Scarface and the Untouchable

by Max Allan Collins

  Dragged before a court-martial where his smooth-talking lawyer can’t save him, Diamond is convicted without benefit of a jury and executed by firing squad within sight of the Statue of Liberty. The film presents his demise not as a perversion of due process and rule of law, but as long-overdue justice. Like many Americans, Hearst saw gangsters as enemies of the state, an invading army to be subdued.

  Hollywood, as it so often had, provided America with a more satisfying ending than the justice system was giving Al Capone.

  Ness (far left) escorting Capone through Dearborn Station, in the only known photograph of both men together, May 3, 1932.

  (Cleveland Public Library)

  Twenty-Nine

  February–May 1932

  By early 1932, Eliot Ness had begun to show the strain of the Capone case.

  The job had become his obsession, consuming much of his time and energy. Always on the hunt for another brewery or still, he grew distant from his wife and family, and he expected the same dedication from his men. Albert H. Wolff, a young investigator who joined the Chicago Prohibition office that January, observed in Ness a man under immense pressure.

  “The niceties of the law no longer meant all that much to him,” Wolff recalled. “He bent a few rules and even broke a few. . . . I will say this, though: any time Ness ignored the formalities or bent the rules, he had a darned good reason to do it.”

  Ness’s disillusionment likely reflected his growing suspicion a touchable agent was on his squad. The team kept raiding empty spaces only recently vacated. Wolff felt sure someone was tipping off the mob.

  “I don’t say any of the Untouchables sold out,” Wolff reflected. “But the leaks happened.” The agent passed his hunch on to Ness, who placed several agents under surveillance.

  Confirmation seemed to come in early February. While monitoring Capone gang wiretaps, Ness and another agent overheard a series of highly suggestive conversations.

  The first involved “Hymie,” a bootlegger who dispatched “Barney” to pick up something valuable, probably money, at a set location at noon. Three days later, two bootleggers discussed paying off a “long-time” Prohibition agent in the Chicago office, who “had helped them before.”

  Then, on February 15, the agents heard “Hymie” tell another bootlegger that “Barney”—described as “the guy who used to be downstairs and is upstairs now”—had accepted a $100 bribe.

  Everything seemed to point to one man: Untouchable Bernard Cloonan. “Barney,” as friends and family called him, had been a Prohibition agent for five years, enough to qualify as “long-time.” After his promotion to special agent in January 1931, Cloonan had switched offices, moving from the fourth floor of the Transportation Building to the twelfth—from downstairs to upstairs.

  Hardly absolute proof—the bootleggers never identified “Barney” Cloonan as the corrupt agent—but enough to warrant investigation. Yet no record of any such inquiry exists. Instead, Cloonan stayed in Chicago another eight months, then transferred to Colorado in October.

  Ness remained silent about the affair, leaving no hints he ever suspected Cloonan, or any other Untouchable, of corruption. But years later, Paul Robsky insisted at least one squad member had indeed taken bribes for a brief period before being found out. Robsky claimed the touchable Untouchable confessed, and William Froelich quietly let him go without pressing charges.

  The team’s credibility depended on its spotless reputation—Froelich felt any hint of crookedness would ruin their image. Better to cover the whole thing up, he believed, than destroy the myth of the Untouchables.

  Almost certainly, Ness would have agreed. He had an innate sensitivity to criticism, preferring to hide his missteps rather than open himself up to attack. As the man charged with handpicking a supposedly incorruptible squad, he could never admit letting a grafter onto the team. The Untouchable image had become his own—he would spend the rest of his law enforcement career trying to live up to it.

  After the Prohibition Bureau disbanded in 1933, Cloonan found himself without a job and returned to Chicago. The following year, he signed on with the Bureau’s successor agency, the Alcoholic Beverage Unit. But when his superiors ran a background check on him, the damning wiretap transcripts resurfaced. This time the Justice Department launched a full investigation, diving deep into Cloonan’s record and placing a tap on his home phone.

