The Trial of Al Capone – How the Real Untouchables Brought Him Down

The Trial of Al Capone - How the Real Untouchables Brought Him Down

Shortly before the trial of Al Capone, an I.R.S. informant named Eddie O’Hare sought out the lead agent, Frank Wilson at a downtown bar. As he nervously took a seat at the bar next to Agent Wilson, O’Hare whispered in his coarse whiskey voice, “Capone’s men have the jury list, and they are passing out money, tickets to prize fights, city jobs and using muscle. Wilson looked at his informant with skeptical eyes, and when he raised his left eyebrow, O’Hare jerked a piece of paper from his inside jacket pocket and handed it to Agent Wilson. Frank Wilson’s expression changed as he looked at a Cook County document containing the names and addresses of ten jurors, numbered 30 to 39. Agent Wilson took the list and left the bar immediately. Shortly after met with U. S. Attorney Johnson and together they took the list to Federal Judge James Wilkerson in his chambers. Wilkerson was stunned and exclaimed, “I have not received the list myself, how do we know this is the scheduled jury panel?” Both men assured the judge that this informant had provided good information in the past and they had no reason to doubt him now. Judge Wilkerson replied, “Go back to work gentlemen, and when the official jury list arrives, I will determine the veracity of this paper.” The next day, Judge Wilkerson summoned the two men into his chambers. A man of few words, Judge Wilkerson stated, “Bring your case into court as planned, gentlemen, and leave the rest to me.”

The downfall of Chicago beer baron and crime lord Alphonse Capone started many months before this meeting. We remember Eliot Ness for taking down Capone, and we remember his bold action against the Capone organization because of publicity he got at the time, and because of the 1960s television show The Untouchables. While Eliot Ness and his men were doing the glamorous work of tapping phones, working informants, sending undercover agents into speakeasies and raiding Capone’s illegal breweries and warehouses, a group of I.R.S. agents gathered up the evidence, and a mild-mannered bespectacled account named Frank Wilson made sense of that evidence. In doing this, Wilson became the first known forensic account in history.


In the 1920s, Al Capone would say that crime does pay and pays well. Capone, in 1929, might have been worth about $30 million, but he had never filed an income tax return. Capone was a flamboyant crime boss getting his photo taken with Babe Ruth, wearing expensive suits, driving expensive cars and frolicking in the swimming pool at his Florida mansion. President Herbert Hoover ordered Secretary of the Treasury, Andrew Mellon, to do something by saying, “I want that man in jail!” Both men knew that the Supreme Court had ruled that the Fifth Amendment’s privilege against self-incrimination does protect bootleggers convicted of failing to file a return showing the profits from his illegal businesses. With the Sullivan case in mind, President Herbert Hoover instructed Secretary of the Treasury Andrew Mellon, ” I want that man Capone in jail.” Secretary Mellon gave this job to Elmer Irey, head of Treasury’s Special Intelligence Unit. As we used to say, “shit rolls downhill” and Irey assigned this job to his Chicago based I.R.S. agent and accountant Frank Wilson.

Frank Wilson led his own Untouchables, a team of five other Treasury investigators. They set up offices in the Chicago Post Office Building. They learned that Capone did not have a bank account; he never wrote any checks; he never maintained any books or had any books with statements of income or expenses. His organization did not issue receipts. So, Agent Wilson started looking into Al Capone’s lavish lifestyle. Wilson and his agents went to department stores, jewelry stores, car dealerships, and hotels asking for any records of Capone’s purchases. They found purchases of expensive furniture, custom-made clothes, diamond jewelry, gold-plated dinner service, hotel suites, and his famous bulletproof limousine. They found he had spent thousands on a luxurious party on the night of the Dempsey-Tunney heavyweight fight.

The hard part came when the agents tried to connect Al Capone with the source of this money. Frank Wilson once said, “I prowled the crummy streets of Cicero, where a twitch of Al’s little finger had the force of an edict, but there was no clue that a dollar from the big gambling places, the horse parlors, the brothels, or the bootleg joints ever reached his coffers.” The Al Capone investigators found that witnesses were uncooperative or they lied or left town. He did find one unusual man named Eddie O’Hare who provided tips and leads. O’Hare ran dog racing tracks for the Capon organization and held the patent on the mechanical rabbit used in greyhound racing. We have all heard the announcer exclaim, “Here comes Woody!”

