Capone

by Laurence Bergreen

  Late in September, Capone surreptitiously returned to the Lexington Hotel. As usual, no one in Chicago, with the exception of a handful of intimates, knew where he had been during the late summer weeks, how he had spent his time, or how he had acquired his tan. Not even Ness, who prided himself on his detailed knowledge of Capone, had any idea of his whereabouts—only that he had inexplicably gone into hiding. The great fear was that he would flee the country, and the United States would have to begin tedious extradition proceedings, but Capone surprised both his lawyer and his adversaries by returning to Chicago as nonchalantly as he had left. Immediately he faced a rumor that had gained wide currency in his absence. Capone’s men, so the story went, had been shaking down every bookie in Chicago to raise a huge war chest to pay for his defense, to which he responded, “Just the old story of Capone this and Capone that. . . . The charge that I have been trying to raise money from bookmakers is silly. It has for its purpose, though, the poisoning of the minds of those who may be called as jurors in my case. . . . Give me the fair trial that I am entitled to. If I lose, I won’t complain about it.” But as the trial drew closer, his tone became more urgent. “I’m being hounded by a public that won’t give me a fair chance,” he complained to journalists. “They want a full show, all the courtroom trappings, the hue and cry, and all the rest. It’s utterly impossible for a man of my age to have done all the things with which I’m charged. I’m a spook, born of a million minds. Yet if Al Capone is found guilty, who is going to suffer—a masquerading ghost or the man who stands before you? You’re right—it’ll be me who goes to jail. I’d much rather be setting in a box watching the world baseball championships. What a life!”

  Although Capone sounded resigned to his fate, his entire organization was in fact engaged in an all-out, last-minute effort to ensure his acquittal by any means possible. Fortunately, Wilson’s carefully cultivated network of secret agents was still in place and relayed news of Capone’s latest activities. On September 23, just two weeks before the trial was scheduled to begin, Eddie O’Hare contacted Wilson, insisting they meet immediately. When they came face to face on a street corner in a remote Chicago neighborhood, O’Hare conveyed disturbing news. “Capone’s boys have a complete list of the prospective jurors,” he said. “They’re fixing them one by one. They’re passing out $1,000 bills. They’re promising political jobs. They’re giving out tickets to prize fights. They’re giving donations to churches. They’re using muscle, too.”

  Every figure involved with the case recognized that jury tampering was the chief threat to the effort to get Capone behind bars, but Wilson refused to become concerned, at first. “Eddie,” he said between puffs on a cigarette, “you’ve been reading too many detective stories. The judge and the U.S. attorney don’t even have the jury list yet. I asked about it today.” At that, O’Hare flourished a list of ten names, complete with addresses. They covered prospective jurors numbers 30 to 39. Wilson’s cigarette fell to the pavement as he snatched the list from O’Hare’s hand. He went directly to Johnson’s office in the Federal Building. The U.S. attorney, normally calm and controlled, took one look at the list and whacked his desk. “So Capone’s even got the Court under his thumb!” he shouted in a rare display of temper. “Some skunk probably got a few thousand dollars for selling Capone that list.” Wilson and Johnson then went to Judge Wilkerson’s chambers, where they showed the list to the judge, who reacted with circumspection. “I do not have my jury list yet. I do not believe it wise for me to ask for it, lest I engender suspicion,” he said. “I shall call you gentlemen when I get it.”

  At their next meeting, O’Hare supplied further details to Wilson: “Capone and his gang are not worrying about the trial, Frank. They’ve got the entire jury list parceled out in lots of five and ten names. Some of the biggest shots in town have their quotas to work on. When they get through, every prospective juror on the panel will be either beholden to Capone or so scared that the trial will be over before it gets started.” Wilson was devastated; he believed the government, after all its work, would finally lose because the jury was fixed. The next day, Johnson and he again met with Wilkerson to impress the seriousness of the situation on the judge, but once again Wilkerson appeared unperturbed. “Bring your case into court,” he told them. “Leave the rest to me.” Wilson hoped the judge knew what he was doing.

