Born to Lose

by James G. Hollock

  “Your Honor,” Fagan appealed to Strauss in low but intense tones, “up until this time, all authorities have attempted to keep private that Stanley Hoss raped this girl. Mr. Snyder is coming to the rape, and you can see he plans to develop that as he proceeds. To me, this girl’s future is more important than anything else. I realize I cannot prevent him from doing it, I am requesting it.”

  “But it is our contention,” countered Snyder, “that the girl is lying, that her entire story is made up. Could I have ten minutes with my partner, in light of Mr. Fagan giving me this information?”

  “This is not unknown to you,” Fagan shot back.

  “You’d know it from your client if it happened,” said Strauss to Snyder, who responded, “My client never admitted anything. Why would he tell me?” Irked, Strauss said, “At one time I was a lawyer.”

  “I had tears in my eyes, I was so upset,” remembered Fagan. “I promised her she wouldn’t have to divulge the rape and depravities. She did not want her fiancé or anyone to know what happened. I said to Strauss, ‘If you permit them to cross-examine this girl on what transpired between Pittsburgh and Wheeling, I’ll withdraw this instant. I’ll quit.’”

  Ill will lingered but the wrangle ended. Karen was allowed to step down, secrets intact.

  Key state witnesses took the stand in a special Saturday session. Identified as the brother-in-law to Hoss’s mistress, Walter Penn explained that while Hoss was on the run, he had telephoned Penn, calling him by his nickname, Pookie, and asking, “How is Jo?” Hoss had then said he was in a motel and provided a number for Penn to get to Jodine.

  Q. What did you do?

  A. I called the FBI in Pittsburgh.

  Fagan was anxious to bring his next batch of witnesses before the jury, but doing so took a morning-long battle with the defense, who sought suppression. Strauss finally ruled in favor of the prosecution. The witnesses the defense wanted quashed were FBI agents and police officers.

  Fagan began with Special Agent Edwin Flint of the Waterloo office.

  Q. Relative to the conversation just provided by Mr. Walter Penn, did you locate the phone number provided by Mr. Penn?

  A. Yes, in Jackson, Minnesota.

  Q. Then?

  A. I called the Waterloo PD, among other places, to be on the alert for a vehicle sought by law enforcement.

  Q. What was that vehicle?

  A. A 1969 Pontiac GTO convertible.

  Q. Registered to whom?

  “Objection, Your Honor.” It was Snyder. He sure as hell didn’t want the owner’s name revealed in court.

  At sidebar, Judge Strauss asked Fagan’s intent. “Merely that Agent Flint instructed Waterloo to look for a type of automobile and the license number,” answered Fagan.

  The Court: You’ll establish later the ownership?

  Fagan: Yes, Sir.

  Snyder: I have no objection to establishing the license number, but we may as well make the objection now that if the name Peugeot is mentioned as ownership of this automobile, we will at that time ask for a mistrial.

  Judge Strauss, weary and wary of Snyder, said the defense might ask for anything it wished—at the proper time.

  “I don’t want it blurted out, said Snyder. “It is prejudicial mentioning the name Peugeot in this trial.”

  Strauss answered in his deep voice. “It is apparent, Mr. Snyder, you feel a case can be tried in a vacuum devoid of all surrounding circumstances. That is not the law of Pennsylvania, has never been, and we are not going to make it so now. As long as the prosecution establishes ownership of items in question [that] … are related to the crime by circumstance, it is material and may be offered—and that is the rule.”

  Again in front of the jury, Fagan resumed with Agent Flint, who said he provided the Waterloo police department with the particulars of the car Hoss was believed to be driving. “It was an alert to Waterloo,” said Flint.

  At this point, late in the trial, the prosecution went for the coup de grace, relying on the cumulative effect of testimony about who killed Joe Zanella, the words of Hoss himself, and other matters that would tell the jurors: of Stanley Hoss, be very afraid.

  Several Waterloo cops were called. Each told of his role at the Maywood Diner, their tense wait while their quarry ate his steak and sipped his coffee, then of the confrontation in the parking lot. The donnybrook itself, though, was minimized to imply police benignity. Said Lt. Duane Murry, “In the parking lot I informed the suspect he was under arrest, at which time he began to fight. We subdued him, then I advised him of his rights.” Murray later joked to a Pittsburgh cop, “And that, leaving unsaid a hundred punches by all parties, is what happened.”

