Sunday, June 21, 2015

Jim Barry: King of Death Penalty Reprieves

JJBarry2A1918It was Keeseville native Jim Barry’s reputation as a top-rated lawyer, fighting relentlessly and effectively against great odds, that led to his role in an infamous New York City murder case. In November 1918, four young men robbed a 68-year-old subway-ticket agent, Otto Fiala, and when the man resisted, he was shot dead.

The four included James “Bull” Cassidy, 25, an amateur boxer; Charles McLaughlin, 21; Joseph “Lefty” Milano, 19; and Joseph “Onions” Usefof, 20. Three sailors saw them flee the scene (netting only $61 from the robbery). Ten days later, detectives found them in Syracuse, where they were arrested after Cassidy fought a four-round bout. Willie Kirk, driver of the getaway car, was also taken into custody.

While they were locked up together, a deal was proposed by McLaughlin whereby one of them would assume blame for the murder, allowing the rest to avoid a death sentence or life in prison.

During questioning the next day, at least partial confessions were obtained from Cassidy, McLaughlin, and Usefof, but Milano refused to talk. Kirk, the driver, turned state’s evidence and made a full confession.

While awaiting trial, the four agreed to stick to the “scapegoat” plan, while Kirk declined. A nickel was used for a series of coin flips to determine who would take the hit and admit to the murder – despite everyone knowing that Milano had done the actual shooting. In a more than just ending, Milano lost.

But when the four were indicted on charges of first-degree murder, he remained silent, assuring his friends that the courts wouldn’t listen to him anyway. Within a month, Cassidy was tried, convicted, and sentenced to death. One after another, McLaughlin, Milano, and finally Usefof all met the same fate.

Today, a death sentence generally guarantees about twenty more years of living, possibly ending at some point in execution. But this occurred in 1919, when trials were held shortly after crimes were committed, and sentences were enforced promptly. In the case of these four killers, execution was scheduled for the week of March 17, just four months after the crime was committed.

Each of the convicted men filed appeals, which meant an automatic stay of execution until the appeals were resolved. It took almost a year, but by the first few days of 1920, all four had lost in court. Execution was scheduled for January 9, but further legal action led to a reprieve, followed by two more on February 8 and March 17. Finally, the fourth execution date of April 29 arrived. After three reprieves, it appeared the end had come.

Relatives paid final visits, and the condemned four were moved to cells nearer the death chamber. Each was dressed in the requisite black suit with one pant leg slit to accommodate an electrode. A spot was shaved on their heads for the second electrode. Officers tested the electric chair to ensure it was working properly. Finally, the warden visited, informing them that the governor had refused to intervene.

And with that, Milano confessed, absolving his companions of the murder. “Cassidy was drunk. Charlie [McLaughlin] is a dope and was led along. I could do anything I wanted with him. I got the money. The agent tried to get it back. That’s how he got shot. I fired the shots. When we started out to do the job, we met Usefof at the foot of the subway stairs. We asked him to wait there and he did. He didn’t know what we were up to. Of course, after we fled, he had to run.”

Whether he was fulfilling the deal of offering himself as the scapegoat, or was finally being a stand-up guy, Milano had certainly grabbed everyone’s attention. Usefof’s attorney departed immediately to seek a stay of execution, but there were only a few hours left before the parade to the electric chair began.

Meanwhile, the four youths prepared to die. Milano’s mother paid him a final visit, after which the men dined on what Sing Sing officials referred to as “the last supper.” The meal was interrupted by another visit from the warden, who announced that the governor had issued a reprieve at the request of a supreme court justice, citing new evidence that needed to be explored.

JJBarry2B1920As described by reporters at the time, Milano wept, while the others sat in stunned silence before breaking into cheers. The reprieve was for two weeks, but the men were optimistic at perhaps being re-tried – with the exception of Milano, of course, who was now a lock for execution.

In late May, Usefof’s appeal for a new trial was denied, but more delays were expected. Now representing Cassidy was James Barry, who immediately filed for relief based on the findings of several experts that his client was an imbecile. McLaughlin’s attorney did the same. (At the time, imbecile was a technical term defining an adult with the mind of a child.)

