By Laurel Bosshart, John Davis, Matthew Groom, Maggie Peters, Sandy Stonge

Back in 1985, some friends of slain Apollo police officer Leonard Miller had found the trial and appeals process agonizing and taxing.  They expressed both a sense of relief and closure when Governor Richard “Dick” Thornburgh signed the death warrants of John Lesko and Michael Travaglia, the two men responsible for the “Kill-for-Thrill” spree from Dec. 27, 1979, to Jan. 3, 1980, in which Miller had been shot. 

At the same time, Westmoreland County Public Defender Dante Bertani thought things were moving too fast.  “It scares me to death,” he was quoted as saying. “[T]here are issues that will be made moot by execution.”

As it turned out, Bertani’s worries were unfounded.  Twenty-three years after the “Kill-for-Thrill” spree, the two killers have been saved from several death warrants by stays and appeals.  And the friends and family of Miller and of the other three spree victims—Peter Levato, Marlene “Sue” Newcomer, and William Nicholls—are still waiting for closure. 

“There’s no doubt as to what took place and who’s responsible,” said Jim Clawson, an Apollo police sergeant when Miller was murdered.  Now a retired police chief, Clawson contends that the judicial system is making a mockery out of the tragic events.  He and many others believe that these killers –and others like them-- should be cold in their graves.

Not everyone agrees.  Leonard Miller’s late father, for example, never wanted to see his son’s killers executed, according to Bertani.  And Mary Ann Nicholls, whose brother-in-law Bill Nicholls was Lesko and Travaglia’s third victim, said her family’s angry desire for the death penalty has long since quelled. 

“Personally, I’m glad we’ve had these 20 years to come to our senses,” she said.

The two killers might say the same thing.  The long years in prison have changed Lesko and Travaglia, both of whom professed to be Satanists when they entered the state correctional system.  Lesko, now 43 and on death row in Graterford Prison near Philadelphia, converted to Islam in the late 1980s.  Despite an escape attempt and several infractions in his early prison life, he has become a teacher and counselor to other prisoners on death row.

Travaglia, also 43 and in Greene County State Correctional Institution, converted to Christianity less than a year after he began serving his sentence in 1981.  He has been a model prisoner and was married in 1992 to a New Kensington woman he met through his correspondence with members of a local church.

Over the past 22 years, the “Kill-for-Thrill” murderers have appeared in federal and state courtrooms numerous times.   Currently, John Lesko is petitioning in Westmoreland County for a new trial and sentencing hearing.  His attorney, Robert Dunham of the Federal Defenders Project in Philadelphia, is arguing, among other things, that Lesko suffers from brain damage, a claim that was never raised in the original trial in 1981.  Michael Travaglia’s death sentence was overturned in 1996, and he was able to move off death row and into a life sentence among the general population at Greene.

Prosecutors and defense attorneys agree that the wheels of justice turn more slowly in capital murder cases because the stakes are so high.  In some cases, stalling is part of the strategy.

Bruce Ledewitz, Duquesne University law professor who has defended a number of accused murderers, said:  “I made it a point never to carry a cell phone,” Ledewitz said.  “I didn’t want to be too easy to reach.”  Delays keep the client alive, he said.

Ed Borkowsky, Allegheny County Deputy DA. for homicide, said his office believes it has a high burden of proof to meet.  “The death penalty throws up red flags to judges, too,” he said.  Everyone moves with more caution.

Dante Bertani, who has been Travaglia’s public defender since his first trial, is pleased to see the long delays in his client’s case.  He does not believe the state has the right to kill his client or any one else.  “I haven’t seen any place in the sky where it says ‘Thou shalt not kill unless you are the governor of Pennsylvania,’” he said.

He blames the Westmoreland County D.A. in 1981, Tim Geary, for being too eager to get a death penalty verdict in this highly publicized case.  Three of the four last kill-for-thrill murders were in Westmoreland County, and Geary prosecuted the last case first because a “cop killing” would give him his best shot at convincing a jury, Bertani contends.

Meanwhile, the defense lawyer claims, a deal was struck in the Nicholls case with Indiana County Judge Earl Handler, who allegedly was afraid the county’s newly elected and inexperienced D.A. couldn’t handle the case.  Bertani says that the Lesko and Travaglia agreed to plead guilty in exchange for an understanding that Handler would withhold the sentencing until the Westmoreland cases had been tried.  According to Bertani, everyone involved understood the agreement to mean that the Nicholls’ conviction would be incomplete until sentencing and therefore could not be used as an aggravating circumstance in any trials in Westmoreland County.

