CHAPTER 19

When John Moses’s secretary informed him that he had a call from a Scranton attorney named Todd O’Malley, he assumed he knew why. Moses had been in the news lately after the Pennsylvania Superior Court agreed to hear his argument regarding unconstitutional delay for his client, Keith Snyder, who had recently been accused of a murder more than eleven years earlier.

Moses picked up the phone. “I guess you’re calling me about Snyder.”

“No,” Todd O’Malley responded. “I want to talk to you about Scher. I want you to talk to my brother. He’s very ill and he’s in need of some help trying this case.”

John Moses had heard about the Scher case, and he was not interested in getting involved. He expected to be elected chairman of the board of Alsac/St. Jude Children’s Hospital in Memphis in October, a position that required a good deal of time and travel. Besides, the fifty-one-year-old Moses was overloaded with work. In a redbrick turn-of-the-century building on a tree-lined street in downtown Wilkes-Barre, Moses’s firm represented some four thousand clients including Blue Cross of Northeastern Pennsylvania, PG Energy, and the Pennsylvania state police.

Still, John Moses couldn’t resist hearing more about the case. A meticulous student of law, the energetic Moses loved complicated legal issues. If he could help, with minimal inconvenience to his other commitments, he would.

“Have your brother come down,” he told Todd O’Malley. “We’ll talk about it.”

The next day, Peter O’Malley drove to Wilkes-Barre and explained the situation, the twenty-year-old case, the arrest, the one million dollars bail. He told Moses that the doctor was struggling to raise bond, but the judge’s stipulation that out-of-state property could not be used made it extremely difficult. O’Malley stressed that Scher was not in good health, that he needed to be released to support his family and be able to mount a proper defense.

John Moses listened intently but was still not swayed. “I’m not really interested, but I’m happy to help.”

Peter O’Malley was persistent. “At least meet the guy.” He handed Moses a thick file on the case.

Curiosity got the better of John Moses, and he agreed. The next day, he went to the Susquehanna County Jail and spoke to Stephen Scher. The doctor told him he couldn’t understand why he was still in jail.

John Moses couldn’t either. He’d read Judge Seamans’s decision and was puzzled. Moses himself was on the Pennsylvania Supreme Court Criminal Rules Committee and knew firsthand that the edict had been changed—property out of the Commonwealth of Pennsylvania could indeed be posted as bond.

“Tell you what I’ll do,” he told Scher. “I’ll make no commitment about getting involved in this case. I can never guarantee what will happen, but I can guarantee that the Supreme Court will make a decision about the bail hearing.”

Driving back to Wilkes-Barre that day, Moses was determined to work out the bail issue. He decided he wasn’t even going to charge Stephen Scher.

One thing I do know, he said to himself, are rules of criminal procedure and rules of evidence. This was an illegal order. No one knows how to bring it to the attention of the court.

Except John Moses. He immediately wrote a letter to the Superior Court explaining the situation and then began calling the court’s prothonotary’s office daily. Three days later, the attorney got a call from the clerk in the Superior Court: The Pennsylvania Superior Court in Philadelphia reduced Stephen Scher’s bail to $750,000. More important, the court ruled that out-of-county property was permitted to be put up as bond.

The Schers and Peter O’Malley were astounded. But to those who knew John Moses, it didn’t seem surprising.

Indeed, the Wilkes-Barre lawyer had an established reputation as someone who got things done by picking up the phone and calling the right people. In recent years, Moses had been instrumental in saving a historic theater in town by helping to raise more than three million dollars in a matter of days, and then he did all the legal work for free, overseeing the building’s renovation into a performing arts center. Known for sending ties and scarves as Christmas gifts to a long list of friends and associates, his unpretentious style and knack for politicking earned him friends in high places, including judges in the state superior courts. Moses’s supporters enjoyed his upbeat, fast-paced style—he loved a good joke, always grabbed the check at restaurants, and didn’t like vacations because he preferred Wilkes-Barre to anyplace in the world.

He’d grown up in the town, behind his grandfather’s dry goods store, the third of four boys. Moses worked after school throughout his youth and met his future wife, Joyce, when she and her mother were shopping at the supermarket where he was stocking shelves after school. He attended King’s College, on the banks of the Susquehanna River in Wilkes-Barre, and left the area just once—to go to Villanova School of Law. Oddly, he was in the same graduating class as Marty Dillon but didn’t remember ever meeting the young man.

