Scarface and the Untouchable

by Max Allan Collins

  Finally, a soft, breathy voice came on the line. Ness asked who was speaking; Capone identified himself. Ness said to look out the window “for something interesting” at eleven o’clock. Capone, growing impatient, asked what this was all about. Ness hung up, grinning.

  When eleven o’clock arrived, the parade made its appearance on Michigan Avenue, truck after truck cruising under Capone’s window, no faster than fifteen miles an hour. Many were brand-new, confiscated before the gang could make back the purchase price. Some bore the names of fake businesses, but their former owners recognized them easily enough. One was probably the truck Capone had bought early in his career, seized by the Untouchables in their first raid—the one piece of evidence proving the Big Fellow’s direct involvement in bootlegging.

  Capone could see thousands of dollars sluicing past him like water from a broken pipe. And these trucks represented only a fraction of what the Untouchables had taken from him.

  Ness sat in a parked car outside the Lexington and watched the windows as the parade rumbled by, searching for any sign of Capone. He never saw the gangster, but an informant said Capone had vowed to kill him, even if it meant murdering him right outside City Hall. William Connors, a Chicago Prohibition agent who’d joined the Untouchables on some raids, recalled hearing “Capone was so mad that he wanted to machine-gun Ness but was restrained by some of his men.”

  Nothing would come of these threats. Ness could make the gang bleed, but he couldn’t steal its leader’s freedom. This Capone surely knew, once his rage cooled. The parade of trucks gave Ness his one brief moment of reckoning with the man the press had already begun calling his “nemesis.”

  Then he had to step aside to let the tax men take over.

  Capone leaving the Federal Building during his trial, October 1931.

  (Library of Congress)

  Twenty-Six

  October 1931

  Several days before the trial, a list of one hundred potential jurors reached Al Capone—thanks to what Frank Wilson called “an underhand method and the payment of a large sum of money.” Or, business as usual in Chicago.

  Capone turned the list over to Outfit associates to start bribing and influencing potential jury members. A file of ten men who’d fallen prey to these efforts came to Wilson either from E. J. O’Hare or St. Louis newspaperman John Rogers. In his chambers, the judge looked expressionlessly at the ten names Wilson gave him.

  Wilkerson said he didn’t have the list of one hundred potential jurors yet, adding he couldn’t request it now without raising suspicion. “We will sit tight and wait for it to come to me.”

  The next day, Wilson and George Johnson were called into Wilkerson’s office, where the judge had the list—which included the ten tainted names, jurors 30 through 39.

  But Wilkerson kept his intentions to himself, telling Johnson to go ahead with his case.

  “Leave the rest to me,” he said.

  October 6, day one of the trial, the usual Capone-drawn crowd gathered, including several pickpockets who got themselves arrested. The defendant himself came in on Dearborn Street, a detective squad escorting him into an elevator. Just before 10:00 A.M., Capone was seated before the judge with a narrow aisle separating him from prosecutor Johnson, the adversaries trading appraising glances.

  Johnson was a study in gray—gray flannel suit, gray hair, broken only by the gold of his wire-rimmed glasses, “lean and lawyerlike,” the Tribune said.

  No yellow suit for the defendant today, rather blue serge with a white breast-pocket handkerchief, white-and-brown tie, and diamond-studded gold chain. No knuckle-sized diamond ring, either, just a well-barbered gent whose scars were powdered into near oblivion.

  A reporter asked, Was he worried?

  A chuckling Capone said, “Well, who wouldn’t be?”

  Soon Wilkerson—in a suit, not judicial robes—was on the bench asking, “What is the plea?”

  “Not guilty,” Michael Ahern said.

  “Is the defendant in court?”

  Capone rose and faced the judge. All very perfunctory, until a few minutes into the proceedings, Wilkerson surprised the defendant and his attorneys with a seemingly matter-of-fact order to the bailiff.

  “Take this entire venire to Judge [Barnes’s] court,” he said. “And bring his venire to me.”

  To the uninitiated, this might have seemed a routine request. Only the smug smile coprosecutor Dwight Green was giving Capone said otherwise. That, and Capone’s scowl in response.

