Kill for Thrill (22 page)

As unsightly as the results in a single case may be, they are necessary in the larger picture to ensure that we accord everyone a fair trial and that the results of the trial process are accurate. The revered legal scholar William Blackstone once said, “Better that ten guilty persons escape, than that one innocent suffer.” Known as the Blackstone ratio, this ten-to-one ratio has come to symbolize the classic western view about the tradeoff between efficiency and accuracy.

Not surprisingly, this notion of justice and fairness is not without its detractors. Jeremy Bentham, enlightenment philosopher, Utilitarian and originator of the “hedonistic calculus,” a premise that underlies our justifications for punishment, views the Blackstone ratio somewhat more skeptically.

Bentham warned that this notion of withholding punishment from the guilty for fear of wrongly imprisoning the innocent was a slippery slope that ran the risk of immunizing criminal conduct for a lack of absolute certainty in the outcome of the process. He urged that we “guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence.” Whether Bentham or Blackstone held the more reasoned view is still up for debate. However, regardless of the side of the fence you land on, cases such as the Michael Travaglia and John Lesko ordeal point out the far extremes of our system.

This case illustrates well that for every Clarence Earl Gideon or Ernesto Miranda, whose historical cases offer clear-cut examples of systemic failures in gross need of correction, there are a Lesko and Travaglia out there for whom thirty years of appeals tend to call into question the very validity of the system such safeguards are intended to protect.

While Lesko and Travaglia are not the oldest members of America’s death row, they are definitely among the more senior. Having spent twenty-eight years filing appeals, winning new trials and ultimately winding up back on death row, only to win more appeals, their example has come to symbolize the essence of what both sides of this debate symbolize.

In purely evidentiary terms, neither of these men has denied that they committed the acts of which they are accused. The evidence of their guilt appears practically incontrovertible. Instead, this case has become one of the quintessential battles of technical rules. What’s more, the added significance of the controversy surrounding the death penalty creates a literal life-or-death struggle that plays out through the legal shuffling of papers.

Pro-abolition advocates point to John Lesko as an archetypal exemplar of the principle that mentally deficient defendant’s should not be executed. They cite examples of his abhorrent childhood and the abuse and deprivation he suffered at the hands of his mother and grandmother and argue that his upbringing resulted in a mind damaged so far beyond comprehension that to punish him with death would be both inhuman and outside the bounds of our notions of justice and fair play.

In the other camp, pro-reform and pro–death penalty adherents point to the unquestionable guilt and indisputable depravity of their acts as evidence that death is both a fitting and logical punishment for such depraved human beings. As Tom Tridico once said, “This is a classic case that deserves no second guessing as to whether the death penalty is justified.” Perhaps it is the very fact that both of these men have confessed completely to their crimes that gives an odd sort of righteousness to this side of the debate. On the other hand, both our Supreme Court and many respected legal scholars agree that putting severely mentally disabled people to death is unconscionable under the Constitution.

Regardless of which faction you align with, the fact remains that this is the backdrop onto which the appeals process was cast twenty-eight years ago. Attorneys for both defendants have waged appeal after appeal, beginning with standard post-trial motions and continuing all the way to the Supreme Court of the United States.

Attorneys have used reams of paper to brief dozens of issues. On some issues, such as whether prosecutor Albert Nichols improperly asked the jury to exact vengeance for the killings of four innocent people by putting Lesko and Travaglia to death, the defendants have won. On most others, they have not.

Wending their way through the system, the defendants, through separate efforts, eventually exhausted their direct appeals options and each eventually succeeded in securing at least partial victories.

Having exhausted all state remedies and being largely unsuccessful, Lesko filed a habeas corpus petition with the United States District Court for the Western District of Pennsylvania, challenging the use of the Nicholls guilty plea during the sentencing phase of his trial, as well as challenging several comments by the prosecutor during his closing arguments.

