Scarface and the Untouchable

by Max Allan Collins

  * * *

  The next morning, the courtroom was packed for what everyone knew would be the last day of the trial. Impeccably groomed, jovial but anxious, Capone wore a new green suit as if taking to heart Ahern’s Robin Hood comparison.

  George E. Q. Johnson rose to give the final closing statement—his first remarks to any jury since becoming U.S. attorney. Capone made a show of ignoring him, pretending to read notes and documents handed him by his lawyers.

  “Mr. Johnson was earnest,” the Tribune reported, “so much so that he was almost evangelical at times, clenching his fist, shaking his gray head, clamping his lean jaws together as he bit into the evidence and tore into the defense theories of its meaning and lack of strength.”

  Johnson, in his pinched, reedy voice, preached the gospel of income tax. If the American people paid taxes only when the government came after them, the country would collapse—its military disbanding, institutions vanishing, and courts “swept aside.”

  “American civilization will fall,” Johnson insisted, “and organized society will revert to the days of the jungle, where every man will be for himself.”

  Who was this creature about whom the defense had woven “a halo of mystery and romance,” who lavishly wasted some half a million dollars?

  Johnson wondered, “Is he the little boy . . . who succeeded in finding the pot of gold at the end of the rainbow, that he has been spending so lavishly, or maybe, as his counsel says, is he Robin Hood?”

  Johnson indicated the plump man in green.

  “You will remember how Robin Hood in the days of the barons took from the strong to feed the weak and the starving peasants. . . . But was it Robin Hood in this case who bought $8,000 worth of diamond belt buckles, to give to the unemployed? Was it Robin Hood in this case who bought a meat bill of $6,500? Did that go to the unemployed?”

  No, it had gone to the house on Palm Island. Had he bought “$27 shirts to protect the shivering men who sleep under Wacker Drive at night? No.”

  Defense insinuations had Ralph Capone, not Al, present during Reverend Hoover’s raid on the Hawthorne Smoke Shop. But, Johnson asked, “Could anyone forget the hulking form of this defendant with the flaming scars upon his cheek? If it was Ralph Capone, if there was any question about it, why was not Ralph Capone called as a witness?”

  Johnson asked the jury to consider the case in its entirety.

  “Take every fact and circumstance, and consider it, and see how it keys into the other, and then when you see that, you will find that every page of this record cries out the guilt of this defendant.”

  Every witness testimony for Capone, the prosecutor reminded them, came “from the lips of a man who is violating the laws of the State of Illinois . . . so shifty they could not look you in the eye.”

  Johnson asked the jury to remember the countless men and women paying taxes on hard-earned incomes of barely more than $1,500 a year. He compared these $1,500 men and women who helped their government in a “time of national deficit” to a defendant whose “extravagances” testified to the wealth he so selfishly hoarded to himself.

  This case was, as the defense itself had indicated, historic. But people would not remember it, Johnson declared, because the defendant was Al Capone.

  “They will remember it for a more important reason,” he told the jury. It would establish “whether any man can be above the law, whether any man can so conduct his affairs that he can escape entirely the burdens of Government; and that is the record, gentlemen of the jury, that your verdict will write in this case.”

  He thanked the jury and took his seat.

  Arthur Prochno and his fellow jurors found the various closing arguments thrilling, but Johnson’s most of all, because it signaled the trial had reached its conclusion.

  Almost the conclusion, as Wilkerson took an hour charging and instructing the jury.

  “You are the judges of the weight which is to be given to the testimony of the witnesses who have appeared before you in this case,” Wilkerson intoned. “You have had many witnesses here who have testified from the witness stand, men from all walks of life. You have had government agents, ministers of the gospel, business men and other classes of witnesses.”

  That last seemed a veiled slight at the defense, whose parade of bookies belonged in a class all its own.

