The Axeman of New Orleans

by Miriam C. Davis

  Oral arguments before the five justices took two days. When arguments ended on the second day, Byrnes was entitled to a rush of optimism. The state’s performance hadn’t been particularly strong. At one point, Rivarde declared, “It is a significant thing that since the Jordanos have been in jail there have been no axe murders.” Not only had no one ever accused either of the Jordanos of being the Axeman, the accusation contradicted the prosecution’s stated motive for the crime—jealousy. It made the state look a little desperate.

  Several of the justices had voiced concern about the issue Byrnes felt most strongly about: the prosecution’s questioning of the defendants about threats they were alleged to have made, without putting on the stand witnesses who could support the allegations. One of the justices said he didn’t understand why the prosecutor didn’t call these witnesses, if he had them. Yes, Byrnes had reason to be cheerful.

  It was a long three weeks for Iorlando and Frank Jordano, but the decision when it came vindicated their lawyer’s optimism. On April 5, the Louisiana Supreme Court ruled that the jury’s guilty verdict was set aside and Iorlando and Frank’s convictions overturned. The State of Louisiana would have to try them again.

  The court found that the trial judge made two reversible errors. Rosie Cortimiglia’s statement to Clay Gaudet, which he had written down, should have been turned over to the defense. “As a matter of fact and law,” the court wrote, “it was a piece of substantive evidence concerning questions of vital importance in the defense of two men who were on trial for their lives, and we know of nothing in the law or in reason which authorized the refusal to produce it.”

  The court also rejected the strategy of asking the Jordanos if they had made specific threats but never producing the witnesses who—Rivarde claimed—could discredit the defendant’s denials. The justices found that a jury might easily have concluded that the district attorney could have produced witnesses to contradict the accused, if he’d chosen to do so. But the high court determined that “the only reasonable presumption” is that Rivarde couldn’t have done so. It was unacceptable, the court ruled, “to import into a case material facts which have not been established or attempted to be established by evidence; and . . . such action is . . . good ground for the reversal of a conviction.” The court had, quite properly, ignored Rosie’s recent confession. But the Jordanos were granted a retrial without it.

  Now the state had to retry the Jordanos. Which would be hard to do without Rosie Cortimiglia’s testimony.

  When can we get out of jail? the Jordanos quizzed their lawyers. Iorlando and Frank had been locked up for a year. Mr. Byrnes counseled patience. The state had a right to request a rehearing before the high court. But the deadline for making application to do so came and went, so the state supreme court’s ruling became final, and the case was officially sent to the Twenty-Eighth District Court for retrial. Byrnes could tell his clients that their new court date might be as early as the next month.

  In the meantime, Byrnes had other things to do. Thomas Semmes Walmsley, Louisiana’s assistant attorney general arguing on behalf of the state, had disparaged Rosie’s retraction before the Louisiana Supreme Court, arguing that it couldn’t be considered an affidavit because she hadn’t been legally sworn in. The statement didn’t even reflect Rosie’s own words, he maintained. It was too well written for someone with her lack of education. Clearly the document had been composed by someone else. And she hadn’t just walked into the newspaper office by herself. Someone had talked her into making these allegations, which he doubted she’d actually swear to. In order to assure that Rosie’s confession was taken seriously, he needed to address these criticisms.

  But where was Rosie? Shortly after her startling admission in February, she’d been admitted to the Isolation Hospital with smallpox. That year, New Orleans experienced an unusually virulent outbreak of the disease, which overwhelmed the resources of the Isolation Hospital. Despite the dismaying mortality rate in the hospital’s smallpox ward, Rosie recovered, her youthful prettiness permanently marred by the disease. The smallpox patients suffered from a desperate shortage of nursing staff, so she stayed on for several weeks to help. Rosie discovered that the Jordanos’ convictions had been thrown out only when she finally left the hospital on April 23.

