To have a trial, the prosecution would need a victim, so with the assistance of States Attorney Courtney, U.S. Secretary of State Cordull Hull and the Justice Department, Jake Factor's deportation hearing was postponed since he would be needed as a witness for the prosecution. After the hearing was postponed, Factor's image in the press changed for the better, literally, overnight. Reporter Milton Mayer recalled being surprised to read in his paper that Factor was now "John Factor, wealthy speculator. "
"I kept filing the story as Jake the Barber but it kept coming out John Factor, wealthy speculator." Mayer went to see his editor who said that "States Attorney Courtney was up here and he's asked the papers to use the expression 'John Factor, wealthy speculator' so as not to prejudice prospective jurors in the Touhy trial."
Touhy's image in the newspapers suffered. "The stories in the Chicago papers irked me a little," he said. "The news stories now were calling me 'Black Roger' and 'Terrible Touhy.' I discovered that I was a machine gunner, a bomber, a probable murderer and a few other things about myself I didn't know." The trial was presided over by Michael Feinberg, who had earned a reputation as one of Chicago's least qualified judges. In 1932, Feinberg ran in the Republican primary against John Swansa for the position of chief judge, but the Chicago Bar Association refused to endorse him, stating "He has used his judicial position to further his campaign for state's attorney. In this he has shown a lack of appreciation of obligations of judicial office." The Chicago Tribune went a step further and flatly advised the public against voting for Feinberg at all.
After he lost the primary, Feinberg resigned from the Bar Association and ordered a special grand jury to look into fraud in the elections. The grand jury was disbanded by the Illinois Supreme Court who wrote that Feinberg had no such right to call the jury in the first place and that "he has demonstrated a lack of qualifications essential to the holding of judicial office."
In as far as the Touhy case was concerned Feinberg saw it as a waste of the taxpayers' money. Touhy was, in Feinberg's eyes, guilty of something; if it wasn't kidnapping John Factor, then it was something else. As Roger wrote, "Feinberg wanted a trial right now-or sooner, if possible. There would be no delays, which left us little time to locate witnesses or prepare a defense."
Several days before the trial began Touhy wrote that "an emissary came to me in the jail with a proposition. A message had been sent to him that [we] would go free for a pay-off of $25,000 to a politician. I said the hell with it. I was innocent and no politician was going to get fat off of me."
Years later, Roger told newsman Ray Brennan that the politician who wanted the kickback was actually Judge Feinberg, and that the reason he refused to pay was that his own sources in City Hall told him that Feinberg had already shaken down Jake Factor for $25,000 assuring him of a conviction.
Jake the Barber was the first witness called to the stand. One of the questions Crowley asked him was if he was allowed to use the bathroom while he was being held captive by Roger Touhy. Factor said that he was.
"And how many times," Crowley asked, "while you were in the basement, did you use the lavatory?"
"Very often, that night," Jake replied.
At that point, Chicken McFadden leaned over to Touhy and said in a voice loud enough for the jury to hear, "He's trying to get it across that Jake had the shit scared out of him."
Factor said that right after he was kidnapped, he was blindfolded and tied, brought to a house and walked down to a basement where he was tied to a wooden chair. He said he could sense "several men around me, a single light bulb burning over my head."
He said that the kidnappers demanded that he give them the name of a person he could trust as a contact and Factor said he suggested Joe Silvers or Sam Hare, owners of The Dells, where Factor had been gambling just before he was kidnapped.
But Joe Silvers would never get to testify and Factor probably knew that when he gave his name from the witness stand. Silvers was facing federal charges for mail robbery and decided to turn informant rather than do time. Perhaps fearing that he would tell what he knew about the Factor disappearance, Murray Humpreys' boys had followed Silvers down to Florida, kidnapped him, took him out on a boat, shot him and threw him overboard.
Silvers' partner in The Dells, Sam Hare, wouldn't fare much better. Somebody pulled up alongside his car as he was driving along on a Chicago highway and shot him.
Factor went on to say that right after he gave their names as contacts, he was left alone with two men whom he dubbed "the good man" and "the bad man. " The bad man was the one who slapped him around, robbed him of his rings and watch and threatened to cut off his ears "and send them to your wife as souvenirs."
However, when he complained that the blindfold around his head was too tight, Factor said that the "good man" removed it from his eyes, cut it into pieces and then pasted it back over his eyes with adhesive tape.
Factor said that while his eyes were uncovered he looked up and saw Roger Touhy whom he now identified as the "bad man."
Factor said that the next day he was told by the bad man "You're going for a ride," and assumed that meant he was going to be killed and wept for his life.
Factor claimed that at this point he was driven to another house. There he was forced to write a ransom note while someone held a machine gun to the back of his head. The ever astute Stewart asked Factor "How did you know it was a machine gun? Do you have eyes in the back of your head?"
Crowley objected to the question and the objection was upheld by Judge Feinberg. "Crowley objected to every question asked of Factor," Touhy said, "and Judge Feinberg upheld the prosecution most of the time."
Despite the judge's apparent predisposition toward the prosecution, Stewart's cross-examination of Factor was brutal and relentless. Though he managed to cause Factor to confuse his story, it was clear he was fighting an uphill battle.