The trial began in Chicago on Monday, November 24, 1924, three days before Thanksgiving. Fall and winter of 1924 were warmer than average, but that was little consolation for outsiders arriving in the Windy City; it was chilly. The imposing courtroom of federal judge George A. Carpenter, Northern District of Illinois, Eastern Division, was in the massive Roman-inspired Beaux-Arts federal building (since demolished) in the Chicago Loop. Over the jury box loomed an image of the biblical Moses on his knees before God, receiving the tablets on which the Ten Commandments were inscribed. Among them: Thou shalt not steal. Thou shalt not bear false witness. Thou shalt not covet thy neighbor’s wife. In the public’s eye, the focus of the trial was clear. Newspapers referred to it as the “Forbes trial,” and reported that the government prosecutor, John W. H. Crim, had accused Forbes of causing $225 million of taxpayers’ money to go into “private pockets.”1
The staunchly Republican Judge Carpenter was a six-feet-tall, athletic-looking, bespectacled Harvard man in his fifties with sandy-gray hair, who had served on the federal court since 1910. Having run for election and reelection as a Cook County circuit judge, he was well aware of the importance of public opinion. The judge, like many Americans of the time, saw the country as in danger of falling apart. American democracy and social order were precious jewels that must be guarded vigilantly against the evils of corruption. The Thompson-Forbes case was “one of the most important cases in the last 100 years because it strikes right at the foundation rock of our government,” he proclaimed in his charge to the first grand jury. “If the officers of this government, the men who occupy high or low positions under the government are false to their trust, if it can be passed by lightly by the people the whole foundation wall of our government is going to crumble.” Carpenter and Prosecutor John W. H. Crim approached the case from a similar point of view.2
After months of preparation, Crim was as ready as he could be. He had a brilliant, well-rehearsed star witness, Elias H. Mortimer, whose straightforward story the two of them would present. Namely, that the defendants, John W. Thompson and Charles R. Forbes, were guilty of engaging in a conspiracy with the late James W. Black, the late Charles F. Cramer, and the unindicted Elias H. Mortimer to commit fraud against the government of the United States under section 37 of the US Criminal Code (offenses against the operations of government). The goal of this conspiracy, Crim planned to prove, was to arrange lucrative government contracts for Veterans Bureau hospital construction with eventual profit for all concerned. Thompson and Black were multistate building contractors, Director Forbes of the Veterans Bureau was officially in charge of hospital contracts, Cramer was the bureau’s legal counsel, and Mortimer was the fixer and middleman.
Crim’s victories in corruption cases, conspiracies, and liquor deals had polished his role as the representative of good over evil. His commanding, grandstanding presence before a jury included a piercing legal look—bushy eyebrows drawn together, eyes narrowed darkly under jutting brows. In court, he planted himself on the floor as if he was a force of nature, tipping his head forward a little, not too much, pugnaciously. He was the accuser. He was federal power personified.
Crim built his prosecution on the following six claims: First, there was circumstantial evidence of a conspiracy, proved by an impressive series of dates and places of meetings, backed by hotel records, where two or more of the five accused conspirators had met, and there were also letters and telegrams among members of the group. Mortimer’s specificity on incidents and dates, embellished with striking details and flourishes, gave the ring of truth to his evidence, true or false. His account of one meeting with Forbes went like this: “The conversation with Col. Forbes was in the Portland Hotel, Portland, Oregon, in the morning shortly after we arrived there, I would say about 8:00 to 9:00 o’clock. I cannot give the date exactly, it was approximately the 10th to 12th of July, 1922.”
Second, there was evidence that the conspirators worked together on projects other than those connected with the Veterans Bureau: notably, the development project in Colombia (in which Thompson and Black were principals), which was described at the Senate hearings, and Thompson’s quest to get full payment for the German oil tanker he had revamped for wartime use, which was commandeered by the US Navy. Crim argued (on the basis of Mortimer’s evidence) that Thompson was prepared to give $100,000 to Mortimer for expediting his claim. According to Mortimer, Forbes said, “Sure, it can be done,” and that he wanted Cramer to be involved. Mortimer would then split the fee three ways between himself, Forbes, and Cramer, knowing this was a “corrupt proposition.” Crim, ably backed by Mortimer, held that both the Colombia proposition and the ship propositions were lures to convince Forbes to grant Mortimer’s clients government contracts for hospital construction.
Crim’s third and fourth claims as prosecutor were central to the government’s case, because if proved they would show Forbes and Thompson conspiring with each other, plus Mortimer and others, in corrupt deals within or via the Veterans Bureau: namely, that Forbes had granted a contract for hospital construction at Northampton, Massachusetts, to the Pontiac Construction Company, a Thompson-Black subsidiary, by rigging the bids and that Elias H. Mortimer had bribed Forbes on several occasions, most notably with $5,000 in cash at the Drake Hotel in Chicago on June 20, 1922.
A fifth, and implicit, claim was that Forbes had the personality and motive to do the things he was accused of doing. The motivations assigned to the key players followed themes established at the Senate hearings, in General O’Ryan’s report, in Will Irwin’s persuasive articles, and in more recent descriptions of Harding’s “Ohio Gang”: Forbes was a crook, and Mortimer was both a paid government undercover agent and a betrayed husband who was motivated by vengeance when Katherine Mortimer left him for Forbes. Mortimer played the role of a husband tricked by a blackguard brilliantly. In turn, Crim presented Mortimer as a man whose evidence, though distasteful, was credible.
Finally, federal money was available. In his dramatic opening statement, Crim explained to judge and jury that the second Langley Act appropriated $17 million (more than $230 million in twenty-first-century terms) for hospitals to be constructed under the aegis of the Veterans Bureau. Crim stated bluntly that the conspirators planned to siphon off $1 million. He pictured Mortimer and Forbes studying the Langley bill for the money they could make from it. Contractors Thompson and Black agreed to give 35 percent of their net profits to Mortimer, Crim reported, and Mortimer would hand over half of that to Forbes.
