat waves off hot blacktop.

Christopher Diviny, chief of the district attorney’s post-conviction unit, is next to him, bouncing his heel up and down in an angry beat.

Heidnik, hollow-eyed and excited, clutches a Bible whose edges he has scribbled with messages for the FBI and moves quickly to the witness stand. His gait is erratic, his manner fidgety. He could be Seinfeld’s Cosmo Kramer.

“I waited eight years for this,” he says, starting low and building to a bellow. “You people think I’ve committed murders I didn’t commit! “

Yet he testifies that he wants to be executed, because “when you get done executing an innocent man, you won’t be executing any others,” he shouts.

Piling profanity atop non sequiturs, Heidnik has a lot to say. Nolas’ expression is rapt.

Heidnik testifies about “the phony FBI agents” who visited him in prison with badges that could have come “from Toys R Us. ” He talks about “bastards” in the Philadelphia Police Department who arrest people for drug dealing and never turn in the drugs. Professorial, he gives a cogent analysis of how electricity works, then uses it to support his contention that one of the women he was convicted of electrocuting was actually strangled by someone else.

“Them women were down there killing each other,” he insists.

Judge Poserina interjects to Nolas, “This person who you allege is incompetent just gave us a scientific explanation of electricity. . . . It sounds like he knows what he’s talking about. “

Gallagher, seething, looks like he wants to hit Heidnik, whom he calls “the master of manipulation. “

The fight is joined. The testimony continues.

When Nolas, phrasing a question, remarks offhandedly that Heidnik is drooling, the prosecutors are on their feet: “Objection, your honor! I didn’t see any drool! ” Spittle will not be used to prove insanity, not while the prosecutors are awake.

The inanity of this effort to protect the hearing record against another appeal settles over the courtroom as the prosecutors sit back down.

The bizarre spectacle continues for three hours. It includes the testimony of court-appointed psychiatrist John O’Brien, who testifies that Heidnik may be strange but not incompetent, and affidavits from military, private-practice and prison psychiatrists, presented by Nolas, to show that Heidnik, 53, has been plainly schizophrenic for 30 years.

Faced with a copy of his death warrant, Heidnik labels it “a fake” because it’s signed by “some guy named Tom Ridge. “

“Who is Tom Ridge? ” Nolas inquires. He gets an emphatic response. “I! don’t! know! ” Heidnik says.

Poserina, unflustered, explains that Ridge is the governor. The warrant is valid.

Nolas pinches the bridge of his nose, pushes back his steel-rimmed glasses, and pitches the next question as an adult would address a child.

“Gary,” he says softly, “do you know what’s going to happen at 10 p.m. tomorrow? “

“If this is real, I’m going to be executed – which is fine with me,” says Heidnik, gripping the warrant that has set in motion a frantic week of legal hell.

The debate about the death penalty in America has centered on whether it deters crime, is racially biased or morally indefensible.

With the national spotlight on such high-profile defendants as child-killer Jesse Timmendequas in New Jersey, Oklahoma City bomber Timothy McVeigh in Colorado, and alleged Unabomber Theodore Kaczynski set for trial next month in California, the focus has shifted to whether the penalty can be effectively administered.

In the 38 states where capital punishment is legal, murderers are routinely sentenced to death. Yet the machinery bogs down on the way to the death chamber, which is why the ranks of death row have grown – from about 2,100 nationally in 1988 to more than 3,000 last year.

In Pennsylvania, two people have been executed in the last 33 years.

Part of the reason for the backlog, Chief Supreme Court Justice William Rehnquist has noted, is the difference between death-row inmates and ordinary prisoners.

“Non-capital defendants, serving criminal sentences in prison, file [appeals] . . . presumably as soon as possible. They have no incentive to delay,” Rehnquist wrote in an opinion in June. “In contrast, capital defendants, facing impending execution, seek to avoid being executed. Their incentive, therefore, is to utilize every means possible to delay the carrying out of their sentence. “

Passage of the federal Anti-Terrorism and Effective Death Penalty Act of 1996, which set a one-year statute of limitation on the filing of federal appeals, was designed to speed up executions.

