Scarface and the Untouchable

by Max Allan Collins

  “There can be no man in our country,” Hoover told those assembled, “who, either by his position or his influence, stands above the law.”

  In the crowd was Samuel Insull, chief financier of the Secret Six, his utilities empire not yet fallen.

  Afterward, the president went over to his old friend Frank Wilson and congratulated him on “a fine job up in Chicago.” For Wilson, this made the past year’s work worthwhile. At the governor’s mansion, Hoover gave George Johnson a few private moments.

  “The president was very kind in what he said to me,” Johnson told reporters, refusing to elaborate.

  Almost as soon as Capone left the courtroom, word of the plea deal began to creep out.

  “The most frequently heard report around the Federal building,” wrote an AP correspondent, “was that [Capone] would be sentenced to two and a half years on each charge, the sentences to run concurrently, but Federal authorities refused to discuss the reports.”

  Other officials flatly denied Capone made any kind of bargain, claiming “the czar of rumdom had thrown himself wholly on the mercy of the court.”

  But within hours of the guilty plea, the Evening American printed the agreed-upon sentence as fact, as if all Judge Wilkerson had to do was rubber-stamp it. Capone might come up for parole in eight months, or get out in under two years with time off for good behavior. And it was all “the result of a compromise with the government.” This came from the defendant himself, bragging to reporters about the “easy out” he’d finagled from the feds.

  So accustomed had the city grown to gangsters buying their way out of prison, seeing one bargain his way in—however briefly—seemed an improvement. Yet Frank Loesch sensed “a very distinct undertone of dissatisfaction” among his fellow Chicagoans, who only reluctantly granted getting Capone in court was better than having him gunned down by fellow gangsters.

  “I hope that someday,” Loesch wrote the president, “you will allow me to tell the public how much you had to do with it and how much of the impetus was personally given by you.”

  “Some time when the gentleman you mention is safely tucked away, and engaged in very hard labor,” Hoover responded in good humor, “you can tell all about it.”

  Hoover’s attorney general felt less optimistic.

  “It was, no doubt, a tactical mistake to receive the plea of guilty and then allow two or three weeks to elapse before sentence is imposed,” William Mitchell wrote Johnson on June 25. The public was liable to develop “very exaggerated ideas” of how severe the sentence should be.

  Having agreed “with some misgivings” to the two-and-a-half-year sentence, Mitchell was livid Johnson had offered further concessions behind his back. The attorney general was convinced if Capone didn’t serve his full two and one-half years, “the reaction would be such that we would have been better off never to have commenced the effort to bring him to justice.”

  In late June, Judge Wilkerson delayed the sentencing hearing until the end of July, with Capone set to go to jail then. Johnson went on a brief vacation only to return to find that the judge expected the prosecutor and his team to present all their evidence.

  But Capone had already admitted his guilt, eliminating the need for a trial. A confused Johnson met with Wilkerson to see what, exactly, the judge had in mind.

  Wilkerson singled out the Prohibition indictment, saying he had just come to realize how tenuous the evidence was. The prosecutor found this surprising, since details of the case had been widely reported. That was precisely the problem—the judge showed Johnson letters and newspaper editorials, negative reactions to the plea bargain, demanding Capone receive a stiffer sentence.

  By playing up the strength of their case against him, the government had overpromised. They couldn’t accuse Capone of five thousand crimes, then send him away for two and a half years and expect the American people to applaud.

  Wilkerson flatly accused the prosecutor of recommending too short a sentence. Johnson said he couldn’t go back on his promise to Capone’s attorneys—his sense of honor demanded he follow through. Anyway, the Treasury and Justice Departments had approved the deal. If Wilkerson wouldn’t abide by it, Capone would have every right to change his plea to not guilty.

  And that was the last thing Johnson wanted, because he knew they stood such a slim chance in court. The judge, seeming to soften, asked Johnson to get written approval of the bargain from both Treasury and Justice. If Wilkerson had such statements in hand before passing sentence, any backlash might be mitigated.