  An unsubstantiated rumor—the kind dogging even the best Prohibition agents—accused Cloonan of shaking down speakeasy owners in the early 1930s. But no evidence of corruption turned up, and the agent was nearly broke. Had the elusive “Barney” been scared straight by the threat of exposure? Or had these supposed payoffs been a onetime thing, a lifeline to get his family through the darkest days of the Depression?

  The investigator on the case felt certain Cloonan took bribes back in 1932 but couldn’t prove it. “It seems that the proper time to have brought the matter to a conclusion,” he wrote, “was immediately after the offenses were alleged to have been committed.”

  Rather than prying any further, the investigator recommended Cloonan be kept on the force but watched very closely. No further hints of graft surfaced.

  Cloonan went on to serve with distinction for twenty-some years, retiring in 1960 with the agency’s gratitude. At that time, he was one of the last known living Untouchables. Robert Stack, famous for playing Cloonan’s old boss on TV, called to congratulate him on his retirement.

  On February 27, an assistant warden entered the convalescent ward of Cook County Jail and found Al Capone on his cot, playing cards with other inmates. He took the gangster aside to say the Circuit Court of Appeals had just unanimously upheld Al’s conviction.

  With a silent shrug, Capone returned to playing cards. His lawyers would take the case all the way to the Supreme Court; for now, he wasn’t going anywhere.

  In the meantime, Capone kept working the media. He received a visit in late February from famed humorist Will Rogers, who marveled at Capone’s notoriety.

  “What’s the matter with an age when our biggest gangster is our greatest national interest?” Rogers asked. “Part is the government’s fault for not convicting him on some real crime.”

  With his trademark wit, Rogers scornfully dismissed the tax charges against Capone as “five counts of silk underwear.”

  That didn’t mean the wry political commentator had any sympathy for Capone—far from it—and spending two hours with the man failed to change his mind. Realizing he couldn’t write about Capone “and not make a hero out of him,” Rogers chose not to mention the visit in his regular newspaper column. Few journalists had ever shown such restraint.

  Within days of Rogers’s visit, Capone found an even better shot at redemption. On the evening of March 1, the twenty-month-old son of aviator Charles Augustus Lindbergh was stolen away from the family home in New Jersey.

  Lindbergh’s celebrity rivaled Capone’s—his 1927 solo flight across the Atlantic turned him into an American icon. Now the entire country reeled with shock, and Capone said he felt the family’s pain.

  “It’s the most outrageous thing I ever heard of,” Al raged. “I know how Mrs. Capone and I would feel if our son were kidnapped, and I sympathize with the Lindberghs.”

  Capone had always derided kidnapping as a dirty, nasty racket, perhaps because Mae lived in perpetual fear of someone trying to snatch Sonny. He offered a $10,000 reward for information leading to the Lindbergh baby’s return.

  But this was perhaps not the wisest move for a man whose finances remained under government scrutiny. The Bureau of Internal Revenue quickly promised to slap a lien on the reward money if and when Capone produced it.

  Behind the scenes, Capone worked other leads. Georgette Winkeler, wife of Outfit hitman Gus Winkeler, said Capone ordered his lieutenants “to ‘shoot’ every angle in the underworld to find the baby and to learn who kidnapped him.”

  Even if Capone did sympathize with the Lindberghs, he had self-interest at hear
t. According to Georgette, “Capone believed that if his men could have found the baby, some consideration would have been given him” on shortening his prison sentence. Like Capone’s soup kitchen, the investigation of Little Lindy’s kidnapping was just another racket. Al figured if he did something good for the U.S.A., the U.S.A. would do something good for him.

  Capone soon became convinced he’d found the kidnapper: Robert Carey, alias Bob Conroy, a member of the American Boys hit squad behind the St. Valentine’s Day Massacre. Carey had once partnered in the “snatch racket” with Fred Burke before going to work for the Outfit. He’d recently had a falling out with Capone, after trying to blackmail a crony of Al’s.

  The effort netted Carey some cash but also a stern warning “to get out of Chicago and stay out.” Georgette Winkeler said Carey left town promising to “pull a job that will set the world by the ears.” She later “often wondered if the ‘job’ . . . was the Lindbergh baby kidnapping.”