  Fagan began questioning Detective Matzen about the letters found on the bed in Hoss’s room at the Traveler’s Motel but Snyder, at sidebar, said he did not want any letters introduced to the jury, “unless they authenticate who did the handwriting.” The matter was dropped for the time but later to be resurrected because Fagan believed it too important not to have the jurors hear what Hoss wrote.

  The packet of letters in Hoss’s motel room was but one example of evidence that would not have seen the light of day were it not for a handshake in a clandestine meeting. From the start of the Hoss affair, relations between the FBI and the various local institutions involved was not what it could have been. From the time of Hoss’s arrest in Waterloo, relations deteriorated further. In particular, the uneasy alliance between the FBI and the district attorney’s office in Pittsburgh gave way to open conflict. Be that as it may, lead prosecutor Ted Fagan had no intention of letting intergovernmental jockeying sink his case. Without the knowledge of his boss, District Attorney Duggan, he placed a call to the Pittsburgh FBI chief, Ian MacLennan. At professional risk, the two met on the eve of trial over Guinness Stouts and cigarettes.

  “I need your files,” Fagan said.

  MacLennan chuckled. “And have Hoover assign me to the Anchorage office?”

  The pair talked awhile and eventually agreed that to achieve their common goal—to crush Hoss, see him dead—they would share all information.

  “Okay Ted, I’ll give you our files,” said MacLennan, “but you alone, not that SOB Duggan. My agents will cooperate fully. We’ll give you the exhibits we have. To you, not your office. We’re not giving your office a thing, for what they’ve done.” In this frosty climate, Fagan got what he needed.

  As fruit of this meeting, Fagan called several agents to the stand on Saturday afternoon, the third day of the trial. Agent Flint quoted Hoss as saying of Zanella, “‘I was ready for him.’”

  Agent Danny Dunn, who’d perhaps spent more time with Hoss than anyone, said, “The defendant told me he killed Verona policeman Joseph Zanella and the gun he used was the same one found in Waterloo.” Agent John Anderson, from the FBI’s Omaha office, testified that he’d asked Hoss if he had killed the officer and Hoss had replied, “‘I showed that dumb bastard,’” a boast that brought gasps from the spectators, but no reaction from Zanella’s widow, Mary Ella, who sat numb, eyes unblinking.

  This powerful testimony on late Saturday afternoon was what lingered with the jurors for the balance of the weekend. By Monday morning all that remained for the prosecution was to add the finishing touches. Fagan did so with the final three witnesses.

  First up was Jodine Fawkes, whispered to be a go-go dancer, whose appearance elicited no end of interest among spectators and jury members. The court security personnel were pretty interested, t0o: they didn’t want her tossing a six-shooter to her beau, and they didn’t really trust the newfangled metal detector. The trouble was security had trouble positively locating Jodine during the trial, especially since she wasn’t the only young woman in the audience. A few other young women thought to be girlfriends of Hoss also mingled with the trial crowd. Detectives would make note of each, but the next day one or two of the women would turn up with a different hair color. The brunette would be blonde, the chestnut, now raven. Said Sheriff Gene Coon: �
�The jezebels were changing wigs like they did their bobbles and lipstick.” Was one of them Jodine herself?

  Ted Fagan had subpoenaed Jodine for Saturday’s session, but, when called, she was not to be found. Tracked down at home and “talked to” by a couple of Coon’s deputies, the renitent Miss Fawkes was persuaded to make herself available for the prosecution.

  A kind but firm Fagan asked Jodine how long she’d known the defendant.

  A. Six years.

  Q. Is this a close relationship?

  A. Yes.

  As the prosecution had managed to introduce, over vigorous defense objection, the letters found on Hoss’s motel bed in Waterloo, Fagan asked Jodine if she was the intended recipient.

  A. I don’t know.

  Q. Well, they are addressed to you?

  A. I guess they’re to me.

  When Fagan showed Jodine several pages and asked if she could identify the handwriting, Jodine hedged, but eventually granted that the missives “look like” they came from Hoss’s hand.