  What Wilkerson had done was remove all one hundred tainted potential jurors, swapping them for a new, untainted bunch.

  The fix was no longer in.

  And lawyers Ahern and Albert Fink could do nothing about it. About now, Capone might be wishing he had his usual counsel, prime litigator Tommy Nash, whose absence from this trial has never been explained. Instead, Capone got stuck with Nash’s bookish partner, Ahern, and assistant counsel Fink, a happy, scrappy warrior mostly on hand for his mastery of the new tax laws.

  Behind Capone sat a natty individual in gold-frame glasses, bodyguard Phil D’Andrea—violence at trials in Chicago courts had happened before, and Al would be ready.

  Early on Ahern objected to the number of reporters in the chamber—more than thirty journalists hogging the spectator seats, including Damon Runyon, who’d traded covering the World Series for this better tournament.

  The new panel of eighty potential jurors ambled in, bringing with them a “fragrant whiff of green fields and growing rutabagas and parsnips along with echoes of good old Main Street,” Runyon wrote. Because this was a federal court, rather than a municipal one, the venire need not hail from Chicago or even Cook County. Most came from rural areas and Chicago’s outlying suburbs, folks who “don’t feel right without a hoe in their hand,” as the Herald and Examiner put it. Where they came from, people tended to feel more sympathy for the dry law than big-city bootleggers.

  Ahern used his ten challenges to remove jurors most likely to be hostile to his client, including several who’d already served on one or more federal juries. Four had been on the grand jury investigating Capone’s brother Ralph, another on the one indicting Al himself.

  “It seems to me more than a coincidence,” the defense lawyer said. “The jurors themselves may be fair; but their selection certainly appears not to have been fair.”

  Ahern was suggesting the prosecution, or even Wilkerson himself, stacked the jury. Losing a fixed jury dealt Capone a serious blow; the sequestered jurors would be sheltered from bribes—probably.

  To the jury, the judge emphasized Capone was on trial for tax evasion and nothing more. Only how the defendant handled his taxes was pertinent, and if any reasonable doubt existed of Capone’s guilt, he should be acquitted.

  Nonetheless, Capone was not going to get a fair and impartial trial by a jury of his peers. Some jurors already thought Capone should be convicted for being a gangster, while others disliked Italians and/or Catholics. Another said, “To hell with the evidence!”

  Years later, juror Arthur O. Prochno reflected, “Like other newspaper readers, I had formed a pretty fair picture of Capone. I understood that he was a terrible man who did not hesitate to murder those who stood in his way.” Prochno knew about the O’Banion, Aiello, and St. Valentine’s Day murders. “To me, as to many others, [Capone] epitomized all that was evil.”

  The second day of the trial, defense lawyers Ahern and Fink seemed edgy and excitable, adamantly refusing to ignore (as the Herald and Examiner put it) “even the most minute technicality that might be made the basis of an appeal.” They objected to a juror and got nowhere. They made objections and comments throughout Dwight Green’s opening remarks. Then they waived their own right to an opening statement, and ignored the key issue—the statute of limitations on tax evasion.

  After preliminary testimony establishing Capone never filed an income tax return for the years in question, the prosecution began trying to link him to a taxable source of revenue.
Called to the stand was the pompous reverend Henry Hoover and several of his vigilante raiders, describing in detail the Hawthorne Smoke Shop raid of May 16, 1926. They swore Capone referred to himself as “the owner of this place,” with behavior appearing to confirm it. Having thus established Capone’s ownership, the government could enter the Hawthorne ledger as proof of income.

  On cross-examination, Ahern revealed his lack of courtroom skills by asking raider Chester Bragg the wrong question.

  “How do you have such a distinct recollection of this raid?”

  “Well, if you had your face busted like I did you wouldn’t forget it for a while.”

  Fink fared even worse, stupidly getting raider Frank Morgan to discuss being beaten by a blackjack and/or brass knuckles. Now Capone looked like the brutal thug he sometimes was.