In the summer of 1930, Agent Wilson and his team found three bound ledgers in some old evidence taken from a Capone gambling house in 1926. The agents found the ledger had columns labeled “Craps,” “21,” and “Roulette.” They noted that someone had entered numbers in these columns with totals. The agents saw that the ledger’s creator divided the totals into smaller amounts next to code names like “Town,” “Ralph,” “Pete,” and “A.” They found a few references to “Al.” The agents found this document a man named Reverend Henry C. Hoover, a Berwyn, Illinois minister had found this ledger. Rev. Hoover led a vigilante group known as the West Suburban Ministers’ and Citizens’ Association, and their purpose was to drive Al Capone out of Cicero and the immediate area. He was so active in harassing Capone and his establishments that he became known as “The Raiding Pastor.” On May 16, 1925, Hoover and his vigilantes raided a Capone gambling house called the Hawthorne Smoke Shop at 4818 W. 22nd St., in Cicero. As they carried the gambling equipment out into the street, Al Capone appeared in his pajamas and confronted Pastor Hoover stating,

“Why are you fellows always picking on me? Reverend, can’t you and I get together – come to an understanding? If you let up on me in Cicero, I’ll withdraw from Stickney.”

Hoover responded indignantly,

“Mr. Capone, the only understanding you and I can have is that you must obey the law or get out of the western suburbs.”

Agent Wilson believed there was almost enough evidence to charge Capone and force him to stand trial. Wilson had the testimony that proved Capone had not filed any tax returns. He had evidence that Capone lived a lavish lifestyle. Pastor Hoover could testify that Capone was the proprietor of the Hawthorne Smoke Shop and that it was a gambling establishment. He had the gambling ledger from the Hawthorne Smoke Shop.

Agent Wilson had the last piece of the puzzle to find. He wanted to locate the man who kept this ledger and entered the numbers. He was able to compare the handwriting in the ledger with deposit slips from area banks and learned the likely author was a man named Leslie Shumway. Agents found Shumway had left Chicago and they tracked him to Florida. Wilson immediately dispatched two agents where they found an uncooperative Mr. Shumway. They applied a not so subtle threat saying, “If you don’t cooperate, we will subpoena you and send word back to Chicago that you are subject to subpoena in the upcoming trial of Al Capone.” Mr. Shumway succumbed to the pressure and gave an affidavit in which he stated that he took orders from Mr. Alphonse Capone in regards to his accounting for the gambling receipts from the Hawthorne Smoke Shop. The agents immediately put Shumway put on a train to California with instructions to stay there until the trial.

Al Capone realized that Agent Wilson could not be bribed, intimidated or worn down. Capone instructed his tax attorney, Lawrence Mattingly, to offer a deal to Frank Wilson. Capone would concede he had an income of $26,000 in 1924 and increasing amounts up to $100,000 in 1928 and 1929. He gave Wilson a letter containing this offer.

Wilson refused this offer and continued gathering incriminating evidence and searching for witnesses. He found a man named Fred Reis who decided to talk after four days in a filthy Danville Illinois county jail. Reis admitted to agents that he had deposited large checks that represented Capone’s net profits at his Cicero gambling hall. Reis testified in front of a grand jury, after which government sent him to South America until trial.

The U.S. Attorney George E. Q. Johnson obtained an indictment, and over the next few months, he met with Capone’s attorneys to discuss a possible plea bargain. Johnson was willing to entertain a plea agreement because of his lack of confidence in his witnesses and the questionable circumstantial evidence the agents provided. The parties agreed on a two-and-a-half year sentence, and on June 18, 1931, Al Capone’s lawyers presented this agreement before Federal Judge James H. Wilkerson.

Judge Wilkerson surprised everyone as he addressed a smiling Al Capone in his expensive pea-green suit. Wilkerson stated, “The parties to a criminal case may not stipulate as to the judgment to be entered. It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.” After a long silence, a dejected Al Capone and his attorneys slowly left the courtroom.

Treasury Agent Frank Wilson and his”untouchables” were brave and cool, not just supersmart—enduring near-misses of mob hits. “Wilson fears nothing that walks,” his boss Elmer Irey observed. “He will sit quietly looking at books eighteen hours a day, seven days a week, forever, if he wants to find something in those books.” A suspect after interrogation by Wilson once sighed, “He sweats ice water.”