  After making eye contact with Stanley, the shapely Miss Fawkes stepped down, then blew him a kiss.

  Taking her place was Philip Conover, an FBI fingerprint expert. Conover said he found palm and fingerprints on an envelope, a letter, and two post cards forwarded to him by the Waterloo Police Department.

  Q. Can you tell us whose prints they are?

  A. They belong to Stanley Barton Hoss Jr.

  The prosecution’s final witness was Lieutenant Bill Valenta, a firearms expert. Valenta had fired test rounds from the suspected murder weapon, a nine-shot .22 caliber. However, a defect in the gun damaged markings in the bullets so that “less than 10%” could be identified as fired from the gun. Further, the bullet removed from Officer Zanella’s body was so badly mutilated that it lacked the individual characteristics that would have permitted Valenta to say for sure that the weapon in evidence was the one that had fired the bullet that killed the policeman.

  Valenta’s testimony did not hold high the “smoking gun.” Fagan had hoped for a better conclusion, but at least the jury would know all tests had been done and nothing had been hidden from them.

  There remained a single item that the prosecution wanted the jury to know. Of the several letters found in Hoss’s motel room shortly after his capture, one was chosen for exposure. The testimony of Fawkes and Conover had scuttled Snyder’s attempts to suppress the letter.

  Fagan explained to the jurors what they were about to hear, then, letter in hand, read aloud the words written by Stanley to Jodine: “Tell your brother-in-law I have something for him. He’s the one that turned me in.” After a calculated pause, Fagan summarized parts where Hoss professed his love for Jodine, then, with no little theatrics, Fagan stood still in the hushed courtroom, taking time to gaze out at the crowd before squaring himself before the jury, standing closer to them than he ever had before. In clear voice, Fagan read the last paragraph:

  “If anyone else is reading my letters to you, like the cops, I want them to know that it will not hurt me to kill one more of them. They will have to kill me to take me in.”

  This passage caused such a stir that Judge Strauss smacked his gavel and barked for quiet. At this perfect moment, Fagan declared, “The prosecution rests.”

  Edgar Snyder stood up before Fagan had even sat down. In a surprise move, without calling a single witness, he announced, “The defense, too, rests its case.”

  19

  Edgar Snyder never outright denied that his client killed Joe Zanella; he only implied that the prosecution’s case was feeble, its evidence flimsy, and— in short, that it hadn’t proved a thing. Snyder knew otherwise, of course, but, in his summation, his power of suggestion and bulldog advocacy was meant to cast doubt on the degree of Hoss’s guilt, soften perceptions of his client’s murderous intentions, and diminish the emotional reactions of an excited jury.

  “Who among the witnesses, I ask you, was sure of the shooter’s description?” Snyder queried, as though Esther Santone had never existed. “Crew cut, long hair … dark jersey, white T-shirt? And did you wonder about the demeanor of witness Fred Mangol, who said he saw my client in Winky’s restaurant shortly before the shooting?” Snyder placed his hand over his heart as he added, “I had no trouble seeing Mr. Mangol’s animosity toward my client as he answered questions which—could you tell?—were carefully rehearsed.” Snyder then recalled Miss Maxwell’s frequent smiles during testimony. Snyder arched his brows. “Did she look like a girl who’d been victimized for eighteen hours … and how often had she been left alone but made no attempt to leave?”

  After taking swipes at everything and everyone, Snyder likened the prosecution’s case to a puzzle where “all the pieces don’t seem to fit in right,” and concluded with an emphatic, “What has been testified to is not true beyond a reasonable doubt!”

  In a summation lasting only fifteen minutes, compared with Snyder’s full hour, Fagan adamantly asserted that the shooting of Zanella was murder in the first degree. “This is one of the few cases in my experience where we have given you everything except a recording and picture of what was going on. And of Mr. Snyder’s remark about Karen Maxwell? She is a young girl who has been scared half to death by Stanley Hoss. If she smiled occasionally on the stand it was nothing more than a nervous reaction, but remember well Hoss’s words to her … ‘I’m the one who killed the Verona policeman.’”

