Showing posts with label Gati. Show all posts
Showing posts with label Gati. 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?


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.)