And where death-row defense clinics once operated in 20 cities, including Philadelphia, Congress has defunded them. LEADA, which was created in 1995, today derives most of its $300,000 yearly budget from foundation grants and private donations.

In February, the American Bar Association called for a moratorium on executions, saying that the death penalty is “a haphazard maze of unfair practices” and that “efforts to forge a fair capital punishment jurisprudence have failed. “

Given the large population of Pennsylvania’s death row, and the rate at which Gov. Ridge has signed death warrants – 92 in 29 months, with more in the pipeline – Pennsylvania “could become one of the nation’s large executioners,” says Richard Dieter, director of the National Death Penalty Information Center, which opposes capital punishment.

Philadelphia is the county of conviction for more than half of the state’s death-row inmates. And because Philadelphia “has a history of underfunded representation [of capital cases] at the trial level,” says Dieter, “the only way mistakes . . . are found is through aggressive appeals. “

If Billy Nolas, as litigation director, is LEADA’s swashbuckling sword, then executive director Robert Dunham is its philosophical heart.

On May 1, two weeks after Heidnik’s hearing in Poserina’s court, Dunham was a featured speaker at a Friends Center panel discussion on the ABA’s proposed moratorium.

In an unadorned meeting room, the bespectacled 39-year-old lawyer who began his career at Schnader Harrison Segal & Lewis, one of Philadelphia’s largest firms, said LEADA’s critics think it is “trying to put something over on the courts. “

They “seem to believe that people who get to death row get there because they deserve to die,” Dunham said.

“But in fact, virtually every study that has ever been done has concluded that the single most persuasive predictor of whether you go to death row or just to jail is not what you did but who your lawyer was.

“I have handled cases where the lawyer who was appointed as the guardian of a defendant’s life is someone who has been out of law school for 15 months, was practicing law for three, and had never handled a homicide in his entire career – a part-time public defender with no relevant experience. And not surprisingly, he presented no relevant evidence, and his client got a death penalty.

“I’ve handled cases in which the appointed lawyer was a divorce lawyer who had never handled a homicide. She had done court-appointed family court matters. And if she did not accept this death case, she was going to lose her livelihood and not be able to continue taking the cases for which she was qualified,” Dunham said.

“What kind of sentence did her client get? I don’t have to tell you. You already know. She got death. “

Dunham said he does not relish going to court for a notorious murderer like Gary Heidnik, but when a client’s life is at stake, it’s his obligation to present the client “not as a monster, but as a person . . . a person who may have done something terrible but still, for some reason that you are able to present, deserves to live.

“Some people say the things [our clients] have done are so terrible that they must die. Well, if you believe in the death penalty, and you believe in justice, you can’t make that statement unless you have absolute assurance that the defendant has had a fair trial. . . .

“Because as soon as we don’t care, then we can start cutting corners. And then it doesn’t matter who the defendant is. Prosecutors who are prone to cheat, judges who are prone to error, jurors who are prone to bias can use all of those same improper excuses to send people to death who are innocent, or . . . maybe committed some offense but don’t deserve to die. If we are not going to be fair . . . then we do not deserve to be able to impose the ultimate sanction. “

Philadelphia deputy district attorney Ron Eisenberg, a slender man with a close-cropped beard, is passionate about the death penalty, too.

“What makes murder so horrible to me is that it affects not just the person but the memory of the person,” says Eisenberg, whose office is working to speed Heidnik’s death.

“When the victim dies, he or she recedes from people’s lives, from people’s thoughts, from people’s memories,” says Eisenberg. “You fight against that if it’s somebody that you care about. But you can’t help having that happen to some degree. Over time, as the years go by, and as the delay tactics succeed, we focus on the person who is left alive. We think about Heidnik as a person, and not about the victims of Heidnik as people. . . .

“In my job there are things that counteract that. You see a lot of really bad, really evil, acts. And a lot of them are not capital murder. You see a lot of horrible things in which people are justly and properly convicted and sentenced to jail for five years or 10 years or even life.

