by Deirdre Bair
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Al was out and about during the continuance. Mae and Sonny had returned after the school year ended and moved into their old apartment on Prairie Avenue, while he stayed mainly at his headquarters in the Lexington. In one ironic coincidence, he and the prosecutor Johnson went to the same racetrack on the same night: Capone preened to the crowd’s adulation from his private box, while Johnson sat anonymously in the stands. Recognition of the two adversaries was one-sided; the band serenaded the defendant, who waved to the audience, so Johnson knew Capone was there, but no one recognized or serenaded the prosecutor, and there was no contact between them. Each man went into the courtroom on July 30 fully expecting a quick end to the case that was linking them so closely together.
Reporters already had their stories written as Capone entered for the 10:00 a.m. sentencing hearing. They were all ready to print the same thing: that Al Capone would serve two and a half years and probably pay $10,000 in fines. The writers were relaxed, thinking they could file their stories quickly and take the rest of the day off. They expected the hearing to be as brief as the one in which Capone pleaded guilty earlier in the month. However, they snapped to attention as soon as Judge Wilkerson began to talk and said the court (meaning himself as the presiding officer) was not bound to accept a plea bargain.
He said it was likely that Al Capone had pleaded guilty because of his agreement with Johnson, and he acknowledged that judges almost always followed the prosecutor’s recommendation. However, this case was different, and this particular defendant had no right to determine its outcome. Al Capone could not dictate the punishment he would accept, or as the judge said, he “may not stipulate as to the judgement to be entered.”
For prosecutor Johnson, it was a public humiliation for him and his office. For Capone and his lawyers, it was a question of what to do next, for they had no alternative strategy prepared. Wilkerson told the assemblage that he had to end the morning session to attend to another matter and they would have to reconvene at 2:00 p.m. In the few hours until then, Capone’s lawyers had to consider what the judge said as he closed the morning session, that if their client expected leniency, he should be prepared to answer any questions the judge might ask about “the matters to which he has confessed by his [original guilty] plea.” It seemed he was referring to the Mattingly letter and was prepared to allow it as prosecutorial evidence.
All parties were stunned when they reconvened that afternoon, especially the prosecutor, Johnson, whose voice and hands were shaking as he told the judge the two reasons he had accepted the plea, both of which were obviously based on the orders President Hoover had issued via Elmer Irey: to avoid “the hazards” of a trial and to settle the matter “at an early date.” It was doublespeak, a code for his fear that the state’s evidence was not strong enough for a conviction. Johnson was an honorable man who was stung to be put in the position of welching on a deal. He said he believed he “owe[d] this further duty to the defense” as he tried to explain that the guilty plea was entered only because he (and the U.S. attorney general and the director of the Treasury) had agreed to the settlement. The judge was unmoved by Johnson’s explanation and did not modify or change his decision.
In his response, it was clear that Wilkerson had been influenced by the media coverage to a far greater extent than anyone could have predicted. He named no names as he said press coverage had been “contemptuous in character” and had made a mockery of the federal court system by announcing the outcome of the hearing before the verdict was even rendered. Wilkerson’s voice was thunderous as he said, “It is time for somebody to impress upon this defendant that it is utterly impossible to bargain with a Federal Court.”
An embarrassed Johnson tried to save face again by offering to produce the informally written letter from the two federal officials regarding the two and a half years as an appropriate sentence. Judge Wilkerson refused to consider the letter and said he would hand down his own sentence—but only after he heard evidence, first from the government and then from Capone himself. Capone’s lawyers saw the exchange as Judge Wilkerson’s signal that he wanted to use the Mattingly letter to force Capone to incriminate himself, thus freeing the judge to hand down a longer, more punitive sentence. They decided the best recourse was for Capone to withdraw his guilty plea and request a jury trial. The judge agreed to their request and told all the participants to convene the next day to set a trial date. When they reconvened, the judge cleared his docket for the trial to begin on October 6, 1931.
By that time, Capone was mounting another full-court public relations campaign, inviting any reporter who wanted to see him to his Lexington Hotel headquarters. The press was having a field day every time they asked him how he felt. He told them all that he was prepared to throw himself on the mercy of the court, once again assuming the persona of the poor persecuted fellow who was being hounded for crimes he didn’t even know he had committed.
Was he worried? they wanted to know. “If I told you I wasn’t, I wouldn’t be telling the truth,” he said, according to the Chicago Herald and Examiner. The New York Times put it more succinctly, quoting him as saying, “Well, who wouldn’t be?”
Chapter 20
“I GUESS IT’S ALL OVER”
Up to the moment the trial began, Capone thought everything was under control. Shortly before the first session on October 6, 1931, he tried to take care of business in his usual way, by summoning some of the prosecution’s key witnesses to his office in the Lexington Hotel. When they were called to the stand, Judge Wilkerson concluded that they were “forced by Capone to give perjured testimony” because “their oral testimony [was] entirely unsupported by records of any nature.” After the trial ended, the judge said it had been “perfectly clear” throughout that Capone and his Outfit had such a “coercive influence over those with whom it comes in any contact [that it is] nothing less than insurrection against the laws of the United States.” He said he would have been “blind indeed” not to have seen “the intimidation practiced on witnesses almost under the eyes of the court.”
