Born to Lose (55 page)

The defense's attempt to show another video of TV coverage surrounding Peterson's death encountered a glitch, however: the video had picture but no sound. Ralph Cappy of the Public Defenders Office said if the defendants agreed, Judge Lewis could view the tape in private when the right projector was found. Hoss objected, saying, “No, I want to hear everything.” Putting on like a spoiled child, Delker yelled, “I wanna see the movies!” then leaped from his chair and struck Cappy across the face, knocking him backward. As six deputies grabbed Delker, Hoss rose from his chair but was quickly pinned down by others, all this with his sister Betty screaming, “He's done nothing! Don't hurt him!” Order was restored with handcuffs and leg irons.

At the end of it all, Judge Lewis denied the venue motion. He also clamped a gag rule on the public defenders, forbidding any talk of the case outside the courtroom.

During the first days of June, a jury of seven men and five women was seated, to be sequestered in the landmark William Penn Hotel. “At voir dire,” said Zimmerman, “it was a big issue for me that none of the jurors knew of the Peugeots. I made damn sure of it.”

It later made for interesting conversation when a prospective juror was heard to mutter something about “fingering” Hoss in the past. Then he was recognized by Sammy Strauss, the presiding judge in the Zanella trial, as the man who had notified the FBI after Hoss called Jodine's sister from Jackson, Minnesota, during the nationwide manhunt after Zanella's death.
The guy—Walter “Pookie” Penn—easily succeeded where most others fail. He got out of jury duty.

A month before the Peterson trial, Hoss was brought to Pittsburgh on an unrelated matter, to testify for a friend of his over a prison assault. He later wrote to Diane:

They held me in the Co. Jail in the female section. Girl prisoners would crowd around my cell till shooed away by the matron. All the girls told me when they have a baby they're naming it Stanley. Can you dig it?

As the trial began, long lines formed along Grant Street and around the corner. Deputies walked the crowd, saying, “Can't get in, best go home.”

Inside, Hoss looked sharp—brown suit with fashionably wide lapels, beige shirt, and red tie. Although no one could fathom why, he showed every sign of confidence, smiling, shaking a few hands.

“I will prove Stanley Hoss and other inmates trapped Walter Peterson in a room and beat him to death.” So opened DA Jack Hickton. An accomplished thespian before his lawyering days, Hickton's delivery was Shakespearean, the courtroom his theater. Waving his arms, Hickton also favored “using fifty-cent words when nickel ones would do,” noted Zimmerman, who thought the trait could chafe a jury.

“A whodunit it is not,” continued Hickton, “provability aplenty.” To the sobs of Asaline Peterson, Hickton reconstructed the abominable murder, then swung around to point: “That man, Stanley Hoss, is killer certain.”

Holding a losing hand, Zimmerman attacked, calling Hickton's account “a fable,” and asking the jury to withhold judgment until all the evidence had been heard.

“What I saw, I could only hope the jury saw,” recalled Zimmerman. “There's the prosecution over there at a big table: Hickton, John Tighe, Bob Eberhart, Trooper ‘Bull' Manning, another cop, another lawyer—six or seven of them. Then there's me and Stanley at our small table.” With little else going for him, Zimmerman set aside facts—any matters of guilt or innocence—to introduce “perception.” “In certain ways I'd suggest to the jury how unfair it all was. See me, David. See the prosecution, Goliath. Even in sports, you know, people like the scrappy underdog, so I wanted the jury to see me like this: ‘Root for me, the underdog.'”

With the defense relying solely on this feeble stratagem, it looked grim for Zimmerman and his odious client, who, nerves finally jangling, steadily drummed his knee against the defense table. Evidence was displayed, early witnesses spoke. In all solemnity Hickton reviewed the autopsy: “Every bone in the captain's head, jaw, and face was broken…. His hands, body,
throat, and arms were sliced open by razors …” This unthinkable image brought tears to several in the room. Peterson's widow, Asaline, sitting in the front row, murmured, “Oh my Lord, have mercy on him.”

Zimmerman groped to say something, anything to get through the moment. Facing the jury, he said, “Yes, lamentable facts will be brought out, but in prison there is a separate society with its own customs and mores”— said as though the situation could now be understood.

