The Kidnap Years:

by David Stout

  **Williams helped to write the Constitution for Oklahoma. A Democrat, he was the state’s third governor, serving from 1915 to 1919. He was also the first chief justice of the Oklahoma Supreme Court. He was a federal judge for the Eastern District of Oklahoma from 1919 to 1937, then served on the U.S. Court of Appeals for the Tenth Circuit.

  ***In modern times, five people have been executed under federal law for kidnappings in which the victim was killed, according to the Death Penalty Information Center. Besides Gooch, they included John Henry Seadlund, executed for kidnapping and murdering Charles Ross.

  CHAPTER FORTY-SEVEN

  TUBBO AND TOUHY (ACT II)

  Statesville, Illinois

  Friday, October 9, 1942

  There was never any doubt that Roger Touhy wasn’t cut out for a law-abiding life, even though he was the son of a policeman. Eight years into a ninety-nine-year sentence for the “kidnapping” of Jake “the Barber” Factor, Touhy knew he wasn’t cut out for life in prison either.

  “I never made a good adjustment,” he recalled years later. “I tried to obey the rules and I did my work as long as I had a job assignment. But the thought nagged me constantly that I was innocent, that I had been framed.”191

  Yes, he had once profited mightily as a bootlegger, and he was friendly with all kinds of men on the wrong side of the law. He had been a Prohibition-era gangster. But he insisted that what he was not, for all his sins, was a kidnapper.

  Touhy’s claim that there had been no kidnapping, that Factor had faked the whole thing and been aided and abetted by Daniel “Tubbo” Gilbert, the mob-friendly investigator for the Cook County (Chicago) prosecutor’s office, would in fact be validated one day, though Touhy had no way of knowing that. Having just turned forty-four, Touhy longed to be reunited with his wife, Clara, and their two sons. He had even urged her to move far away, to cut ties with him and start a new life. But she had stood by him.

  In the fall of 1942, Touhy picked up prison scuttlebutt that several long-term convicts were plotting an escape. One of them was Basil “the Owl” Banghart, Touhy’s old associate who had also been found guilty and sentenced to ninety-nine years in the Factor case. Not surprisingly, Touhy wanted to be part of the breakout. After all, with his appeals going nowhere, what did he have to lose?

  “This is going to be a high-class break, with no dummies allowed in the group,” one of the plotters assured Touhy.192

  A date was settled upon: Friday, October 9, 1942. Though Joliet Prison was thought of as a hard place to do time and a hard place to break out of, Touhy believed the chances of escape were fair to good. He had observed that with able-bodied men away at war or working in defense plants, a lot of the prison guards seemed middle-aged and soft. And some guards were so friendly with the prisoners that they would pay them a few dollars in return for extra food (beef, coffee, bacon, sugar) smuggled out of the prison kitchen and destined for the guards’ homes.

  Early in the afternoon of October 9, Touhy rushed out of the prison bakery where he worked and surprised and overpowered the driver of a garbage truck. He was a little rusty behind the wheel, not having driven in eight years or so, but he managed to steer the truck across the prison yard to the mechanical shop, where Banghart worked.

  Banghart was armed with one of several handguns that the breakout plotters had managed to have smuggled into the supposedly high-security prison (apparently with the aid of the plotter’s brother). A guard in the mechanical shop was quickly overpowered, and Touhy and Banghart seized two ladder sections. Then they took the guard hostage, along with a lieutenant who supervised the shop and had the bad luck to show up just as the escape was unfolding. Five other prisoners who were in on the plot climbed aboard.

  Touhy drove to a watchtower near the main gate. The would-be escapees had trouble fitting the ladder sections together, yet somehow the guards missed the commotion or were afraid to react to it. According to Touhy, the guards did not carry firearms, though there were weapons in the tower.

  But as Touhy recalled it, the guards were in no mood to resist once they realized what was happening. “Please don’t take me with you,” one guard pleaded. “I’m an old man.”