The morning of October 5, 1931, Alphonse “Al” Capone strolled down California street and entered the Federal courthouse at 26th Street. As usual, a bodyguard accompanied Capone, and he was laughing and smiling, greeting various well-wishers, court employees, and newspaper reporters. People reached toward Capone offering their autograph books, and declined by laughing and saying, “I have signed enough things, and they all got me in trouble.” He was wearing an expensive mustard-colored suit. The defense attorneys wearing dark suits, Michael J. Ahern and Thomas D. Nash entered and sat at their table. The prosecution team consisting of Samuel G. Clawson, George E. Q. Johnson, Dwight H. Green, William J. Froelich, and Jacob I. Grossman entered, and George Johnson and Dwight Green sat at the prosecution table. The Bailiff entered and cried, “All rise, the court of the honorable Judge James H. Wilkerson entered and took his seat at the bench. As he looked out over a packed courtroom, Judge Wilkerson glanced at the direction of the Bailiff and announced in a commanding voice, “Judge Barnes has another trial commencing today, go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Barnes courtroom.” Al Capone’s smile left as the courtroom murmured quizzically. The prosecution team gave each other knowing glances. Frank Wilson smiled like he was the cat who ate the canary as he remembered his conversation about jury tampering with Judge Wilkerson.

Capone waiting verdict

Capone waiting verdict

In Judge Barnes courtroom a Chicago insurance agent named Arthur Prochno was quite surprised when a bailiff entered the courtroom with a group of men, and Judge Barnes ordered him, and his fellow veniremen get up and follow the bailiff. They all gathered up their belongings and followed the bailiff. Prochno asked the bailiff, “Where to?” The Bailiff replied, “Wait and see.” As they entered another hallway lined with guards, reporters, and others, Mr. Prochno became nervous as he wondered, “We can’t be going into the Al Capone trial, can we?”

After the new jury panel was seated, Judge Wilkerson ordered that voir dire began. The first juror he called was Arthur Prochno. The bailiff directed him to enter the jury box. Judge Wilkerson asked the following questions:

Q.-Have you read about this case?
A.-I am like the average businessman. I at least read the headlines of news items so I may discuss them as topics of the day.
Q.-Do you know anyone connected with this case?
A.-Your honor, I have been before you a number of times in the fight for one-fare transportation for my neighborhood.
Q.-Do you know anyone else connected with the offices on either side?
A.-The cashier of your court is a neighbor of mine and was president of an organization to which I belong.
Q.-Are you a member of the Anti-Saloon league? Do you contribute to it?
A.-I am not a member of the Anti-Saloon league, nor do I contribute to it. I don’t agree with its methods. However, I have been in civic organizations for thirty years and paid dues.
Q.-Would it embarrass you if you were selected on this jury?
A.-It: might embarrass me considerably if I were tied up long on a jury. Then also, some neighbors and other business people, learning that I had a summons for a federal jury, expressed the hope that I would get on this case and give the defendant the limit. However, I would go by the evidence.

The defense counsel immediately accepted Arthur Prochno, but the Judge had some more questions. Judge Wilkerson pointed his finger at Prochno and asked, “See here, do you care or don’t you care if you are on this jury?” He replied, “Your honor, it does not make a particle of difference to me whether I am chosen for this jury or not.” With that, Judge Wilkerson was satisfied, and Mr. Prochno was selected. The same process went n all day until the judge, the prosecution and the defense approved 12 men and one alternate.

iwasacaponejurorheader

After the jury was complete, two men were ordered by the judge to escort them down the street to the Great Northern Hotel. They jurors learned their guards were named Frank Otto and Ladd Purcha. When they arrived at the hotel, Frank Otto instructed the hotel staff to bring some cots because they had three rooms for thirteen men. In the lobby, Mr. Otto gathered them close and said in a loud voice, “Listen up! We will call your wives and tell them you will not be home until this trial is over and we must inspect your possessions and clothing.” As the jurors grumbled quietly, Mr. Purcha wrote down their phone numbers and left for the lobby pay phone. While this was happening, Otto had each man empty his pockets, and then he patted them down. The complained he even turned their pockets and sleeves inside out and turned down their trouser cuffs and ran his hands around the inside of their hat bands. Once they were all back together, Otto said, “We will read all your letters before mailing, so do not write anything about the trial.” The guards asserted that the judge forbids any communications between the jurors and outsiders for the trial’s duration.

