by Mike Dash
Whitman’s next two witnesses also came into court wearing handcuffs. Jake and Morris Luban were petty thieves and forgers, then awaiting trial in New Jersey on fresh criminal charges. Morris Luban claimed to have been in the lobby of the Metropole on the night of the murder and said he could identify three of the gunmen. Considerably more damagingly for the defense, Morris also related that he had been lounging in the Lafayette Baths some three weeks before the shooting when he noticed one of his old acquaintances, Jack Rose, entering the steam room with Lieutenant Becker. Both men, he testified, were naked, and had greeted him politely before returning to their own conversation.
“Did you hear them say any words one to each other?” Frank Moss asked.
“I did. Becker spoke.”
“Give the words he said.”
“‘If that bastard Rosenthal ain’t croaked,’” replied Luban (whose words were censored in the daily press), “‘I’ll croak him myself.” ’
This was the first evidence that the court had heard of Becker’s involvement in a conspiracy to murder Herman, and over the next few days the meeting in the Lafayette Baths would become one of the three main planks in Whitman’s argument. McIntyre, rising to cross-examine, chose not to dwell on the unlikelihood that a policeman with so much to lose would have spoken quite so unguardedly in front of strangers in a public bath. He focused instead on Luban’s dubious motive for appearing for the State.
Was it not true, McIntyre asked, that Luban had previously offered to testify as a witness for Becker? That he had sent not one but four letters to the defense proposing to exchange evidence for help in getting out of jail? And that he had offered to prove not that the lieutenant had conspired to murder Rosenthal but that Becker was the victim of a “frame-up”?
“When I came over here,” the forger grudgingly accepted, “I expected some favors from the State of New York.” When McIntyre asked him what he had been doing at the Metropole that night, Luban replied that he had gone to the hotel with a girl named Annie after taking in a show at Hammerstein’s Theater. McIntyre was able to show that Hammerstein’s had not been open on the night of the murder.*52
The demolition of Morris Luban’s highly dubious evidence was a blow to Whitman’s prospects, and the district attorney was probably happy to hear Judge Goff call an end to the proceedings for the day. He and his assistants regrouped overnight and decided that the best way to repair the damage done by McIntyre’s cross-examination was to put a more reliable witness on the stand. The obvious choice was Bald Jack Rose, who was probably the quickest witted of the prosecution witnesses and by a distance the most memorable. Unlike Luban, who had arrived in the Criminal Courts Building from his prison cell in Jersey only minutes before he was scheduled to testify, Rose had been in the DA’s custody for weeks, and there had been plenty of opportunity for Whitman to go over the details of his evidence.
Bald Jack cut a compelling figure in Goff’s court the next day. A further hundred spectators had somehow crammed themselves into the already-crowded room to watch the gambler’s entrance. When Rose appeared, he was “a symphony in medium dark blue, perfectly groomed, his head lightly powdered,” and “shaven to the blood.” The gambler delivered his evidence in a colorless monotone that—many of those present found—somehow rendered the evidence he gave more rather than less bloodcurdling. Goff had ordered the windows in the court closed again, and the atmosphere in the room was “superheated” as the cadaverous Rose, cutting a thoroughly bizarre figure in the grime-filtered light, took his oath to tell the truth and embarked upon a well-rehearsed account of Becker’s treachery.
Despite the infernal heat, Bald Jack was a cool witness. He described in measured terms his own first meeting with Charles Becker, his recruitment to assist the lieutenant with his graft collections, and his own long association with Herman Rosenthal, for whom he had worked off and on for twenty years. He explained Becker’s falling-out with Rosenthal. And, under Frank Moss’s careful questioning, he recalled numerous instances in which the police lieutenant had first hinted, and then stated openly, that he wanted Herman murdered.
It had been “weeks” before the shooting, Bald Jack said, that he had first met Whitey Lewis and Lefty Louie in the Bronx to discuss the business. “Do you mean,” he recalled Lewis asking, “that you want someone croaked?” “I told them that he did,” Rose carefully explained to Moss, “and they didn’t even ask the name of the intended victim, but said that they were ready to do the job if Zelig approved of it.”
