Wrongly executed?

Charles Sberna and the 1937 killing
of Patrolman John Wilson

Detective work

The three gunmen had left just enough evidence behind to delight police investigators. One day after the shooting, Commissioner Valentine told the press that detectives were "working on something that looks very good." 15

Less than two weeks later, the department claimed to have arrested two of the three cop-killers. The suspects were identified as Charles Sberna, 16 alias Frank Costeri, 27, of 337 East 106th Street, and Salvatore Gati (also written Gatti and Gotti), aliases Frank Gallo and Frank Costa, 27, of 1683 Lexington Avenue.

Both men had police records and were on parole from Sing Sing. They had been arrested and discharged three times each.17 They both had been implicated in a payroll robbery ($461) near Seventeenth Street and Union Square.18 They were finally jailed after pleading guilty to committing second degree assault upon two women in a taxi in spring of 1933. They were paroled in September 1936.19

While the New York press delighted in reporting on Sberna's parole and earlier criminal activities, it seemed to pay little attention to his family ties to the underworld. Sberna had married Carmela Morello, daughter of Giuseppe Morello, who twice served as the American Mafia's boss of bosses.20 Morello served a lengthy term in Atlanta Federal Prison for counterfeiting and was later assassinated in his Manhattan offices at the start of the underworld's Castellamarese War. 21

Detectives had been led to Sberna and Gati by an East Harlem cleaner's mark left in the discarded and wax-covered jacket. Questioning in the neighborhood revealed that a man with a bandaged hand had been seen there. Witnesses examined a "rogues' gallery" and singled out Gati. Police went to Gati's and Sberna's homes but learned that the men had been away since two days after Wilson's killing.

On the afternoon of October 5th, police caught up with Gati and Sberna at Worth and Centre Streets, as they made a routine visit to their parole officers.22 The two men were placed under arrest and brought into the West Twentieth Street Police Station. There, they were questioned by detectives and Assistant District Attorneys Sylvester Cosentino and Louis Capazzoli.23

Gati had an obvious burn wound on his hand and initially could not explain how it got there. Later he decided that an accident occurred while making candy at home.24

Gati had more trouble explaining how his fingerprint, perfectly preserved in wax, ended up on Patrolman Wilson's revolver.

Gati and Sberna denied any knowledge of the Wilson killing or the attempt to rob the Rudisch company. Sberna claimed he had been at home with an ear problem on Sept. 23, but he faltered and could not easily remember what he had been doing on other days.

The right to examine evidence

An interesting point of law was raised as Sberna and Gati awaited trial on the capital crime of killing a police officer. Gati's attorneys, Samuel S.Liebowitz and Vincent Impelletteri, argued on Feb. 25, 1938, that the defense should have the right to bring in its own fingerprint expert to examine the print on Patrolman Wilson's weapon.

"There is no more important preliminary matter than a defendant's preparation for trial."Assistant District Attorney Jacob J. Rosenblum opposed the motion. At the time, there was no New York statute allowing a criminal defendant access to prosecution evidence before trial.

Judge John J. Freschi denied the defense motion but, in a 16-page decision, urged that the state legislature address the issue. He noted that "discovery and inspection before trial" was already a guaranteed right in civil suits.

"Our main objective should be plain justice for all...," Judge Freschi wrote. "At no time should the prosecution be forced so as to invade and prejudice the conserved rights of the people, or denials decreed that work irreparable injustice to the accused. There is no more important preliminary matter than a defendant's preparation for trial." 25

Defense dream team

Attorney Liebowitz was widely regarded as the "new Clarence Darrow." A Romanian-Jewish immigrant, he had put together an impressive record in capital punishment cases. According to his count, none of his clients had ever gone to the chair.26

Sberna also boasted an eminent legal mind as his counsel. Caesar B. F. Barra, an immigrant from Salerno, Italy, 27 handled his case. Barra, the Bruce Cutler of his day, was a very highly regarded defense attorney, particularly among organized criminals. His firm represented a number of notorious outlaws, including Charlie "Lucky" Luciano and Johnny "The Fox" Torrio. 28

Before the trial began, Liebowitz attempted to shift the responsibility of the case to an associate. Judge James G. Wallace discussed the matter with Gati, who insisted that he had paid for Liebowitz to represent him and wanted Liebowitz to do so personally. Judge Wallace ordered Liebowitz to remain on the case.29

Liebowitz's behavior in this matter is questionable. While it is possible he sensed that his record in capital cases was in danger, it seems more likely that he was suffering from exhaustion. The recently resolved "Scottsboro Boys" case had been physically and intellectually demanding and probably demoralizing for the 45-year-old attorney.30

But was Sberna there?

'Old Sparky'

At trial, Assistant D.A. Rosenblum charged that Sberna, Gati and their unknown accomplice had been aware of Louis Rudisch's recent purchase of a quantity of platinum valued at up to $12,000. It was that platinum, said Rosenblum, that the gunmen sought when they entered the Fulton Street plant.

Or course, an unanswered question was: How did the the criminals become aware of the purchase? The press suggested that they were hirelings of some underworld mastermind either related to the platinum supplier or in some way privy to the transaction.31

The robbery was foiled, Rosenblum argued, simply because Rudisch did not immediately bring the platinum to the plant after its purchase.

Sberna was said to be the man who bound the office workers with wire. No witnesses indicated that he had fired a weapon at Patrolman Wilson or even that he had been in possession of a pistol at the time Wilson entered the office. Under the law, that distinction made little difference, as Wilson's death was the result of the criminal act in which the three men were engaged.

However, there was also some suggestion that Sberna was not part of the attempted robbery at all. The prosecution witnesses who seemed most positive of Sberna's identity were those who claimed to have seen a man who looked like him rushing from the scene.32

According to some sources, the law itself was aware of Sberna's innocence.

Gati allegedly had a private pretrial conversation with a commander in the Homicide Bureau. In that conversation, he admitted his own guilt in Wilson's slaying and insisted that Sberna was innocent. The commander reportedly offered to have Sberna released if Gati would name his actual accomplices. Sberna refused to cooperate and the case went ahead.33

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