  In no time, the escapees were on the other side of the wall where Touhy knew a car belonging to one of the guards was parked nearby, ready to be loaded with home-bound food from the prison.*

  The escapees crammed into the car and sped off toward Chicago, where they planned to hide out, probably not in a high-rent neighborhood. On the way, they abandoned the guard’s car and procured another with the aid of an outside friend of one convict.

  Once in Chicago, Touhy and Banghart found a cheap flat with rats and roaches for company. Two other escapees were cornered by police and killed in a gun battle. Another turned himself in. Perhaps hoping for leniency, he told everything he knew about the fugitives’ plans.

  A friend of an escapee had obtained some civilian clothes for Touhy and Banghart, but Touhy still wondered if they looked like the fugitives they were. During the day, he might take in a movie or even go for a walk—anything to pass the time.

  Touhy found the taste of freedom bittersweet. He couldn’t contact his wife and sons. No doubt, the police were watching them. And with a war on, there was a larger than usual number of lawmen on the streets, with FBI agents helping the police look for draft dodgers and deserters. Touhy half expected his stay outside to be a short one.

  Touhy and Banghart were asleep in the predawn blackness of Tuesday, December 29, 1942, when their apartment was suddenly filled with light from the outside. A voice boomed over a loudspeaker: “This is the Federal Bureau of Investigation. You are surrounded. You cannot escape. Come out with your hands up—immediately. If you resist, you will be killed.”193

  Touhy and Banghart surrendered peacefully. Their short vacations would add 199 years to their original ninety-nine-year terms. The other three remaining fugitives were captured around the same time. In an attempt to insinuate himself into events, Hoover had traveled to Chicago so he could be close to the arrests.

  “Nights are the worst time in prison,” Touhy wrote in his book. “Cons yell in their sleep. Some of them weep and call out for their mothers. The sense of shame for the present and remorse for the past rides them constantly.”194

  The years crawled by, and Touhy kept insisting he’d been framed in the Factor case. Hardly anyone listened, and no wonder. He had never been a sympathetic figure in the first place—he had been a gangster in the Prohibition years—and he had broken out of prison. And the people in Chicago, like Americans everywhere, were preoccupied with the war in Europe and the Pacific. But things were changing.

  In 1947, the Chicago Tribune reported that Daniel “Tubbo” Gilbert’s name was on a Department of Agriculture list of one hundred elected officials “gambling in the wheat market…when inside knowledge of administration market moves would have enabled a speculator in wheat to reap enormous profits.”195

  And in 1950, Senator Estes Kefauver of Tennessee brought his Senate committee to Chicago for hearings into organized crime. One of the witnesses was Gilbert. Amazingly, considering the public interest in the subject, he was allowed to give his testimony in private.

  Or perhaps it wasn’t amazing. Just cynical. Kefauver was known to have presidential ambitions, and he surely didn’t want to alienate the Chicago Democratic organization.

  But in an act of trickery that was a great public service, a Chicago Sun-Times reporter, Ray Brennan (who would later cowrite Roger Touhy’s book), obtained a copy of Gilbert’s testimony from the transcription service by posing as a Senate staff member. The revelation caused a sensation.

  In 1950, Gilbert was making $9,000 a year in his investigative post. Remarkably, though, he was worth about $360,000, he told the senators. How to explain a net worth equal to forty years of his salary? Simple, Gilbert said. He was good at gambling and commodities trading. No one believed that Gilbert was that good at poker or bridge or picking horses. But Gi
lbert’s success in commodities trading was much more plausible, given what the Tribune had uncovered in 1947.

  The Kefauver committee concluded that Gilbert’s time in office had been marked by neglect of his official duties and “shocking indifference to violations of the law.”196

  In 1950, Gilbert gave up his post of Cook County chief investigator to run for sheriff. But the stink he had given off for his entire career had become too much, even for Chicago voters, after the findings of the Kefauver committee.

  Meanwhile, Touhy’s family had hired a private detective who uncovered witnesses who said that John Factor had gone into hiding during the time he was supposedly a kidnapping victim. They recalled him playing cards, drinking liquor, and growing a beard.

