Scarface and the Untouchable

by Max Allan Collins

  Finally, the trial was set for February 25, the day after the primary, in the courtroom of sixty-one-year-old James Herbert Wilkerson, who had overseen Ralph Capone’s prosecution for tax fraud.

  Wilkerson, in nearly ten years on the bench, earned a reputation as every gangster’s worst enemy. Once, in a fit of “righteous wrath,” he locked up the Cook County sheriff for letting two bootleggers run free.

  On the first day of the trial, the Federal Building swarmed with cops, plainclothes detectives, deputy sheriffs, lawyers, bailiffs, reporters, Secret Service ops, gangsters in their best business attire, and—as the Chicago Daily News put it—“people who had nothing much to do.” Outside, squad cars circled the block with sirens screaming while spectators worked at not “being trodden underfoot.”

  On the sixth floor, a two-desk roadblock supervised by Secret Service agents and marshals examined the credentials of all seeking passage. Certain would-be attendees were singled out for a frisk, while rejects scrambled to the railings of other floors to lean over and catch a look at the Great Man as he crossed the rotunda.

  Arriving early at the Adams Street entrance, Capone was heavier than on his last courtroom appearance, yet he moved gracefully through the crowd to dart up the stairs, looking prosperous and businesslike in his trademark pearl-gray fedora. No bodyguards in sight but with cops fore and aft, he laughed off requests to pause and pose.

  As he arranged his 235 pounds into a counsel’s table chair, he seemed to the Trib to have “the complacency of a milk-fattened shoat lolling in a mud puddle.” But they also commented on his sartorial splendor: “A platinum watch chain, studded with diamonds, crossed his waistcoat, and pearl-gray spats and a white silk handkerchief in his coat pocket set off his rich, blue suit.”

  Like Kris Kringle in Miracle on 34th Street, Capone had fan mail delivered to him in court, including a pink, perfumed letter he perused with a chuckle.

  He chatted up reporters about the Florida weather, the Depression, and an upcoming heavyweight bout. The Chicago Daily News caught him taking in the courtroom’s “white marble walls, its dull gold ceiling and ornaments and the preamble to the constitution in Roman letters above the door.”

  Al cheerfully answered the reporters’ more pertinent questions. Why had he failed to show at the grand jury in March 1929?

  “It’s on the up and up that I was sick,” he said. “I came up here when I was able to travel. I don’t mind seeing grand juries. I do everything I can to help them.”

  Asked whether he’d come by train, plane, or car, Capone smiled and said, “Oh, I just got here.” Between handshakes with reporters, feds, and cops, Capone claimed he hadn’t wasted money on Thompson’s campaign, and had dismissive words for Judge Lyle, who “tried to make a campaign issue out of me, but the public answered him.”

  The difference between him and Lyle, Capone said, was that Lyle “spent thousands of dollars trying to get into office, while I’m spending thousands to feed people.”

  This he said while fingering his ornate diamond-studded watch chain and wearing a ring with a single massive diamond.

  Capone planned to stay around Chicago a while, because the winter was a mild one. “I’ve been asked if I have come home to write my autobiography. . . . The last bid I had was $2,000,000—that included moving-picture rights, serial rights and book rights. But I’m not going into the literary business. That would be cutting in on the work of the boys who are writing about me.”

  Still, Capone was critical of a recent book about him—probably Fred Pasley’s Al Capone: The Biography of a Self-Made Man (1930).

  “I don’t belong in this book any more than I belong in a book by Horatio Alger,” he said. “I guess maybe I could write a better one, but that sort of stuff isn’t my line.”

  Al also said he wasn’t interested in going into motion pictures, though he’d seen an article saying he was.

  “Can you fancy that? Well, anyway, I’m not going into the movies. I’m no Mary Pickford.”

  The entire trial hinged on Dr. Kenneth Phillips’s sworn affidavit of March 5, 1929, saying Capone “for six weeks was confined to his bed . . . and has been out of his bed for only ten days,” or roughly since the last week of February.

