Showing posts with label Dewey. Show all posts
Showing posts with label Dewey. Show all posts

15 June 2018

Attorney cannot free himself from murder case

[Following is an excerpt from Chapter 5 of Wrongly Executed? The Long-Forgotten Context of Charles Sberna's 1939 Electrocution.]

Leibowitz
The first-degree murder trial of Charles Sberna and Salvatore Gati was set to begin before Manhattan General Sessions Judge James G. Wallace on the morning of Wednesday, June 15, 1938. They were charged with causing the death of Police Officer John H.A. Wilson during an attempted robbery of a precious metals refining business in September 1937. A key component of the case was missing, however. Gati’s defense attorney, the celebrated Samuel Leibowitz who had never lost a client to the electric chair, was not in court.

Leibowitz was, in fact, in a different court in a different New York borough, representing a Brooklyn client accused of extortion. A clerk from Leibowitz’s office appeared before Judge Wallace to apologize and to explain that Leibowitz's partner Vincent Impellitteri would handle the Gati defense as soon as he was finished with the racketeering trial of Jacob “Gurrah” Shapiro in federal court.

Assistant District Attorney Jacob Rosenblum, lead prosecutor in the Sberna-Gati case, protested that the involved attorneys were given plenty of notice of the trial date and that Leibowitz had only two days earlier committed himself to the Brooklyn extortion case.

Rosenblum
Judge Wallace understood that Leibowitz was trying to wriggle free of his obligation to represent Gati. When assured by the clerk that Impellitteri should be available by early July, if not sooner, Wallace responded, “As I understand, [Leibowitz] was the one that was retained... He cannot divorce himself of responsibility by assigning somebody else.”

“I would like to see Mr. Leibowitz when he concludes his case this afternoon,” Wallace told the clerk. “You will instruct him to come here. I would like to talk to him about his case.”

At twenty-five minutes after four that afternoon, Leibowitz showed up in Wallace’s courtroom. The defendants and the prosecutor also were present. Assistant District Attorney Rosenblum kicked off the discussion by saying he had received word that both prosecution and defense in the Brooklyn extortion case had delivered their summations, and a jury verdict could be expected the next day. Rosenblum saw no reason that the Sberna-Gati trial could not begin on the seventeenth.

Wallace turned to the truant defense attorney: “What about that, Mr. Leibowitz?”

Leibowitz attempted to sidestep the question. He spoke of Impellitteri’s work on trial preparation and asked that the case be put over at least until the middle of the following week. Rosenblum countered that Impellitteri was not the attorney of record for Gati and was not even associated with Leibowitz’s office at the time Gati acquired his defense counsel.


(Rosenblum’s own interest in the matter is uncertain. There was no obvious benefit to tangling with the far more experienced Leibowitz rather than Impellitteri. Rosenblum may have looked forward to the new challenge. Leibowitz had not defended a first-degree murder case in New York since District Attorney Thomas Dewey appointed Rosenblum to lead the Homicide Bureau. In recent months, Rosenblum had compiled a perfect record of convictions in eight first-degree murder trials. Or, possibly, Rosenblum knew his case against Gati was airtight and would surely ruin Leibowitz’s spotless trial record.)

Salvatore Gati

Judge Wallace asked Gati who was hired as his defense attorney. Gati said Leibowitz was hired and was paid a retainer for his services. That resolved the matter as far as the judge was concerned, but not Leibowitz. The defense attorney produced the written agreement signed by Gati and showed it to the judge. Leibowitz composed the agreement when he first heard rumors that Gati's fingerprint was perfectly preserved in molten wax that had fallen onto Officer Wilson's handgun at the time of his murder. The document granted Leibowitz the permission to withdraw from the case if the rumors turned out to be true.

“Those papers are just for the eyes of the Court,” Leibowitz said. “I do not want to have them made public in the newspapers.”

Wallace looked over the document and told the defense attorney, “I direct the trial to proceed on Friday and that you represent this defendant.”