There were several interesting features to Bald Jack’s evidence. Rose said that it was he who had scared the gunmen out of killing Rosenthal in the Garden restaurant, telling them that a Burns detective was watching them as they gathered outside; the gambler insisted that he had never wanted the shooting to take place. He explained that Dago Frank had been a late addition to the murder party, recruited at the rooms where he loafed about with Whitey, Lefty, and Gyp because the other three had been briefly absent when Bald Jack called. He also claimed that Becker had sent him into the Tombs to ask for Zelig’s help. According to Rose’s testimony, the lieutenant had seemed utterly unperturbed when his collector proposed to bring the more experienced Vallon in on their plot. Becker was, Rose added, equally happy for Bridgey Webber to be included in the burgeoning conspiracy and raised no objections when Sam Schepps unexpectedly turned up at one of the plotters’ meetings. By that time (at least if the prosecution witnesses were to be believed), the fact that Becker was arranging Herman’s murder was known to Rose, Vallon, Webber, and Schepps, not to mention Zelig, his four gunmen, and any number of curious eavesdroppers at the Lafayette Baths.
Lieutenant Becker, Bald Jack went on, had grown increasingly impatient as he had tried tactic after tactic to delay the planned assassination. By Rose’s own account, he had done as much as any man reasonably could to persuade his boss to abandon the plot: “Why, Charley, don’t excite yourself. This man Rosenthal is not worth taking any such chance with.” Becker, though, had been insistent: “[He] called at my house and said, ‘Rosenthal is still at it, but I don’t see those fellows at it.’ I said, ‘They are on the job. I will go and see them again today.’”
The crux of Bald Jack’s evidence came when Moss began to question him as to the detailed planning of the murder. In order to obtain the conviction of Becker, the prosecution had to show that the lieutenant had met with Rose and his fellow gamblers and formally discussed how best to dispose of Rosenthal. Rose, moreover, would have to place Sam Schepps in his usual uncomfortable role of playing no part in the murder scheme yet being somehow present when the matter was discussed. And according to Bald Jack, this was precisely what had occurred one night that June or July—he could not begin to remember the exact date—on a street corner in Harlem.
Justice Goff by now was “half on his feet, craning his neck down from the podium” to better hear the evidence. Becker—the gambler went on—had been ordered to raid a crap game on West 124th Street. He had asked Rose and Bridgey Webber to rendezvous with him at a spot on the corner of West 124th and Seventh Avenue to go over the arrangements for Rosenthal’s murder. This meeting, henceforth generally referred to as the Harlem Conference, had also been attended by Vallon. It was on this occasion that Schepps unexpectedly turned up with Webber and—the story went—loitered half a block along the street in a spot where he could see, but not hear, what was going on.
Frank Moss spared no effort to alert the jury to the fact that this was a critical passage of evidence. The Harlem Conference, Rose explained, had taken place shortly before 10:00 P.M. The conspirators “sat on a board across [a] vacant lot talking about Rosenthal.” The lieutenant had just heard of Herman’s attempts to arrange a meeting with DA Whitman, which added to his urgency to have matters resolved. “Take charge of this thing, Bridgey,” Rose recalled him saying, “and see that it is done for me.” When Webber professed himself less than keen to get involved, the lieutenant had reassured him: “There is nothing going to
happen to anybody that has any hand in the croaking of Rosenthal,” he said. The Harlem meeting concluded, Bald Jack added, with Webber grudgingly agreeing to visit Zelig’s men. “With Bridgey on the job I think we will get quick results,” Rose recalled assuring Becker as the conspirators dispersed.
The picture that Rose drew of the Harlem Conference was grotesque—“like that in which Macbeth had plotted with his hired murderers,” observed the literate Lloyd Stryker—and clearly highly damaging to Becker. So was the gambler’s recollection of a second meeting between the policeman and the associates, which Bald Jack said had taken place at the Murray Hill Baths, just up the street from Webber’s clubhouse, soon after the murder. Becker had been “all smiles” by this time, his collector recalled, and congratulated his fellow plotters on a job well done. He described visiting the West Forty-seventh Street station house and gazing down at Rosenthal’s bloody corpse. “Don’t worry, Jack,” Rose recalled him saying. “He is dead and that is the end of it. The only thing to do now is to see that those fellows get away and lay low for a few days until this thing blows over.”