“And then you see some things that are just so much worse than that. That are even beyond all the other horrible things [so] that you feel there has to be some way for us, as a society, to acknowledge the true gravity of what has occurred.

“The law is all about making those distinctions. The justice system is all about assigning those degrees of recognition and culpability to what people do.

“So for me it’s not enough to say, `Hey put ’em all in jail and throw away the key,’ ” says Eisenberg. “That doesn’t account for what some of these people did. For the degree of evil and viciousness in some of these crimes. “

He chained them inside the watery basement of his North Philadelphia rowhouse as if they were his private menagerie. Six women in their 20s, nude or dressed only in tops so he could rape them at will. All vulnerable. All picked up on the streets.

Around their wrists he wrapped muffler clamps, which he cemented shut with Super Glue and attached by chains to the rafters. When he slackened the trusses, it was to spread-eagle his prisoners across a pool table for daily beatings. Music blared day and night to cover their screams. He gouged their eardrums with screwdrivers.

Four months into the ordeal, Josefina Rivera escaped and ran to police.

On March 25, 1987, officers entered the North Marshall Street house. “The stereo was going full volume and the TV in the dining room was at full volume with no picture,” Philadelphia patrolman David Savidge recalled in court testimony. “I went into the basement with a flashlight and observed two females lying on a mattress with a blanket. They were shackled . . . naked from the waist down. We said we were the police, and they started jumping up and down and hugging each other.

“They pointed to the corner, and I observed some bags of dirt over a board. I lifted the board up and a black female who was naked jumped up out of the hole. She was shackled. We uncuffed her. All three girls started hugging each other and saying, `Thank God, we’re saved. ‘ “

Lisa Thomas, Jacqueline Askins and Agnes Adams were brought out into the daylight.

Less lucky were Sandra Lindsay and Deborah Dudley.

Seven weeks before the police raid, on Feb. 7, Lindsay, a 24-year-old mentally retarded woman who worked at the Elwyn Institutes’ facility in West Philadelphia, died after Heidnik hung her by one arm from a wooden beam and stuffed bread into her mouth. Then he butchered her in a bathtub with an electric saw, packaged her limbs in white plastic bags, and put them in his freezer. He cooked her head in an aluminum pot, ground her flesh in a food processor, mixed it with dog food, and fed it to his other captives.

Six weeks later, Heidnik placed Dudley, 23, of North Philadelphia, in a water-filled pit, attached an electrical cord to her chains, plugged it in, and electrocuted her. He dumped her body at Wharton State Forest in Camden County.

Peeling out from behind the high stone walls of Graterford Prison, the motorcade carrying Gary Heidnik to the fluorescent-lit death chamber at Rockview Prison in central Pennsylvania moves quickly under state police guard.

On this morning, Tuesday, April 15, Judge Poserina has ruled that Heidnik is competent to die and that the governor’s death warrant will not be stayed.

Ten years after his conviction, 10 hours before heart-stopping poison and fast-acting barbiturates can be pumped into his veins, he is finally speeding to his appointment with a lethal injection.

In Philadelphia, Dunham and Nolas are moving behind the scenes. In a petition to the Pennsylvania Supreme Court, they claim Heidnik’s waiver of appeals is invalid because he’s irrational. They ask the court to appoint his daughter, Maxine White, as his so-called “next friend” to make legal decisions for him.

At the same time, in federal district court they seek a stay of execution. Their argument: Poserina applied the legal standard concerning competency to face execution, when in fact he should have applied the distinct body of law concerning competency to waive appeals. Federal Judge Franklin S. Van Antwerpen gets the case before 10 o’clock and immediately schedules a series of teleconferences.

Heidnik’s motorcade rolls west across the Susquehanna as the lawyers he only just met, acting without his approval, battle to halt an execution he has never opposed.

For their part, prosecutors oppose any further delay. Even if the two legal standards are distinct, they say, both hinge on the same set of facts regarding Heidnik’s sanity, which lower courts have already ruled on.