He returned to Wilkes-Barre after graduation and built his practice, going into partnership with Charlie. Gelso on a handshake agreement twenty-three years ago. The two owned the building together, divided the firm’s work, and split the expenses. Gelso handled criminal cases filed in federal court; Moses took care of the state work.

Moses and his wife shunned a more affluent home in the mountains surrounding Wilkes-Barre in favor of a modest ranch-style house in the city, a mile east of his firm. The walls of the attorney’s spacious office on the first floor of the brownstone were filled with framed photographs of him at black tie charity events and law conferences next to various politicians and celebrities including Hillary Clinton, Ted Kennedy, George Burns, and Bob Hope. Moses had some six hundred photos in his collection and had his secretary, Helen Barsh, rotate them every few months, leaving only family pictures and a portrait of his wife, Joyce, in place all the time. Laminated newspaper articles trumpeting his successful legal maneuvers over the years were displayed on the walls as well.

The latest triumph was especially pleasing to John Moses, certainly bound for a place on his wall. On July 29, 1996, Stephen Scher was released from jail. He’d posted $115,000 bail, Pat’s cousin Joanne Kuehner posted her $450,000 house in the area, and Pat’s relatives Joseph and Mary Castrogiovanni, their $105,000 home in Dunmore.

When John Moses met him at the jail, Stephen Scher hugged him and immediately asked the attorney to represent him. Moses was wary—he knew that Peter O’Malley was still involved in the case, and he did not want to sit as second chair.

“I’m fifty-one,” Moses told Scher bluntly. “Been there, done that. I don’t need the business. I’ve got a problem managing my practice as it is.”

But Stephen Scher insisted that Moses could put together the defense team he wanted. The doctor was resolute—he wanted John Moses.

The attorney wavered. “Steve, I’ll do anything I can to help you. Why do you want me? Why is it so important?”

Stephen Scher had a feeling about John Moses, and so did Pat. They were struck by the fact that Scher had spent forty days in prison and a man named Moses led him out. Even the attorney’s commitment to St. Jude’s Hospital seemed significant to the Schers; they told him they had purchased a stained-glass window of St. Jude for their church in Lincolnton.

It was a sign. Stephen and Pat Scher were sure of it.

Despite a healthy self-esteem, John Moses worried about the Schers’ expectations. “I’m not in the insurance business,” he often reminded his clients. Indeed, the attorney knew to be careful about what he said in the initial stages of a defense. He’d been practicing law long enough to know that if he ultimately lost a case, he’d be blamed. If he won, the defendants generally assumed they’d have won no matter who their lawyer was.

Besides, Moses wanted to be sure of what he was getting into. “I have enough money,” he told Scher. “I only want to get involved if I know you’re innocent.”

Stephen Scher fervently insisted he was. The lawyer said he would think about it.

At home, Joyce Moses was less than enthusiastic. She reminded him of all he had going on. He was in the office by five most mornings, and at home he generally stayed up past midnight, working.

“You don’t really want to do this, do you?” Joyce Moses asked.

Moses’s twenty-one-year-old son, Peter, had the opposite reaction. The young man was a senior at King’s College and applying to law school. “Dad, this is a great case. You have to take it.”

John Moses was torn. Defending a murder suspect meant practically living with the defendant. “There’s nothing worse than spending time with someone you can’t stand,” he told his wife. “But I don’t have that with Scher. I really believe he’s innocent. And I like the guy.”

He made up his mind. The case was too good to pass up—if the Schers were willing to meet his price: around $500,000. He discussed it with Joyce. “If they’re prepared to pay this fee, I’m in,” he said. “If they can’t, I’ll be able to tell my grandchildren, ‘You know, I could have had this case.’”

Moses concluded that he’d be satisfied whichever way it turned out. He wasn’t eager to do all the work; at the same time the case presented a fascinating challenge.

Everything you’d want in a case is here, he thought. Issue of delay, people have died, the doctor who did the original autopsy, the coroner, the detective. I have a client, a doctor, who has a great reputation in New Mexico, North Carolina. There’s a hint of prejudice, that he’s Jewish. The community’s been worked on for twenty years; everything’s been twisted.

On the Sunday after Stephen Scher was released from prison, Pat Scher came to Wilkes-Barre to meet with Moses. When she arrived, the attorney told her his fee to represent Stephen Scher. Pat Scher did not pause. “We’ll find a way to do it,” she said.