Bald Jack took nearly four hours to give his evidence to a hushed and attentive court, and by the time that he had finished, many of those present were persuaded that Becker was indeed guilty. The doubts raised by Morris Luban’s devious evidence the previous day had been thoroughly assuaged; Rose’s statements were so detailed and dispassionate it was hard to believe he was not telling the truth. Above all, the New York Times declared, the gambler’s description of Becker “gloating over the body of the dead Rosenthal in the back of the West Forty-seventh Street station delivered a smashing blow to the battlements of the defense.” The Sun could only agree:
Nearly every man and woman in the court room shuddered. Rose had spoken in a quiet, absolutely expressionless tone, which intensified the dreadful visualization he was making…. Lieutenant Becker did not blanch or quail. But he was visibly exerting strong self-control. His jaw set like a rock. One could see the muscles stiffen. Sweat streamed from his face. One hand gripped his chair, the other the table in front of him…. No human being could have been subjected to a worse ordeal, but the accused man faced three hundred pairs of eyes without flinching.
Almost everything about Rose’s evidence had been memorable. On the stand the gambler had spoken in a voice so quiet that everyone in the room had to strain to catch it, creating the impression that his was by some distance the most important testimony of the trial, and his accounts of the lieutenant’s plotting had grown more, rather than less, outlandish since he first confessed his involvement in the killing: “I don’t want him beat up, I could do that myself,” Bald Jack now remembered Becker snarling. “Cut his throat, dynamite him or anything…. Don’t be particular when you do it, break into his house and get him there if you want…. What do you care who is around? Walk up and shoot him right in front of a policeman if you like.” McIntyre had done what he could to stem the flow of vitriol. “Every few moments,” one reporter noted, “there would be a rhythmic interruption in the courtroom. McIntyre: ‘Objection.’ Goff: ‘Objection overruled.’ McIntyre: ‘Exception for the record.’”
Judge Goff’s steadfast rejection of these protests meant that McIntyre did not have the chance to get at Rose until his cross-examination of the gambler began early in the afternoon. Bald Jack had to withstand this battering for nearly six and a half hours, without any recess for dinner. More than four decades later, Lloyd Stryker still vividly recalled the scene that played out in Goff’s court on that long-ago October Saturday:
At half-past two, Mr. McIntyre began his cross-examination. He continued without a break or a request for an indulgence until six in the evening. I shall never forget that afternoon. It was a steaming day and in a stifling courtroom, hour after hour, our chief counsel relentlessly pressed on…. He was a master of every field of cross-examination, but he excelled perhaps in that in which he now engaged: the discrediting of a witness by showing from his own mouth that he is unworthy of belief. Every question searched some dark chamber of this rascal’s life, reached into the putrid cesspool of his past, turned the light upon his meanness, his depravity, and his crimes…. It was a slashing and a brilliant effort. [McIntyre] laid his questions on as with a lash…. His collar wilted and sweat streamed down his face as he confronted one of the worst men who ever lived.
Many of the others present in the court that day were less impressed than Stryker by McIntyre’s style of questioning. Becker’s attorney was certainly thorough, adding layer upon layer to his portrayal of Rose in his effort to show the gambler in an unflattering light, but his efforts to develop themes and build up the momentum of his interrogation were persistently thwarted by Whitman’s objections and by the intercessions of Justice Goff. This time virtually all of the objections raised were sustained. McIntyre asked no fewer than five times whether Rose admitted to procuring Herman’s murder without obtaining an answer.
Bald Jack was equally obstructive when it came to giving a response to more innocuous questions. It took the defense counsel fifteen minutes to get Rose to agree that he was born in Poland, and twenty to define the term “lobbygow” as it applied to his associate Schepps—all of it time that might have been better spent tackling more crucial issues. Nor was Bald Jack any more forthcoming when Becker’s lawyer tried to explore his enmity for Rosenthal. The most that McIntyre elicited was a terse denial that Herman had ever called him a “bald-headed pimp” and a rejection of the suggestion that Rose himself had had Rosenthal gunned down “because he said that I was living with a woman not my wife or that my children were illegitimate.”
