by Hugh Ambrose
The prosecution next called Richard Fryant, one of the original wiretappers, to the stand. Fryant handled a number of the defense attorney’s questions about the note-taking process well, until he was asked to state when the book of notes, the all-powerful “whispering wires” evidence, was completed. Fryant’s answer—December 1925—brought an audible gasp from the defense team. The transcripts had been completed one and a half years after the conversations had taken place, just prior to the start of the trial.22 The disturbing revelation induced the judge, finally, to grant the defense’s request to have the book introduced as evidence. Upon that small victory, the defense pressed Fryant about his ability to testify without the book, the agent quickly admitting, “There was such a volume of conversation” no one could recall it all, prompting the judge to allow the witness to refresh his recollections by consulting it.
The defense attorney wondered aloud at Fryant’s description of himself sitting alone at the wiretaps and observed that he had not been alone, because Harry Behneman had been seated next to him. Fryant admitted that, well, yes, Behneman had been there but he never had possession of original notes—notes which might conflict with the typed transcript.23 Like the Whitneys, though, Fryant had to admit he did not know what had become of those notes—or Harry Behneman.
Vanderveer’s tactics gave Olmstead an air of confidence bordering on contempt for the proceedings. At one of the court’s recesses, Revelle stopped to light a cigarette before leaving the courtroom. Olmstead, walking with the crowd, spied the light and steered over to him. “No hard feelings; gimme a cigarette?” Revelle shook one out of the pack for him. Outside the courthouse, Olmstead consorted with members of his “gang.” He was a free man in the evenings; his operations continued, though reduced, resources focused on localized rum-running, selling wholesale to local bootleggers. Nights of hard work left many of his gang tired. The accused slept so much during court that one of the bailiffs opined, “They must go to night school, or something,” surely triggering a chuckle from those still plying their trade.24
The success of the defense attorneys in attacking the prosecution’s witnesses had turned the trial on its head, those witnesses unwillingly putting doubts into the minds of jurors unsure of the veracity of the “whispering wires” evidence. As the defense prepared to call its witnesses, looking to punch more holes in the truthfulness and trustworthiness of federal agents, news broke that raised the stakes for Whitney and Revelle. “Federal officials at Washington, DC,” the story went, were “showing keenest interest in the Olmsted liquor conspiracy trial in Seattle.” Citing only “authentic sources,” the Seattle Times stated that if the government’s case proved successful, the use of the “whispering wires” might become commonplace in Prohibition enforcement, though the newspaper’s unnamed source warned that higher courts might take a different view of wiretapping, seeing it as an invasion of privacy. Further proof of the interest of decision-makers in Washington, D.C., was an announcement that Mabel Willebrandt, Tom Revelle’s boss, would appear at the trial.
With Fryant dispatched, Vanderveer prepared to raise his defense, starting with Olmstead, but an unexpected phone call from Harry Behneman changed the course of his preparations. In hiding for the past several weeks, Behneman told the attorney of his role in the wiretapping, but, more importantly, produced twenty-seven pages of notes bearing Fryant’s handwritten corrections and signature.25 To Vanderveer and his defense team, the pages shone like rays of sunshine breaking over them. Behneman’s notes, which had not been incorporated into William Whitney’s “book,” offered the promise not just of destroying Richard Fryant’s version of events, but also of at long last creating a fulcrum upon which the whole 775-page edifice of “whispering wires” could be toppled.
Unaware of Behneman’s reappearance, Revelle and Whitney felt secure in the strength of their case and eager to impress Willebrandt, who arrived in the Pacific Northwest for a working weekend as Fryant finished his testimony. She had come to inspect the federal penitentiary at McNeil Island and would make the trip north to Seattle on Sunday.26 The two men’s mood changed, most assuredly, when the Sunday newspapers carried the story of Behneman’s return to Seattle and his readiness to appear in court.27 On the train north to the Emerald City, Willebrandt may not have seen the Sunday newspapers, but Revelle, a worrier by nature, would have been concerned about her attitude toward this potential setback. A reporter caught the moment of their meeting: Revelle, a good foot taller than Mrs. Willebrandt, stooping slightly in his three-piece suit and bow tie as he gave “his superior officer” a firm handshake and a bouquet of flowers. She had no time for him at that moment, though, as she was hurrying to a breakfast being given in her honor at the University Women’s Club by the local chapter of Phi Delta Delta, a women’s law honor sorority of which she was national president.