After bouncing between the United States District Court and the United States Court of Appeals for the Third Circuit, the Third Circuit finally remanded Lesko’s case to Westmoreland County for a retrial on the sentencing phase of the case, based on the prosecutor’s improper closing argument.

In 1995, pursuant to the remand of the Third Circuit, Westmoreland County scheduled John Lesko for a resentencing hearing. During this hearing, Rabe Marsh III and Bryan O’Leary represented Lesko. In early February 1995, John Lesko’s retrial began. After a full evidentiary hearing in front of a newly selected and empanelled jury, the jury once again sentenced John Lesko to death. Perhaps not surprisingly, this did not mark the end of the appellate process for Lesko.

Following numerous motions for post-conviction relief under Pennsylvania’s PCRA (Post-Conviction Relief Act), a stay of execution and affirmance of Lesko’s death sentence by the Pennsylvania State Supreme Court, in 1999 Lesko’s second trial counsel, Rabe Marsh III, withdrew as his attorney. His withdrawal would mark a drastic shift in the focus of the case.

With Marsh’s withdrawal, Robert Brett Dunham of the Defender Association of Philadelphia, a nonprofit corporation dedicated to representing indigent defendants, took control of his case. Dunham, with a long-standing record of death penalty cases, took Lesko’s case in a new direction.

Beginning in late 1999, Dunham began mounting an appeal on Lesko’s behalf, arguing that his attorney during the second trial had failed to properly protect Lesko’s interest. Raising a claim of ineffective assistance of counsel, Dunham began arguing that by failing to conduct a thorough investigation into John Lesko’s horrific childhood, Marsh was unable to raise proper mitigating circumstances to counter the prosecution’s aggravating circumstances.

In addition, Dunham’s case calls into question Marsh’s failure to challenge several key witnesses whom Dunham believed would have strongly disputed the prosecution’s view of Lesko’s mental state at the time of the killings.

Using these claims to propel the case forward, Dunham began his march through the court system. After numerous motions, delays, hearings and thousands of pages of legal memoranda, briefs and answers, Richard E. McCormick Jr., Westmoreland County judge, issued an order granting John Lesko not only a new sentencing trial, but also a new guilt-stage trial. On August 7, 2006, more than twenty-five years after being found guilty and sentenced to death, John Lesko was awarded not a second bite at the apple, but a third.

As one would expect, John Peck, the sitting district attorney for Westmoreland County, immediately filed a notice of appeal. In September 2006, this appeal, too, began winding its way through the Pennsylvania appellate courts. On December 1, 2008, the Commonwealth of Pennsylvania’s appeal of John Lesko’s overturned conviction and death sentence sits before the Pennsylvania Supreme Court, awaiting yet another decision in this labyrinthine, convoluted, thirty-year-old case.

While Michael Travaglia’s case took a separate path throughout the appeals process, for the most part the story has been the same. Beginning with the nearly obligatory post-conviction trial court motions in a death penalty case, Dante Bertani, Westmoreland County’s public defender, began pushing Travaglia’s cause through the Pennsylvania court system. Eventually, in 1996, in part due to John Lesko’s federal appeals court victory, Michael Travaglia was also granted a new sentencing trial.

Thus began a nine-year march toward a new trial for Michael Travaglia. As pretrial motions, legal jockeying for a better position and strategic preparation for the new courtroom showdown were underway, weeks, months and eventually years ticked away. After a trip to the Pennsylvania Supreme Court and an attempt at a federal habeas corpus petition, Judge John E. Blahovec was finally able to set a retrial date for Michael Travaglia’s second shot at life.

On July 5, 2005, at 10:55 a.m., the voir dire of Michael Travaglia’s retrial began. From this rigorous question-and-answer session, twelve of Michael’s peers—nine women and three men—were selected. On July 13, at 11:13 a.m., the last of the panel had been selected and sworn, and trial number two for Michael Travaglia was finally underway—twenty-four years after a similarly charged jury of his peers had already sentenced him to die in Pennsylvania’s electric chair.