One of the chief intimidators was Capone’s bodyguard Phil D’Andrea, who was sentenced separately for contempt of court on two counts, for false testimony and for carrying a loaded gun into the courtroom. Judge Wilkerson said “the pistol was far less serious than the perjury” and sent him to the Cook County Jail for six months. Throughout the trial, D’Andrea did not take particular care to hide the gun as he sat in clear sight of every witness and directly behind his boss. The gun bulged prominently and was visible as he unbuttoned his jacket and draped his arm over the back of the chair. He glared at witnesses, as did Capone, who carried no weapons other than his celebrated “stare,” which he used with great effect to further unsettle witnesses.
Besides “persuading” witnesses, Capone and his men had taken added precautions: they had bribed, cajoled, and threatened enough of the jury pool that even if all the charges were not dismissed, the consequences would be less severe than those he had agreed to in the plea bargain. Unfortunately for him, he had not taken Agent Wilson’s unorthodox methods of witness persuasion as seriously as he should have. There was so much information flowing between Capone’s lawyers and his adversaries on gossip grapevines so fully entwined that each side knew exactly what the other was up to, not to mention those of sideline players who had their own informants. If Capone and the government had their sources and snitches, so too did journalists and courthouse employees. There were so many offshoots that even the snitches had their own snitches, which made it all the more astonishing that what happened next took place in perfect secrecy.
Easy Eddie O’Hare, still angling to get his son into the naval academy, got wind of the attempted jury fix even before the prosecutor and the judge knew it was in. Through his courthouse sources, O’Hare received a copy of the sixty-person list of those who were in the original pool and were then whittled down to the thirty-nine who would be questioned by the judge and the lawyers during voir d
ire for the final selection of one dozen with three alternates. He knew that those who were numbered 30 through 39 had the best chance of being selected because they had served on previous panels, and he also knew that they were the ones who had agreed to take Capone’s various bribes and/or payoffs.
O’Hare effectively signed the contract for his death warrant (although the Outfit hit that killed him did not happen until eight years later) when he told Wilson, who, in turn, told Judge Wilkerson, who did not know, because the official list was still in preparation. Some time later, when the clerk of the court delivered it and the judge compared his list with O’Hare’s, the names of jurors 30–39 were identical. Wilkerson read it in silence and made no comment afterward, so not even Wilson or Johnson knew what he planned to do about it.
The judge’s strategically brilliant solution became clear just minutes before his original jury panel was to be brought in one by one for questioning. In muted, matter-of-fact tones, Wilkerson announced that there would be a slight delay before the trial began, until he could swap panels with another judge whose case was to begin on the same day and at the same time. The panels were exchanged, and as soon as the new, uncorrupted members of the Capone jury were selected, the judge announced further precautions against their contamination: they would be sequestered in a nearby hotel, with guards who would escort them to and from the courtroom each day and would stand outside their rooms at night. To make another possible method of bribery unlikely, they would have minimal and carefully monitored contact with the hotel staff. They could not use the telephone but could write and receive letters, all of which would be carefully censored. There were no radios in their rooms, but they could read newspapers and periodicals—only after anything pertaining to Capone and/or the trial was cut out.
Thus, there was no way Capone or any of his associates could make contact with members of the jury, but even if he could have, those jurors were not likely to succumb to bribes or threats. The entire jury selected for Al’s trial was composed of nonethnic working-class men whose backgrounds were what the sociologist Digby Baltzell called WASP (white Anglo-Saxon Protestant), all of whom lived in rural communities outside Chicago. They were conservative elderly men, which made it unlikely that they had ever had the slightest casual contact with an Italian-American, and like many of their ilk they held the usual prejudices against them. Also, they would have had scant opportunity (and perhaps even the desire) to break Prohibition laws, so the clandestine world of booze was another unknown. And what they knew of gangland violence was only through what they read in the papers.
The distinguished journalist Meyer Berger, then a young reporter covering the trial for the New York Times, described them as “rural gentlemen of simple and rather careless habits of dress.” Al’s erstwhile friend from Florida Damon Runyon, who was there to cover the trial for the Hearst papers, also mocked the jurors, calling them “horny-handed tillers of the fruitful soil, small-town storekeepers, mechanics, and clerks.” The lawyer Michael Ahern agreed with both journalists, but he had a far more serious reason for making a formal protest to the judge.
He said they were, in a very real sense, professional jury servers, men who had been called repeatedly and selected to serve on many recent trials that might have prejudiced them against Capone’s. He recommended that they all be dismissed and a new and fresh panel selected, one that was more representative of the community at large. The judge denied his request.
