The Mark Inside

by Amy Reading

  Mayor Bailey then took aim at the private citizens whom Van Cise conscripted as drivers on the day of the raid. He couldn’t help wondering, he said, why so many of them were stockbrokers. Could it be that they had a vested interest in showily jailing the swindlers so that their own business practices might pass unscrutinized? “The questions that arise in my mind are: What is a ‘con’ man, what is a ‘sucker,’ and when do we get ‘conned’?” This line of attack would recur in the trial itself, when defense attorneys would use the contemporary discourse about speculation and swindling to muddy the ethical waters in which their clients swam. But in the immediate aftermath of the raid, the mayor became increasingly isolated in his fight against the district attorney. Denver was awakening to the fact that it had been conned; there was little question of that in the people’s minds. Their suspicions were confirmed by a widely publicized interview with Herbert N. Graham, a national expert on fraud with the U.S. postal inspectors, on the Denver situation. Why had strikingly few con men been arrested in Denver in the decades before the raid? “Where bunko men operate,” he said, “they corrupt the police and officials as surely as a rotten apple pollutes the rest of the box. Once a police department is corrupt, anything goes. The underworld uses one crooked frame-up as a lever for prying loose the next, and crime of all descriptions goes unpunished. That’s the real danger of the confidence game, and the hardest to remedy.” A grand jury was charged with investigating police corruption, and witnesses were called before that jury as Van Cise continued building his case to present to a future trial jury.

  Van Cise tried mightily to focus on the task at hand, which was to add more and stronger struts to his case than simply the pillar of J. Frank Norfleet, but distractions repeatedly punctured his concentration. “I never saw this man Norfleet in my life,” declared Blonger righteously. “I intend to take legal action against those who so summarily arrested me at my office.” Indeed Van Cise and his staff, as well as the citizens he deputized, soon found themselves on the other end of a $200,000 civil suit for unlawful arrest, a cynical but effective tactic to bleed them of time and money in the days before the trial. An intense and public animosity had sprung up between the prosecution and the defense counsels, and Van Cise had already earned the rebuke of a judge after pounding his fist into Attorney William A. Bryans in one of the pretrial hearings, blackening his eye for daring to dispute a minor claim. The con men’s lawyers seemed to delight in heckling and baiting him to set off his well-known meter for injustice. So it came as almost a relief when Van Cise was thrown off the case. The bunco counsel filed a motion to disqualify the district attorney on the basis of a technicality: he was mistakenly named as counsel for a plaintiff in a civil suit against some of the con men and was therefore a party of interest in the criminal case. Judge Butler appointed S. Harrison White, former chief justice of the Colorado Supreme Court, and Harry C. Riddle, former judge of the district court, as special prosecutors, leaving Van Cise free to work behind the scenes—and depriving the defense of their favorite target.

  Van Cise wrote to every sucker he could unearth to invite him to Denver, and one Monday afternoon he staged a “revue” in the county jail. The outer door to the east wing shot back, and the bunco artists shuffled in single file before a table with an abandoned deck of cards and thirteen pennies. They stood there in their white undershirts and unshaven cheeks while men in suits leaned in and peered at their faces. Jackie French distinguished himself, as usual, by his air of ease and his shirt of cream brocaded Canton crepe. A fellow named Freeman, his anger manifest in his set jaw and the white-knuckled fingers grasping his hat, pointed out Leon Felix, the man Norfleet had known as Davis, while Adolph Wishropp of Kansas City convivially greeted two of his fleecers with a “How do you do?” The reporter for The Denver Post noted that even in their humiliating dishabille, the con men could not help but transmit their natural magnetism, “a certain ‘I’ve waited all these years to meet YOU’ manner.” Blonger and Duff were notably absent from the lineup.