As Willebrandt departed for her breakfast, an astute observer would have seen in her itinerary an indication of her priorities. Listing her visits to the penitentiary and the Women’s Club ahead of a conference with Revelle and Whitney was the action of someone who refused to allow the intractable problems of Prohibition enforcement to distract her from other priorities—priorities where she could make a real difference. Creating a prison in which inmates were not just incarcerated but reformed and prepared for reintroduction into society, and encouraging women brave enough to excel in college to ignore the naysayers and negative employment statistics mattered more to Willebrandt.
In the early afternoon, she arrived at the new Washington Hotel to receive most of the local members of federal law enforcement: Thomas Revelle, Roy Lyle, William Whitney, U.S. Marshal Ed Benn, and William Bowling, in charge of the Department of Justice investigators in Seattle. These were serious men, the burden of a huge case on their shoulders, tired from weeks of grueling effort, their jobs on the line. They were undoubtedly eager for some “face time” with the boss, which probably made little impression on her beyond the way their interest in her approval represented her success in a man’s world. The details of the meeting were not recorded, but more than likely, Willebrandt would have wanted to know if the case could be made without the wiretap transcripts, the question of whether they represented a breach of constitutional guarantees of privacy looming over their admissibility.
The reporters caught up with Willebrandt afterward, and asked about her trip. She extemporized at length about turning McNeil Island into a model penitentiary, one that reformed its inmates by putting them to useful work, such as an industrial program for canning fruits and vegetables. She praised the beauty of the Pacific coast as a good politician should, omitting any description of the women’s event. It was fine for her to talk about reforming prisoners, but she knew her message to the young women was too controversial. At last the elephant in the room was addressed, when she was asked about the Olmstead conspiracy trial. Her answer astonished them. “I will not have the opportunity to look in on the Olmstead trial,” she said flatly. “We all hope for the best, and the case is in most competent hands. Mr. Revelle doesn’t need me.”28 Her eastbound train departed at five p.m. Sunday.
A letter to her parents written the day after she left Seattle showed other things on her mind. “I’ve fought at loneliness to the point when I knew I’d rather be married, no question of that, if my marriage could be a private affair in my life the way it is for a man,” she lamented. “Unfortunately the things I most prize are tenderness and intellectual challenges. I don’t expect to find both in anyone so far,” discounting marriage to Fred Horowitz again. In lieu of marriage, even companionship, she had Dorothy and a desire to make sufficient “capital” that she could have financial security without a husband. She saw a life in California, “a home on a hill with mts. and sea from the windows, three children, a fair compensation, and a dignified community standing. That’s all I want. Don’t you think that’s better than political office.”29 A judgeship would give her that, but she would not go “holding
my hand out for political favors.”