  But thanks to legwork by J. Edgar Hoover’s Bureau of Investigation, the government witnesses would show Capone had been up and about as early as mid-January. Three policemen testified they’d seen him at the Hialeah racetrack that month; one recalled the gangster tipped him $10, as if he were a valet.

  A pilot swore he’d flown Capone to the Bahamas on February 2 in a plane with an open cockpit—tough for a man down with pneumonia. Six days later, witnesses said, Capone returned to the Bahamas by ship.

  The secretary for the Dade County solicitor told of Capone testifying on St. Valentine’s Day, and appearing “to be in good health,” unlike the North Siders getting gunned down in a garage that very hour.

  When Capone rose from his counsel table for the noon recess, police detectives approached.

  “Get your hat and coat,” one said.

  They’d come to serve Capone with Judge Lyle’s vagrancy warrant, “dog-eared and frayed in the pockets of many officers ‘looking’ for him,” said the Herald and Examiner. Capone made no protest and followed the cops out.

  Hustled into an elevator by a brace of detectives and deputy marshals, Capone was taken to a waiting squad car in a basement tunnel. Soon he was ushered into the Detective Bureau, where chaos reigned. Watching from fire escapes and in windows across the way, scores of young women screamed as if a movie idol had wandered into view. Dozens of cops, newshounds, and photogs swarmed the office as a grinning Capone took it all in.

  Capone’s attorney caught up with his client and immediately had the vagrancy warrant served by the detective squad. When Al probed a pocket, the cops ducked reflexively, but what he withdrew was a $10,000 real-estate bond—appropriate for a real-estate dealer, the occupation given in response to the vagrancy charge.

  The bond did not preclude booking Capone, who denied his “public enemy” status as he was fingerprinted, a first for him in Chicago.

  That taken care of, Capone returned to the Federal Building for the afternoon session, leaving under heavy police guard. The escort came courtesy of the police commissioner, who told the Tribune, “We don’t want Capone killed in Chicago.”

  Capone received the same royal treatment on the second day, but the circus atmosphere had died down. Most people eager to get a look at the Big Fellow had been satisfied the day before.

  But one “girl reporter,” as the newspapers described her, approached Capone timidly before the proceedings began. The defendant got up and bowed gallantly.

  “I wanted to ask you a question,” the young woman said, “but I am so flustered I can’t remember what it was.”

  Al gave her an indulgent smile.

  Then she remembered. “I wanted to ask you what you think of the American girl.”

  “Why,” he replied, “I think you’re beautiful.”

  Despite the evidence steadily piling up against him, Capone remained relentlessly cheerful, telling reporters he’d probably take the stand in his own defense.

  But his lawyers talked him out of it—questioning on cross-examination could drift into areas where their client would be uncomfortable. And Capone probably didn’t need much convincing after he saw how the judge and the lead prosecutor teamed up to dismantle Dr. Phillips.

  The unfortunate physician—a bespectacled, meek-looking man with a trim mustache—found himself caught between his fear of the Capones and the might of Uncle Sam. As the first defense witness, he was to describe Capone’s illness, and explain its severity.

  On cross-examination, however, Wilkerson and the prosecutor took turns pressing Phillips on claims in his affidavit, forcing him to admit to some misstatements while trying to squirm out of others.

  Why, Wilkerson asked, had Phillips told Capone’s Chicago doctor the illness was “not se
rious,” if the situation was in fact dire?

  “I didn’t want any more emotion stirred up than was necessary,” Phillips said.

  Wilkerson pressed on: “When you used the expression ‘confined to bed’ in the affidavit, you thought that taking airplane rides, steamer cruises and visits to the race track might be included in the ‘confinement’?”

  “I didn’t mean that.”

  “But when you said ‘confined to bed,’ you didn’t exactly mean that?”

  “That is right.”

  Phillips tried to walk back this apparent lie by claiming “confined to bed” didn’t necessarily mean bedridden.

  “ ‘Confined to bed’ means that the patient couldn’t work or perform the usual duties of a well man,” he explained. “Of course, he could be carried to his automobile and taken for a ride.”

  That unleashed a wave of courtroom laughter.

