THE NEXT MORNING, with the jury out of the room, Judge Stout ruled, at Judi Rubino’s request and over strenuous objections by Mark Greenberg, that Jay Wolchansky could testify against Walter under a false name in order to preserve his safety in jail.
When the jury was brought back into the courtroom there was a witness on the stand already, a prisoner; Thomas James thought he looked like a loser and assumed correctly that the morning delay had been caused by the lawyers’ arguments about him.
This was Jay Wolchansky, burglar, forger, drunk, and paranoid schizophrenic protégé of John Hall—the man to whom, the Commonwealth would argue, Walter had told the full story of Barbara Jean’s murder. On the stand, Wolchansky spelled out a false name—Jason B-a-n-a-c-h-o-w-s-k-i—and swore to tell the truth.
Walter couldn’t believe it. What was this guy doing? This guy he’d known from jail, not well, had made up a story about him and now was sitting there on the stand, not looking at him, trying to get him executed.
Rubino led Wolchansky through a description of himself as a good man who’d hit hard times, his lengthy criminal record the result of drug and alcohol problems caused by a difficult divorce. He said he’d never committed a violent crime and felt that if not for his troubles with alcohol and drugs he would’ve been the productive citizen he’d always wanted to be. He was through committing crimes, he said, and was coming forward to take his punishment and, at great risk to himself, tell the truth about the horrible child killer he’d met in prison.
To emphasize that Wolchansky was willing to take his punishment, Rubino repeated three times that he’d pled guilty to his latest round of attempted burglaries. He’d actually pled “no contest,” but “guilty” sounded better for Rubino’s image of a man who was taking responsibility. “No contest” sounded more like a man cutting a deal.1 Rubino understood that in the battle for the jurors’ perceptions, every bit counted.
Wolchansky explained to the jury that he’d come forward not out of any desire for personal gain but because Walter’s crime was disgusting. He said he had a daughter roughly Barbara Jean’s age, so Walter’s bragging about getting away with murder made him particularly sick. He swore he never got any favors from prosecutors in exchange for his information about Walter.
Rubino reiterated that Walter had lied to Devlin and Worrell to protect himself but had told “Mr. Banachowski” the truth, which he would now tell the jury. She led him through the story he claimed Walter had told him, of Walter killing Barbara Jean to pin the crime on John Fahy so he could marry Sharon.
As Wolchansky described this version of the crime and revulsion built in the courtroom, Rubino slipped in an important question: Had anyone introduced Wolchansky to Walter Ogrod?
“Yeah,” Wolchansky said. “John Hall.”
That was all she needed; it wouldn’t have been good for the jury to hear about Hall from the defense lawyer first, but there was no need to linger on his involvement in the case.
She went back to Walter.
“How many times did [Walter] talk about [the murder] with you?”
“Dozens,” Wolchansky said; they talked a couple of hours a day, out on the block. He didn’t take notes but wrote down everything he could remember when he got back to his cell so he could report it.
“And can you tell us why you were going to do that, Mr. Banachowski?”
“Because I have a daughter of my own, and the whole thing disgusted me.”
Rubino wanted to make the point that Wolchansky’s daughter would’ve been roughly the same age as Barbara Jean. But Wolchansky was visibly shaking,2 too nervous to follow his lines, the same problem he’d had testifying against David Dickson.
“How old is your daughter?” Rubino asked.
“Fifteen.”
“And what year was she born?”
“’81.”
“And how old would your daughter have been in ’88?”
“Ten.”
“Well if she were born in ’81, I could guess she would be about six or seven?” Rubino corrected him.
“Yeah,” Wolchansky agreed.
“In fact, is your daughter in the courtroom today?” Rubino asked.
“Correct.”
Rubino had seated Wolchansky’s daughter, Heather, in the front row, and Wolchansky pointed her out; there she was, living proof of Wolchansky’s determination to take responsibility for his crimes and change his life.3
She had him tell the story of the murder, then asked him regarding Walter, “How did he talk about these things?”
“I don’t understand,” Wolchansky said, missing his cue.
“What was his demeanor while he was telling you these things?”
“He was trying to fit in. There was only a few of us on the block that accepted Walter.”
At the defense table, Walter stopped taking notes on a legal pad—his usual activity during testimony—and just stared at Wolchansky. He couldn’t believe this was happening, Wolchansky lying his ass off with his daughter sitting in the front row waving to her daddy so he’d look good to the jury.