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On Monday morning the trial resumed, the defense calling several witnesses to rebut specific allegations made by the prosecution before calling Harry Behneman to the stand. After establishing the basics—Did you know Fryant? For how long? Did you help him tap Olmstead’s office phone number?—the defense counsel asked the witness when the tapping had begun. “June 25,” came the reply—nearly two weeks earlier than Whitney and Fryant had testified—establishing a new timeline and unveiling a different narrative for the wiretaps. Olmstead’s defense team would exploit the discrepancy upon cross-examination, citing it as an example of Whitney’s ineptitude, never guessing the real reason was a calculated move by Whitney to ensure that nobody learned that Fryant had not been sworn in as a Prohibition agent until early July 1924 and had been working in an unofficial capacity before then. Behneman said the first time he saw anyone beside Richard Fryant listening to the phone lines was July 14, when Whitney visited for a short time. At this point, offered into evidence were the twenty-seven pages of notes penciled on brown paper and described as the original notes written by Behneman and Fryant in late June and early July 1924. They had traded the paper back and forth between them, the witness contended, as one endeavored to write what he had just heard while the other listened to the next call, sitting in the basement of the Henry Building, worried they would be discovered by a repairman from the telephone company. Leading his witness, the defense counselor asked how the names of the parties on the calls were identified, but the judge supported objections from Revelle, denying Behneman a chance to answer. Vanderveer, demonstrably frustrated, begged the opportunity to show that “names, dates, hours, whole conversations were deliberately filled in: that’s the purpose of this inquiry.” If Fryant retook the stand and admitted his handwriting appeared on these pages, Behneman’s notes would immediately become the “originals.” Any discrepancies between this scant record and Whitney’s tome would undermine the “book’s” validity and prove Fryant guilty of perjury. Vanderveer demanded Fryant’s return. The judge allowed for Fryant’s return to the witness box, but denied any questioning from Vanderveer, allowing only rebuttal testimony to Revelle because Fryant had been his witness. Fryant flatly refuted Behneman’s assertions, leaving jurors to decide for themselves where truth lay.30
Stymied at so many turns, George Vanderveer presented his final motions in summation, moving that all wiretap testimony be struck from the record as a violation of privacy rights granted in the Fourth and Fifth Amendments to the Constitution, and in violation of statutes enacted by the State of Washington. Vanderveer moved, also, that the testimony of Clara Whitney and Fryant be struck, their recollections rooted in the 775-page transcription cherished by William Whitney, “the authenticity of which has now been disproved.” Judge Neterer denied both motions.
After five grueling weeks, the case went to the jury, but not before the judge offered his view. He instructed the jury to regard the “whispering wires” transcripts as one source among many. “If you are convinced and believe the testimony, and believe that the parties talking were members of the conspiracy, if you find one existed, then you will conclude accordingly. The value of these telephonic conversations is based upon the identity of the voice of the person talking and the recollection of what was said, insofar as it is not corroborated by other evidence.” Speaking to the challenges raised by the defense, the judge asserted the objections were an attempt to “influence your decision based upon something other than the evidence. In other words, that you should find for the defendants as a way of saying wiretapping ‘will not be permitted!’” Making it clearer, Neterer declared, this “is no place to punish anybody for wiretapping, if an offense has been committed. There is no law in the United States against it.”31
The doubts raised by Olmstead’s attorneys about the reliability of the tapped conversations could not wash away the other evidence presented against him and his codefendants. Associations between the rumrunner and others clearly involved in the liquor trade could not be denied. The connections between Olmstead and these men hinted at conspiracy, especially after several defendants had admitted to selling liquor. The absence of a clear alternative to the government’s presentation betrayed how completely Whitney had laid bare Olmstead’s business. Explaining away job descriptions, such as those of truck drivers and phone operators and salesmen—jobs so clearly detailed by the prosecution and assigned to specific individuals—proved impossible. The fundamental truth, like acid, dissolved the defense’s assertions into a confused mishmash. After seven hours of deliberation, the jury returned a verdict of guilty.32
The reporters now had their turn, aiming to capture the scene as well as the comments of the significant participants. Attorneys Finch and Vanderveer, exhausted and deflated, announced their intention to file an appeal to the U.S. Circuit Court in San Francisco and, if necessary, to petition the U.S. Supreme Court. In a real scoop, a reporter got Olmstead to offer a surprising opinion. “I am satisfied with the verdict,” Olmstead said. “Twelve good, loyal American citizens did their duty as best they saw it. It was not the way I saw it. But they did their best. That is all.”33
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On March 1, 1926, Pauline Sabin hosted a meeting of the vice chairpersons, all women, from thirty-five of sixty-two New York counties, to garner support for James Wadsworth. The topic of Prohibition took center stage, but Sabin reported the discussion proceeded in a “temperate manner,” something she found pleasantly surprising given the intemperate criticisms typically lobbed at Wads-worth.34 Her loyalty to Wadsworth and the party outweighed what she saw as petty differences over Prohibition and Wadsworth’s past positions on child labor and equal rights. The larger issue, she agreed with Wadsworth, was expansion of the federal government, the resulting monolith subsuming states’ rights and personal liberties. If she’d truly opposed Prohibition above all else, as some critics opined, Sabin would have had little reason to support the Republican Party or Wadsworth; the Democrats were definitely the anti-Prohibition party.