  Other parts of Wilkerson’s statement favored the prosecution. He talked at length about how the lack of any concrete proof of Capone’s income had forced the government to rely on circumstantial evidence. This reinforced the idea that Capone had something to hide, establishing the willful intent necessary to convict him of felony tax evasion.

  “Now,” Wilkerson said, “in this case . . . you may consider all the facts and circumstances which have been shown here in evidence. You may consider the evidence relative to the activities of the defendant in the places in Cicero. You may consider the evidence relating to the living by the defendant at the two hotels, the Metropole and the Lexington; the manner in which he there lived.”

  This included “moneys which were transmitted from Chicago to the defendant in Florida,” and “expenditures of money by the defendant in Chicago and in Florida.” Evidence of the possible business connection between Capone and Guzik was fair game, too.

  “You must look at the evidence as a whole,” the judge emphasized. “You must consider each fact in relation to all of the other facts, and so viewing the case arrive at a conclusion whether each one of the essential elements of these indictments . . . have been established to your satisfaction beyond a reasonable doubt.”

  When the judge had finished, the defense attorneys offered a few minor quibbles, but never seriously questioned his impartiality. One observer took this peaceful acceptance as “an unusual tribute which bespoke Judge Wilkerson’s ability.”

  The jury proceeded into deliberation with various notions about the appropriate sentences for Capone’s crimes. Other defendants had been jailed from two-and-a-half to five years for tax offenses. Although Capone faced a maximum of thirty-two years in prison, the jurors mistakenly believed they could send him away for up to seventy-two years. Some were ready, even eager, to “give him the limit”—nearly three-quarters of a century for not paying his taxes.

  According to juror Prochno, who gave his story to the Tribune half a decade later, the twelve men sitting in judgment of Capone had soon broken down into two distinct factions—one intent on convicting Capone on all counts, regardless of what might be said in court; the other with no illusions about the defendant, but wanting to make at least some effort to weigh the evidence.

  As one juror remarked, “A quick verdict would look bad for us. The public might think we framed and railroaded him.”

  Prochno said he became leader of this second faction. Once the jurors began deliberating, and the first two ballots revealed an even split between conviction and acquittal, those set on finding Capone guilty began lobbying Prochno to wrap things up.

  “You’re not dumb,” one said. “You know Capone is a bad man. The papers for years have been full of his activities, and now that we have the chance, let’s give him the limit. All you have to do is to give the word and it will all be over.”

  Another appealed to Prochno on grounds of shared ethnicity and class, suggesting Capone deserved harsh treatment because he was Italian and Catholic.

  “After all,” this juror said, “he’s only a dago.”

  The twelve passed around exhibits and debated what they might mean. But the substance of their deliberations boiled down to a question Chicagoans—and so many Americans—had wrestled with throughout Capone’s rise to infamous fortune: Was this man, this bootlegger, pimp, and killer, really all that bad?

  “He’s no good,” one juror said. Hadn’t the newspapers said he ran brothels and gambling joints? Another replied, “But he’s done good things, such as supporting soup kitchens and helping the poor.”

  Hours passed, and the jurors grew hungry.

  “
We asked for sandwiches, but didn’t get them,” Prochno recalled. Some jurors resented being starved into a verdict—even soup kitchens provided sandwiches.

  Their hunger only added to the growing sense of frustration and unease—they’d been sequestered for days, unable to see their families or go to church, their reading material strictly censored. No deliberations could be held on Sunday, so if they deadlocked tonight, they’d remain confined until Monday at the earliest.

  “We wanted to get home,” Prochno wrote.

  They voted to acquit Capone on the first indictment, covering 1924, which Johnson had pushed through in secret to skirt the statute of limitations, because they all agreed the prosecutors had placed little emphasis on it. Jurors determined to convict used that vote as a bargaining chip, convincing the others to come around on the second indictment.

  But the jury didn’t vote to convict on all counts. Instead, Prochno said, “we agreed to take the first counts in each year and call it quits.”

