Fink began the morning by inquiring about Gentry’s activities during 1929.
“What was the bankroll of your book?”
“Thirty thousand dollars. I believe Mr. Capone put up 60 percent of it and Mr. Cohen [Gentry’s boss] 40 percent.”
“Did you make a profit that year?”
“Yes, about $13,000 in cash and $8,000 in markers,” which, he noted for the rural jury, were the promises bettors made to satisfy bets they had lost: in other words, IOUs.
“What was the highest amount he ever bet?” asked Fink, referring to Capone.
“The highest he bet was $10,000 on one horse. And there were several $10,000 bets.”
“Do you recall if he was winner or loser at the end of the season?”
“He lost about $100,000,” Gentry answered.
“Did you ever see the defendant play poker that season?”
“Yes, sir. Stud poker. I played in the game.”
When Fink and Judge Wilkerson pressed him to name the other participants in the game at Capone’s Palm Island estate, Gentry’s mind went conveniently blank. “There was always lots of people there, but I just can’t recall their names,” he offered lamely and lapsed into a daze. (“For a long time Gentry studied the frescoes on the ceiling, his head shaking as if he were trying to squeeze things out of his brain,” observed a journalist.) “I’m trying to concentrate,” the bookie lamented, “I’ve got five or six names in my mind, but they won’t come out.” Eventually his enfeebled memory did manage to yield a name or two: Stribling, Sharkey (prizefighters both), and Mrs. Tex Rickard, the wife of a prominent fight promoter. And what about baseball players? No, Gentry replied, the group consisted not of sports stars but of “sporting people.”
The prosecution’s Dwight Green cross-examined Gentry, emphasizing the witness’s flawed memory to discredit him.
“What horses did the defendant bet $10,000 on?” Green began.
“Several,” said the bookie.
“How much was his first bet with you?”
“I think it was $1,500 or $2,000.”
“What were the names of the horses he bet on?”
“I don’t remember.”
Judge Wilkerson interrupted. “Can you give us the name of just one horse that this defendant bet on?”
Gentry, not surprisingly, failed to remember a single losing horse on which Capone bet during the 1929 season; for a bookmaker two years might as well have been two centuries. With that unconvincing performance, Ahern and Fink rested their singularly inept defense. Their effort to demonstrate that Capone gambled away his taxable income amounted to no defense at all; in fact, the testimony of the witnesses for the defense, if credible, only served to discredit Capone.
Watching this awkward scene unfold, Runyon, who knew the pitfalls of betting on the horses from long and bitter personal experience, could scarcely contain his laughter at the evidence of his friend’s profligacy. “Your correspondent cheerfully yields the palm he has borne with such distinction for lo these many years as the world’s worst horse player to Mr. Alphonse Capone,” he declared. “Yes sir, and ma’am, Al wins in a common gallop, if we are to believe the testimony brought up in his support today.”
The gentlemen of the jury might have wondered how Capone had managed to amass his immense fortune while at the same time gambling it away with infantile abandon. The glaring inconsistency in his behavior throughout the late 1920s went unremarked throughout the trial; neither the judge nor the jury, certainly not Capone himself, would have been able to recognize the underlying cause of his bizarre gambling behavior. His medical history strongly suggests it was his latent neurosyphilis, still undiagnosed but nonetheless present in the frontal lobes of his brain, where it slowly but inexorably distorted his personality. One common manifestation of the disease’s ability to exaggerate behavior and induce grandiose fantasies is its victims’ tendency to gamble away huge sums of money—just as a dozen bookies testified Capone had. “Patients of this type are euphoric and develop delusions in which they figure as exceptional persons endowed with superhuman strength, immense wealth, or other magnificent attributes,” noted Sir Russell Brain, in Diseases of the Nervous System, of the psychological effects of syphilis. “They readily act on these delusions and may order large quantities of goods or write their physician a cheque for a million pounds, and they see no discrepancy between their imaginary attributes and their debilitated and unfortunate condition.” It was just this kind of behavior to which Judge Wilkerson’s courtroom had been exposed for over a week. At the time, it was perceived as the overindulgence of an unimaginably wealthy gangster, but it was also a symptom of Capone’s steadily worsening case of neurosyphilis.
