“I’d give the devil benefit of law, for my own safety’s sake.”
- St. Thomas More, A Man For All Seasons
Celebrity, like its darker cousin notoriety, lands on those who have assumed larger-than-life dimensions in the public’s imagination. We fancy movie stars as stronger or more virile or more charming than the rest of us, supermodels as more poised, athletes more confident. And when it comes to our most notorious criminals, particularly those whose past exploits have taken on the patina of legend, we envision them as criminal masterminds one step ahead of the law, caught only by a twist of fate or the karmic principle that what goes around must eventually come around. Had Dillinger not been betrayed by the Lady in Red, or Jesse James shot in the back by the coward Robert Ford, their mythic adventures might well have continued into old age.
And then there is Al Capone, still the most prominent gangster of them all nearly a century after his violent reign came to an end. The original “Scarface” continues to captivate the public—best-selling books are written about him, and his name appears regularly on television and in song; a Capone-themed restaurant chain is spreading in Florida.
Most people know that the violent Capone was taken down by that least likely of weapons—a group of accountants focused on his tax returns. Far fewer are aware that his career-ending federal prison sentence was preceded by a 10-month stint in a Philadelphia prison for toting an illegal handgun. Those who do know about the time Capone spent in the City of Brotherly Love probably accept the commonly held myth that the mob boss, feeling the heat from the St. Valentine’s Day Massacre he had engineered on the North Side of Chicago, set up his own arrest to remove himself from the public eye and the possibility of retaliation from other mobsters.
The Chicago press had seized on this idea shortly after his Philadelphia arrest: surely a recognizable figure such as Capone wouldn’t have been foolish enough to be walking around with a loaded gun. Such a notion—that Al Capone was too smart or too connected or just too famous to get pinched on such a mundane charge—continues to find considerable support in modern biographies (though Jonathan Eig in Get Capone ridicules the idea that he would ever plan his own incarceration).
Twenty-five years ago, a friend, knowing of my interest in offbeat crime news, presented me with a copy of the actual court file of Capone’s gun case, which I stashed in the basement and forgot. Recently I dug it out, dusted it off and read it. It puts to rest the fairytale that he chose to “set himself up” for a stay in a Philadelphia jail. But more significant, the documents reflect a pervasive unfairness that would embarrass even the strongest advocate of law and order. Decades later, the revealed story stands as a reminder of the maxim attributed to Dostoevsky: that a society should be judged not by the way it treats its outstanding citizens, but by the way it treats its criminals.
The notion that Capone planned his own arrest and prison respite had not sprung from whole cloth, but from two truths: that he was in constant physical danger, and that warier members of his criminal fraternity were tiring of his public antics. Certainly Capone had reason to fear for his life. He was the likely suspect in the slaughter of the Bugs Moran gang on Feb. 14, 1929, and he had just arrived in Philadelphia from a first-ever national meeting of American crime bosses in Atlantic City. The “Atlantic City Conference,” as it came to be known, lasted from May 13-16, 1929, and assembled the leaders of virtually every faction of organized crime from Kansas City to New England in an attempt to form a national crime syndicate. Meyer Lansky, Lucky Luciano, Albert Anastasia, Dutch Schultz and dozens of others were in attendance, but the featured guest was no doubt Capone—the Atlantic City Daily Press noted that he held “the welcome key to Atlantic City with full privilege to enjoy himself and partake of the resort's famous hospitality like any distinguished visitor." It was exactly the sort of attention Capone enjoyed and that his fellow criminal travelers loathed—many of the reporters covering the “conference” quoted him at length, since most of the other attendees avoided the press entirely. Through his words and deeds, Capone had brought considerable unwanted exposure to organized crime, prompting the interest of the federal government and the enmity of his peers.
Capone’s plan was to return to Chicago after the conference ended, and to do so, he had to catch the train in North Philadelphia. Reaching the city with hours to kill until the next train, Capone and his bodyguard decided to take in a movie at the Stanley Theatre at 19th and Market streets. Both men were arrested as the movie let out, frisked and found to be in possession of loaded revolvers; but beyond that there is very little consensus about what actually happened.
