Scarface and the Untouchable

by Max Allan Collins

  “Then,” Maloy said, “he’ll make an announcement in court. He’ll ask for ten days to clean up his affairs. And then he’ll promise to leave Chicago and never come back.”

  This, Capone hoped, would settle his legal problems. The tax men were having difficulty building a case against him—maybe Irey and Wilson would declare victory and let him off with a fine.

  Capone made sure to sweeten the deal, knowing the Republican judge would be running for reelection in a very Democratic season—he offered Lyle a campaign contribution of $10,000. The judge was contemplating running for mayor as well. In next year’s Republican primary, Lyle could brand himself the man who’d chased Scarface out of Chicago.

  But Lyle hated the “public enemies” too much to even consider the offer. Not about to let Capone dictate the terms of his own surrender, the judge refused to wipe away all of Capone’s crimes with a small fine and a sentence of exile, telling Maloy he’d throw the book at Capone the moment he turned himself in. Not surprisingly, the gangster chose to keep his distance.

  Meanwhile, Capone kept up back-channel communications with Pat Roche and his investigators hunting Jake Lingle’s killer. The businessman emissary assured Roche’s representative the Big Fellow was working on the case but hadn’t yet come up with anything.

  The businessman claimed Capone had made inquiries throughout the Chicago underworld, employing fifty men to do so, but the killer was apparently hiding out of town. Or maybe he’d been rubbed out himself.

  Then, in early November, the businessman (who might have been E. J. O’Hare) met with Roche’s representative and nervously said, “Al wants to know if you will take the Lingle killer dead.”

  This question—or was it an offer?—came to Pat Roche and his boss, Charles Rathbun, six weary months into their search for Lingle’s killer. But they sent their businessman intermediary back with a message: “You can tell Capone that we know he has been bluffing and that he can go to hell.”

  Roche was not about to sign someone’s death warrant—anyway, he couldn’t prosecute a corpse. Capone was either a dead end or, worse, behind the killing—stalling and misleading the investigation. Ultimately, employing a somewhat questionable undercover investigator, Roche had a hand in serving up Leo V. Brothers as the assassin.

  Brothers was either the real shooter, or a patsy playing along—out of fear or for money or both—to help shut down the bothersome investigation. Brothers was reportedly enlisted by the ever-crafty Frank Nitto on Capone’s behalf. A small-time union racketeer from St. Louis, Brothers had come to Chicago eighteen months before to duck a murder inquiry. He claimed to have no memory of where he was the day Lingle was shot.

  Several eyewitnesses disagreed. With no visible means of support, Brothers was represented by four high-priced criminal lawyers, including John Dillinger’s future defender, Louis Piquett. Eight witnesses identified Brothers as the fleeing accomplice; seven did not. He received a fourteen-year sentence for a death-penalty crime, serving only eight, with partnerships in two mobbed-up businesses waiting on his release.

  Capone almost certainly fixed the trial. But had he ordered Lingle’s death? Or had the late Jack Zuta been responsible, perhaps doing Joe Aiello’s bidding, or maybe Moran’s?

  Either way, the guilt or innocence of Leo Brothers seemed strangely irrelevant.

  In mid-November, Eddie O’Hare reached out to his pal John Rogers, the St. Louis reporter, requesting an urgent meeting in Springfield. When Rogers arrived, he found O’Hare and an unnamed “gang associate,” who told them Capone’s offer to turn over the Lingle killer’s corpse had been discussed at a meeting of top Outfit leaders.

  When Jack Guzik objected, Capone had laughingly revealed it as a blind to win Roche’s trust. It seemed Al had imported five torpedoes from New York to kill Roche, George Johnson, Art Madden, and Frank Wilson. When all those officials turned up dead, Capone felt he’d be free of suspicion because he’d been helping Roche.

  O’Hare couldn’t name or even describe the imported killers, but somehow knew the men would be driving a blue sedan with New York plates. The St. Louis reporter brought the story to Johnson, Madden, and Wilson at the Federal Building in Chicago. The three alleged targets accepted a police guard while Wilson hurriedly moved his wife into a new hotel, without telling her their lives might be in danger. One Intelligence Unit agent wanted to round up Capone and “shoot him on the spot.”