  In the first two weeks after the raid, nearly a hundred men from around the country had journeyed to Denver in the hope of identifying the con men who had bilked them. At the same time, Van Cise and his staff mailed out hundreds of photographs, descriptions, aliases, and criminal records to other law enforcement officers to gather data on the careers of those in custody. Now his deputies worked with a stenographer each day and well into the night on the piles of evidence they had confiscated in the raid. They were confined in a windowless, locked basement room in the West Side courthouse, and only the deputies were allowed in the nearby vault of steel and concrete where the evidence was kept. Three deputies slept inside the vault on army cots each night, preventing janitors and even the sheriff’s deputies from gaining access to the valuable cache of papers. Two months after the raid, Van Cise published a report detailing every touch that Blonger’s gang had taken off its marks since late 1918. He did not explain how he’d managed to draw up a comprehensive list, and he wouldn’t divulge his secret source until late in the trial, but he did publish the names of thirty-three marks and six almost-marks, and he listed the total amount of the conglomerate’s profits at $506,270.

  Coincidentally, that happened to be precisely the amount the swindlers were said to be raising for their defense. Also without disclosing his source, a reporter for the Post wrote, “Confidence men thruout the United States are being assessed 5 per cent of their ‘earnings’ to provide a $500,000 defense fund for members of the Denver swindle ring.” He quoted an unnamed Denver official as saying that the Bertsche gang in Chicago had already forwarded $200,000 to a Denver bank for bonds and lawyers’ fees and that the Gondorf syndicate in New York and the Rumer organization in Cleveland were also pitching in. Even the “reorganized remnants of the Furey gang” were said to be taking up a collection from their new headquarters in Tijuana. Yet Blonger and Duff paid only enough bond to allow Jackie French out of jail, leaving the others to stew in animosity, and the larger arc of events seemed to be bending toward the prosecution’s efforts to build its conspiracy case.

  Denver citizens began the year of 1923 with an unequivocal indictment of machine politics when the grand jury made its report on the corruption of the police department after its thirty-four-day investigation. “Confidence men have been operating openly under the eyes of the detective department,” the report found. Still, even though it had examined more than three hundred witnesses, the jury was “unable to obtain sufficient evidence to warrant the indictment of any particular member of the department.” It was as clear an announcement as possible: the city bureaucracy was not going to clean up the muck that Van Cise had stirred from the Denver bottoms. The day after the grand jury report, Van Cise sent a signal of his own. He took the witness stand at a pretrial hearing and was asked by the defense counsel Horace Hawkins to identify the exhibit numbers attached to various items seized on the day of the raid. Pointing to a bankbook, Van Cise said it was “a joint account of Duff and Blonger showing payments to Rinker—” “That’s enough,” roared Hawkins. “I don’t care to hear any more about that.” But everyone knew Van Cise meant Washington A. Rinker, captain of the detective bureau of the Denver Police Department. The following week, Lou Blonger’s memorandum book surfaced with a notation for a $600 payment to another Denver police officer. The book was part of Special Prosecutor S. Harrison White’s defense against Blonger’s suit that his effects had been illegally seized in the raid. A few days later, Blonger and Duff dropped their civil suits against Van Cise and his staff when it became clear that they themselves would need to testify, potentially producing evidence that could be used against them in the upcoming criminal trial—the trial for which the entire city was now holding its breath.

  The bunco trial began on Monday, February 5, 1923. The courtroom was bursting with people, and the lines of alliance and animosity were so thick as to be almost visible. To the right of Judge George F. Dunklee sat the defense, five attorneys at a long table w
ith twenty defendants surrounding them in an L shape. Adolph Duff occupied the center of the group and reigned over the rank and file. Lou Blonger sat on the edge, hunched into himself, occasionally standing to get himself a drink of water but acknowledging no one. It was plain from their body language that Blonger and Duff had fallen out with each other. Van Cise was privy to Blonger’s side of his dispute with Duff because the Dictaphone was still steadfastly transmitting every word from room 309 in the American Bank Building. “He talks too much,” Blonger said to Garland “Pretty Kelley” Kelley. “He always wants his own way, and he wants everybody else to do as he says. If they don’t, he is sore. He is chow-chowing all over the town. He don’t do anything but raise hell.” And then again to Walter Byland: “He was drunk last night and hollered his head off and cussed me out.” Byland replied, “You know you’d get off a whole lot easier if you killed a son of a bitch like that.” In the courtroom, only the debonair Jackie French dared approach Blonger during recesses.