But that was only one instance. The trial proceedings are scattered with Mortimer’s statements about unrealized plans that involved large sums of money. It is fair to say that Mortimer’s evidence was the case. As the press noted at the time, to make these accusations stick, the prosecution had to substantiate Mortimer’s testimony, and the defense to make a strong counterattack on Mortimer. Elias Mortimer represented both the strengths and weaknesses of the case. If he were believed, the prosecution would win. If the jury had substantial doubts about him, it would fail.3
The defense’s task was to show that the key government witness was an out-and-out liar, that there was insufficient evidence to substantiate the prosecution’s claims, and that there was no evidence that crimes had been committed.
Crim’s legal team included two lawyers from the US Department of Justice, Earl Morrissey and Oliver E. Pagan, who had been working for him over the intervening months, and private-practice Chicago lawyer, Ralph F. Potter, whom he had persuaded Attorney General Stone to let him hire. Forbes had the loyal James S. Easby-Smith as his lawyer plus Chicago lawyer, Elwood Godman. Thompson’s high-priced defense team was headed by former Senator James Hamilton Lewis (Democrat), known for his “fire” and “silky persuasiveness” in court. His role was to provide gravitas and strategy for Thompson’s defense team and, if necessary, influence decisions in favor of his client when there were conflicts in the interests of Thompson and Forbes. Thompson’s courtroom defense fell into the hands of Franklin J. Stransky of Chicago, and particularly to the fiery Randolph Laughlin of St. Louis, where Thompson lived.4
Despite this legal heft, Thompson was doomed to be a secondary figure at the trial. If Forbes was guilty of the conspiracy as defined, so was Thompson. Witnesses called in Thompson’s defense testified to his longtime reputation for honesty and fair dealing in St. Louis, New Orleans, and Chicago, but in the end, this testimony carried little weight.
Jury selection for the Forbes-Thompson trial was completed on Tuesday, November 25, 1924, three weeks to the day after President Coolidge’s triumph in the polls. As jury selection began, the room was packed with lawyers, including some from the Chicago District Attorney’s Office. The jury included three farmers: the nicely named C. P. Fatland; Howard Thomas, a World War veteran; and Morris Kelly, who had one son killed and one wounded in the war. Two of the jurors were retired (Frank W. Hadlock and John Benjamin). The others were a justice of the peace (George F. Hay), a contractor (Ernest A. Clark), an engineer (Theodore Babcox), a man who worked in insurance (O. Dana Richardson), a salesman for cemetery lots (Herbert K. Saul), an employee of the Western Electric Company (William P. Randall), and a miner (Michael Finn). No women. Both sides clearly thought this was a reasonable set of jurors. They were selected with surprising speed given the number of lawyers involved. Only two of the twelve lived in Chicago, the rest lived elsewhere in northern Michigan. Would they be likely to see Forbes as a real person rather than as a personification of evil? Would they see a man who worked hard for his country or a hustler without conscience? The questions were open as proceedings began.5
Forbes appeared outwardly restored in health and confidence. His face and posture revealed signs of strain, but his complexion was ruddy, no longer gray. He was a quieter, older, less ebullient version of his old self. He sat at a table with his attorneys, concentrated and alert, taking copious notes. The New York Times reported that he “peered at the jurors through horn-rimmed spectacles and seemed very subdued.” The Chicago Tribune noted his “remarkable poise,” though he showed surprise and appeared “genuinely astonished” at some of Mortimer’s stories. Mortimer sat with an escort of five “sharp-eyed men” (lawyers and federal agents assigned to Crim), who kept a watchful eye on Forbes—a nice example of courtroom stagecraft, suggesting Mortimer was valuable and Forbes a menace.6
Charles R. Forbes was almost forty-eight years old. His life had been marked by extraordinary stresses since he entered the army in 1917. Not least were the relentless judgments of his character and actions since the beginning of the Senate investigation. Questions that could count against him included his apparent lack of divorce from his first wife, his earlier desertion from the army in 1900, and his relationship with the wife of the chief witness. Easby-Smith’s positive description of Forbes’s life and career in his opening statement to the jury were reportedly “the first kind words Forbes had heard in many months in public.” Nonetheless, Easby-Smith was optimistic about the defense. The best investigative efforts of FBI special agents had found no proof outside of Mortimer’s word that Forbes had accepted $5,000 from Mortimer in a bathroom in a suite at the Drake Hotel, the most colorful of the stories at the trial. Nor was there evidence that Forbes had cashed or spent any five-hundred-dollar bills. Crim could (and did) prove that Mortimer had the money on hand as part of the $15,000 he had borrowed from Thompson and Black in Chicago, and the prosecution had the loan note Mortimer signed for the $15,000 at 6 percent interest, but the documentary trail stopped there. There was no documentary proof that Forbes had accepted any other amounts from Mortimer, as the latter charged and Forbes denied, and there was no documentary proof that Mortimer paid expenses for Forbes when they traveled together on Forbes’s Veterans Bureau business. Forbes and other government employees used government vouchers for trains and transportation, which were scrupulously preapproved and documented by government bookkeepers and accountants, but for other expenses, Forbes and his aides were on a government per diem rate. There were no itemized receipts.7
Copies of numerous hotel bills were put in evidence at the trial, thanks to the indefatigable work of hotel clerks and federal agents, but they did not show who paid each bill. Mortimer could produce no canceled checks or even check stubs for the relevant period. Nor could Forbes, whose practice was to hand cash to his senior aide to pay expenses and let him calculate who owed what, over and above the per diem rate. Defense witness Louis T. Grant, who was then the manager of Veterans Bureau District 12 (California, Arizona, and Nevada), recalled that he saw Forbes’s aide, Merle Sweet, pay a hotel bill for him, Forbes, and another bureau staff member, John Milliken, in San Francisco. (In contrast, Mortimer testified that he paid the hotel bills at the Fairmont Hotel in San Francisco for Forbes, Milliken, and Sweet, including laundry, valet, and phone.) There was no proof that Mortimer did not pay some expenses during the western trip. As in other instances, the fundamental question for the outcome of the trial was whether the jury found Mortimer believable.