Handler did withhold sentencing, but the Westmoreland D.A. Geary still presented gruesome testimony about the Nicholls’ slaying in the Miller trial. Handler has since denied making such an agreement, and Indiana County D.A. Gregg Olson and Geary have pointed out that nothing about the alleged understanding was put in writing.

Whatever the agreement, legal arguments about the Nicholls’ testimony in the Miller trial have provided grist for the appeals process ever since.  Prosecutors argue that they had every right to bring in an earlier murder conviction as an aggravating circumstance, even without the sentence.  Defense lawyers counter that the conviction is not complete until the sentencing.  Besides, Bertani claims, if the D.A. had tried the Levato and Newcomer cases before the Miller trial, he might have had those two convictions to put before the jury in the Miller case.  (See “Lesko’s Legal History” for a fuller account of the appeals process.)

It is not unusual for capital punishment cases to drag out over such arguments. But if such delays are common, so is the bitterness they breed.

“Leonard [Miller] did not have a chance to appeal,” Clawson points out. 

Stella Newcomer, Sue Newcomer’s mother, told the Post-Gazette in 1985, “I don’t believe in revenge, but I believe in punishment,” she said.  “I know it won’t get her back, but it might prevent this from happening again.  Maybe people will learn that if they take a life, they will lose theirs.”

Sue’s sister, Judy Butler, still tries to attend all the appeals hearings.  “I feel we owe it to Sue,” she said teary-eyed.  “I just wish it were all over.”  Butler is as bitter as she is sad.  “He’s still breathing,” said, nodding toward the Westmoreland County courtroom where John Lesko sat at the defendant’s table, “but Sue is not.”

Capital Punishment in Pennsylvania and elsewhere

As of March 1, 2002, Pennsylvania housed 245 death row inmates.  Since the reinstatement of capital punishment here in 1978, only three Pennsylvania inmates have been executed.  And those three were “volunteers,” who terminated their appeals and requested execution. The rest languish on death row, where many have no attorney representing them after the brief direct appeal stage of their cases.

In Pennsylvania, the death penalty may only be applied in cases where a defendant is found guilty of first-degree murder with aggravating circumstances. After a conviction, a separate sentencing hearing is held in which the prosecution argues for whichever of the possible 18 aggravating circumstances apply to the case.  The defense can then counter with arguments pertaining to the eight mitigating circumstances permitted in the state.

If the jury finds that the aggravating circumstances outweigh the mitigating ones, they are bound by law to bring back a death sentence.  Formal sentencing then comes from the judge, followed by an automatic review of the case by the state Supreme Court. At that point, the court can either uphold the sentence or vacate it for imposition of a life sentence. If the Supreme Court affirms the sentence, the case can go to the governor's office, where it is reviewed by appropriate legal counsel and, ultimately, by the governor himself. Only the governor may set the execution date, which is done through the signing of a document known as the governor's warrant.  The defendant is also entitled to seek both state and federal habeas corpus reviews, and the courts are seldom eager to move quickly when the defendant’s life is at stake.

If proponents of capital punishment think execution should be streamlined, others feel the procedure is already too faulty to make it hasty as well.  No state in the country, for example, meets the minimum requirements outlined as fair and equitable by the American Bar Association.

American Bar Association guidelines for capital punishment say, for example, that states should:

•     Provide competent counsel

•     Preserve, enhance, and streamline state and federal authority for post-conviction proceedings

•     Eliminate race discrimination in sentencing

•     Prevent execution of the mentally retarded

•     Prevent execution of offenders under the age of 18 at the time of their offenses

The guidelines also call for two experienced attorneys at each stage of a capital case and adequate funding for the defense to conduct proper investigations, hire expert witnesses, and obtain other support services.  Noting that no state yet has met its standards in 1997, the ABA passed a moratorium resolution calling on states to suspend executions until all death penalty cases are administered properly so that the risk of executing innocent people is minimized.

