A Wrongful Conviction, a Story in Several Parts

Part 4:

Touhy and the others were held in a jail in Wisconsin after the car accident, until an FBI agent from Chicago came up, took them into custody, and drove them to Minnesota.

Touhy later complained that they were taken to Minnesota without an extradition order. That was true enough, but there were other problems. Neither Hamm, nor another witness to the kidnapping, were able to identify Touhy or his friends.

With no identification or evidence to connect Touhy and the others to the crime, the FBI took them back to Wisconsin and held them on weapons charges, and, apparently, while they continued to investigate the Hamm kidnappin

Touhy claimed that while he was in custody in Wisconsin he was tortured to try to make him confess to the Hamm kidnapping:

“I went into jail in excellent physical shape. When I came out I was twenty-five pounds lighter, three vertebrae in my upper spine were fractured, and seven of my teeth had been knocked out. … They questioned me day and night, abused me, beat me up, and demanded that I confess the Hamm kidnapping. Never was I allowed to rest for more than half an hour. If I was asleep when a team of interrogators arrived at my cell, they would slug me around and bang me against the wall.” (Touhy, The Stolen Years, p. 122)

Touhy continued to insist he didn’t kidnap Hamm, didn’t know Hamm, hadn’t been to Minnesota in years.

To no avail. August 13, a grand jury in St Paul, Minnesota indicted Touhy and his companions for kidnapping, based on the claims is the FBI and Chicago police officers.

Brief Interlude

I’m fighting a nasty cold, so here’s a brief “everything has a history” note until I’m back on track.

A Chicago mayoral candidate just proposed creating a reserve police force of 1000 retired police officers and firefighters and giving the police department drones.

Just over a century ago, John Garritty, Chicago’s chief of police, proposed creating a reserve police force of several thousand veterans and giving the police department bombs.

Wrongful Conviction, A Story in Several Parts

Part 3:

Although Factor’s kidnapping happened after Hamm’s, in a sense, it began Touhy’s troubles with the courts.

Factor, known as Jake the Barber, was born in Poland, but moved to St. Louis with his family early in the twentieth century. He became a con man.

In the mid 1920s, after defrauding a number of wealthy investors in England of millions of dollars in a stock fraud, he escaped to Monte Carlo, and then came back to the United States. Courts in England, meanwhile, tried and convicted him in abstentia for the fraud, then sentenced him to more than two decades in prison and tried to extract him from the United States.

Factor challenged the extradition; his extradition case made its way up to the Supreme Court of the United States, which ruled in 1933 that he should be extradited to England.

This was where Roget Touhy came in, or more accurately was brought into the story.

Factor’s kidnapping in July occurred during a period while his case was pending before the Supreme Court, but before the court ruled. Touhy, and others (including the English government) claimed the kidnapping was a sham, to try to get out of the extradition.

But Touhy also claimed that Capone’s gang had set him up, using Factor’s fake kidnapping as a way to try to get Factor out of trouble and give the Chicago police an excuse to arrest Touhy so that they could claim his territory.

Factor was missing for twelve days after his kidnapping. When he resurfaced he claimed Touhy and several other men stopped his car, seized him, and took him to a house where they held him and tortured him trying to get ransom money. Even before Factor made those claims, while he was still missing, Thomas Courtney, the State’s Attorney of Cook County, and Captain Dan Gilbert, a Chicago police officer who was assigned to the State’s Attorney’s police force, announced they were sure Touhy was behind the kidnapping. Gilbert also claimed Touhy and his gang was behind the kidnapping of Hamm in Minnesota, as did a Chicago FBI agent. Touhy, once again denied it and claimed that once again the Capone gang was setting him up.

It really matter. Touhy and some friends went on a fishing trip to Wisconsin in mid July.On their way back, their car skidded off the road and hit a light pole. Police who came to the scene found guns in the trunk of the car and took Touhy and the others into custody. Touhy and the others were taken to jail in Minnesota a few days later.

A Wrongful Conviction, A Story in Several Parts

Part 2: Who Was Roger Touhy?

Perhaps “What was Roger Touhy?” would be a better question to start with. Everyone agreed that he was a very successful bootlegger during Prohibition, a bootlegger with a lucrative side business in slot machines that he placed in various suburban roadhouses. He also had some ties to some labor unions in Chicago.

But past that, there was little consensus. Touhy insisted that was all he was; that and a good family man, though he admitted one of his brothers was a criminal. He also admitted that he and a partner, Matt Kolb manufactured and sold beer, both the low alcohol beer that was legal during Prohibition and “real” beer, which he sold to road houses and bars, and gave away as gifts to politicians and police officers. And he admitted that he handled slot machines, which. as he put t, “were against the law, technically, but they stood openly and invitingly in practically every roadhouse, drug store, saloon, gas station and grocery in outlying Cook County. The only place you wouldn’t find them were in churches, schools, hospitals, post offices, and public libraries.” (Touhy, 68). Slot machines were very lucrative; Touhy and his partner did very well for themselves in the 1920s.