  She must have gotten in touch with Byrnes or Jim Coulton immediately, because the next day she repeated her statement under oath in front of a notary and a handful of witnesses. She swore that the statement she’d given the Times-Picayune was absolutely true and again retracted her trial testimony identifying Frank and Iorlando as the killers. She affirmed that the statement she made to the Times-Picayune had been “of her own free will” and that she hadn’t been coerced or compensated in any way. The statement was in the third person, although in the Times-Picayune story reporting it, Rosie was quoted as saying, “On the last night of my confinement in jail I was told by Charles F. Burgbacher, jailer, that I would be kept in prison unless I testified that the Jordanos had killed my baby. I wanted to get out and so I said the Jordanos murdered my baby.”

  When the Jordanos were retried, Rosie would need to go back to Gretna to testify. But now she was afraid. She’d heard that Jefferson Parish was offering a fifty-dollar reward for her arrest. Sheriff Marrero denied the rumor. Still, she refused to cross the river until May when a new sheriff, one of a wave of reform candidates who’d swept Ring politicians out of office in the 1920 elections, would replace him.

  Byrnes, meanwhile, needed to get his clients out on bail. They’d been sitting in jail for over a year, and now that virtual proof of their innocence had emerged, it seemed outrageous that they should stay there. On May 12, in the Gretna courthouse, Byrnes asked Judge Fleury to allow them to post bond. Rosie had overcome her misgivings about entering Jefferson Parish, and Byrnes called her to the stand.

  Was the testimony you gave in the defendants’ trial a year ago true? Byrnes asked.

  Rosie’s new attorney, Sam Montgomery, intervened. He objected to his client answering the question, pointing out that if she incriminated herself, she could be prosecuted. He pointed to the district attorney: Mr. Rivarde is waiting for Mrs. Cortimiglia to admit that she gave false testimony under oath, he said. Then he will charge her with perjury.

  Byrnes was exasperated. “If Rosie Cortimiglia is convicted of perjury by telling the truth which will save this boy from the gallows and his father from life imprisonment, I am willing to serve her jail sentence,” he retorted.

  Despite Byrnes’s gallant offer, Montgomery still refused to allow Rosie to testify.

  Under the circumstances, Judge Fleury had no choice but to turn down the request for bail. Although their conviction had been thrown out, the Jordanos were still under indictment for murder, and murder suspects were usually not accorded bail. Weary with disappointment, Frank and Iorlando returned to their cells.

  The same day, in the same courthouse, a grand jury began investigating both Rosie’s charge that she had been coerced into identifying the Jordanos and the possibility that Rosie had committed perjury. When Judge Fleury issued his instructions, he “laid special stress on the crime of perjury,” reported the New Orleans States. Again, Sam Montgomery would not let Rosie say anything. And, unsurprisingly, since the key witness would not testify, the grand jury’s investigation came to nothing. Rosie’s continued silence led some observers to wonder if she actually would testify at the Jordanos’ retrial. Frank and Iorlando could be forgiven for wondering too.

  The new trial was scheduled to begin on Monday, May 17. Coincidently, that was also the day that John Parker was inaugurated as Louisiana’s new governor. William Byrnes and Archie Higgins (as former and current state representatives) were up in Baton Rouge for the inauguration and didn’t appear at the trial. One wonders why the trial still took place under such circumstances. In fact, the week before, the Times-Picayune had speculated that the trial would have to be postponed for this very reason. At any rate, the trial was delayed for two d
ays. When the defense attorneys failed to appear on Wednesday, however, both the judge and the DA were visibly irritated. When Judge Fleury learned that Andrew Thalheim, one of the Jordanos’ lawyers, was in the courthouse, he immediately summoned him to account for the attorneys’ absence. The flustered associate counsel stammered that there was some miscommunication; Byrnes and Higgins were still in Baton Rouge and hadn’t been notified that the trial was due to start that day.

  Whatever the causes of the misunderstanding, less than a week of the criminal term remained, not enough time to postpone the trial yet again and still have the case heard before the summer break. The murder trial would have to be postponed until the next criminal term—in November. Instead of an immediate trial, likely acquittal, and imminent freedom, Frank and Iorlando faced another six months in jail. Father and son dejectedly “returned to the sweltering heat of the Gretna jail . . . for the summer.”

