New trial is ordered in 'kill-for-thrill' case

After sitting on death row for a quarter-century, convicted "kill-for-thrill" murderer John C. Lesko will get a new trial.

Lesko's 1981 conviction and death sentence for killing rookie Apollo police Officer Leonard Miller were overturned in a court opinion released Tuesday.

Westmoreland County Common Pleas Judge Richard E. McCormick Jr. ruled that the attorney who represented Lesko for nearly two decades was "woefully deficient" during the 1981 murder trial and a 1995 resentencing hearing.

Lesko, now 47, was originally convicted along with partner Michael J. Travaglia for killing the 21-year-old Miller on a dark, secluded road in Oklahoma Borough, Westmoreland County, after luring the police officer away from a convenience store they intended to rob.

Miller was the last of four victims slain during the eight-day killing spree that ended on Jan. 3, 1980. Lesko is serving life sentences for three other murders committed during the spree.

Lesko, of Homestead, was represented by Greensburg attorney Rabe Marsh during both the trial and the resentencing hearing.

Marsh, a former military lawyer and prosecutor, was appointed by the court to represent Lesko. At that time he had never participated in a death penalty case. During his four-year stint as an assistant district attorney in the early 1970s, the death penalty was outlawed by the U.S. Supreme Court.

Under current court rules, Marsh might not have been allowed to represent Lesko.

That's because qualifications for attorneys appointed to handle death penalty cases were raised in 2004. The Supreme Court ordered that defense attorneys must have at least five years of criminal litigation experience and must have tried at least eight homicide or felony cases to be eligible to try a death penalty case.

"The court felt the change would foster greater public confidence in the justice system and ensure defendants in these capital cases are both fairly and efficiently represented," said Art Heinz, spokesman for the Adminstrative Office of Pennsylvania Courts.

In his 74-page opinion, McCormick said that Marsh was overmatched, did not properly question prosecution witnesses, failed to allow Lesko to testify during the trial and provided insufficient medical evidence at the resentencing hearing.

"In light of these circumstances with the thwarted testimony going directly to an essential element of the crime, we find that there is a reasonable likelihood that the jury may have come to a different conclusion had it heard this evidence," McCormick wrote.

Specifically, during an appeal hearing before McCormick in 2001, Lesko claimed he told Marsh he had wanted to testify in his defense 20 years earlier. Marsh presented no defense, however, and rested his case without calling any witnesses on Lesko's behalf.

Travaglia, who was tried along with Lesko, did not testify during the trial. But he was called in before the trial before Judge Gilfert Mihalich and questioned on the record about his voluntarily giving up his right to testify. That did not occur with Lesko.

Lesko claimed he wanted to testify so he could rebut damaging evidence from two witnesses showing the men intended to kill Miller.

"The bottom line is that the record falls far short of establishing that (Lesko's) constitutional, fundamental right to testify was protected or that he knowingly and personally waived that right," McCormick wrote.

Marsh again represented Lesko during the resentencing hearing, and McCormick again found his defense ineffective. He said Marsh should have done a better job of finding and questioning medical experts.

A key defense witness was hired on the eve of trial. During later appeals, that witness changed his diagnosis of Lesko, indicating he suffered from brain damage, evidence that was not presented during the resentencing hearing.

McCormick rejected Marsh's contention that the timing of the witness's hiring was beneficial to the defense because it did not allow prosecutors proper time to rebut the testimony.

Marsh, who has a civil law practice based in Greensburg, did not respond to requests for comment yesterday.

Westmoreland County District Attorney John Peck said the case would be appealed.

"Even assuming the errors, that wouldn't change the outcome of the case. The evidence showed the defendant was indisputably involved in four shockingly brutal murders in (a little) more than a week," Peck said.

Should an appeal fail, Peck said he would retry Lesko in the Miller homicide and again seek the death penalty.

That would require bringing back witnesses who first testified 25 years ago. For witnesses who have died, transcripts of previous testimony could be used at trial, Peck said.

"Witnesses' memories are remarkably accurate given the nature of the crime," Peck said.

The long legal path taken in the case intensified in 1999, when Lesko for the first time questioned Marsh's competency.

Because Marsh had represented him up until that time, his competency had never been the subject of an appeal.

In 1999, the federal Defender's Association, a Philadelphia-based agency that represents death row inmates, took over the case and raised Marsh's effectiveness as an issue.

Lesko and Travaglia were convicted and sentenced to death for the Miller murder during a high-profile trial in Greensburg in 1981. Their death sentences subsequently were overturned.

Travaglia, of Washington Township, Westmoreland County, was again sentenced to death last year. He and Lesko were 21 years old when the shooting spree occurred.

"When will our emotional wounds be allowed to heal?" asked Robin Davis, former police chief in Apollo, Armstrong County.

"The old wounds of anger, aggravation and hurt have been ripped open," said Davis, who worked with Miller. "I don't know how much the people can take."

Key dates involving John Lesko

Dec. 27, 1979 : Peter Levato killed.

Jan. 1, 1980 : Marlene Sue Newcomer killed.

Jan. 2, 1980 : William Nicholls killed.

Jan. 3, 1980 : Leonard C. Miller killed.

February 1981 : John Lesko and Michael Travaglia convicted of Miller homicide, sentenced to death.

1991 : Federal appeals court vacates Lesko sentence.

1995 : Westmoreland County jury resentences Lesko to death.

1996 : Federal appeals court vacates Travaglia sentence.

1999 : Death warrant signed for Lesko; a month later Lesko files new appeal claiming defense lawyer Rabe Marsh was ineffective. Death warrant vacated.

2000 : Westmoreland County Judge Richard E. McCormick Jr. allows Lesko appeal to go forward.

2001 : Lesko testifies during three-day hearing on appeal.

August 2006 : Lesko conviction overturned and new trial ordered.

Additional Information:

The victims

John Lesko and Michael J. Travaglia were convicted for their roles in four murders that occurred during an eight-day killing spree ending on Jan. 3, 1980.

• Peter Levato, 49, of the North Side, was the first to die. He was shot in the woods near Loyalhanna Dam.

• Marlene Sue Newcomer, 26, of Connellsville, Fayette County, was the next to die after she picked up Lesko and Travaglia hitchhiking in the early hours of New Year's Day, 1980.

• William Nicholls, 32, of Mt. Lebanon, was the third to die. After making a homosexual advance on Travaglia, he was driven to a lake in Indiana County, where he was tied to rocks, thrown in the frigid water and left to die.

• Driving back from Indiana County, Lesko and Travaglia met up with Apollo police Officer Leonard Miller when they attempted to rob an Apollo convenience store. Travaglia shot Miller twice as he approached the car during a traffic stop. Lesko was accused of urging Travaglia to shoot.