Death Penalty Exhausted Appeals – Part 4

By Michele Hanisee

This is the fourth in a series of articles that focuses on the murderers on California’s death row who have exhausted all appeals. The last impediment to executions is a federal stay that is now being challenged by several elected District Attorneys and victims. Newsom’s blocking the execution of these vicious murderers is in direct violation of the will of California voters, who three times in the past seven years, have made it clear they support the death penalty for the most brutal murders.

Robert Green Fairbank, Jr.

San Mateo County District Attorney Steve Wagstaffe described Robert Fairbank as  evil, and for good reason. In 1989, Robert Fairbank was put on death row for first degree murder with special circumstances for the torture and oral copulation of graduate student Wendy Cheek. There is zero doubt of Fairbank’s guilt. Two days into trial testimony, Fairbank admitted his guilt to the murder, torture and oral copulation of Cheek, denying only the rape, which charge the prosecutor then dropped. Evidence was then presented to the jury to determine the sentence to be imposed. A jury of citizens determined that death was the appropriate punishment for Fairbank’s conduct.

Four days before the murder of Cheek, a San Francisco judge had released Fairbank without bail after his arrest on a rape charge. Fairbank already had prior convictions for second degree burglary, receiving stolen property, battery with serious bodily injury, and felon in possession of a weapon.

As detailed in California Supreme Court records, on December 12, 1985, Cheek told her friend John Adkins that she would attend his party that night. She never showed up. About a week later, Cheek’s mother called Adkins asking for her, because Cheek’s family hadn’t heard from her. Adkins found her car parked near his house.

On December 14, Cheek’s naked body was found near Highway 280 in San Mateo County, underneath car parts that had been placed over her to hide the body. The autopsy revealed that Cheek had a number of blunt injuries to her head and torso consistent with blows from a fist. She had multiple puncture wounds on her head and neck consistent with a Phillips head screwdriver. Other wounds on her body appeared to be made with a barbecue fork. Stab wounds to her neck and back appeared to be from a knife. The fatal stab wounds pierced Cheek’s lung and aorta causing massive bleeding. Cheek had blood under her fingernails, suggesting she had tried to fight off her attacker. After her death, Cheek’s body was doused with gasoline and set on fire.

Phyllis Marie Kitchell Fairbank (Kitchell) lived with Fairbank at the time of the murder. She testified that Fairbank would physically abuse her to the point of needing medical treatment. The same day Cheek’s body was found, Fairbank punched and kicked Kitchell. She called the police and said she had overdosed. She was taken to the hospital, and the next day she told the therapist what actually happened.

When Police showed up at the home Kitchell was on the phone with Fairbank. Fairbank told Kitchell not to allow the police into the apartment, but she had already done so. Kitchell provided the police with physical evidence that tied Fairbank to Cheek’s murder.   In the apartment, police found blood on a wall above the bed, in the living room, and on the back door. They found a large amount of blood on the underside of a mattress. Forensic testing indicated the blood on the carpet and mattress matched to Cheek.

While awaiting trial Fairbank approached a fellow jail inmate and asked about having “a girl named Phyllis” hurt “because she was a snitch.” Fairbank wrote letters saying he wanted Kitchell and her sister beaten to prevent them from testifying against him. Fairbank wrote in another letter that he wanted to have Kitchell’s arms and legs broken. Fairbank personally called Kitchell’s sister and threatened her.

After Fairbank pled guilty to first degree murder and admitted the special circumstances, the jury heard the above evidence as well as evidence presented by the defense in favor of Fairbank. The defense presented evidence that Fairbank grew up in a very nice neighborhood but that his mother drank too much. His mother’s family was very wealthy which caused stress in the family resulting in an altercation between Fairbank’s mother and father in which the mother spit on the father and the father hit the mother, causing her to fall through a glass door. Defendant had behavioral issues growing up and was expelled from two private schools. Even when he behaved badly his mother spoiled him and bought him expensive gifts like a boat. When he was 16, defendant beat his father causing a broken rib. Fairbank was considered the local bad boy and liked to break into the homes of neighbors. A psychologist retained by the defense concluded that Fairbank did not suffer from any mental illness or psychosis, rather that he exhibited “anti-social personality disorder” (which is the generic mental health descriptor of a person who engages in criminal conduct). After hearing all the evidence, a jury sentenced Fairbank to death.

Governor Newsom’s decision to allow Fairbank to live is unconscionable. Not only did Fairbank brutally torture and murder Cheek, he made every effort to obstruct justice through violence and threats of violence against the witnesses. It undermines the validity of the verdict rendered by a jury that heard all the evidence, and it is an insult to Wendy Cheek’s family and friends.

Harvey Heishman

Harvey Heishman was sentenced to death with a special circumstance of killing a witness to prevent testimony, for the murder of 28-year-old Nancy Lugassy. Heishman, who was charged with raping Lugassy, killed her to prevent her from testifying against him in court. Heishman had been incarcerated for rape before. He wasn’t going to let that happen again.