  One would like to know what Frank had to say to his attorneys when they arrived home from the inauguration festivities. But as was his nature, he made the best of his situation. Life wasn’t too unbearable for the Jordanos in the parish jail now anyway. Once it became clear that in all likelihood the Jordanos would eventually be released, Deputy Sheriff Burgbacher (the man Rosie blamed for coercing her into accusing Frank) handed Frank the keys to the jail and a revolver and informed him that he was now a turnkey. Frank also put his business experience to good use, keeping the jail’s books for Burgbacher. He proved as good and conscientious a jailer as he had been a real estate agent, and the only time Frank and Iorlando had to spend in their cells was when they slept. Having something to occupy his time was good for Frank; still the summer dragged by as they waited for the fall and the acquittal they were convinced would send them home.

  Sometime during the summer and fall Frank’s personal life suffered a blow when his fiancée Josie dropped him; this was the girl he’d tried to protect by fibbing to the coroner’s jury. Perhaps the stress of having a jailed boyfriend proved too much for her. But another young woman (whose name we don’t know), who perhaps was attracted by Frank’s notoriety, quickly took Josie’s place in his affections, and Frank was still determined to get married as soon as he could get out and earn some money.

  Finally, the November criminal court term arrived. This time, public opinion was firmly in the defendants’ favor. Many in Jefferson Parish wondered why the district attorney persevered with his prosecution; without Rosie Cortimiglia’s testimony, he didn’t have a case. Rivarde must not have been convinced that Rosie would change her story. And he was determined that as long as Rosie would not admit to perjury under oath, he had a case. Once she resolved to take the risk, he knew, it was over. Why he couldn’t concede the Jordanos’ probable innocence is a mystery.

  The fall criminal term of the Twenty-Eighth District Court opened on November 3. Almost immediately, the trial schedule was set back because the presiding judge, Fred Middleton, dismissed the first jury pool over improprieties in the way its members had been selected. The process of summoning people for jury duty and selecting jurors had to start all over again. At best, the Jordano trial would start two weeks late.

  The criminal term finally began on Monday, November 15, and William Byrnes entered the courtroom with his clients, eager to go to trial. Rivarde, however, asked for a continuance. Over William Byrnes’s opposition, and the visible disappointment of the defendants, Judge Middleton delayed the case for another week. He assured the defense that the trial would begin the next Monday. The Jordanos’ case was now set for the second week of the term, Monday, November 22.

  But Judge Middleton wasn’t able to keep his promise. When the next week came, Rivarde stood up before the judge and sheepishly explained that he’d need another continuance. The state had mislaid its records of the case and consequently hadn’t been able to summon any witnesses. Byrnes was furious. “This is the second time [since] this case came back from the supreme court that we have been ready for trial and the state has asked continuance,” he sputtered. “I believe Iorlando and Frank Jordano are innocent men. Why should they have to stay in jail waiting for the state to prepare its case when the records are lost?”

  Judge Middleton tried to soothe him. “If the state is not ready for trial next Friday,” he promised, “I will entertain a motion for bail.”

  Byrnes wasn’t happy with it, but there was little he could do but agree. Just a few more days, he must have assured his clients. Frank left the courtroom to spend another birthday—his nineteenth, on November 23—in jail.

  When Friday came, the attorneys were ready, but now Rosie Cortimiglia was missing. She’d not responded to the subpoena, and no one seemed to know where she was. Once again, the judge granted a continuance, this time until December 6.

  Frank and Iorlando couldn’t even take comfort in the promised bail. Judge Middleton was no longer hearing the case. He was no longer even on the bench. District judges were not well-paid, at least compared to lawyers in private practice, and Fred Middleton had not run for reelection. His term expired on December 2, but he resigned a week early to take a potentially lucrative case defending a bootlegger who’d gotten into a shootout that had killed a deputy sheriff. The governor appointed H. N. Gautier, who’d been elected to succeed him, to fill the week remaining in Middleton’s term. On Friday, November 26, Judge Middleton opened court just long enough to turn the proceedings over to Judge Gautier.