By this time, the Schers had already sold their home in Lincolnton, the brick split level Pat had liked so much, and were renting a house on the lake in a nearby town. Stephen Scher was forced to sell the Mercedes, too.

They would do whatever they had to. They believed John Moses was Stephen Scher’s only hope.

Once he took on Scher’s defense, John Moses filed a Petition for Delivery of Evidence, asking for the photographs of the scene of death, information regarding measurements taken at the scene of the tree stump allegedly stained with blood, studies of terrain at the scene of death, description of person, shotgun, clothing of Dillon, clothing of Scher, statement reports from the FBI, and forensic reports.

He began meeting with forensic and ballistic experts, put together a witness list, and retained a Harrisburg investigator, Skip Gochenaur, whom he’d worked with on several previous murder cases, to conduct interviews. In truth, Moses hoped to avoid a trial altogether. In the first few months, he focused on the issue of delay—that his. client could not properly defend himself against twenty-year-old charges for myriad reasons.

At the same time, if his efforts to avoid a trial failed, he hoped to soften Stephen Scher’s image in Susquehanna County. Before Moses had taken over, Peter O’Malley had arranged for Pat Scher to give an interview to a reporter, Kevin Ellis, from the Binghamton Press & Sun Bulletin. They met over the summer in the allergy office in Lincolnton days before Scher’s release. Pat described her family’s agony.

“I thought when Marty died there wasn’t any greater pain but this is worse,” she was quoted saying. “My children are grown and I see the pain in their adult eyes and I can’t take it away. They see the same in mine, and we’re all helpless.… To find every detail of your life speculated about, without any facts being put forth, and when you see events of your life put in a chronology so that there’s only one conclusion, it probably hurts more than anyone could imagine.… Twenty years ago I had just lost my husband. He went to work one day and never came home. There were people in positions of authority. They made their decisions, and I had no reason to question it. I was much more concerned with my babies.”

Pat showed the reporter calla lilies in a plastic cup, a gift from a patient who knew they were her husband’s favorite.

“The people of this community are so incredible I don’t know what I and Stephen have ever done to deserve them,” Pat said. “I don’t think I have enough days in my life to thank them. But I will thank them every day of my life.”

She told the reporter that she didn’t understand Larry and Jo Dillon. “I don’t wish them any more pain,” she said. “We have all suffered enough. They lost a child and there couldn’t be anything worse than that. But why would you let hate overtake all that is good? Why would you throw away your son’s children, the only living part of your child? How could you do that? If someone could help me understand it would all be easier to take.”

*   *   *

Just after Labor Day 1996, a week-long preliminary hearing was held before New Milford District Justice Peter Janicelli. John Moses immediately raised the issue of unreasonable and unnecessary delay.

“We believe it is fundamentally unfair, when there is no reason for a delay, to cause a delay of 20 years in the interim where people die, where memories dim, where evidence is not properly preserved and then to require the defendant to defend himself,” he charged. “That is the sum and substance of the due process argument, Your Honor. My position is that the delay of that period of time was unreasonable and unneccesary, that the delay affected a set of circumstances which prevents this defendant from obtaining a fair proceeding. What are those circumstances? Witnesses die. The coroner in this case is dead. The original people that worked on the case are dead. Memories dim. We’re talking about 20 years.”

Senior Deputy Attorney General Robert Campolongo pointed out that there is no statute of limitations on murder. “It is not a violation of due process to take a murder charge, however later, because the law does not forget about murders. No matter how much time goes by, if a human life has been taken and evidence is developed, however late, that someone deliberately, maliciously took a human life, then that person is prosecuted under the law, regardless of the passage of time. Nothing can be clearer than that.”

He added that Pat Scher caused the more recent delays by contesting the exhumation of her first husband’s body. “We had to fight tooth and nail every inch of the way in order to get access to the body over her strenuous objection, and learned and numerous counsel that she had employed to take this matter all the way up to the Superior Court to impede the progress of our investigation,” Campolongo told Janicelli.

The Commonwealth presented a series of witnesses. Dr. Isadore Mihalakis testified, and so did Frank Zanin. The former records and identification officer, now retired, talked about the battle to convince his superiors to look into Martin Dillon’s death.