Judge Goff, Stryker thought, went out of his way to protect Bald Jack on the stand. Rose had given his evidence to Moss “under the friendly nods and encouraging smiles of the prosecutor’s judge…. He was fawned upon by the court. By every look and intonation, the judge revealed how much he wanted to obscure the fact that this man was not only a cunning, shrewd, calculating, dangerous criminal, but a self-confessed murderer who, in return for his testimony, had secured from the District Attorney an agreement whereby he would go scot-free.” Now, with Rose under cross-examination, Goff stepped in just as Rose was getting rattled. McIntyre’s persistent efforts to portray the witness as an unreliable crook were halted when “the judge leaned down and suggested that the witness might well plead the Fifth Amendment to this kind of thing…. Rose shook off all such questions from then on.”
Goff’s most decisive interventions, though, came later in the proceedings. Counsel McIntyre—an overweight, unhealthy fifty-seven—began to show signs of flagging around 6:00 P.M. He had been on his feet for nearly four hours, and as he reached the crucial point of questioning Rose on the gamblers’ time together in the Tombs, he began to lose his train of thought. “I am tottering on my feet,” the lawyer told Goff “in a strangled voice.” “I feel thoroughly exhausted, and if I continue now I may not be able to come back here Monday. I may collapse at any moment.” The judge insisted that he press on with his examination.
McIntyre, although now visibly distressed, did his best to comply with Goff’s command:
“Didn’t you go down on your knees…in the Tombs and swear by the grave of your dead mother that Becker had nothing to do with the ‘affair’?”
“No.”
“Did you not say to Jack Sullivan in the counsel room that to implicate Becker was your only chance?”
“No.”
“Didn’t Jack Sullivan say, ‘What can you squeal about?’ and didn’t you say, ‘The newspapers are hollering for Becker’?”
“I did not say anything like that.”
“Sullivan did not say, ‘You bald-headed——, are you going to frame up someone?’”
“There were ten in that counsel room.”
Several times between 6:00 and 8:00 P.M., Becker’s lawyer repeated his request for an adjournment, but Goff would not relent. The judge was apparently enjoying McIntyre’s growing discomfort—a product,
it now appeared, not merely of exhaustion but of lunch. “One of Justice Goff’s curious attributes,” a reporter noted, “was that he had the continence of a camel. McIntyre did not. He had been forced to stay on his feet in the courtroom since two-thirty in the afternoon without a chance to go to the men’s room and was beginning noticeably to fidget.” The judge’s behavior was, Lloyd Stryker thought, “cold, calculated, deliberate oppression.”
At last, at 8:45 P.M.—six and a quarter hours after the cross-examination had begun—the defense counsel reeled and clutched at the corner of his table.
“Your Honor,” McIntyre gasped, “I am utterly exhausted. I am unable to do my full duty to my client. Won’t your Honor please accede to my request?”
“Why, Mr. McIntyre,” Goff smirked, “you are stronger than you were this morning.” He denied the defense request for a continuance. McIntyre repeated that he could not go on. “Order was disregarded,” one watching newsman noted. “Over and over again Mr. McIntyre shouted that he was worn out, that the proceeding was not fair.”
John Hart jumped to his feet and offered to take over the examination. Goff regarded him balefully.
“I do not wish to listen to you, sir,” he snapped. Then, to McIntyre: “No good reason whatever appears for an adjournment. There yet remain three hours. Counsel may have them.”
“I cannot go on,” the defense attorney groaned.
“Have you no more questions? If not I will declare the cross-examination closed and excuse the witness.”
When McIntyre began to protest once again, Goff turned to Rose and discharged him,*53 thus denying Becker’s lawyers the chance to recall Bald Jack to the stand. McIntyre staggered off toward the men’s room. Amid all the heat and the discomfort, the old attorney had lost track of his line of questioning. He had not so much as touched upon the Harlem Conference.