  Johnson did so, but Wilkerson remained unsatisfied, calling the prosecutor a week before the hearing and demanding Capone plead guilty without condition.

  Otherwise, Wilkerson would bring the tax case to trial, which he felt stood a better chance of success than the Prohibition charges. He leaned on judicial precedent, but also brought up public demands for a harsh sentence. Federal judges were supposed to be immune from outside pressure—they didn’t need votes to stay in office—but Wilkerson took the political realities very seriously.

  “A judge,” he told Johnson, “would be a damned fool not to pay attention to that!”

  This left Johnson, already celebrated as the man who got Capone, in a perilous position. His strategy of jailing gangsters on tax charges had become the model for fighting crime in other cities—having the deal exposed publicly, and then losing his battle in court, would destroy him.

  Caught between a stubborn judge and his promises to the defense, Johnson could only double down on the plea bargain. He prepared a lengthy statement for the sentencing hearing, reminding Wilkerson of the hazards in each case and urging him to accept the two-and-a-half-year sentence.

  But if he thought he could reason with this judge, Johnson was mistaken. By leaking the story, the arrogant Capone had sealed his own fate—and the prosecutor’s, too.

  Judge Wilkerson was not about to let a gangster tell him what to do.

  Judge Wilkerson’s courtroom in 1931.

  (Cleveland Public Library Photograph Collection.)

  Editorial cartoon satirizing the federal government’s inability to convict Capone, 1931.

  (Library of Congress.)

  Twenty-Five

  Summer 1931

  On the morning of July 30, 1931, Eliot Ness arrived in Judge Wilkerson’s court before 10:00 A.M., moving through the latest mob of onlookers, his government credentials getting him past the guards.

  Ness had come prepared to recite the evidence he and his Untouchables had gathered against Capone, as had Frank Wilson and A. P. Madden of the Intelligence Unit.

  “I seethed inwardly,” Ness recalled, “at what could easily become a shallow victory for the law and could put Capone back in circulation very soon.”

  Capone breezed in before ten, in a summery green-and-white ensemble with a straw boater. He’d spent the previous day at the Lexington Hotel, meeting with associates and getting his affairs in order, assuming he’d be off to jail as early as this evening but not dismayed in the least.

  “A rumor being circulated among lawyers representing Capone hoodlums in the federal courts,” said the Tribune, “is that the gang leader is confident he will have to serve only eleven months.”

  Taking his chair at the front of the crowded courtroom, Capone bantered with reporters, grinning as he chewed gum.

  “No, boys,” he said, “none of my family will be here. I am feeling fine, but I have nothing to say. Now let me alone for a few minutes, boys.”

  Almost immediately, Wilkerson went off script with a statement confirming prosecutor Johnson’s worst fears.

  “The United States Attorney,” said the judge, “has stated that he wishes to offer suggestions with reference to the judgments to be entered in these cases. Pleas of guilty, I am advised, were entered upon his undertaking to make such recommendations.”

  The Court would receive these suggestions, Wilkerson said, giving them proper weight.

  But, the judge went on, “in consenting
to receive these suggestions, the Court does not bind itself to adopt them, or to enter judgments in conformity therewith. There can be no exception to this rule. The parties to a Criminal case may not stipulate as to the judgment to be entered. That duty rests on the Court, and no one may relieve the Court of that responsibility.”

  Capone’s cool confidence evaporated. “The smiling underworld boss suddenly lost his affable mood and became obviously worried,” wrote the Herald and Examiner.

  The crowd leaned forward.

  The judge was saying, “It is the duty of the Court to hear all of the facts, consider the suggestions of the parties, and then pronounce its judgment in accordance with the record as it is made, when the case is submitted for decision.”

  Then Wilkerson dropped a second bombshell—he insisted Capone take the stand in his own defense.

  “If the defendant asks leniency of the Court,” Wilkerson said, “he should be ready to answer all proper questions put by the Court, touching the matter which he has confessed by his plea.”