A month later, Sabin called another meeting of women leaders to seek their endorsement of Wadsworth’s campaign. She admitted the senator’s opposition to the Eighteenth and Nineteenth Amendments, “on conscientious grounds,” but since passage of the Nineteenth, she contended, Wadsworth had encouraged full participation of women in the political process. Sabin did not address Prohibition further, but focused instead on his conservative values, the respect of his peers, and his growing reputation around the country, as evidenced by the support of the Speaker of the House of Representatives and President Calvin Coolidge. She believed most women would choose “courage” as the one quality they most admired in men, and while courage could be found in many places, Sabin appreciated the “courage of one’s convictions,” something she saw in Wadsworth but in so few other elected officials. With Sabin’s arguments striking the right note, the women endorsed Wadsworth.35
Sabin recommended to Wadsworth that he refrain from dispensing interviews or materials about his stand on Prohibition, and Wadsworth agreed.36 Sabin had a harder time avoiding questions—publicly, privately, and intellectually—about her own views. The situation came home in May, when the AAPA established a New York Committee on the Referendum including her husband, Charles.37
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In the spring of 1926, almost constant questioning of the desirability and enforceability of the Eighteenth Amendment and the Volstead Act culminated in the presentation before the Senate of eleven distinct resolutions to correct perceived inadequacies. The resolutions included plans to shift enforcement authority to local and state agencies, raise allowable alcohol percentages, tighten regulations on prescription issues, grant greater authority in seizure and control of property, establish a border patrol, allow each state to set its own definition of “intoxicating” liquors, advanc
e a national referendum on the Volstead Act, and flat-out repeal the Eighteenth Amendment. With more than 150 witnesses, representing every side and angle related to the proposed resolutions, the hearings turned, largely, into a debate on two related questions: could the Volstead Act be enforced to satisfy the mandate of the Eighteenth Amendment, and, if so, what would it take to make that happen? Fiorello La Guardia, a representative from New York, a state generally regarded as one of the most lax in terms of enforcement, put it bluntly: “It is impossible to tell whether Prohibition is a good thing or a bad thing. It has never been enforced in this country.”38
Senators, the public, and newspaper reporters anxiously awaited Willebrandt’s appearance before the subcommittee holding the hearings, regarding her as one of the de facto experts on Prohibition enforcement efforts. She began simply by presenting statistics as proof of improving efforts—twenty-two thousand convictions and 4 million dollars in fines in 1922 increasing to thirty-eight thousand convictions and 7.6 million dollars in fines in 1925—but the senators were more interested in what remained to be done.39 Without hesitation, Willebrandt stated her belief that Prohibition was enforceable, and offered recommendations to make the task easier for the Department of Justice. She considered the inability to assess penalties “commensurate” with the crime as the greatest deficiency in the Volstead Act, and she recommended modification of the Volstead Act to provide for prosecution of local and state officials failing to perform their duties, by either outright bribery, conspiracy, or turning a blind eye.
Willebrandt made clear that investigations and arrests occurred outside her department and oversight, but subcommittee members wanted her perspective on activities of the Prohibition Unit as it applied to the work of her office. As in past testimony, Willebrandt highlighted the convoluted separation of enforcement powers when asked about the number of search warrants issued. She could not answer, Willebrandt explained, because her department did not approve or issue warrants in Prohibition cases and her office had no control over the U.S. Commissioners of the Courts who issued them. While all federal courts fell under the banner of the Justice Department, commissioners reviewed evidence and made decisions on warrants independently, without supervision or guidance from above. In some locations, commissioners had little legal training, having obtained their positions as political favors, and granted warrants without adequate evidence. Coupled with insufficient training in evidentiary procedures for Prohibition agents, warrants with few verifiable facts did not hold up in court even after searches found evidence of violations. The greatest success rates of conviction came in districts where Prohibition agents cooperated with and received guidance from U.S. Attorneys. When asked if she could obtain better results if the Department of Justice had control of Prohibition agents, Willebrandt demurred, saying that was not a given. When pushed, she responded, “You are asking me to admit I am a bigger man than anybody else,” prompting laughter from the committee. Later, she conceded that with more agents, attorneys, and time, the law could be enforced, regardless of which department performed the work.