While Chicago papers knew that Matt Kolb was a bootlegger, they did not apparently associate Roger Touhy with his business during Progibition. When Kolb was killed, shot gangland-style in a roadhouse inn the Chicago suburb Morton Grove roadhouse in 1931, reports were quick to tie Kolb to various local gangs, but apparently did not connect him to Touhy until year after Kolb died.

By that point in 1932, Chicago newpapers had begun to refer to the “Roger Touhy gang,” or the “Touhy beer gang,” and claimed Roger Touhy and perhaps one of his brothers, ran it. Those accounts reported Touhy and his gang were waging war on other gangs to try to control “beer and booze traffic in suburbs north of Chicago.

Whether Touhy’s reputation as a gangster was merited or not, in 1932 he had come to the attention of the press and the police. Then, in June 1933 (six months before Prohibition came to an end), two seemingly unrelated things happened. First, William Hamm (of Hamm’s brewing) was kidnapped a little after noon on June 15 as he walked to his house from his brewery in St. Paul, Minnesota. Then, sometime in the late evening, early morning hours of June 30-July 1, 1933, a man named Jacob “Jake the Barber” Factor was apparently kidnapped from a roadhouse near Morton Grove.

A Wrongful Conviction, A Story in Several Parts

Part One: A Brief Introduction

Roger Touhy was a bootlegger, a very successful bootlegger, in Chicago in the 1920s. Then he came to the attention of Al Capone, an ambitious politician, and an aggressive police captain.

In 1933, he was arrested and ultimately charged with two separate kidnapping cases. Over the next quarter century, Touhy was tried, retried, convicted, appealed, went to prison, escaped, was recaptured, and filed more post-conviction apoeals. Finally, in November 1959, Touhy was paroled, only to be gunned down on a front porch a month later.

His story has been told before, as an example of Chicago’s wild and woolly mobster days. Over the next several weeks, a series of posts will look instead at what his case tells us about the problems of challenging a wrongful conviction.

A Wrongful Conviction from 1936 (another)

In 1959, Judge William Campbell did something no one with any authority had done in 23 years: He believed Emil Reck’s claim he had been tortured into confessing to a murder in 1936. That year, Reck and three other white teens were convicted of murdering a Chicago pediatrician. At his trial, Reck testified that he’d been punched, hanged from a door by his wrists, slapped, and slammed into a wall by officers as they interrogated him for four days about the murder.

His co-defendants corroborated his testimony, and his lawyers presented evidence that on the third day Reck was in custody he had to be rushed to the hospital because he began vomiting blood during an interrogation. Reck spent the night sedated in a hospital bed, but did tell two physicians who examined with him that the police had roughed him up while he was in custody.

At trial, the police denied they harmed Reck and neither the trial judge nor the jury credited his claims. Reck was found guilty and sentenced to 199 years in prison.

Over the next two decades lawyers tried to challenge his conviction. But it was not until his case finally reached Judge Campbell on a petition for habeas corpus that a judge listened to Reck’s complaint.

But even though he believed Reck has been tortured, Judge Campbell refused to reverse Reck’s conviction. He decided that Reck, who had been diagnosed as “feebleminded” as a school boy, posed too great a danger to society to set him free. “I find,” he wrote “from the record, that the release of Reck from prison, may result in a danger to society due to his mental condition as revealed in the record and which 22 years in prison cannot have improved.”

Reck was not freed until two years later, when the Supreme Court ruled his conviction violated the constitution. Notwithstanding Judge Campbell’s fears, there is no evidence Emil Reck harmed anyone or broke any laws in that years that followed his release from prison.

[This material is based on a book I am writing on Reck’s case and the 20th century’s long war on crime.]

A Wrongful Conviction 1929

Today, news accounts about wrongful convictions or police abuse often take care to (some would say take glee in) report on whether the victim of either had a history of arrests or convictions. Call it the “he’s no angel” approach.

But nothing in the constitution, nor its amendments, contains an exemption for “bad guys.” And once, courts recognized that fact.

In 1929, Patrick Joyce, a twenty-six-year-old white man known, as one paper explained, to the police as a hoodlum, was arrested and charged with killing a police officer after a routine traffic stop. At trial, the state offered the testimony of several women who were in a car driven by Joyce’s friend, all of whom said that after Joyce’s friend was arrested for going through a red light, Joyce left the car saying he would “blow that cop’s brains out.” None of those witnesses saw Joyce shoot the police officer, but another witness testified that he saw Joyce walk up to the officer and shoot him.

