Twenty-Four

June–July 1931

After months of buildup in the press, George E. Q. Johnson turned his signature legal weapon on Al Capone.

On June 5, 1931, Johnson’s office handed down a sixty-five-page indictment charging Capone with twenty-one counts of income tax evasion from 1925 to 1929. When combined with the earlier, secret indictment covering 1924, Capone faced a total of thirty-two years in prison and as much as $80,000 in fines.

Capone went to the Federal Building to post bond.

“Al was nattily garbed, as usual,” said the Herald and Examiner, “wearing a grey [sic] suit, black shoes, a white shirt, a black tie and new straw hat, but, for the first time in his infrequent appearances in a courtroom, he had lost his smile and affable mood.”

“Frowning, surly, and obviously worried,” Capone ducked reporters’ questions. Would he plead guilty?

“There’s nothing to it,” Capone shot back.

Federal officials were anything but tight-lipped. Unnamed “government men” told the Herald and Examiner they’d compiled an “overwhelming” and “airtight case” that “hits at the very inner circle of the Capone organization.” After A. P. Madden spun the tale of the tax investigation for eager reporters, the New York Times rather generously compared their work to the exploits in “a dime novel.”

George Johnson offered his own words of praise for the agents, but remained measured and reserved, unwilling to get ahead of himself. Like the defense, he assured the press Capone would not and could not seek a plea bargain.

“We don’t expect him to try and plead guilty and secure a lighter sentence,” Johnson said. “We want no compromise with Capone.”

The indictments seemed impressive. They laid out in minute detail just how much the government alleged Capone had taken in—$1,038,654.84 from 1924 to 1929—and how much he owed in back taxes—$215,080.48. They even allowed him $1 in deductions per year, which made the whole business seem that much more official.

But for all this bureaucratic exactitude, the tax men’s charges were little more than educated guesses based largely on the Capone lawyer’s letter seeking a settlement. No one knew whether those figures were accurate, nor had attorney Mattingly claimed as much. And that was the only hard government evidence giving any hint of Capone’s income.

The ganglord and three of his partners each received one-sixth of the Outfit’s profits, Mattingly had written. From witness testimony, the tax men knew Capone’s partners were his brother Ralph, Frank Nitto, and Jack Guzik. Though lacking any of Al’s financial records, the feds had plenty of bank statements and canceled checks from those three.

To compute Capone’s income for a given year, the government added up deposits made by Nitto, Guzik, and Ralph and assigned one-sixth of the total to Capone. This produced convincing-looking but essentially worthless figures—nothing showing any money deposited by Nitto, Guzik, and Ralph winding up in Capone’s pocket.

Nor could the feds be sure the crucial letter could even be used at trial. Mattingly had made the government a confidential, good-faith offer to settle. Under standard rules of evidence, such “bona fide offers to compromise,” made by an attorney on behalf of a client, were not admissible. The judge might well abide by precedent and throw the letter out.

And even if the judge allowed it, the jury might view the letter as an honest attempt to pay up, undermining the government’s central charge that Capone willfully and deliberately avoided paying his taxes—a necessary element for charging him with a felony.

Frank Wilson managed to dig up a few other scraps of evidence, such as wire transfers made to Capone under various names. But most of what he and his agents had related to Capone’s lavish purchases—$2,500 cash up front for thirty custom-made diamond belt buckles, $3,780 for more than twenty tailored suits (each with a specially lined pocket to hold a revolver), and $84 for seven pairs of underwear of “a knitted very fine silk similar to ladies gloves.”

Still, Capone spending money didn’t prove he’d received it from a taxable source. Although such testimony might make for compelling courtroom theater, and enrage a Depression-starved jury, a good lawyer could get it thrown out.

The government’s best piece of hard evidence remained the Hawthorne Smoke Shop ledger; still, nothing in it proved Capone earned any income from the casino. Wilson had spoken with several employees and cobbled together an estimate of Capone’s share of the profits; but their statements had been conflicting and unreliable.

At least one had recanted, in fierce loyalty to the boss, and all were too risky to call at trial.

Uncle Sam would have to settle for calling bookkeeper Leslie Shumway and a few others to say Capone behaved like he owned the place, and even claimed he did. If so, then presumably he made money from it. But that remained an assumption, a leap of faith for a jury.