Easby-Smith’s plan was to shake Mortimer’s credibility. In Mortimer’s story, Forbes accepted $5,000 in a bathroom in a suite in the Drake Hotel, laughed, and called for a drink, and Mortimer did not insist on a receipt. Easby-Smith had a witness to show that it was physically impossible for Forbes to have met Mortimer at the Drake at 4:30 p.m. on June 20, 1922, because an experienced Veterans Bureau secretary, Edna Breese, was working in the hotel suite at the time, transcribing notes for letters and speeches that Forbes and his staff dictated, and she saw neither Mortimer nor Forbes. Fred E. Hamilton, the executive officer for the Chicago office of the Veterans Bureau, testified that he accompanied Forbes on visits to a boiler works and to the Speedway (Hines) Hospital on the morning of June 20, and returned with him to the Drake Hotel at about 2 p.m., where he saw Miss Breese, as well as Forbes’s aide, Mr. Milliken, and Mrs. Mortimer, and then left. Breese testified that she saw Forbes briefly in the suite between 2 p.m. and 3 p.m. but not later. Between 4:30 p.m. and 5 p.m., she was with Katherine Mortimer in the Mortimer bedroom, looking at dresses Mrs. Mortimer had just bought. There was no sign of the dice game Mortimer had reported. Breese remained in the suite until 6 p.m. or 6:30 p.m. and did not see Mortimer at all during the day. Under cross-examination, she admitted that Forbes and Mortimer did not have to come into the reception room to get to their rooms, as there was another door to the corridor, but it is more than probable that they would have done so—Forbes to check on the secretarial work done for him, and Mortimer to see who else was around.8
For the Northampton case, Easby-Smith had witnesses lined up to testify that Forbes acted within legal and customary limits in making the decision to award the building contract for the hospital foundations to the Pontiac Company, and to show that army and navy architects and engineers were critical players in the processes of contract-setting and approval. Harold W. Breining, the assistant director of the Veterans Bureau in charge of fiscal matters, testified that Forbes told him he would use existing government construction agencies to supervise the work and that he insisted on competitive bids (which he did). R. C. Routsong, a member of Forbes’s planning committee, testified that Forbes wanted the bids handled by the War and Navy Departments, and emphasized speed of construction. Colonel Edward S. Walton of the Army Quartermaster Corps, which handled the construction of the veterans hospital at Northampton, testified that Forbes was adamant for speed, “contracts for lump sums for the entire job, if possible,” and contracts made through competitive bidding. Forbes suggested segregating the plans for Northampton into two parcels, one for the foundations and one for the superstructure, and though the army engineers initially “combated the idea” (because they did not think it would save time), Forbes won them over, and time was saved. Naval Commander Frederick W. Southworth of the Navy Bureau of Yards and Docks, which planned and constructed veterans hospitals at Tupper Lake and elsewhere, testified that the navy prepared the plans and Forbes examined them in detail: “Those plans were good plans and were used as a basis for some other stations.” Easby-Smith had a good roster here. None of them criticized Forbes’s methods or accused him of conspiracy or corruption. Breining made the important point that Forbes could not possibly have siphoned off any funds designated for construction projects because he had no authority to disburse money, and no funds were turned over to him. In other words, even if he had wanted to, Forbes would not have been able to get his hands on the money.9
Beyond specifics, Easby-Smith made a sweeping attempt to discredit Mortimer through the testimony of witnesses who had known him at different times and in different places. Thompson’s lawyers had an equally strong motive for finding negative character witnesses, and greater resources. Ten defense witnesses testified that Mortimer’s reputation was “bad” or “very bad,” with six stating specifically, “I would not believe him under oath.” Among the ten were the commander of the recently famous around-the-world flight (Major Frederick Martin), the editor of the Stars and Stripes (Sid Houston), and Mortimer’s childhood friend and later his lawyer (Augustus Dowdall, whom Mortimer had tricked). Management witnesses at the Wardman Park Hotel testified that Mortimer had never reported papers stolen from his apartment and that he had not changed his lock on his apartment as he had claimed.10
Easby-Smith’s most dramatic act was to call Katherine Mortimer’s parents as witnesses to demonstrate that Elias Mortimer was determined to destroy Forbes—and thus further challenge Mortimer’s bona fides as a witness. Dr. George Bowler Tullidge, suffering from a chronic heart condition from which he would die within three months, had come to damn the man who was still officially his son-in-law. His white-haired, sad-looking wife, Katherine O’Donnell Tullidge, quite different from her normal appearance as a feisty, emotional woman, substantiated his account. Dr. Tullidge reported a conversation they both had with Elias Mortimer in the library of their house in Philadelphia in the autumn of 1923 when Mortimer threatened to bring Forbes down: “I will get even with Forbes even if I have to swear myself in jail with him. … I am going to get Forbes: if not in one way, I will get him in another.” Why? “Because he could have made me a rich man by giving me contracts when he had the power, and did not do it.” Tullidge testified that Mortimer had threatened their daughter, Katherine, who refused to confirm Mortimer’s evidence. (Notably, Mortimer testified that Katherine was present in the suite at the Drake Hotel when he gave the $5,000 to Forbes. She could have backed him up by saying she had seen Mortimer go into the bathroom with Forbes, with Mortimer carrying money.) Mortimer reportedly said to Tullidge, “If you and Mrs. Tullidge do not make Katherine line up with me and against Forbes, I will drag her down into the mire.” Easby-Smith obviously expected this poignant testimony, on top of other aspersions cast on Mortimer’s character and intentions, to create a negative impression of him, leaving the case without adequate evidence—and thus Forbes would be acquitted.11
In a curious gap in the testimony, Easby-Smith did not confront the question of why Forbes had been attracted to Mortimer as a close friend and traveling buddy in the first place. When General O’Ryan had asked Forbes this pointed question at the Senate hearings, Forbes had remarked weakly that Mortimer was plausible. Thompson’s lawyers did a better job here, arguing that Mortimer fooled and dazzled Thompson and Black. The two men thought he was a reputable agent and lent him $15,000 with a receipt and charging 6 percent interest as a simple commercial transaction. Thompson was presented as a simple soul, “big-hearted Jack Thompson,” with a “generous Irish heart that could not refuse a friend, anything.” Mortimer borrowed money from them and “wormed his way with consummate nerve into capitalist deals.” No one explained how Mortimer managed to do this so frequently. The $15,000 was never seen again.12
The defense had reason to be optimistic on the basis of disputing alleged facts and seeding doubts about the veracity of a man referred to in the press as the “star witness.” But was it enough? The answer, eventually, was no.
