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.”