For Leibowitz, the matter still was not closed. He requested a conference with the judge and the assistant district attorney, out of the hearing of the press. He then explained his concerns:


I told Mr. Rosenblum two months ago that if [Gati’s] fingerprints were on the gun I will absolutely not try the case, and under no circumstances did I want to defend him... I will under no circumstances defend a man, with his fingerprints on the gun, who is guilty of murder. Mr. Rosenblum said that two days before trial, he would make an appointment, so that we could have an inspection of the gun and our expert could look at it and examine whether it has his fingerprint. Now, we have been trying to get a look at this gun for a long while. On Monday of this week, Mr. Rosenblum made an arrangement with Mr. Impellitteri to have the gun examined, and why that was not done I don’t know. ... Now, Your Honor, if this man’s fingerprint is on this gun, I have not got the kind of energy, or the kind of interest in the man’s case. I am willing to return the fee...

The judge noted that Leibowitz was retained before the fingerprint became an issue. “[Gati] has been locked up for ten months charged with a serious offense. The case ought to be tried… I think you have a moral and a legal obligation to defend this man.”

Fingerprint just forward of cylinder

Rosenblum acknowledged that his office had conversations with defense counsel about viewing Police Officer Wilson’s handgun and the fingerprint on it. He noted that, while he was not required to do so (under the "discovery" rules of that era), he would make the “voluntary contribution” of allowing defense access to that evidence once the trial date was established.

Leibowitz, apparently already convinced that the fingerprint was genuine, abandoned discussion of evidence accessibility but continued to protest: “I do not find that I can give this man the kind of zeal, the kind of energy, the kind of devotion that a lawyer should give to a man who is on trial for murder.”

Gati fingerprint

“Is it your theory that you never represented anybody except a man who was innocent?” Wallace asked.

“I have never had a case yet where it was claimed by the prosecution that the fingerprint of my client was on the incriminating instrument… Witnesses may be mistaken. But I don’t know of a case yet where there has been a mistake on the part of fingerprints…,” Leibowitz argued. “I do not feel that the Court should ask a lawyer to represent a man, especially where his life is at stake, where the lawyer’s heart is not in the case… If convicted, he is going to the electric chair, and I do not think he should be represented by counsel who at least has not got the interest of the client at heart.”

Wallace would not budge:

You are an able and experienced trial counsel having defended a great number of persons for murder in the first degree. Moreover, I do not think that in all of the cases in which you went to the jury that your defendant was innocent, but that you felt merely that he was entitled to a trial to the best of your ability, and I feel that you can give this man an adequate and proper defense. Therefore, I direct, inasmuch as he has expressed an opinion that you were to try the case, that you proceed with this trial on Friday.

The conversation was over, but Leibowitz’s frustrations related to this trial were just beginning.

Read more:

Wrongly Executed?


30 January 2018

When 'Lucky' was locked up

Salvatore Lucania, widely known as Charlie "Lucky" Luciano, late in 1931 became the most powerful crime boss in the U.S. He personally commanded a sprawling New York-based Mafia organization, held one of seven seats on the Mafia's ruling Commission and maintained valuable alliances with non-Italian racketeering organizations across the country.

Less than five years after achieving gangland eminence, however, Lucania was taken into custody on compulsory prostitution charges. Due to the efforts of Special Prosecutor Thomas Dewey, Lucania spent most of the next decade - from the prime years of his life into middle age - behind prison bars.

Held at Clinton State Prison beginning in the summer of 1936, he was largely out of touch with the rich criminal empire he assembled and remote from friends and family. He depended upon pennies earned through manual toil and occasional contributions from relatives and associates to finance his many purchases through prison commissaries.

Yet, even during a lengthy and humiliating prison stay, Lucania found a way to make himself important. In the spring of 1942, Lucania convinced New York County prosecutors, New York State corrections officials and the United States Office of Naval Intelligence that he was indispensable to the U.S. war effort.