“After [Walter] told you all of these things, what did you do with the information he had given you?” Rubino asked.
“I wrote a letter to Joe Casey, Assistant District Attorney, and then I wrote a second letter to Lynne Abraham.”
“Did you ever ask the District Attorney’s office to do anything for you in connection with your cases?” Rubino asked.
“No.”
“Did they ever do anything for you connected with your cases?”
“No.”
“Up and until today, has anybody lessened your sentences because of your cooperation in this case?”
“No.”
Rubino went back to Walter’s supposed attitude when he discussed the murder. Wolchansky, in his nervousness, hadn’t made several of his points, and Rubino needed to make sure he did.
“He wasn’t embarrassed to tell you [about the murder]?” Rubino asked.
“At first he was. He didn’t know if he could trust me.”
“And then how did he become?”
“Flamboyant.”
“Did he say anything about what he intended to do after his trial?”
“He planned on suing the city for false arrest. . . . He said that his lawyer would get him off because all they had on him was a signed confession.”
“And how did his lawyer tell him he was going to get off?”
“[By] saying that he was tired and stressed out when he went to the Police Administration Building.”
Actually, Wolchansky said, Walter said he’d been excited to get to the Roundhouse, thinking the detectives were finally going to get John Fahy, but then had gotten scared.
“He thought his mother had said something to the police,” Wolchansky said.
“And what made him think his mother might have said that to the authorities?” Rubino asked.
“After they started questioning him, he thought that was the only person who knew anything,” Wolchansky said.
“Thank you, Mr. Banachowski,” Rubino said. “I have nothing further.”
Wolchansky, despite his nerves, had done well: the Philadelphia Inquirer described his testimony as “riveting.”4
For his cross-examination, Mark Greenberg had decided to take Wolchansky through his second snitch letter line by line, demonstrating that the structure and syntax of the letter itself proved the story in it was made up.5
The first sign that this might not be a good strategy had come a few days earlier when he’d tried to explain it to Stout and Rubino in chambers.
“How can you tell that [it was made up] from the structure of the letter?” Rubino had asked.
Greenberg pointed out Wolchansky’s use of parentheses in the passage about Walter forcing Barbara Jean to perform oral sex.
“What does the parentheses have to do with it?” Judge Stout asked.
“Because the parentheses, I’m going to argue to the jury, Judge, reflects an individual who is not recounting what was told to him by Walter Ogrod but is rather coming up, bald-faced, with a story he concocted with himself as well as with other people.”
“What are you talking about?” Rubino asked.
An argument that confused Judge Stout and Judi Rubino was likely to confuse a jury, but Greenberg persevered. It must have seemed to him that if he just pushed hard enough on each line of the letter, on the things in it that made no sense, Wolchansky would make a mistake and the letter would be exposed as fraudulent.
Greenberg’s main weapon for this assault would be sarcasm, which he employed from his first question.
“So, you’re telling this information [about the murder] to Joe Casey, to Lynne Abraham, because you’re performing a public service, right?” he asked.
“I meant to do the right thing,” Wolchansky said.
“Right. You’re performing a public service because a man has confessed to you in jail about killing a four-year-old child who was just like your daughter in 1988, correct?”
“Correct.”
“And your daughter, she’s a pretty girl, sitting right there . . . is that correct?”
“That’s right, correct.”
Greenberg, trying to mock Wolchansky, had instead pointed out his daughter again. He asked about Wolchansky’s criminal record, the eighteen convictions for burglary and forgery, and Wolchansky said it had all started because of a drug addiction.
Greenberg picked up Wolchansky’s January 1995 letter to Joseph Casey about Walter.
“Would you read along with me?” he asked. “And I’m going to mention punctuation, because you used some punctuation in these letters, is that correct?”
Greenberg began reading the letter to the jury.
“‘Mr. Casey,’” the letter started, “‘I’m the father of a young daughter, and little Barbara Jean would have been about the same age if she had continued to live. I want to do what is right but I have difficulty communicating with you or anyone at the District Attorney’s office. . . . I also have personal safety concerns about doing this, since I’m here in Philadelphia prisons with this person, his friends, and others who will put me in harm’s way. But . . . he can’t be allowed to go free and get away with the horrible and disgusting things he says he did to that poor little girl. He acts like it is all a game, and he laughs at killing that little girl.’”6
During her direct examination Rubino had tried to get Wolchansky to repeat the part about Walter laughing about the killing. He’d missed his line, but Greenberg had just read it for her.