After they left the men in their rooms, the jurors began to make each other’s acquaintance. Prochno would later write, “We divided into groups which I defined as students, gossipers, and jokers. Among us, it developed, were a couple of men who had as jurors in the income tax case of Ralph Capone, Al’s brother, a year or two before. They had convicted him. Another juror told me that these men wanted to get on Al Capone’s case to give him some of the same medicine.”

When the trial began, the jury heard the prosecution opening statement. Assistant U. S. Attorney Dwight Green told them the government was making 23 charges of tax evasion against Capone Chief Prosecutor George Johnson called an I.R.S. tax collector named Charles W. Arndt. He established that Al Capone failed to file any tax return at all during the years 1924 through 1929. The prosecution called a string of witnesses who gave evidence that Capone derived huge profits from gambling halls, bars, and other businesses. Pastor Henry Hoover of the West Suburban Ministers’ and Citizens’ Association testified about their raid on the Hawthorne Smoke Shop, a gambling hall in Cicero. He said that as his men carted out gambling machines and loaded them into trucks, Al Capone showed up and attempted to push his way into the establishment. He remembered that one man asked Capone, “What the hell–do you think this is a party?” and that Capone answered, “I’m the owner of this place.” Pastor Hoover went on to testify that Capone asked, “Why are you fellows always picking on me?” and that he warned, “This is the last raid you’ll ever pull.”
Regarding the evidence of Capone’s lifestyle and spending habits, juror Prochno remembered, “Witnesses told of huge sums that Capone spent on entertainment. Also, there was evidence of gambling. The government introduced stacks of checks for thousands of dollars. They told us these represented gambling gains and losses. We were impressed more by the diamond belt buckles that Capone gave to his friends.”

After several days of back and forth between the attorneys and looking at ledger sheets, checks, and pictures of mansions and expensive cars, the jurors became worried that they may become targets of the gangster. During walks outside and between the hotel and the courthouse, citizens gathered to gawk at them and along with reporters tried to take their picture. But they gave their complete attention during the trial. Procho said, “Inside the courtroom, we forgot outside worries and gave complete attention to the case. We realized its importance. We realized the mighty battle is going on between the two groups of lawyers. Without prejudging Capone’s case, we were not unconscious of what he represented in the public eye. We could not help knowing he was the biggest representative of gangland in the world. And there he was, a big, fat man, facing the bar of justice like any other man accused of a crime, and we, twelve ordinary citizens, sitting in judgment.”

The jury was entranced with the testimony of the elusive Leslie Shumway, former cashier of the Hawthorne Some shop. He verified he made the entries in the ledgers and described the accounting procedures he used. He testified that the approximate profits for the two years he worked there were over $550,000. Shumway refused to identify Capone as the owner forcing the prosecutors to get creative in their questioning. Jacob Grossman asked Shumway, “Did you any time after that have any conversation with Al Capone about carrying money over there?” The witness answered, “It was sometime later that Al asked me what I would do if I got stuck up, and I told him, ‘I would just let them take it,’ and he says, ‘That is right.’”

caponejury1931

Capone Jury 1931

The most heated debate over evidence came when George Johnson tried to introduce Capone’s letter offering to settle his back taxes in exchange for a three-year sentence. This evidence was demonstrated in the form of a settlement letter from Capone’s tax attorney, Frank Mattingly, and given to George Johnson. Defense attorney Albert Fink argued, “A lawyer cannot confess for his client.” Surely, Fink noted, Capone never meant to give Mattingly the “authority to make statements that may get him into the penitentiary.” Frank Wilson testified that Capone’s tax attorney Lawrence Mattingly had come to his office and tossed this letter on his desk and stated, “This is the best we can do. Mr. Capone is willing to pay the tax on these figures.” Judge Wilkinson announced his decision: “I will admit the letter to show that the defendant’s attorney made the statement, but the jury must consider the contents of the letter as proof of the statements made.”

George Johnson questioned a man named Parker Henderson, and he told the jury that he sold his Palm Island, Florida estate to Capone and put the title in Capone’s wife’s name. A representative of Chicago’s Metropole Hotel’s told jurors Capone paid large bills one-handed and five-hundred-dollar bills. A Florida dock-builder testified that he saw enough money in Capone’s Palm Island estate cupboard “to choke an ox.” All this testimony shocked the depression era jury and audience.

