The Appeal

At age seventy-three, John Barnes had a reputation as a stern but fair jurist. He was tall, waspy, bearded and withdrawn, with a deep imposing voice to match.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' actual 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 produced 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 contempt 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 sensitive. 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 presiding judge, which as an attorney he was obligated to so do.