The charge of conspiracy strongly aided the prosecution. Allowing two or more conspirators to be tried together visibly suggested that the conspiracy was not hypothetical but real. Here before one’s eyes were Forbes and Thompson linked like twins as codefendants, sitting in front of a jury before the first piece of evidence was produced. And there was Mortimer on the first day of testimony, speaking for the US government. Neither defendant spoke about conversations at which they were allegedly present, but Mortimer could and did. At one point, Thompson’s lawyer, Randolph Laughlin, announced that he would put Forbes on the stand as a witness for his client. Judge Carpenter rebuked him for meddling in the Forbes side of the case.13
A conspiracy charge allowed for evidence about any two or more members of the conspiracy to be accepted even if other members were not present. Many of the meetings cited as part of the conspiracy did not include Forbes; yet, he was assumed to be an active participant. Eminent trial lawyer Clarence Darrow stated his concerns about a conspiracy charge elsewhere: A lawyer might introduce hearsay and promise the court to connect it up later, but even if such evidence was later stricken from the record, “it has entered the jurors’ consciousness with a mass of other matter, and altogether it has made an impression on his mind. What particular thing made the impression, neither the juror nor anyone else can know.” In the process, individual rights and legal protections might be ignored: “If there are still any citizens interested in protecting human liberty,” Darrow wrote, “let them study the conspiracy laws of the United States.”14
Judge Carpenter’s legal philosophy was to protect the nation first. In his charge to the jury, he emphasized how insidious conspiracy could be; how dangerous to America; how evil when coiled around the very heart of government. The theory that made conspiracy punishable, Carpenter explained, was that it produced demoralization and danger to the public and to the peace and security of society. Legal rules were effectively relaxed, for in this broader social framework circumstantial evidence was to be expected: “The existence of an agreement may be shown in direct testimony of one of the conspirators or by the proof of circumstances from which it can be inferred or by both of these methods. … Conspirators, gentlemen, do not reduce their agreements to writing.”15
The dates given for the Forbes-Thompson-Mortimer-Black-Cramer conspiracy were April 1, 1922, through January 1, 1923. Jurors had to decide not only whether there was a conspiracy during these nine months but also whether an overt act was done by one of the five conspirators that would “effect [demonstrate] the object of the conspiracy.” The jury could include an act testified to by Mortimer, the unindicted coconspirator who was now the government’s chief witness. Handing over the $5,000 in Chicago, as Mortimer alleged, was supremely important for showing, if proved, an overt act of the conspiracy that occurred in the jurisdiction of this Federal District Court. In sum, the prosecutor could describe meetings to engage in antisocial plotting and intrigue of any two or more members of the defined group of five (one unimpeachable and two dead); an individual could be damned by hearsay evidence before he had a chance to speak, and the jury could assume that a conspiracy was a social evil. Members of the jury could not possibly remember all the details in a complicated case such as this. The combined defense teams were counting on facts to swing the jury, rather than an intuitive, commonsense assessment of the characters and their stories. Mortimer’s genius as a witness, drawn out skillfully by Crim, lay in embroidering his testimony, detail after detail, while firming up previously held views and manipulating opinions and appearances.
Jury selection and opening statements for prosecution and defense took up the first week of the trial. Mortimer commanded the stage in the second and third weeks, beginning Monday, December 1, 1924. Chicago Tribune reporter Philip Kinsley depicted him as a modern adventurer in Washington’s “intricate byways,” fighting a duel: “He was so cool and keen in his parries, so ready with resource, so backed, apparently, by the exhibits and documents presented by the grim prosecutor, John W. H. Crim, special assistant to the attorney general, who has had Mortimer under his wing for a year.” In the Chicago Herald, Mortimer was “well-groomed, self-confident and voluble,” nonchalantly outlining plots and schemes. The Washington Post was less admiring. Forty-year-old Mortimer spoke in “imprecise language, citing dates, places and person present without questioning by government counsel” and though he quoted “actual conversations,” the judge overruled defense objections. All these views were prescient. Mortimer was at the top of his game, but flaws in his methods were discernible to those prepared to see them. The trial was all about perception.16
Prosecutor Crim and Judge Carpenter gave Mortimer considerable leeway. He acted as though he were entitled to question and offend defense counsel. In one example, Easby-Smith read a passage from the printed testimony of the Senate hearings, in which Mortimer admitted he did not know whether Forbes had a copy of the communication code Mortimer had described for sending private telegrams, and then asked: “You so testified?” Mortimer: “If it is in the book I testified to it.” Easby-Smith: “Is that the only recollection you have?” Mortimer: “Well I don’t know if you are reading it or making it up, or what are you doing?” Easby-Smith reminded Mortimer that his counsel was there to protect him. The judge said nothing. Easby-Smith tried again: “Why didn’t you tell that Committee that you gave Col. Forbes the dictionary and the code, as you have told this jury?” Mortimer: “Well, if they had asked me that question I would have told them. I gave him one and he knows I gave him one.” Judge Carpenter stopped further development of this line of questioning: “The obvious answer is that nobody asked him the question.” When Easby-Smith objected, Carpenter agreed that he could ask how Mortimer knew Forbes “knew it.” The result was inconclusive.17