An insanity defense was one thing, but the imbecility defense introduced a number of other factors to be considered. Mental examinations were ordered for the defendants, but by mid-June, Barry’s claim was dismissed based on the fact that imbecility had not been introduced as a mitigating factor in the original trial. Thus, mental deficiency did not apply. Perhaps Barry had come to the game too late.

Another execution date was set, but Jim Barry earned the men a fifth reprieve by taking his argument to the Court of Appeals, New York’s highest level.

At this point in the story, I anticipated the appeals outcome as positive. A book I wrote a few years ago, “Killing in the Kuyahoora Valley” (based in the southern Adirondack village of Poland), details the first successful use of the imbecility defense in a murder case. Since that story took place in 1914 and established imbecility as a legitimate defense, Barry, I reasoned, had a shot at winning.

But in November, the ruling of the lower court was upheld, and a new execution date of November 18 was set. After all the appeals, all the denials, and five reprieves, what was left?

As was his style, the North Country’s most creative attorney came up with a new angle, still based on imbecility. Barry argued that Cassidy had not participated in his own trial because of mental incapacity, which was contrary to the law. Thus, said the attorney, his conviction must be voided. The court agreed to consider his claim, which was based on a basic requirement of the American legal system: defendants must be capable of assisting with their own defense.

Heavy media coverage followed, marveling at how Barry had successfully earned the men a sixth reprieve, which was termed unprecedented and unbelievable. At the very least, it was stunning that he had bought them another two weeks of life. Execution was now scheduled for December 9, but Governor Al Smith maintained that none of the four should be executed until Cassidy’s case was finalized.

JJBarry2C1920It remains unclear why Barry did not seek a seventh reprieve. That effort was handled by a different attorney, who visited the prison on December 9 with the dreaded message: the court had ruled against him, and the governor had declined to intervene.

Upon hearing the news, the four condemned men displayed widely varying demeanors. Usefof was considered the shakiest near the end, distraught at the thought of dying, and confused that he had only stood guard during the crime, but still faced the same penalty as the man who killed Fiala.

At the opposite end of the spectrum was James Cassidy, pronounced an imbecile by several experts during the past two years. Awaiting death, Cassidy famously sang, “Oh What a Pal was Mary” in his cell as the others preceded him to the chair – first Usefof, then McLaughlin, and finally Milano. Some said the singing was an attempt to help calm Usefof, the lookout man who declared his innocence with his dying breath. He was pronounced dead at 11:15 pm.

Stories vary slightly as to James Cassidy’s last moments, but he remained outwardly happy and carefree throughout the process. Then, while strapped into the electric chair, and with electrodes attached to his leg and skull, Cassidy laughed and waved to the audience, saying, “Give her the gas, chauffeur, and I’ll be on my way.” His death, the last of the four, was confirmed at 11:57.

Photos: Headlines from 1918, 1920, and 1920

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Lawrence P. Gooley

Lawrence Gooley, of Clinton County, is an award-winning author who has hiked, bushwhacked, climbed, bicycled, explored, and canoed in the Adirondack Mountains for 45 years. With a lifetime love of research, writing, and history, he has authored 22 books and more than 200 articles on the region's past, and in 2009 organized the North Country Authors in the Plattsburgh area.

His book Oliver’s War: An Adirondack Rebel Battles the Rockefeller Fortune won the Adirondack Literary Award for Best Book of Nonfiction in 2008. Another title, Terror in the Adirondacks: The True Story of Serial Killer Robert F. Garrow, was a regional best-seller for four years running.

With his partner, Jill Jones, Gooley founded Bloated Toe Enterprises in 2004, which has published 83 titles to date. They also offer editing/proofreading services, web design, and a range of PowerPoint presentations based on Gooley's books.

Bloated Toe’s unusual business model was featured in Publishers Weekly in April 2011. The company also operates an online store to support the work of other regional folks. The North Country Store features more than 100 book titles and 60 CDs and DVDs, along with a variety of other area products.

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