Scarface and the Untouchable

by Max Allan Collins

  As Capone strode toward the Federal Building, police held back traffic while crowds followed Pied Piper–like, “bankers and brokers, stenographers and office boys,” the Herald and Examiner said. Capone seemed indifferent, never tipping his pearl-gray fedora, though he did wave to cops and plainclothes dicks he recognized, and in the anteroom to the grand jury chambers gave an autograph to a fan, proving to some he could write.

  The press was aware Capone was here to be asked about “certain racketeering, alky cooking, bootlegging and killing in and about Chicago Heights,” due to the work of Jamie, Ness, and other Prohibition agents.

  “It’s a bum rap,” Capone told reporters. “I don’t know anything about Chicago Heights and if I did, I forgot it, see?”

  Arriving at 9:30 A.M., taking lunch at noon, he wasn’t called till two. When the grand jury adjourned at four, with an order for him to return the following Tuesday, Capone rushed to the U.S. attorney’s office to get fee cards entitling him to a nickel a mile for the Miami trip and five bucks a day for testifying. His impaired health “seemed entirely mended,” reported the Herald and Examiner. “In fact, he’s a little bit rotund.”

  “I ought to go into vaudeville,” Capone said. “Look at the crowd I get.”

  But he didn’t like it up in Chicago, where he seemed to be regarded as a freak.

  “Down in Florida they leave me alone,” he said. “I go swimming when I want to. I go to the races when I want to. I do whatever I want to.”

  In Florida, Bureau of Investigation agents were seeking to prove just that, gathering sworn statements from witnesses about the supposedly sick-in-bed Capone’s presence at the Hialeah Race Track. On the case just two days, Hoover’s agents reported “beyond a doubt” Dr. Phillips’s affidavit “was wholly and materially false.”

  The day before Capone was scheduled to return to the grand jury, Johnson asked Willebrandt to rush him the results of the Bureau’s investigation.

  “It may become difficult to hold [Capone] here longer on the subpoena,” Johnson wrote, “and if there is a possible basis for filing an information for contempt, I would like to have the information on hand.”

  The feds arranged to postpone Capone’s testimony for another day, sparking whispers around the Federal Building: “something was up.” Unnamed “friends” of Capone told the Tribune they feared the grand jurors might try to probe Capone’s possible income tax liability—from the question of his palatial Palm Island home to his possible take from Cicero dog tracks to his involvement in the cleaning and dyeing business. These obvious lines of income, the Tribune reported, “might be defined as Al’s current weakness.”

  On March 27, Capone emerged with a smile from the grand jury room after another hour of testimony, perhaps relieved he’d dodged the income tax issue. But his good spirits disappeared when someone stepped forward to read him a warrant for contempt of court, technically placing him under arrest.

  Johnson had sworn out the warrant personally, accusing Capone of “willfully, corruptly, knowingly, falsely and contemptuously” giving an affidavit that was “untrue and false.”

  “This is a disgrace!” Capone barked, before regaining his composure. Someone took him to the office of the chief clerk to post a $5,000 bond.

  “That’s easy,” Capone said with a laugh.

  After handing over his bond, Capone flashed the press another smile and said, “See you later, boys,” before a retinue of lawmen escorted him out.

  The press treated the contempt charge as a major victory for law and order. Much credit went to Willebrandt, the Washington Post saying “a feminine hand of the law” had caught Capone in its grasp.

  Only Johnson acknowledged the work done by Hoover’s Bureau of Investigation. “Permit me to say,” Johnson wrote to Hoover, “that I appreciate very highly your cooperation in this matter and the prompt and efficient manner in which it was handled.”

  Hoover replied, “It has been a pleasure to be of service in this matter as in all other cases which are referred to the Bureau for investigation.” Then he sat back to let Johnson do the work.

  As a victory, the contempt charge left much to be desired. At most, Capone would face a prison term of one year and a thousand-dollar fine. But even so, the feds had drawn first blood—among them young Eliot Ness, a major player in the Chicago Heights investigation. And more was soon to come, as Capone picked up a powerful new enemy living in a palatial house six hundred miles away.

