Born to Lose (43 page)

Hearing of the alarming credentials of Hoss's “witnesses,” and smelling a rat, Don Mason huddled with Judge Getty. The two concluded Hoss was obviously requesting a trial to effect an escape. Mason and Getty also considered their ancient brick jail, its twelve cells usually host to the town drunks and some minor-league thieves, and concluded that to bring from Pennsylvania three dangerous men, escape artists all, would be, to say the least, imprudent. Mason and Getty agreed on a delay, at least until Hoss's appeal of his Pennsylvania death sentence had been finally litigated. Ironically then, it was Hoss himself who handed Mason “good cause” to file for a continuance.

Good cause or not, Hoss's defense counsel objected to any continuance, so the issue was to be decided just into the new year by Judge Getty.

Judge Getty sat, biding his time, within Cumberland's fourth courthouse. A tavern had served as the first courthouse in the late 1700s; the second had been built across the street, with a small jail behind it; and the third, built somewhat larger, had burned down years later. The fourth courthouse—still standing and still in use—had opened for business on Washington Street in 1904. It is a handsome building, three stories of red brick, with a steep roof and prettily gabled with gargoyles peering down from on high.

Getty had been Don Mason's predecessor as state's attorney before becoming a circuit court judge, and the intricacies of the Peugeot case were now before him. In the early afternoon of January 5, 1971, the 6 foot 5 inch Getty eased himself into his high-backed leather chair and asked Don Mason, as filer for the continuance, to go first. “The state is asking for a continuance on two bases,” explained Mason. “One, is the Interstate Detainer Act, under which Mr. Hoss has requested a speedy trial, applicable, since he is under a death sentence? Secondly, if the court should decide it is applicable, then we feel the Peugeot case here should be continued until Pennsylvania's case is finished, because if his death penalty is upheld it would be moot to have any trials here.” Mason's argument clearly ran against the strong public sentiment to see Hoss tried for his unblinking terrors.

Expanding on the first of his two reasons, Mason argued that the purpose of the Interstate Detainer Act was to enable prisoners to obtain a speedy trial so not to obstruct programs and rehabilitation. “But the state believes,” Mason explained, that “one who is under the death sentence doesn't fit the definition of one who is serving a sentence. With a death sentence, there is no concern for prisoner rehabilitation. Lastly, there is no ‘Term of Imprisonment,' here, as a death sentence is not a term of imprisonment.”

Speaking for the defense, Louis Fatkin partially conceded Mason's point about rehabilitation but countered, “It doesn't matter because, in all criminal prosecutions, every man has a right to a speedy trial. Our client resists postponement. The act is an important guarantee to prevent oppressive incarceration prior to trial.”

Fatkin's partner, John Robb, now jumped in. “The Pennsylvania case may get reversed. Nobody knows. Our client submitted three times for a speedy trial. Though under death, Mr. Hoss is currently serving ten to twenty years on another charge, rape, I believe. We believe there is no necessity for any postponement.” Then Robb said something that played into Mason's hands: “It is not inconceivable that the death sentence may be set aside in Pennsylvania, but assuming that to be so, then I think Mr. Hoss has the right to a speedy trial.”

Was this a blunder? If taken at Robb's word, why should not Getty order a continuance, with the case to resume if or when Hoss's death penalty was overturned?

Mason had the last word. “As we've all agreed, we have before us a novel question under the act. There have been no previous cases on this subject that we could find, but we think it only reasonable to ask for a continuance until Mr. Hoss's Pennsylvania death sentence has been adjudicated.”

“Thank you kindly, gentlemen, for your able discussion of the issues,” said Judge Getty. “I'll study the statutes, then render a decision as soon as I have opportunity to do so.”

. . .

As Hoss waited to hear the result of his stratagem, he occupied some of his time writing letters.

Dear Diane,

I'm putting more weight on. I stick to my 1,000 pushups a day to pass the time. I never thought I'd see the day, but I stopped drinking coffee. What I was getting was like dish water. I don't know what happened in Maryland. The 11th of January came and went and I haven't heard anything.
Diane, I know some time this month is your birthday. I know it's near Washington's Birthday. Can you tell me?

Are you reading about Lubresky pinning the shit on me?