  But not everyone took the threat so seriously. Roche confirmed Capone had offered to serve up the Lingle shooter, which the investigator had refused, proving that O’Hare’s tale had a basis in truth. Still, Roche had his doubts.

  “It seemed too bizarre, too unreal,” the Tribune reported, “too much like a movie thriller, to be true.”

  Then a trusted tipster called a Trib reporter who knew his voice but not his name, and said “a carload of gangsters from New York” had come to town “to kill some big shots here.” The informer didn’t mention Johnson, Wilson, or the other known targets, but did specifically name Judge John Lyle, the vagrancy-warrant king.

  “They’re tough birds, and one of them is known as ‘Max the Strong,’ ” the tipster said. “There’s five of them and they’re ridin’ in a Chevrolet sedan.”

  When the reporter asked when and where the killing would take place, the tipster hung up.

  Federal and state investigators fanned out across Chicago, searching for the blue Chevrolet and seeking to put Capone in handcuffs. In the early morning hours of November 30, they raided several Capone hideouts in Cicero and Berwyn.

  Judge Lyle himself took part in the raid on a Cicero apartment, filling the address in on the warrant by flashlight. Then the raiders burst in, front and back, with drawn guns. Finding no one home, they did discover a plethora of fancy pajamas and other clothing, all with the monogram “AC.”

  Other raids turned up more clothes with the same initials, but no sign of Capone or the shadowy killers. One of Roche’s investigators reportedly earned $500 calling Capone, warning him “that a posse had been organized to get him and for the good of his health he had better get out of town quick.”

  Intelligence Unit agent Art Madden had been spoiling for a fight with Scarface for years. Now he called Johnny Torrio to the Federal Building and laid down the law.

  “You tell Capone,” he said, “that if those five New York killers are not out of town by night, I’ll go after Capone with two guns!”

  Coolheaded as always, Torrio left and came back two hours later.

  “The men have been gone an hour,” he said.

  No one ever saw the elusive blue Chevy. Word came back to the feds, probably from O’Hare, that Capone had called off the killers and returned to Miami.

  Federal officials decided not to pursue the story any further. Guzik’s conviction and Nitto’s arrest proved the Outfit wasn’t all-powerful, but Wilson and others felt this alleged murder plot would build the gangsters back up.

  The feds kept the story under wraps until, in late April 1931, the Tribune published a detailed account including everything but Rogers’s and O’Hare’s names. The piece left Wilson “much disgusted.”

  “By that breach of confidence the lives of our informants may be in jeopardy,” Wilson wrote Irey, “and our chances of obtaining further help from this source may be eliminated.”

  That same day, Wilson’s wife, Judith, also saw the Trib story. For the first time, she understood why her husband had come to Chicago, and that he had been lying to her for months. She didn’t take it well. At the office, Wilson got a phone call from another agent’s wife, asking Frank to go home immediately and comfort Judith.

  “No,” Wilson said. “It’s best she fights it out alone.”

  No one ever saw the blue Chevrolet or the killers inside it; no concrete proof of their existence ever came to light. The descriptions given by O’Hare and the anonymous tipster are sufficiently detailed to seem credible, yet vague enough to ensure the feds would never find the car.

/>   By telling Madden the killers had taken a powder, Torrio may simply have been trying to defuse the situation. Or did he know the truth? That the hitmen and their Chevy didn’t exist?

  What if the anonymous Tribune tipster had been O’Hare himself? But how exactly could O’Hare have learned about the killers in the first place? The Capone crowd was a tight-lipped bunch, especially when it came to murder. Of course, the tipster could have been the unnamed gang “associate” who had accompanied O’Hare to Springfield. . . .

  Americans in those days ranted about placing Chicago under martial law, of dragging gangsters before military courts or just shooting them on sight. The cold-blooded murders of a judge, a prosecutor, and three federal agents could very well have kicked off such a crackdown. Just the rumor was enough to send armed men bursting through the doors of Capone’s hideouts, ready to shoot the ganglord on sight.

