The Case of Roger Touhy '. one way of judging a civilization is by what it does with its convicted criminals' MILTON MAYER T LOOKS as ii the United States Su- Judge Barnes was, according to his —Barnes and the man Barnes sug- I preme Court will have to decide own admission, "born Republican gested, in that order. whether Roger the Terrible Touhy in Pennsylvania at a time when only Barnes has the reputation of being really kidnaped Jake the Barber Fac- Republicans were being born there." the toughest judge on the Federal tor on the night of June 30, 1933. If For twenty-four years he has served bench, single-minded and implaca- the Court says yes, he really did, he on the Federal bench and watched ble, even unmerciful, in his servi- will have to remain in the Illinois Democrats go past him up the tude to the law. When the Supreme State Penitentiary until, counting judicial ladder. The New Dealers Court, on a rare occasion, reversed time off for good behavior, he is 134 didn't like him because he held the one of his decisions, he said placidly, years old. If the Court says no, he "Confronted with the same set of really didn't, he will go free after facts again, I would make the same more than twenty-two years in the decision." pokey. That will be a great day for me N 1943 the U.S. District Court in because I covered the case as a I Chicago, sitting en bane, dismissed cub reporter in Chicago and I was Touhy's petition for a writ of ha- sure, as only a cub reporter can be, beas corpus on the ground that he that Jake the Barber had kidnaped had not exhausted his remedies in himself. And for twenty-two years I the state courts. But on November have had to listen to people saying, 16, 1948, over the protest of the State "So maybe he didn't kidnap Jake of Illinois—which didn't want the the Barber. What difference does it case reopened—Judge Barnes ruled make as long as they got a gangster that he would hear Roger Touhy's like him locked up? Who cares about case on its merits. For six years he Terrible Touhy?" heard it. Back went the wonderful Nobody. But some people, includ- record into a wonderful past, the ing some lawyers, cared about jus- Chicago of a quarter century ago. tice. Seventeen times a succession of Some of the past, Barnes found, was such lawyers went into the courts for Wide World curiously mislaid, some of it buried justice. Seventeen times—including alive. four times in the Supreme Court— National Recovery Act unconstitu- Ghosts, some of whom wouldn't they heard the words "Petition de- tional (and the Supreme Court sus- walk without a subpoena, walked nied." The petitions were all denied tained him). The Old Dealers didn't into his courtroom and gave him on points of law. Not once, in all like him any better. When it comes ghastly glares when he said "Ob- those seventeen lawsuits, were the to dealing, one of his infrequent jection overruled. The witness will lawyers able to get a court to review statements off the bench reveals his answer the question." In the course the case on its merits—on the ques- attitude: "I don't think the govern- of that six-year hearing he sentenced tion, that is, of whether Terrible ment is any different from any other the head of the the FBI in Chicago to Touhy really kidnaped Jake the litigant." jail for contempt of court because Barber. Barnes came up the hard way, be- he wouldn't produce his records, and ginning as a $7.50-a-week law clerk told him that if his boss, the Attor- Judge Barnes and rising to a profitable partner- ney General of the United States, And then, one day, seven years ago, ship with former Republican Sena- took his place, he'd send him to jail United States of America ex rel. tor Otis F. Glenn of Illinois. In 1931 too. Ancient coppers and still more Roger Touhy came up again, this Glenn asked him for his recommen- ancient convicts were called to the time in the U.S. District Court in dation for a Federal judgeship. stand. Jake the Barber was called. Chicago, and it landed by chance on Barnes suggested the best man he Clara Touhy, still married to Rog- the docket of the Honorable John knew, and Glenn went to President er, was called. Even I was called. P. Barnes. Hoover with two recommendations And the courtroom buzzed when No. 12 THE REPORTER PRODUCED 2004 BY UNZ.ORG ELECTRONIC REPRODUCTION PROHIBITED 8711-E-the "E" is not for