  Capone’s right against self-incrimination had disappeared when he pleaded guilty. He must answer questions under oath about his business, without any guarantees of a reduced sentence. With that, Wilkerson continued the case until the afternoon.

  A different Capone returned to the courtroom at three o’clock.

  “The collar that had been white and fresh in the morning was wilted,” wrote the Tribune, “and his greasy hair was disarranged by the nervous mopping of his brow during the colloquy at the bar.”

  Capone stood tapping the trial table, waiting for the session to begin. Asked if he’d switched to a not-guilty plea, Capone ignored the question.

  Under the law, a defendant could rescind a guilty plea “only when it appears that the pleas of guilty were entered through ignorance or inadvertence,” wrote the Tribune, “or through the holding out of some false hope or inducement.” Without permission to change his plea, Capone could face thirty-four years in prison and $90,000 in fines.

  Michael Ahern, Capone’s attorney, had little choice but to argue George Johnson had falsely induced his client to plead guilty. Once Wilkerson resumed the bench, Ahern described his negotiations with the prosecutor, explaining the deal had been approved at the highest levels of government.

  “We felt,” Ahern said, “particularly after [Johnson] had obtained the approval of the Secretary of the Treasury, that his recommendation would be approved of by the Court.” Otherwise, without this inducement, the defendant would never have pleaded guilty.

  “You have not any doubt,” the judge asked, “that I stated the law correctly this morning, have you, as to the duty of the Court in the imposition of the sentence, on a plea of guilty?”

  “I—”

  “Of course,” the judge went on, “the Court is obliged to keep the record open until all the facts are disclosed to the Court.”

  “Well,” Ahern said, “I draw—”

  “And the Court can act only on the record after it has been presented.”

  “I draw a distinction, if it please the Court, between the act of a court in imposing penalties, and the act of a court in prejudging a case. . . . If the Court would follow the recommendation of the District Attorney as made, and if we could have the assurance of the Court—”

  “Suppose the Court does not agree with that?”

  The hearing was a disaster for both prosecution and defense, Ahern branding the prosecutor a liar and embarrassing both the Justice and Treasury Departments. The close quarters of the crowded court forced both sides together, heightening the tension.

  To the Tribune, Johnson appeared “manifestly distressed . . . crushed against the bar with Capone and the other counsel in the only vacant space—six feet square—in the courtroom.”

  After lecturing Ahern on a judge’s prerogative in sentencing, Wilkerson asked Johnson if he would accept Capone’s motion for a change of plea.

  It would be unfair, the prosecutor said, to have the government present its evidence before Capone switched his plea, thereby giving the defense a preview of their whole case.

  “For that reason,” Johnson went on, “we feel that the motion should be disposed of now . . . [and] to make a statement here of the facts that led up to the United States Attorney saying that he would make a recommendation in this case.”

  Johnson then described the negotiations in detail, with an eye toward protecting himself from blame. Capone’s attorneys had come to him—he hadn’t sought to make a deal. Elmer Irey had participated in the negotiations, with the Justice Department’s full awareness.

  At the judge’s request, Johnson shared Attorney General Mitchell’s confidential letter approving the plea deal.

  Johnson explained “that it seemed very desirable on the part of the officers of the Government who are charged with this responsibility, if we could avoid the hazards of a trial, so that this defendant might at an early date be imprisoned in the penitentiary.”

  The prosecutor, his hands shaking, appeared as distressed as the defendant, perhaps more so.

  Ahern pushed to have the Court grant his motion for a change of plea, but Wilkerson stubbornly refused. Nothing the prosecutor had done, he argued, constituted a false inducement under the law.

  Johnson “is doing everything he told you he would do,” Wilkerson said. “He has dealt with you openly and above board.”

  Capone was at the Court’s mercy. The judge seized the moment to attack the true source of his frustration—“contemptuous” publications bringing into disrepute the administration of justice in the courts. Such publications had “undertaken to announce definitely, in advance, what the action of this Court would be.”

