Scarface and the Untouchable

by Max Allan Collins

  His fingerprints were taken and his pockets searched. After a compulsory bath, he was put in a cell. Among his cellmates was a down-and-outer who couldn’t come up with a $100 fine. Al would try to get it paid.

  Capone took in his surroundings with a frown. Someone called out a question: How was this compared to the Philadelphia pen?

  “Well,” Al admitted, “it’s a little cleaner.”

  A radio began playing “All the World Is Waiting for the Sunrise.”

  A photographer, who had no doubt bribed his way onto the cellblock, asked Al to pose.

  The prisoner’s rage boiled over. “I’ll knock your block off!” he yelled, and reached for a bucket to throw.

  But the guards settled him, saying they’d move him to a more private cell in the hospital ward. They were in the process of doing that when even more photographers descended.

  “Think of my family,” Capone whimpered. “Please don’t take my picture.”

  Paul Muni as Tony Camonte in Scarface (1932).

  (Authors’ Collection)

  Twenty-Eight

  October 1931–January 1932

  On the day Capone received his sentence, Robert Isham Randolph asked, “Now after Capone, what?”

  Without “a militant drive that will free Chicago of the shackles of the syndicate,” Randolph warned the Chicago Evening American, Capone’s conviction would be meaningless.

  “Knock over their breweries and stills,” Randolph urged, “keep them on the run. . . . Now we must make sure that a new boss does not step into [Capone’s] shoes and carry on the scheme of corruption. The syndicate must be smashed.”

  Eliot Ness seemed determined to keep up that fight, still hounding the gang as if Capone remained at large. Perhaps he knew, as George Johnson certainly did, that the tax conviction might be overturned at any time. If that happened, federal officials would need the Untouchables’ case to keep Capone behind bars.

  Or perhaps, as seems more likely, Ness agreed with Randolph, recognizing Capone’s conviction as only the first step in a long process.

  Ironically, the guilty verdict represented a greater threat to Ness’s work than any gangster packing a pistol or a payoff. Would the public, and the politicians they elected, still care about cleaning up the Outfit with its most visible leader in jail?

  “It is up to Chicago now to follow up the blow,” Randolph said, “and follow up swiftly to get in the knockout punch.”

  Although the Prohibition indictment remained locked in legal limbo, Ness kept hunting for a handful of defendants not yet accounted for. The biggest figure still at large was George Howlett—“the Jekyll and Hyde playboy of the Capone mob,” one newspaper called him, and the front man for renting breweries. After months without a lead, Ness connected Howlett to an unlisted telephone number, tracing it to an upscale residential hotel on the North Side.

  In mid-November, Ness visited the place and made the manager an offer: help track down Howlett, and the press would never learn gangsters lived under his roof. The manager obliged, giving Ness descriptions of Howlett’s three cars—an unimaginable extravagance in Depression days. Ness found Howlett’s two Cadillacs, but the suspect’s sixteen-cylinder roadster was missing.

  So Ness placed a man near the entrance and they waited until Howlett drove up in the missing car.

  “It was not difficult to identify him,” Ness wrote. “He arrived with a lady companion who was one of the most beautiful women I have ever seen.”

  Before Howlett could reach the elevator, Ness and the other agent arrested him. The pinch made the papers, but Ness kept his word to the manager, telling reporters he’d caught Howlett after spotting him at a football game.

  Ness’s boss did not share the Untouchable’s inexhaustible zeal. George E. Q. Johnson understood the need to keep hammering the gang, praising Randolph’s “courageous statement” in the Evening American. But the Capone case seemed to have drained him of any desire to fight on.

  “You remember the pace we all set in the Federal Building,” Johnson wrote years later to Frank Wilson. “I was older than the rest of the men and I expect it took more out of me than I realized at the time.”

  The week after Capone’s conviction, a Kansas City Star reporter found Johnson in court looking “worn out” and exhausted, “resting his chin wearily upon the palm of his right hand” and letting his assistant do all the talking. In an interview with the Star, Johnson focused on his past success, insisting Capone was just as bad as the press had painted him and well worth the effort of putting away.