  A White House.

  Calvin Goddard inspecting revolver barrel.

  (Smithsonian Institution Archives. Image #SIA2007-0458.)

  Leonarde Keeler and his lie detector.

  (Authors’ Collection.)

  Twelve

  February–October 1929

  Across the turquoise waters of Biscayne Bay, barely a mile from Al Capone’s Miami villa, sat the beachfront mansion of J. C. Penney. The department store magnate wasn’t home on St. Valentine’s Day in 1929—he’d lent the place to a distinguished guest whose very presence might raise its value. The esteemed visitor divided his days between meetings and fishing trips, riding off on a houseboat far down into the Keys, where no one—not the press, not even his bodyguards—could find Herbert Hoover, on this last, brief idyll before moving into the White House.

  Hoover was no one’s idea of a master politician. Stiff in public, frigid in private, he had the “sour, puckered face of a bilious baby,” one observer noted. Still, he projected confidence and competence, his cold, impersonal manner fitting the new mechanized age. Automobiles, washing machines, and vacuum cleaners had reshaped American life, speeding it up, streamlining it, making it run more smoothly. The new president pledged to do the same for government.

  “We were in a mood for magic,” a journalist wrote. “We had summoned a great engineer to solve our problems for us; now we sat back comfortably and confidently to watch our problems being solved.”

  Hoover had built his career on working such miracles. A great humanitarian, an able administrator, an efficiency expert, he was also a self-made millionaire, an orphan who’d risen out of poverty. He was among the first American politicians to embrace public relations, promoting himself as a rags-to-riches hero, a “superman” who could fix any problem.

  Privately Hoover worried his campaign had overpromised. At J. C. Penney’s mansion, just before the St. Valentine’s Day Massacre, Hoover remarked, “If some unprecedented calamity should come upon the nation . . . I would be sacrificed to the unreasoning disappointment of a people who expected too much.”

  At the close of the Roaring Twenties, the country’s future seemed bright. Hoover preached the creed of American individualism, believing the United States offered opportunities for anyone.

  “If a man has not made a million dollars by the time he is forty,” Hoover said, “he is not worth much.”

  With the stock market soaring and business booming, few would argue. Such optimism carried Hoover to a landslide victory in 1928. But the president-elect didn’t need to look farther than his own vacation spot to know the good times couldn’t last.

  A speculative mania gripped Miami earlier in the decade, as investors rushed to buy up overpriced land in the vain hope they might sell it for a profit. Their confidence came from little more than wild optimism and self-delusion—and the “inordinate desire,” as one economist put it, “to get rich quickly with a minimum of physical effort.” The bubble inevitably burst, leaving financial ruin and great swaths of undeveloped land in its wake, but somehow the country’s faith in the future remained unshaken.

  Investors kept chasing the same golden dreams in other markets—driven on, this economist wrote, by “the conviction that God intended the American middle class to be rich.” After all, hadn’t they learned from example, the two men Miami made such improbable neighbors: Herbert Hoover and Al Capone?

  Some said Hoover was incensed when the papers printed side-by-side photos of the Penney mansion where he was staying and Capone’s Flori
da place, which the Miami Daily News called Al’s “Summer White House.” Others claimed the president-elect had encountered Capone in a Miami hotel lobby only to lose his admiring crowd to the gangster. The most famous tale, courtesy of a Chicago journalist, was of a night when the boisterous noise of a Capone party carried over the water to the Penney mansion. When Hoover sent a message asking for quiet, Capone wrote back, “Go to hell.” Then and there, Hoover vowed to see the bootlegger in jail.

  No evidence supports any of this. That winter, Hoover saw only a general breakdown of law and order in America—clogged courts, overcrowded prisons, and defendants who could buy and cheat their way out of jail.

  On March 4, in a driving rainstorm, Herbert Clark Hoover took his oath of office before a dripping, shivering crowd of fifty thousand. Then he delivered his inaugural address, the first to be broadcast over the new medium of radio . . . and the first to mention crime.

