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 He was tall, waspy, bearded and withdrawn, with a deep imposing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.