Without the man he'd hoped to be the star witness in his behalf, Tom Lubresky went on trial for the workhouse escape. After several attempts by his attorney, Wendell Freeland, to delay prosecution, Lubresky was called to answer on January 13, 1971. Lubresky had believed all along that his buddy Stanley would lie for him, but Hoss told officials he did not want to testify as he might incriminate himself. So Lubresky proceeded to lie on his own. The thirty-year-old's blue pinstripe suit did little to cultivate respectability. He looked like a career ditch digger at a funeral.

In addition to presiding at Hoss's trial for Zanella's murder, Samuel Strauss had been the judge who had sentenced Lubresky to the prison term he was serving when he escaped with Hoss. Now Strauss watched the jurors listen to Assistant District Attorney Michael Fisher introduce workhouse witnesses to explain how Hoss and Lubresky had pulled off their escape: the skylight smashed, the iron bars sawed and bent. Fisher avoided using Hoss's name for fear of improperly influencing the jury, only to watch Lubresky's own attorney, Wendell Freeland, admit that Hoss had been Lubresky's fellow escapee. On the stand, Lubresky described first meeting Hoss while lifting weights in the workhouse yard. Lubresky's next words made clear why Freeland wanted Hoss's name linked to his client's: “Stanley made me! On that night,” stuttered an aggrieved Lubresky, “Stanley called me to his cell an' pulled a gun, said, ‘I'm escapin' an' you're comin' with me.' He held me at gunpoint an' even hit me in the head, then took me straight to that skylight. I guess he picked me 'cause I was strong an' tall enough to do what he wanted.”

“You're at gunpoint by the skylight,” said Freeland. “What then?”

“Stanley had these sheets an' made me tie 'em into a rope. He made me climb down first to see if they'd hold. I went down scared, but when Stanley was on his way down I ran to the riverbank. He yelled at me, ‘I'll get you, I'll kill you.'”

Lubresky went on to claim that an unidentified friend had driven him to Indiana, Pennsylvania, where he hid out with an elderly woman, and that he'd wanted to give himself up—but only to the one person he trusted, a cousin of his who was a policeman in New Jersey. “The old woman gave me money to get to New Jersey,” explained Lubresky. “I was in a bus station in New York City when I called my wife. She told me Stan killed a cop
and a manhunt was goin' on. I was too afraid to return, an' went to Boston an' worked as a carpenter for a while before goin' to California. I couldn't stand the pressure no more. That's why I shot up the bar in Burbank, so's to get arrested.” Freeland thought Lubresky's performance was good. All that was needed was Kleenex so his woebegone client could dab his eyes.

The jury members, however, were unswayed by the theater in the courtroom. After an untaxing deliberation, they found Lubresky guilty of prison breach. Freeland told Strauss he would appeal, but if that failed, his client faced ten years in prison.

. . .

Meanwhile, back in Maryland, Judge Getty had not yet ruled on the continuance, so on January 21, 1971, just days after the 180-day speedy trial period expired on January 18, 1971, Hoss's attorneys filed a motion for a dismissal of the kidnapping charges. Stanley
wrote to Diane, “I got a shot. Society has rules. I'm playing by them.”

Then, joyous news for Hoss.

I received an order from the Attorney General of Penn'a. the other day. It said all men now on death row are to be taken out of solitary confinement and returned to general prison population. Next month it'll be a year in solitary. It's been pure hell on me.

Governor Milton Shapp agreed, for it was by his direction that Pennsylvania's condemned were to be removed from death row. For the time, capital punishment remained on the books, but all knew Shapp opposed this sanction.

Born Milton Shapiro, Shapp had changed his name in the late thirties to avoid anti-Semitic prejudice. World War II and revelations of the Holocaust influenced Shapp profoundly. When a successful business career granted him financial independence, Shapp entered politics in the Kennedy era. His stature rose in Pennsylvania, and the 1970 elections resulted in a Democratic Party sweep that gave Shapp the governorship. In this influential position, could he not relieve suffering where he found it?

The late sixties had already brought several initiatives at prison reform, which Shapp embraced. Once he won the governorship, his liberal philosophy began to influence the general tenor of state government, and although it was the attorney general who oversaw the Bureau of Corrections, it was Shapp's beliefs that trickled down through the attorney general's office to Hoss and his kind. “On Sunday [February 21, 1971],” Hoss wrote to Diane, “I was taken off death row two days ago and put in population with other guys. I saw a movie for the first time and can do so many things. Today I lifted weights from 5 to 9.”

