Wrongly executed?

Charles Sberna and the 1937 killing
of Patrolman John Wilson

Guilty, with no mercy

On June 29, 1938, a jury returned with a verdict of guilty against Gati and Sberna. The panel had deliberated for more than seventeen hours, bringing in the verdict at 5:15 in the morning.

The final three hours of jury deliberations were reportedly focused on whether to recommend mercy for either or both of the defendants, which would have ruled out capital punishment and mandated a life prison sentence. In the end, the panel decided against a mercy recommendation.

Attorney Barra, who had gone home to Bath Beach, Brooklyn, at 3 a.m., had to be rushed back to the courtroom by police squad car to hear the verdict.

The defense attorneys protested the lack of a mercy recommendation, feeling that the judge had improperly directed the jury away from that course.34

A mandatory sentence of death by electrocution was formally announced on July 7. The two convicted cop-killers stood and listened to the sentence without any show of emotion.35

Deputies took Gati and Sberna by van from the Tombs lockup to Grand Central Station and brought them by train to Sing Sing prison. The two men spent the next six months on death row.

Executed despite unanswered questions

The convictions were upheld by the Court of Appeals in Albany, NY, on Nov. 22. With the capital punishment of the two men imminent, the New York Times noted the incompleteness of the case:

"A confederate of Gati and Sberna in the slaying of Patrolman John H. A. Wilson, in the hold-up of a gold and platinum refining concern at 65 Fulton Street on Sept. 23, 1937, never was captured. Nor were the police able to learn from Gati and Sberna the identity of the 'fingerman' who had sent them to rob the place."36

Early in the day, Jan. 5, 1939, Sberna was visited by his wife, and Gati was visited by his mother. Each prisoner reportedly held out hope of executive clemency until finally strapped into "Old Sparky" that evening.

Gati and Sberna, both 29 years old, were put to death in Sing Sing's electric chair.37

Innocent man killed?

Following the executions, there were widespread murmurs about an innocent man having been sent to the chair.

Some said that Sing Sing Warden Lewis E. Lawes spoke about Sberna's innocence on the eve of the execution. "For the first time," Lawes was supposed to have said to a newspaper reporter, "I think we may be sending an innocent man to the chair. I've done all I can to save him, but nobody believes me." 38

Sgt. Kilpatrick

Others attributed a similar quote to the prison chaplain, who reportedly made 15 visits to the district attorney's office to plead for Sberna's life.39 Father John P. McCaffrey, the Roman Catholic chaplain, is believed to have said, "This is the first time I’ve ever been positive that an innocent man was going to the chair."40

Louder objections were heard when Nunzio Romano, age 30, was arrested in Johnstown, Pennsylvania, in the summer of 1939.41 Some witnesses who identified Sberna as one of Gati's accomplices reportedly decided that Romano was actually the man they saw.

Romano was wanted for questioning on both the Wilson killing and the slaying of police Sgt. David Kilpatrick, 57, during a Jan. 28, 1938, holdup of a Bronx pawnshop. Two other men were connected with that crime. One, George DeRenna, was found guilty and sentenced to life in prison. The other was killed in a shootout with police. Investigators had been tracking Romano for a year through New York, New Jersey, New England and Pennsylvania.

Winchell weighs in

The New York Daily Mirror's syndicated columnist Walter Winchell began labeling the Sberna execution a mistake in late August 1939. He noted that the imprisoned DeRenna and Romano had worked as a team. If Romano had participated in the attempted robbery at the Rudisch company, it seemed reasonable that DeRenna was also there. Winchell, therefore, was able to account for all three Rudisch robbers without counting Sberna.

Walter Winchell

"For the first time in New York history," he wrote, "there is practically a certainty that an innocent man was executed in the electric chair at Sing Sing... Two men were tried for it last winter, and a third is in Auburn [Prison]. Now, with the arrest the other day of Nunzio Romano in Penn., it looks as though one of the lads... was juiced by mistake - because witnesses tell police Romano is the guy."42

Warden Lawes made his feelings known in a book, "Meet the Murderer," published in 1940. Using fictitious names, he referred unmistakably to the Sberna matter, describing the efforts made by the chaplain and himself to save Sberna's life.43

Winchell reserved for a series of columns in spring of 1942 his most severe attacks against prosecutors and police officers he perceived as being more concerned with their own reputations than with justice:

"Now, the plot sickens... By this time, when witnesses of the first case [Wilson's killing] took a look at [Romano], they realized he was really Gati's accomplice... But the other kid [Sberna] was beyond saving - and so the law had to free the accomplice - without even trying him for [Sgt. Kilpatrick's] murder... To do so would air the whole blunder... And they couldn't try him for the first murder - for which another man had already been put to death."44

Winchell also revealed a disturbing rumor.

"Sberna's family (and this I cannot prove), according to their intimates - has been staked by a 'sort of hush fund.' And the real killer, now free, is working for a union."45

Haunting tale

The Sberna execution is frequently cited by opponents of capital punishment as an instance in which an innocent life was erroneously taken by the state. It appears certain that the whole truth of the Wilson killing and Sberna's role in it - if any - will never be known. But it is probably an abuse of the term "innocent" to apply it to Sberna, who by most accounts was a habitual criminal.

Still, the Sberna story haunts us as an example of our own unwillingness to show mercy when mercy is clearly called for. A life prison sentence - the result of a jury's mercy recommendation - would have been appropriate even for the harshest reasonable view of Sberna's actions on Sept. 23, 1937.

And such a sentence would have left open the possibility of correcting a judicial error.

(Endnotes on Page 4)