In rebuttal, Capone’s defense attorneys painted Capone as a gambling addict. They put a bookie named Milton Held on the stand he replied under questioning, “Capone lost three or four hundred dollars at a time betting on horses, and that he was a consistent loser.” Other bookies testified that Capone lost big betting on horse races. The total losses placed into evidence by a string of Chicago bookies was $327,000 in six years of betting. In their summation, the defense complained this prosecution was an overreach by an oppressive government. He said the jury should not convict Capone because he was a “bad man” and that he was “generous” and the “kind of man who never fails a friend.” During the trial, Capone’s organization had made generous donations to Chicago area soup kitchens. They played on the fear of government tax collectors taking away hard-earned savings of the common man.

The prosecution, in their summation, emphasized that Capone was “a gambler, a realtor, a cleaner and a presser and a dog race-track owner” who lived “like a bejeweled prince” and “spent thousands of dollars without thinking twice.” The chief prosecutor George Johnson talked last, and he ended with this statement, “This is a case that future generations will remember and they will remember it because it will establish whether a man can so conduct his affairs that he is above the government and the law.”

The jury is getting excited, and George Prochno remembered the following conversation;

“During the noon recess this Friday, we returned to our room. I was the last man in. I found one of the first men inside waiting for me. He remarked: ‘We’ll get this case about four o clock and be home for supper.” I answered, “Not with all this evidence.” “To hell with the evidence!” He said. “The first son of a gun ties us up for over an hour I’ll smash in the face.” I vehemently replied, “If any juror wishes to examine the evidence, I’ll protect him!”

“And if he does I’ll knock him cold,” continued belligerent juror. Then In a friendlier and more diplomatic vein, he said: “Why there’s nothing to it. We know he’s guilty. Let’s give him the limit of 72 years. The judge will get credit and be appointed to the Appellate court.”

Prochno shook his head in disagreement and said, “So far as I was concerned there would be no bouquets to either side. I say we should abide by the evidence. I don’t think Judge Wilkerson would approve your attitude.”

That evening after the judge charged the jury and gave them their instructions; the men showed signs of irritation and strain. The judge posted extra guards, and this did not add to their sense of comfort. They felt more like a goldfish in a bowl than ever before. Prochno would later remember, “Most of us tried to pass the time reading. I was sitting on my cot reading when one of the younger jurors, most of us were over 50, sat down beside me, I sensed he had something to say. So, I pretended to read. He did, too, while whispering to me, “There seems to be some effort around to disregard the evidence and to give Capone the limit. I don’t favor the idea. A quick verdict would look bad for us. The public might think we framed and railroaded him.” Prochno replied, “That’s what I think.” He related to this juror about his previous spat with another juror and said that the others already suspected him of wanting to tie up the jury. He suggested to the younger man that he sound out the neutral jurors and persuade them to vote not guilty on the first ballot, after that to do as they pleased. Prochno’s idea was to prevent a guilty stampede. He refused to go along with a guilty verdict based on the myth that Capone was evil and they just needed to get a quick conviction so they could go home for dinner.

Prochno would later write the following account for the Chicago Tribune in 1936 of what happened in the jury room.

Then came the dramatic moment when the fate of Capone, the most public gangster in the world, was placed in our hands. Only a person who has served on a jury in a trial where a human beings life or liberty is at stake can comprehend the heavy responsibility.

I mentioned earlier that I had served on many state juries. The first time was at the trial of a newsboy charged with murder. The evidence was circumstantial. It was a hanging case. Ten jurors wanted to hang him. Another juror and I held out for life. Something, we don’t know what, it wasn’t sentiment, urged us not to vote death. We didn’t. The judge gave the newsboy a life sentence, and he went to prison. Seven years the court freed the boy after the real slayer confessed. That taught me to be doubly cautious in cases where human liberty or life was involved.
Once inside the jury room, someone suggested a straw vote to see how we stood. The jury voted down this idea. Instead, we went about the business of choosing a foreman. Woelfersheim, Heinrichs, and Walter were nominated. Woelfersheim, Heinrichs withdrew, and Walter was elected foreman. The jury chose me as secretary.