  “A theory held by one set of investigators,” the Tribune reported, “was that O’Hare invented the story of Capone’s threats in the hope that the government would seize Capone at once and that in the raid on his stronghold the gang czar might be killed.”

  The feds took O’Hare’s five-hitmen story seriously only because it contained a piece of privileged information—Capone’s offer to turn over Lingle’s killer—which they knew from Roche to be true. O’Hare, the probable liaison between Roche’s representative and Capone, may very well have fabricated that “information” in the first place.

  But “Artful Eddie” was a businessman, not a gangster—plotting to topple the Big Fellow would be exceedingly dangerous, if not suicidal. Perhaps he was doing someone else’s bidding—someone who could fill the leadership vacuum Capone would leave behind. This individual or a confederate might have been the third man who met with O’Hare and Rogers, the “gang associate” who backed up his unbelievable claims.

  O’Hare, and perhaps others in the Outfit, already considered Capone a liability. This mad murder plot only seemed to confirm the need for the Big Fellow to go. Or had it been concocted for that very reason—to remove Al Capone from the throne?

  The tax men, it seemed, had a valuable and extremely unlikely ally within the Outfit, sharing—for his own particular reasons—their goal of toppling Capone.

  As the year neared its close, with Al Capone not in prison, the Hoover administration began to lose its patience with George E. Q. Johnson. The president kept close tabs on the Capone case, receiving regular updates from Treasury, urging them to keep after the mob kingpin. But the Justice Department, which had recently absorbed the Prohibition Bureau, could show little in the way of progress.

  Attorney General William Mitchell and his assistant, G. A. Youngquist, couldn’t understand why Johnson still hadn’t prosecuted Capone for contempt of court, where they stood a solid chance of convicting him right away. Johnson wasn’t really dragging his feet—he merely remained as careful and methodical as ever. He would not take action until he had everything in order.

  And he would not settle for a lesser case simply to score political points, when he could get Capone on bigger charges.

  “Yes, George E. Q. is slower than the Second Coming,” Senator Charles Deneen observed, “but he grinds and grinds and grinds all the time.”

  Johnson’s bosses, sick of waiting, pushed him to grind faster. Everybody knew Capone was violating federal laws, Mitchell told Youngquist that fall, and whenever “a chance appears to convict him, not a minute should be lost.” The attorney general even suggested taking the contempt case out of Johnson’s hands and trying Capone in Florida, where his doctor had sworn out the false affidavit.

  “A Florida jury would make short work of him,” Mitchell insisted, “if given a fair chance.”

  But the attorney general chose another way of spurring Johnson to action. Back in July, after the Prohibition Bureau jumped from Treasury to Justice, President Hoover had dredged up his old plan for attacking bootleg gangs with small, elite squads of Prohibition agents.

  “I think it would hearten the situation a good deal,” Hoover wrote Mitchell, “if we could revive this idea and make such an organized staff under some special attorney.”

  Mitchell embraced the plan, and in September sent William J. Froelich, a twenty-nine-year-old special U.S. attorney from Omaha, to organize just such a flying squad in Chicago. This didn’t sit well with George Johnson. In a lengthy memo to Mitchell, he made it clear he didn’t want or need this young interloper showing him how to do his job.

  Johnson demanded the right to choose the investigators working on the Capone case, citing a need for absolute secrecy. Mitchell wouldn’t change his mind about Froelich, but agreed to the latter point. Johnson would also help select the head of this new special squad.

  The natural candidate was Alexander Jamie, who had directed the Bureau’s anti-Capone efforts so far. But Robert Isham Randolph was lobbying to get Jamie as chief investigator for the Secret Six. Jamie’s wartime work for the American Protective League—the private spy service set up by Chicago businessmen—made him uniquely qualified, and most of all, Randolph respected his integrity.

  “Thousand dollar bills were floating around like autumn leaves in the bootleg racket,” Randolph wrote, “and it was a great temptation to law enforcement officers to pick them up, but Jamie had the reputation of being fearless and incorruptible.”