  Capone apparently thought so.

  But he wouldn’t just give this lead away—he wanted his release to seek the perpetrator personally. While Frankie Rio and other Outfit members went looking for Carey, Capone met repeatedly with the local head of the Secret Service, asking him to serve as a chaperone on the hunt.

  On March 10, Capone granted an interview to a columnist with the Hearst syndicate, insisting he could solve the crime if only the government would let him out of jail.

  “I’m pretty positive a mob did it,” Capone said. “I ought to be able to turn up something in the case. Well, I’m willing. Let’s get going.”

  Capone offered to put up a quarter-of-a-million-dollar bond and leave his brother Mimi behind bars as collateral.

  “You don’t suppose anybody would suggest that I would double-cross my own brother and leave him here?” Capone asked. Should they fail, Al promised to “come back here, take my brother’s place and let justice go on with her racket.”

  The interview served Capone’s purposes in multiple ways. Newspapers ran his offer on front pages nationwide, helping him rehabilitate his image. And the article ranged well beyond the kidnapping, letting him complain of unfair treatment in court.

  “How do they know anything about my income since they never proved that I ever received a dollar?” Capone asked. “They may have been able to prove that I spent some money, but that didn’t prove that I have any income. What I have might have been given to me by admiring friends.”

  An Intelligence Unit memo said George E. Q. Johnson felt “quite disturbed” by all this positive press for his old adversary. The prosecutor had already failed to keep rumors of Capone’s cushy life in the county jail out of the newspapers. Now Al had gone back to using the media to present himself as a hero.

  Prominent lawyers urged a close friend of Lindbergh’s to take Capone up on his offer. A senator from Connecticut took the opposing view, accusing Capone of planning the crime as a ploy to win his freedom. But Georgette Winkeler insisted “under no circumstances would [Capone] have harmed a woman or a child.”

  The interview reached its intended audience. Charles Lindbergh placed a call to the secretary of the Treasury, asking if there was any truth in what Capone had to say. The secretary ordered Elmer Irey to go to New Jersey and consult with Lindbergh.

  Back in Chicago, Art Madden of the Intelligence Unit prepared a memo for Irey on what they knew about Capone’s offer. Madden found it unlikely Capone would try to escape; rather, he believed the gangster hoped “to procure information that might result in leniency in the end.”

  But Madden doubted Capone could really deliver.

  “It is my judgment,” he wrote, “and it is the judgment of the United States Attorney . . . that Capone could only be useful if the kidnapping was perpetrated by underworld characters or characters having underworld connections.” And Capone’s influence had withered, Madden felt; other mobsters “would now pay no attention to instructions from him.”

  Irey went to New Jersey and advised Lindbergh to disregard Capone’s offer. The aviator, according to Irey, confided he “wouldn’t ask for Capone’s release . . . even if it would save a life.” Impressed by the Intelligence Unit chief, Lindbergh asked Irey to stay on the case. Irey agreed, even though his department had no kidnapping jurisdiction.

  Although they never considered releasing Capone, the government took his lead seriously. Irey sent Madden and Frank Wilson to New York with orders to find Bob Carey. They had no luck until August, when the missing man and his girlfriend turned up dead in Manhattan, an apparent murder-suicide. The Intelligence Unit probed a possible connection to the Lindbergh kidnapping, noting the Chicago Outfit learned of Carey’s death before it made the papers.

  Another explanation surfaced years later, when a former North Side mob truck driver recalled running into Bugs Moran at a bar in 1932. The year before, Moran had left Chicago in exchange for a $25,000-a-year stipend from the Outfit. Now the mobster—still active in northern Illinois and Wisconsin—claimed to have recently “taken care of Bob Carey,” apparently in belated payback for St. Valentine’s Day.

  In the end, Capone’s offer did nothing to shorten his prison sentence, while handing the Intelligence Unit another high-profile victory. By asking Elmer Irey for help, Lindbergh had given the Unit their entree into the case, and Irey turned it over to the agents who had gathered the evidence against Capone.