On Friday, July 25, 2005, the ten-day ordeal began outright. Joined by assistant counsel Ned J. Nakles, Bertani’s trial strategy differed somewhat from his colleague Rabe Marsh’s strategy in the Lesko retrial. While Marsh focused primarily on Lesko’s childhood misfortune, Bertani and Nakles directed the jury’s attention to the evolution that Michael Travaglia had made during his time in prison. Taking the position that the forty-six-year-old Michael Travaglia who sat before the 2005 jury was a man who was truly different from the methamphetamine-crazed twenty-one-year-old originally convicted and sentenced to die in 1981, Bertani hoped to sway the jury to consider Michael’s remarkable rehabilitation as mitigation to a sentence of death.

For the prosecution’s part, John Peck—who had assumed control of the case from Albert Nichols when he left the district attorney’s office—maintained a course very similar to his predecessor’s in trying to achieve the same results.

Peck called many of the same witnesses, used much of the same line of attack and did a strong job of reminding the jurors of the horrors that Travaglia and Lesko had visited upon Leonard Miller and the three victims who preceded him in death.

Finally, on July 25, 2005, Judge Blahovec sent the case to the jury. With fewer than twenty-four hours of deliberation, the new jury in the Travaglia case returned with a verdict. The verdict? Death. Once again, the prosecution had successfully convinced twelve citizens of the merit of putting Michael Travaglia to death for the crimes he and his partner had committed in 1979. Not surprisingly, however, like John Lesko, this would not be the end of the story for Travaglia.

Even as deputies were leading Michael Travaglia away in handcuffs to the waiting sheriff’s department transport unit for his ride back to death row, his attorneys were preparing the paperwork to start the appellate process anew. A flurry of motions and briefs quickly marked the second round of appeals. Beginning within days, the process dragged once again through the system. First in the trial court; later, when the trial court denied relief on August 11, 2007, in the Pennsylvania Superior Court under Docket number 1477 WDA 2007. Finally, on July 16, 2008, the Supreme Court of Pennsylvania agreed to docket Travaglia’s case by issuing an order to the Superior Court transferring jurisdiction under Capital Appeal Docket number 571 CAP.

By an alternate route, but on similar grounds, Michael Travaglia’s and John Lesko’s cases were once again side by side. Positioned before the highest court of the state, they will once again ask the legal scholars who compose our appellate system to weigh in, not on whether they are guilty or innocent, but instead on whether the system afforded them the underlying tenets of fairness during the past thirty years—tenets they saw fit to ignore. As always, the questions before the court are not ones of guilt or innocence, for in this case, that has been quite firmly established by the defendants’ own admissions. What they are asked, as all appellate courts in this country are asked, is whether society has respected the rights of the accused in this particular case. In other words, has the system lived up to Blackstone’s ratio in protecting the due process rights of the accused?

The answer, which may not come for months or even years, regardless of which way it falls, will provide very little in the way of comfort for anyone. For the victims of their rampage, there will be no last-minute stay. For the families of the victims, there will be no sense of relief (other than the fleeting sense of finality in knowing that there will be no more lengthy trials). And for the defendants, while relief may come in the knowledge that they are free to live the rest of their natural days in an eight- by eight-foot cell, it will not bring any type of true salvation; for that, if you believe in that sort of thing, must come from within.

If the Supreme Court of Pennsylvania rules in favor of the defendants in this case, there is very little likelihood that the case will end because, to the extent possible, the district attorney will most likely pursue a retrial and resentencing. If the court rules in favor of the commonwealth, it is undisputed that both Bertani and Dunham will continue their fights for their clients’ rights to die in prison—of natural causes.

This process, as protective of defendants’ rights as it is, has stretched over nearly three decades. It has been a lifetime for some and an eternity for others, and the only thing that is certain at this point is that in five years, there is a better chance than not that we will be discussing, in the present tense, the cases of Michael Travaglia and John Lesko.