Perhaps because death cases encourage caution, Judge Van Antwerpen stays the execution at 2 p.m. and schedules an evidentiary hearing for 7 that night.

Heidnik and the four troopers in gray shirts with black epaulets who are assigned to guard him learn of the delay when a cell phone jangles inside their car. “Turn around,” a state police commander orders.

For his hearing in federal court, Heidnik wears a blue-and-white seersucker jumpsuit. This courtroom is bigger, with more spectators, more media, more technology – a speakerphone to amplify the voice of a psychiatric expert in Pittsburgh who is standing by at home to testify.

Heidnik sits down beside Dunham at the defense table, nattering like a mad hatter. “

“Gary, talk to your lawyers a little more softly,” Van Antwerpen says.

Four hours into the hearing, a marathon Nolas shows no signs of stopping, he is cross-examining John O’Brien, the court-appointed psychiatrist who testified in state court, and again tonight, that Heidnik is competent, “cognitively intact. “

Nolas jousts with O’Brien about the doctor’s Heidnik-interview notes, which Nolas contends are at odds with O’Brien’s report to the court. What actually happened, Nolas wants to know. Unexpectedly, Van Antwerpen grants Nolas the extraordinary latitude to examine the notes on the spot – notes that O’Brien made to himself and that have never been introduced as an exhibit in any proceeding.

Snatching O’Brien’s brown accordion file, Nolas fishes through its pockets, gleaning abbreviations and partial phrases that he uses to frame a series of fastball questions. It’s after midnight when the strafing ceases.

More powerful even than the pounding cross-examination is the common reaction of everyone present after this long night of litigation. Federal marshals rub their eyes. Spectators are nodding. Reporters slump. Van Antwerpen is wasted. The lawyers are dead on their feet.

Seated in a leather chair, no longer making a sound, Heidnik is bone tired.

The monster is exhausted, just like everyone else.

Billy Nolas was born Vasilio Horacio Nolas in Buenos Aires to parents of Greek extraction. He came to the United States when he was 8. His parents, who are furriers, settled in the Corona section of Queens, a blue-collar, Hispanic immigrant neighborhood about 30 minutes by subway from Manhattan.

A graduate of Queens College and Georgetown Law School, he honed his skills on death penalty cases in Florida at the Collateral Capital Representative, a state-sponsored defender agency in Tallahassee.

A colleague there recalls how Nolas would travel the state, hole up in cheap motels, gobble take-out food, and rush to court to present evidence from an inmate’s background that might save his life.

“He’s very bright, with an expertise in an area of the law that very few people have,” says attorney Carlo Obligato, who worked with Nolas at CCR.

Nolas is extremely private, in part because he has received death threats for his work.

While he has spent countless hours with death-row inmates, sometimes right up to their final hours, he will not witness their executions, even when they ask. That is not his job, he insists. He is a lawyer, not a partisan.

His partner, Rob Dunham, was born and raised in Mount Airy. He graduated from the University of Pennsylvania, worked as an intern in the Carter White House, was executive assistant to former State Rep. Bob O’Donnell, and went to Georgetown Law School at 28. An assignment on the death penalty for a law review article was his first exposure to the legal citations that today roll off his tongue.

His grandfather Barrows Dunham was chairman of the philosophy department at Temple University in 1953 when he was called to Washington to testify before the House Un-American Activities Committee. A member of the American Communist Party from 1938 to 1945, the grandfather abhorred what he viewed as a witch hunt. “I don’t want to become a party to a medieval inquisition,” he said, invoking the Fifth Amendment.

When he returned to Philadelphia, his loyalty was questioned, his reputation ruined. Congress cited him for contempt. Despite 16 years of service to Temple, the university’s board accused him of taking the Fifth “to evade his duty. ” It fired him and barred him from campus.

In 1955, a federal district court in Washington overturned his contempt conviction. A year later, the American Association of University Professors censured Temple for firing him without due process. The censure was lifted in 1961. In 1981, in an effort to make amends, Temple appointed him emeritus professor of philosophy, finally enabling him to collect his pension. He died two years ago.

