by Deirdre Bair
Even though this was a tax evasion case and not a criminal one, the proceedings moved on to a brief discussion of the Lingle murder, in which the prosecution admitted that there was no concrete evidence to tie Al Capone directly to it. Wilson used the inability to connect Capone with it to introduce the topic of why he had originally thought it wise to accept Capone’s decision to plead guilty and take the prison sentence. He said he agreed to go along with Capone’s lawyers because he was “convinced that [every important witness] was in deadly fear of the Capone organization” and he could not guarantee they would even identify Al Capone, let alone stand by their grand jury testimonies. Also, Wilson said he felt sure that the attempts to bribe jury members would succeed, “so the trial would have been unsuccessful for the government.”
The prosecution then turned to the Mattingly letter and tried to enter it into evidence. The defense immediately objected. The judge denied the defense objection and said he would allow it. Ahern said the letter should not be used against his client because Congress, hoping to unclog the backlogs already overwhelming the courts, was on record as openly inviting citizens to settle claims so that neither criminal nor civil actions could be filed against them. Ahern said that is exactly what the good citizen Al Capone tried to do via the Mattingly letter, to pay what he owed.
Instead of bolstering his colleague’s contention or letting it stand on its own, Fink took over and proceeded to undercut Ahern disastrously. He argued that Mattingly had no right to introduce such a letter, even though it was his attempt to free Capone from “criminal liability.” As such, Fink said, it was therefore inadmissible in a trial for tax evasion. Fink did not stop there; next he said Mattingly had overstepped his legal boundaries by volunteering to prepare such a letter at all; his task was to defend his client and not give law enforcement the gift of an open admission of criminal conduct. Fink was not yet finished with his damnation of Mattingly when he thundered that he wanted to cross-examine him to ascertain what possessed him to write it.
Fink’s attempts to rebut the prosecution’s arguments were so weak and ineffectual that they were more like corroboration than disagreement or denial. What he should have done, according to lawyers in later years, was to show how various aspects of Capone’s income came from different sources so that his admissions of the part that originated in criminal activity, all made in good faith as an offer to arrive at a suitable taxpaying compromise, could not later be held as admissions of guilt in a prosecution for tax evasion.
A sad comedy of errors ensued as the defense team veered hopelessly off the central subject. Legal experts agree that Ahern was foolish when he argued that every citizen and not just Al Capone wanted to conceal income and evade taxes. When he compared Capone’s actions to those of the Boston Tea Party, an incredulous Judge Wilkerson interrupted to ask if he could possibly think the current trial was akin to the earlier political demonstration in Boston Harbor. Ahern then made what was probably the most inane comment of the entire trial: “No, I don’t know what it is.” Further inane comments abounded as the defense tried to rebut the prosecution with its own arguments.
Many years later in 1990, when the Chicago branch of the American Bar Association staged a retrial based on original transcripts, the biographer Robert J. Schoenberg had the good fortune to interview the judge and several of the lawyers for his book Mr. Capone. Terry McCarthy, acting as one of the two defense lawyers, described the original team as “really inept criminal defense lawyers. Certainly, by today’s standards they did not know what they were doing.” The judge who presided at the retrial, Prentice H. Marshall, concluded that even though most of the laws still setting precedent today were in effect then, “those were simpler days.” It was an oblique way of saying that life in Chicago in those years was played fast and loose, even in the courtroom. Both retrial participants agreed that Fink’s tack concerning the letter was self-defeating, especially his repeated insistence that he had to call Mattingly to the stand because parts of his letter “indicate the lawyer is crazy.” The retrial lawyers believe he should have downplayed the admissions of criminal guilt and concentrated instead on verifying Capone’s taxable income and his offer to pay it. Judge Marshall said the letter was “a bona fide offer in compromise,” and under the rules of evidence in effect then (and still today) “bona fide offers to compromise are not received in evidence.” Judge Wilkerson must have been well aware of the law but almost jumped out of his chair in his haste to admit the Mattingly letter. Such a letter is known legally as a defendant’s admission against interests, and the judge said, “When a man makes such statements, he does so at his own peril. He cannot bind the government not to prosecute him.” It was the judge’s second decision not to be bound by any prior decision, the first being his refusal to honor Wilson’s acceptance of the plea bargain.
And so the Mattingly letter was introduced after the transcripts of Capone’s April 1930 interviews were read to the jury. This is the one point on which every lawyer who has since studied Al Capone’s legal issues agrees with Fink: the very fact that Mattingly took his client to those meetings in the first place and then sat quietly while he gave testimony that was likely to convict him was indeed a clear indication that “the lawyer is crazy.”
