by Deirdre Bair
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By the time Capone’s lawyers paid their first visit to Johnson’s office in May 1931, they and he knew everything that had happened in the grand jury’s chambers since Leslie Shumway’s supposedly secret testimony back in February. They knew that what Shumway told the jurors contributed to the issuance of the indictment for the 1924 tax year and that others for subsequent years were soon to follow. Their task had moved beyond trying to quash the case to one of trying to settle it in their client’s favor.
Wilson was still busily amassing evidence for the U.S. attorney Johnson, who would be the chief prosecutor when the case went to trial. Ahern and Nash made a preemptive strike in May, when they went to Johnson’s office and stunned him by recounting everything that had happened within the grand jury’s chambers. They argued that because of it there was no possibility that Al Capone could receive a fair trial in any court in his jurisdiction. It would be far better for both sides to settle the case and have it over and done with. They told Johnson they were there to plea-bargain on Capone’s behalf, pointing out the ways in which Johnson’s case would be difficult to prove, and even if he won, how they could drag out appeals for years after the trial concluded. A plea bargain would allow everyone to bring the matter to a swift conclusion.
Even though the newspapers and wire services praised Johnson’s track record for convictions, by nature he was cautious and a worrier. Johnson knew there were many risks associated with taking the case to trial. Capone was famed for bribing juries, “convincing” witnesses to change their stories, and, when all else failed, making them die or disappear. Johnson was a circumspect man who looked for the sure win before he entered a courtroom, so he hesitated to make the decision on his own. Instead of committing to the lawyers’ request, he told them he had to discuss it with his superiors in the Department of Justice in Washington. The lawyers found this approach encouraging, and they left thinking that negotiations were still ongoing, fairly confident that Johnson would return with a deal that allowed everyone to save face. However, he surprised them when he returned from Washington without a definite answer, for his superiors had decided to wait and see what the forthcoming indictments would bring.
The rebuff was worrisome, and Ahern and Nash knew there were multiple indictments for 1925–29 in preparation, so it would be in Capone’s best interests to settle before they were served. In their original proposal, the lawyers said Capone would agree to pay taxes for 1924 and accept a prison term of eighteen months. Johnson refused it because he thought eighteen months was an insultingly brief sentence and said it should be at least two and a half years. Capone’s lawyers were still not ready to give up, so they asked Johnson to offer a counterproposal. He declined and instead consulted Judge James H. Wilkerson to ask his advice.
Judge Wilkerson had already proven himself a formidable adversary in Capone’s earlier trial, a by-the-books jurist who had long railed against little guys in his courtroom taking the rap for the big ones who called all the shots: bar owners and speakeasy operators were the ones who appeared before him while the higher-ups who shipped the booze and kept all the profits were left unscathed. Johnson explained his qualms about taking Capone into a courtroom where almost everything the government had against him was circumstantial. The witnesses Ries and Shumway were, if not actual criminals themselves, certainly involved in suspect activity; there was a possibility that tax evasion might be judged a misdemeanor and not a felony; and although they had invoices of everything from silverware to tailored suits that were shipped to the Capone households, it could be argued that that evidence was also circumstantial. Johnson told all this to Wilkerson, but if he was asking straight-out for the judge’s advice or consent, he got neither.
Johnson left that meeting as he had done the earlier one in Washington, without any sort of resolution and thus no direction. He was on his own. Eventually, he and Capone’s lawyers agreed on a guilty plea and the prison sentence of two and a half years. In record time, the newspapers and wire services, which obviously had sources inside both camps, knew of the agreement and reported every last detail to a mesmerized public. The Associated Press competed with the Chicago Tribune to give the minute particulars of what happened every day. And as the news of Capone’s deal filled front pages all across the country, Judge Wilkerson seethed with a quiet and well-hidden rage. To think that a criminal of Al Capone’s magnitude could waltz into a government office and not only bargain but also actually dictate the terms of the penalty he was willing to pay, and not for his most heinous crimes of murder—it made Judge Wilkerson livid. Certainly, Capone’s lawyers were acting on their client’s behalf with the attempt to plea-bargain; clearly, the judge did not want Al Capone to benefit from it.
Judge Wilkerson knew Capone well, for he had presided over the earlier contempt trial, and if there was to be one for tax evasion, he would preside over it as well. What he told Johnson was short and to the point: he said that the chief prosecutor should never have engaged in plea bargain discussions with Nash and Ahern; he should have told them from the start that Al Capone was going to trial for failing to pay income tax for the years 1924–29. He never told Johnson explicitly that if the case was heard in his courtroom, there would be no deal, so Johnson left that meeting thinking the judge had accepted the two-and-a-half-year prison bargain.
Johnson and his associates busied themselves preparing an indictment that was served to Al Capone on June 5, 1931. It listed twenty-two counts based on an income of $1,038,654.84, for which he owed taxes in the amount of $215,080.48. Newspapers everywhere followed the lead of the New York Times and scoffed at these estimations as being far too small. Johnson countered that even if the amount was only partial, it was still enough for a jury to be able to render a verdict. Theoretically, if convicted on these amounts, Al could have received a maximum prison sentence as long as thirty-two years, with fines amounting to something between $80,000 and $90,000 and court costs to be determined separately and added to the fines. However, the longest prison term that had been given to that date was Jake Guzik’s for five years, so if Capone were found guilty, his lawyers were banking on something between two and five years, per their discussions with Johnson.