  The government remained focused on linking Capone to the casino. After Fink finished with Morgan, Dwight Green took redirect. “Mr. Morgan,” he asked, “did this man . . . have any marks on his face of any kind?”

  “Yes, he had a scar on his face.”

  “Do you recall which side of his face?”

  Fink cut in: “Now, don’t look at him when you answer the question.”

  Addressing the jury, Morgan said, “The left side.”

  Green repeated it for emphasis: “The left side.”

  “As I recall it.”

  And all the jurors, and for that matter the spectators, sent their eyes to Capone to confirm the identification.

  “That is all, Mr. Morgan,” Green said.

  “That is all,” Fink added.

  After lunch, the prosecution produced their star witness—Leslie Shumway, cashier/bookkeeper for Outfit gambling operations in both Cicero and Florida.

  Anxious and gaunt, with spectacles perched on his beaky nose, Shumway seemed older than his fifty-three years—“a drab, bald-headed man of uncertain age,” according to the New York Times. He avoided meeting Capone’s gaze, and held a hanky or hand over his mouth throughout much of his testimony, nearly inaudible to all but the judge, questioner, and maybe the jury.

  The witness handed over the loose-leaf, thirty-four-page Hawthorne Smoke Shop ledger with daily reports in his own hand and sometimes that of managers Pete Penovich and Frankie Pope. This was the next crucial link in the prosecution’s chain of circumstantial evidence. The raiders placed Capone in the Smoke Shop, reporting his claims to be its owner. The ledger proved the place had turned a profit. Now they needed Shumway to link Capone with those profits by identifying him as the top man.

  Coprosecutor Jacob Grossman questioned the witness: “Now you stated a little while ago that Mr. Penovich and Mr. Pope were the managers.”

  “Yes, sir.”

  “They were sort of bosses right over you?”

  “Yes, sir.”

  “Who was the boss over them?”

  From the defense table, Fink said, “If there was one.”

  Grossman amended, “If there was one.”

  “And if he knows,” Fink put in. “That is really a conclusion, if your honor please.”

  The judge said, “It may or it may not be. It may be a fact, if he knows.” Wilkerson asked the witness, “Do you know?”

  “Well, from hearsay,” Shumway said, “or what I was told.”

  Grossman asked the witness who had told him.

  “Mr. Penovich.”

  “Anybody else tell you?”

  “Yes, Frankie Pope.”

  “Well, who was the man that they mentioned?”

  Several shouted defense objections were sustained. Wilkerson advised Grossman to try a different tack.

  Grossman asked, “Just what part of the place did you occupy as an office?”

  “I was right next to the cashier.”

  After getting Shumway to describe the office, Grossman asked, “Did you at any time see the defendant, Alphonse Capone, in that establishment?”

  “Yes, sir, I have seen him in there.”

  “Where did you see him?”

  “Well, it would be in the office because I would never be anywhere else.”

  Grossman then pressed Shumway on whether Capone had ever gambled in the place. The bookkeeper said Capone had placed some bets directly over the race wire, but never from the main floor like a normal patron—further suggesting the defendant enjoyed privileges of ownership.

  Shumway described how he’d walked each day’s profits to a safe in another building down the block. He usually traveled by himself, running the risk of robbery. Capone, he said, “asked me what I would do if I was stuck up, if I got stuck up, and I told him, I says, I would just let them take it, and he says, ‘That’s right.’ ”

  In other words, Capone could give orders to the bookkeeper—strong circumstantial evidence Al owned the place.

  But Grossman wouldn’t leave it there. He kept trying to get Shumway to name Capone as the owner, and the defense kept objecting. Grossman sidestepped their objections with a fresh line of questioning.

  “Did you ever see Jack Guzik around these gambling establishments?”

  “Yes, sir.”

  “What if anything did he do around there?”

  “Well, he never did do anything. Just, he would come around.”

  “Did Guzik ever look at your books?”

  “No, sir, I don’t know that he ever looked at the books. He has looked at the daily sheet that we kept on the wall there.”