Even worse, the ledger ended in April 1926, well outside the three-year statute of limitations. Wilson had worked under the assumption that a six-year statute applied to tax evasion, but the higher courts had yet to decide which rule applied. Even if prosecutor Johnson managed to eke out a conviction, Capone’s attorneys could file for an arrest of judgment, putting the gangster’s sentence on hold for a year or two, dashing Johnson’s hopes of jailing Capone before the 1932 campaign and the World’s Fair. And the Supreme Court might very well decide the three-year rule applied, wiping out most of the felony charges against Capone.

The tax case rested on quicksand and Johnson knew it, but had rushed it into court anyway. With the ledger about to expire and the Justice Department breathing down his neck, Johnson had little choice—otherwise, he’d lose his shot at Capone. But with so many holes in his case, he could see little chance of winning a speedy conviction, his best hope the one thing he’d refused to do in public—cut a deal with Capone.

Back in late April or early May, a Capone lawyer met with Johnson, surprising the prosecutor by revealing his client knew of the secret indictment handed down in March. Capone feared what would happen in court, believing press notoriety made a fair trial impossible. If Johnson would recommend “a satisfactory sentence,” Capone would plead guilty.

Johnson brought the offer to Attorney General William Mitchell and his assistant, G. A. Youngquist. They gave him tacit approval to negotiate, but reserved the right to sign off on any plea bargain. Above all, this had to remain secret; the country wouldn’t look kindly on the Justice Department bargaining with a notorious “public enemy.”

For a few weeks, Johnson met repeatedly with Capone’s lawyers, who said Capone would settle for eighteen months behind bars, as had Frank Nitto for his guilty plea. Johnson held firm at two and a half years. The defense came up to two years, and Johnson seemed ready to accept—the tax indictments had yet to come down, and Johnson considered shaving off some of the charges to make it seem as though he’d driven a harder bargain.

The Justice Department, as Youngquist wrote, cared less about the length of Capone’s sentence “than the restoration of public confidence in law enforcement that would follow upon his actually being put behind the prison bars.” Jailing Capone was about making a statement; the appearance mattered more than the legal realities.

But convicting Capone of tax evasion—on a guilty plea, no less—would send a mixed message to the public.

“It is not conducive to American pride,” wrote the Louisville Courier-Journal after Capone’s indictment, “that gangsters, guilty of every abomination from operating a chain of brothels to committing wholesale massacre, should be found guilty only of failing to pay taxes on their ill-gotten gains.”

To put the best possible face on the deal, the feds couldn’t just lock Capone up as a tax cheat; they needed something more. And the government still held the power to charge Capone with his signature crime: bootlegging. A Prohibition conviction would keep the president’s promise to back up the Eighteenth Amendment, handing Herbert Hoover a major, and much-needed, symbolic victory.

During a visit to Chicago in May, Youngquist suggested Johnson dredge up an old liquor conspiracy indictment against Capone and roll it into the plea bargain. That might get the defense to agree to the two-and-a-half-year sentence and would certainly please the president.

“If the guilty plea to the liquor conspiracy case can be secured in addition to the plea in the tax case,” Frank Wilson wrote Elmer Irey, “[the president] can tell the world that he has the biggest bootlegger and most notorious gangster in the country in jail. That ought to show the country he is doing his best for law enforcement and perhaps would result in considerable support in 1932,” when Hoover faced reelection.

But Johnson didn’t need the old indictment—he had the work of Eliot Ness and the Untouchables. During their first two raids, the team had seized important records and arrested key figures in the beer business. And pencil detective Lyle Chapman had strung together evidence from every raid on an Outfit-connected brewery since 1924, effectively tying Capone to the racket.

The case remained, at best, a work in progress—more raids would yield more evidence and a fuller picture of the gang’s operations. Johnson already had enough for a sweeping indictment implicating Capone and several of his top aides in a vast, ongoing bootleg conspiracy.

As with the tax charges, the normally snail-paced Johnson would be pushing this case into court before its time. But that didn’t matter, because he never expected to take it to trial anyway—Ness’s work would be another bargaining chip in his negotiations with Capone’s lawyers.