  • • •

  On Saturday, October 3, three days before his trial was scheduled to begin, Al Capone decided to venture forth. Accompanied by “Machine Gun” Jack McGurn, the architect of the St. Valentine’s Day Massacre, he attended a football game between Northwestern University and Nebraska in Evanston, Illinois, the home of the Women’s Christian Temperance Union and the seat of the Prohibition movement. Being around McGurn made Al feel good; after all, McGurn had killed so many men and gotten away with it. Why shouldn’t Al get off easy for failing to pay his income tax?

  The two men arrived after the kickoff. As they took their seats they were subjected to hostile stares. Capone did his best to ignore them, for he loved sporting events of all kinds, and he expected respectful treatment wherever he went. But those days were gone. Before the end of the first quarter, a few hesitant groans were heard, followed by a chorus of boos, and as the game progressed the vocal disapproval of Capone grew steadily until it seemed that all 40,000 spectators were watching Public Enemy Number 1 rather than the game. Finally, at the end of the third quarter, Capone could stand the humiliation no longer. He left the stadium, trailed by McGurn and a daring troupe of Boy Scouts who ran behind chanting, “Al, Al, Al.” The rest of the crowd cheered his departure from the scene.

  The following week, the university’s student newspaper, the Daily Northwestern, published an editorial written in gangster lingo. “Get this, Capone,” it began, “you are not wanted at Dyche Stadium nor at Soldier Field when Northwestern is host. You are not getting away with anything and you are only impressing a moronic few who don’t matter anyway.” Capone was not accustomed to this type of rude treatment, but then what did a bunch of college kids know? Come Tuesday, he would face a more mature audience: a judge and jury.

  CHAPTER 10

  The United States of America

  vs.

  Alphonse Capone

  “THE COURTROOM! HOT! CROWDED! Policemen everywhere!” cried the man from Collier’s magazine as the trial of Al Capone for income tax evasion finally began. The excitement surrounding the event was palpable—as feverish, contagious, and debilitating as influenza. On the first morning of the hearing, a detail of forty policemen assembled to greet Capone as he emerged from his car, smiling incongruously at the throng. “There he was,” a reporter marveled, “the boy who had ‘come out on top’ in the Chicago struggle between gangsters.” And the crowd surged forward, hoping for a brief glimpse of his famous face, the scars, the fedora, or any other sign of his presence before the police escorted him into the gloom of the Federal Building.

  Located at the corner of Dearborn and Adams, this monument to civic dreariness was only a short drive from his Lexington Hotel headquarters. Its monolithic solidity recalled an era when Chicago was a fort imposing itself on a lawless wilderness: a place of confinement in the midst of nothingness. If the exterior of the building presented unrelieved solemnity, the interior was slightly less forbidding. Visitors passed through an impressive lobby, whose high ceiling created a large space echoing with the murmur of business. Upstairs, on the sixth floor, the courtroom of Judge James Herbert Wilkerson abounded in patriotic and legal imagery. The walls were finished with white marble, accented by columns soaring toward the ceiling, whose tops were decorated with gilded scrolls. Some walls were devoted to large murals depicting the Founding Fathers. But time had darkened the murals to the point where their noble subjects were scarcely discernible, and few of the people who passed through this room would have been able to identify them. Everything about the setting evoked the tarnished state of the law in Chicago at the time.

  As he mad
e his first appearance in the courtroom, Capone was besieged by reporters who noted that he looked well rested and well dressed in a blue serge suit with a white handkerchief neatly stuffed in the breast pocket, a brown-and-white tie, and a thin gold chain studded with tiny diamonds stretching across his generous abdomen. “He wore no rings,” one journalist said in disappointment at the lack of the gaudier gangster accoutrements, “and the two scars on his left cheek were barely visible.”