In another exchange, Mortimer refused to accept Easby-Smith’s reading of his testimony at the Senate hearings with the words, “I don’t know whether it is in the book, and I wouldn’t take your word for it.” Easby-Smith asked that this comment be stricken from the record, and Judge Carpenter agreed but ignored the further request to “caution the witness against his insolence.” And so it went, with Mortimer tossing off phrases such as “It is none of your business.” (About how he spent $5,000 that he retained from the $15,000 he had borrowed from the Thompson-Black loan.) Or, “I told you no … don’t know how many times a person would have to tell you that same thing.” (On whether there was a bathtub in the bathroom where $5,000 was reportedly given to Forbes.) Or, referring to Easby-Smith: “He stands in front of me. Get him away from in front of me and then I will answer the questions so you can hear.” (On Mortimer having changed his testimony from what he said at the Senate hearings, where he testified that Katherine Mortimer and Charles R. Forbes were not alone when they were playing craps at the Drake Hotel, and answering Easby-Smith in a very quiet voice.) It was difficult to make headway with such a stubborn witness. Mortimer was equally rude to Thompson’s lawyers, but the defense kept at it. When Randolph Laughlin asked him what he did the day after he gave Forbes the money, Mortimer ducked the question, and Laughlin tried to bring him back. Mortimer: “Pardon me please, let me finish my answer before you start again.” Laughlin: “I insist on an answer.” Judge Carpenter: “Mr. Laughlin, you interrupted him in the middle of this answer. Now when the witness finishes the answer, then you may go on with the cross-examination.” Mortimer was able to string out his answers, avoid answering straight yes-no questions, and add extraneous information with impunity. When he did answer Laughlin’s question, he inserted his usual flair for detail: He left Thompson’s office at 10:30–11 a.m.; went to the hotel to pick up his luggage; paid the bill for Thompson, Milli-ken, himself, and his wife (not apparently for Forbes, a notable omission); and took a taxi to the station. Thompson gave Mortimer two quarts of liquor. Then Thompson, Forbes, and Milliken talked on the platform. Milliken in his testimony (as a government witness) denied there was any platform discussion.18
The peculiarities of Elias Harvey Mortimer were glossed over by his ability to spin believable facts out of thin air and his brilliance in ducking questions, diverting attention, and injecting new information into his testimony. He obviously enjoyed himself and admired his own cleverness. A typical answer was the one he gave when questioned about the sum of $1,500 he said he gave to Forbes in August 1922 ($1,000 on one day, $500 the next) in the living room of his apartment at the Wardman Park Hotel as a kickback for the first foundation contract for a tuberculosis hospital at Tupper Lake, New York (which Mortimer was actually not involved with at all): “There was no one else in the apartment. I would not be foolish enough to pass any money to him in front of anybody, I realized it was a crooked transaction. So did he, but he was after all the money he could get.” Few people can lie barefacedly and earnestly for days under questioning by high-powered lawyers. Mortimer could. Laughlin asked him, with a touch of sarcasm, if he had any prior experience in corruption before meeting Forbes, knowing that he did. Mortimer had no hesitation in saying no: “So far as I can remember this was the first embarkation I made on the sea of corruption.” Forbes, he said, “helped him along.” When Laughlin asked him about the money that he testified he gave Congressman Zihlman for bribery (in his former accusations against two congressmen), Mortimer ducked adroitly, claiming the bribery was nothing to do with him: “I was just to collect the money.” Laughlin reminded Mortimer that during his evidence at the Senate hearings, covering more than a hundred pages, “you never once said, intimated or suggested one word about either Thompson or Black being present when any graft was discussed that was being given to Forbes.” Mortimer said that wasn’t true. Laughlin asked him to show where the evidence to substantiate his point was in the record. Judge Carpenter abruptly stopped this line of questioning: “We are not going through that Senate Committee record. We have our own troubles here.” Nevertheless, Laughlin made some headway. The defense lawyers pressed hard and managed to confuse Mortimer sufficiently enough for a truly skeptical, tough-minded juror to question the evidence he gave.19
A plus for Crim’s case was the constant insinuation throughout Mortimer’s testimony that he was solely or predominantly motivated by the loss of his wife Katherine to Charles R. Forbes, the man she called “Bobbie.” Mortimer’s tragic story of love given and rejected and friendship traduced—propelling him into a smoldering jealous rage—had worked on writer Will Irwin and promised to work here, too. Even James Easby-Smith, Forbes’s lawyer who, like Irwin, was steeped in classical literature, found this explanation compelling. At one point, Easby-Smith compared Mortimer to Othello, because of his “insane jealousy” and “method of vengeance.” The romance of revenge played well. Mortimer lost no opportunity to denigrate Colonel Forbes, usurper. In one of his answers, Mortimer slipped in the tidbit that he told Frank A. Vanderlip, a prominent Republican, that Forbes was “a bigamist and a deserter from the United States Army.” Judge Carpenter had references to Forbes’s “private life” stricken out. However, they could not be unheard by members of the jury, nor could Mortimer’s repeated references to Katherine Mortimer as an immoral, ungrateful spouse. Ably backed by his star witness, Crim played toward negative, fearful stereotypes of the fairer sex. Mortimer’s latest story leading up to the $5,000 bribe reeked with innuendo: “We [Mortimer and Thompson] went into the living room, and then went into the bedroom, where we found Col. Forbes and Mrs. Mortimer shooting craps—and it cost me $220.00 that afternoon for his fun up there with her. They were shooting craps on the bed—he in his shirtsleeves, working hard.” Eyewitness testimony from Edna Breese, a professional woman in her thirties, that Forbes was not in the suite at the Drake Hotel when this alleged transaction took place was dismissed on the ground that this “girl” could not have testified knowingly other than for the room in which she worked. American women had obtained the vote, could smoke, bob their hair, and shorten their skirts, but these and other aspects of the modern woman and how she should behave were only partly accepted. Male stereotypes of women were full of fear.20
Mortimer presented his wife as a chattel: “I am here against Forbes because he stole my wife!” Although he claimed he would have suppressed facts to “have protected that girl,” and wanted her back, he could be crude: “I did not want to bring out certain things against Mrs. Mortimer’s character, until it got to be common, public property over the entire United States, where he has had her at San Francisco last year and various other places.” Forbes was “chasing around with Mrs. Mortimer, taking her to hotels, as he did in Reading Pa. on June 7.” Or again, “I know Mrs. Mortimer used J.C. Martin [as an alias] on Col. Forbes’s advice.” She used the name Martin when she telephoned “her Bobbie” at his apartment in Washington and at the Plaza Hotel in New York, “where she met Col. Forbes on September 27, 1922; at the Rittenhouse Hotel in September, 1922 in Philadelphia, and at the Ritz-Carlton hotel in 1922.” Unlike his many other references to hotel records, Mortimer gave no proof that any of these assignations occurred—maybe yes, maybe no. It did not matter; the jury heard the testimony.21