Greenberg pointed out that this first letter had no information about the actual murder and asked if Wolchansky had had his notes from his conversations with Walter when he wrote it.
“Some,” Wolchansky said.
“All right, and you basically put down everything in the notes in the letter?”
“No, I just sent the letter for them to contact me, and I was going to explain to them.”
“All right. So, basically you put nothing from the notes that you had taken from these conversations with Mr. Ogrod in the letter, is that right?”
“Right. In the first letter.”
“What you’re suggesting is that you put it in the second letter?”
“Correct.”
Greenberg turned to Wolchansky’s second letter and read aloud: “‘Dear District Attorney Abraham, I am writing in regard to Mr. Walter Ogrod and his admitted murder of Barbara Jean Horn to me. He has told me the full story of this murder and of the events that led up to this murder. Mr. Ogrod goes on with this long-planned story of why he murdered the little girl, to set up the girl’s stepfather to be arrested for her murder. He also told me how he was going to get this little girl two times before the day he did, in fact, get her, and murder her. He had all this planned out for some time, and he had a place picked out,’ quote, ‘on the other side of Castor Avenue on Friendship Street.’ Period, end quote.”
“Right,” Wolchansky said.
Greenberg asked him about his use of quotation marks. “You’re telling Ms. Abraham what Walter is saying, is that correct? You’re not using your words, you’re using his words, is that right?”
“Some of them.”
“Some of them? Well, when you put the quotation marks around, ‘on the other side of Castor Avenue on Friendship Street,’ were those your words or his?”
“They were Walter’s words.”
“They were Walter’s words. All right. So, does that mean that where the quotation marks were not located in the other parts of the letter, they were not his words or they were your words?”
“They were a combination of both.”
“OK, so you’re mixing and matching his words and your words . . . is that true?”
“Yes.”
Greenberg had gotten Wolchansky to admit to using a lot of his own words in what was supposed to be Walter’s story, but at the cost of the jury hearing more horrible things about Walter.
“So he’s telling you a story where he plans all this in advance,” Greenberg said, “putting the electrical cord in the basement so he can strangle her so he can set up John Fahy in order to win the love of Sharon Fahy. . . . So he’s telling you he did this master plan with all these tools in advance?”
“Right,” Wolchansky said.
“OK. ‘When he went for the cord, it was missing,’” Greenberg read. “‘He became enraged that someone took it.’ Now . . . you used the word ‘enraged’ a number of times?”
“Right.”
“All right. Did he use that word with you, ‘enraged,’ ‘he became enraged,’ or is that a word that you used?”
“He used it.”
“He used that. So Walter Ogrod, in describing how he became angry and mad, used the words, ‘I became enraged,’ right?”
“Right.”
Greenberg’s point—that “I became enraged” doesn’t sound anything like Walter—couldn’t matter to the jury, who’d never heard him speak.
“‘He then took Barbara Jean out his back door and down a driveway/alley,’” Greenberg read. “That’s what you have there, right?” he asked.
“Right,” Wolchansky said.
“Now, when he told you about taking her down the driveway, slash, alley, did he say ‘Driveway, slash, alley,’ or—”
“No,” Wolchansky interrupted. “I’m—I wasn’t sure on that point, if it was driveway or alley. He said he took her out the back.”
“What does that mean, that you didn’t write it down in your notes and get it accurately here or you weren’t sure what it was?”
“I wasn’t sure what he said,” Wolchansky said.
“You weren’t sure what he said, so you just put something in there that you thought he might have said?” Greenberg asked.
“Right,” Wolchansky said.
Wolchansky admitting that Walter’s confession was full of things he thought Walter only “might have said” was the kind of victory Greenberg hoped for. But to jurors trying to keep track of the back-and-forth, what Wolchansky was saying sounded reasonable.
Greenberg read about Walter crossing St. Vincent Street going south and continuing for another block.
“Now, by the way, he’s telling you that he’s carrying the body out in trash bags, right?”
“Right.”
“There’s no television box?”
“Not at this point.”
Greenberg’s point—that this part of the snitch story is impossible—was important, but the jurors were caught in the middle of claim and counterclaim, and Greenberg didn’t highlight it.
