Born to Lose

by James G. Hollock

  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 Certainly the inmate’s appearance told against him, as he stood there timidly in an ill-fitting, out-of-date sports coat kept on hand by prisons for just such court appearances (Hoss’s spiffy get-up was a gift from Betty).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?”

  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.