  Some of the best journalistic talent in the country had converged on Chicago to cover the trial of Al Capone for income tax evasion. The Hearst chain assigned the defendant’s boon companion Damon Runyon to cover the proceedings. A man who lived by the motto “Get the money,” Runyon approached the legal contest with the same bemused irony that informed his celebrated stories of gangsters’ uncouth charm. Time, in contrast, gloated at the spectacle of “greasy, grinning” Capone, mopping his “fat head” as he prepared for his legal comeuppance. Even the Christian Science Monitor, which normally eschewed coverage of gangsters’ uninstructive behavior, was there. Collier’s became positively breathless at the prospect of the imminent legal Armageddon. “The Battle of Chicago is still raging,” the magazine informed its readers. “Public Enemy No. 1 and a supporting army of gangsters and racketeers have taken the first three trenches: city, county and state forces could not stop them. Now they are facing the fourth trench—our national government.” The New York Times’s Meyer Berger proved a more even-handed commentator; he recognized that although society had changed in reaction to economic catastrophe, Capone himself was perfectly consistent. The Chicago papers, however, had a vested interest in the outcome of this trial. For them, the trial was more than a legal proceeding, it was a referendum on Capone’s life and crimes, a crusade to rescue the city from its hoodlums. “It will be the most famous of all prosecutions of gang chieftains,” the Tribune predicted. “Agents of the intelligence unit which developed the income tax case against Capone expressed themselves as certain of a conviction.”

  The reporters all posed the same question: was Capone worried?

  “Worried?” he answered with a broad grin, “Well, who wouldn’t be?” At the moment, however, he was feeling quite confident. He assumed that his organization had gotten to the jury and all that was required of him was to show up in court each day, appearing polite and respectful, until his inevitable acquittal. And even then he would be sure to act magnanimous and tell the press that there were no hard feelings on his part, he knew the government boys were just doing their job. His roving eyes landed briefly on his brother, Matthew, and his sister, Mafalda, both of whom huddled unobtrusively at the back of the courtroom, Mafalda’s anonymity heightened by the dark veil covering her face. Far more prominent in the courtroom were the members of the government’s prosecution team. First there was George E. Q. Johnson himself, tall, wearing gold-rimmed spectacles and his familiar mop of unruly hair uncertainly parted in the center; the presence of the U.S. attorney signified that the government considered this a case of the utmost importance. He was surrounded by his team of prosecutors: Dwight Green, Jacob Grossman, William Froelich, and Samuel Clawson—all of whom would take turns questioning witnesses. As the U.S. attorney, Johnson was Capone’s main antagonist in the courtroom, but throughout the trial the two men never spoke to one another, although they sometimes stood only a foot apart. Their proximity invited comparison between them: “Capone’s thick-featured face, the roll of flesh at the back of his neck, presents a contrast to the attorney’s lean face, his shock of gray hair, and his general appearance of wiriness,” in the words of one correspondent.

  Capone’s confident façade crumbled the moment Judge Wilkerson entered the courtroom. “Judge Edwards has another trial commencing today,” Wilkerson suddenly said. “Go to his courtroom and bring me the entire panel of jurors. Take my entire panel to Judge Edwards.” With that, the men who were supposed to sit in judgment on Capone left the courtroom, where they were replaced by a new set of prospective jurors whose names had not appeared on any list and who had not been approached with bribes or threats from the Capone organization. Throughout the shuffling of jurors, Capone remained rigid in his chair, his smile hardening into mask. His lawyer, Michael Ahern, was caught completely off guard by the switch and hardly bothered to challenge any of the prospective jurors. When the final selection process was finished, the jury who would decide the guilt or innocence of Al Capone consisted primarily of white rural men; their number included a retired hardware dealer, a country storekeeper, a real estate agent, and a farmer; all of them were over forty-five. The sole exception to the jury’s rustic, Protestant cast was Louis Woelfersheim, a retired grocer who came from Chicago. Judge Wilkerson’s switch did not completely end the threat of jury tampering, since the Chicago newspapers dutifully printed the names, addresses, and occupations of all jurors. The practice, unthinkable in a trial involving organized crime today, exposed them to bribes and threats. To minimize the chance of the Capone organization’s getting to a juror, the judge was determined to keep the trial as short as possible. And he ordered the jurors to be confined at night. Although they could be effective, neither of these precautions guaranteed an impartial jury.