  Eventually, Phillips had to admit he’d never read, much less written, the affidavit. He’d simply signed the statement Capone’s lawyer dictated.

  Two nurses who treated Capone did better, maintaining their patient’s illness had been serious. But they’d stopped treating him in late January, well before the period in question. The meager defense put forward by Capone’s attorneys collapsed.

  Yet the defendant kept his cool, looking on “with an attitude,” said the Herald and Examiner, “ranging from jocularity to boredom.”

  During the closing arguments, Capone chewed gum, his jaw grinding to a halt as the prosecutor railed against him. Wilkerson let the state make its case without interruption, but frequently broke in on Capone’s lawyer, who grew so flustered he started referring to his client as “Capone-y.”

  This was not a jury trial; Wilkerson was the only one the lawyers needed to convince, and his attitude clearly telegraphed the verdict. The defendant’s self-satisfied demeanor eroded. According to the Herald and Examiner, “Capone leaned nervously forward in his chair, his face alert for the first time during the trial.”

  Even with the conclusion obvious, most observers expected Wilkerson to take some time deliberating. But the judge launched into his summary while Capone, dressed in what the Tribune called “a flashy brown suit,” listened nervously, squirming in his chair.

  Wilkerson dismissed Phillips’s affidavit as “glaringly false,” labeling Capone’s disregard for the subpoena a threat to the entire judiciary. The federal court, he said, “is to be respected, it is to be obeyed. . . . In no other way may the Courts operate.”

  Then came the verdict: “Upon the record as it stands here there is nothing for the Court to do except to adjudge the respondent guilty of contempt of Court . . . and as punishment for the contempt the respondent will be committed to the County Jail of Cook County for the period of six months.”

  Six little months? In the county jail? Capone went back to chewing his gum. The deal only got sweeter as Wilkerson continued the case for thirty days to permit an appeal, and let the defendant go on a $5,000 bond.

  Capone seemed to sense he had scant chance of reversing Wilkerson’s verdict.

  “If the judge thinks it’s correct, he ought to know,” Capone remarked. “You can’t overrule the judge.” But he flashed a smile to a press photographer as he left the Federal Building. Capone knew he wouldn’t see the inside of a cell till summer at the earliest, and could easily run his business from within the confines of Cook County Jail.

  The federal government had won its first victory against Public Enemy Number One, but the light sentence only revealed Uncle Sam’s impotence.

  A Herald and Examiner editorial noted Capone’s delight, and said Chicago would “have to do more than slap its enemies on the wrist. That is a foolish thing to do to an enemy who carries a six-shooter.”

  Perhaps to counteract such complaints, George Johnson’s office leaked rumors, saying, “Income tax investigators are completing the network of evidence which will result in the indictment of Capone.” The Tribune went on: “If Mr. Johnson maintains the ‘100 per cent’ standard of successful convictions thus far achieved, Capone is regarded as a certainty for Leavenworth penitentiary.”

  This didn’t sit well with J. Edgar Hoover, whose agents deserved credit for gathering evidence leading to Capone’s first federal conviction. Admittedly, the case had not required much investigating, and the meager penalty seemed to fit the level of work Hoover’s men had put in.

  But the Bureau of Investigation could still truthfully claim to have gotten Capone, and Hoover hated all the good press going to Johnson. When the special agent in charge of the Bureau’s Chicago office passed along Johnson’s thanks, the director scribbled his frustration at the bottom of the memo.

  “The U.S. Attorney’s enthusiasm now is rather annoying,” Hoover wrote. “It has taken us nearly two years to force him to bring this matter to an issue.”

  Two days later, when Hoover saw a glowing profile of Johnson in the Washington Evening Star, his anger boiled.

  “Well of all the bunk, this takes the prize,” Hoover wrote of the two years Johnson took to try Capone. “Now he basks in the sunlight of the effort which he did everything to avoid.”

  Soon Judge Lyle’s legendary vagrancy charge, also gathering dust, came to naught.

  On April 3, a well-dressed Capone—gray suit, gray-striped navy tie, pearl-gray fedora—returned to court to hear Judge Frank M. Padden dismiss the case. The prosecutor had been directed to bring in a complaint signed by a policeman acquainted with the defendant—any policeman.