He kept reading:
“‘A dog started to bark. [Walter] became scared and left her body near the bushes, still in the trash bags. He then went home the same way and looked out of his window to see if anyone noticed the girl missing. Everything looked fine to him. He also became scared now and thought he might have left fingerprints on the trash bags, and says he went back to the bushes where he left the body, this time with a TV box he found on his street. When he went back he left the TV box near the curb at St. Vincent and Loretto Streets, got the body in the trash bags, and dumped her body, naked, into the TV box. He said she was lying on her side in a fetal position. He then went down to Tyson Avenue, to Castor and Magee, and dumped his gloves and the trash bags into a Dumpster.’
“So Mr. Ogrod is telling you that the trash bags he used to carry the child out initially, he ditched them in some Dumpster at Castor and Magee along with the gloves that he had stashed in the basement where he preplanned this murder, right?” Greenberg asked.
“Right,” said Wolchansky.
“Ok,” Greenberg said. He did not press Wolchansky about how long that walk would’ve taken, or how, in the middle of rush hour on busy Castor Avenue, Walter could’ve done it without anyone else seeing him.
Instead, he kept reading: “‘He says he then went home by the rear of his house. He says he looked out the front window, again things looked OK, he became excited and masturbated and showered. He said he was mad because he didn’t put the electrical cord around her neck to make it look like,’ quote, ‘John Fahy,’ end quote, ‘did the killing, and also didn’t put her in the alley as he planned because things went wrong,’ parentheses, ‘didn’t have the cord in the basement because someone took it, and because he was scared by the neighbors and a barking dog on Friendship Street,’ end parentheses. Is that how it reads?”
“Right.”
“OK. Now, the name John Fahy is there in quotations, is that correct?”
“Correct.”
“All right. Now let’s continue. ‘He says if he only put the cord on Barbara Jean’s neck, then the police would have gotten John Fahy.’ And in that sentence, John Fahy is not in parentheses, is that correct?”
“Correct.”
“And I guess that’s because you’ve already used parentheses before, so you did not have to repeat it, right?”
“With the parentheses, I was just emphasizing what he said,” Wolchansky said.
“When I say—I should have said quotation marks, the first John Fahy was in quotation marks, the second is not in quotation marks?”
“Right.”
Greenberg was trying to point out areas of the snitch story that made no sense, but there was no way for jurors to know that from a name being in quotes once but not the next time. Saying “parentheses” when he meant “quotation marks” only added confusion.
“‘He confessed to save himself,’” Greenberg read. “‘He says the reason he recants his statement is because his attorney told him the statement is all that the police have, and if we get rid of this, they have nothing.’”
Greenberg had just repeated Wolchansky’s claim that he, Greenberg, was the one who told Walter to recant his statement. The idea stuck with the jury; Thomas James felt that the witness had just exposed Greenberg’s defense strategy by revealing the real reason Walter had recanted.7
Greenberg read more of Wolchansky’s damaging claims about Walter to the jury: he “‘admits not having sex with adult women, but enjoys sex with young virgins because they have a sexuality at a young age, and because they are untouched by anyone. . . . He says he masturbates here two or three times a day, thinking of young virgins or the nurses and guards. He says that he became aroused by thoughts of young virgin girls or full-figured women.’ Is that what he said?”
“Right,” Wolchansky answered.
“And that’s the word he used?”
“Right.”
“Full-figured?”
Greenberg had read those accusations about his client aloud to the jury just to argue that full-figured wasn’t a term Walter would’ve used.
Greenberg’s strategy for proving Wolchansky’s letter was a lie might have worked if he’d been able to compare it with John Hall’s original letter about Walter, since Wolchansky’s story was Hall’s story, his motives for snitching were Hall’s motives, and even the format of his letter was Hall’s format—the page crammed with handwriting, key details added in parentheses or written in the margin, just like Hall’s. As it was, Greenberg had just read Wolchansky’s entire letter to the jury.
Greenberg turned to Wolchansky’s interview in March 1995 with Detective Gross and read that out loud, too—Gross asking Wolchansky if he wrote the letters, if anyone helped or advised him in writing them (no), when he’d first heard of the Barbara Jean Horn case, was the letter truthful (yes), was there anything he wanted to change (no), did anyone in law enforcement promise or offer him anything to write the letters (no), no one influenced what he wrote (right).
“Now, John Hall you know from prison, right?” Greenberg asked Wolchansky.