  Eventually, Touhy’s appeals and other legal maneuvers caught the attention of Federal Judge John P. Barnes of the Northern District of Illinois. He had been put on the bench by President Herbert Hoover, a Republican. Did that make him more receptive than other jurists to delve into mischief by Democratic politicians? Perhaps no one has a right to say. But there seems to be little doubt that he was thorough.

  On August 9, 1954, in an opinion that ran to a remarkable 556 pages and 216 pages of notes, Judge Barnes concluded that there had been no kidnapping of Factor, that the whole thing was “a hoax, engineered by Factor to forestall his extradition to England to face prosecution for a confidence game.”197

  He found that Touhy’s conviction had been obtained by perjured testimony, with the full knowledge and indeed the connivance of Gilbert and Thomas J. Courtney, then the Cook County prosecutor. The judge found that Gilbert knew that Factor had been hiding out during his supposed kidnapping ordeal and had “suppressed important evidence on this point.”

  Prosecutors engaged in numerous shabby tricks “consistent only with a design to bring about the conviction of Touhy at any and all costs,” Barnes wrote. He found that the “sinister motives” of Gilbert “and the political-criminal syndicate” that he was part of lay behind the desire to exile Touhy so that what was left of Al Capone’s old mob could thrive.

  Nor did federal investigators and prosecutors, who had claimed they had a strong case against Touhy in the kidnapping of William Hamm, escape criticism. “That Touhy was indicted at all on the Hamm matter is something for which the Department of Justice should answer. They knew it was a very weak case.”

  Judge Barnes declared that Touhy should be released at once. He wasn’t, amid a debate over whether he had exhausted all his appeals in Illinois courts before turning to the federal system. The back-and-forth dragged on for five years before Touhy was freed in November 1959, having served twenty-six years for a “kidnapping” that probably never happened.

  On the evening of Wednesday, December 16, 1959, three weeks after his release, Touhy and his coauthor, Ray Brennan, discussed their book at the Chicago Press Club. Then Touhy and a friend and bodyguard, a retired police sergeant, drove to see Touhy’s sister. As they were going up the front steps, two men emerged from the darkness. There were five shotgun blasts, and Touhy’s thighs were riddled by the pellets.

  Roger Touhy died on an operating table a short time later. He was sixty-one. He had kept company with gangsters for most of his life. Gangsters hold grudges.

  By the time he died of a heart attack on July 31, 1970, at the age of eighty, Daniel “Tubbo” Gilbert had richly earned the label of “the world’s richest cop,” as the headline writers had dubbed him.198 He had amassed a fortune that enabled him to live on Chicago’s fashionable Lake Shore Drive; he also spent time in Southern California, where he had “extensive property and contracting interests,” as the Tribune put it.

  The funeral mass for Gilbert at Holy Name Cathedral in Chicago was attended by Mayor Richard J. Daley, one of the last of the big city political bosses, along with various businessmen and union people and an assortment of political trough feeders and hacks from the good old days. It was as though Gilbert had devoted his life to public service instead of lying down with mobsters, misusing his investigative powers, and using his office to gorge himself financially.

  One has to wonder if Gilbert ever felt guilty, ever confessed to a priest that he had committed one of the biggest sins of his life in pointing the finger at Roger Touhy. Did flights of angels take “Tubbo” to his eternal rest? Or did they drop him off in purgatory for some soul cleansing before heading for the pearly gates?

  A law, after all, is only a collection of words, and not always very clear words at that. So was passage of the Lindbergh Law, spurred if not inspired by the murder of a golden child, a good thing or not? Better to ask was it always used appropriately? The answer is no, as the execution of the hapless Arthur Gooch demonstrated. Did the Lindbergh Law deter some would-be kidnappers? Impossible to say. How much did the FBI contribute to solving kidnapping cases in which it played a secondary, even marginal, investigative role? Again, impossible to say. The Lindbergh Law was a reaction to a crime wave, a wave that some public officials rode to power. No one rode this wave more skillfully than J. Edgar Hoover, who survived early blunders by his agency, blunders that would have doomed a less skilled, less ruthless bureaucrat. Perhaps he could have built his FBI without the Lindbergh Law, as Congress responded to the Depression-era crime wave by federalizing various interstate offenses. But it was the kidnapping epidemic of the 1930s, most infamously the Lindbergh tragedy, that inflamed public sentiment and paved the way for a national police force.