In the remaining years of World War II, Lucania arranged for a more convenient placement at Great Meadow Prison in the Lake George area and for suspension of visitation rules and recordkeeping. He managed in those few years to build a reputation for patriotic service that led to a 1946 commutation of sentence.

Very few official records remain of Lucania's long term in state prisons. From the period before 1942, only a small collection of documents is held at the New York State Archives. These include receiving blotter pages, health and psychiatric reports, visitor logs and financial transactions that shed some light on his brief time at Sing Sing Prison and his longer incarceration at Clinton Prison. From the period between his 1942 transfer to Great Meadow Prison and his 1946 parole and deportation, even less survives. Some details of these later years were pieced together when the State of New York, the Federal Bureau of Investigation and the U.S. Navy looked into Lucania's alleged contributions to the war effort. Wartime records of the Office of Naval Intelligence, which could have provided the most useful window into Lucania's service, were deliberately destroyed.

Available details of Lucania's time in prison and related events have been assembled into a 1936-1946 timeline on The American Mafia history website. These details range in excitement level from hum-drum to spectacular. Quotes from documents and links to documents - including all available pages of the Clinton Prison files - are included.

See: "When 'Lucky' was locked up."

23 October 2017

Dutch Schultz, aides, fatally shot in New Jersey

On this date in 1935, mob-affiliated assassins invaded the Newark, New Jersey, headquarters of gang boss Arthur "Dutch Schultz" Flegenheimer. They opened fire on Schultz and his aides, mortally wounding Schultz, Abe Landau, Bernard  "Lulu" Rosencrantz and Otto "Abbadabba" Berman. 

Berman and Landau were dead by the next morning. Schultz lingered through the following day before succumbing to his wounds.  Rosenkrantz died hours after his boss.

The killings reportedly were ordered by the leaders of New York City Mafia organizations, who sought to prevent Schultz's planned murder of prosecutor Thomas Dewey and to consume Schultz's lucrative underworld rackets. Murder, Inc., gunmen Charles Workman and Emanuel Weiss have been identified as the shooters.

Brooklyn Daily Eagle

New Brunswick NJ Home News

Plainfield NJ Courier-News

Quad City IA Times

Tampa FL Daily Times

New York Times

Philadelphia Inquirer

Fort Myers FL News-Press



10 April 2017

80 years ago: NYPD detective fatally shot

Detective Michael J. Foley
On this date in 1937 - Gunmen attempting to rob the Cafe Boulevard restaurant in Manhattan fatally shot Police Detective Michael J. Foley.

The incident led to the wrongful conviction and nearly to the execution of New York resident Isidore "Beansy" Zimmerman.

In 1938, Zimmerman and four other men were convicted of the murder and sentenced to die in the electric chair. The case against Zimmerman rested on testimony of alleged accomplices who received immunity from prosecution, a common occurrence in high-profile cases handled by the office of District Attorney Thomas Dewey. Those witnesses stated that, while Zimmerman was not present when Detective Foley was shot, he had planned the armed robbery that resulted in the fatal shooting.

On the day scheduled for execution, Governor Herbert Lehman commuted Zimmerman's sentence to life in prison. "Beansy" was taken from Death Row and evaluated for emotional problems by medical staff before being moved to the prison's general population. He spent the next twenty-three years in penitentiaries - Sing Sing, Auburn, Dannemora and Green Haven. Bitter over his treatment and emotionally scarred from his near-execution, Zimmerman was an uncooperative prisoner and frequently served disciplinary terms in solitary confinement.

Isidore 'Beansy' Zimmerman
Later investigations revealed improper actions by Dewey assistant Jacob Rosenblum. Rosenblum was found to have hidden evidence of conflicting statements by the witnesses used against Zimmerman.

In January 1961, the New York State Court of Appeals ordered a new trial for Zimmerman. Prosecutors decided not to retry the flawed case. Zimmerman was released from prison in February 1961. The original indictment against him was dismissed in March 1967.