One week after the tax indictment, the grand jury charged Capone and sixty-eight others with five thousand counts of conspiracy to violate the Volstead Act. Each count represented either 1,500 gallons of beer seized in a brewery or a confiscated truckload of thirty barrels. That amounted to some 7.5 million gallons, with a total street value in excess of $2.7 billion.

Newspapers ate these figures up, running enormous headlines dwarfing those about tax charges.

5,000 CRIMES INDICT CAPONE, screamed the front page of the Herald and Examiner. INDICT CAPONE; 5,000 counts, proclaimed the Tribune. News of the tax indictment had only made it to page four of the New York Times. The Prohibition indictment, on the other hand, landed squarely on page one.

Asked by reporters how he felt about his chances in court, Johnson smiled. “We never indict unless we have a good case,” he said.

“This is the end of Scarface Al.”

The next day, Ness led a squad of federal marshals out to round up all the defendants. Most big shots were expected to turn themselves in quietly, but asking around about some lesser-known names, the investigators got only belly laughs in response—at least ten named in the indictment did not exist, their names springing from the fertile imaginations of gangsters forced to testify before the grand jury. Federal officials threatened perjury indictments against the “belligerent Capone henchmen,” as the Daily Times described them, who had pulled the stunt.

“At any rate,” wrote the Times, “the false names do not affect the validity of the indictment.”

Congratulatory messages flooded Johnson’s office. But the prosecutor insisted the real credit belonged to the agents, heaping praise on Ness’s special squad.

“They worked at the risk of death,” wrote the Tribune, “and resisted the temptation of bribes several times as high as their salaries for a year, Mr. Johnson said.”

Johnson also revealed the group’s nickname, which first appeared in print in that evening’s Herald and Examiner. An Associated Press writer included the name in his story, and the following morning Ness and his “Untouchables” made coast-to-coast headlines.

In praising Ness’s team, Johnson went far above and beyond the pat on the back he’d given the tax men—playing up the peril of the Untouchables’ work, stressing the huge payoffs they’d refused, and describing in detail the threats and intimidation they’d ignored. He led reporters to believe this was more than a ragtag band of misfits.

“The average age of these agents is 30 years,” said the Tribune, “and the average salary $2,800. All are college graduates, and they are the picked men in the prohibition service from all parts of the country.”

Really, their average age was closer to thirty-five, and apart from Ness, only Chapman had graduated from a four-year university. Claiming otherwise painted these men as something they weren’t—clean-cut, fresh-faced feds, models of what the world would soon come to know as “G-men.”

Johnson put the squad’s best face forward, the one belonging to the college-educated, twenty-something Ness.

“Seven of the eight . . . remain anonymous for various reasons,” reported the AP.

Only Ness’s name made the papers. His photo, taken from his government credentials, went out on the AP wire, running everywhere from Washington, D.C., to Enid, Oklahoma.

Exploits having little to do with the current Capone case—such as Ness cheating death at the hands of a stiletto-wielding henchman in Chicago Heights—made it into the articles, helping make the plea deal seem a hard-won victory. Capone’s story already had an engaging villain—Johnson merely supplied a hero.

And Ness willingly filled that role. The same day the story hit the papers in Chicago, Ness sat down for an interview with twenty-two-year-old Priscilla Higinbotham of the Herald and Examiner. Higinbotham moved in Ness’s sphere, having studied under Goddard at the Northwestern crime lab. But she treated him less like a lawman than a celebrity—a charming, well-educated, engaging personality.

“Ness is only 28, but he has formed some very definite views,” Higinbotham wrote. “While feeling that the Prohibition amendment, as a law, should be enforced, he has a greater interest, apparently, in wiping out the evils that the law has brought about.”

She closed by noting Ness cut the interview short to go play a few rounds of tennis—“just a ‘workout,’ necessary to prepare him for more hours and hours of intensive work to ensure Alphonse Capone’s ultimate sojourn behind the bars.”

Yet Ness remained a bit player in crafting his own legend. From the moment it hit the papers, his story had a life of its own, spinning well outside anyone’s control. Far-flung editorial boards, who knew next to nothing about Ness, sang his praises in lofty terms.

“No soldier on the battlefield ever performed more heroic work than has Eliot Ness performed,” said the Hollywood Daily Citizen on June 17. “He should be honored as are the heroes of the battlefield honored.”

Individual citizens sent Ness a string of fan letters.