  “Why, then,” the Star reporter asked, “did the government delay prosecution of the liquor charges and present first what seems to be the minor offense of evasion of the income tax?”

  “There were many things to be considered,” Johnson replied. “The first was that I believed we had an air-tight case in the income tax matters. We can get most conclusive evidence in income tax cases—it is far more difficult to obtain in liquor violations charges. When a man or a syndicate receives such vast sums of money as this Capone organization it is not easily hidden.”

  None of this was true.

  Judge Wilkerson, not Johnson, chose the tax case. Framing the story this way, however, made it appear everything had gone according to Johnson’s plan—turning Capone’s conviction into the culmination of a hard-fought, well-thought-out campaign, not a messy, kitchen-sink strategy succeeding despite itself. Johnson glossed over his missteps and implied he’d achieved his end goal, leaving little reason to keep fighting.

  “Industrial and civic leaders believe the most crucial battle in the long and frightful war against organized crime has been won,” the Star proclaimed. “The gang syndicate’s leader has been captured.”

  During his Chicago visit, the reporter also interviewed the leader of the Untouchables—or, as the Star put it, the “Incorruptibles.” Johnson’s office, thinking highly of Ness, permitted use of Eliot’s name in print. In all probability, Johnson had encouraged it.

  Like many journalists before and since, the writer marveled at how “boyish” and soft-spoken Ness was, not at all the hard-bitten fellow one might expect.

  “He is an athletic, most presentable young man,” the Star said. “Direct in speech, modest almost to the point of bashfulness.”

  Ness’s utter dedication to his job made him a man of mystery straight out of a pulp novel.

  “He has no office and very, very few persons even know where he lives,” the Star claimed. “And naturally one doesn’t ask too many questions about his home and family—if he has a family.”

  During the interview, another apparent member of the “Incorruptibles” let himself into the room.

  “You left this on my desk,” he said to Ness. “Thought you might want it.”

  And he handed Ness a large automatic pistol.

  Ness casually stuffed the gun under his arm, thanked the agent, and went on talking.

  The reporter asked, “Ever get in many jams where you need weapons?”

  “Once in a while,” Ness said, adding it paid to be careful.

  Had the gun been left on the desk for the Star’s benefit? Eliot’s puckish sense of humor, and general dislike for carrying a weapon, seemed to say it had.

  With such a modest, courageous defender at its gates, Chicago could seemingly rest easy after a chaotic and bloody decade. The Star envisioned a glowing future for the city—“a busy winter of business readjustment, a year of progress, and then the world’s fair in 1933.”

  Optimism was not uncalled for—Chicago had replaced the corrupt administration of Big Bill Thompson with Cermak and his promise of reform. In June 1931, the month of Capone’s indictments, the city’s crime rate fell to its lowest point in years. Of the Chicago Crime Commission’s original twenty-eight “public enemies,” nineteen had been removed from the streets, either by the law or the bullets of rivals. Among them were the biggest names in bootlegging: the Capones and Jack Guzik, among others. To the rest of the cou
ntry, as the New York Times put it, Chicago seemed to have “exorcised her evil spirits.”

  But some demons, rum or otherwise, remained, or would soon return once their prison terms ran out. And with the Depression tightening its grip, Chicago’s problems would only get worse—years of financial mismanagement and public apathy had left the city $300 million in debt. “Unless citizens put money in the till on a large scale,” a civic group warned in 1930, “hospitals will shut, inmates of lunatic asylums will be left without food, heat and light, prisons will be unable to house their tenants, and the police and fire brigades will have to be disbanded.”

  Chicago’s unemployment rate sat at 30 percent, well above the national average. Within a year, 750,000 Chicagoans would be out of work, as their city failed to pay its teachers, firemen, or cops. For gangsters, this fiscal chaos was a golden opportunity—they knew how to offer their own form of stability when public institutions failed.

  “Citizens already paying heavy taxes to racketeers, who can deliver what they promise,” one observer noted, “are refusing to pay taxes to a city government which cannot.”