  Wilson and Madden supervised the preparation of the ransom money, pushing for the inclusion of highly noticeable gold certificates among the cash. They also recorded the serial numbers over Lindbergh’s objections. Exactly who came up with the idea remains in dispute; Irey and Wilson both claim credit for it in their respective memoirs.

  Either way, these precautions led directly to the capture of Bruno Richard Hauptmann in 1935 and his dubious conviction the following year. By then, the search was a murder investigation—in May 1932, a wooded area near the Lindbergh home gave up the baby’s badly decomposed corpse. In a roundabout way Capone, having failed to return the child, brought the case to its conclusion.

  The kidnapping and murder of Lindbergh’s infant son provoked a period of national soul-searching. Many saw the child’s death as an inevitable reckoning—as if, in the words of one newspaper, “the baby’s blood is on the hands of the average American citizen because of his long complacency to crime.”

  The New York World-Telegram explicitly tied the kidnapping to Capone. “God knows why little Charles Lindbergh was murdered,” the paper said, “but indirectly the wicked, wanton, causeless crime can be attributed to the wise-cracking, jazzed-up, hypocritical age in which we live—an age . . . that outlaws bootleggers, buys their goods at exorbitant prices, and then claps them in jail when they fail to pay income taxes on the profits they make.”

  Before the Lindbergh baby had even been found, Chester Gould’s comic strip version of Eliot Ness, Dick Tracy, rushed into print with its own version of the kidnapping. Not only did Tracy rescue the missing child, the strip’s Capone substitute, “Big Boy,” masterminded the crime.

  Just over a week after police found a decaying corpse and quickly identified it as the Lindbergh baby, Gould gave readers the slam-bang climax real life had denied them: Tracy saved the child and knocked Big Boy senseless. Cold comfort, perhaps, and tasteless to some degree, but the comic strip resolution appealed to a national hunger for black-and-white battles between good and evil, where the guilty got punished in a way that anyone could understand.

  Although he hadn’t yet found a way out of jail, Capone could still take comfort in leaving his organization in good hands. His protracted stay in the Cook County Jail allowed him to oversee the Outfit till Frank Nitto got out of Leavenworth. If Nitto had won his parole on schedule, Capone might have begun serving his federal sentence sooner, rather than cooling his heels throughout the appeals process. But George Johnson’s failure to confirm the Nitto plea bargain inadvertently delayed the transfer of power.

  Since being denied parole in July, N
itto had kept fighting for release.

  “I have maintained a good conduct record here as I have not been reported for any infraction of the prison rules,” Nitto informed the parole board that September. “My file will disclose an offer of a job in Kansas City, Missouri, where I intent [sic] to go if released on parole.”

  After weeks without another hearing, Nitto wrote again, warning he might face difficulty raising the money to pay his fine if he had to spend another “four or five months” behind bars.

  George Johnson wrote the parole board as well, after finally submitting his promised report. He included a copy of the missing document with his letter, detailing the plea bargain and urging Nitto’s parole. “I have a moral responsibility,” Johnson wrote, “of seeing to [it] that a promise made by the United States Attorney is discharged.”

  Five days after Capone received his sentence, Elmer Irey called the parole board to say Nitto should be released, arranging to meet with the head of the board a few days later. No record of their conversation survives.

  So far, Nitto maintained he wouldn’t be able to pay his fine until after release. But when reminded the fine was a condition of the sentence and “should be paid without delay,” Nitto’s wife, Anna, quickly sent in the $10,000.

  “I am sure that my husband in view of all that has happened in Chicago . . . has learned his lesson,” she wrote, “and I am only standing by him because I know that I shall have no occasion to feel ashamed of anything that he will do in the future.”

  Her words failed to move the board, which formally denied Nitto’s parole.

  Anna Nitto responded by visiting George Johnson, insisting Frank would go to Kansas City as soon as he got out of prison and remain on the straight and narrow. Johnson sent three members of the Bureau of Investigation to relay her message to the parole board in a meeting on January 20. Elmer Irey also sat in on the meeting, presumably once again urging Nitto’s release, though again no record of what he said survives.