by Deirdre Bair
When the verdict was read, the mood in the courtroom was somber despite the palpable tension exuded by the reporters and other spectators who sat on the edges of their seats. There was no outcry, most likely because it was so puzzling that no one really understood it. The jury found Al Capone not guilty on seventeen of the twenty-two indictments, and guilty on only five of them. Newspapers reported that he “smiled nervously” as he listened to the reading. The judge frowned, took several minutes to study the written verdict, and then told the clerk to read it again so that he, the attorneys, the defendant, and everyone else could try to understand what had been decided. The felony guilty verdicts covered the years 1925 through 1927, in which Capone was said to owe $250,000, $195,000, and $200,000, respectively. The two misdemeanors were for failing to file for income tax payments in 1928 and 1929. It was a confusing verdict, for how could Capone be guilty of failing to file tax returns (counts thirteen and eighteen) when he was found not guilty of evading them (counts fourteen to twenty-two)? How could the jurors use the same evidence to find him guilty of one count in a particular year and not the several others within the same indictment? The prosecution team huddled to confer, to make sure they understood the verdict, while Ahern made the judge give him permission to poll the jury to ask each member individually if this was the verdict for which he had voted.
When Ahern finished and the judge officially accepted the verdict, the understanding was that Capone could face prison sentences of five years each for the three felonies and one year each for the two misdemeanors, a total of seventeen years. He also faced several fines starting at $10,000 each, with a maximum of $50,000, plus court costs still to be decided. Judge Wilkerson said he would pronounce sentencing in one week, banged his gavel, adjourned the session, and left the bench. Capone was grimly silent as his lawyers nervously escorted him out of the building and back to the Lexington.
One week later, on a Saturday morning, October 24, 1931, Al Capone stood before Judge Wilkerson to learn his fate. Those who listened to the judge’s statement were puzzled until the very end. On the first felony count, Capone received the maximum five-year sentence and a $10,000 fine, which he expected because it was what Jake Guzik had received. Capone received the same sentence on count five, but the judge did not say how it would be served: concurrently or consecutively. He said the same with count nine and then clarified that counts one and five could be served concurrently, but not count nine. All told, Capone was facing ten years in prison, and the two misdemeanor counts were still in play. He was sentenced to serve one of the two years concurrently with the felonies, but he had to serve the other one in full. In short, he would be imprisoned for eleven years if his conviction was not overturned on appeal. And if it were, he would still have to serve two and a half years. If he lost the appeal, ten of those years were to be spent in a federal prison and the last in the Cook County Jail. His fines would total the $50,000 maximum, and the court costs would add an additional $7,692.29.
The lawyers Ahern and Fink asked Judge Wilkerson to release Capone pending their appeal, but he refused. Bailiffs took Capone directly to the Cook County Jail, where he was to be held until his appeals were heard. His lawyers warned him to expect to lose his appeals, so that was where he would be when he learned the name of the federal penitentiary in which he would serve his sentence.
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Throughout the trial, Al had forbidden Mae and the other Capone women to attend. He didn’t even want his younger brothers there, so on the few occasions they attended, they sat quietly in the back and beat hasty exits once the sessions ended. Mae was in Chicago throughout, staying in the Prairie Avenue house with Sonny. She and Al agreed that she would stay in Chicago until the appeals were exhausted and they learned where he would serve his prison sentence. Although Sonny was missing the start of the school year in Florida, they agreed that if the penitentiary was closer to Chicago, she would enroll Sonny there, and if not, she would return to Palm Island, put him in school there, and make her visits from Miami.
Al’s edict to Mae was understandable considering that he followed Italian-American traditions toward women, but some of his and his siblings’ descendants wonder why he did not want his brothers there for moral support. Al would explain during the prison intake examination one year later. He told the doctor that he had been dealt with “unjustly, especially by the press,” and accused reporters of implicating him in all sorts of dastardly deeds he knew nothing about just to increase circulation. Because of this, he claimed that he was defiled and defamed and did not want that opprobrium extended to his family. The doctor also noted that he was “quite bitter toward the [government] officials whom he feels double crossed him.”
Al Capone would try hard to be a model prisoner, but he had many reasons for his bitterness toward the press, starting with how he was portrayed during his legal woes. He only succeeded once, and then indirectly, to curb the vividly lurid prose that described his every move: at the March trial for vagrancy, Ahern successfully petitioned the judge in that case to remove all references to “Scarface” or “Scarface Al” from the record. In all instances, he was to be known by his legal name, Alphonse Capone. Except for the occasional slip by a witness in Judge Wilkerson’s courtroom, this courtesy was observed there as well.