The trial had thus far consumed seven exhausting days, and to the jurors the parade of witnesses, all of them carefully rehearsed, their presence in the courtroom representing thousands of hours of preparation, began to fade into a blur of assumptions and presumptions. Here and there the odd detail stuck out: the price of Capone’s union suits, for instance, or Pete Penovich’s dogged loyalty to his masters, but the significance of it all remained obscure, contradictory, puzzling. Capone had never taken the stand himself, had never uttered a word before the court. It would have been too dangerous for him to do so, because once he was subjected to cross examination by the prosecution, there was no telling what stories and surprises might have come tumbling forth. Soon the jurors—all men, only one from Chicago itself—were going to decide on his guilt or innocence, and what they had seen of the accused was a man who wore a succession of flashy, expensive suits, whose own lawyers claimed he was a gambler (as if that were a defense), and who had brought a gunman into the courtroom; Capone had not, on balance, presented a picture of innocence.
Despite the shambles his lawyers had made of his defense, Capone’s legal position was justifiable. A competent defense team, for instance, could have pointed out to the jury that until 1927 earnings from illegitimate activities such as gambling and bootlegging were not taxable. After the Supreme Court of the United States ruled otherwise, saying that income from such activities had to be paid even if it incriminated the taxpayer, Capone did make a bona fide attempt through his lawyer Lawrence Mattingly to pay his income taxes. He even met with agents of the IRS. Although he was absent from Chicago, he was generally available at his home in Florida; he was not in hiding. Most important, from Capone’s point of view, the government refused to accept his belated offer to pay taxes because it preferred to prosecute him. The government was, in effect, plea bargaining with Capone; instead of convicting him for a major offense such as violating the Volstead Act, it prosecuted him for the lesser offense of income tax violations. Ahern and Fink should have made each of these points, but they did not. The jury never had the chance to consider them, and to decide whether they cast a reasonable doubt on the government’s charges. Without an adequate defense, the trial amounted to an elaborate charade, a legalistic lynching of Al Capone.
• • •
It was the task of the closing arguments for each side to bring a persuasive clarity to bear on the facts that had been revealed in the courtroom. The first oration, for the prosecution, was delivered by Jacob Grossman, who, after reviewing the government’s case, pointed out how damning even the testimony mounted by the defense was to Capone. “He himself produced witnesses to show that he got a revenue,” Grossman reminded the jurors. “His defense witnesses said he lost large sums in race bets in four of those years. These losses totaled $217,000. Where did Capone get this money? At the start we find a man living on a fine estate in Florida, spending money like a baron and with the lavishness of an Italian prince. We have heard of jewels, and fine furnishings—everything bought with cash. The Florida people were interested in where all this money came from, and they asked Capone. He told them. He said he was a gambler in Cicero and Chicago and was in the real estate and cleaning and dyeing business and added that he had an interest in dog tracks.
“We see, f
urthermore, by going to his office in the Metropole or Lexington Hotels that he was surrounded by an organization of men who use assumed names. They pushed the register aside. Most of the organization appeared on the witness stand. You saw men who testified that when Capone called them and said, ‘Come to my office,’ they went. He pulled a string and they came running. These witnesses could remember nothing save that Capone lost money. The Florida people who came here to testify before you included some who fronted for Capone. There was Parker Henderson, who cashed Capone’s checks and tried to disguise his handwriting when he did so. He bought Capone’s home with Capone’s money, and later it was transferred to the name of the defendant’s wife. Everything was cash with Capone.”