How did the police know that Capone was in the Stanley Theatre? Reported versions differed. The arrest was on the front page of four Philadelphia newspapers: The Inquirer noted that the two detectives, “who were standing by looking over the customers, stiffened like pointer dogs” when they happened to spot Capone. The Bulletin told a similar story, that the officers “were on the lookout for pickpockets when they spotted the portly ‘beer baron,’ whom they recognized by two livid scars on his cheek.” The Public-Ledger told of a more coincidental confrontation: the two detectives were “strolling” down Market Street when they saw Capone, who they had heard was recently in Atlantic City, parading down the boardwalk “unmolested by shore police.” But The Record scooped the other newspapers, and with a story that made considerably more sense than a random encounter with the most famous gangster in the world. A Detective-Inspector Connelly had sent the detectives after Capone based on a “tip” he had received from Atlantic City. “I ordered them brought in just like I order every character warranting suspicion brought to headquarters,” the detective-inspector said.
More than a decade would pass until Casablanca popularized the phrase “round up the usual suspects,” but the Philadelphia police department’s approach to law enforcement was far more comprehensive than that of Captain Renault, who at least waited until a crime was committed before ordering a roundup. And far more unconstitutional as well: as far as Philadelphia law enforcement was concerned, Capone was a criminal, and thus not entitled to the protections of the Bill of Rights. The drafters of the Fourth Amendment, however, had taken a different approach, as best articulated by Justice Jackson: “(T)he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.” Even the Capones of the world had the right to walk down Market Street free of harassment.
But Capone wasn’t simply rounded up. The police, having been ordered to bring him to headquarters, took the logical precaution of searching him first, thus finding the evidence that would keep him in custody. Had Capone acted in a suspicious manner, rather than simply being Al Capone, such a search would have been constitutional. Forty years later, the practice would be approved by the United States Supreme Court and enter the lexicon as “stop-and-frisk.” Today the tactic is often condemned as a thinly disguised legal excuse for excessive police intervention, overwhelmingly applied in poor communities of color; but even in 1929 the arrest and search of Capone could not have passed constitutional muster.
It is likely the Philadelphia district attorney knew this. His defense of the behavior of the detectives, written as an answer to a series of complaints by Capone’s attorneys, was purposely vague: the detectives were surprised to see the “national notorious character,” and “when going up to [Capone and his bodyguard] they found both men carrying concealed upon their person deadly weapons.” But an illegal search and seizure was only the beginning of Capone’s troubles; he was about to experience the wrath of a lawless justice system.
Not everyone charged with a crime had the right to an attorney in 1929. It would be years until Gideon v. Wainwright gave citizens a lawyer if they could not afford one, and even then the right applied only for felonies. Capone was charged with a misdemeanor: carrying a concealed deadly weapon with the intent to “unlawfully and maliciously” do injury to some other person. But Capone could afford his own representation; and at 11 p.m. on the night of his arrest, not one but two high-profile lawyers, both associated with Philadelphia congressman Benjamin Golder (who took over the representation himself after Capone was sentenced), went to City Hall on his behalf. They were not treated in the manner to which they had become accustomed.
Lemuel Schofield, the director of public safety and later the head of the Immigration and Naturalization Service, was the top law enforcement officer in the city in 1929. Although it was well past 11 p.m., he happened to be in City Hall and met with the lawyers himself. According to sworn affidavits by both attorneys, though, he was less than forthcoming. First he denied that Capone would have any bail hearing at all that night: your client is a murderer and a menace to society, and it’s a pity the “son of a bitch” wasn’t shot, he said by way of explanation. The conversation went downhill from there.
Where was Capone? Schofield purported not to know. “What police district was he arrested in,” the director asked. When told 11th and Winter streets, he suggested that the attorneys go there. “Well now, see here, we don’t want to go on any wild goose chases,” one of the lawyers responded. “If I were in your place and you were in mine, I would not treat a member of the bar that way.” Perhaps it was this call for brotherhood among lawyers that reminded Schofield where his prize catch actually was: “You had better go to the 20th and Buttonwood Street Station House,” he said. The attorneys got there a few minutes before midnight, but it was too late: the hearing had already taken place, and bail had been set at $35,000 for each man, more than 10 times the typical amount of bail for the crime charged and more than half a million dollars in today’s currency. Capone was traveling with little cash, and remained in custody.