The first ballot was taken soon afterward and showed six guilty and six not guilty. Several jurors grinned at me, and one jokingly remarked, “Prochno, you’re a good politician and vote-getter.” We took another vote, and the result was the same. Foreman Walter became angry and openly accused me of tying up the jury. The usual bickering followed, and later I went to the restroom. One of the men followed me in, closed the door, and said:

“You’re not dumb. You know Capone is a bad man. The papers, for years, have been full of his activities, and now that we have the chance, let s give him the limit, All you have to do Is to give the word, and it will all be over.”

I replied, “I won’t listen to that stuff, nor would I attempt to dictate to anyone how to vote.

At Wielding’s suggestion, the exhibits were handed around the table, leading to heated arguments. One juror made the point that Capone lost $17,500 gambling in one year and that this should offset income. I more or less agreed with this contention, whereupon one of the jurors who wanted to give Capone the limit left his chair at the opposite end of the table. He carried a handful of checks.

“This is enough evidence for me,” He shouted. He swished the checks in my face, loosening my spectacles. Silence followed this outbreak. After a long wait, the man apologized. I accepted his apology, saying, “Now, we all ought to cool off and take a rest.” We did this, and then Welding recommended that each of us have the floor and speak uninterrupted. We followed this system until we all had our say.

Some jurors talked about Capone‘s past, saying he was a leader among criminals. A few had good words to say about him. Here are some typical remarks:
Capone hired men to bump off people.”

“There’s no proof of that.”

“Capone has a big head.”

“Conditions made him that way.”

“He’s no good. The newspapers have told us he ran disorderly houses and gambling joints.”

“But he’s done good things, such as supporting soup kitchens and helping the poor.”

All this talk nettled one juror. “Let’s forget these things and go by the evidence,” He said.

It wasn’t that easy. On the whole, I should say that the jury was a timid one. The principal debaters were Larsen, Walter, one other man, and myself. Frankly, I like to debate. As a boy, I had belonged to a debating club. Also, my services on nine state juries had acquainted me with law and procedure. I was ready to debate any disputed point.

One of the jurors didn’t appreciate this. He didn’t like my attitude, which, I want to say, was inspired by a desire for fair play. This juror, who wanted to give Capone the limit, chided me thus:

“Why are you so narrow?” I replied, “I narrow! Simply because I held off signing a verdict to send a man to prison for long years until I was certain he was guilty as charged in this indictment.”
My fighting in the case drew other remarks.

“Why are you so Interested? ” I was asked. My answer was, “Fair play.” One juror asked, Are you associated with lawyers or newspaper?” Even though our arguments were sometimes frenzied, we never became rowdy. No juror ever called another juror by a derogatory name. Jurors would have a say and bow out, maybe angrily, maybe not. One, in particular, was the type who would start an argument and then turn away. He wanted to give but not take. When he was through and didn’t win his way, he’d go off to one side and sulk. Once he sat against a wall for a half hour while we finished something he had started.

After we had decided some of the differences, we settled down to business. Juror Maether reminded us that there were two Indictments. He suggested we consider them separately. We took up the first. As secretary, I read it. Juror Weidling asked for a straw vote. Juror Heinrichs objected, but immediately withdrew his objection. The first poll was five guilty, six not guilty, and one blank, the blank being mine. I changed it to not guilty, making the total seven not guilty and five guilty.

After a test vote, we showed a deadlock. Then we took up the second indictment, and after much discussion, we voted, and the count was six guilty, four not, one blank, and one ballot was missing. We voted again, and the result was seven guilty, four not guilty, and the missing ballot appeared blank.

We all realized we were getting nowhere, and a juror, not the one who had followed me into the restroom, invited me to one side. I told him our discussions must be in the open. He suggested that I ought to stick with his crowd because we belonged to the same fraternal organization and mentioned religion, nationality, and public opinion as reasons for cracking down on Capone. “After all, he’s only a dago,” this juror said.

I told this man those things were out of the question; that we must abide by the evidence as it applied to each count. I said I was Interested only in fair play for the do. Frankly, I felt that Capone was guilty of some of the charges, but I wanted to be sure. I wanted to know what I was doing and why I was doing it.

As time passed, we became hungry. It was now 8 o’clock, Saturday evening. The guards had not offered any food, even though we requested dinner. Some of us resented the idea of “being driven into line by starvation.” When it became apparent that we weren’t progressing much, we instructed the foreman to send word to the judge for advice on the matter of disagreement. Word came back that the Judge did not like this conflict, and we needed to keep working.