After opening statements, round one of the trial closed with Zimmerman bruised and Hickton without a scratch. The following morning, Tuesday, June 6, 1974, the prosecution rolled out its case in earnest.

To Hickton, Hoss's guilt was crystalline, so the goal was to secure a conviction for murder in the first degree by showing premeditation.

When Robert McGrogan spoke too softly, Hickton asked him to keep his voice up. Knowing that on cross-examination Zimmerman would reveal the star witness for what he was, Hickton got the messy details out of the way. See, jury? We hide nothing. Pulling no punches, Hickton stated, “Mr. McGrogan, you in fact have been convicted of murder, have you not?” Appearing reserved but forthcoming McGrogan answered, “That is true.”

Q. For your testimony you've not been offered personal benefit? Any promise of leniency?

A. No.

Q. Tell us why you are on the stand today.

A. Mr. Peterson never done me harm. I felt sort of sad when he got killed. Wasn't right.

Q. Do you come here at risk?

A. I think so.

Q. Are you afraid of Stanley Hoss?

A. Yeah.

Q. But he is in a separate prison, away from you.

A. He has friends.

Q. All right. The early afternoon of December 10 …

Hickton spent considerable time eliciting details of the hour prior to the assault. McGrogan said that over the preceding year, he'd been “okay with Stan and his crowd, but I wasn't part of 'em. Kept my distance. But down the Home Block we was the only white guys so, you know, you stick together.”

McGrogan then testified that on the day in question, he was told for the first time by Delker of the plan to kill Peterson. During questioning, Hickton
made sure to emphasize words he wanted to sink into the jury's collective head:
plan, early knowledge
. “I just knew—live in prison long enough, you can tell—I just knew they weren't shittin' me.” McGrogan brought his hand to his mouth, then apologized. “Sorry. I'll watch my language.”

McGrogan then went on to explain his position in the Home Block's basement that day. He explained that he hadn't committed himself when Delker asked if he “wanted in,” and then added, “but you have to understand who's askin'. It ain't always so easy to decline. Then they started gettin' ready.”
Preparing
.

“Who, Mr. McGrogan?”

“Hoss, Delker, Butler. One did this, the other did that, like they knew what had to be done.”
Assignments
.

Q. Did you participate?

A. No. They asked me. I said no. Maybe it was enough for them I wouldn't interfere.

Q. Captain Peterson was upstairs, safe and sound …

A. They was cookin' things up, stories, to get him down. When I heard he was on the way down, I didn't know what to do. I saw the razors, Hoss holdin' a garrote.
Lure. Make arrangements
.

When murder is planned, two considerations usually predominate in a criminal's mind: Kill, and get away with it. Contemplating a man like Hoss, therefore, who'd kill with no hope or design of eluding the consequences, was chilling

Patiently led by Hickton over the next hour, McGrogan related the details of the murder. The violence overwhelmed but Sheriff Gene Coon remembered one moment in particular that got to everybody: “when Peterson called out to his fellow officer, ‘Help, please help, Reilly. Help me.' He knew no help could come in time. He knew his fate.”

McGrogan struggled to the finish. “When Mr. Peterson was dead, or looked it, after more stompin', spittin' on 'im, I think it was Delker who urinated down the man's throat.

“When the guards finally got in, we was took to the little yard. Got stripped. Then someone yelled, ‘Look what they did to Pete!' then all I remember is seein' stars and stripes.”

The government's first witness had plainly stated that Stanley Hoss, with two others, had cold-bloodedly, inexpiably slain Walter Peterson.

On cross-examination for the defense, there was little for Zimmerman
to do but snip at McGrogan's credibility. Certainly the inmate's appearance told against him, as he stood there timidly in an ill-fitting, out-of-date sports coat kept on hand by prisons for just such court appearances (Hoss's spiffy get-up was a gift from Betty). “When a jury sees a witness, they know nothing about him,” advised Zimmerman, “whether he's truth teller or liar. If you can establish by some independent fact that he's shaded the truth or lied, you can argue to the jury, ‘Look, the only thing we know now about this guy is he's a liar. How can you possibly believe anything he says when you know he's a liar?' I tried to characterize McGrogan like this.”