“I met him at the same time I met Ogrod.”
“All right. Let me ask you a question. Is his lawyer, John Hall’s lawyer, Marc Frumer?”
“Correct.”
“Who is your lawyer?”
“Marc Frumer.”
“You have the same lawyer?”
“We had the same lawyer.”
“You had the same lawyer,” Greenberg repeated, but he didn’t follow up on why this mattered, on how well Wolchansky knew Hall.
“Let’s continue,” he said.
He read the rest of Wolchansky’s interview with Gross to the jury, confirmed the date it happened, and moved on to the deal Wolchansky signed two days later. Rubino used objections to scoff at the notion that Wolchansky’s interview with Gross and his deal two days later were connected, but Wolchansky admitted he got eleven and a half to twenty-three months in jail and three years probation instead of the thirty years he might have gotten.
“So, in fact, you got a bargain, right?” Greenberg asked him.
“Right,” Wolchansky said.
Greenberg’s next line of questions was crucial: he was entitled to know if Wolchansky had any psychological problems that might have affected his ability to understand or remember what Walter had told him.
“Mr. Banachowski,” Greenberg asked, using the alias, “back when Mr. Ogrod is confessing to you, did you have mental problems?”
“No.”
Greenberg pointed out that he’d written, “I am currently receiving mental health treatment, but I know what is going on today” on his plea agreement.
“So in point of fact you did have mental problems when Mr. Ogrod is confessing to you, right?” Greenberg asked.
“No, that was drug and alcohol-related.”
“Well, sir, what’s written there is ‘mental health treatment,’ right?”
“I was going to the clinic for alcohol treatment.”
“There’s a difference between alcohol treatment and mental health treatment?” Greenberg asked.
Rubino objected, stopping Wolchansky from answering. She had the records showing he was paranoid schizophrenic and depressive and that throughout his time in jail with Walter had been filing requests to have his medication increased.
Judge Stout upheld the objection.
“That’s all I have,” Greenberg said. “Thank you, sir.”
On redirect examination Rubino had Wolchansky explain that the deal outlined on his plea deal arrangement wasn’t actually a deal because it didn’t protect him from the “backtime” he’d have to do for violating his prior parole. He testified that the judge who’d approved his deal hadn’t even been told he’d informed against Walter—in other words, that Marc Frumer, the lawyer Hall had gotten for him specifically to cut a deal for his Dickson and Ogrod stories, had never even told the judge that Wolchansky had cooperated with prosecutors.
“Did anybody ask you back then if you would testify against Mr. Ogrod?” Rubino asked.
“No.”
Then Wolchansky, under Rubino’s guidance, went even further: he told the jury he’d never even told Frumer, his own lawyer, that he’d cooperated with authorities.
“Did you ever discuss with your attorney that you had talked to a homicide detective and that he should bring that to the judge’s attention?” she asked.
“No,” Wolchansky said.
Rubino was pushing her story as far as she could, seeing if she’d get called on it.
Greenberg used a final rebuttal question to mock Wolchansky once more.
“You’re done being a criminal now?” he asked.
“Correct,” Wolchansky said.
“Good. That’s all I have.”
For her last question, Rubino turned Greenberg’s sarcasm around.
“And why are you done being a criminal now?” she asked.
“I have my daughter to take care of and my mother is getting old and I want to take care of her, too, and I’m going to stop using alcohol and go to treatment again,” Wolchansky said.
With that, the prosecution rested.
When I eventually found Jay Wolchansky, he wouldn’t talk. Later I found his daughter Heather. The first time I talked to her, she told me what a wonderful father he’d been, always keeping in touch when he was in jail; she described the elaborate calendars and decorations made from cigarette cartons that he sent her for Christmas or her birthday.
We talked about the Ogrod case. I told her I wasn’t suggesting her father thought Walter Ogrod was innocent and didn’t care. Hall probably told him Ogrod was guilty anyway and it didn’t matter how he got convicted, so why shouldn’t they use the story to help themselves?
No, Heather told me at first. That wasn’t possible—her father wasn’t like that.
She was hanging on to what she could of her father, I thought. Fair enough. He’d had a difficult life and some of his hardest times had come during her childhood, so she reflected a lot of his damage and had difficulties of her own.