So if there is a principled streak in Robert Dunham, he comes by it naturally. His cluttered office at the edge of Independence Mall, across the street from the first U.S. Supreme Court, prominently displays pictures of his grandfather.

What if someone close to Dunham were brutally murdered? How would he feel? What would he want?

“I’d want to kill the son of a bitch myself,” Dunham says. “But that’s why we have laws . . . to protect society against our baser instincts. “

By 2 p.m. Wednesday, April 16, Judge Van Antwerpen has ruled that the execution can proceed.

But Nolas and Dunham have quickly appealed that ruling, and 24 hours later, on Thursday, April 17, more than 100 spectators are inside the round, wood-paneled courtroom of the U.S. Third Circuit Court of Appeals when a three-judge panel, backed by a bronze eagle and flanked by blue velvet ropes, hears arguments in Heidnik’s case.

Now, fewer than 60 hours before Heidnik’s death warrant is to expire (taking with it the state’s authority to kill him without having to start the warrant process all over again), it is time to play Beat the Clock.

Heidnik isn’t in court this time. He doesn’t have to be.

Nolas is barely into his argument when a judge interrupts him with a query.

Why is somebody opposed to capital punishment, like Heidnik, someone who says he believes that his execution will help end it, necessarily delusional? Judge Edward Becker asks.

“If a mentally healthy person said that, your honor would be correct,” replies Nolas. But Heidnik thinks that his execution will end them all “by magic,” that taking his life will lead to abolition.

Then prosecutor Eisenberg begins and he, too, is interrupted.

“Help me,” says Judge Walter Stapleton, “because I don’t see where either [Poserina or Van Antwerpen] has answered the question. . . . What is the rational basis for a decision that `I want to die? ‘ “

It is 2 a.m. Friday, April 18 – 34 hours to the deadline on the warrant and counting – when the Third Circuit reverses the case and sends it back to Van Antwerpen, who issues a temporary stay later that morning, as instructed by the higher court. “Mr. Heidnik may be crazy,” says Van Antwerpen, “but our legal system is, too. To deal with these issues in the time limits we have been given is intolerable. “

In a petition filed immediately that asks the U.S. Supreme Court to vacate the Third Circuit decision, prosecutor Eisenberg is similarly blunt: “This case typifies much of what is wrong in the capital litigation process,” he writes. “For the last decade, this defendant has consistently maintained his desire not to appeal his death sentence. . . . Nonetheless, parties claiming next-friend status, represented by death-penalty-defense lawyers, [have] sought to block the execution at the eleventh hour. “

At 9 Friday night – 27 hours to deadline – a narrowly divided U.S. Supreme Court overturns the Third Circuit, clearing the way for Heidnik to die.

He is already in Rockview, dressed for death in a white, short-sleeved shirt with Velcro fastenings, beltless brown trousers, white socks and sneakers.

The prison is making plans for a 2 a.m. Saturday execution. In a cell 30 feet from the death chamber, Heidnik eats what he thinks is his last meal: eggs, hash browns, coffee and toast.

But at 10 p.m. Friday, the Pennsylvania Supreme Court halts the execution pending further review of the next-friend issue. That stay is in effect two hours later, at 12:15 a.m. Saturday, when the U.S. Supreme Court refuses to vacate it.

Until the machinery rumbles again, the monster is spared.

Reflecting on the victory, Dunham is sanguine: “The longer you do it, the more astonished you become at how many things are wrong in death penalty cases. . . . The more you see, the less you like. . . . But when I do this, and I win, somebody is alive who might otherwise be dead.”

Writer bio: Michael Matza is an immigration writer for the Philadelphia Inquirer. Since joining the Inquirer in 1987, he has worked in the Metro, Features, National and Foreign news departments. Working for two years on projects about the Philadelphia Police Department, he co-authored two series about police manipulation of crime statistics, and pervasive problems with the city’s Rape Squad. Both were finalists for the Pulitzer Prize for Public Service.