Katherine Mortimer, a spunky woman subjected to marital abuse, was willing to testify and was in Chicago during the trial. The defense was divided on whether to call her. Crim deflected her role as a potential witness by depicting her as an angry female, “trying to kill her ex-husband’s story.” She had appeared against him in a Department of Justice investigation in Washington, Crim said, where she “exhibited great hatred of the man who once supplied her with limousines, furs, and diamonds.” In his final summation of the case for the jury, Crim criticized the defense for not calling her as a witness: “Why didn’t I call her? Because her interests are on the other side. Her sympathies are on the other side, as I see them. She would be a hostile witness for the Government and a friendly witness for the defense. So let them call her and let me cross-examine her, and let her state who was in the Drake Hotel on June 19, 20th and 21st. Let her state where the money came from to pay the expenses of this western trip. She would know.” Maybe yes, maybe no.22
Mortimer also hinted at an inappropriate relationship between Forbes and Carolyn Harding Votaw, testifying that her husband Heber Votaw had threatened to throw Forbes out of a tenth-floor window (no doubt the executive floor of the Veterans Bureau). This testimony was stricken from the record, but stricken from the record did not necessarily mean stricken from press reports. United Press International circulated Mortimer’s tale that Mr. Votaw threatened to throw Forbes out of a ten-story window and that the testimony was stopped. The Votaws were noticeably absent from the roster of witnesses. Lila Cramer, widow of indicted conspirator Charles Cramer, was another potential witness, but was not called. The defense apparently was not sure what she might say. A reporter described her as an attractive woman who was “said to be a bitter enemy of Forbes.” (Mrs. Cramer blamed Forbes for Charles Cramer’s failure to become an assistant secretary of war, because Forbes declined to recommend him.) Each of the women behind the scenes had a mind of her own, but no one was interested in what any of them knew or thought.23
Elias H. Mortimer concluded his evidence and cross-examination on December 12, 1924, the end of the third week of the trial. Crim called fourteen additional witnesses for the government in quick progression the following week, without adding anything of significance. The defense began with its first witnesses on December 17, focusing on the legitimacy of the Northampton construction contract and the impossibility of Forbes receiving $5,000 from Mortimer at the Drake Hotel because Forbes was not there. Dr. and Mrs. Tullidge, Katherine Mortimer’s parents, testified on December 19. The defense seemed to be going well. However, Christmas was rapidly approaching and judge and jurors (and others) were restless. After the first flurry of press interest, the trial moved along in a sparsely attended courtroom. Though reported nationwide through press networks, it was typically not front-page news—though there were some appealing headlines, such as “Steno Attacks Mortimer Yarn of Graft Toast—Saw Forbes That Day but No Scotch,” and “Father-in-Law Smirches Star Foe of Forbes.”24
On Monday, December 22, Judge Carpenter postponed the trial for a week, ordered to bed with a bad cold. This was convenient for those who lived in or near Chicago, but it completely disrupted the flow of the defense. According to a newspaper report, twenty defense witnesses were left hanging in Chicago, expecting to be called, among them Captain Leo Lannen, the former best man at Mortimer’s wedding and now his sworn foe, and Merle L. Sweet, Forbes’s former executive assistant and business associate. The defense let these two go. Lannen might have made an erratic witness, but Sweet’s testimony could have been invaluable for adding detail, clarifying and correcting fact, and depicting Forbes as an effective leader and a good boss at the Veterans Bureau. Jurors had been told not to talk about the case, but they could not stop others from doing so at holiday parties, nor could they completely avoid the newspapers, where public opinion was solidly anti-Forbes, anti-Harding, and anticorruption—and conviction the expected outcome of the trial.
Newspaper reading was a particularly sore point for the defense. Forbes’s Chicago lawyer, Elwood Godman, asked Judge Carpenter in the absence of the jury: “We feel in the interest of justice that Your Honor should instruct the jury not to read any articles in the papers or newspapers pertaining to this case.” Carpenter: “Not to read them or not to believe them?” Godman: “Well, both.” Carpenter was reluctant. He instructed the jury: “Gentlemen of the jury, the Court feels that it cannot ask any intelligent men not to read the newspapers.” He adjured them, instead, to base their verdict on the facts elicited in the courtroom, “not from what is published in the newspapers” and flattered them with the thought that “you have all had experience enough to realize that there are certain things that influence stories in newspapers,” which “want to catch the public.” Jury members were thus asked merely to “disregard” newspaper accounts. During the week off, the New York Times ran two laudatory articles about Director Frank Hines’s successes at the Veterans Bureau: the problem of too much red tape was being remedied, veterans were happier, services were good, and though the bureau was busy there was little waiting for attention in the Grand Palace Building in New York. Also, new funds made available by Congress would lead to additional hospitals and a training school for the blind near Baltimore.25
Mortimer’s presence at the trial was no longer necessary. On December 23, he wrote a nonchalant letter on his Washington letterhead to “My Dear Mr. Crim,” which represented Mortimer at his creative peak: “I am leaving for Winnipeg Canada tonight to spend Xmas with my Sisters and will be back in Minneapolis on Sunday morning Dec 28th.” He gave Crim the address and offered advice on some of the witnesses who were expected to testify for the defense among other comments. Among them was Captain Lannen, the former army procurement officer whose career Mortimer destroyed. Mortimer described him to Crim as a crook who was “forced out of the army in Washington, as his record will show.” Mortimer said he had never met two key defense witnesses for Forbes, who gave evidence about the day of the supposed $5,000 bribe on June 20, 1922, stenographer Edna Breese and manager Fred E. Hamilton from the Chicago office of the Veterans Bureau: “That is just a bluff about that girl being in our suite.” Thompson and Forbes were “simply getting a bunch of people to try to discredit me.” He did visit Dr. and Mrs. Tullidge in the fall of 1923, he wrote, but that was because they had asked him to get data to get Edward Tullidge out of prison. (An unlikely tale.) He never made any statements about trying to “get” Forbes. He had “never talked to Dr. Tullidge regarding Forbes at any time.” He ended his letter with a flourish: “Wishing you a very Merry Xmas, I remain Very Truly Yours, E.H. Mortimer.”26
What Forbes did over Christmas is unknown. During the week before, he had reportedly been robbed when someone entered his room at the Atlantic Hotel, though only pocket change was taken. He was comporting himself with remarkable restraint at the trial. No decision had been made about whether he would be called to the stand. The defense planned first to hear witnesses who would weaken or discredit Mortimer’s testimony.