  Judge John Lyle called 1931 “the summer of decision”—the moment when authorities missed their one real chance to break the back of the Outfit.

  “If Chicago had persisted then in a relentless, untiring crackdown on organized crime,” Lyle wrote in 1960, “we would have a minimum rather than a flood of racketeering today.” Instead, the city and the nation focused on other problems, leaving Chicago’s gangsters to survive and thrive.

  And in some ways, the very public war on Capone made this inevitable. The feds had winnowed the herd, removing the most public of the “public enemies.” Those who remained knew how to keep a low profile—running them out of business would be difficult, dirty, thankless work, without the public relations payoff of convicting Capone. The political will for such a fight simply didn’t exist.

  Herbert Hoover had already moved on, directing Elmer Irey and the Intelligence Unit to focus on New York. Chicago’s top-flight gangsters had all been locked up (if temporarily), but Manhattan still had plenty of marquee mobsters for the tax men to pursue.

  Then the president began doling out rewards for a job well done. In mid-December, he had a private White House lunch with James Wilkerson, urging the judge to run for Illinois governor. The land of Lincoln was reliably Republican, Hoover said; a man of Wilkerson’s popularity would coast to victory. The judge said he’d prefer a seat on the Court of Appeals. Hoover promised to make it happen.

  That evening, Wilkerson joined the president at the Gridiron Club dinner, a white-tie affair where Washington’s newspapermen rubbed shoulders with politicians. Introduced as the judge who “found a home for Al Capone,” Wilkerson got thunderous applause—“the greatest ovation” for a public figure at the event in a long time, one reporter said.

  Three days later, the Republican Party announced it would hold its 1932 convention in Chicago. Atlantic City had been in the running, but the party selected Chicago in part because the president had taken an interest in the political situation there. Robert Isham Randolph assured delegates they’d made the right choice.

  “We now have all the bad characters locked up,” Randolph told the Tribune, making Chicago every bit as safe as Atlantic City.

  Was it? Getting Capone had hardly changed Chicago’s crime picture; it merely slapped on a fresh coat of paint. Less than two years earlier, Frank Loesch had prevailed upon the president to bring all his federal power to bear on cleaning up the town. Now, Loesch declared victory.

  “Organized law enforcement has fought it out with organized crime and we have won,” Loesch told the Associated Press in late December. “The gangster has been conquered.”

  Newspapers coast-to-coast quoted Loesch under such headlines as CHICAGO WINS WAR ON CRIME, while praising the city on their editorial pages.

  After so much unfavorable publicity, wrote the Charleston Daily Mail, “the signs are sure that [Chicago] will be hailed as a model in crime suppression, and rise out of the muck a comparatively purified and exemplary community.”

  The message was clear: Chicago was open for business once more—just in time for the World’s Fair.

  As the city celebrated his defeat, Al Capone awaited the results of his appeal from the confines of the Cook County Jail. Judge Wilkerson had ruled the time Capone served in Chicago would not count toward his eleven-year sentence, but the gangster had good reasons for postponing his arrival at the penitentiary.

  On December 2, Wilkerson received an anonymous telegram from someone claiming to work at the jail.

  WISH TO INFORM YOU THAT AL CAPONE IS USING THE COUNTY JAIL FOR HIS LIQUOR BUSINESS, IT READ, AND TRANSACTS FROM THERE POSSIBLY AS MUCH IF NOT MORE THAN HE USED TO AT HIS OLD HEADQUARTERS AT THE LEXINGTON HOTEL . . . PLEASE INVESTIGATE.

  Wilkerson passed the telegram on to the local office of J. Edgar Hoover’s Bureau of Investigation, which arranged a meeting with George Johnson, Intelligence Unit agent Art Madden, and other federal officials at the prosecutor’s office.

  Johnson had received an identical telegram, and Madden also had word Capone enjoyed “special privileges” at the jail. Rather than occupying a cell like any other inmate, Capone resided in a spacious dormitory for convalescent prisoners, with a “soft mattress, clean linen and private shower bath,” according to the Herald and Examiner.