Samuel Clawson resumed arguing the government’s case the following day, Friday, October 16, carefully explaining for the jurors the damning implications of the Mattingly letter and the transcript of the meeting between Capone and the IRS agent in Chicago, C. W. Herrick:
“Mr. Herrick told him that any statements that could be used against him probably would be used. He didn’t say they might be; he said they would. But when Mr. Herrick asked whether, according to the defendant’s statements, the taxable years in question would be 1926 to 1929, Capone himself spoke up. ‘That’s it, exactly,’ he said. That was the most significant thing about the interview: Capone’s own admission of liability. Can you, gentlemen of the jury, entertain any serious doubt that Capone knew what this was about? Even though he had lost from $47,000 to $110,000 a year on the races, as the defense has shown us, and his expenditures for luxuries had been enormous, as we have shown, he still had the money and wanted to pay his taxes. Is it conceivable then that he had no taxable income?
“Then, on September 30, 1930, Mattingly brought in the letter. He had consulted with Capone and this was the best they could do—an estimate of taxable income of $26,000 for 1926, $40,000 for 1927, and $100,000 each for the years 1928 and 1929. He had tried to get the revenue agents to say that the admission would not be used against his client; now, in the letter, Mattingly is saying it himself. The letter says, ‘This statement is made without prejudice to the taxpayer in any criminal action that may be instituted against him.’ Suppose a gambler could tack a little sign on a roulette wheel: This device is not to be used as evidence against me.’ Suppose a murderer could put a sign on his gun: ‘This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be! And that is what we have here.”
Then it was the turn of the defense to attempt the impossible task of exculpating Capone. The government had set the terms for the trial, and according to those terms Capone was guilty, as his defense lawyers recognized. Their only hope, at this late point in the trial, was to question the fairness of the government’s motives and to cast doubt on the integrity of the prosecution’s team without actually sounding disrespectful toward the government of the United States. In the end, Michael Ahern tried to suggest that Capone was simply being persecuted, not tried:
“The government has sought by inference, by presumption and by circumstantial evidence to prove this defendant guilty. It has sought to free itself from the law, to convict him merely because his name is Alphonse Capone. In Rome during the Punic Wars there lived a senator named Cato. Cato passed upon the morals of the people; he decided what they should eat, what they should drink, and what they should think. Carthage fell twice, but Carthage grew again and was once more powerful. Cato concluded every speech he made in the Senate by thundering, ‘Delenda est Carthago’—‘Carthage must be destroyed.’ ” Rising to a climax, Ahern declared, “These censors of ours, the prosecutors, the newspapers, all cry, ‘Delenda est Capone!’ Do you know what that means?”
The fascinated but uncomprehending rural jurors stared blankly at the defense lawyer.
“It means ‘Capone must be destroyed!’ ” Gesturing toward George E. Q. Johnson and his men, Ahern continued, “These censors cry out: ‘Capone must be destroyed!’ ” He pounded on the railing surrounding the jury box, startling the jurors, who recoiled from him. “Why do they seek conviction on this meager evidence? Because he is Alphonse Capone. Because he is the mythical Robin Hood you read so much about in all the newspapers. They have no evidence, or what they have produced here discloses only one thing: that the defendant Al Capone is a spendthrift, that he was extravagant.”
Again he spanked the railing.
“But the government itself is also guilty of acts of profligacy. It has spent thousands upon thousands in the investigation and prosecution of this case when it might better have spent that money in these times for the establishment of soup kitchens. If you convict on this sort of evidence,” he concluded, “every spendthrift in the country should be imprisoned.” Another smack on the railing, and Ahern, breathless, took his seat amid a clearing of throats and a shifting of chairs.
“Capone,” said the New York Times of the subject of the impassioned oratory, “drank it all in. A mint kept his ponderous jaws moving. . . . Though there seems to be a reasonable doubt as to whether he grasped the full meaning of it all, it sounded good.”
Then it was the turn of Albert Fink to defend the mythical Robin Hood sitting in Judge Wilkerson’s courtroom. Where Ahern’s delivery was smooth and sonorous, Fink’s voice was high-pitched and strained, but his line of reasoning was better grounded in reality than Ahern’s oratory had been, emphasizing that Capone had intended all along to pay his income tax just as he would honor any debt. “There is not a man in this court room who doesn’t know that Al Capone never had intent to defraud the government of that tax,” Fink insisted. “He is not that kind of a man. A tinhorn or a piker might, but no one ever accused Capone of being a piker. If he owed a tax you may be sure he didn’t pay it from some motive other than to defraud the government.”