The trial resumed on Monday, December 29, 1924, six weeks after it began. (This was when the parade of defense witnesses testified against Mortimer’s bad character and poor reputation, and then other witnesses testified about the assumptions and procedures for letting the contract at Northampton, and other matters.) The materials had become far less interesting to the press than stories happening elsewhere. A six-day recess in the eighth week slowed progress further. There was a rumor that Judge Carpenter had gone duck hunting. On resumption on January 19, Easby-Smith, eager to get at the facts, was reduced to reading from the minutes of the Federal Board of Hospitalization to establish that the board, not Forbes alone, had made hospital decisions. This was not a stimulating topic.27
On January 21, with all relevant facts in, as far as the defense could ascertain, the defense closed without calling Thompson or Forbes—to the apparent surprise of the prosecution. Elwood Godman, the Chicago lawyer representing Forbes, reported later that “peculiarly personal reasons” had influenced Thompson and Forbes not to testify. According to one report, Senator Lewis, the senior lawyer on Thompson’s team, urged that the two men stand in their own defense, but he was overruled by other counsel. Defense counsel let it be known that they had enough evidence already; and leaving well enough alone can be good policy. If Thompson went on the stand, his papers, which had been impounded, could be released, and there may have been materials he did not wish to publicize. (Mortimer had hinted that there was some scandal that could be produced about Thompson.) Forbes would be open to questions about the specifics of his relationship with Katherine Mortimer, his military desertion, and even the “bigamy” charge Mortimer had tried to insert. Neither defendant was in the best of health or would necessarily be a good witness. Forbes had proved he wasn’t when he testified at the Senate hearings. On the other hand, Forbes had declared not so long before, “All I ask is a fair chance to tell my side of the story to the jury and I will rest my case in the jury’s hands confidently.” He was impatient to testify and vindicate himself, he had asserted, and what he had to say would “startle Washington.” And now he was to say nothing!28
Ralph Potter, Crim’s associated Chicago lawyer, ran with this point in the closing arguments: “Where is the man who speaks for Forbes?” Easby-Smith countered with: “Forbes did not have to prove his reputation.” The judge gave a simple “no” and Potter agreed, “No, he does not.” But the damage was done. The jurors would naturally be curious, even suspicious, when the defendants declined to testify. Judge Carpenter put the problem nicely after the trial: “I think such a statement [refusal to testify] would have influenced the minds of the jury strongly, that these defendants sat here for forty-four full court days and then uttered no word in their own defense.” But even without the evidence of Forbes and Thompson, the defense had done a good job in their efforts to shake Mortimer’s evidence to the level of reasonable doubt.29
The trial galloped to conclusion. Ralph Potter began final arguments for the government on January 23, 1925, ignoring Mortimer, who (as Potter pointed out) was not on trial, and getting to the guts of the prosecution’s case. This trial was “one of the most important in the last half century” because a senior government official had betrayed his trust. Potter shouted as he paced to and fro before the jury: “This man was second only in responsibility to the president of the United States.” The case struck at the “tap roots of republican government,” at the “foundation of the integrity of the nation.” Citizens had the right to an uncorrupted government. The jury would help save democracy. Mortimer’s motive may have been “primitive,” Potter said, but his testimony had been corroborated “in every essential point.”30
Laughlin, for Thompson’s defense, noted discrepancies in Mortimer’s testimony and called Mortimer a “perjurer.” Laughlin shouted, too: “Forget Mortimer’s testimony. To hell with him.” Senator Lewis described Mortimer as “a poor, unhappy man, suffering from some form of a mental aberration.” Easby-Smith noted that Mortimer had evaded the draft during the war, reminded the jurors of Mortimer’s vow to get revenge even if his soul went to hell and his body to the penitentiary, and pointed to one of the Ten Commandments on the wall: “Thou shalt not bear false witness.” Chicago lawyer Stransky called Mortimer a “double crosser, crook, fixer, liar, confidence man.” The trial stemmed from the political situation of 1923, he said, not from the disinterested pursuit of justice. After the final plea for the defense by Forbes’s Chicago lawyer Elwood Godman, during which he claimed that the Republican administration had prosecuted merely to “save its face,” Forbes, Thompson, and their defense lawyers were smiling, expecting an early acquittal.31
However, John W. H. Crim was still to come, and this was Crim’s crowning moment. He addressed the jury for four hours on January 29, 1925, assuming the full force and conscience of the Coolidge administration. He plugged into visceral political themes and appealed to the jury’s common sense and moral duty as Americans: “It is time to call a halt to skullduggery and rascality in Washington. It is for you to say.” The explanation from the documentary evidence was the only possible one, Crim announced. Forbes and Thompson were “clever contractors and business men.” Why, if Mortimer was as bad as blackened, was he the “buddy” and “pal” of these men? The two defendants deceived President Harding’s sister, Mrs. Votaw, a “fine woman … of whom there is no question.” In Crim’s view, Forbes always had Mortimer in his sights for contracts and deliberately misled Harding. Everything wrong in the Veterans Bureau was Forbes’s fault: “By this devilish intrigue a great department of the Government was placed in a position where it could not function.” Crim’s prose thundered toward conclusion: “Oh, the sins the friends of Warren Harding visited upon him. Oh, that they had stayed away from Washington. Oh, his untimely death; that he might have lived; that he might be living today to tell you how he was duped by his friends.”32
Judge Carpenter’s instructions to the jury followed on January 30, after he praised the jury and the lawyers: “We have had no wrangling. It has been, from my standpoint, an ideal trial.” Jurors were not to accept what they might think the court’s role was but make up their own minds. “The guilt of the defendants, if they are guilty, can be established only by evidence admitted at the trial.” If after discussion they found the evidence to be as reasonably consistent with innocence as guilt, then they should return a verdict of not guilty. “You know what a doubt is and you have your idea as to what a doubt is that is reasonable.” The law requires “absolute certainty,” but, he pointed out, there is no such thing in human affairs. What is needed is “more than ordinary certainty of guilt”; not a “whimsical doubt” but an “honest and substantial misgiving, arising upon the evidence.” You should be just as sure about this as you want to be about a “matter of the very highest importance to your business, to yourself or your family.”33
Carpenter ran through the specifics of the case. Besides deciding whether there was a conspiracy, the indictment charged twenty-five or thirty overt acts. (Easby-Smith had argued that only three raised any real questions, and these were all innocent.) Carpenter emphasized: “One is enough.” He addressed the question of fact: “You all know what direct evidence is. It is something that is produced before you. … On the other hand, people are sometimes charged with doing things, and the evidence is all around the circle; there is no direct evidence pointing to the fact that such a thing was done by the particular person, but circumstantial evidence is legal evidence, and it is to be regarded by the jury in all cases. … It should have its just and fair weight with the jury.”