  This produced a somewhat confusing verdict, convicting Capone of misdemeanors for failing to file a tax return in 1928 and 1929, but acquitting him of felony tax evasion for the same years. In their haste, the jurors kept making mistakes, their foreman filling out the verdict incorrectly and having to start over. Another juror belatedly realized they’d convicted Capone of two misdemeanors while acquitting him of several felonies.

  “He’ll only get ten or twelve years,” the juror complained. “I want to give him more.”

  The others overruled him; they wanted to go home. Five years later, Prochno still seemed confused.

  “I really believe the final intent was to convict Capone on two, not three, felony counts,” he said, “and two misdemeanors.”

  But no matter—the jury had decided.

  All the painstaking detective work, legal wrangling, and courtroom drama amounted to nothing—the jurors voted to convict essentially at random, giving more thought to the defendant’s sordid reputation than the finer points of income tax law.

  And if the Prohibition case had gone to trial instead of the tax one, the result would almost certainly have been the same, though the law mandated a much lighter punishment for those charges.

  On the night of October 17, 1931, Al Capone was finally defeated at the hands of twelve tired, hungry men, who’d probably made up their minds before setting foot in Judge Wilkerson’s court.

  From the jury room, at 9:30 P.M., applause said the twelve had finally reached their decision.

  Capone and attorney Fink were at the Lexington Hotel when news of a verdict came. A few minutes later, the defendant darted into a waiting limo, a reporter ready.

  How was he feeling?

  Capone smiled—the lengthy deliberation could mean good news. “I’m feeling fine,” he said.

  Any comment?

  “Not a thing now,” he said, climbing into the comfy backseat of the humming vehicle, about to head north on Michigan Avenue.

  Within fifteen minutes, Capone had arrived. The defendant took his usual seat and sat mopping his brow with a silk handkerchief, but smiling. He and his attorneys chatted casually as the jurors filed in.

  The twelve men looked weary, solemn. Capone watched, curious but restrained. The judge emerged from chambers and took the bench, getting right to it.

  “Have you arrived at a verdict?”

  The foreman nodded and handed a sheaf of papers to a bailiff, who passed them to the court clerk.

  The clerk broke the pin-drop silence, clearing his throat. “We, the jury, find the defendant not guilty as charged in Indictment No. 22852 . . .”

  Capone’s big face split in a smile, for half a moment.

  “. . . and we find the defendant guilty on counts 1, 5, 9, 13, 18, and not guilty on 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21 and 22 in Indictment No. 23232.”

  Capone’s grin turned sick, his gaze lowering. He spoke to his lawyers, who then got up and went to the bench. Capone’s easy smile returned, his poise, too.

  A reporter behind him asked, “How are you feeling?”

  As he had outside the Lexington, before he’d made the ride to court, Capone said, “I’m feeling fine.”

  But he had nothing else to say—his attorneys would do his talking now. He was looking at a possible seventeen years behind bars—five years each for three felonies, one year for each misdemeanor, and $50,000 in fines. The final sentence, after a week of review, would be Wilkerson’s.

  George E. Q. Johnson wasn’t in court, but when reached told the Tribune, “The verdict speaks for itself.”

  The federal prosecutors wanted Capone sent immediately to Leavenworth. His lawyers demanded bail while their client’s appeals were in motion. According to the Herald and Examiner, courtroom observers predicted Capone would probably end up serving around five years in prison—no more than nine or ten.

  But Johnson, and the civic leaders who had supported his antigangster campaign, might not get their wish to put Capone behind bars before the start of the 1933 World’s Fair. Appeals could delay the start of his sentence for up to two years.

  “Should this prove the case,” said the Herald and Examiner, “the Capone gang is assured of adequate leadership. Al Capone himself will be able to keep the reins until Frank Nitti . . . is out of prison. Nitti will then be in a position to carry on for Al.”

  Meanwhile, the feds undertook a civil suit to seize Capone’s assets for unpaid taxes. A $137,328 lien was put on his Chicago and Florida homes (though he legally owned neither).