The campaign to vilify him intensified throughout the last half of 1931, especially in Colonel McCormick’s Chicago Tribune. A front-page cartoon showed a grotesquely fat Al sitting atop a crushed and downtrodden city of Chicago, while the hand of the attorney Johnson reached out to knock him off it. The caption was “King Alphonse, you are about to lose your throne.” When he made his first appearance before Judge Wilkerson, the Tribune described his “porcine bulk” and resemblance to “a milk fattened shoat lolling in a mud puddle.” Time had him enter the courtroom, “greasy and grinning,” mopping sweat from his “fat head.” In the New York Times, he had “thick lips” and “fat powerful fingers covered with dark hair,” his face was “thick featured,” and he had a “roll of flesh at the back of his neck.” Throughout the trial, McCormick did all he could to turn public opinion against Capone by painting him as a man who delighted in making a mockery of the law. His reporters had Capone “grinning at the crowds and tirelessly posing for photographs,” thus giving the impression that the trial was all fun and games and “the gangster is enjoying himself immensely.”
Every physical description of Al Capone echoed that of Eleanor Medill Patterson, the newspaperwoman and cousin of Colonel McCormick who had interviewed him at Palm Island the previous January. What she wrote became the standard portrait echoed by reporters and feature writers everywhere. Patterson wanted readers to see him as the movies portrayed the stereotypical gangster, a grossly corpulent and ill-mannered Italian thug; she called him “one of those prodigious Italians, thick-chested…the muscles of his arms stretched the sleeves of his light brown suit, so that it seemed to be cut too small for him.”
The press campaign worked on many levels to turn the hitherto-adoring public against Capone. On the weekend before his trial began, even the Northwestern University student newspaper joined the attack when Capone was roundly booed at the Northwestern-Nebraska football game. “You are not wanted,” the editors wrote. “You are not getting away with anything and you are only impressing a moronic few who don’t matter anyway.”
Meyer Berger, whose reportage in the New York Times fluctuated from being perceptive and semi-positive to being downright nasty and negative, was one of the few who tried to be objective in the face of such relentless ridicule. When the silk underwear was the topic of courtroom titters, Berger wrote that he interpreted Al’s “passion for colored silk underwear” as a humanizing quality in a man who was indeed a ruthless murderer but who was also “smiling, good-natured, [and] trying to find a place for himself and his wife in a fashionable Florida community.” And yet he could not help adding one of those easy stereotypical analogies that reporters use when they can’t decide which side of the f
ence to jump down on: that Capone also seemed like “a jovial Italian opera singer.”
Critics did not stop with caricaturing Capone’s physical attributes. As usual, his wardrobe was the subject of sartorial scrutiny usually reserved for women. Reporters took such delight in telling readers what he wore when he appeared in court. He wore a different suit every day, but because of his wife’s influence and with one or two exceptions they were far more subdued than his usual flashy colors and shiny materials. This, too, reporters found interesting, describing how he stuck to dark gray, dark blue, or dark brown but always with his trademark cream-colored fedora and usually with a crisp white handkerchief carefully folded into points in his breast pocket. Reporters actually wrote of their disappointment when Al wore an ordinary watch and no other jewelry, especially not his diamond belt buckle or ostentatious pinkie ring. When he wore a suit that appeared to be the dark purple known as aubergine, reporters vied to top each other as they strove to explain the color to midwestern working-class readers. Even his footwear came under scrutiny, especially when he appeared in court “collegiate style,” without garters or spats or any other support for his socks.
Although most of the newspaper headlines gloated about the downfall of Public Enemy No. 1, some also had the good sense to criticize or condemn the way the world’s most famous gangland leader had been herded into prison on charges that, although real, were also sensationalized. In what was described as a rogue court hell-bent on getting a conviction, no matter for what, and alluding to the many criminal and illegal acts for which he was never charged, Washington’s Evening Star summed up what so many were thinking: the downfall of Alphonse Capone was long overdue, but the charge of income tax evasion was little more than “a technical means to the end of getting him in jail.” When all was said and done, and the mountains of ink stopped flowing, the Evening Star said it best: “There will remain the sense that the law has failed.”
The law failed again in a different way when the Chicago division of the American Bar Association retried Al Capone in 1990 and a panel of fourteen independent and objective jurors listened to all the evidence and found him not guilty. This time, the defense lawyers held fast to the two major contentions: that the government failed to document proof of his income and that, because of ineffective counsel, he was given conflicting information about whether or not he had to file. They mentioned that the government had singled him out unfairly to make an example of him, but they did not dwell upon it; it was enough to plant the idea in the minds of the jurors. As for the prosecution’s case, there were clear reasons to question the truthfulness of their witnesses, for it was clear they had been coerced into testifying and then coached about what to say. Judge Marshall, who presided over the retrial, said, “Back then nobody cared whether anybody’s testimony was coerced; that’s the way the police did it.” The defense lawyer Mulroy concurred with Judge Marshall that the 1990 retrial verdict was the one that should have been rendered originally. Mulroy thought that if the case came before a modern-day federal judge, it might never have been scheduled for trial, simply because “even with the Mattingly letter, the government never could establish an unequivocal starting point for a net worth prosecution.” If a trial did go forward today, “common sense would take over.” Schoenberg, who described his conversation with the retrial participants, concluded much as they did: “Capone was guilty, however technically insufficient the government’s case.”
As for the convicted felon Al Capone, he said, “I guess it’s all over,” as he was taken from the courtroom directly to the Cook County Jail on October 24, 1931. More photographers were waiting for him at the courthouse exit, and when they asked him how he felt about the sentence, he said it was no one’s fault but his own: “Publicity—that’s what got me.”
