Born to Lose (56 page)

McGrogan stammered, “No, I woulda' …

“Well, you never mentioned any altruistic motive.”

“I don't know what that means.”

“It means doing something unselfish, for the good of another.”

“No, I'd 'a' told somebody. I just forgot to say that.”

“An alarming omission, Mr. McGrogan, but let's go on.”

When Hickton was questioning his star witness, McGrogan had come across as a sad, frightened soul who'd courageously come forward to see justice done. The contrast during cross-examination was transformative: frankness to prevarication, selfless to self-serving, noble to ignoble. It was secondary to Zimmerman that such impressions were not precisely accurate. Jury perception was what mattered.

To shore up McGrogan's sagging image, Hickton recalled him to the stand. After answering questions on a few minor points, McGrogan said in parting that he was motivated to appear against Hoss because, “Something died in me when I seen Peterson killed.” A commiserating Hickton cast his eyes downward and gave a sorrowful shake of his head. Touching.

Before stepping down, McGrogan, virtually against his will, allowed his gaze to fall on Stanley Hoss. Now he met the eyes he'd felt boring into him like a burning laser all the hours of his testimony. Hoss's eyes did not show anger but were entertained, amused. This heightened McGrogan's fright. And below the eyes, the mouth … not twisted in wrath but showing the faintest smile, nearly imperceptible, possibly misread, enigmatic. But Mc-Grogan knew the leisurely message Hoss's countenance was conveying: sometime, somewhere. You're a dead man.

The following days of trial produced many more witnesses, twenty in all. The room used was the courthouse's largest, a grand chamber overlooking Ross Street, three stories below. As usual, the name of the accused fetched the crowds and, as usual with Hoss, security was not standard. Bomb scares twice emptied the building.

Officer Patrick Reilly—“Bus”—was as damning a witness as McGrogan. In melancholy tones, Reilly described the point after the attack when his observation post was finally unlocked. “I stopped by Pete. There was a coat over him but I lifted it up and saw a mauled human being, face completely torn apart.”

On cross-examination, Zimmerman had to approach Reilly in a much more gingerly fashion than he'd needed with the jailbird McGrogan.

“Officer Reilly,” he began, “thank you for your appearance today. Let me ask you, prior to the assault, were you aware of any plan to kill Captain Peterson?”

“Of course not, but there must have—”

“Sir, please refrain from conjecture. A simple answer will do. So I ask, were you aware there were calculations among my client and the others, anything afoot?”

“No.”

Zimmerman pointed to a large model of the Home Block set up near the jury. “We see here that your position restricted at least some portion of your view of the entire basement. Correct?”

“Correct.”

“So there were times when you could not see what was going on. True?”

“Yes.”

“Is it also true when you employed the intercom, situated where it was, you were removed from any sight at all into the room?”

“That's right.”

“And throughout the assault, you were on the intercom a lot. Is this correct?”

“Correct.”

“Then we may deduce that much of the time you were essentially blind to the action. True?”

“Just some of the time.”

Having spent the previous day skewering McGrogan, Zimmerman now recalled the convict, employing him as the gold standard of truth to expose inconsistencies between his testimony and Reilly. This was minor stuff, mostly, but Zimmerman wanted their varying versions on record to
demonstrate how the same event can generate conflicting stories. Mindful that the jury would give an officer's word more credence than it accorded the usual noxious exhalations of a scoundrel, Zimmerman nonetheless got in what he wanted, that Reilly did not or could not attest to any premeditation in Peterson's death.

Judge Lewis called for a special Saturday session. For so early in June, the weather was unusually hot, conditions not helped when the air conditioning broke down. By afternoon, the men were reduced to shirtsleeves while the women fanned themselves. Only the judge and Hoss seemed unaffected.

As in the Zanella trial, the appearance of the county's renowned coroner brought a buzz to the courtroom.

“I must contradict the district attorney's remark that every bone in the [victim's] head was broken,” said Dr. Cyril Wecht. “You see, the skull is made up of bones fused together. While fracturing was extensive, it did not extend to every bone.”