“God bless you and the others for the good work you have done,” wrote one Californian to Ness. “I knew that some day some one would appear and make an end of Al’s terrible situation.”

In a private letter to Ness, the editor of a Wisconsin newspaper offered his own endorsement.

“I am a 100-per cent wet, but I honor you for your bravery,” he wrote. “The sooner you can put these boot-legger-drys where they can’t vote for prohibition, the quicker we can get a repeal of the 18th amendment. I’m for you.”

Thrust from obscurity into the limelight, Ness arrived at just the right time to become a cultural hero. Thanks to the onset of the Depression, the American infatuation with racketeers had turned to loathing.

“A well fed, busy, money-making America could forget a massacre and continue to wink at gangsters,” Liberty magazine said that fall. “The glamour has been stripped from the gangsters. Even the most stupid of us see them now as they are, yellow louts, red-handed plunderers. . . . Hunger has made us see the truth.”

Americans hungered for heroes, too, now that the clay-foot idols of the Roaring Twenties had begun to crumble. After overdosing on individualism, many warmed to the idea of a man who placed the country’s needs before his own.

“One of the things that brought malignant power to Capone was a passion for owning things,” said the Birmingham Age-Herald. “If one may judge the mind and spirit of young Ness by his first public service, his passion lies in making a better social state—a passion for clean and fine things, something quite apart from the acquisitive passion.”

Capone and his breed represented the heartless, take-no-prisoners capitalism that drove the country into Depression. The story of the Untouchables offered a heroic alternative, a necessary corrective to a decadent decade.

Ness, of course, was far from the only figure embodying these virtues—George Johnson, Frank Wilson, and others who worked on the Capone case could lay similar claims. But none shared Ness’s youth, good looks, or boyish charm, and none had taken the fight to Capone as directly as the Untouchables. In a nation reared on tales of frontier lawmen, Ness couldn’t help but stand out. He became the symbol of everything the Justice Department hoped to prove with Capone’s conviction—that law and order still reigned in the United States.

“This is an achievement that will go far towards strengthening the faith of our people in their government,” an Oklahoma pastor wrote Ness. “We had begun to wonder whether criminals and their purchased lawyers were not our real rulers. The success of the government through the diligence and courage of men like yourself renews the courage of all of us.”

Another Oklahoman drew inspiration from Ness’s courage. Chester Gould had moved to Chicago in 1921, hoping to ply his trade as a cartoonist. But after ten years of turning out such strips as Fillum Fables, The Radio Catts, and The Girl Friends, a successful nationally syndicated strip remained beyond his grasp.

He began badgering Captain John Medill Patterson of the Tribune Syndicate with one idea after another. Patterson rejected them all.

“I’m capable and determined,” Gould wrote Patterson in March 1930, “give me a chance. Won’t you believe me when I say I know my stuff and can deliver the goods?”

Gould liked to think of himself as a newspaperman, with the front page as his competition, and he ripped his next idea right from Chicago’s headlines. The big gangsters, who had been given a free pass by corrupt local cops, were being hounded now by a new breed of federal investigators.

In the summer of 1931, he began to envision a strip about a modern Sherlock Holmes. Instead of a deerstalker, this detective would wear a fedora; instead of an Inverness cape, a camel’s-hair topcoat. Newspaper stories about Ness and the Untouchables gave Gould real-life models, crystalizing the character in his mind—a courageous, scientific crime fighter battling a modern Moriarty.

Gould worked up a week’s worth of strips pitting a cigar-chomping, Capone-modeled gangster against a hook-nosed, square-jawed detective—Plainclothes Tracy. Grim and violent, with sneering, brutal villains speaking the argot of Chicago’s streets, Tracy was like nothing that had ever appeared in America’s funny pages, which was precisely what piqued Captain Patterson’s interest.

YOUR PLAINCLOTHES TRACY HAS POSSIBILITIES, he wired Gould. WOULD LIKE TO SEE YOU WHEN I GO TO CHICAGO NEXT. The telegram left Gould trembling and dizzy. When Gould showed up for his meeting with Patterson, the captain began pacing the room.

“This name is too long,” he said. “Charlie, Harry, Harry Tracy, Buck Tracy, Dick Tracy. Let’s call this man Dick Tracy. They call cops Dicks.”