  “By the time the government finishes its collection,” wrote the Herald and Examiner, “Al may be stripped of all his personal property.”

  On Saturday, October 24, an anxious Capone arrived at his sentencing hearing, all alone in a putrid purple suit. He sat slumped, waiting for Ahern and Fink, and his mood lightened when they showed. Shortly, Judge Wilkerson emerged from his chambers.

  The tension in the courtroom was only heightened as the judge said flatly, “Let the defendant stand before the bar.”

  Capone rose and lumbered forward, his attorneys remaining seated. A U.S. marshal and the entire prosecution team met him at the bench. The Herald and Examiner found the once “fearless gangster” droop-shouldered and beaten-looking: “a picture of abject helplessness.”

  In a courtroom crowded but millpond still, Wilkerson read the income tax offenses and their maximum penalties. Capone glanced at Johnson and his other adversaries with a forced half smile, hands clasped behind him, a white bandage (as the Trib noted) “around a cut on his trigger finger.”

  “It is the judgment of the Court in this case,” Wilkerson said, “that on count one of the indictment, the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay all costs of prosecution.”

  Capone took that stoically, as did his attorneys—five years was what they had expected, any other sentences probably running concurrently.

  “On count five of the indictment,” the judge said, “the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay the costs of the prosecution.”

  Wilkerson continued: “On count nine of said indictment, the defendant is sentenced to imprisonment in the penitentiary . . . for a period of five years, and to pay a fine of ten thousand dollars, and to pay the costs of prosecution.”

  Capone listened intently.

  “On each of counts thirteen and eighteen of said indictment,” Wilkerson continued, “the defendant is sentenced to imprisonment in the county jail . . . for a period of one year, and to pay a fine of ten thousand dollars, and to pay the costs of the prosecution.”

  The sentences on the first and fifth counts would run concurrently. But the rest would “be consecutive and cumulative.”

  Finally, Wilkerson said, “The result is, that the aggregate sentence of the defendant is eleven years in the peni
tentiary, and fines aggregating fifty thousand dollars.”

  Fink asked, “Eleven years, did you say?”

  “Yes.”

  Capone wore a poleaxed expression—clearly he’d expected a lighter sentence. His attorneys seemed similarly stunned.

  Ahern said, “Can’t you have the misdemeanor counts run first, your honor?”

  “No,” the judge said. “The order will stand.”

  The judge refused a motion for bail, pending an appeal. “The defendant is remanded to the custody of the United States marshal.”

  Capone’s attorneys argued with the judge—denying their client bail meant he’d be sent to Leavenworth immediately!

  “You have not the power to hold this man,” Fink insisted, “to deny bail when he is making his appeal. . . . This will mean the defendant will go to Leavenworth. Your honor might permit keeping this defendant here until Monday at least.”

  When Wilkerson refused, Ahern heatedly maintained the judge was not within his rights to do this, even suggesting the jurist go to his chambers and check his law books.

  An angry Wilkerson said, “You cannot undertake to instruct this court—that is all.”

  Then the marshal gestured at Capone “to come along.”

  The prisoner went along.

  In the corridor, reporters flocked for a quote.

  “Well, I’ll get a lot of time off for good behavior,” Capone said, working to stay jovial.

  Then came a deputy collector of Internal Revenue, who gave Capone a notice of the tax lien on everything he owned. An unhappy Capone, accompanied by deputy marshals and an Intelligence Unit agent, was hustled out.

  “It’s all my own fault,” he told his captors, as they rode in a cab to the county jail. “I’ve nobody but myself to blame, I suppose. Publicity—that’s what got me. Too much hollering about Capone.”

  When they reached the jail, reporters again swarmed Capone. By now he was not in a good mood.

  “It was a blow below the belt,” he said, “but what can you expect when the whole community is prejudiced against you? I’ve never heard of anyone getting more than five years for income tax trouble, but when they’re prejudiced, what can you do even if you’ve got good lawyers?”