Ahern and Johnson agreed that Al Capone would plead guilty to nonpayment of taxes and go to prison for two and a half years. Ahern relayed the terms to Capone: he must agree to plead guilty and go to prison for two years on the tax charge and an additional six months for the violation of Prohibition laws. Also, he must agree not to appeal the sentence but should go to prison directly after he left the courtroom. Ahern thought it was as good a deal as Capone was likely to get, but first he wanted Johnson to submit written approval from his superiors in Washington that they would accept it. If such a document was prepared, it has not been found among Johnson’s records.
There is no evidence that Ahern ever received such a communication, which legal scholars consider another black mark against his haphazard representation. There is, however, an unofficial letter to Johnson from the attorney general in Washington that said almost casually that it was okay to proceed. It appeared that both sides accepted the informal and unwritten agreement as binding and that all Al Capone had to do was appear in court on June 16, plead guilty, and go directly to prison.
Capone was ready to accept it, for he was only thirty-two and would still be a young man when he got out. There was an attitude of resignation in his response to all the dickering and bargaining, but also an air of simple fatigue. Everything since the two previous trials had taken a toll, from the tension attached to the back-and-forth negotiations of the present indictments, the ongoing nuisance suits in Miami, the constant hounding by the press and the public crowds that left him without a moment of privacy; it made it difficult for him to focus on business and family. He was tired and could do with a rest, and if he had to take it in prison (as he had done in Philadelphia), then so be it. He expected to be sentenced to Leavenworth, where Ralph and Jake were comfortably enscon
ced, so he wanted his case to be over and done.
But the indictments kept coming, with the next centered on his violation of Prohibition laws. Capone’s lawyers were disappointed when Johnson decided to include it but not to emphasize it, for if he were convicted on this charge rather than on tax evasion, the sentence carried penalties of two years or less in prison and only $10,000 in fines. They thought that pursuing it would be a surefire way to guarantee a short sentence.
The battle of wits and jousting for primacy in a settlement continued. Nash had been joined on Capone’s courtroom team by the novice criminal defense lawyer Albert Fink, who did not have the stature of Ahern and Nash. The majority of legal analysts who have since dissected Capone’s trial agree that having two lawyers who specialized in criminal defense and none skilled in the practice of tax law was unwise. But here again, Capone agreed to the decision of the two senior lawyers and accepted Fink without question. Johnson also accepted the additional lawyer without comment or concern, even though he was still hesitant about going to trial. And he had every right to be.
There were many gray areas in the laws pertaining to the relatively new income tax. Since the Sixteenth Amendment was passed in 1913, tax laws were so unsettled that they were being rewritten all the time, as both criminals and ordinary citizens were crowding appeals court dockets throughout the country. In Capone’s case, the government’s evidence was heavily dependent on the testimony of highly suspect criminal witnesses who were likely to change it on a personal whim or a perceived threat of retaliation. There were also statutes of limitations, and in this case many had already expired, and Capone’s lawyers should have known it. If they did know, they did nothing to have the charges invalidated. Also, if Capone himself had been paying attention to the trials of Ralph, Nitti, and Guzik, he should have been aware of the various expirations and advised his lawyers accordingly. The lawyers, who should have been informed, were either sloppy or simply indifferent; if the latter, they were mirroring their client, who was now unconcerned because he knew a fix was in and if necessary he would take one for the team by serving the prison time.
Meanwhile, Johnson feared the statutes of limitations would have a serious negative effect on his case, especially the first (and main) indictment, which he had rushed to prepare and serve on March 13, 1931, two days before the charges expired on the fifteenth. Income tax throughout the 1920s was far from being as regulated, all-inclusive, and bureaucratically organized as it is today. There was nothing like a standard 1040 form, and only 10 percent of the population paid the tax; many were often unaware of what level of income required filing. In the cases of those who did pay, it was akin to an honor system because it was up to the payee to declare income and apply for the necessary documentation in order to make the payment. It was a gray area subject to many different interpretations, and the ever-cautious Johnson was well aware of the loopholes. There were so many areas open to differing interpretations in Capone’s case that, careful as he was, he made the decision on his own to compromise with Ahern, the lawyer who spent his career writing briefs and was now acting as Al’s chief tax negotiator.
Capone was indicted by the grand jury, and bail was set at $50,000. He quickly paid $5,000 to remain free pending arraignment and was silent and subdued throughout, leading newspapers to write stories such as the one in McCormick’s Tribune that said he had been “pushed around so much his power has waned.” The Colonel made sure that all stories in his paper treated Capone negatively, and most other papers took their cues from Chicago, for, after all, they were the reporters on the spot and therefore those who should be in the know. Other reporters, from other countries as well as the United States, surrounded Capone to and from the courtroom, but he said nothing as he quickly eluded them.