“I was a little jealous that I didn’t think of it myself,” Gould recalled. “It was a brilliant idea. Dick Tracy. Tracy was a play on tracing, in my book.”

The feature debuted the following October. Like the story of the Untouchables from which it drew, Dick Tracy offered everything Americans wanted in a lawman—a detective who shot first, asked questions later, and never let a bad guy get off with a plea bargain.

Shortly after the return of the Prohibition indictment, George Johnson met in private with Judge Wilkerson. Johnson had every reason to see the judge as an ally, considering the man’s history with the Capones. But Wilkerson’s fierce determination to go his own way made him a wild card.

The two had discussed the plea bargain before, with Johnson outlining the flaws in the tax case. Wilkerson had remained noncommittal, saying only the matter merited consideration, reserving his final decision.

Now, after reminding the judge of the risks in bringing Capone to trial, Johnson said the Justice Department and the defendant had come to an arrangement. As before, Wilkerson was careful not to promise to abide by the deal, but he didn’t reject it outright, which was enough for the prosecutor. Johnson went back to Capone’s attorneys and told them Wilkerson had approved the bargain.

To close the deal, Johnson compromised even further. The attorney general had reluctantly signed off on concurrent sentences of two years for bootlegging and two and a half for tax evasion, with the understanding that Capone would serve his full time. But Johnson agreed to only eighteen months on the Prohibition charges, and left Capone’s lawyers with the option of appealing the tax conviction on statute-of-limitations grounds.

Capone surely viewed this as a victory. Prison would give him a respite from constant raids and other federal harassment—he’d walk out in 1934 still in his prime, his slate essentially wiped clean. The Depression might even be over by then. People would have the money to start drinking and gambling again; Capone could return to an organization healthier and more profitable than before.

If he fought the charges at trial and took his case to the Supreme Court, Capone might end up going to jail just as prosperity began to kick in. Better to take his lumps now.

On Tuesday, June 16, a few minutes before 2:00 P.M., Capone arrived at the Federal Building with bodyguard Phil D’Andrea. Onlookers thronged the streets, many more packing the halls inside, desperate to catch a glimpse of the great gangster. When Capone stepped from his car, ten police detectives surrounded him and cleared a path to Judge Wilkerson’s crowded courtroom. A sea of spectators tried to force their way in, but guards kept doors sealed tight.

Capone took a seat alongside his attorneys, his camel’s-hair suit—a tasteless bright yellow—offering a stark contrast to their sober attire. Journalists crowded in, bombarding him with questions. The Evening American’s correspondent made herself heard over the ruckus, asking about Capone’s sunshine suit.

“Yeah, it is loud, isn’t it?” Al said. “Well, I got to do something to give the crowds their thrill.”

Capone crossed his legs, showing off red-white-and-blue silk socks. Everything about the defendant, from his eye-watering outfit to his self-satisfied smile, telegraphed his delight at getting away with murder.

Elmer Irey had come from Washington to witness the Intelligence Unit’s signal victory. With him were the agents who’d dogged Capone for the past three years: Frank Wilson, A. P. Madden, Nels Tessem, and Clarence Converse.

Wilson studied the man who’d outfoxed him time and again.

“There’s a bad streak in him,” Wilson said, “but I can’t help thinking that he’s what could have been a good man gone to waste. . . . The abilities he undoubtedly has might have been turned into quite different channels.”

Eliot Ness had also come to see Capone plead guilty. Perhaps that was when, according to one report, Al asked his lawyer to point out that meddlesome Prohibition agent. Ness, who had never laid eyes on Capone short of a newsreel, kept his impressions of the gangster largely to himself.

But the defendant’s cool confidence didn’t sit well with Eliot, whose calm demeanor masked boiling frustration at Capone’s having managed to cheat the law.

When Wilkerson walked in, the spectators got to their feet like sports fans for the national anthem. Then they fell back in their seats, ready for the show. Capone, his attorneys, and the prosecution team approached the bench.

Standing alongside George Johnson were his two assistant prosecutors: Dwight H. Green, in charge of the tax case, and Victor E. LaRue, handling the Prohibition indictment. Green faced the defendant.

“Alphonse Capone,” he declared, “in indictment No. 22852 you are charged with attempting to evade and defeat your individual income taxes for the year 1924. . . . How do you plead, guilty or not guilty?”