The truth about Capone’s first night in a Philadelphia jail cell did not emerge for more than a month, when his lawyers went to court to challenge his conviction. For starters, it turned out that his lawyers hadn’t been late for the bail hearing by accident; rather, they had been intentionally deceived about the whereabouts of their client and the location of the hearing. Indeed, the denial of Capone’s constitutional rights that night turned out to be a carefully choreographed plan, orchestrated by the director of public safety himself and a magistrate he hand-picked to ensure that the most famous gangster in the world could not leave Philadelphia.
The ruse started in City Hall, when Edward Carney, the magistrate at the Ninth Police District at 20th and Buttonwood, was summoned to the director’s office. The director told him that Capone had been arrested, and that they wanted to give him a bail hearing as quickly as possible. He suggested that Carney set Capone’s bail at $25,000, but the magistrate sensed the import of the moment. “Why not $35,000,” he said, and just that easily the bail decision was made. The Philadelphia Inquirer later called the amount “staggering.”
As Carney left City Hall to go to the police district, he happened to run into one of Capone’s lawyers, who told him that he was representing the famous gangster and asked if the magistrate knew anything about it. Carney denied any knowledge of the case and rushed off, but he was not nearly as reticent when he confronted Capone at the bail hearing.
“I told him…I was going to do all I could to rid the city of ‘you and your type,’” Carney recalled under oath a month later. “You are responsible for a good many murders in the country. Some district attorneys and some police officials are afraid of you in some other cities, but they are not afraid of you in Philadelphia, nor am I afraid of you.”
Carney went on. Capone’s reputation had preceded him, but not evidence of any wrongdoing:
Q: Have you any proof that Mr. Capone is a murderer?
A: Only the every-day writings in the newspapers, or general information as it appears, especially his home town newspapers.
Q: Did you have any information of your own as to that fact?
A: None.
Q: Do you have any information of Mr. Capone as to his general character?
A: Only what I just stated, from the newspapers and from gossip.
While $35,000 bail was exorbitant in 1929, Capone was a man of considerable means and could afford even that amount. Indeed, his lawyers were prepared for exactly this eventuality, and had brought a representative of the National Surety Company with them to post the bail. But the director was having none of it: “If you succeed in entering bail anywhere,” he said, “it will take me about 15 hours to examine the authority of the agent to enter the bail, and whether or not the National Surety Company is able to enter that amount.” Fifteen hours proved just enough time to turn Capone’s arrest into a conviction.
Rebuffed in their attempts to attend their client’s bail hearing, and then denied the opportunity to post bail for him, the attorneys had one final request before the night ended: might they at least meet with their client? The Director suggested that they remain at the police station, and he would let them know. At 1:30 a..m the attorneys learned that permission to see their client had been refused. They would not have to wait long to see Capone, however; his trial was scheduled to take place the next day.
Philadelphia’s City Hall is a sprawling structure in the dead center of town, the largest municipal building in the country and the tallest masonry building in the world. Courtroom 650 looks today just as it looked then, an ornate and spacious chamber with a high arched ceiling and portraits of retired judges on the walls. The space comfortably seats 100, but word had gotten out about the notorious gangster on trial, and that morning the courtroom was “crowded almost to the point of suffocation,” according to one of the lawyers. Many who had made it into the room were reading newspapers with Capone’s face and labels such as “notorious Chicago gang chief” and “underworld leader” on the front page. A large crowd had gathered in the hallway outside the courtroom, and repeatedly banged on the closed door in an attempt to gain admission.
Capone and his bodyguard were escorted to the defense table by a phalanx of uniformed policemen and detectives, while those in the courtroom pointed to him and said “there’s the gunman,” there’s “Scarface Al,” “that’s the murderer.” “The very air was charged with prejudice and threats against the defendants,” wrote that same lawyer a month later in recapping the conditions that morning. This occurred in front of the potential jurors, all of whom had been assembled in the courtroom and were mingling with the excessive law enforcement presence.
Presiding was the Honorable John E. Walsh, a former law partner of the prosecuting attorney. This did not bode well for Capone. His lawyers pointed out that they were unable to prepare a defense in such a short period of time, and in fact had not even spoken with their clients; but the judge was unmoved. “They are no good,” he said, “and they will receive no consideration at my hands.”