  “Justice must not fail because the agencies of enforcement are either delinquent or inefficiently organized,” Hoover said. “To consider these evils, to find their remedy, is the most sore necessity of our times.”

  The president proposed forming a commission to look into crime, lawlessness, and the problem of Prohibition—both how to enforce it and how to make people abide by it. Apart from the corrupt and ineffective Prohibition Bureau, law enforcement still remained a mostly local affair, with J. Edgar Hoover’s infant Bureau of Investigation still limited in size and authority. For the first time, a chief executive had taken an interest in policing at every level—federal, state, and local.

  Three years earlier, Charles Dawes, the previous vice president, had called upon Congress to investigate the “shocking conditions” in his hometown of Chicago. Speaking for concerned Cook County businessmen, Dawes declared that local government had given way to a “supergovernment” controlled by organized crime. The city couldn’t count on its police and politicians; it needed federal help.

  But Dawes spoke before a conservative Congress that considered crime a local issue. Senator Hiram Johnson of California called any such federal inquiry “a subversion of the fundamental principle of local self-government.”

  The nation’s newspapers agreed. “The rest of the country,” wrote the Indianapolis News, “will hardly expect the Government to turn out the Army and Navy for Chicago.”

  The new president, however, took a much more activist view. On April 8, Hoover sent a memo to Treasury Secretary Andrew Mellon and Attorney General William D. Mitchell, outlining his ideas for Prohibition enforcement.

  That “large operations in illicit liquor” were widely distributing their product appeared obvious. “It seems obvious also,” Hoover wrote, “that the most important area for enforcement of the 18th Amendment should be directed toward these larger rings and conspiracies.”

  Hoover proposed the creation of a “special corps of attorneys in the Department of Justice . . . who would have as [their] own investigating staff special delegates from the Prohibition Bureau.” These agents would work as small, elite squads, handpicked for their honesty and effectiveness, to build conspiracy cases against large gangs—a blueprint for what would eventually become the Untouchables.

  The special agent force offered many candidates for such teams, but Mellon went a step further. A die-hard opponent of Prohibition, he’d long sought to remove Treasury from any role in its enforcement. Seeing this as an opportunity to dump the whole mess on the attorney general, Mellon suggested “the ultimate transfer of the Bureau of Prohibition to the Department of Justice.”

  But that was a much bigger feat, requiring an act of Congress, and it would have to wait.

  On April 14, the president met with Col. Robert R. McCormick, the eccentric, imperious publisher of the Chicago Tribune. Like Mellon, McCormick was a Republican who despised the dry law, and he used his time with Hoover to enumerate its failures. The Prohibition Bureau was wasting time with petty violators and ignoring the gangsters shooting up the city.

  “They’re not touching Al Capone,” McCormick said.

  “Who is Al Capone?” the president asked.

  February 15, 1929, Cook County’s new coroner, Herman Bundesen, convened an inquest before a “Blue Ribbon” panel of six jurors—local business leaders, a prominent attorney, two masters in chancery, and the dean of the law school at Loyola University. A crime as outrageous as yesterday’s mob massacre, Bundesen believed, deserved investigation by men whose judgment was above reproach—the city’s better element had finally had its fill of gangland rule.

  Over the bullet-riddled bodies of the dead men, Bundesen swore his jurors in, then led them through the gruesome facts, taking them to the garage on North Clark Street, its floors still bloody.

  He staged a reenactment, plainclothes detectives pointing shotguns at other cops lined up against the pockmarked wall. Intently watching, the jurors in their tailored suits might have been a board of directors. Even the sole survivor of the crime—the murdered mechanic’s police dog, Highball—howled on cue. Press photographers captured all this great theater.

  At the inquest, when a police detective spoke of seventy spent slugs and shells taken at the scene, jury foreman Bert Massee asked why those bullets had been preserved. The rifling inside each gun barrel, the detective explained, left unique marks on the bullets passing through, allowing a trained investigator to match bullets to the guns firing them. But, the detective admitted, the Chicago PD had neither the money nor the know-how to do that.