By the end of the month, Hoss was working in the tag shop making license plates, the best-paying job in the prison. His workday ran from 8:00 A.M. To 3:30 P.M., but he often worked overtime till 10:00 P.M. Sometimes it was close to midnight by the time he showered.

I really like it when I can be out like this. It's hard to believe how things are changing in here. I heard that in April we'll be able to buy TV sets to keep in our cells. I was asked to lift weights for the team.

A few days after Hoss's 28th birthday, he wrote to Diane to say it would be best for them to forget one another. “I don't know how to say goodbye but it's the only way you'll be free of the Hoss name.”

But Diane was not freed, nor was the public.

On March 24, a couple months after Hoss's defense counsel submitted its motion for a dismissal of the Peugeot charges, Judge Getty responded. He wrote that Hoss's defense had not been in any way prejudiced by a slight expansion of the rule, under the Interstate Detainer Act, mandating that a trial be scheduled within 180 days of a prisoner's request for a trial, Getty noted that since Hoss was under sentence of death in Pennsylvania, he wasn't going anywhere. Getty well knew that while the 180-day rule was firm, it was clay, not stone, and was malleable enough to allow a delay for good cause: an auto accident incapacitating the prosecutor, the illness of a defense attorney, pertinent developments … such unforeseen complications happen every day. And hadn't Hoss paradoxically engineered his own delay by his demand for bogus witnesses? Still, referencing sixth amendment influence, Getty ruled—to Mason's surprise—that Hoss
was
entitled to a speedy trial, although not to an immediate one. Getty denied the motion to dismiss the charges but ruled that the case was to “proceed within a reasonable time.” In Getty's mind, this was, in effect, issuing a continuance. As a consequence, a new trial date for the Peugeot case was set for the month of May, two months hence.

At the same time, back in Pittsburgh, the papers reported that Hoss's Pennsylvania attorneys, Snyder and Baxter, had argued before the state supreme court that Hoss's cop-killing conviction be overturned.

No contact with Diane was apparently too much for Stanley. After five weeks, he wrote again. “Did you see on TV about your famous husband?
One day about my trial in Maryland and the next day about a retrial here. How about Rich Zurka? Now he knows what it is like to be in jail.”

For Hoss's partner in rape to draw a jail term, Kathy Defino had gathered her remaining strength to go to court again, and again Judge Strauss was on the bench. Zurka was tried as an accessory before and after the rape. It came out that the date of the rape was also Zurka's birthday and that Hoss had joked that Kathy was his present. Kathy said on the stand that while Hoss assaulted her, Zurka hid the auto. When Zurka returned he'd made advances but had refrained from assaulting her after she told him she was sick. Zurka was convicted and in April was sentenced to a term of 11½ to 23 months. Kathy hoped her ordeal was now over.

On the exact day Zurka learned his fate, Hoss's defense counsel in Maryland, not to be outdone by the Pittsburgh attorneys' fervor to save Stanley from perceived injustices, fought Judge Getty's refusal to dismiss all charges in the Peugeot case. Their motion to the Court of Special Appeals necessitated that Hoss's May trial date be cancelled pending outcome of the appeal.

Hoss's prison day was busy, but he still carved out time to hate. Referring to a man Hoss felt had slighted him in some way, he wrote Diane, “I'll tell you, Diane, if I ever get out again the first thing I'm going to do is kill that punk and all his kids. I dream about how they look when I shoot them in the face.”

Aside from concerns about Stanley on the psych front—visits with a psychiatrist were routine for inmates in long-term isolation—prison authorities were making other efforts on his behalf. The dental department made him a three-tooth upper plate. Further, since Stanley had always felt his ears were too large, by midsummer he found himself in the prison hospital, getting his ears reduced in size at taxpayer expense. “You should see me now,” he wrote Diane. “My face and head is all wrapped up like a mummy. I will say they bring in some of the best plastic surgeons there is in Pittsburgh.” He was thrilled with the results once the bandages were removed, writing to Diane, “Everything turned out beautiful. I'm going to get my whole face done.”