Frank R. Chester and Richard R. Laird killed Milano in December 1987, after luring him from a Bristol Township tavern into a secluded wooded area.
Several hours later, police found Milano’s body, his throat hacked out with a box cutter.
Chester and Laird were eventually arrested, each blaming the other for the murder.
Prosecutors called it an antigay hate crime, partly because both men indicated antigay animus while inside the tavern.
In May 1988, a Bucks County jury convicted both men of murder in the first, second and third degrees and sentenced them to death.
Chester and Laird also were convicted of kidnapping and related misdemeanors.
But jurors never heard about a toxicology report stating that Milano had between nine and 13 drinks shortly before his death, and attorneys for Chester are making an issue of that alleged omission.
Knowing the extent of Milano’s intoxication might have persuaded jurors that he wasn’t kidnapped, thus avoiding a second-degree murder conviction for Chester, according to the pleadings.
In Pennsylvania, a criminal homicide constitutes murder of the second degree if committed during the course of a felony, such as kidnapping.
During a recent evidentiary hearing, Chester’s appellate attorney, Daniel A. Silverman, said Thomas F. Edwards, Jr., Chester’s trial attorney, was remiss in not sharing the toxicology report with jurors.
Edwards couldn’t be reached for comment
Silverman said the report — in combination with other evidence — might have persuaded jurors that the men voluntarily drove around looking for drugs prior to Milano’s death.
Edwards “failed to use available forensic evidence to at least support an argument that Mr. Milano went with these men voluntarily — because if he went voluntarily, there’s no kidnapping,” Silverman said during the hearing. “If there’s no kidnapping, there’s no second-degree murder.”
Silverman called the report “one piece in the arsenal of a good defense advocate that should have been used.”
In March 2011, U.S. District Judge C. Darnell Jones 2d vacated Chester’s first-degree murder conviction on the basis that jurors weren’t properly instructed on accomplice liability.
Now the judge must decide whether Chester should receive a new trial on his remaining convictions.
If a new panel of jurors doesn’t convict Chester of murder in the first or second degree, he could be released from prison due to credit for time already served.
During the evidentiary hearing, Edwards explained why he didn’t make an issue of Milano’s intoxication.
“I think that [toxicology report] might have helped,” Edwards testified. “But you never know how a jury is going to react. I made the decision that I would not stress that, because it has been my experience that you do not attack or denigrate the victim.”
But according to defense pleadings, submission of the toxicology report wouldn’t have attacked the victim, but instead would have given jurors a fuller understanding of the incident.
Silverman told the judge that Chester didn’t participate in the actual stabbing of Milano.
“Laird was the sole killer, and Mr. Chester did not participate in any kind of conspiracy to kill,” the attorney said.
Silverman also gave the judge his version of events immediately prior to Milano’s death.
“When Mr. Milano gets out of the car, either voluntarily or involuntarily, Mr. Chester kicks him one time in the head, and then Mr. Laird — separate and apart from any kind of conspiratorial participation by Mr. Chester — takes Milano to the woods and proceeds to do what he did to Mr. Milano,” Silverman said.
Stephen B. Harris, chief of appeals for the Bucks County District Attorney’s Office, rejected that scenario.
Harris said both men kidnapped Milano and intentionally killed him.
Harris also said jurors were aware that all three men had been drinking in the tavern prior to Milano’s death.
In a related issue, Silverman said Edwards had a conflict of interest, partly because Edwards had a pending DUI criminal charge at the time of Chester’s trial.
“Mr. Edwards didn’t do certain things, in part, because of the conflict of interest,” Silverman said. “If we show that, then we think we’re entitled to relief, a new trial.”
Other alleged omissions by Edwards include failing to properly screen jurors, failing to cross-examine Laird, failing to call character witnesses on behalf of Chester and failing to inform jurors that Chester had no prior criminal record, Silverman said.
Silverman described Edwards’ personal problems during the trial as “off the charts.”
“The DUI, along with all the other things going on [in his personal life], distracted him to such a degree that it adversely affected his performance — the very definition of a conflict,” Silverman told the judge.
But during the evidentiary hearing, Edwards denied having any problems that rose to the level of posing a conflict of interest during Chester’s trial.
Edwards also denied signing an affidavit submitted by Silverman, in which Edwards allegedly swore he was “scared” he wouldn’t get into a pre-trial probation program for his DUI.
“Mr. Silverman sent me this [affidavit] and I felt it was a piece of manure, and I never would have signed it,” Edwards testified.
The affidavit isn’t notarized, but it appears to have Edwards’ signature affixed to it.
In an interview with PGN, Harris declined to express an opinion as to whether Edwards signed the document. But Harris noted that Edwards repeatedly testified under oath that he didn’t sign it.
Silverman had no comment for this story.
If Jones vacates Chester’s remaining convictions, an appeal will be filed with the U.S. Court of Appeals for the Third Circuit, Harris said.
If Jones doesn’t vacate Chester’s remaining convictions, prosecutors will promptly seek a new trial for Chester in order to reinstate his first-degree murder conviction and death sentence, Harris added.
“This was a vicious hate crime, and in our opinion both of the defendants deserve the death penalty for it,” Harris told PGN.
Laird’s first-degree murder conviction and death sentence were vacated in 2001 by a different judge, on the basis that he didn’t receive a fair trial.
But Laird received a new trial in 2007, and jurors reinstated his first-degree murder conviction and death sentence.
Laird is currently appealing that ruling in state court.
Chester, 44, remains on death row at the state prison in Graterford, Pa.
Laird, 49, remains on death row at the state prison in Franklin Twp., Pa.