As Fink spoke, the Times remarked, “a lump bulged in Capone’s throat,” and “his whole face showed deep self-pity.” By the time Fink concluded, he was hoarse, his face flushed, a man who had given his all. The defense rested.
“Quite a gale of oratory zipped around the corridors of the old Federal Building before the day was done,” Runyon noted in his summary of the day’s marathon, “what with Ahern’s remarks, a lengthy outburst by his associate, Albert Fink, and a long lingual drive by Samuel G. Clawson, of your Uncle Sam’s team of lawyers. What Ahern and Fink said, when you boiled it down to a nubbin, was that your Uncle Sam hasn’t proved all those things said about Al Capone in the indictments, and that he is entitled to his liberty forthwith. What Clawson said, reduced to a mere hatful, is that Al had a lot of income and didn’t pay tax on said income, and therefore ought to be put in the cooler.”
• • •
“FATE OF CAPONE WILL REST WITH JURY TODAY,” read the morning’s headline in the Chicago Tribune for Saturday, October 17. “G. E. Q. Johnson to Close U.S. Plea.” The final summation for the prosecution belonged to the man whose crusade this had become: George E. Q. Johnson. In his closing argument, he was bound to restrict himself to proven fact; anything else, any speculation, last-minute theories or evidence could be grounds for contempt. Although he was the august U.S. attorney, Johnson, like most of the members of the jury, hailed from a farm background, and he knew how to speak to this audience, knew their biases, knew, in short, how to get them to convict. He wanted the jury to help him cut Capone down to size.
“Every morning there are thousands of unmarried men and unmarried women who go to their daily work, and every one of those workers must pay an income tax on every dollar that they earn above the sum of $1,500,” he reminded the jurors. “The government has no more important function, except in the emergency of war, than to enforce the revenue laws of this government, and if the time ever occurs in the United States when our American people will pay taxes only when the government seeks to find out what they owe, or when it begins an investigation of their affairs to determine their tax, then government will fail; then the Army and the Navy will disband; and our instit
utions will disappear. Our courts will be swept aside; American civilization will fail; and organized society will revert to the days of the jungle, where every man will be for himself.”
He turned his attention to Capone. “I have been a little bewildered in this case at the manner in which the defense has attempted to weave a halo of mystery and romance around the head of this man. Who is he? Who is this man who during the years that we have considered here has so lavishly expended what he claims to be almost half a million dollars? Is he the little boy out of the Second Reader, who succeeded in finding a pot of gold at the end of the rainbow, that he has been spending so lavishly, or maybe, as his counsel says, is he Robin Hood? You will remember how Robin Hood in the days of the barons took from the strong to feed the weak and the starving peasants. Counsel referred to him in his argument as Robin Hood. But was it Robin Hood in this case who bought $8,000 worth of diamond belt buckles to give to the unemployed? Was it Robin Hood in this case who paid a meat bill of $6,500? Did that go to the unemployed? It went to the house on Palm Island. Did he buy these $27 shirts to protect the shivering men who sleep under Wacker Drive at night? No.”
It was an effective argument, except that nothing Johnson described in Capone’s actions was actually illegal. The jury could not convict Capone for being a lavish spender. Johnson went on to question Capone’s character and motives by constructing a profile of his Al Capone. “My friends, let us look at this defendant as he appears to be in this record. The first time we see him is as a bartender at Coney Island. Then we see him later through the witness Belford, alias Slim Jim, the dice man, who meets him at Colosimo’s, and then we get a fleeting glimpse again of him as a brothel keeper on 22nd Street, at Johnny Torrio’s; and then the next picture we have of him is in 1924. He has risen in influence and power, and we see him buying a car for $4,500. But we see something else; we see a prosperous gambling establishment here at Cicero, a gambling establishment, gentlemen of the jury, which you will find paid a profit in 1924 of $300,000; and even if you take the theory of the opposing counsel, Mr. Fink, that he had only 8 percent; that was $24,000.
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