In the matter of the Northampton contract, if Forbes, “in good faith, believed that speed was necessary and desirable,” then he had the right to award the contract to the Pontiac Construction Company. “You are the judges of the credibility of the witnesses in this case. You have seen them here on the witness stand. You have heard all about them.” He addressed the key point of the defense: “As to the Witness Mortimer, who is a self-confessed accomplice, he had a right to testify … and if you believe that he told the truth, his testimony must be considered by you in reaching your verdict in this case.” That was the bottom line: If you believe Mortimer, act on this belief. It followed that if jurors doubted him, there would be little or no evidence for conviction.34
At this point, Forbes tipped back his chair and winked at his lawyers. The defense was blinded by an undue sense of satisfaction. Yet to members of the press the substance of the defense seemed thin. The prosecution’s view of “an insatiable greed among the conspirators” was a more likely tale and was certainly more newsworthy.35
Jury members retired at 11:30 a.m., debated for an hour and a half without a verdict, and were then escorted to lunch. At 3:45 p.m., they came out to ask for more information in response to a question posed by insurance man C. Dana Richardson: If the jury found there was a conspiracy, did this have to be connected with one or more acts in Chicago? Carpenter clarified that they must find “either that the conspiracy was engaged in here, inspired here or one or more overt acts had taken place here. That is a matter of my jurisdiction.” A little later there was a false alarm that a not guilty verdict was forthcoming. Forbes exclaimed, “I hope it is true and I can go on my way rejoicing.” Twelve ballots were taken by the jury. The first vote was 9–3 for conviction. The minority was eventually converted to the majority view. The vote moved to 10–2 and was then made unanimous. Jurors returned at about 5 p.m. to say they were ready. Judge Carpenter was called, and the foreman, Frank W. Hadlock, read the verdict at about 5:30 p.m.: “Guilty.” The defense asked for a jury poll. Each juror voted guilty. Front-page news.
The defense group had been smiling and chatting. According to the United Press syndicate, in passing sentence the judge “bitterly denounced” both men, aiming mostly at Forbes, who “shook with emotion.” Carpenter replied to a plea to remember Forbes’s heroic war efforts: “The better the mind the more malignant the heart.” A “mere shadow of the ponderous man” he had been in the Harding administration, Forbes gasped as sentence was pronounced, and would have fallen to the floor if “the strong arm of Randolph Laughlin” had not caught him. His face blanched from ruddiness to a sick pallor. Thompson groaned when he heard the verdict but retained his calm, and the defense attorneys were speechless. As Thompson slumped in his chair, his wife, accompanied by a group of women relatives and friends from St. Louis, appeared devastated: “The lips of the women were moving as if in prayer.” There were murmurs that the verdict was unjust. Forbes seemed to have no other supporters at hand. Easby-Smith took his right hand and led him toward the door. “It is not over yet,” Forbes said. He and Thompson remained free for the duration, continuing under their existing $10,000 bail bonds.36
The verdict was the second victory for the federal government on January 30. In the morning, flamboyant liar and former agent Gaston Means and shady lawyer Thomas Felder were convicted in New York for accepting money in a conspiracy to bribe former Attorney General Harry M. Daugherty. Means was sentenced to prison for two years, and Felder was fined. Daugherty seized the opportunity to gain some credit. Speaking from Columbus, Ohio, he claimed he had directed both the Means and Forbes cases and warned the public about officials who said they had “pull” or claimed they had been framed.37
On February 4, the court overruled a defense motion for a new trial. Among other points, Judge Carpenter dismissed Laughlin’s claim that Mortimer made statements at the trial that conflicted with what he said at the Senate hearings. That issue was dead. Sentencing took place the same day. Carpenter spoke out: “What are we coming to when men in high places betray their trusts?” The two men had been proven guilty. “The jury has decided, and I can do nothing except mete out the punishment the law provides.” He imposed the maximum sentence for conspiracy: two years imprisonment and a fine of $10,000 for each man. Forbes looked gray-faced and drawn. When the judge’s comments suggested he was about to impose a strict sentence, Forbes “wiped his face with his handkerchief nervously.” Both men appeared impassive as they listened.
Forbes’s public statement followed: “I am clear in my conscience. I am innocent of the atrocious charge. I have been made the victim of circumstance.” He said he would carry his case to the highest courts and “am confident that in the end I will be vindicated.” Thompson reported that he was “drawn into the maelstrom of Mortimer’s hate for Forbes.” Public opinion was against both men. The journal the Nation, like the mainstream press, showed no surprise at the verdict: “So far as Colonel Forbes’s guilt is concerned, there has been scant doubt of it since a congressional investigation unrolled a story of political debauchery which for sordid corruption has no rival in all our ugly pages of war scandal.” There was “general satisfaction of the American people with the outcome.”38
On February 10, 1925, Judge Carpenter took his wife to Europe for a few weeks. On March 6, Forbes’s attorneys filed a seventy-five-page writ of error in federal court, which alleged, inter alia, a variance between the alleged conspiracy and evidence of a conspiracy, prejudicial, and irrelevant testimony by Mortimer and error in sending the jury home every night. As long as there were appeals, hope could be sustained.