The Judge

At age seventy-three, John Barnes had a reputation as a stern but fair jurist. He wastall, waspy, bearded and withdrawn, with a deep imposing voice to match. It seemed like Barnes had been sent to the bench by Hollywood’s Central Casting. Barnes was appointed to the Federal bench on February 27, 1931 and gained national attention in March of 1936 when he held that Roosevelt’s National Recovery Act (NRA) was unconstitutional.
He was eventually overruled by the United States Supreme Court, but the move earned the judge a reputation in Washington and Chicago as an oddball who wouldn’t go along with the program.
Odd-ball or not, the Chicago Crime Commission called Barnes the most reliably honest judge in the state. That was a powerful statement. Barnes’ actu¬al personality was a far cry from his kindly old grandfather image. Robert Johnstone’s request for the FBI’s records on Roger Touhy was rejected by the FBI; a subpoena was issued to the FBI’s special agent in charge of the Chicago office, Robert McSwain. Called to the witness stand on June 2,1949, Barnes asked Agent McSwain, “Have you pro-duced the documents in response to the subpoena given you?”
“No, sir, I have not.”
“Will you produce them?”
“I must respectfully advise the court that under instruction to me by the Attorney General....”
Barnes interrupted, “Then I hold you in con-tempt of court, and order you be held in my jail until you or your superiors have reconsidered this stance. The bailiff will disarm and escort Special Agent McSwain from the court room.”
McSwain was released two days later when the Chief Judge held that an employee of the federal government could not be held liable for following orders of that government in relation to its refusal to release documents and data it considered sensi-tive. It turned out that the only thing that the FBI documents would have revealed was that back in 1933, Special Agent Melvin Purvis had been aware that the States Attorney’s office had Roger Touhy’s lawyer’s phone bugged during both Factor kidnap trials: information that he never revealed to the pre-siding judge, which as an attorney he was obligated to so do.
When the hearings started, Johnstone fired off the first volley by getting a subpoena for all of the States Attorney’s office records on the Factor case, but to his disappointment, the records didn’t include a statement that Factor had given in which he said he could not identify any of his kidnappers. Also missing from the files were copies of the transcripts of Touhy’s lawyer’s conversations that were illegally recorded by Tubbo Gilbert during the Hamm and Factor kidnapping trials.
Johnstone called fifty-seven witnesses, including private detective Morrie Green, and Walter Miller and John Maloney—the two Chicago policemen assigned to protect Factor during the two kidnap¬ping trials. Gus Schafer9 was summoned, Albert Kator’s10 testimony was read. Basil Banghart gave his version of the events as did Isaac Costner.
Buck Henrichsen, Factor’s probable kidnapper, couldn’t be called to testify. He had died in 1943 while Touhy was on the loose from Stateville prison. A heart attack killed him just two hours before Touhy and Banghart, the men he had sent to jail, were recaptured by the FBI. He was forty-three years old. His family blamed the stress of Touhy’s escape and the lack of protection offered to him by the Cook County States Attorney’s office for his death.
Robert Johnstone was an intense man and the case was all consuming for him. Soon his health and mental state had deteriorated to the point where it concerned Touhy. “He was as tense as a spring that had been coiled to the breaking point. He was edgy, so full of the Touhy case and so outraged by the injustice that he seemed ready to explode at any time. I tried to warn him to relax a little. The only result was that he lost his temper.”
One day, during a break in the hearing, Johnstone collapsed in the hall and had to be hospi-talized for a nervous condition. His condition delayed Roger’s case by eight months. The initial delay was followed by almost two years of legal maneuvering by the state. Finally, in the spring of 1954, Barnes heard the last testimony in the case and drew it to a close.
9. Schafer was still incarcerated at Stateville at the time, where he was a model prisoner and trustee.
10. Kator had died in Stateville under questionable circumstances in 1938.

On August 9, 1954, a cool summer day, Judge Barnes ordered Roger brought before the court to hear a summary of his decision. The decision was 1,556 pages long and included 216 pages of notes. Roger’s wife Clara sat with a press corps that had suddenly decided to take up Roger’s cause to hear the summary. She watched Roger being escorted into the courtroom in leg irons and handcuffs and heard Johnstone remark “You know Rog, I don’t think you’ll be wearing those things again.”
Barnes entered the courtroom and seated him-self behind the elevated bench and stared out over the room. “In his own dignified way,” Roger noted, “he had a fine sense of timing and dramatics.”
Finally, Barnes spoke. Roger remembered later that he was listening so intently to the judge’s every word that he had blocked out the sounds of the traf-fic on the street below. He started his summary by reading that he had reached the conclusions that Roger Touhy had not kidnapped John Factor but rather that “John Factor was not kidnapped for ran-som or otherwise on the nights of June 30-July 1, 1933, but was taken as a result of his own conve-nience, that John Factor’s disappearance was a hoax meant only to forestall his extradition to Europe to avoid prosecution there.”