The Pennsylvania legislature is currently considering two bills:

•     Senate Bill 26, which would stop the execution of mentally retarded persons (IQ of 70 or lower)

•     Senate Bill 25, a moratorium on the death penalty 

Illinois

Republican Gov. George Ryan of Illinois passed a moratorium in Illinois in 1999 after revelations of a poorly administered system by the Chicago Tribune and Northwestern University journalism students.  The students were able to prove one death row inmate was innocent only days before his execution was to take place.  Maryland became the second state to initiate a moratorium in May 2002.

The Illinois Commission on Capital Punishment, assembled by Ryan as part of his moratorium, revealed its findings in April 2002.  The Commission recommended 85 sweeping reforms that, it said, would promote a more just and better-enabled system to ensure fair and accurate results.  However, the commission members recognized that "no system, given human nature and frailties, could ever be devised or constructed that would work perfectly and guarantee absolutely that no innocent person is ever again sentenced to death."

Some of the Commission’s recommendations included:

•      Videotaping of all interrogations of capital suspects conducted in a police facility.

•     Reducing the number of crimes eligible for a death sentence from 20 to five (cases in which the defendant has murdered two or more persons, where the victim was either a police officer or firefighter, where the victim was an officer or inmate of a correctional institution, when the murder was committed to obstruct the justice system, or when the victim was tortured in the course of the murder).

•     Forbidding capital punishment in cases where the conviction is based solely on the testimony of a single eyewitness.

•     Barring capital punishment in cases where the defendant is mentally retarded.

•     Establishing a statewide commission -- comprised of the Attorney General, three prosecutors, and a retired judge -- to confirm a local state's attorney's decision to seek the death penalty.

•     Intensifying the scrutiny of testimony provided by in-custody informants during a pre-trial hearing to determine the reliability of the testimony before it is received in a capital trial.

•     Requiring a trial judge to concur with a jury's determination that a death sentence is appropriate; or, if not, sentence the defendant to natural life.

United States and the world

This cautious approach recommended in Illinois reflects a national and international hesitation about the death penalty. To date, 65 countries have abolished the death penalty, including all 15 countries of the European Union, which is opposed to capital punishment in all cases and continues to urge the United States to embrace abolition.  Some countries retain capital punishment only for treason and war crimes, while others allow it as a penalty in law but not in practice. Countries that retain capital punishment for ordinary crimes include some in the Caribbean, Africa, and Asia. The United States and China continue to impose the death penalty most frequently.

Since 1971, almost all capital sentences in the United States have been imposed for homicide. An intense debate rages regarding the constitutionality, effectiveness, and humanity of capital punishment.  Capital punishment opponents charge that executions are carried out inconsistently and violate the “cruel and unusual punishment” provision of the Eighth Amendment. Supporters believe that the Eighth Amendment is not intended to prohibit executions because at the time it was drafted, in 1791, capital punishment was widely practiced.

In 1972, Furman v. Georgia, the U.S. Supreme Court ruled that capital punishment as then practiced was unconstitutional because it was applied disproportionately to certain classes of defendants, notably those who were black or poor. This ruling voided the federal and state death penalty laws then in effect but left the way open for Congress or state legislatures to enact new laws, a process that began almost immediately.

In 1976, Gregg v. Georgia, the court allowed capital punishment to resume in certain states. In 1977, Gary Gilmore was executed by a firing squad in Utah, the first to die under the new laws. Today, 38 states and the federal government have re-instituted the death penalty. A separate penalty phase of the trial, during which the jury weighs aggravating and mitigating circumstances, is now required for most capital cases.

Does capital punishment provide society with an invaluable and immeasurable safety net from potential harm or is it a brutal, inconsistent, biased practice of civilized society?  Diverse perspectives challenge the nation’s leaders to enact effective and just policies on capital punishment.  The languid judicial process is attempting to shed light on the answer by its very slow and often ambivalent processes. As appeals in capital punishment reveal numerous legal inconsistencies and lead to reversals, increasing numbers of Americans support reform or abolition. Either solution will require discipline, public support, and a drastic change in the judicial perspective. 

The depravity of John Lesko’s childhood in Pittsburgh during the 1960s rivals Oliver Twist’s misfortunes and misadventures in 1850s London.  But not even the genius of Charles Dickens could craft a happy ending from this story.
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Throughout his years at Kiski Area High School, Travaglia – described as a tall, thin youth – was an active member of the swim team, marching band and symphonic band.  “He enjoyed school and his classes, especially music,” his wife Fran said, noting that school was a break away from his home life.
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