Excel- lence, it's for Escapee—was called to the stand. "That's him. That's Ter- rible Touhy." And then on August 9, 1954, the tough little mug who had somehow managed not to go stir-crazy yet, his lips half curled, his hair now gray, watched Judge Barnes ascend the bench in the business suit he wears because he won't wear a robe. He had before him his opinion. |. Edgar Hoover had once said that Touhy's claim of innocence was "too funny to talk about." Judge Barnes's ber Factor could pretend to be kid- state's attorney had to be persuaded, opinion talked about it for 774 type- naped and get the State of Illinois if possible, not to intervene. written pages. When he read the to hang the rap on an innocent The men who ruled the streets words "The Court is of the opin- gangster like Roger the Terrible of Chicago in 1933 were roughnecks ion . that the Relator Roger Touhy. Let me tell you how the who had fought their way up on the Touhy should forthwith be dis- whole thing could have happened, streets. Their parents were illiterate charged from custody," Roger the right smack in the middle of the immigrants, they themselves half- Terrible Touhy broke down and twentieth century. But let me begin literate. Take the three central char- bawled. by saying that it didn't happen in acters in the drama called United In between pages 1 and 774 was the twentieth century: It happened Slates of America ex rel. Roger Barnes's finding that Jake the Bar- in Chicago, which in 1933 was pre- Touhy. Touhy himself and Police ber had faked his own kidnaping in historic. Captain Dapper Dan Gilbert got no order to avoid extradition to Eng- Chicago grew faster than any further than grammar school and land for an eight-million-dollar swin- other city in history. When Chicago spoke very bad English. The third, dle there and that Police Captain was growing and you wanted to cross Jake the Barber, had come to Dapper Dan Gilbert, chief investi- the country, you crossed it at Chi- America at ten or eleven and had gator for the state's attorney of Cook cago. If you couldn't make it across, only a hazy recollection of "several County, had framed Roger Touhy you stayed there. The town grew so months" of schooling in Poland. in conspiracy with the Capone gang fast that it never got organized. Of Roger, Dan, and Jake got their ed- with whom the Touhy gang had course it had a mayor and fifty ucations in a place called the Valley. been having difficulties. Further- aldermen and a chief of police, but more, said the court, the frame-up they were just for receiving distin- RIGINALLY the Valley was a row was made with the knowledge of guished visitors or arresting undis- O of shacks at the bottom of the the then state's attorney, Honest tinguished bums caught sleeping B. & O. embankment, just outside Tom Courtney. under bridges or begging bread in Chicago's central business district. the streets. It spread until it occupied the whole A FTER twenty-one years and twen- Now don't misunderstand me. If of the "near" southwest side of the -^*- ty-one days in prison, Roger you behaved yourself in Chicago, city. Its political headquarters was Touhy was free. He remained free you lived like people anywhere else. the Democratic Club at Madison for forty-nine hours. Then he was If your name wasn't Bugs Moran or and Paulina, where Dapper Dan back again, on an order obtained by Greasy Thumb Guzik, you could live Gilbert, teamster boss, policeman, the State of Illinois from the U.S. peaceably and die in your bed and be and ultimately police captain, could Court of Appeals. buried in Cicero and never be both- always be reached. Hoyne and Last July—almost a year after ered. But the state of nature—in Madison—a saloon four-corners—was Touhy went back to prison—the which every man has to protect him- where the young teen-agers, in- Court of Appeals reversed Judge self as best he can—prevailed in cer- cluding Dan and Roger's big broth- Barnes's decision on a jurisdictional tain trades. Spirituous liquors, for er Tommy, hung out. But the Val- technicality that had nothing to do instance. Everybody except Con- ley's Supreme High Command was with guilt or innocence. Now the gressman Volstead wanted to drink, Paddy the Bear—I don't remember case has gone to the U.S. Supreme and there was a sort of civil-dis- his last name, and maybe he had Court—for the fifth time.