At age seventy-three, John Barnes had a reputation as a
stern but fair jurist. He wastall, waspy, bearded and withdrawn, with a deep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’ actu¬al 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 pro-duced 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 con-tempt 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 sensi-tive. 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 pre-siding judge, which as an attorney he was
obligated to so do.
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 kidnap¬ping 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 hospi-talized 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.
9. Schafer was still incarcerated at Stateville at the time,
where he was a model prisoner and trustee.
10. Kator had died in Stateville under questionable
circumstances in 1938.
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 him-self 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 traf-fic 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 ran-som or otherwise
on the nights of June 30-July 1, 1933, but was taken as a result of his own
conve-nience, 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 convic-tion 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 enforce-ment 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 sur-renders 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 exclusive¬ly 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 ran-som, 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 secre-taries came out and asked for his
autograph but he politely declined. “Oh please, not that, thank you, darling.”
In the coffee shop he remembered drop¬ping 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, argu-ing 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 fin¬ished dinner when news came over the radio
that a warrant had been issued for his arrest. Accompanied by Johnstone, he
surrendered to fed¬eral 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 fed-eral 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 some-thing.”
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 posi-tion, 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.”
After three years of exhausting legal maneuvering, in late
1957 Roger Touhy and Bob Johnstone stood before the State of Illinois Pardon
and Parole Board and Roger told his story.
When he was finished speaking, Benjamin Adamowski, the
States Attorney for Cook County who had successfully tossed him back into
Stateville on the aiding and abetting technicality, strode into the room and
asked to be heard.
“My hopes sank,” Touhy said, “...his words could condemn
me.”
But what Adamowski said surprised everyone. “My office has
no objection to the release from prison of Mr. Touhy...in fact, I would urge
it.”
Eventually, and again with Robert Johnstone’s help, Roger’s
199-year term was reduced to three years on institutional parole, reducing his
kidnap-ping sentence to six months. After that, he was to begin the commuted
jail break sentence which was to expire April 27, 1961.
On November 13, 1959, Roger Touhy, a greying man of
sixty-one, was paroled from prison after
serving twenty-five years, nine months and thirteen days for
a crime of which he was innocent. His health was gone and so was his money. He
had been bled dry by the legal fees incurred from his seven-teen denied
petitions for freedom, which included four denials by the United States Supreme
Court.
As he walked from the prison for the last time, he was
draped in a gray overcoat that had been pur-chased for him in 1958 for his
court appearances and a blue suit made in the prison tailor shop. He had the
$600 which had remained on deposit in the prison before his 1942 escape.
Clara waited at the gates for him. They hugged for several
minutes and whispered to each other through tears, and then walked, hand in
hand, out of the prison. Bent and limping slightly, Touhy gave his first and
last press conference on television as well as talking to print reporters at
the Stateville guard house. He told the reporters that there was a gag order
imposed on him. He disagreed with the order “since they didn’t put one on
Factor” but told reporters that he would have to be careful which questions he
answered nonetheless.
There was an awkward silence for a moment which Roger broke.
Referring to his first release sev-eral years before he said, “Any you guys get
the feel-ing we’ve been through this before?”
That loosened things up.
He looked up at the grey skies and held his hand out to feel
the mixture of light rain and snow falling around him.
“You know, it’s funny. It was the same kind of day when I
entered this place way back then.”
“What are you going to do now, Mr. Touhy?” “Please call me
Roger...I’ve invented a lure for fresh water fishing; I’m going to manufacture
it.”
“Ever manufacture
anything before, Rog?” Touhy’s eyes lit up. “Beer!”
“Do you hold any grudges, Mr. Touhy?”
“No. They have to live with their consciences.” “Who are
they? Who do you mean by they?” Johnstone leaned forward and whispered for his
client not to reply.
“Roger, are you looking for Factor?”
“No. I’m not looking for anyone. I’m just going to take it
easy for a while and see my wife and my two sons.”
“Why did you lead the prison breakout?”
“I didn’t plan it, I didn’t lead it, I just went along.” “Did
you learn anything in prison?”
“Nope. Not a goddamn thing.”
Johnstone broke in “Well you learned patience, Roger. ”
Always a proud man, Roger fought back tears and said with a
trembling chin, “You know, I never gave up hope that one day I would be standing
here a free man.”
He said he planned to move to Florida with his sons Roger
Jr. and Tommy who were now in their mid-thirties with families of their own.
For the time being, he would live with his sister Ethel11,
who had made more than two thousand vis-its to her brother over the past
quarter of a century and had appeared at seemingly endless hearings. During his
internment she had worked her way, alone for the most part, through a maze of
legal avenues in numerous attempts to free her brother from prison.
As he was driven back to Chicago in his nephew’s cramped
sports car, he thumbed through his per-sonal belongings. There were two
pictures drawn by his sons. He chuckled when he came across his 1942
draft card and a tiny black notebook with entries going back
to 1919 when he was in the Navy. “I kept my telephone numbers and addresses of
all my beer stops in code all through Prohibition. Nobody knew the code but
me.”
His color was pale and his hands shook as he thumbed through
the book. Like his brothers, Roger suffered from the ravages of Parkinson’s
Disease, a degenerative disease of the nervous system then called “the shaking
palsy.”
As ordered, Roger went to the parole office in Chicago where
he was given the details of the gag order he was under. Conversations with the
media about the case were absolutely forbidden. An hour later, the ex-prisoner
was dining on brisket of beef and hash brown potatoes in a west side restaurant
with Ethel Alesia his sister. “Delicious, delicious” he muttered over and over
again.
He would be dead within forty-nine hours.