  The lean-jawed rep for the people pointed directly at Hoss. “Because of the defendant’s outlook on society and disregard of others, a man is dead. It is murder in the first degree. This is no time to worry about Stanley Hoss. It’s time to worry about you and me.”

  Beginning his jury instruction at 3:15 this Monday afternoon of March 9, 1970, it took Judge Strauss a full two hours to explain to the jury the possible decisions it could reach, and to review the testimony of the fifty-four prosecution witnesses.

  The jury went out at 6:45 P.M. Few of those waiting ventured too far away, as a quick verdict was expected. Short of three hours later, the jury returned—with a unanimous decision. To all gathered, the tipstaff cautioned against outbursts. Standing while all others were seated, Foreperson Vee Toner announced, “The decision of the jury is murder in the first degree.”

  Hoss showed a slight smile. His father appeared shaken while his sister Betty wept, as did Jodine and another of Hoss’s girlfriends, known only as JoAnn. If there were other tears, they were of relief and joy. Officer Zanella’s widow, only twenty-three years old, had been seated in the front row throughout the trial but was not present for the guilty verdict.

  Edgar Snyder requested a poll of the jurors, at which court clerk Howard Roth instructed, “Juror, look upon the defendant. Defendant, look upon the juror. Guilty or innocent, how say you?” Hoss stared at each juror as he listened to a dozen individual affirmations of his guilt.

  Hoss was tried under the Split Verdict Act, meaning that the same jurors who had found him guilty would hear aggravating or mitigating circumstances before settling his fate—life in prison or death. Strauss told the jury not to contemplate their additional duties but to “get a good night’s sleep.”

  Although the hour was late and the penalty phase was to begin next morning at 9:30, the attorneys and scores of others repaired across the street to the Common Plea Restaurant, a popular hangout for the legal crowd, for well-earned drinks and the first-rate veal capriccioso. Snyder and Baxter took a table at one end of the restaurant, while Fagan and Minahan were seated at the other end of the tastefully appointed room. Both parties were surrounded and peppered with questions and comments. If any of the attorneys spoke directly of the trial off the record, that status was respected by the reporters.

  Through a haze of cigar smoke, the fun-loving Freddie Baxter said to an out-of-town newsman, “Do ya know what us attorneys call this joint, the Common Plea, if we’re in here beggin’ to cut a deal?” Baxter blew out a ring of smoke, then said, smiling … “The Common please!” Asked about the
judge, Baxter said, “Lordy, makes you jump through hoops, does he not? But ol’ Sammy is razor sharp, tough but fair, and everyone knows his experience … tried more murder cases than anyone ever in the whole damn county! I’ll tell ya, if you have a really sound psychiatric case before him—and I mean babbling to Martians—he may weaken, but otherwise, with Strauss you go in on your knees or come out swinging.”

  To those gathered round, Snyder laughed when telling how Strauss had threatened once during the trial “to put me in the same jail cell with my client.” Asked if Hoss wants to live, Snyder said, “Oh yes.” No sooner had he said that, than Snyder was called to the front phone. On his return to the table, he whispered in Baxter’s ear, grabbed his briefcase, and picked his way through the crowd to hurry out the door.

  Never one to shy away from interesting conversation over drinks, newsman Bill Burns sat at the same table with prosecutors Fagan and Minahan. The celebrated KDKA anchorman always wanted the facts, the currency of his trade, but Burns also relished behind-the-scenes stories, back-room talk, and plain ol’ gossip, which is, as Burns explained, only half-joking, “pretty much always true, you know.” If there was one newsman who did not miss an hour’s testimony throughout the trial, it was Bill Burns. A law-and-order man, Burns made no secret of whose side he was on.

  The prosecutors were flattered by his company and impressed by the depth of his questions. Indeed, it was only Burns who, voice lowered, asked Fagan if he planned to mention the “Maryland case” during the penalty phase “or do you think Zanella is enough?” With this single question Burns had pinpointed the prosecutors’ worries.

  “If we knew for sure the jury’s resolve to give death for killing a policeman,” said Fagan to Burns, “then that’s all we need, but we don’t know that. Convicting someone is one thing, voting for death is another, so I’m thinking the jury should be as knowledgeable as we are about Mr. Hoss. Hoss is rare … but it’s for his type that we have a death penalty.”