No novice to a courtroom, McGrogan, in his account of the dreadful deeds of December 10, may have been the most truthful he'd ever been on the stand. In higher moral territory for once, McGrogan was now in the novel position of being treated as hostile by the defense.

Zeroing in, Zimmerman asked baldly, “How long will you be in prison?” McGrogan thought for a moment with his eyes closed. “I could be in till 2003, I think.”

Zimmerman countered, “Well, you
could
, but that's if you maxed out, but it's as likely you could be released ten or fifteen years earlier, with good behavior and so forth. True?”

A. Maybe true, yeah.

Q. So you'd want to stay on the good side of prison authority?

A. You could say that.

Q. Like by your testimony in this trial?

A. No. I ain't been offered nothin'.

Q. But surely you'd like authorities to take note?

A. Well, maybe I'd like the parole board to know.

Q. I see. Now, you confirmed through the DA this morning your substantial criminal record, and that you're a convicted murderer. But that's not the half of it, is it? In fact, you are a
twice-
convicted murderer. That so, Mr. McGrogan?

A. Yes, but one was a long time—

“Well then, let's forget about the one, the one a long time ago,” Zimmerman said, cutting him off. “But more recently, uh, your
second
murder … let's see here—

Hickton rose to object but Judge Lewis said, “He's your witness, and subject to cross. I'll allow further details.”

Reading from a page in his hand, Zimmerman said, “I see here, Mr.
McGrogan, that … excuse me, just to clarify, this concerns your
second
murder, it's my understanding you, in prison, sold your homosexual lover to a Robert Gaines for two hundred packs of cigarettes. You then reneged on the deal, so Gaines raped your lover. In a fit of jealousy you in turn stabbed Mr. Gaines to death. Is this a fair assessment?” McGrogan had to be prompted before answering yes.

Q. So you agreed with the verdict in that case?

A. I guess so.

Q. But you pled not guilty. Was that a lie? (Wary, confused, McGrogan's head started to spin.)

A. No. Well, yeah, but everyone I know pleads—

Q. Well, it's always good to tell the truth, Mr. McGrogan. Let us move on.

Cleverly done, thought Hickton.

“After court that day,” Zimmerman recalled later, “I stopped at Bo Brummel's for a drink. Some days earlier I'd read that a man in Australia was acquitted of murder because he had an extra Y chromosome. Just so happened I'm walking to my car, with a few beers in me, and I bump into Hickton and Tighe. They're like, ‘Hey, besides ripping our witness, have you figured out a good defense yet?' I said, ‘Yep, Hoss has an extra Y chromosome. We're going to prove a mental defect.' This was a joke and I forgot all about it. But the following Monday we're in Lewis's chambers and Hickton says to me, ‘Hey, we got you zipped on that Y chromosome crap.' Turns out they spent the entire weekend contacting experts over the entire country. Because I'd forgotten about the whole thing, I said, ‘What the shit you guys on about? I was just kidding you.' Judge Lewis loved this. He had this bald head and when he laughed hard it would turn bright red, and he said, laughing, ‘Ha, he got you good. You've been underestimating him all along.'”

Jack Hickton had exacted all the Hoss-damning information he could from McGrogan, but the following day Zimmerman continued his attack on the increasingly nervous witness.

Q. You knew as soon as Captain Peterson walked through that basement door, he'd be killed?

A. That was the plan. [Pause.]
Their
plan.

Q. Officer Reilly was at the end of the corridor locked in that cage structure. Why didn't you shout the alarm, do something?

A. I tried.

Q. How so?

A. I tried to signal Reilly with my eyes. I tried to make my eyes look funny, like there was a worry or question in 'em, or somethin'. I guess he didn't understand. I was scared to move. They'd get to me first … If I was only fifteen years younger.

Q. Spare us, Mr. McGrogan. You're pretty handy with a shiv yourself, and I'm told you're a fair handball player behind the wall.

Hickton rose. “Was that a question?” This caused Judge Lewis to glower at Zimmerman, and chastise, “That's quite enough, counselor.”

After raising his hands in a sign of surrender, Zimmerman shuffled a few papers, took a sip of water, then resumed along the very same lines.

“You said you expected a visit, hoped it would come before the attack. And leave the captain to his fate, would you?”