In 1981, two decades after he was released from prison, New York Governor Hugh Carey agreed to permit a Zimmerman lawsuit. Zimmerman won a court judgment of $1 million in the late spring of 1983. He was left with $660,000, after paying off his large legal expenses. He had little time left to enjoy the money. He bought a new car and took a short vacation in the Catskills before he died.

Sources:
  • “Detective is slain battling 4 thugs,” New York Times, April 11, 1937, p. 21.
  • “Indicted in police death,” New York Times, April 23, 1937, p. 2.
  • “Five are convicted in police killing,” New York Times, April 15, 1938, p. 11.
  • “5 young bandits sentenced to die,” New York Times, April 23, 1938, p. 32.
  • “3 die, 2 are spared for hold-up death,” New York Times, Jan. 27, 1939, p. 42.
  • Howard, Jane, “Wrong man in jail,” LIFE, May 15, 1964, p. 57-64.
  • “Resigns as Dewey aide,” New York Times, Dec. 31, 1941, p. 20.
  • Isidore Zimmerman v. City of New York et al., Supreme Court of New York, Special Term, New York County, 1966, ny.findacase.com, accessed May 5, 2016.
  • “Jacob J. Rosenblum dead at 73; Dewey homicide bureau chief,” New York Times, Jan. 24, 1971, p. 65.
  • Zimmerman v. State of New York, Court of Claims, 76 Misc. 2d 193, 1973, casetext.com, accessed May 5, 2016.
  • “What price a Zimmerman?” New York Times, June 5, 1983.
  • McFadden, Robert D., “Isidore Zimmerman, 66, man unjustly jailed for a murder,” New York Times, Oct. 14, 1983.


05 January 2017

Sberna goes to The Chair

On this date in 1939, Charles Sberna was sent to The Chair. Though he had been convicted of participating in the killing of a New York City police officer, many believed - and many still believe - he was innocent. 

At trial, codefendant Salvatore Gati took the witness stand to confess his own involvement in the incident that led to Police Officer John H.A. Wilson's death. But Gati insisted that Sberna was not present. Gati named two other men as his accomplices. Prosecutors from District Attorney Thomas Dewey's office apparently did not give serious consideration to the testimony or to Sberna's alibi.

Some of the evidence collected at the scene
of the killing of Police Officer Wilson.

The only witness who connected Sberna to the killing of Wilson had serious credibility problems of his own. He likely would have been on trial himself for a number of offenses if Dewey's office had not needed him to testify against Sberna. Did public officials have an anti-Sberna bias that prevented them from dealing even-handedly with the case?

Only much later, after Sberna had been executed in Sing Sing Prison's death device, did journalists wonder about other men who were suspected of involvement in Wilson's killing but never faced trial for it. Were those men released because bringing them to justice would have exposed a terrible injustice done to Sberna?

Excerpt from Wrongly Executed? The Long-Forgotten Context of Charles Sberna's 1939 Electrocution

"...Thursday, January 5, 1939, was the 457th consecutive day that Charles Sberna and Salvatore Gati spent behind bars. It was also the last. The Death Row prisoners were granted the luxury of selecting their afternoon and evening meals. Sberna requested an early meal of lamb chops, mashed potatoes, salad, rolls and butter with coffee. He also asked for Chesterfield cigarettes. His requests for cigars and some other items were refused. Gati made no request for his early meal other than to be allowed to eat a can of pork and beans from his own supply. Sberna placed an additional large request for his supper. He ordered roast chicken, mashed potatoes, gravy, fresh tomatoes, rolls and butter, coffee, ice cream and cake. Gati’s requested supper was just another can of pork and beans. The condemned men may have hoped for a last-minute reprieve from Governor Lehman, though Lehman had made it clear by then that he did not intend to interfere with their punishments. They must have understood the reality of the situation as their heads were shaved to allow for direct connection of an electrode with their scalps. During the day, Sberna was visited by his wife, and Gati was visited by his mother Teresa..."