It was Friday—would the judge consider starting the trial on Monday if the defense agreed that Capone would stay in custody?
“It makes no difference,” the judge said. “They are going to be tried.”
Might they at least speak to their clients before the trial began? Even in Philadelphia in 1929 this would have been a hard request to deny, but Judge John E. Walsh denied it. “That is a matter for the District Attorney to decide.” When the lawyers suggested that it was in fact his job to make such a decision, Judge Walsh allowed that he would give them until 12 o’clock “if the District Attorney agreed.” It was 11:30. Here is how one of the lawyers described what happened next:
When the short recess was announced, the defendants were again surrounded by uniformed officers, county detectives, city detectives, and court officers and marched from the court room in the presence of the jury. Every action on the part of the court officers and the uniformed policemen and detectives was such as to indicate to the jury that the defendants, who were unarmed, were dangerous and had to be guarded by a great number of men.
The lawyers met with their clients in a small room in the District Attorney’s office, in the presence of two detectives. As noon approached, one of the detectives interrupted the conversation to say, “We have you in a corner. You haven’t a chance. You better plead guilty.”
When they re-entered the courtroom, ushered back in the same way they had left, Capone’s lawyer spoke again with the judge: “Judge, this is an outrage! These men are being denied every constitutional right to which they are entitled. I cannot understand that you would make yourself a party to such a proceeding. These men have an honest bona fide defense.”
Lawyers tasked with representing clients often make such claims, particularly when seeking a continuance to present a defense. Had Al Capone been arrested in Philadelphia today in possession of a loaded revolver, he would in fact have no defense other than to deny that he had the gun at all. The law in 1929 was quite different, however. The crime he was charged with, “Carrying Concealed Deadly Weapon,” contained an additional clause: Capone had to possess the weapon “with the intent therewith unlawfully and maliciously to do injury to some other person.” He had often claimed to practically anyone who would listen that his life was in constant danger and that he had been shot at, and certainly the fact that he travelled with a bodyguard supported his assertion. Still the judge was unyielding:
“I don’t care what their defense is,” he said. “They are guilty and they are going to get the limit.”
“It is certainly not your practice to pre-determine the guilt of a defendant in a criminal case,”said Capone’s lawyer. “I am only asking that these men be given a fair opportunity to prove their case. They were certainly entitled to a fair trial, and you know, in the presence of this mob, with the newspaper agitation, the presence of the Director of Public Safety, all the assistant district attorneys, and all these policemen, that these men cannot receive a fair trial today.”
“I told you to go to trial, now go to trial!” the judge retorted. “This case will be tried now, defense or no defense.”
Anyone who has stood before a fulminating judge, and surely Capone’s lawyers had, understood this to be the final word in the exchange. There would be no continuance, no witnesses for the defense, a hostile judge, and a jury well-informed of Capone’s reputation. Even then the lawyers struggled to decide how to proceed, but finally the decision was made that the men should plead guilty. The judge, good to his word, immediately sentenced both men to the maximum one year incarceration. There was nothing left to do but appeal.
A month and a half later, the lawyers were back in Courtroom 650 seeking a new, and fair, trial for Al Capone. He was now represented by a congressman from Philadelphia, Benjamin Golder, who had specifically requested that his client be brought from jail to attend the hearing; but the judge, having seen first hand the havoc created by Capone’s presence in a courtroom, denied the request. Golder took an exception to the judge’s ruling, to which the judge responded, “I grant you that exception, all the exceptions you want.” It didn’t take a fortune teller to portend that things might not go Capone’s way.
The hearing itself was remarkable for its honesty. Magistrate Carney testified and pulled no punches, going so far as to say that he took the actions he took “to railroad them.” This comment irritated the judge, who interrupted Carney to ask him why he was “volunteering” information. Carney’s apologetic response was that he didn’t “mean to be insulting.”
As for the Honorable John E. Walsh, he defended his behavior as well. When confronted with the affidavits the two defense attorneys had written about their representation of Capone, Walsh agreed that their narratives were accurate—except for the accusation that he had prejudged the case: “That I cannot stand. All the other parts I will agree are true. What about it?”