  The two special prosecutors spoke from a lectern in the center of the room, the jury to their right and their mortal enemies, the defense attorneys, to their left. Since Van Cise’s dismissal from the case, White and Riddle had taken up his feud with Hawkins, Crump, and their colleagues. White and Hawkins had traded insults in court the previous December. A hot remark from White about needing someone from the state insane asylum to evaluate the defense counsel had prompted Hawkins to shout, “I come from a family that goes to battle over such statements and insinuations!” White challenged him to a duel, Hawkins agreed, and the two were halfway out of the courtroom before the judge put a stop to their theatrics. When the jury was sworn in on February 3, another lawyer on the defense team raised his fists and started after one of the district attorney’s special investigators, only to be held back by a sheriff. As the trial began, bailiffs and deputy sheriffs punctuated the room. Whenever the prosecution and the defense engaged in verbal swordplay, Deputy Sheriff Doc Dawson would leave his corner and stand just behind one of them, ready to forestall a fistfight.

  The tensions extended across the wooden balustrade to the spectators’ side of the courtroom, where every seat was taken and territory was indelibly marked. The defendants’ wives and girlfriends showed up each day and silently testified to the respectability of their menfolk by their elegant dress and impeccable demeanor. There were only two exceptions: Cora Blonger never once appeared at the trial, and neither did Blonger’s mistress, Iola Readon, though she did drive Lou to and from her mansion on Williams Street each day. In daily attendance was the wife of Grove Sullivan, in her fur coat and trim little brown hat, who interestedly stood up and leaned toward the suckers as they testified so as to hear them better. There was Mrs. William Dougherty, with her enormous bone-rimmed spectacles and richly adorned coat. And there was the wife of J. H. Foster, the very picture of sweetness until the prosecution scored a point and her lips would arch downward into cruel slits. A Denverite named E. H. Miles, who came to the trial each day, approached the district attorney’s staff and begged them to investigate the wives. He said that he’d attempted to sit down one day and had been prevented by a haughty woman who said the seat was reserved for her. “Not on your tintype,” Miles said he replied, “I’ll stay right here for the music.” Their confrontation escalated, others were drawn into it, and finally the bailiff rapped for order, at which point the lady reached into her coat, held her hand inside it, and ordered Miles to “make himself scarce.”

  The wives weren’t the only ones said to be armed. Opposite this steadfast trio sat a mysterious pair of men in the front row. They were always the first to arrive and the last to leave, and they were said to be gunmen hired by the prosecution, though Van Cise would only smile when asked about it. The Denver Post, for one, believed the rumor: “One is said to be an old-time Cripple Creek gunman—a sure shot with innumerable notices on the butt of his six-gun. The other used to hang out at Cheyenne and is reputed to be a wizard with a ‘gat.’ ” In fact, the entire courtroom was linked to one another with invisible webs of surveillance. The prosecution hired undercover guards to protect its witnesses, and the defense hired detectives to shadow them and find ways to pierce their testimony. In a jury trial for conspiracy in a confidence game, information was the most valuable asset of all.

  Also seated in the courtroom, despite the defense’s attempt to bar him, was District Attorney Van Cise, the silent mechanism regulating the flow of information while remaining apart from the melodrama. And presumably Norfleet was hidden among the crowd. The newspapers had reported his arrival at the beginning of the year, disguised in colored glasses, a long mustache, and two pistols. “Every effort is being made to keep his presence in Denver a secret,” deadpanned one reporter.

  From almost the very first words of the opening statements, it was a spectacularly lopsided trial. Special Prosecutor White started off the festivities with a two-day-long aerial view of the Blonger syndicate. He began at the highest altitude with King Blonger, ruling in solitude and opulence from his office in the American Bank Building. Blonger allowed himself a small smile when he heard himself described as the mastermind of the ring, but was otherwise impassive. White then slowly zoomed down through the ranks of the organization to the street level, where he described the methods by which the ropers and spielers hooked their marks. He ended with several choice anecdotes showing how Blonger and Duff fixed city officials to keep their corps out of danger. To back up their case, White promised, the prosecution would call nearly two hundred witnesses, spending at least six weeks and $100,000 to minutely, incontrovertibly depict the criminality that had under-girded the city of Denver for the last few years. It was a risky strategy. White was essentially notifying the men of the jury, working-class men who received only $1.50 per day for their civic duty, that they’d be out of work for weeks as he drummed into them story after story of suckers and stock exchanges—a tactic of sheer repetition. But Van Cise’s burden of proof was enormously heavy, because he hoped to win a blanket verdict against all twenty defendants, each of them linked to the others by overlapping testimonies.