“I plead guilty,” Capone said softly.

“In indictment No. 23232,” Green said, “you are charged with attempting to evade and defeat your individual income taxes for the years 1925, 1926, 1927, 1928 and 1929, and with willful failure to file . . . individual income tax return[s] for 1928 and 1929. . . . How do you plead, guilty or not guilty?”

Capone murmured, “I plead guilty.”

Now LaRue stepped forward. “And in indictment No. 23256,” he said, “you are charged with conspiracy to violate the National Prohibition Act—how do you plead, guilty or not guilty?”

“I plead guilty.”

With that, it was over, and the court moved on to another case.

Capone said he “hoped everybody was satisfied,” sighed, and slipped out, a phalanx of police hurrying him into a freight elevator and away from the crowd. In the airy rotunda, gawkers lined the balconies like gargoyles, waiting for Al, already gone out a side door.

Asked for a comment by the Tribune, Johnson offered only a weary smile. He told the Herald and Examiner: “I’ll be able to sleep easy for the first time in a long while tonight—I’ll be able to relish a good meal, too.”

The long-suffering Prohibition Bureau greeted the news with elation. “Personally,” Dwight Avis wrote Johnson, “I do not believe that there could be any more distinct accomplishment that would tend to create public confidence in the proper enforcement of the National Prohibition Act.”

The agency’s internal newsletter, the Bureau Bulletin, ran a brief story listing the agents responsible for Capone’s indictment—Ness, Joe Leeson, and Lyle Chapman getting the most credit. The piece also acknowledged the work of Maurice Seager, Warren Stutzman, Paul Robsky, Marty Lahart, Barney Cloonan, Robert Sterling, and Marion King—the first and only time the names of all ten Untouchables would appear together in print during their lifetimes.

The tax men, too, were celebrating. “There seems to be a feeling in Washington, since Al Capone was forced to plead guilty in Chicago,” said the New York Times, “that the Federal Government at last has an effective weapon with which to break the backbone of racketeering in the United States.”

Irey pledged to clean up Manhattan by sending the same agents who had so effectively snared Capone. Meanwhile, Frank Wilson, his work seemingly finished, closed off a new but promising phase of the investigation.

Back in March, he’d sent two undercover agents, Michael Malone and James Sullivan, to investigate Capone’s ties to brothels in Stickney. They’d rented rooms in the Lexington Hotel, posing as gangsters, hobnobbing with Outfit men. But the pair hadn’t penetrated very deeply into the mob before Capone pleaded guilty and their work came to an abrupt end.

The day after Capone gave his pleas, Irey, Wilson, and Johnson went down to Springfield to see Herbert Hoover, in town to rededicate Abraham Lincoln’s newly renovated tomb. Illinois Republicans packed the place; congratulations from officials and citizens alike greeted Johnson everywhere. Reporters hounded the prosecutor, asking if the president planned to congratulate him in person.

No, Hoover hadn’t sent for him, Johnson said. “After all, I’m only the district attorney, and my boss is Attorney General Mitchell.”

Johnson insisted he wasn’t a gubernatorial candidate, adding, “I don’t want to claim too much credit.” He stressed the strength of the indictments, saying he could have won in open court had it been necessary.

“Capone,” Johnson said, “must have been pretty well convinced we had an air-tight case.”

At the ceremony in Oak Ridge Cemetery, the president received an unusually warm greeting, four hundred–some protesters having been nudged out of town before his arrival.

“There can be no man in our country,” Hoover told those assembled, “who, either by his position or his influence, stands above the law.”

In the crowd was Samuel Insull, chief financier of the Secret Six, his utilities empire not yet fallen.

Afterward, the president went over to his old friend Frank Wilson and congratulated him on “a fine job up in Chicago.” For Wilson, this made the past year’s work worthwhile. At the governor’s mansion, Hoover gave George Johnson a few private moments.

“The president was very kind in what he said to me,” Johnson told reporters, refusing to elaborate.

Almost as soon as Capone left the courtroom, word of the plea deal began to creep out.

“The most frequently heard report around the Federal building,” wrote an AP correspondent, “was that [Capone] would be sentenced to two and a half years on each charge, the sentences to run concurrently, but Federal authorities refused to discuss the reports.”