We were hungry, unable to get to any agreement, plus rising tempers and, we had another problem. We became afraid we might be locked up over Saturday night and Sunday. The rumor started that the judge might go home. We knew this would mean a weekend.

Naturally, we hurried. I suggested we take up each Count. We generally agreed that the government hadn’t put much emphasis on the counts in the first indictment, those covering the early years, and we finally voted not guilty.

I was not surprised the “give him the limit” faction voted for acquittal, for I expected they’d use their not guilty vote as a lever to pry a few of us holdouts into a guilty vote on the remaining counts. That’s what happened. One of the men said that since they had made an effort by voting not guilty on early ballots, we ought to make a concession and vote guilty on the others.

I guess I was about the last holdout, and sometime after 10 p.m., it was around eight hours after we had received the case, I said I was willing to vote guilty on several counts. But which counts? That meant more argument. Meantime, word came in that the judge was going home. We wanted to go too.

Finally, we agreed to the first three felony counts and two misdemeanor counts in each year and called it quits. I can’t explain it, but some had earlier polls disregarded one of these felony counts on which we voted guilty.

I believe the intent was to convict Capone on two, not three, felony counts, and two misdemeanors. (A felony carries a five- year prison sentence, a misdemeanor a one-year sentence in jail. Even with only two felony counts and two misdemeanors, Capone could have received the ten-year prison and one-year jail sentence.)

Foreman Walter drew up the verdict but did it incorrectly. He wrote in the five guilty verdicts in the first indictment, No. 22S52, on which we had found Capone not guilty. He should have written not guilty on the counts in that indictment and guilty on the five counts in the second, No. 23232. We had some not guilty counts in this second indictment also. The error was understandable since the charges were all in one. Our foreman had to rewrite the verdict. We signed the correct one. (I kept the faulty one and still have it.) We thought our troubles were over. But just as we were about to leave the room one of the jurors halted us.

“Here, wait a minute,” he said. “There are misdemeanor counts in this verdict. He’ll get only ten or twelve years. I want him to have more.”
Somebody told him to “forget it,” and another said, “Let’s get through,” but it took us more than five minutes to persuade this balky juror to let the verdict stand as it was. We had an anxious moment in the courtroom when the judged polled us after he read the verdict. When this juror was asked, “as this and is this your verdict?” I thought he’d say, “No!” We all breathed a sigh of releif when he didn’t say a word.

The judge commented that the verdict was “inconsistent, very inconsistent.” That worried us anew. A twenty-minute delay occurred while lawyers looked up the law to see it our verdict was legal. It was.

The reading of the verdict and tie polling of the jury ended our part in this most unusual case. We returned to our homes. I felt at the time and I still feel that I did my honest duty. I have no regrets, even If I believe that my part as a juror in the Capone case injured me financially. I was 49 years old. Today, at 54, I have made a comeback.

The Capone Veridct

The Capone Veridct

Following is the complete list of Capone jurors.

Nate C. Brown, 64, retired, Protestant, SL Charles

Burr Dugan, 54, farmer Catholic McClare

T. Heinrichs, 52, engineer. Protestant, Thornton

George H. Larsen, 41, breadmaker, Protestant, Thornton

Alfred. G. Maether 65, country store owner, Protestant, Prairie View.

W. F. McCormick, 58, receiving clerk. Catholic. Maywood

Arthur O. Prochno 49, insurance, Protestant, Edison Park

A. C. Smart, 43, painter, Protestant, Libertyville

John A. Walter, 54, abstracter. Protestant, Yorkville

Louis P. Weidling, 62, pointer. Protestant, Wilmington

LOUIS T. Noreforth, 64, retired, Protestant, Chicago

M. E. Merchant, 30, real estate broker. Catholic, Waukegan


The author consulted the following websites creating this article.

http://famous-trials.com/alcapone/1474-home

http://www.myalcaponemuseum.com/id146.htm

https://www.thedailybeast.com/the-bean-counter-who-put-al-capone-in-the-slammer

http://chicagocrimescenes.blogspot.com/2008/12/raiding-pastor-takes-on-capone.html


 

Gary Jenkins

Gary Jenkins

Gary Jenkins retired from the Kansas City Police Department in 1996 after a 25-year career. Gary attended the UMKC School of Law and graduated in 2000. He was admitted to the Missouri Bar and he continues to practice law today. He is a Board member of the Kansas City Police Pension System and The Jackson County Historical Society.
Gary Jenkins

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