I was surprised when she called back the next evening. She’d been thinking about it, she said, and she was sure her father would never have lied on purpose but the more she thought about it the more she thought I was right, Hall had made up the story and given it to her father. That made sense to her. She said there were boxes of papers in what had been his room at his mother’s house; he’d been back living with her in the little row house across the street from the Eastern State Penitentiary when he died. Yes, she’d show them to me if I came down.
I went to Philadelphia and sat with her; she didn’t say much, and her mother, Rose, Jay’s ex-wife, lurked angrily through the threadbare apartment. Heather took me over to Jay’s mother’s house and up to his room; there were boxes, but none of them had legal papers in them. Heather said she’d thought they’d been in there—maybe he’d thrown them away before he died.
I eventually got Jay’s medical records from his sister. Jail intake evaluations and psychiatric notes offer a look at his schizophrenia and addiction issues. But he can’t ever tell us in his own words what he knew about Hall and the stories Hall made up.
Marc Frumer knows a lot of the story and may even have correspondence and paperwork from Wolchansky and Hall that makes all this clear. When I got him on the phone, he was friendly at first. I told him I was working on the Walter Ogrod case and he cheerfully said I had the “wrong Marc,” that Mark Greenberg worked that case.
I’d talked to Greenberg, I said. But hadn’t he, Frumer, been John Hall’s lawyer?
Yes, he said, oh, yes, he had been, but he hadn’t had any involvement in the Ogrod case.
But hadn’t he been Jay Wolchansky’s lawyer, too? I asked.
There was a pause before he said, “You’ve done your homework.” Then he told me if I wanted to interview him I would have to write a formal letter requesting an interview.
Couldn’t he just tell me now if he would talk to me or not?
I would have to write the letter, he said. He confirmed that both Hall and Wolchansky had gotten deals in exchange for their Ogrod information but said I should take any other questions I had to the DA’s office. He hung up and hasn’t returned a call or answered a letter of mine since.
After the prosecution rested, Judge Stout called a lunch break. After lunch, in chambers, Greenberg told Rubino and Stout he’d have only five witnesses, three of whom were in the hallway waiting to testify. The others were out of town. Stout could let the jury know the defense would be done that afternoon, and closing arguments would happen on Monday.
Rubino was incredulous.
“You’re not putting Walter on?” she asked.
“No,” Judge Stout said, also surprised.
“We’ll have to colloquy him,” Stout said. That meant they would question him on the record, in court, to satisfy the judge that he was lucid, understood what his lawyer wanted to do, and agreed with the decision.
“Are you going to put on any character [witnesses]?” Rubino asked.
“No, I told you,” Greenberg said.
“None of the stuff you had on before?” Rubino asked, referring to the first trial.
“No,” Greenberg said.
“All of this has to be on the record so that there is no ineffective assistance [of counsel],” Rubino said, doubting her good fortune and wanting to ensure that Walter couldn’t claim on appeal that Greenberg didn’t know what he was doing. It’s one of the odd things about claims of ineffective assistance of counsel: no matter how bad a lawyer’s decision is, it can’t be considered ineffective assistance of counsel if the lawyer thought it was strategic.
“I have no problem with all that,” Greenberg said.
“You had all these character witnesses named,” Rubino went on, still in disbelief. “Let’s do a colloquy with Walter about character [witnesses], too.”
It’s true that every character witness Greenberg could have put on had a downside: people saying good things about Walter would give Rubino a chance to rebut them with people who would say bad things about him. But without character witnesses the jury wouldn’t hear from the people in Walter’s life who’d watched him get manipulated his whole life, who knew you could get him to do anything or give you anything—his car, his money, his house. They wouldn’t hear from his bosses that he’d been an honest, hard worker or from his friends with children that they’d trusted Walter to babysit, that he’d never shown any inappropriate interest in children.
Likewise, there was a risk if Walter testified: Rubino would have a chance to cross-examine him, and how Walter would do under cross-examination by a lawyer as smart, tough, and aggressive as Rubino was a fair question. But the jury was being told he’d confessed to the murder twice; how could they doubt it if they never heard his voice, watched his facial expressions, and listened to him try to explain his emotions? How could they doubt the detectives who said they never noticed Walter’s speech impediment or that he was “off”?
The jury would never hear from Walter or from an expert witness who could explain that false confessions did happen and that Walter was, on the night of his interrogation, essentially a walking risk factor for giving one. In fact, Greenberg would never even mention maybe the most important fact about Walter’s interrogation: that he hadn’t slept in two days by the time it ended.