Zimmerman was delighted to hear this. He knew it was a point so fine as to be inconsequential, but he thought he might be able to use it later to argue that the prosecution would do just about anything to make a bad situation sound worse. To mislead.

The coroner used a blackboard to diagram the injuries on the body. As to cause of death, Wecht explained, “Hemorrhaging around the brain caused it to swell, bringing on failure of the heart and lungs.”

After four days of testimony in the stifling heat of Courtroom No. 3, upon completion of Dr. Wecht's lugubrious account, the prosecution rested.

“Hickton seemed pretty assured,” remembered Zimmerman,

and why not? It looked bad for Stanley. Sunday was an off day so Monday I'd present the defense, but already I hinted to the press that I may call Hoss to the stand.

Over the days, Stanley and I talked a good bit and I found him different than his public persona, at least what he liked to project. He could be serious and thoughtful. In better circumstances Hoss would make a good witness, but not
this
trial, his trial. So the insinuation of him testifying was misdirection on my part, to keep Hickton busy with something that wasn't going to happen.

The happy-go-lucky public defender laughed. “Like I'd unwittingly done with that Y chromosome story.”

…

If the trial thus far had been interesting, it had not been suspenseful: Hoss's guilt a forgone conclusion. Now, though, the waters were about to get muddied.

The defense opened with testimony by several of Hoss's cronies. Inmate Daniel Reegan tagged McGrogan as “a rat.” Hoss's good pal David Scoggins said the guards at the pen “started dealin' with me. Promised to take me out of the Home Block and transfer me to any prison I wanted if I'd say Stanley told me of the plan to kill Peterson two weeks before it happened.” Scoggins said he wouldn't go along, adding, “I want it on record that I am lookin' to be beaten tonight for my testimony today.”

Both inmates shifted the onus for the attack to the victim with statements such as, “Peterson harassed Stanley in many ways,” or “Peterson swung a nightstick good as any of 'em.”

“I could see I had the jury leaning forward,” recalled Zimmerman, “but this was nothing compared to what came next, a surprise to all in the room, including me. You see, Danny Delker's attorney, John Dean, told me Delker was willing to besmirch Peterson—and to say
no plot existed
. So yeah, I wanted Delker on the stand.”

In the six months since the murder, Delker had let his hair grow out, abandoning the disquieting mien of a shaved skull. “Groomed, necktie, and with the blood out from under his fingernails,” noted a deputy, “just give him a briefcase and he's your neighbor off to work.”

Once Delker was on the stand, Zimmerman led him easily through a few pleasantries (“to make him human”) but avoided any further bashing of the captain, fearing such a tactic could ultimately alienate the jury. Within minutes, though, Zimmerman had extracted the desired nugget of testimony: “No sir, there was never any plan to hurt Peterson,” Delker declared.

“No conspiracy, as has been suggested?”

“No, nothing like that. No talk at all.” Out of the blue, Delker then blurted, “Stanley didn't attack Peterson. I did.”

Taken unaware but tickled pink to hear such an exculpatory statement for his client, Zimmerman ran with it.

“Stanley Hoss is being made the scapegoat,” Delker said earnestly. “Deputy Warden Jennings and Warden Gilbert Walters caused the whole thing.
They
killed Peterson. They used
me
to kill him. They used me and they knew I was being used and they tried to cover it up. When I came here to testify, they told me if I said the truth they would find a good way to kill me.”

Hoss sat slightly reclined, face inscrutable, while the jury sat as still as a photograph, postured like a bird dog who'd spotted quail.

“The administration of the penitentiary drove me to this,” Delker declared.

They kept driving and driving. I broke. The racial tension was so high. On the day of the murder I went down to the rec area in the basement. I had a razor blade taped to my body, given to me by a guard for protection in case the nig— … blacks tried to take over the Home Block. I remember greeting Reilly, but I was in a bad frame of mind. Peterson came down to talk to Stanley but my mental state was like I couldn't comprehend what was being said. I don't know why, can't say, but I reached out and grabbed Peterson. I got him down and was sitting on top of him trying to cut his throat with my razor, but I couldn't because his head was jammed up against the wall. Peterson took the blade from me, and Stanley was trying to pull me away. Peterson got up and yelled to Reilly for help, then I tried to hit Peterson with a chair, but Stanley took it away from me.

