37 CAPONE ON TRIAL
The trial of Al Capone for tax evasion began on June 6 1931. The hot streets around the Chicago court were packed with sightseers. Most expected that the trial would be brief, nothing more than a sentencing hearing. The Chicago press had already reported that Capone and the Chicago United States Attorney George E Q Johnson had agreed to a deal. The accused would plead guilty and serve two and a half years in jail, Capone also agreed to pay $250,000 towards the tax he owed and a fine of $10,000. Al Capone entered the courtroom at ten in the morning. Judge Wilkerson, possibly riled by the reaction in the newspapers to the proposed deal, rejected the recommendation of the prosecutor. Wilkerson told those in court that he had another session that morning but he would reconvene the hearing at two in the afternoon. This decision by Wilkerson not only undermined public prosecutor Johnson but left the lawyers of Capone needing to prepare an unanticipated defence. In an attempt to either recover his position or save his reputation, prosecutor Johnson explained to the court that he had wanted to avoid the ‘hazards of a trial’ and to settle the matter at an early date. Johnson offered to produce a letter from federal officials that stated they considered the two and a half year sentence to be fair. Judge Wilkerson refused to consider the letter and insisted that he would be the one that determined the sentence. This would only be done, stated Wilkerson, after he had heard evidence from both the government and the lawyers of Capone. The lawyers of Capone changed the plea to not guilty and requested a jury trial. The judge set October 6 1931 as the date for the new trial.
Eddie O’Hare had told Treasury agent Frank Wilson that Capone had bribed the jury. Wilson told Wilkerson who switched juries and arranged for the new or alternative jury members to be shielded from contact with others. How much this was a response to a threat or a deliberate ploy by Wilkerson to secure a more favourable jury to the authorities is debatable. The replacement jury was white and elderly. All lived in rural communities outside Chicago. Four had indicted Ralph Capone for tax evasion charges. One had been a member of the grand jury that had investigated Capone and his violation of Prohibition. All of the jury had previously served as jurors.
The retrial began on the 7th of October 1931. George E Q Johnson had a dozen assistants that at various times attended the court. His main support came from fellow prosecutor Dwight H Green. The lawyers for Capone were Michael Ahern and Albert Fink. In the past, Capone had been defended by Thomas Nash but he was absent throughout the trial. Nash and Ahern had brokered the original guilty plea deal between Capone and Johnson. Why the combative Nash was replaced with the inexperienced Fink is a mystery. The documentary evidence submitted by the staff of Wilson consisted of records and accounts collected in various raids on the gambling saloons and speakeasies owned by Capone. This evidence was supported by testimony from two bookkeepers of Capone. Successful and no longer loyal politicians and businessmen appeared as witnesses and remembered the lavish parties of Capone that they had attended. The revelation in court that his family spent more than $1000 each week on food lost Capone some public sympathy. Witness and pastor Henry C Hoover told of a confrontation he had with Capone in 1925. The confrontation took place in a profitable and illegal gambling house in Cicero. It confirmed income for Capone but six years later the evidence should have been time barred. An anything but impartial Wilkerson ignored his responsibility, and Ahern and Fink forgot their duty to their client Al Capone.
A year before the trial began, Lawrence Mattingley, the tax lawyer for Capone, had submitted a letter to Frank Wilson and the revenue agent W C Hodgins. The letter from Mattingley contained an admission of an annual income and an offer to settle the issue of outstanding income tax. The prosecution team of Wilson and Green submitted the letter as evidence of previously undeclared income. Ahern for the defence argued that the letter was merely an attempt to resolve a dispute. His colleague added his own comments. Subsequent lawyers have argued that the protests of Fink were weak and poorly presented. In 1990, the Chicago branch of the American Bar Association staged a retrial. Terry McCarthy acted as one of the two defence lawyers. He described the Capone legal team as ‘really inept criminal defence lawyers’. Prentice H Marshall presided as the judge at the retrial. Marshall revealed that the ‘Mattingley letter’ was ‘a bona fide offer in compromise’ and ‘bona fide offers to compromise are not received in evidence’. This legal rule was known to Judge Wilkerson.