The state also offered the confession it claimed Joyce made to the police after his arrest, in which Joyce admitted he fired the fatal shots.

Joyce testified in his own defense, insisting that a third man who had also been in the car when it was stopped by the officer fired the shots that killed the policeman. (That man had never been arrested.)

Joyce also claimed, as had so many others arrested in Chicago in the 1920s, that he only confessed because he had been beaten by the police. He also called four men who had been in the jail when he was taken there after his arrest. All four testified that he was bruised when he arrived at the jail. Although the state offered no evidence that contradicted Joyce’s claim he was beaten before he confessed, both the judge and then the jury disregarded Joyce’s claims of abuse. He was found guilty and sentenced to life in prison.

While in prison, Joyce was implicated in an elaborate escape plot in 1939. That plot received extensive newspaper coverage and played a role when he was denied parole in 1949.

But then, in 1954, in a post conviction hearing petition, Judge Thomas Kluczynski ruled that in a case where the state did not offer ANY evidence that challenged a defendant’s claim he was beaten into confessing, the trial judge should not have admitted Joyce’s confession into evidence.

Kluczynski had originally granted Joyce’s petition for another reason, concluding that a jury instruction given at his trial had been wrong. But the Supreme Court of Illinois reversed, and told Kluczynski to look instead at Joyce’s claim he was tortured into confessing. Kluczynski did and reversed his conviction, a quarter century later.

A Wrongful Conviction from 1885

In Chicago, many wrongful convictions rest on confessions that were coerced by violence, threats, or other pressures. But some convictions that seem dubious were obtained through confessions that were questionable for other reasons. A case in point took place in 1885.

May 1 that year, the body of a dead man was found in a trunk that had been shipped from Chicago to Pittsburgh. After a few days, the body in the trunk was identified as Filippo Caruso, a fruit peddler in Chicago. Not quite two weeks later, five men–Antonio Mercurio, Agostino Geraldi, Giovanni Azari, Ignazio Bova, and Ignazio Silvestre–had been arrested and charged with the murder. By the end of June, three of the five, Geraldi, Azari, and Silvestre, had been found guilty of the murder and were sentenced to be hanged. (The other two, Bova and Mercurio, were both acquitted). None of the three who were found guilty could afford to appeal, so nothing stood in the way of their executions. On November 14, 1885, the three men were hanged in front of a crowd of several hundred Chicagoans who had gathered in the courtyard of the jail to watch.

There are several reasons to doubt their guilt. A couple of the witnesses the state called to prove its case could only tie the men to buying a trunk and some cord. While in the abstract, those actions might seem suspicious, many Chicagoans were doing exactly the same thing in the days before May 1, 1885 because May 1 was “moving day,” the day all rental leases in the city ended and Chicagoans moved.

Nor did it help that several of the state’s other witnesses admitted that they could not tell one Italian from another. And two of the defense attorneys raised serious questions about whether a body as decayed as Caruso’s was when the trunk he was in was opened in Pittsburgh could have been killed on the timeline the state’s case relied on.

But the biggest problem was the confessions the state offered to prove its case. All five had been in custody for at least a week when the first confessions were made. None of the men had been able to see lawyers, or friends, during that period. In later years, both The Illinois and United States Supreme Courts held that confessions that followed extended periods of incommunicado interrogation were unconstitutional.

But here, there’s an even more troubling problem: the confessions were made by five men, none of whom spoke English, all of whom were Sicilian and spoke Sicilian, which at least one Italian speaker the police department called in to translate for them admitted was “very hard to understand.” In fact, there is much reason to doubt that the police department had anyone who understood the defendants well enough to interrogate them or translate their confessions.

At trial, two of the defense attorneys tried to raise this issue, one tried to bring in an expert witness to testify on the differences between the Italian spoken by Chicago’s many immigrants from Genoa an the Sicilian spoken by the men on trial. But the trial judge, Kirk Hawes, a man with little patience for what he often dismissed as “legalisms” would not allow the defense to offer that evidence.

And so, there is reason to doubt the confessions offered into evidence at trial, a doubt that at least suggests that the three men were wrongfully convicted based on unreliable confessions.

A Wrongful Conviction from 1936

In August, 1936 a young Black man named Rufo Swain confessed to committing a murder that had perplexed Chicago’s police for several days. On Saturday, August 15, an equally young white woman, Mary Louise Trammell, was choked to death in a hotel room on State street in Chicago. Her husband, who worked as a steward on a dinning car that did a Chicago run, found her body the next day, when he arrived in Chicago. At the scene, the police discovered a notebook that seemed to contain policy numbers, which had a laundry check in its leaves.