Because there were so many variables on both sides, a deal did seem the wisest outcome. Information kept filtering back to Capone’s attorneys that Johnson had several newly discovered safe-deposit boxes belonging to the Outfit that contained further damaging information. Also, the attorneys learned that he was pressuring fairly high-level gang members to appear as witnesses for the prosecution, and there was even the rumor that he planned to call Johnny Torrio to testify against his onetime protégé. Despite the damaging evidence he was amassing, Johnson was still worried that he would not be allowed to enter one of his key pieces of evidence, the Mattingly letter. He was well aware of the daily rumors about the usual sort of “Chicago influence,” a code name for the intimidation that Capone’s people would use to ensure the trial outcome they wanted. And in retrospect, there was even the slightly amusing pressure President Hoover was putting on Johnson: he wanted Al Capone in jail to bolster his 1932 reelection campaign and also before the 1933 Chicago World’s Fair opened. Hoover decreed that Chicago was to be declared safe for tourists from all over the world, and the only way that could happen was if Al Capone was off the main stage.
Meanwhile, public opinion favored both sides in almost equal part. Capone courted reporters, telling them all he was out of the rackets for good, especially now that it was just a matter of time until Prohibition was repealed. This is when remarks began to be attributed to him about how he should have been in the milk rather than the beer business, for not only was milk legal, but there would always be a demand for it. Perhaps he did say it, but like so many other myths, particularly the one that he was responsible for having “sell-by” dates put on milk bottles and, later, cartons, it can’t be verified. However, as he always did when he wanted to present a picture of himself as gentle and home loving, he trotted out references to his mother (the best in the world), Mae (the saintly wife he loved dearly), and Sonny (the innocent son of whom he was justly proud). He said that because of his love for them (true) he would throw himself on the mercy of the court, willingly serve his time, and never violate the law again (patently not true). As if to reinforce how ominous was the dreadful fate awaiting him, he began to repeat what he had told reporters when he left Eastern Pen: “Jail’s a bad place under any circumstances, and don’t let them kid you.”
He expected to be sent to federal prison in Leavenworth, Kansas, where his cohorts were cozily situated and, depending on who told the tale, all but running the place, and when he got out, he vowed to be a model citizen. And oh yes (said he humbly), another equally important reason he planned to plead guilty was the great respect he had for “his fellow tax-payers,” who were regrettably footing the bills for his expensive trial. He claimed that because he was imbued with such generosity of heart and spirit, he would not put his fellow Americans through lengthy and expensive appeals but would throw himself on the mercy of the court, try for a plea bargain, and take his punishment. Every newspaper in America printed what he said in one form or another, with half the stories proclaiming his stance heroic while the other half saw it as his way of trying to beat the system. Judge Wilkerson read them all and was not amused.
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The streets of Chicago were chockablock with people who had come to see Al Capone on June 6, 1931, for what might be their last chance in a very long time. He came to court in full regalia but here again, it was subject to different descriptions; the Tribune called his yellow suit “bilious yellow” while the Herald and Examiner described it as “Shrieking banana.” His voice was much more subdued than his garb as he replied with a low “guilty” to each indictment. Reporters in the courtroom said the entire encounter was over in approximately three to five minutes. And then the unexpected happened: Judge Wilkerson said he needed time to consider the sentencing and set June 30 for the sentencing hearing. Ahern had asked for this date so that his client’s Florida lawyers could deal with the suit brought by his former lawyer Vincent Giblin claiming that he had not been paid his $50,000 fee. Ahern’s reason for requesting such a long continuance was an excuse to let the media heat die down before the sentencing in Chicago, for everyone in Miami already knew Giblin had agreed to take Capone’s offer of $10,000 in full settlement.
There w
as an ominous undertone in the discussion leading to Wilkerson’s granting of Ahern’s request, which neither the lawyer nor his client seemed concerned about. Ahern argued that Capone was not likely to flee Wilkerson’s jurisdiction, and besides all the charges in the indictments for conspiracies and tax evasion were relatively minor in the legal scheme of things, as were the punishments meted out for them. Judge Wilkerson replied that there were “conspiracies and conspiracies, and tax violations and tax violations.” Of all the reporters in the courtroom that day, only the one from the Philadelphia Inquirer paid attention to what he said, and even he did not give it any special emphasis.
With the permission of his attorneys, Al Capone was absent from the courtroom for sentencing on June 30. Judge Wilkerson never spoke or wrote about whether he had already decided how he would sentence the defendant, but there were many factors that probably influenced and ultimately led to his unprecedented decision. The press had turned solidly against Capone after the continuance was granted, mainly because their readers resented that he would only go to prison for slightly more than two years, which he confirmed whenever anyone asked him. Publications like the Literary Digest, Collier’s, Time, and the New Republic had wide circulations and were respected for their editorial positions. They all denounced Capone’s grandstanding and interpreted what had happened in Judge Wilkerson’s courtroom as yet another victory in which he had manipulated the law to suit his purposes. Regional newspapers from St. Louis and Louisville, Philadelphia and Boston, did the same, reporting it as the triumph of the crook over the guardians of goodness. Or, as the New Republic put it, the victory was Capone’s, but the defeat was Chicago’s.