  Judge Gautier, who had made no assurances to the Jordanos, promptly denied bail.

  By now the two men must have been in despair, wondering if the State of Louisiana would ever get around to trying them again. Perhaps they were beginning to worry that their retrial would be delayed again and they’d spend another five or six months in jail until the next criminal term in May. They had even more reason now to long for release. Lena was having her first child. Iorlando and Frank wanted to be home to cradle their newest family member when he or she arrived.

  The morning of December 6 dawned bleak and rainy in Gretna, sheets of rain alternating with a dull drizzle that reduced the unpaved streets to a boggy mess. The temperatures were only in the fifties, but the wet and wind made it colder and more depressing. Crowds streaming toward the courthouse trudged on, many soaked to the skin, heads down into the wind, braving rain and mud. Sinister dark clouds filling the sky seemed to portend nothing good for this day.

  Rosie Cortimiglia quietly entered the district attorney’s office down the hall from the packed courtroom where Iorlando and Frank Jordano waited for their trial to begin. She and Robert Rivarde sat in serious conversation, speaking in low tones. She spoke to him quietly and earnestly. He asked her a question; she answered with a determined shake of her head. He pressed her: Are you certain? She nodded: Yes, I am certain.

  Frank and Iorlando sat at the defense table with their attorneys. Frank, conspicuous by his great size and flashy green suit, was turned around chatting with friends, confident about the outcome and anxious to be out of jail and back at work. Iorlando appeared a slight figure next to the bulk of his son. He sat quietly, his wife occasionally reaching up from where she sat behind him to touch his shoulder reassuringly. The atmosphere was different from that of the previous trial, with the hum of the crowd now sympathetic to the two men sitting at the defense table.

  At noon, the court crier solemnly intoned the traditional opening of court: “Oyez, oyez, oyez. The Honorable Twenty-Eighth District Court of Jefferson Parish is now in session, the Honorable H. N. Gautier presiding. All those having business before this honorable court draw nigh and ye shall be heard. God save the United States and this Honorable Court.”

  Silence descended on the courtroom as Judge Gautier entered and took his seat. When the court crier solemnly announced “the Jordano case,” Robert Rivarde stood up. Rivarde addressed the judge: “Your honor, just before court opened the material witness in this case came to my office. She informed me that if the case comes to trial again, she will reverse the testimony she
gave in the original case, the testimony on which the accused were convicted. In order to save this court and many of our good citizens the discomfort of serving on a jury, I make a motion that the case be dropped.”

  Without hesitation, Judge Gautier nol-prossed the case, dismissing the two defendants. “You can go, Frank,” he said to the younger man.

  Relief flooded through Frank. Even though he’d fully expected to be freed, it still came as a shock. It took the old man a moment or two longer to understand what had just happened. After a shocked silence, the courtroom erupted, and friends and relatives and supporters thronged around the two men, slapping them on the back, shaking their hands, congratulating them, and wishing them well.

  As fast as the arthritic Iorlando could move, father and son hurried out of the courtroom and outside into the drizzle, savoring the drops of rain on their faces, enjoying the sweet thrill of freedom for the first time in almost two years. They were both in a hurry, headed for different places. Iorlando wanted to go home with his wife while Frank headed to New Orleans. He had someone he needed to thank. He left without noticing the woman who’d nearly destroyed him. Rosie Cortimiglia left the courthouse alone, headed back to New Orleans to take up her lonely life.

  Frank caught the ferry to New Orleans with his brother-in-law Tony Spera and a couple more of his pals. On the way, he experienced a tense confrontation that was at once dramatic yet utterly pedestrian. The meeting was no great coincidence. He should have expected it. They were both on their way to New Orleans straight from the courthouse, and the Jackson Avenue ferry was the only convenient means across the river. Nevertheless, Frank was taken by surprise when in the middle of the Mississippi River, he came face to face with the woman who’d almost cost him his life.