  After the thirties passed into history and the kidnapping epidemic subsided, there was a new mission for Hoover, one that involved the very security of the United States: hunting down Nazi spies and saboteurs. In 1942, his men caught eight Nazi agents who had been put ashore on Long Island and the coast of Florida from German submarines. They were carrying explosives they planned to use to sabotage American factories. Six of the Nazis were soon executed; the remaining two were sentenced to long prison terms.

  During the Cold War, as the Soviet Union acquired the atomic bomb and loomed as the new menace, Hoover’s men pursued Communist spies. But as the threat from the Kremlin subsided or at least seemed less existential, Hoover’s zeal was unabated. He saw Communist threats behind civil rights demonstrations and antiwar protests. He even viewed the Communist Party of the United States as a security threat, while virtually everyone else saw it as a tiny collection of harmless and naïve idealists.

  That was quintessential Hoover: stuck in amber, forever seeing America and the world through his personal lens.

  Hoover built the FBI into a modern crime-fighting force, with a laboratory relied upon by lawmen across the country and a police academy that has sharpened the skills of legions of local police officers. Along the way, he trampled on individual liberties and intimidated politicians with his collection of secrets. While he acted the part of a strict moralist, he had no compunctions about spending bureau money and using bureau people for strictly personal ends—improvements to his Washington home, for example.

  And no wonder he felt so entitled. From the day he took office, May 10, 1924, until the day of his death, May 2, 1972, at the age of seventy-seven, the name J. Edgar Hoover was synonymous with the FBI. No director since has achieved such power and inspired such fear, and none ever will again. Since 1968, Senate confirmation has been required to seat an FBI director, and his term is limited to ten years.

  How many Americans could name the present director? (At the time of writing, Christopher Wray.)

  It is remarkable, even amazing, how time changes images. The building that houses the Department of Justice, the FBI’s parent agency, is named after Robert F. Kennedy. When Robert Kennedy became attorney general in 1961, it was because his brother, President John F. Kennedy, wanted someone in his cabinet whom he could trust totally—a consigliere, if you will. Robert Kennedy was thirty-five when he became attorney general. He had a law license. Otherwise, he had no qualifications, save one: his last name. The appointment of Robert Kennedy was shameless nepotism. Yet
today, he is respected, even revered.

  The building that has housed the Federal Bureau of Investigation since 1974 is named after J. Edgar Hoover. There are still people who admire him and what he stood for. There are many others who would like to take a crowbar, pry Hoover’s name off the building, and rename it for almost anyone else.

  Today’s FBI is still struggling with “his complex and enduring legacy,” as the agency acknowledges on its website.199 “Fairly or unfairly, Hoover was criticized for his aggressive use of surveillance, his perceived reluctance to tackle civil rights crimes, his reputation for collecting and using information about U.S. leaders, and his seeming obsession with the threat of communism.”** Fairly or unfairly? I’d say fairly.

  The post-Hoover FBI has had its triumphs. One notable one came in 1994 when agents caught Aldrich Ames, a case officer for the Central Intelligence Agency who for years had been passing secrets to the Kremlin and living the good life with payoffs from Moscow. Ames pleaded guilty and was sent to prison for life.

  Then there was the disgraceful episode of Robert Hanssen, a veteran FBI counterintelligence agent who was arrested in 2001 for passing secrets to the Soviet Union and Russia. Like Ames, Hanssen was motivated by greed, impure and simple. He, too, pleaded guilty and was sentenced to life behind bars.

  Had a Judas like Hanssen been caught while Hoover was still in power, the director probably would have erupted into purple-faced, spittle-flying rage. He also would have been heartbroken to see his beloved bureau exposed for what it had always been: human and imperfect. It would have been small consolation to Hoover that the FBI itself nabbed the traitor in its midst.