Early Wednesday, Swain went to a police station to claim the notebook. He told the police that the notebook was either lost of stolen from him as he slept in a nearby park. According to reports, when police captain Dan Gilbert ridiculed his explanation, Swain quickly lost his nerve and admitted that he had killed Trammell, breaking into her hotel room through a window off the fire escape in search of money. A team of officers, led by Captain Gilbert, put Swain through a “re-enactment” of the crime in front of a series of reporters, who reported somewhat dubiously that the “powerfully built” Swain took a running jump off of a canopy that covered a basement stair, leaping onto the fire escape to pull it down so he could climb up it to Trammell’s room.

At trial, Swain and his attorney’s challenged the police theory of the case. The police claimed that whoever killed Trammell used the water pitcher; Swain’s lawyers argued that the pitcher would not have left the deep wound that she died from. The lawyers also challenged the confession the police offered against him, claiming that Swain only confessed after he was strung up by handcuffed wrists at police headquarters.

There are good reasons to believe Swain’s claim that he confessed under torture. The photograph of Swain (below) taken the day of his arrest seems to show a face that is bruised and swollen.

More to the point, several other men in who were in police custody in the mid 1930s made claims of torture very similar to his:

  • In 1936, seventeen-year-old Michael Livingston, one of four white teens charged with murder in March 1936 claimed the head of the detective unit strung him up and beat him until he confessed to playing a roll in the crime.
  • A year later, Arthur LaFrana, who was white, claimed a police captain hung him from a door by his handcuffs until he confessed to committing murder during a robbery.
  • In 1938, another Black teen, Robert Nixon, claimed several officers at police headquarters hung him by his wrists and beat him until he confessed to the murder of a white women.

And at least one man arrested in the 1940s, sixty-five-year-old Hector Verburgh, who was arrested and questioned by Sergeant Frank Pape, claimed he was hanged by his wrists during an interrogation. Three other men arrested in the 1950s made similar claims: one, Wayne Adams, who was accused of robbery, and two, Paul Crump and Richard Zielinski, who were accused of separate murders.

(Verburgh was later released when the police admitted he did not commit the murder they were investigating. He sued, and the city paid him to compensate him for his injuries. The others were all tried and convicted for the crimes they were accused of.)

The jury heard no evidence of the police department’s extended history of torture during interrogation. So they disregarded Swain’s evidence and his lawyer’s claims. He was convicted and sentenced to death. Too poor to afford to file an appeal, Swain was killed in the electric chair in February 1937.

A Wrongful Conviction from 1946

In September, 1946, Leslie George Wakat was arrested by the Chicago police. He was held three days without being charged, while the police “investigated” a theft, but then released when family was able to hire a lawyer to challenge his detention. He was released, following the judge’s order, on September 24, later that same day he was arrested again. This time, he was held three more days, until finally he confessed to burglary. He was promptly indicted and tried.

At trial, he claimed that he only confessed after being beaten by the police. He also claimed the police drafted his confession and then beat him repeatedly until he signed it. In addition, he told the jury that at one point during his interrogation one of the officers questioning him threatened to “throw him out of a window.”

A cook county jail physician (who saw him the day he confessed) testified that when he saw Wakat, Wakat was suffering from “multiple bruises and large areas of hemorrhage under the skin, a fracture of the bone in the right arm, and injuries to the left leg and knee.” There was also evidence that Wakat had to be hospitalized for eleven days and then given further medical treatment for his injuries.

A police officer testified that Wakat suffered the injuries when he fell down some stairs at the police station. One police officer testified at trial that Wakat fell down the stairs after “tussling” with him, and that Wakat pulled him down the stairs too, injuring him.

The jury disregarded his claims, and he was convicted and sentenced to 10-20 years in jail. Eleven years later, lawyers filed a post-conviction petition on Wakat’s behalf and the judge hearing the petition ruled for Wakat. During that hearing, the judge also concluded that the police officer who testified Wakat pulled him down the stairs in a tussle had lied about the source of his injuries, and that Wakat had not caused his injuries.

The Illinois Supreme Court affirmed that decision, and ordered that Wakat be released. Wakat’s lawyer’s then filed a civil right claim on his behalf, and in 1957 a federal court jury awarded him $15,000 in damages (worth over $150,000 in 2022).

Two years later, the American Civil Liberties Union, Illinois Branch, published a booklet, Secret Detention by the Chicago Police: A Report by the American Civil Liberties Union (Free Press, 1959), a “report on the Chicago police practice of holding arrested persons secretly for long periods of time without bringing them promptly before a magistrate, as the law requires.” Wakat’s case was highlighted in the booklet as a rare instance when a person convicted on the basis of a confession coerced by torture succeeded in successfully challenging the conviction.

Sources: Illinois v. Wakat, 425 Ill. 610 (1953); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958); Secret Detention by the Chicago Police: A Report by the American Civil Liberties Union (Free Press, 1959).