What upset Ahern the most was that at least half a dozen of these men had prior involvement in the Capone family’s legal affairs: four of them had served on the federal grand jury that heard the tax evasion charges against Ralph and voted for the indictments that eventually led to his prison sentence; another was on the grand jury that investigated Al’s violations of Prohibition. Others, probably so numerous that Ahern did not single them out specifically, were men who had made no secret of how they relished their roles in trials that convicted criminals.
After Ahern made his plea, Colonel McCormick’s Tribune chastised him and the reporters who shared the opinions expressed by Berger and Runyon, editorializing that Capone needed to be tried not by his “peers” but rather by “men who reflect the opinions of the countryside, whose minds are formed in the quiet of the fields or in the atmosphere of wayside villages.” In retrospect, with this jury, the defense was already on the ropes before round one of the fight began.
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The trial began on October 7, 1931, with the U.S. attorney Johnson in charge, alertly attending every session while taking a backseat and letting his team engage in the courtroom gymnastics. Although he had several assistants, the one he was supposed to have relied on most was Dwight H. Green—this according to Green, whose later successful campaign for governor of Illinois was largely based on the exaggerated role he claimed to play in sending Al Capone to Alcatraz. At the defense table sat Michael Ahern and Albert Fink. For reasons still unknown to this day, Thomas Nash, who had defended Al in the past and was expected to lead a spirited defense, was absent throughout. Fink, nervous and unprepared, took the lead.
Wilson’s staff began its presentation by submitting records uncovered during raids on various gambling and drinking businesses owned by Capone’s gang. To testify as to these records, they called the employee Shumway and the mid-level beneficiaries of the spoils Peter Penovich and the brothers Frank and Ben Pope. The “raiding pastor,” Henry C. Hoover, captivated the courtroom as he told of his bravery in 1925, when he refused to agree to an “understanding” with Capone and told him he had to get out of Cicero and all the western suburbs. He described in detail the raid on one of the gambling houses when he claimed this encounter took place. There were many in the courtroom, primarily among the reporters, who found serious contradictions in Hoover’s testimony that could have been used to Capone’s benefit, but his lawyers did not pounce. They did not question Hoover about these discrepancies, perhaps because the five years allowed for prosecution of the raid had come and gone and the statute of limitations was in effect. The prosecution well knew this, but the jury did not, and lawyers in later years who have studied the trial agree that Ahern and Fink should have made this point. Johnson and his staff held their collective breaths as they waited for them to object to the testimony and ask the judge to advise the jury that Hoover’s testimony was inadmissible. But the challenge never came. Wilkerson, who knew it had expired, allowed the reverend’s testimony to stand because, if the defendant’s lawyers did not object, the judge was not obligated to draw their attention to it. It proved to be severely damaging, a setback from which Ahern and Fink never recovered.
Sworn statements were entered into evidence from Parker Henderson, about how he handled the purchase of the Palm Island estate and funneled other funds to the Capones, and also from the Miami branch manager of the Western Union office, through which many of those transactions passed. There was even a sworn statement from the stenographer who recorded Capone’s testimony on the day of the St. Valentine’s Day Massacre, testimony he gave far from the scene in the Miami district attorney’s office. After that, evidence in the form of documents and invoices was entered, through employees of furniture and jewelry companies, dealers in expensive rugs, interior decorators who worked on the Palm Island house, and managers of hotels who booked whole suites for Capone’s friends.
Tailors from posh shops testified about how they had to make the jacket pockets in the custom-tailored suits extra strong so they would hold guns securely. There were bills of sale for luxury Lincoln sedans, a Cunningham sixteen-cylinder Cadillac, and several specially reinforced Chevrolets. In the depths of the Depression, what was probably the most damaging testimony of all was the amount the Capones spent each week on food, usually more than $1,000; it was far more than most middle-class families spent in a year and far more than most struggling working-class families could envision. All these sworn statements were introduced to show how lavishly Al Capone spent money that had to have come from somewhere and
how none of it had been declared to the tax man.
Then came the sworn statements of successful men in positions of power, among them the editor of a weekly Miami newspaper and a rich and respected real estate magnate. They and many others testified to being guests at Palm Island parties where liquor flowed and food was never ending. They said these bacchanalia were held several times weekly, always with thirty to fifty guests and with Capone boasting freely about how much everything cost.
On the third day of the trial, October 10, Wilson’s team then introduced a different kind of damning evidence to show how Capone tried to hide his assets from government seizure. Wilson called him “the taxpayer” and recommended that a jeopardy assessment be entered against him so that liens could be filed by Florida’s collector of internal revenue. He said he felt it was necessary to protect the government’s interests after he learned that since July 6 Capone had been trying to sell his Palm Island property and all its contents, the two yachts, and a McFarlan automobile. On that day, Capone had sent a telegram to a Miami Beach realty company saying he would accept a $150,000 cash offer for everything. In front of judge and jury, Wilson then presented Capone with a notice that the government had assessed the value of his assets for the years 1926 to 1929 inclusive at $137,328.16. Unless he paid the bill “within a reasonable time,” the local tax office would take “the appropriate steps to foreclose the lien,” sell the property, and apply the sale’s proceeds to the unpaid taxes.