  Massee, vice president of the Colgate-Palmolive-Peet Company, found this unacceptable. He asked around about this new science called ballistics, and learned its leading light was Maj. Calvin Hooker Goddard, a consultant whose hefty fees the city couldn’t afford. Massee and another juror brought him in at their own expense.

  Slight, dour, with pince-nez glasses and a weak chin, Goddard looked more like a priest than a detective. Trained as a physician, a veteran of the Great War, he had long been fascinated by firearms. In 1925, he abandoned his medical career to join the newly minted Bureau of Forensic Ballistics. Its founder, Charles Waite, was a former investigator who’d seen an innocent man convicted on spurious “expert” firearms testimony. This injustice inspired Waite to devote his life to creating a scientific standard for ballistics evidence.

  “By such methods we are supplanting ‘expert opinion’ with facts,” Goddard wrote. “Our goal is that innocent men shall not be sent to their deaths, nor guilty men acquitted, by testimony unsubstantiated by the facts of exact science.”

  The two men based their work on a simple principle—“that no two objects, either of God’s or man’s fabrication,” as Goddard put it, “are ever identical in detail.”

  Even mass-produced gun parts carry their own idiosyncrasies, they realized. As a gunmaker’s tools wear down, unique markings are left on every part they fashion—the bullet sliding down the barrel, the primer struck by the firing pin, and the cartridge thrown back against the breech, all retaining a microscopic imprint.

  “These irregularities leave their marks,” Goddard wrote, “the same ones each time . . . and they constitute, to all intents and purposes, a fingerprint of that particular barrel. It can never be exactly reproduced, any more than can the fingerprint of a human being.” With a newly developed comparison microscope, Goddard could examine two bullets side by side and prove whether or not they had come from the same gun.

  When Goddard arrived in Chicago from New York, the coroner presented him with all seventy spent slugs and shells from the Clark Street garage. Goddard had never seen so much evidence. These rounds had been fired in under a minute, witnesses testified. Although they were of the type designed for .45-caliber Colt pistols, the sheer number of bullets indicated a Thompson.

  Goddard minutely examined each shell and slug, systematically ruling out every other weapon using this kind of ammo. Only the Thompson matched. The killers had used two tommy guns, the expert could tell—one firing twenty rounds (almost certainly
from a single magazine), and another using a fifty-round drum.

  To find the killers, Goddard would have to find their weapons. And because witnesses had seen blue-uniformed men and squad cars at the scene, many still suspected police had committed the crime. So Goddard requested all the Thompsons and several shotguns owned by police departments in and around Chicago.

  Without his own lab in the city, Goddard did most of his test-firing in Massee’s basement, shooting into cotton-filled wastebaskets so he could recover undamaged slugs. And he didn’t limit himself to the types of guns used in the massacre—he tested forty-one weapons seized by police and seventy-four bullets taken from the bodies of people killed in Chicago’s gang war. Taking the bullets back to New York, he compared them with those in evidence.

  On April 13, Goddard presented his findings to the coroner’s jury, stating definitively no Chicago police Thompsons or shotguns had been used in the Clark Street massacre. Goddard hadn’t exonerated the cops, but confirmed the killers’ masquerade. The major also testified he’d solved a handful of other gang killings, tying the bullets taken from three victims to a single firearm owned by one suspect.

  The press hailed Goddard’s work, while Bundesen declared ballistics the greatest crime-fighting discovery since fingerprinting, whose “systematic application” could help “check the slaughter” in Chicago. But Goddard knew more was required.

  “The city needs men who know about handwriting and typewriting,” he said, testifying on April 19, “and who can just about tell the height, weight, age, sex, speed and mental condition from a person’s footprints. You also need a highly trained toxicologist—someone who can analyze stains and determine if they are bloodstains and whether the blood is human or not; who can analyze soil residues; tell from the dust on a man’s shoes whether he was in the part of Cook County he claimed to have been in.”