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Most of the trial’s first week was taken up with one witness after another being called to demonstrate Capone’s high living and verify his reckless expenditures, providing reporters with an embarrassment of riches for their articles. One witness testified that he always carried huge wads of cash that would have “choked an ox.” Fink’s limp attempt to discredit him in cross-examination was the question, “Wouldn’t the size of the roll depend on the size of the ox?” Meyer Berger had sheer fun when he wrote about it in the New York Times, saying that it was all “too much for the rural gentlemen in the [jury] box,” especially when bills for Al’s diamond studded belt buckles and soft silk underwear were presented.
Another moment of levity came when one of the prosecutors tried to introduce a witness’s statement that Capone’s first job had been tending bar at Coney Island. Fink objected, asking what that had to do with the current charges; the prosecutor said it proved he had humble origins and did not inherit his money, so it had to have come from somewhere else. Fink then asked if the prosecutor was attempting to show that Al Capone was a self-made man, “like Abraham Lincoln and Herbert Hoover.” “Not exactly,” replied the deadpan prosecutor.
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On October 13, one week after the trial began, Johnny Torrio and Louis LaCava, a mid-level Outfit functionary, were waiting to appear as the last witnesses for the prosecution, both hostile and obstructive and only there under subpoenas. Everyone was shocked when they were never called and the prosecution rested its case. Wilson and his colleagues made the risky decision that the testimonies and documents (Ries’s in particular) were enough for conviction. It so startled Ahern that he was heard to shout “What?” Fink was taken off guard by the announcement but recovered quickly enough to ask Judge Wilkerson for a continuance since his team was not prepared to go forward with a defense. Wilkerson could have insisted that they begin immediately but said he would give them until the next morning, October 14.
Fink had not prepared a defense because he and Ahern never thought they would have to use one. During the trial, they simply assumed that the prosecution witnesses were suspect and unreliable, and theirs would offer convincing rebuttal. Ries’s grudging testimony for the prosecution’s case was one of the clinchers that eventually resulted in the guilty verdict, but the witnesses called by Capone’s defense to discredit Ries only tightened the clinch. Fink called Peter Penovich, who had been manager of the Subway gambling house, where Ries had worked as his bookkeeper. Penovich told how he had run it as an independent operation in Cicero until the Capone faction took over the town, and how he found it expedient to throw in his lot with them even though his take was much smaller once he became their employee at the Ship. The retrial lawyer M
cCarthy rightly described Penovich as “a better witness for the government than any the government put on,” and this was only the first of many such unhelpful witnesses.
The lawyer Tom Mulroy, who played the part of the prosecutor in the 1990 retrial, called Fink’s witnesses “laughable” since most of them were bookies or gamblers who skirted the fine line separating legal from illegal activity in racetracks and betting parlors. Fink did not try to explain or defend where Al Capone got his money; his questions to various bookies only required them to swear that he was such a lousy gambler that he never had a winning day. It was a “silly defense,” for the law then and now stated that gambling losses could only be deducted from winnings. If Capone’s largesse in every aspect of his life did not originate in gambling wins, Fink put him squarely in the position of still not being able to explain where or how he acquired the enormous sums he needed to support his extravagant life.
Despite the procession of gamblers and bookies Capone’s lawyers trotted out to take the stand and swear that he was a constant and consistent loser, they made a glaring error when they failed to stress the fact that until 1927 earnings from illegitimate activities were not taxable. This was the one time when the Mattingly letter could have worked to their benefit: they should have stressed that Capone did try to pay what he owed and that the government had refused to accept his offer and had chosen to prosecute him instead. A competent defense would have hammered this point repeatedly, and even though the jurors were as determined as Judge Wilkerson to convict Al Capone, the question of reasonable doubt would have at the very least been entered into the record for an appeal.
The prosecutors did their own hammering in closing arguments. They offered summations of the defense witnesses’ testimony to show how they corroborated the documents collected by the government. Five years of painstaking paperwork, the boxes of ledgers, journals, canceled checks, money orders, and telegrams, when buffered by witnesses for both sides, all worked in the government’s favor because they added up to the same thing: Where did the vast sums of money Al Capone claimed to lose in gambling come from, and how was he able to live such a high life if he never won? The Mattingly letter loomed large in the government’s summation, with the prosecutors using it to prove that it was a statement against his own interests wherein Capone had openly admitted culpability. To enforce why the jury should disregard Mattingly’s contention that it could not be held against his client, the government’s lawyers used the analogy of a murderer who hung a sign on the smoking gun he had just fired and said it could not be used against him. Weak as the analogy was, it impressed the jury.
Then it was the defense’s turn. Recognizing the weight of all the evidence against their client, they chose to concentrate on claiming that Capone had not been fairly tried but had instead been unjustly persecuted as well as prosecuted. Ahern said the government’s case was based on “inference,” “presumption,” and “circumstantial evidence” and that it “sought to free itself from the law, to convict him merely because his name is Alphonse Capone.” If he had continued to follow this line of argument clearly and succinctly, he might have actually broken through to the largely uncomprehending and therefore unconvinced jury; instead, he chose to launch into dramatic rhetoric by invoking the Roman senator Cato, who (in one of the several Latin versions of the phrase) advocated the fall of Carthage. “Delenda est Carthago,” Ahern roared, hovering over the puzzled jury, who had no idea what he was talking about.