“For years every time we had a change of personnel, higher-up personnel at Dunmore, I would go to the incoming lieutenants in the crime division,” he told the court. “It was always, ‘Yeah. That needs to be worked on.’ Period. And they just left it go. Left it go. Until finally in 1989 after it wasn’t just me then, it was the Dillon family through attorney Loftus, also pushing on them that they finally started to take action and get work done.”

On cross-examination, John Moses asked Zanin why he didn’t protest in writing.

“You can lodge them written, you can lodge them verbal, you can speak until you’re blue in the face sometimes,” Zanin responded.

Former district attorney Ed Little also testified. He told the court that in 1976 coroner John Conarton was “hell bent accidental” and that he did not have sufficient evidence to prosecute. Larry Kelly, the DA from 1980 until 1988, testified briefly, saying that he never found a file on the Dillon case, nor did anyone ever ask him to investigate the death as a possible homicide.

In the end, the district judge was not swayed by Moses’s arguments regarding the delay issue and ruled that there was sufficient evidence for trial. Over the next few months, John Moses attempted to halt a trial by filing various motions, all of which were denied. At pretrial hearings in May 1997, Judge Kenneth Seamans ruled against Moses’s motion to suppress Scher’s statement to Jock Collier and his requests for a change of venue and to dismiss all charges.

A trial date of June 9, 1997, was scheduled, but Moses requested a postponement and it was granted. The new trial date was firm: September 10, 1997, on the second-floor courtroom of the Susquehanna County Court of Common Pleas.

During the summer, Moses struggled to organize his defense strategy, but his client’s version of the shooting did not jibe with the state forensic pathologists’, who were not convinced that the hole in Dillon’s chest had been the result of a close contact wound. Even worse, none of the ballistics experts hired by Scher would dispute the FBI report that the doctor’s boots contained high-velocity blood spatter at trial. Given that Scher maintained he was more than 150 feet away at the time of the shotgun blast, it didn’t look good.

The angle of the wound was another problem. If Martin Dillon didn’t trip and fall on Scher’s shotgun, there was only one other possibility that might save Stephen Scher: that the lawyer had committed suicide.

In May, Moses arranged for Scher to meet with Dr. Richard Fishbein, a psychiatrist, to discuss Marty Dillon’s temperament and mood at the time of his death. In a two-hour interview, Scher related that Marty had been depressed for several years, and he even claimed that the lawyer had once confided in him that he’d thought of driving off a cliff. Scher also told Fishbein that Marty drank excessively and that he’d given the lawyer a prescription for antidepressants.

Dr. Fishbein then asked to speak to Pat, who concurred that her former husband had been unstable. She said that Marty took a lot of Tylenol for persistent head- and backaches and antacids for stomach pain. She added that he had a low tolerance for frustration and in the last few months of his life seemed tired and depressed, snapping at the children and at her. When the doctor asked what Marty’s relationship with Stephen Scher had been, Pat said, “They enjoyed each other’s company and they were close.”

For Pat Scher it seemed like a lifetime ago, her marriage to Dillon. Now, there was only one goal—to save Stephen Scher from going to jail.

*   *   *

As the trial date neared, locals in Montrose prepared for a flood of media. The county arranged to have the courtroom painted. The Public Avenue Deli braced for a busy fall. And the main hotel in town, Montrose House, turned away dozens of requests for reservations—almost all twelve of its rooms had been booked months earlier by Robert Campolongo and his team of assistants and investigators. John Moses and his assistants, Kevin Beals and Tom Specht, rented a house across the street from the borough police station and set up an office with charts and computers in the living room.

The trial was expected to last from four to six weeks. Just days before jury selection, Stephen Scher and John Moses sat down to review what they had. A decision had already been made: The defense would concede that there had been a sexual relationship between Scher and Pat Dillon. The prosecution’s army of witnesses who had lived on Kelly Street or worked in Montrose General Hospital would surely sway the jury anyway. It was better, Moses believed, to admit to the affair and possibly drain some momentum out of the prosecution’s case.

There was another reason John Moses wanted to stress the defense’s honesty with the jury. If he could convince the twelve men and women that what they would hear was the truth—even if it seemed detrimental to the case—he believed they had their best chance.

Stephen Scher must have realized that his account of what happened on June 2, 1976, would not suffice. In the days before the trial, undoubtedly under extreme pressure, he finally broke. For the first time in twenty-one years, he admitted that he’d lied about what happened at Gunsmoke.

The story was about to change. Again.