Furthermore, Barnes ruled that Roger’s convic-tion was procured on perjured testimony with the full knowledge of Captain Daniel Gilbert and States Attorney Courtney. He did spare Crowley, saying that he believed he had presented the evidence without knowing it was perjured.
Barnes also found that Gilbert’s power in the office far exceeded that of any other law enforce-ment official before or since. He also found that Gilbert’s boss Thomas Courtney was to be held responsible for Gilbert’s actions.
“To put it mildly, Touhy was not an acceptable person to Captain Gilbert,” Barnes read, “Touhy and the opposition with which he was identified were obstacles in the drive of the politico-criminal Capone syndicate to control and dominate the labor unions during the period right after the Factor affair. The criminal syndicate could not operate without the approval of the prosecutor’s office which at that time was controlled by Courtney and Gilbert. They did continue to operate and to thrive without interference from Courtney and Gilbert. That the arrangement between Gilbert and the syndicate was closer than a mere tolerance, is evident from his function as a go-between for Horan and Wallace sur-renders and from the fact that his men were put in key positions in the Capone dominated unions.”
He went on to say that “the Department of Justice showed an astounding disregard for Touhy’s rights and indulged in practices which cannot be condoned.”
Barnes further ruled that Touhy “was deprived of the effective assistance of council devoted exclusive¬ly to the protection of his interest and was compelled against his will to accept the services of a counsel who was compelled to serve adverse interests.”
Barnes also said that the Illinois statute under which Roger was sentenced to an additional 100 years for aiding Eddie Darlak’s escape back in 1942 was unconstitutional and that Touhy’s sentence under that statute was void as a result. He ended the hearing by pointing out that Touhy had never been connected to a capital crime, nor was he listed with the Chicago Crime Commission. From there Barnes went on to broadside the FBI, the Chicago Police, the Cook County States Attorney’s Office and the syndicate.
Stroking his beard, Barnes finished reading his decision in slow, flat midwestern tones, “This court finds that John Factor was not kidnapped for ran-som, or otherwise, on the night of June 30 or July 1st 1933, though he was taken as a result of his own connivance....This court further finds that Roger Touhy did not kidnap John Factor and in fact had no part in the alleged kidnapping of John Factor.”
When Roger heard Barnes read the words “the relator, Roger Touhy, should forthwith be discharged from custody” he stood bolt upright, trembling and wept.
An army of reporters dashed from the courtroom to the line of wooden phone booths that lined the lobby wall while dozens of people circled Roger to congratulate him as Johnstone tried to pull him from his seat.
Roger walked from the courtroom a free man. Bailiffs, sheriffs’ deputies, courtroom employees and passersby crowded around him and shook his hand and slapped his back as he, Clara and Johnstone walked downstairs to the coffee shop. A few secre-taries came out and asked for his autograph but he politely declined. “Oh please, not that, thank you, darling.” In the coffee shop he remembered drop¬ping a sugar bowl. He wrote, “The bowl broke and sugar cubes went all over the table. A waitress cleaned up the mess, gave me a smile and said, ‘Don’t worry Mr. Touhy, you can smash every sugar bowl in the place and everybody will understand.’”
As Touhy’s luck would have it, that same week that he was released, Chicago hosted the National Conference of State Justices who had gathered in the Blackstone Hotel to discuss the encroaching power of the federal courts into their jurisdiction.
Barnes’ ruling in the Touhy case was soundly condemned by these judges as a prime example of what they were talking about. It was their opinion that Federal Judge Barnes had overstepped his boundaries by hearing the Touhy case. They felt the issue should have remained on a state level. The Illinois State Attorney General’s office agreed and filed a motion to have Roger returned to jail, argu-ing that Roger never challenged the aiding and abetting conviction in court and therefore accepted its terms. Johnstone would later argue that, at that point in 1943 when the aiding and abetting charge was added, Roger was financially strapped and unable to fight the case any farther.
It didn’t matter, in the end the hearing judge held with the State of Illinois and issued a seizure writ directing the United States Marshal to arrest Touhy on sight.
A young reporter tracked Judge Barnes down to his farm and told him that his opinion on the Touhy case had been “reversed.”
“Well, they can’t do that, young man. They can’t reverse my decision without a hearing.”
The reporter, not really clear on the difference said, “Yeah, well, they did.”
Word came to Roger Touhy while he was fishing at a resort in the Fox Lake area. He had just fin¬ished dinner when news came over the radio that a warrant had been issued for his arrest. Accompanied by Johnstone, he surrendered to fed¬eral marshals on a dark, rain filled day, just before 4:00 P.M. He had tasted freedom for less than forty- eight hours. He was rather stoic about the entire thing, almost as though he had come to expect the worst possible event as inevitable. “The fickle finger of fate,” he said, “was going to give me another jab between the ribs.”