  The prosecution planned to show Capone and Guzik were business partners. By linking Guzik to the Smoke Shop, Grossman had given the jury still more reason to see Capone as its owner.

  But that wasn’t the same as positive proof. Finally, Grossman asked who the “boss” was, which brought more heated defense objections.

  Wilkerson closed the debate with a direct question: “Do you know who owned this place?”

  “No, sir,” Shumway said. “Hearsay—only from hearsay.”

  “With the explanations which all the counsel and the court have been making, can you say whether you know whose place this was? Can you answer that question yes or no?”

  “From positive proof, I could not say.”

  Capone’s attorneys had successfully stopped Shumway from implicating their client directly. But the prosecution had—effectively, if circumstantially—tied Capone to the casino’s profits.

  The defense chose not to grill Shumway on cross-examination. Instead, they asked where he lived (the Copeland Hotel) and whether he had a job. Shumway said he was unemployed, but had recently worked at a St. Louis racetrack—probably one associated with his old codefendant, E. J. O’Hare.

  As Shumway left, Ahern called out, “Can we get in touch with you at the Copeland?”

  Shumway said yes.

  “You won’t try to hide out on us, will you?”

  Shumway said no.

  The defense’s threat to recall the bookkeeper was an empty one.

  The next day the prosecution introduced the letter and other documentation from the meetings between Al, his lawyer Lawrence P. Mattingly, and four employees of the Bureau of Internal Revenue.

  The Tribune referred to the settlement offer as a “confession letter,” and even Fink admitted it was “most damning.” The Herald and Examiner ran a seven-column banner headline screaming: capone confession bared!

  Ahern objected: “Congress doesn’t want to send people to jail. Congress wants people to pay their taxes. It wants them to come in and settle with their government before criminal or civil action is started so it won’t have to be started.”

  Hadn’t Capone done everything expected of a delinquent taxpayer?

  “It is human nature to evade taxes,” Ahern said. “We had our Boston tea party—”

  “And what is this?” the judge asked. “Is this another Boston tea party?”

  “No,” Ahern said. “I don’t know what it is.”

  Ahern recovered slightly by saying the letter established Capone’s innocence.

  “To prove
an attempted crime,” he said, “there must be an overt act. These communications show Capone had abandoned any attempt to evade tax and is therefore guiltless of the felony counts against him.”

  The jury was removed as Fink went over the letter with the judge, describing it as tantamount to a guilty plea. And no lawyer could plead a client guilty without consent.

  “It is an effort to send a man to the penitentiary on his lawyer’s confession,” Fink said.

  “It might well do that,” the judge said, “ultimately.”

  Wilkerson clearly leaned toward admitting the letter, even as the defense tried frantically to change his mind. In the heat of the argument, they started referring to Capone as “Caponi,” a faux pas the prosecutors never made. Fink repeatedly questioned Mattingly’s competence, asking, “Was the man crazy?”

  With every word, Capone’s lawyers played up the letter’s significance, when they should have done the opposite. Better to question its accuracy, suggesting Mattingly stretched the truth to win a settlement. Nor did they argue Mattingly’s “without prejudice” meant the letter could only be used in negotiations with the Bureau of Internal Revenue—not in court.

  Instead, they argued the letter announced their client’s guilt.

  But despite Fink and Ahern’s obvious incompetence, they were right and Wilkerson was wrong—the Mattingly letter should not have been admitted. The standard rules of evidence did not allow the use of such “bona fide offers to compromise” as evidence in a criminal trial.

  Of course, the revenue agents at the meeting had effectively informed Capone whatever he said could be used against him. From this, Wilkerson ruled transcripts of the discussion between Capone, Mattingly, and the Bureau admissible.

  “When a man makes statements,” Wilkerson said, “he does so at his own peril. He cannot bind the government not to prosecute him.”

  The judge also allowed the letter as evidence.

  Fink’s response was straight out of Lewis Carroll: “This is the last toe. They have got him nailed to the cross now. This is just putting the last toe on him. . . . Let the whole thing go in now, because there are some things in this letter that at least indicate the lawyer is crazy.”