For most of the first week the trial consisted of statements from witnesses that confirmed the high living of Capone. At the beginning of the second week Johnny Torrio and Louis LaCava were in the court building if not at the trial. Although both were witnesses hostile to the prosecution they had been issued subpoenas by Wilson. The two men were never called by Wilson. It might have become apparent to Wilson that he had enough evidence to convict Capone or after meeting the two gangsters Wilson had second thoughts. Torrio was clever and shrewd and could have withstood interrogation. LaCava was an unpredictable character. During the trial, Phil D’Andrea was sentenced separately for carrying a loaded gun into the courtroom and for giving false testimony. Fink relied on witnesses that were bookmakers and gamblers. He also used these witnesses to argue that Capone lost most of his earnings and would have no money left to pay any due tax. Gambling losses were, and are, not deductible from income tax assessments. The approach of Fink has been described as laughable by the lawyers that have subsequently examined the events of the trial. The only explanation for the approach by Fink is that he had in his mind conceded the guilty verdict and was using these witnesses to mitigate the sentence from Wilkerson. At some point, though, Fink should have realised that nothing would deflect Wilkerson from his ambition which was to put Capone in prison for as long as possible. What Ahern and Fink did not do was stress that up till 1927 the income from illegitimate activities was not taxable. The notion behind this quaint concept was that no American should be obliged to incriminate himself by declaring illegal income. Neither did Fink use the ‘Mattingley letter’ to show that Capone had decided to become a taxpayer and was not only willing to pay outstanding tax and a fine but serve a two and a half year prison sentence for his mistakes in the past. Rather than take the money offered in ‘good faith’, the government wanted to put Capone in prison.
In his summation, Johnson stated that Capone had amassed his income with the objective of not paying taxes. This bizarre reasoning was not challenged by Ahern and Fink. The obvious is true. Capone amassed his income because he wanted to be rich and he did not declare his income because he did not want to admit to running illegal businesses. Judge Wilkerson took an hour to sum up the trial. Subsequent opinion from the legally qualified has been critical. Wilkerson was adept at summarising the arguments of the prosecution but neglectful when presenting the case for the defence. Most agree that he urged the jury to find Capone guilty. Capone and his team were in the Lexington hotel when the jury reached its verdict. The jury took nine hours to make its decision. The prosecution and defence teams had expected the jury to take longer to decide. Al Capone was found not guilty on seventeen of the indictments and guilty on the other five. The felony guilty verdicts covered the years 1925 to 1927 despite there being no requirement before 1927 to declare illegal income. Capone was also found guilty of two misdemeanours. He had failed to file for income tax payments in 1928 and 1929. In her book, Al Capone – His Life, Legacy and Legend, the author Deirdre Blair describes the verdict as ‘confusing’. Capone had been found guilty of failing to file tax returns in 1928 and 1929 but not guilty of evading taxes in the same years. One should have some sympathy for the jury. The logic behind the law was inconsistent, and the support from Judge Wilkerson inadequate.
Capone is portrayed in the movies as reacting with thuggish anger and an exaggerated sense of self-entitlement to the verdict of the jury. Capone, though, listened and said nothing. His reaction was restricted to nervous smiles. The sentences from Judge Wilkerson mixed the consecutive and the concurrent. The result was that Capone was sentenced to eleven years in prison. He also had to pay fines that totalled $50,000 and court costs that amounted to $7,692.29. Judge Wilkerson was asked by the defence team to release Capone pending their appeal. Wilkerson refused, a decision which would have not surprised anyone. The court bailiffs took Capone to the Cook County Jail where he was held until his appeals were held. As Capone was taken to the Cook County Jail, he said to someone in the courtroom, ‘I guess it’s all over’. At the court exit on to the street the photographers asked Capone what were his feelings. Capone said that he had no one to blame but himself. ‘Publicity, that’s what got me,’ he added.
Ahern and Fink advised their client that he should not expect to win the appeals against the sentence. And neither did he. Capone was transferred to a federal prison on May 4 1932. Johnson and Wilson and others had worked for five years amassing evidence against Al Capone. Thanks to a less than impartial judge their work achieved more than they had hoped. In the retrial of the Capone case held by the Chicago Bar Association in 1990 the defence argued that the government had failed to document proof of his income and that Capone was given conflicting advice from his counsel about whether he had to file income tax returns. A panel of fourteen independent jurors found the defendant Al Capone not guilty.
Howard Jackson has had thirteen books published by Red Rattle Books including novels, short stories, travel books and collections of film criticism. His latest book BORIS JOHNSON PFEFFELS AND PIFFLES is now available here.