  To get his man, Randolph reached out directly to President Hoover, winning Jamie a leave of absence from his federal job. Jamie left the Bureau on October 30, taking his first assistant, Don Kooken, with him to the Secret Six. Edna Ness followed a week later, resigning from the Prohibition Bureau to keep working as Jamie’s secretary.

  Her departure eliminated a potential conflict of interest—Eliot could now succeed Jamie as special agent in charge, without having to fire his own wife. On October 22, Jamie recommended his brother-in-law for the post.

  “Mr. Ness is known to you personally,” Jamie wrote to the director of Prohibition, “as is also his reputation for honesty and ability to hold such a position. Should you see fit to appoint him . . . I am sure that it would meet with the approval of United States Attorney George E. Q. Johnson and Col. Robert Isham Randolph . . . and would be considered advantageous to the Chicago program.”

  Jamie’s memo hints at a plan for a coordinated attack on Capone, one combining the efforts of the Secret Six and the special agents—and one in which Ness would play a major role. But the Prohibition Bureau prized seniority over strategy, and went instead with W. E. Bennett, former head of the special agents in Jacksonville, Florida.

  Soon after, the question of picking a leader for Froelich’s squad came up. Jamie again pushed for Ness, getting Randolph to pressure Johnson on Eliot’s behalf. Not that Johnson needed much convincing—he knew Ness and trusted him. With Jamie running the Secret Six, and Ness leading this squad of special agents, Johnson could step up his economic attacks on Capone, finally getting the results the White House wanted.

  New boss Froelich didn’t have a history with Ness, but he admired the young man’s record. All that Ness had done so far—from his undercover work and raiding in the Heights to his studies under August Vollmer and his wiretapping of Ralph Capone—had prepared him well.

  One day in late November, Johnson ordered Ness to meet with Froelich. Pleased when he got the news, Ness didn’t expect a leadership position. He would gladly have settled for just making it onto the squad.

  But when he met with Froelich, the tall, barrel-chested young lawyer offered him the top spot. Ness would lead a small team in a direct assault on the Outfit’s main sources of income, smashing its breweries and distilleries and gathering evidence linking Capone to the liquor racket.

  Eliot’s agents would work outside the Prohibition Bureau, serving instead as part of the U.S. attorney’s office. Although Ness would report directly to Johnson and Froelich, the choice of personnel would be his—and his alone.

  Whether he knew it or not, Ness had waited his entire career for just
such an opportunity. Finally, he could slough off the corruption, incompetence, and apathy dragging him down with the rest of the Prohibition Bureau, and show Chicago what he could do. By the finish of his meeting with Froelich, Eliot Ness was the lead Prohibition investigator on the Capone case.

  He was twenty-seven years old.

  Part Three

  On the Spot

  Eliot Ness’s Justice Department credentials.

  (Carolyn Wallace, ATF photographer / Bureau of Alcohol, Tobacco, Firearms and Explosives)

  Twenty

  December 1930–February 1931

  On Monday, December 8, 1930, Eliot Ness reported for duty as head of the new Capone squad.

  With him were two others from the Chicago Prohibition office—Maurice Seager, the slab-faced special agent with whom Ness had served in Cicero, and E. A. Moore, a “special employee” who had yet to pass his civil service test. That same day, George E. Q. Johnson requested transfers for four more agents stationed in other cities: Ulric H. Berard, Lyle B. Chapman, William J. Gardner, and Joseph D. Leeson.

  When they arrived in Chicago, Ness would have six men at his command, each making no more than $3,000 a year. Together, they would take on a multi-million-dollar criminal enterprise employing some two thousand people.

  “If this group . . . were to make a dent where 250 Prohibition Agents and quite a few thousand police had not,” Ness recalled, “a different kind of game would have to be played.”

  Ness had combed through the Prohibition Bureau’s personnel files, searching for agents who fit August Vollmer’s ideal of a proper policeman: hardboiled yet scholarly, streetwise yet scientific. Though he was himself a married man, Ness wanted young, courageous men without wives and children to support.

  And he needed specialists of various kinds—experts in wiretapping, tailing cars, shadowing suspects, and painstaking paperwork. Above all, each candidate had to be ready and able to resist massive bribes.