After his return to prison, Roger’s faith that he would ever
see freedom again was badly shaken. However, in 1948 his lawyer, Howard Bryant,
brought another attorney named Robert B. Johnstone into the case. Johnstone was
a tough, forty-three-year-old, seldom-smiling, giant of a man who rarely spoke
unless spoken to.
“You had the impression,” Betty Brennan said “that he was
angry all the time...frankly he scared me a little bit. I mean he was such an
imposing man, so different from Mr. Touhy in every way. Later, I learned that
he was basically a shy, desper¬ately uncomfortable, gentle man.”
Roger wrote “Johnstone [was] a determined— sometimes
obstinate and irascible-—man...strong- willed about many things, both important
and triv-ial. I watched him as he strode the length of the long, narrow room
and climbed a short flight of steps at the end. He was a big man and he leaned
forward a little when he walked. His mop of black hair could have used some
grooming and his blue suit looked as if it might have been fitted to him by a
tailor with astigmatism. I had confidence in the guy. I knew somehow he would
do his damnest for me.”
Upon reviewing the case, what caught Johnstone’s attention
was the report prepared by Morrie Green, the private detective Touhy hired
after his conviction. Now, more than four years after his investigation ended,
Touhy and Johnstone sat in the attorney’s visiting room at Statesville going
over Morrie Green’s report.
With Green’s research in hand, Johnstone set out to free
Touhy legally. He began by cross-examining Touhy like the criminal trial lawyer
he was. He tried to trap him in a lie or a contradiction, but he couldn’t.
“Johnstone was no starry-eyed dreamer. At the end he gazed at me in silence for
two or three minutes and then burst forth with the hoarse voice he used at
times of stress or strong emotion. “I’m a damn fool Touhy, but I’ll take the
case if you want me to.”
There were some last minute warnings by Johnstone not to
expect any miracles and then he grabbed his briefcase and left. “I was back in
my cell before I realized that he hadn’t mentioned a fee. I would pay him what
I could, of course, but it was heartening to know that his first concern wasn’t
money.”
Robert Johnstone wasn’t one to show his emotion and he
wasn’t about to display them to Roger Touhy, but when he returned to his
office, he turned his case load over to other attorneys and told his secre¬tary
that his focus would be on Touhy. “Within a few minutes he kicked away a law
practice that had taken him years to build....He didn’t give a damn...he not
only wrecked his career but he also messed up his health working for me. What
can I say about him? Only that he is the best friend a con-vict ever had.”
It wasn’t all mutual admiration of course, because Roger
could be just as obstinate as Bob Johnstone. Worse yet, fourteen years in the
Statesville prison library had turned Touhy into a fairly competent jail-house
lawyer who was used to overriding and outshouting his legal counsel. As a
result he and Johnstone argued strategy often and loudly. “Johnstone [was] a
determined man,” Roger said, “sometimes obstinate and irascible, strong willed
about many things, both important and triv-ial.” After four months of working
together in close quarters in April of 1948, Johnstone told Roger, in his usual
brisk fashion, that it was time to bring Clara and the boys up from Florida.
“They should be with you at this time. I’ll make arrangements through your
sisters.”
It had been years since Roger had last seen his wife and
sons. Roger wrote:
...I couldn’t forget her last visit. It had been an ordeal
rather than the usual delight. She had worn a white hat and gloves and a dark
tailored suit, I remember...at that time, in 1938, I had been disconsolate. I
had figured that I couldn’t be a drag on Clara and our two sons for all of
their lives. So I had given her a direct order for the first time in our
marriage; take all the money you can raise and go to Florida. Change your name.
Take the kids with you, of course. Start them out in a new school down there
under new names. This is something you must do.
After that, Clara and the boys left for Delano, Florida
where they would live under the name of Turner.
Now, ten years later, as badly as Roger wanted to see Clara
and the boys he refused to see her. “I told him,” Touhy said, “he wouldn’t do
any such damn thing. Clara had managed to set up a life for herself and the
boys. Roger Jr. and Tommy were of college age. I wasn’t going to do anything to
screw up their future.”
Johnstone knew that Roger had misunderstood the situation
outside of Statesville. Clara and their sons had contacted Johnstone, not the
other way around. The boys, now in their twenties, wanted to see their father
and Clara desired to see her hus-band... convict or no convict. “They want to
show you,” Johnstone told Touhy “that they have faith in you. They have that
right.”
Roger refused to give in, but Johnstone set up the reunion
anyway. On April 22, 1948, Roger and Clara’s twenty-sixth wedding anniversary,
Clara and the boys came to Statesville.
My heart did a flip flop. My knees turned rubbery. There
they were—Clara and our two fine sons. They were looking up at me smiling...I
sat opposite to them, and I realized that I was wearing a silly grin. I was
never happier...it was ten years since I saw Clara. There were lines in her
face and gray in her hair, but she was pretty...I thought our sons were
handsome. That’s a father’s privilege.
They talked non-stop for an hour. Roger asked his sons in a
man-to-man fashion how it felt to visit their father in prison and then braced
himself for the worst. The boys said that their mother had explained the
situation as soon as they were old enough to understand. “[They] were never
ashamed,” Touhy wrote. “I felt grand as I walked through the yard back to my
cell. I was a family man again. I would ask for a spade or a trowel the next
day, by God, and go out and plant some flowers....”
A few days later, Roger sat across from Johnstone and tried
to thank him for setting up the visit, to try and tell him that he was right to
bring Clara and the boys back to Chicago, but Johnstone, not one for public
displays of emotion, brushed it aside and got down to business. Johnstone said
that the key to unlocking the case was to bring Isaac Costner over to Roger’s
side. He felt that after four-teen years in prison there was a chance that
Costner might cooperate.
Johnstone flew to Leavenworth Prison and with little
prompting, Costner told him everything he wanted to hear. Costner even signed
an affidavit that he had been persuaded to perjure himself at the second Factor
kidnapping trial in 1934, by Jake the Barber and Tubbo Gilbert—in effect the
prose¬cution. Armed with Costner’s testimony and combined with the outstanding
leg work done by Morrie Green, Johnstone filed for a hearing before the
fed¬eral court’s most unpredictable judge, John R Barnes, “the bearded dean of
the federal bench in the Northern District of Illinois.”