The district attorney was aghast at what his former law partner had just conceded:
“But Your Honor cannot admit those facts to be true? He wants you to include the fact that everybody in the courtroom was pointing a finger at the defendant, calling him “murderer.” Your Honor certainly does not admit that to be true. This courtroom was regularly and properly conducted, and I heard nothing here detrimental to this defendant, nor was he accorded any other insults from the audience or anybody else that anybody could complain of. Certainly Your Honor does not admit those facts contained in the affidavit?
Judge Walsh did not back away from his admission; rather, he saw nothing wrong with the way he had conducted the proceedings. “The Court still feels in its conscience that it made no error,” he declared.
Capone’s attorneys attempted some further appeals, but no higher court ever addressed the circumstances of the arrest or guilty plea. It was reported that he closely followed his own coverage in the newspapers, and that references to himself as a “killer” would “arouse his ire.” Although he was transferred to several different prisons to serve his sentence, his time passed without significant consequence. He suffered tonsillitis, he pitched for the prison baseball team, he minded his own business, and on March 17, 1930 he was released from custody. He had served exactly 10 months in jail, saving himself two months incarceration by good behavior.
Capone was in a hurry to leave Philadelphia, and a few days after his release he was back in Chicago. He told the press he wasn’t staying, however: “I need the sunshine for a month or two. I shall take a little trip to Florida after I get things straightened out here. You see, I haven’t had much sunshine for the last 10 months.” This prompted the governor of Florida—who quite clearly had been paying attention to developments in Philadelphia—to telegraph all 67 sheriffs in the state that Capone was to be arrested and escorted to the state’s border should he attempt to return to his residence. But Capone’s lawyers had been paying attention as well. They sent an immediate telegram to the governor:
We would respectfully request you to advise us under and by what authority you or the sheriffs of the state may seize and banish from this state a citizen of the United States who is not charged with any crime…Is constitutional government still in existence in Florida, and if it is, are you cognizant of the oath you have taken to support, protect and defend the constitutions of the United States and of Florida? Lawlessness is no way to combat lawlessness.
A federal judge agreed with his lawyers, and imposed a restraining order stopping the sheriffs from “transporting, banishing or expelling” Capone from Florida without the authority of the law. This did not stop the Miami police from arresting him four times for vagrancy, a law that had been rewritten to allow anyone known or suspected of being a “crook [or] gangster” to be arrested on sight. Capone was harassed in this way until, a year and a half after leaving a Philadelphia jail, he was convicted of income tax evasion and went to federal prison. He eventually succumbed to syphilis, and died 71 years ago at the age of 48. In the end, Capone’s notoriety and larger-than-life status proved not to be his salvation, but his undoing.
And of course, those men who besieged and incarcerated Capone—Deputy-Inspector Connelly, Magistrate Carney, his prosecutors, Judge John E. Walsh—are dead as well, as is the Florida governor. They rounded him up, denied him bail, pursued his prosecution in a forum that resembled less an American courtroom than a star chamber; and then barred him from entering a state because of who he was. Not exactly what the Founding Fathers had in mind.
Almost 90 years later, two lessons are evident from the Philadelphia experience. The first—that we can bring down even the most powerful racketeer if we simply deprive him of his constitutional rights—is alive and well. In the past year a former sheriff from Arizona, who had gained a certain amount of celebrity by conducting “sweeps” of random cars to find illegal immigrants, and was then found in contempt for his refusal to stop racial profiling of Latinos, has been pardoned by the president. The Attorney General of the United States has endorsed an aggressive stop-and-frisk policy that only five years ago a federal judge declared unconstitutional by endorsing this quote: “The idea of universal suspicion without individual evidence is what Americans find abhorrent.” And the President has advocated the rough treatment of those accused of crime (“Please don’t be too nice”), condemned legal immigration to the United States from “shithole countries,” and declared an Indiana-born federal judge unfair because he was a “Mexican.” It is the world we now live in, and it is not so very far from 1929 as we might think. But the second lesson from the Capone case is more enduring; and justice, always a slow learner, would be well served to remember it: lawlessness is no way to combat lawlessness.
Marc Bookman is co-Director of the Atlantic Center for Capital Representation, a nonprofit specializing in death penalty cases.