  Hawkins and Crump’s strategy, by contrast, was less to defend the defendants than to prosecute the prosecuting witnesses. Crump began his opening statement by lambasting Norfleet as a publicity seeker and, curiously, a wiretapper. He asserted that Norfleet sent his wife to Blonger in an attempt to settle with the kingpin for $30,000. And when the prosecution called its first witness, a Michigan bank president named Paul G. Schaible, Sr., who’d been taken for $25,000, the tenor of the entire trial was set. Schaible told his story in great detail, relating whole swaths of dialogue from his scenes in the swindlers’ play. Then Attorney Hawkins stepped up to cross-examine him, and the first words out of his mouth were “So you’re a sucker?” He proceeded to grate Schaible on the blades of his own scruples, asking him, “Do you mean to tell this jury that you, as a banker, did not know he [the insideman] was going to make some money on the side and keep it a secret from his house?” When Schaible protested that he was just trying to help his new friend, Hawkins dug in further: “Mr. Banker, how much could you take without hurting your conscience? Just how elastic is your conscience?” After four hours of this, as the limp Mr. Schaible stepped down from the witness box, he was served with a summons to appear as a witness for the defense, a move calculated to scare away other witnesses who could not afford to stay in town for the weeks or even months of the ensuing trial, simply waiting at the pleasure of the defense to be called—or not. Sure enough, four witnesses suddenly bowed out of the trial. Rumors spread that “a vampire squad of women,” the wives and girlfriends who were not in daily attendance at the trial, was traveling around the country to visit marks and deliver threats in person to keep them from testifying.

  The defense’s tactics were unapologetically squalid, and they spurred The Denver Post into its purplest prose. “Cruel claws of intimidation oozed thru the velvet glove of the bunco defense in the west side court Thursday,�
�� read its front-page account of the trial’s third day. Yet there was a brand of sound if outdated legal logic behind their attacks on the prosecution’s witnesses. Until just a few years before the Blonger trial, case law in several of the states held that the plaintiff in a suit for larceny by false pretenses must come into court “with clean hands,” a doctrine which says that a plaintiff can only expect an equitable outcome if he or she has not acted unethically or in bad faith toward the defendant. A plaintiff who intended to violate the law together with the defendant put himself outside the scope of the law and could not then seek protection from the defendant’s misrepresentations. As the New York Supreme Court stated in McCord v. People, an infamous decision from 1871, “Neither the law or public policy designs the protection of rogues in their dealings with each other.” Such an interpretation was tantamount to a free pass for any criminal activity that implicated its victim, but the New York Supreme Court upheld the McCord decision in 1900 in People v. Livingstone. In a broader sense, American law did not recognize the category of fraud until well into the twentieth century. Nineteenth-century market culture privileged individual autonomy and judgment; the consumer had no legal recourse if his initial evaluation of the authenticity of the goods for sale proved incorrect.

  Not until 1906 did the New York state legislature amend its Penal Code so that larceny by false pretenses might be prosecuted in the same way as common-law theft, in which stealing property from a thief is the same as stealing it from its rightful owner. Yet even when states sought specifically to outlaw confidence games, they further harmed the marks who brought their cases to court. Statutes in states such as Montana and Illinois held that a confidence game was distinguished by the fact that the criminal could operate only by gaining the victim’s confidence. This instantly turned each trial into an inquiry into the victim’s state of mind during the course of the crime. The prosecutor had to prove not only that the defendant had taken the plaintiff’s money but that he had fully and consistently held the victim in his thrall with felonious intent. One swindler, who’d taken an elderly woman’s diamond ring in exchange for a promise of monthly profit from his fabled oil properties, went free after the woman confessed that she’d entertained doubts about his honesty before she gave him the jewel, thus revealing that he hadn’t held her complete confidence. Slowly, states began to wrench the law around so that it pointed at the defendants. They learned to fight a crime of information by requiring transparency. Yet the taint on the plaintiff remained, and the swindler’s easiest defense was to attack the mark’s cupidity, ignorance, and dishonesty.