Chapter 21
“I’M IN JAIL; AREN’T THEY SATISFIED?”
The indignities did not end once Judge Wilkerson denied bail and Al Capone was hustled off to the Cook County Jail. More reporters were waiting for him there, and the police did nothing to stop photographers from entering the building and crowding around the highly visible holding pen where he was detained while awaiting permanent cell assignment. Reporters jostled to get closest to the bars, hoping for a photograph showing him behind them. He tried to move as far to the rear as possible so that his picture could not be taken unless cameras were pushed through the bars, but that meant he had to cower in the darkest corner among the unwashed and smelly, into whose midst he had been unceremoniously dumped. He begged the relentless photographers to think of his family and not shoot humiliating photographs of him behind bars, but there was so much glee in seeing the king of crime among all the riffraff that of course no one paid attention.
Trying to avoid photographers marked the start of his new attitude toward the press—to avoid it—and yet the same old hubris was still there, particularly after he was moved into the large and private Cell D-5. If the Cook County Jail could be said to have a VIP section, the D block was it, where big-time criminals with clout and connections were housed next to the relatively quiet hospital wing. Once again, the press pounced because Capone was up to his usual behavior, which made for good copy.
Ahern and Fink were busy filing an appeal to overturn his conviction, but they were only partially successful. They won when Capone was granted a stay, which meant that he would be kept in Chicago until all their appeals were exhausted; they lost when Judge Wilkerson refused their request for bail, which meant that Capone would have to remain in jail while pending appeal. The judge’s animosity was on blatant display when he also refused the lawyers’ request that time served in the county jail should count toward the one-year misdemeanor sentence; Wilkerson’s decision meant that Capone’s eleven-year sentence would not start until he was in a federal prison, and who knew how long it would be until then? His lawyers were pushing for the appeals process to be fast-tracked, but realistically everyone knew it could take as long as one to two years. Capone thought it best to settle down and make himself comfortable for the duration, and the D block was as comfortable as it got.
Mae was not permitted to furnish Al’s cell with the comforts she provided when he was in Eastern Pen, but she did what she could. His mood improved when Phil D’Andrea was confined in the next cell and he had the companionship of a trusted personal assistant with whom to establish schedules for the daily visits of Outfit members. D’Andrea took care of all Al’s needs. He arranged for deliveries of Teresa’s home cooking, and to ensure that the boss was not bored, he supplemented it with meals brought in from some of Al’s favorite restaurants. In short, the daily business of running the Outfit from the Cook County Jail was much the same as when they ran it from the Lexington Hotel. Al appeared unchastened by the courtroom defeat as life went on as usual.
The newspapers soon got wind of the goings-on and lost no time in telling the world. Stories proliferated about the big black sedans that were parked on twenty-four-hour guard duty outside the prison, the errand boys who came and went with telegrams and packages, and the secretaries who arrived to take dictation so that Al Capone could reply to the many letters that came each day from well-wishers. Visitors abounded, mostly his henchmen, and they were allowed in anytime he summoned them, day or night.
The warden, David Moneypenny, was not as enthralled by Capone as was the one in Philadelphia. Stung by newspaper accounts that led the government to make a formal investigation, he invited officials and reporters to come see the convict in his cell and decide for themselves if he was getting special treatment. Moneypenny defended the decision to put him in D block by saying that Capone needed to be near the hospital because he was recuperating, although he never specified from what. When the reporters arrived, Capone made no effort to charm them enough to enlist their sympathy. In keeping with his new attitude toward the press that ranged somewhere between indifference and disdain, he waved dismissively and said, “I’m in jail; aren’t they satisfied?” In the vernacular of the times
, he could not see anything “swell” about being there.
But despite his circumstances, he was still wielding his extraordinary power. Although the warden was vindicated in the official investigation, there was little he could do otherwise to curtail the steady string of visitors. When he tried to stop them by setting up a system where they had to apply for special passes that were only good during restricted hours, Capone persuaded some of the politicians on the Outfit payroll to issue special permanent passes. Thus, these so-called ordinary friends continued to come and go as they pleased, and the beat reporters who covered the jail took delight in writing colorful stories about some of the biggest names in gangland.
One such story that has been told persistently was that Johnny Torrio came from New York, bringing Lucky Luciano and Dutch Schultz to the jail so that Al could broker a truce between them. It made for a lively story, but there was scant basis in reality to it. Various gangster memoirs and biographies mention that in either 1931 or 1932 Luciano called a meeting in Chicago of the gang leaders who controlled what eventually became known as families. To date, the only verifiable record of Capone having met with Luciano and other New York mob leaders is the home movie taken of them roughhousing and jousting at the Palm Island pool in 1929. If there had been another meeting in 1931 and in Chicago, no doubt they would have visited Capone, but they would have had to do so in deepest and darkest secrecy, for nothing was written about it at a time when every reporter worth a byline had a jailhouse informer to keep him up to date on Capone’s activities. It is even more unlikely that Luciano and Torrio would have held such a highly visible meeting in Chicago when their stature could have commanded all the other leaders to come quietly to New York.