Undeterred, Ahern moved forward in historical time from the Roman Empire to Sherwood Forest. He told the jury that the government was seeking to convict Capone for being “the mythical Robin Hood you read so much about in all the newspapers.” Certainly, he conceded, his client was “spendthrift” and “extravagant,” but he should not be convicted on such “meager evidence.” The New York Times, which printed Ahern’s impassioned arguments along with descriptions of how he pounded the railing of the jury box so hard that jurors shrank back in alarm, described how a puzzled Capone listened to his lawyer: “There seems to be a reasonable doubt as to whether he grasped the full meaning of it all, [but] it sounded good.”
When Fink took over, his voice was shrill and strained, but his oratory stuck to the known facts, primarily that Capone had tried to pay his debt to the government but the government didn’t want his money; instead, it wanted to put him in prison. He did not mention that the real reason for a trial on tax evasion was that the prosecution could not be sure of a conviction on criminal charges. Fink kept as strictly silent about Capone’s criminal activity as did the prosecution’s lawyers. The closest he came to admitting illegal gains was when he tried to put the onus onto the government by insisting that Al Capone was not a “piker” and had never welched on a debt. If he had not paid his taxes, the fault was not his, and the reason had to be something other than an attempt to defraud the government. By the end of Fink’s statement, the New York Times noted that Capone had listened so intently and was so deeply moved that his face was suffused with “self-pity.” The “poor picked-upon Al” look was ignored by the judge and jury.
George E. Q. Johnson gave the final summation for the prosecution, and he began by turning Ahern’s words against him. Johnson said Capone was a strange sort of Robin Hood, for instead of robbing the rich to give to the poor, he lavished diamond belt buckles on friends, put them up in expensive hotels, threw parties overflowing with illegal booze and tables groaning under lavish loads of food in his garishly decorated mansion. And it would seem, the most damning of all for a jury of working-class men, Al Capone wore custom-made silk underwear!
Naturally, Johnson made no mention of the soup kitchens, the handouts to widows and orphans, and the many other good deeds that benefited the poor and indigent. Instead, he told the jury he was puzzled by “the halo of romance and mystery” in which Capone’s lawyers tried to envelop him, and to dispel it, he gave a brief chronology of his life in crime. He followed it with rhetorical questions about why Ahern and Fink had not called Jake Guzik, Ralph Capone, and Frank Nitti as witnesses for the defense. Johnson knew that citing other gang lords who were either on their way to or already in prison for trying to defraud the government made an excellent contrast with his final argument, that millions of citizens went to work every day and dutifully paid their share of taxes to keep society functioning.
Johnson presented his summation in calm, controlled, and dispassionate tones. He avoided all references to criminal behavior and heinous deeds with the exception of one blatantly false assertion about the Outfit, that it was created and designed not only to build wealth for Al Capone and his cohorts but, more important, to amass the spoils with only one purpose: to avoid paying taxes. Capone’s lawyers let it stand unchallenged. If Johnson showed any emotion throughout, it was when he referred to the five years it had taken for him to build the government’s case. Capone’s lawyers could have used the way he described the process to insist that the entire trial was a personal vendetta, but here again they left it unchallenged. Johnson then said he had begun the case against Capone not because of “public clamor” but rather because “the facts” (in Johnson’s opinion) clearly showed how Al Capone was in repeated violation of the laws of the land.
He then unwittingly made what was the most profoundly truthful statement of the entire trial when he said that it was one “future generations will remember.” It certainly was, with lawyers having argued its fine points ever since. But Johnson was making this statement in a more specific manner: he meant that he wanted the public to remember the trial not because it was of Al Capone but rather because it established “whether or not a man can go so far beyond the law as to be able to escape the law.” The biographer Robert J. Schoenberg summarized Johnson’s position succinctly when he wrote, “In other words, can a man get away with murder and not answer at least for tax evasion?” What Johnson was really asking the jury to do was: “In other words—remember that this defendant was Al Capone.”
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Capone and his legal team were in his Lexington Hotel headquarters at 11:00 p.m., when they were told the jury had reached a verdict. Because it was returned in nine hours, a relatively short time for a trial of such complexity, Capone and his legal team had the momentary hope that the jurors were rejecting the government’s case entirely and had reached a decision favorable to their side. Actually, it was just the opposite, for they had no problem with finding the defendant guilty on most counts. The only surprising information about the jury’s swift decision did not come until later, when news leaked out that one juror was unconvinced by the prosecution’s evidence and had been holding out for a not guilty plea and the only way the others could get him to go along was with a compromise verdict.