26 November 2016

'Wrongly Executed?' book now available

Sing Sing Warden Lewis Lawes had no doubt on the evening of January 5, 1939: He had just presided over the electric-chair-execution of an innocent man. The prison chaplain and many guards also felt that convicted cop-killer Charles Sberna had been sent to his death unjustly.

Lawes made his feelings known in a published book a short time later. Syndicated Broadway columnist Walter Winchell also called attention to the flawed case against Sberna in the summer of 1939 and again early in 1942. According to Winchell, the government knew that District Attorney Thomas Dewey's office had sent an innocent man to the chair and was providing "hush money" payments to Sberna relatives. Since then, opponents of capital punishment have included Sberna's name in collections of those deemed "wrongly executed" and have used the case as a somewhat vague example of the possibility of death penalty error. Still, little is known about Sberna or the circumstances that led him to the electric chair.

The story is a complex and controversial one, involving celebrity attorneys, Mafia bosses, violent political radicals, media giants and ruthless establishment figures, all set in a period in which Americans sought stability and government-imposed order after years of political upheaval, economic depression and Prohibition Era lawlessness.

Dust jacket for 'Wrongly Executed?' hardcover

I first became aware of Charles Sberna's story during research into U.S. capital punishment errors. Archived newspaper columns by Winchell revealed a tale worthy of retelling. Sberna and Gati both were convicted and executed for the 1937 murder of Patrolman John H.A. Wilson. Gati admitted his role but insisted that Sberna was not present for the crime. Names of other possible Gati accomplices were revealed, but prosecutors made little effort to check into them.

Email conversations with publisher Rick Mattix relating to the startup of the On the Spot Journal of "gangster era" crime history led me to assemble an article on the Sberna case for the journal's December 2006 issue.

That first article noted the relation by marriage of Charles Sberna and the Morello-Lupo-Terranova clan, which had been a major influence in early New York organized crime. Sberna took as his bride Carmela Morello, daughter of former Mafia boss of bosses Giuseppe Morello and niece of New York City rackets leaders Ignazio "the Wolf" Lupo and Ciro "Artichoke King" Terranova.

Sberna's own family background remained a mystery until later research into Amedeo Polignani of the NYPD shed light on the involvement by Charles Sberna's father Giuseppe in the anarchist-terrorist bombings of the 1910s. Giuseppe Sberna was a vocal leader in the East Harlem-based Bresci Circle, the nation's largest anarchist organization. Local, state and federal authorities hunted Giuseppe Sberna, but he escaped to his native Italy, leaving his wife and children behind in New York. Learning this, I began to wonder whether Charles Sberna, so closely connected to so many fearsome public enemies, possibly could have received a fair trial. My decision to fully explore the Sberna case soon followed.

Accused cop-killers Charles Sberna (left)
and Salvatore Gati (right) in court.

I examined court documents, the careers of prosecutors and elected officials, the history of law enforcement efforts against the early Mafia and the American anarchist movement, the questionable philosophies and courtroom tactics of D.A. Thomas Dewey and his assistants, and the known and suspected crimes of the men who might have committed the murder attributed to Sberna. Much of what I found was deeply troubling.

A fair trial may have been denied to Charles Sberna. Given the mood of the time, the background of the defendant and the circumstances of the case, a truly fair trial may have been impossible.

Wrongly Executed? - The Long-Forgotten Context of Charles Sberna's 1939 Electrocution is now available in hardcover, paperback and ebook formats. For more information and purchase options, visit the Wrongly Executed? website.

(I wish to express my appreciation to Christian Cipollini, C. Joseph Greaves, Ellen Poulsen and Robert Sberna for their support and assistance on this project.)

01 November 2016

Organized crime's 'strategic logic'

I recently received a complimentary review copy of James Cockayne's book, Hidden Power: The Strategic Logic of Organized Crime (Oxford University Press). 

It is a fairly imposing book, weighing in at 324 pages of tight type, plus another 151 pages of source notes, bibliography and index. I have so far done little more than acquaint myself with the book's approach and read some random passages. So this is closer to a preview than a review.