  “Capone is to have no trial by his peers in Chicago,” the Tribune commented. “It is to be by the men who reflect the opinions of the countryside, whose minds are formed in the quiet of the fields.” More bluntly, Runyon dismissed the jurors as a bunch of ignorant hayseeds, “horny-handed tillers of the fruitful soil, small town store-keepers, mechanics and clerks, who gazed frankly interested at the burly figure of the moon-faced fellow causing all this excitement and said, ‘Why, no: we ain’t got no prejudice again Al Capone.’ ”

  After the jury was empaneled, Judge Wilkerson addressed Capone’s counsel.

  “What is the plea?”

  “Not guilty,” Michael Ahern responded firmly.

  A native of Chicago, Ahern was just short of his forty-third birthday. He had benefited from a rigorous Jesuit education, and during the nearly twenty years he had been practicing law, he had become, along with his partner Thomas Nash, one of the city’s best known criminal lawyers. Ahern was tall, with an amiable presence; his low-key, precise manner of speaking belied the fact that he had represented some of Chicago’s most notorious hoodlums, in addition to Capone.

  “Is the defendant in court?” Wilkerson asked.

  Capone rose and faced the judge, and later entered the witness box, so that the jury would be able to identify him, as if that were necessary.

  Court was adjourned, and the great room emptied.

  • • •

  Wednesday, October 7: Every place in Judge Wilkerson’s sixth-floor courtroom was occupied for this, the first day of testimony. At least twenty-five reporters were present. In the hall outside, telegraph instruments clicked quietly, guards patrolled the corridors, and marshals occupied strategic corners of the floor. Within the courtroom, a clerk called the court to order, and United States vs. Alphonse Capone, the culmination of a four-year effort to put Capone in prison, was finally under way. Judge Wilkerson managed the proceedings with crisp efficiency. He did not wear a robe, preferring instead a somber business suit, but his air of rigid authority was no less intimidating. Having already refused Capone’s attempt to plea bargain, he brought a brusque, adversarial manner to the proceedings.

  The legal skirmishing commenced immediately as Michael Ahern—the slim, well-dressed, agile defense counsel—seized the initiative to complain about the circumstances surrounding his client’s guilty plea, stressing that it had been entered with an understanding that the court would treat Capone leniently, and now the arrangement had been abrogated. Ahern managed to get his objection on the record, but the trial went forward.

  As the prosecution outlined to the jury the case against Alphonse Capone for willful evasion of income taxes, Capone, a “bloated figure in the dark suit leaned indolently back in a swivel chair, facing Judge Wilkerson,” said a reporte
r. “The thick lips formed a constant smile that sometimes widened to a grin. The fat, powerful fingers, covered with dark hair, drummed on the counsel table. The thick, hair-covered wrist flicked at the leather straps of a high-priced brief case which the gangster carries.”

  As its first major witness, the prosecution called an insurance agent named Chester Bragg, whose testimony proved suggestive enough, though it harked back six years, long before Capone was actually vulnerable to the charge of income tax evasion. Leading the questioning was Dwight Green, of the prosecution team.

  “Do you know Alphonse Capone?” Green began, ritualistically.

  “Yes,” replied Bragg.

  “Point him out, please.”

  Bragg pointed as he spoke. “The gentleman with the dark suit and blue tie.”

  “Describe your first meeting with Capone.”

  “In 1925 I was with a group from the West Suburban Ministers’ and Citizens’ Association on a raid at 4818 West Twenty-second Street, Cicero. It was the Saturday of Derby Day, in the month of May.”

  “Did you have any conversation with the defendant?”

  “Yes.”

  “Who was present?”

  “A number of people of the raiding party and some of the employees of the place, inside the saloon.”

  “Describe the conversation.”

  “Well, my job was to watch the front door and keep anybody from going in or out. A big powerful man tried to get in and finally forced the door open. I got sore and asked him, ‘What the hell do you think this is, a party?’ And he said, ‘Well, it ought to be party, I’m the owner of this place.’ So I said, ‘Come on, Al, we’re waiting for you.’ ”

  “What did the defendant do then?”

  “He went upstairs with Mr. Morgan, one of the raiding party.”

  “Did you have any later conversation with the defendant?”