He was taken from the Cook County jail at ten the next morning in a five-car motorcade consisting of fifteen heavily armed Chicago detectives and fed-eral marshals. Officially they said they weren’t expecting any trouble but had taken along the extra four cars “in case one of them breaks down or some-thing.”
Warden Ragen met Touhy at the Statesville Prison gates and said “Well, you’re back.”
Touhy smiled and said  “Yeah. Not very long out.” Several hours later he was back to his old posi-tion, sweeping the jailhouse hallways as though nothing had happened.
Clara Touhy, her hair gone white, her face badly lined with age and worry, seemed to be in a state of shock over her husband’s return to jail. “This is,” she said, “a nightmare...this is all just a nightmare.”
After three years of exhausting legal maneuvering, in late 1957 Roger Touhy and Bob Johnstone stood before the State of Illinois Pardon and Parole Board and Roger told his story.
When he was finished speaking, Benjamin Adamowski, the States Attorney for Cook County who had successfully tossed him back into Stateville on the aiding and abetting technicality, strode into the room and asked to be heard.
“My hopes sank,” Touhy said, “...his words could condemn me.”
But what Adamowski said surprised everyone. “My office has no objection to the release from prison of Mr. fact, I would urge it.”
Eventually, and again with Robert Johnstone’s help, Roger’s 199-year term was reduced to three years on institutional parole, reducing his kidnap-ping sentence to six months. After that, he was to begin the commuted jail break sentence which was to expire April 27, 1961.
On November 13, 1959, Roger Touhy, a greying man of sixty-one, was paroled from prison after
serving twenty-five years, nine months and thirteen days for a crime of which he was innocent. His health was gone and so was his money. He had been bled dry by the legal fees incurred from his seven-teen denied petitions for freedom, which included four denials by the United States Supreme Court.
As he walked from the prison for the last time, he was draped in a gray overcoat that had been pur-chased for him in 1958 for his court appearances and a blue suit made in the prison tailor shop. He had the $600 which had remained on deposit in the prison before his 1942 escape.
Clara waited at the gates for him. They hugged for several minutes and whispered to each other through tears, and then walked, hand in hand, out of the prison. Bent and limping slightly, Touhy gave his first and last press conference on television as well as talking to print reporters at the Stateville guard house. He told the reporters that there was a gag order imposed on him. He disagreed with the order “since they didn’t put one on Factor” but told reporters that he would have to be careful which questions he answered nonetheless.
There was an awkward silence for a moment which Roger broke. Referring to his first release sev-eral years before he said, “Any you guys get the feel-ing we’ve been through this before?”
That loosened things up.
He looked up at the grey skies and held his hand out to feel the mixture of light rain and snow falling around him.
“You know, it’s funny. It was the same kind of day when I entered this place way back then.”
“What are you going to do now, Mr. Touhy?” “Please call me Roger...I’ve invented a lure for fresh water fishing; I’m going to manufacture it.”
 “Ever manufacture anything before, Rog?” Touhy’s eyes lit up. “Beer!”
“Do you hold any grudges, Mr. Touhy?”
“No. They have to live with their consciences.” “Who are they? Who do you mean by they?” Johnstone leaned forward and whispered for his client not to reply.
“Roger, are you looking for Factor?”
“No. I’m not looking for anyone. I’m just going to take it easy for a while and see my wife and my two sons.”
“Why did you lead the prison breakout?”
“I didn’t plan it, I didn’t lead it, I just went along.” “Did you learn anything in prison?”
“Nope. Not a goddamn thing.”
Johnstone broke in “Well you learned patience, Roger. ”
Always a proud man, Roger fought back tears and said with a trembling chin, “You know, I never gave up hope that one day I would be standing here a free man.”
He said he planned to move to Florida with his sons Roger Jr. and Tommy who were now in their mid-thirties with families of their own.
For the time being, he would live with his sister Ethel11, who had made more than two thousand vis-its to her brother over the past quarter of a century and had appeared at seemingly endless hearings. During his internment she had worked her way, alone for the most part, through a maze of legal avenues in numerous attempts to free her brother from prison.
As he was driven back to Chicago in his nephew’s cramped sports car, he thumbed through his per-sonal belongings. There were two pictures drawn by his sons. He chuckled when he came across his 1942
draft card and a tiny black notebook with entries going back to 1919 when he was in the Navy. “I kept my telephone numbers and addresses of all my beer stops in code all through Prohibition. Nobody knew the code but me.”
His color was pale and his hands shook as he thumbed through the book. Like his brothers, Roger suffered from the ravages of Parkinson’s Disease, a degenerative disease of the nervous system then called “the shaking palsy.”
As ordered, Roger went to the parole office in Chicago where he was given the details of the gag order he was under. Conversations with the media about the case were absolutely forbidden. An hour later, the ex-prisoner was dining on brisket of beef and hash brown potatoes in a west side restaurant with Ethel Alesia his sister. “Delicious, delicious” he muttered over and over again.
He would be dead within forty-nine hours.