  A Bureau of Investigation agent reported rumors “that Capone is allowed to receive visitors, sometimes in large numbers, at almost any hour of the day or night, regardless of the regularly established rules for visiting.”

  Those visitors included local politicians and top Outfit figures, including Johnny Torrio, Joe Fusco, and George Howlett, as well as Capone’s latest mistress. And if Capone couldn’t meet with his associates in person, he had every opportunity to reach them by phone.

  Another report said an Outfit associate had on occasion “escorted a number of women to Capone’s quarters in the jail [where] these women put on an obscene performance for the entertainment of Capone’s guests.”

  William Froelich, the special U.S attorney who’d overseen the work of the Untouchables, suggested prosecuting Capone for contempt of court if evidence supporting these claims could be found.

  But Johnson opposed launching a full investigation. Doing so would almost certainly tip the newspapers to Capone’s living conditions, and the prosecutor didn’t want these rumors publicized. That would reveal his prosecution of Capone hadn’t really done as much damage to the Outfit as the media claimed.

  Instead, Johnson suggested the Bureau quietly discuss the rumors with jail officials.

  Federal agents duly questioned David Moneypenny, the warden of the Cook County Jail, and his subordinates. To avoid the press, they held these meetings in the Bureau’s Chicago office. Moneypenny and his men insisted the rumors were false, claiming Capone received no special privileges and lacked the freedom to run his business.

  Capone, they said, received frequent visits from his family—his mother visited every day—but never from other women. The visitors’ log did not include the names of any gang associates, merely anonymous “friends” and “cousins.” Warden Moneypenny admitted he allowed Capone to live in the relative luxury of the convalescent ward—but only for the good of the other inmates.

  “I didn’t want him mingling with the other prisoners,” Moneypenny said, “because I was afraid he’d have a bad influence on them.”

  In mid-December, W. A. McSwain, the special agent in charge of the Bureau’s Chicago office, reported to George Johnson that nothing definitive had been turned up. They discussed whether to pursue a broader investigation.

  “Mr. Johnson was of the opinion that an inquiry of this character would naturally result in considerable newspaper publicity,” the agent said, “and in view of the facts to date, he did not believe such action warranted, and that further inquiry would be unnecessary at this time.”

  Johnson had already tried to
solve the problem quietly, arranging with Warden Moneypenny not to let anyone see Capone “without a pass from the United States Marshal.”

  Despite Johnson’s efforts to avoid publicity, the press soon got wind of the Bureau’s efforts. On December 17, the Chicago Daily News reported federal agents were investigating claims “Capone has been receiving telephone, telegraph and secretarial service to enable him to carry on his rackets” while in custody.

  Other papers followed suit. The Herald and Examiner said investigators “discovered that late at night expensive automobiles were parked within the jail shadows. Guarding them were men who had every appearance of hoodlums.”

  Unnamed officials told the newspaper they “had been unable to substantiate” the allegations, while Warden Moneypenny, who prided himself on running a “crack proof” jail, dismissed the claims as “a lot of poppycock.”

  “Capone’s in a cell like any other hoodlum,” Moneypenny said. “He’s getting no special privileges and I’m not letting anyone see him unless I know who he is and what he wants.”

  Reporters found Capone in the convalescent ward, wearing a blue pinstriped suit and open-collared shirt as he played cards with an ailing inmate.

  “I’m in jail . . . ,” Capone remarked. “Aren’t they satisfied? Anybody who wants this place is welcome to it. I don’t see anything swell about this.”

  The next day, Special Agent McSwain met with Johnson to suggest a deeper probe. Though the investigation had already gone public, Johnson clung to stifling the coverage.

  “Mr. Johnson expressed the opinion that he did not believe additional investigation warranted,” McSwain wrote, “and accordingly, no further action need be taken.”

  On December 21, the Chicago Daily Times reported Warden Moneypenny had been driven to Springfield in a Cadillac registered to Mae Capone. The warden claimed he’d accepted a ride without knowing who owned the car.