Other officials flatly denied Capone made any kind of bargain, claiming “the czar of rumdom had thrown himself wholly on the mercy of the court.”

But within hours of the guilty plea, the Evening American printed the agreed-upon sentence as fact, as if all Judge Wilkerson had to do was rubber-stamp it. Capone might come up for parole in eight months, or get out in under two years with time off for good behavior. And it was all “the result of a compromise with the government.” This came from the defendant himself, bragging to reporters about the “easy out” he’d finagled from the feds.

So accustomed had the city grown to gangsters buying their way out of prison, seeing one bargain his way in—however briefly—seemed an improvement. Yet Frank Loesch sensed “a very distinct undertone of dissatisfaction” among his fellow Chicagoans, who only reluctantly granted getting Capone in court was better than having him gunned down by fellow gangsters.

“I hope that someday,” Loesch wrote the president, “you will allow me to tell the public how much you had to do with it and how much of the impetus was personally given by you.”

“Some time when the gentleman you mention is safely tucked away, and engaged in very hard labor,” Hoover responded in good humor, “you can tell all about it.”

Hoover’s attorney general felt less optimistic.

“It was, no doubt, a tactical mistake to receive the plea of guilty and then allow two or three weeks to elapse before sentence is imposed,” William Mitchell wrote Johnson on June 25. The public was liable to develop “very exaggerated ideas” of how severe the sentence should be.

Having agreed “with some misgivings” to the two-and-a-half-year sentence, Mitchell was livid Johnson had offered further concessions behind his back. The attorney general was convinced if Capone didn’t serve his full two and one-half years, “the reaction would be such that we would have been better off never to have commenced the effort to bring him to justice.”

In late June, Judge Wilkerson delayed the sentencing hearing until the end of July, with Capone set to go to jail then. Johnson went on a brief vacation only to return to find that the judge expected the prosecutor and his team to present all their evidence.

But Capone had already admitted his guilt, eliminating the need for a trial. A confused Johnson met with Wilkerson to see what, exactly, the judge had in mind.

Wilkerson singled out the Prohibition indictment, saying he had just come to realize how tenuous the evidence was. The prosecutor found this surprising, since details of the case had been widely reported. That was precisely the problem—the judge showed Johnson letters and newspaper editorials, negative reactions to the plea bargain, demanding Capone receive a stiffer sentence.

By playing up the strength of their case against him, the government had overpromised. They couldn’t accuse Capone of five thousand crimes, then send him away for two and a half years and expect the American people to applaud.

Wilkerson flatly accused the prosecutor of recommending too short a sentence. Johnson said he couldn’t go back on his promise to Capone’s attorneys—his sense of honor demanded he follow through. Anyway, the Treasury and Justice Departments had approved the deal. If Wilkerson wouldn’t abide by it, Capone would have every right to change his plea to not guilty.

And that was the last thing Johnson wanted, because he knew they stood such a slim chance in court. The judge, seeming to soften, asked Johnson to get written approval of the bargain from both Treasury and Justice. If Wilkerson had such statements in hand before passing sentence, any backlash might be mitigated.

Johnson did so, but Wilkerson remained unsatisfied, calling the prosecutor a week before the hearing and demanding Capone plead guilty without condition.

Otherwise, Wilkerson would bring the tax case to trial, which he felt stood a better chance of success than the Prohibition charges. He leaned on judicial precedent, but also brought up public demands for a harsh sentence. Federal judges were supposed to be immune from outside pressure—they didn’t need votes to stay in office—but Wilkerson took the political realities very seriously.

“A judge,” he told Johnson, “would be a damned fool not to pay attention to that!”

This left Johnson, already celebrated as the man who got Capone, in a perilous position. His strategy of jailing gangsters on tax charges had become the model for fighting crime in other cities—having the deal exposed publicly, and then losing his battle in court, would destroy him.

Caught between a stubborn judge and his promises to the defense, Johnson could only double down on the plea bargain. He prepared a lengthy statement for the sentencing hearing, reminding Wilkerson of the hazards in each case and urging him to accept the two-and-a-half-year sentence.

But if he thought he could reason with this judge, Johnson was mistaken. By leaking the story, the arrogant Capone had sealed his own fate—and the prosecutor’s, too.

Judge Wilkerson was not about to let a gangster tell him what to do.