  Leaning forward, eyes blazing, Wilkerson said, “I do not know what weight this defendant attached to them, but it was high time that somebody bring to his attention, and bring to his attention forcibly, the fact that it is utterly impossible to bargain with the Federal Court with respect to the judgment to be entered in a criminal case.”

  Ahern said he agreed with the Court: “I think that many of the publications have been contemptuous.”

  “And they may have to be dealt with hereafter,” said the judge.

  But nothing Ahern said changed Wilkerson’s mind—the guilty plea stood. The attorney only dug his client in deeper by suggesting the judge was “upset” over the case.

  “Oh,” Wilkerson shot back, “I am not upset about it.”

  “Well, over these publications, I mean.”

  “No, no, they do not disturb me,” Wilkerson said, despite his earlier outburst. “Now, do not make any mistake about that.”

  Wilkerson asked Johnson if he would consent to the change of pleas. The ever-cautious prosecutor replied he would not object to it, then shifted responsibility for approving the motion onto his boss, the attorney general.

  “Very well,” Wilkerson said. “I will take this motion under advisement, and dispose of it tomorrow afternoon at two o’clock.”

  Capone turned to leave, but Wilkerson’s next words froze him.

  “In the meantime,” said the judge, “the defendant is remanded to the custody of the marshal.”

  Capone glared at his lawyers as several deputy marshals blocked his path. Ahern asked that his client be allowed to go free—after all, Capone was out on bond.

  “I thought I was doing something for the protection of the defendant here,” the judge said. “He is being brought down to the building here every day under guard and I thought if that was true, he had better be here.”

  “He has a wife and child, and mother,” Ahern said. “If somebody chooses to attach guards around him, may it please the Court, that is their business. I don’t believe that the defendant is requesting those guards. He feels—”

  “I will withdraw the order,” Wilkerson cut in, “until tomorrow afternoon at two o’clock.”

  At that, wrote the Herald and Examiner, “Capone picked up his hat and walked hastily toward the door, forcing hi
s way through the crowd as he went.”

  The judge had one more surprise in store for the defense. The next morning, Wilkerson summoned George Johnson and Capone’s legal team to his courtroom at ten, where he agreed to let the defendant plead not guilty on the tax charges. But he put the Prohibition case on hold, suggesting Johnson had missed an opportunity to charge the gangster with more serious offenses. Several violations listed in the indictment, the judge noted, fell within the three-year statute of limitations for liquor crimes and carried “a much heavier penalty” than mere conspiracy.

  Wilkerson sent the indictment back to the grand jury to consider charging Capone with direct violations, if the evidence warranted. Meanwhile, the Court would proceed with the tax case, which could go to trial as early as September.

  Wilkerson’s comments on the Prohibition charges made no legal sense. The indictment included only one charge against Capone within the statute of limitations: his meeting with Joe Fusco, Bert Delaney, and other top bootleggers in 1930. That, in and of itself, was a crime only when connected with violations committed by his partners, as proof of an ongoing conspiracy. Stripping that context away destroyed the entire case.

  And that was precisely what Wilkerson wanted. He resented being given a trio of half-finished, shoddy indictments on the assumption he’d accept the government’s bad deal. His ruling all but accused the prosecutor of cooking up the Prohibition case “merely for the purpose of creating the impression that this defendant had been a flagrant law breaker over a long period of time.”

  Wilkerson, facing a public clamor to give Capone a stiff sentence, knew the longest term he could impose on the Prohibition case was two years, six months shorter than the plea deal. The tax charges, however, carried a potential penalty of up to thirty-two years, a much more appropriate sentence for such a notorious gangster.

  Wilkerson’s intentions were clear to Capone’s lawyers. “I would just as soon try a case before you as anybody,” Ahern told the judge obsequiously. “I think your rulings are fair. But I know the attitude of the defendant and I think he thinks you are prejudiced.”