  None could be found.

  “Couldn’t you find a single copper?” the judge asked.

  The prosecutor admitted as much.

  * * *

  In February 1931, Robert Isham Randolph, head of the Secret Six, accepted an invitation to meet with his nemesis, Al Capone.

  At the Lexington Hotel, in the back way and up a freight elevator, Randolph went through door after door, past thug after thug, until he was ushered into Capone’s suite.

  Coming around his enormous desk, a smiling Capone extended his hand, saying, “Hell, Colonel, I’d know you anywhere—you look just like your pictures.”

  Shaking his host’s hand, Randolph said, “Hell, Al, I’d never have recognized you—you are much bigger than you appear to be in photographs.”

  Surprised not to be searched, Randolph handed over his .45 automatic to Capone as if in offering. Then he asked to use the phone, saying he wanted to tell his wife, fearful of this meeting, that “everything is OK.”

  “Women are like that,” Capone said, and walked him to a private phone in an adjacent room. On Randolph’s return, glasses of “good beer” were waiting. The two men sat.

  “Colonel, what are you trying to do to me?”

  “Put you out of business.”

  “Why do you want to do that?”

  “We want to clean up Chicago, put a stop to these killings and gang rule here.”

  “Colonel, I don’t understand you. You knock over my breweries, bust up my booze rackets, raid my gambling houses and tap my telephone wires, but yet you’re not a reformer, not a dry. Just what are you after?”

  Randolph chuckled. “Maybe we are just campaigning to lower the price and improve the quality.”

  “Listen, Colonel—you’re putting me out of business. Even with beer selling at $55 a barrel, we didn’t make a nickel last week. Do you know what will happen if you put me out of business?”

  Capone told Randolph about the nearly two hundred men on the Outfit payroll—many ex-convicts, but respectable workingmen now. Put out of work, those men would almost certainly return to a life of crime.

  Capone offered to make a deal with the colonel.

  “If the Secret Six will lay off of my beer, booze, and gambling rackets,” he said, “I’ll police this town for you. I’ll clean it up. There won’t be a stickup, a murder, nor a poke [pocketbook] grabbed in Cook County.”

  Randolph declined.

  The .45 was returned to him, on hi
s way out.

  “So even respectable people carry those things?” Capone asked him with a laugh. “No hard feelings?” he added, as they shook hands.

  “No hard feelings,” his guest said.

  Randolph was not worried about being taken for a ride anywhere but back to his office. He felt that—“barring stick-ups, of course”—gangsters killed only each other, and the corruptibles with whom they were in bed. Crooked reporter Jake Lingle, for example, had been killed in public as a warning. The colonel felt his own protection came from the spotlight of the press and his “sincerity of purpose.”

  Capone, who largely confirmed Randolph’s account of their meeting to the Tribune, was frustrated his offer had been rejected. He would have stopped bombings of local companies and factories, among other crimes, in exchange for being allowed to peacefully run his beer business.

  “I laid my cards on the table and asked him to lay his,” Capone reflected. “Well? What do you think I got?”

  Ness in 1931.

  (Cleveland Public Library Photograph Collection)

  Twenty-Two

  February–May 1931

  Capone’s empire rested on a frothy foundation of beer. His product may have been “lousy,” as one competitor described it—weak, green, and hurriedly brewed—but it sold.

  A Secret Six investigation revealed Capone moved about a hundred thousand barrels of beer per week, enough to fill 25 million pints—or six for every resident of Cook County. Each barrel cost less than $3 to make and sold for $55, netting the Outfit a gross weekly profit of $5.2 million.

  “Of course, that’s absurd,” Capone told the Tribune. “Why, I don’t believe there is that much beer in the United States.”

  But with this immense income came tremendous overhead. To slake Chicago’s thirst, the Outfit needed breweries, large and hard to find; a fleet of vehicles, from delivery trucks to glass-lined tankers; and a legion of tradesmen earning regular salaries as brewers, coopers, drivers, and armed guards.