A reporter was puzzled by the omission.
“At the earlier trial,” the Philadelphia Inquirer noted, “the defense said the defendant was exhausted [when he confessed], had been sleepless for 48 hours and that, under the circumstances, police were able to put words in his mouth. Greenberg did not make the same argument at this trial.”8
Without any context for the interrogation or testimony from people who liked him, Rubino’s vivid, sinister portrait of Walter went unquestioned, the jurors left to decide if the reasonable doubts his lawyer insisted on were enough for an acquittal.
Greenberg’s three witnesses, all detectives, were called to put focus on Ross Felice: the detective who’d noticed his behavior the night of the murder; one who’d taken David Schectman to the gym to identify him; and one (who turned out to be unavailable so Greenberg read out his testimony from the first trial) who’d taken Michael Massi’s statement a couple of days after the murder that the composite sketch was a “good likeness” of the man with the box.
With that, the defense rested. Thomas James and the rest of the jury were shocked. That night, James felt protective of Wolchansky, whom he considered a “hero” for doing a selfless act. He was even annoyed at Heather, Wolchansky’s daughter, for the apparent shame she felt about her father. He believed that Wolchansky was finally taking responsibility for his crimes without seeking a deal for his information, and that he was snitching because he felt terrible for the Fahys. During Wolchansky’s testimony he’d watched Walter’s reactions, and he wasn’t sure if everything Wolchansky said was true but was sure Walter recognized what Wolchansky was saying. He also didn’t think Walter looked angry enough for someone who really thought he was being lied about like that.9
In his journal, James wrote out Wolchansky’s story about Walter carrying the body in a garbage bag and only ever carrying an empty box without mentioning any of the ways it contradicted the facts of the case. He didn’t mention any of the issues Greenberg had tried to raise about the grammar or syntax of the letter; he was just surprised Greenberg read something so damning aloud.
David Miller, for his part, didn’t believe anything Wolchansky said and thought Rubino was using him to prop up her case. The whole story was too pat: Oh look, how convenient, they got a snitch. Wolchansky was too shifty and willing to please on the stand and, Miller thought, lied about not getting a deal.
As for the Devlin/Worrell statement, Miller wanted to scrutinize how it was phrased. He hadn’t trusted Devlin entirely, but it was hard to keep everything straight; the jury couldn’t take notes and would hear something one day, something else the next. It all went so quickly.
Walter’s colloquy came next, a bizarre courtroom moment in which meaning has been subjugated to words, when all the rules created to ensure fairness are silent in the face of a proceeding that defies common sense. A man whose entire defense hinged on the fact that he was not a fully functioning adult, mentally, that he was incredibly malleable, especially under stress, and especially when he wanted to please authority figures, stood in front of a judge who believed he was guilty and stated under questioning from his own lawyer that he understood his complicated legal situation well enough to make the informed decision to put on almost no defense. The lawyers said the words and he gave the answers, Greenberg going over every aspect of the trial so that Walter could say over and over that he approved every strategy, undermining his defense and damaging any chance he might have on appeal.
Yes, Walter agreed when asked, every juror had been selected with his approval; yes, he’d taken notes during the trial; yes, he knew what was going on in connection with the evidence presented against him and the evidence presented on his behalf; no, he was not dissatisfied with Greenberg’s performance in any way, not now or at the first trial; yes, they had specifically discussed whether he’d testify.
“We discussed the pros and cons about [testifying], is that correct?” Greenberg asked.
“Yes,” Walter said.
“And you would agree, sir, that, at that time, you agreed with my analysis that it was not necessary for you to testify based upon the presentation of the Commonwealth’s case?”
“Yes.”
“All right. Now, sir, let me ask you this question: Did I force you in any way not to testify?”
“No, you did not.”
Greenberg said he had witnesses on telephone notice who would come testify if Walter wanted them to.
“Sir, would you agree that at this stage you do not want to present character testimony, is that right?”
“That is so,” Walter said.
“Have I threatened you or forced you or coerced you to do anything in this trial, Mr. Ogrod?”
“You have done nothing. You have left me my own choice. This is my choice.”
“Judge, I think that does it,” Greenberg said.
You have done nothing. . . . This is my choice.
It was a fitting epitaph for his defense, Walter saying what Greenberg wanted him to say and what Rubino and Stout wanted to hear.
Judge Stout accepted the colloquy.