CRIME: Capone At Large

The long campaign which the Federal Government has been conducting to put Chicago’s Chief Gangster Alphonse (“Snorkey”) Capone in jail for a good long time, moved toward its decisive phase last week, and in two preliminary skirmishes Gangster Capone was victorious. In July Capone appeared before U. S. District Judge James Herbert Wilkerson to be sentenced for failure to pay tax on a $1,038,654 income and for conspiracy (with 5,000 offenses) to violate the Prohibition law, to which he had pleaded guilty. But to Judge Wilkerson had come word that between Capone’s Attorney Michael Ahern and the Department of Justice existed an agreement whereby Capone would escape with a light sentence in return for a plea of guilty. Indignantly declared Judge Wilkerson: “It is utterly impossible to bargain with a Federal court.” Then he allowed Capone to change his tax evasion plea to not guilty, called the grand jury and ordered it to re-examine the Prohibition evidence with the object of indicting Capone under the Jones (“5 & 10”) Law (TIME, Aug. 10 et ante).

Last week Judge Wilkerson let Capone plead not guilty also to the conspiracy indictment, ordered a jury summoned Oct. 5, set Oct. 6 as the date for trial on the tax evasion charge.

If convicted of nonpayment of taxes, Capone might be sentenced to 32 years in the penitentiary, fined $80,000. For conspiracy he could be sent to prison for two years. But still pending was the grand jury indictment under investigation the “5 seeking & 10” evidence Law. for If a an true bill were returned and conviction secured, he could be sentenced for a term that would occupy the rest of his life.

No such true bill was returned. Before Judge Wilkerson appeared the foreman of the grand jury to announce that it had prepared a report on its investigation but had returned no indictment. Snapped Judge Wilkerson: “I’m not interested in reports, only in indictments,” refused to accept the report. The jury then went to Federal Judge John P. Barnes and was immediately discharged. Later the fore man was seen emerging from the office of U. S. District Attorney George Emmerson Q. Johnson, looking uncomfortably red in the face.

In his career as a Public Enemy, “Snorkey” or “Scarface” Capone has been publicly accused of many a foul crime, including murder. He has served one year in prison, for carrying a gun. It was generally admitted that he might have wriggled out of that sentence if he had wanted to. But not to greasy, grinning Capone belongs credit for the freedom he has so far enjoyed, but rather to his adroit, Irish-blooded attorney, Michael Ahern. Born “back of the yards” in Chicago 43 years ago last week, the son of a mail carrier. Michael Ahern was educated by Jesuit priests, learned from them a skill and precision in disputation which has since stood him in good stead. Later he was graduated from Loyola University. In the two decades he has practiced law in Chicago he has become known as one of the city’s best appeal lawyers. He has attracted outside attention through his treatises on the 18th Amendment in which he emphasizes State sovereignty and the point: “A man’s home is his castle.” Of late, with his partner Thomas D. Nash, he has defended many a gangster.

Patient, precise rather than sensational, he has won several unique decisions. It was he who discovered, after much digging, an ancient statute granting sanity trials to convicted murderers and had one-Gene Geary sent to an asylum instead of hanged. For Capone Gangsters Scalise and Anselmi, accused of killing two policemen, he won acquittal with the plea that they were privileged to defend themselves even against officers of the law. Since his association with Capone he has become much in demand, never takes a case for less than $5,000.