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 kidnapping 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 hospitalized 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.
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 himself 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 traffic 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 ransom or otherwise on the nights of June 30-July 1, 1933, but was taken as a result of his own convenience, 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 conviction 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 enforcement 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 surrenders 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 exclusively 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 ransom, 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 secretaries came out and asked for his autograph but he politely declined. "Oh please, not that, thank you, darling." In the coffee shop he remembered dropping 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, arguing 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 finished dinner when news came over the radio that a warrant had been issued for his arrest. Accompanied by Johnstone, he surrendered to federal 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 federal 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 something."
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 position, 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."
9. Schafer was still incarcerated at Stateville at the time, where he was a model prisoner and trustee.
10. Kator had died in Stateville in 1938 due to a long illness.