Delker made eye contact with the jury. “Stanley tried to save Peterson's life.” Following this jaw-dropping claim with an anguished rub of his face, Delker then continued. “I ran after Peterson and tackled him but I don't remember what happened. I was breakin' lights when the guards came in and took us outside. They was beatin' us. They was beatin' a steel door with my head but I didn't feel anything. They was beatin' all of us.”

Jack Hickton was livid such malarkey had reached the jury box. He suspected Delker's spewings had been “cooked up,” and that Zimmerman and Dean were aware of this, yet on cross Delker was adamant. “You're wrong. I never said anything to anybody. This is the first time I told my story to anyone.”

Zimmerman then called his last witness, psychiatrist John Hitchcock, who brought the spotlight back to Hoss. Bespectacled, with dark hair graying at the temples, Hitchcock described Hoss as a paranoid personality. “While Mr. Hoss did not say what happened on the day of the murder, he did admit to me an intense sense of relief when he learned Peterson was dead”—stated as though Hoss was taking a nap during the assault.

. . .

Tuesday's closing arguments ended the weeklong trial. Up all night preparing, Zimmerman was nervous but hopeful. “Is Mr. McGrogan worthy
of your belief?” he asked the jury. “Why would McGrogan tell you something not true? I'll tell you. Because it's his ticket out!”

Zimmerman knew he had to scuttle McGrogan, for it was his testimony that supported the two elements essential to prove murder in the first degree: premeditation and lying in wait. “I submit to you McGrogan is as much as formulating a plan to escape. He's trying to make fools out of us.” Noting that Hoss, Delker, and Butler were locked up tight in a major prison, Zimmerman asked, “Why would the penal system send McGrogan, an admitted homosexual, to the Camp Hill School for
Boys?
McGrogan is a crafty liar, but there's more. He said two razors were used, but only one was found. He said my client employed a garrote, but is one on the table over there for you to see?” Eyeing the jurors, Zimmerman raised his brows into question marks. “Is this not peculiar to you? Perhaps there are small inconsistencies each to its own, but put together they build up to a stinking lie!”

Zimmerman then tore into the assertions of corrections officer Bus Reilly: “By his own admission the officer did not see all and was emotionally upset by what he witnessed, and thus his testimony has to be viewed in that light.” As for Delker's admission of the crime, Zimmerman spoke in a tone of praise. “Mr. Delker has nothing to gain by such a statement but everything to lose.”

With as much on the line as his adversary, if not more, the middle-aged, broad-chested district attorney walked slowly toward the twelve arbiters.

The son of Irish immigrants, Jack Hickton had been born in an orphanage, since his father had died before his birth and his mother was unable to care for him. As a poor lad he'd been educated at an automotive trade school, but by gumption he had worked his way through Fordham and Columbia Universities. He held little sympathy for sob stories about Hoss's childhood.

“Good afternoon, ladies and gentlemen. It's been a long week, a long day. You've listened intently and understand the gravity of the matter before us. Via witnesses and expert testimony you already have what you need to know, so I shall be brief.” And Hickton was, closing in a mere fourteen minutes, compared with Zimmerman's closing statement of one hour and forty minutes.

Hickton glided through the spine-tingling steps to the homicide, then challenged the defense's version of events.

“Mr. Zimmerman had told you that Hoss's clothes bore only specks of blood.” In a move that caused one female juror to recoil, Hickton held high Hoss's trousers and said,

I submit to you these pants were
bathed
in blood. You've been told by Delker, and surely he, too, has blood up to his elbows, that Captain Peterson was somehow unfair, but know that his last act was one of kindness, that of going into that basement to personally relieve Stanley Hoss of any anxiety he may have had over a relative's hospital stay. And how many fellow officers called the captain one of the finest and fairest men they'd ever known?

Finally, let me speak of intent. Could it be imaginable that those men in that basement—their lair—armed, each to execute separate chores, could have sprung as one without contemplation, no maneuver, cunning, or prior scheme? To suggest such is undiluted bamboozle. No! This is a case of singular prison treachery. It is a case of
premeditated
murder!