Cockayne looks at organized crime in general - the American and Sicilian Mafia incarnations of organized crime in particular - in terms of strategic criminal exploitation of opportunities. He examines historic interactions between underworld and overworld, organized crime and government authority - conflict, corruption, cooperation. I cannot yet speak to how well he does all of this, but he seems to have done his homework and has a solid knowledge of the subject matter.

One of my random reading selections was disappointing. Looking over a discussion of prosecutor Thomas Dewey's mid-1930s assault on New York-based organized crime leaders, I immediately stumbled upon material pulled from the pages of The Last Testament of Lucky Luciano, a book widely known to be unreliable. The passages, consisting of fraudulent quotes attributed by Last Testament to Luciano, define and rationalize U.S. Mafia policy against attacking government officials.

Cockayne actually discusses Last Testament in another location in his book, criticizing the work but also giving it more credit than it deserves. (He says the book was based upon notes taken during Last Testament coauthor Martin Gosch's interviews with Luciano, but there is no evidence that any Gosch-Luciano interviews actually occurred and no notes are known to exist.)

Recognizing his peril, Cockayne claims to have avoided using the source for "any point of analytical significance." Despite the author's insistence, the Mafia policy he draws from Last Testament seems to be not only a "point of analytical significance" but also important to his theme of strategic underworld-overworld relationships.

To be fair, Cockayne used a great many sources in his research. Most of those are very highly regarded. (I noticed that he even made use of some material by that eminent underworld historian Thomas Hunt.)

- James Cockayne website.
- James Cockayne on Twitter.
- Hidden Power on Amazon.com.

22 October 2016

'Wrongly Executed?' You decide


I have been finishing up a manuscript relating to the 1939 electric-chair execution of convicted cop-killer Charles Sberna. Sberna's name is frequently mentioned by opponents of capital punishment as an example of a wrongful execution. 

I first wrote an article on the subject years back for the On the Spot Journal published by the late Rick "Mad Dog" Mattix, and I have been accumulating additional information since that time. 

My original article (a version can be found on my American Mafia history website) touched on the trial evidence and Sberna's criminal background. It argued that the evidence of Sberna's involvement with two other men in the killing of Officer John H.A. Wilson appeared inconclusive but that it would be a misuse of the word "innocent" ever to apply it to Sberna, who was a habitual wrongdoer. 

The data acquired since then - trial testimony and evidence, legal appeals, witness statements and tons of background material - has done little to clear up the questions. But it has produced an exciting story, involving domestic terrorism, organized crime, corrupt politicians and crusading prosecutors.

Sberna and codefendant Salvatore Gati were brought to trial before authorities arrested a third suspect in the killing. At trial, Gati took the witness stand to admit his own guilt and to insist that Sberna was not present at the time and place of the crime. He refused to provide identifications for his two accomplices, but stated that Sberna was not one of them. When Sberna testified on his own behalf, he provided names of known criminals Gati reportedly revealed as his accomplices. 

A jury decided that Sberna and Gati were both guilty and that neither should not be shown mercy. An appeals court upheld the verdict. A generally liberal-minded governor refused to commute or even to delay Sberna's trip to the electric chair. The warden and chaplain of Sing Sing Prison grew convinced that Sberna had no part in the killing of Officer Wilson, but they had no authority to interfere with the execution. 

Over time, prosecutors spoke of their suspicion that one or both of the men named by Sberna were, in fact, involved in the killing of officer Wilson, but neither man was ever charged. With Sberna and Gati already dead, it appears it did not suit the interests of justice to reveal that there still remained two suspects for a three-man crime. 

There are many reasons to be concerned about the Sberna case. And it is tempting, from our perspective almost eight decades later, to condemn involved groups or individuals. But each was a product of his era and his environment. And each deserves to be judged within his unique context. 

I have called the book, Wrongly Executed? The Long-Forgotten Context of Charles Sberna's 1939 Electrocution. After completing the great fun of researching and writing the book, I will soon begin the laborious chore of trying to find a publisher for it.

- Thomas Hunt