As detailed in California Supreme Court records, on July 22, 1979, Lugassy ran screaming to her neighbor’s and reported that she had been raped. When shown a photographic lineup by police, Lugassy unhesitatingly picked Heishman’s photo. Heishman was arrested and pled not guilty. A preliminary hearing at which Lugassy would testify was scheduled for November 20th. Meanwhile, Heishman was out on bail. On November 1st, Lugassy’s neighbors heard shots and screams. Two neighbors told police they saw a Ford LTD speeding away with its lights off. The police found Lugassy’s body, shot three time, in front of her home. In her purse was a subpoena for the preliminary hearing for the rape case. Because she was not able to testify, the rape charges had to be dropped.

On February 8, 1980, Nancy Gentry gave police information about the murder. Gentry admitted helping to plan Lugassy’s murder after Heishman, who she was dating, asked her if she knew a “hit man.” The Ford LTD that Heishman used the night he murdered Lugassy belonged to Gentry. Another woman, Cheryl Miller, was also involved in the planning.

Gentry, alongside Miller, had driven Heishman to Lugassy’s residence. Gentry posed as a police officer, dressed in a blazer and skirt, and holding a police security check form she had obtained from a Neighborhood Alert Program and a lock. Lugassy let Gentry into her home and then filled out the alert program form, telling Gentry that she had been raped and a hearing was pending. After 15 minutes, Gentry left, intentionally leaving the security form and the lock in Lugassy’s apartment. As they drove off, Heishman told Gentry to lure Lugassy outside by pretending she needed help with her car. While Heishman waited at the driveway, Gentry walked back to Lugassy’s house, picked up the lock, and asked Lugassy to help with her car. As they went through the yard, Gentry saw Heishman standing against a utility shed, but Lugassy did not give any indication she saw Heishman. Gentry and Lugassy got the car started; then Gentry dropped Lugassy off in front of her home and drove away with the lights off. Almost immediately she heard a scream and three shots. She turned the car around, drove back and picked up Heishman who entered the car, removed his watch cap and a false beard, and said, “Let’s get out of here.” They returned to Heishman’s apartment, where he telephoned his father and said, “It’s done.”

Gentry testified at the trial that she saw Heishman twice in the two months following the murder and that he was upset at her for driving her Ford LTD to his apartment. When she phoned him on November 20 to ask how the preliminary hearing on the Lugassy rape charge had gone, he said not to call him because his phone might be tapped. He gave her his “sister’s” number, which Gentry called and as a result learned that the rape charge against Heishman had been dismissed.

During the penalty phase, evidence was introduced of Heishman’s numerous prior rapes. In 1968, in two separate incidents, Heishman raped Melody C. and Patrice S. As part of a plea bargain, Heishman pled guilty to the rape of Patrice S. On July 29, 1969, while out on bail awaiting sentencing for that rape, Heishman attempted to rape Maria M. Heishman served one year in county jail and was released in August of 1970. Heishman’s next rape was committed a mere two months later, in October of 1970. Next, in November of 1970, Heishman committed a rape of one woman and an attempted rape of another. He was caught, convicted and sentenced to prison where he remained until December of 1974. In July of 1975, months after his release from prison, he raped Lori H. He pled guilty to attempted rape and was returned to state prison. He was released in July of 1977. In April of 1979, he raped Tammy. Q. Three months after that he committed the rape of Lugassy. For those who have lost count – that is nine rapes / attempted rapes committed by Heishman prior to the murder of Lugassy. Many were committed while Heishman was out on bail, on probation, or on parole. Incarceration and threat of incarceration clearly had zero deterrent effect on this serial sexual predator.

The defense evidence in mitigation was that at age 17, Heishman had discovered his grandmother who had hanged herself in a closet; that his wife, who had married him while he was in prison for rape, had divorced him; and that he was a model prison inmate and a satisfactory worker. No evidence was presented that Heishman suffered from any sort of mental or emotional disturbance.

This was a deliberate murder to eliminate a witness in a rape case in order to avoid punishment for that rape. There is no doubt that Heishman is an evil person and a brutal killer. He twice victimized Lugassy, first raping her, then murdering her to obstruct justice. Heishman is a relentless sexual predator who will kill witnesses to avoid punishment. It is irresponsible for Newsom to block his punishment.

Read Death Penalty Exhausted Appeals Part 1. To read our other recent articles regarding the death penalty, click these hyperlinks: (1) Newsom Supports Killers, Rapists And Torturers Over Victims And Their Survivors, (2) Governor Newsom’s moratorium on the death penalty, (3) Another Demonstration Of Why The Majority Of Californians Distrust Governmentand (4) DA’s Association Statement on Death Penalty Moratorium.

To read parts 1-3 of our Death Penalty series, please click here.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.

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