WHEN COURT RECONVENED ON Thursday, January 12, jurors may have noticed the men who had claimed several prime seats in the spectators’ section. Local lawyers, some still wearing the fine camelhair coats they had put on that morning in response to winter’s sudden return, had pulled rank to catch a few moments of the great Sam Leibowitz’s presentation of his client’s defense.1
The state had abruptly rested the night before, after the defender had dismantled the testimony of final witnesses Patrolman Walker and Martin Faber, a special investigator for the prosecutor’s office. Again Leibowitz had reached for familiar tools: the lawyer had suggested the prisoner’s coercion when Walker, Chief McFeely’s longtime secretary, had claimed not to know why it had taken so long to jot down Scutellaro’s 225-word statement; and Leibowitz had linked Investigator Faber’s too-perfect testimony to the man’s admitted court recess discussion of the case with his boss, Assistant Prosecutor George.2
Now Leibowitz was prepared to invert the jurors’ perspective—to bring them close to the man they had been encouraged to view from a dispassionate and disbelieving distance. He called as his first witness Joe Scutellaro.
The courtroom grew quiet as the defendant rose from the prisoner’s bench. He moved awkwardly; his small stature and stiff walk conjured the image of an unjointed wooden toy. A shaft of light from a courtroom window illuminated his long, chalky face. Joe shielded his eyes to search the second row for Anna, and when he saw her, he took a deep breath, as if he had been revived.3
Leibowitz began the direct examination slowly—calmly and purposefully drawing from his client a “tale of illness, privation, and grim poverty.” The defense attorney took care to elicit precise, evocative details—the empty coal bin, the family living on coffee and stale bread—to fire the imagination of jurors and to stoke their sympathy. He mentioned Scutellaro’s 1932 attack on the emergency relief officer to disallow the prosecution any element of surprise; and then he drew comparisons between those bleak early Depression years and the recession that was still punishing the nation’s poorest families in February 1938. With this foundation, Leibowitz could return to the day Joe had argued with the poormaster.4
“On February 25, how much money was there between you and starvation?” Leibowitz asked.
“Fifteen cents,” Joe replied, noting that he had even less after he bought three rolls for his family to share. As he described kissing his wife and children good-bye that morning, Joe again looked over at Anna and stopped speaking for a moment. He removed his glasses and wiped his eyes.5
Leibowitz waited while his client composed himself, then continued his questioning. Joe described walking to city hall with Corrado, waiting at the poormaster’s office, and the argument between Fusco and Barck. After Barck had washed his face, Joe remembered, an aid-seeker named Romano had been called into the office, but the man came out half a minute later and signaled to the others “No relief.” Corrado was supposed to go in next but told Joe to go before him.
Again Joe paused. He stared in front of him, as if suddenly lost in the bright room. Again Leibowitz drew him back with another question. Joe explained how he had told Barck that his children were sick. They were starving, Joe said. The gas and electric was going to be shut off. The soles of his children’s shoes were worn through, he said, his voice quavering.6
And what are your children’s names? Leibowitz asked, and Joe told him. “Are these the children?” his lawyer said, pointing to Marie and little Joe sitting by Anna’s side.
Yes, Joe said.
And are these your daughter’s shoes? Leibowitz asked, dangling from his long fingers a pair of worn leather flats.
Yes, Joe said.
The defense attorney announced his intention to enter Marie’s shoes into evidence, but George objected and was sustained. As if to dispense with them, Leibowitz placed the husk-like little slippers on the defense table. He didn’t mention the shoes again, but they remained there throughout the rest of the trial, where the jury could see them.
Leibowitz now turned to the subject of Joe’s health, and his client’s treatment for “sleeping sickness,” mentioned briefly the day before. The defender would later call Joe’s doctor to provide expert testimony on encephalitis lethargica, which in most patients developed into a form of Parkinson’s disease, but he first wanted Joe to describe for the jurors what the illness had done to him. Under questioning, Joe portrayed himself as “drowsy, sleepy, and dopey all the time.” He had headaches and double vision and sometimes trembled uncontrollably. In the weeks and days leading up to February 25, 1938, “I had funny ideas in my mind,” he said, including thoughts of suicide. The suicidal thoughts were furthered along by his constant worries “about money and family troubles.”7
And when was the last time your family received relief and for how much? Leibowitz asked.
On January 28, we received a check for $5.70, Joe replied. Then nothing more for four weeks. That trifling sum was sure to shock jurors. No family could survive for a month on that amount, never mind reach the minimum level for “health and decency” established years before by the federal government. In 1928 a weekly budget of forty dollars had been considered the bottom line for an American worker’s family.8
Leibowitz walked Joe Scutellaro through his request for aid and the Hoboken poormaster’s insulting reply. What did you take Mr. Barck’s comment to mean? Leibowitz asked.
That my wife “should become a prostitute,” Joe responded.9
You knew that “swing your bag” was one of Barck’s favorite expressions, didn’t you? Leibowitz asked. George’s objection was overruled, and Joe responded affirmatively, after Leibowitz argued that had such a comment been new to Barck, if might have driven his client “into a blind rage, but if it was something widely known as a usual comment on many occasions, it might not be.”10
Coaxed by his lawyer, Joe described his fight with Barck. He spoke with great difficulty, his speech blunted, as if his words were meeting some kind of physical impasse before he could utter them.11
“And why did you punch Barck?” Leibowitz asked.
“I was afraid of him,” Joe said.12
Leibowitz paused to allow the jury to consider his client’s comment, then announced that he would be calling upon Court Officer John Kuehn—later described by a reporter as “a husky six-footer about the size of Barck”—to assist with a demonstration.
The defender had long ago recognized the value of dramatic testimony in the courtroom and the need to bring abstractions to life. He was uncommonly suited to do both. While at law school, Sam Leibowitz had been an enthusiastic participant in both the Cornell Dramatic Society and the debate team. In the years since he’d joined the bar, he had often reflected that the practice of criminal law had allowed him to refine those talents and to develop still more. Listing the best-known theatrical impresario, actor, scientist, and politician of the day, he had once immodestly remarked to a reporter: “A criminal lawyer has to be a combination of a Belasco, a John Barrymore, an Einstein, and an Al Smith.”13
Now, taking the courtroom as his stage, Leibowitz meant to use the stenographer’s desk as a central prop, to have his client show the jurors what had happened to the poormaster and to show why Joe Scutellaro had every reason to fear Harry Barck.14
William George complained that the desk in the courtroom was not the same size as Barck’s, but Judge Kinkead allowed the demonstration to go forward.
Joe stood in front of a rail that separated him from the stenographer’s desk. On the other side, next to the stenographer, towered Court Officer Kuehn. Taking in the scene, jurors would have noted that Joe Scutellaro seemed the size of a child compared to Kuehn.
“Now show us what happened,” Leibowitz instructed his client.
Joe took the officer’s hands and placed them so they grasped his suit lapels. The large officer had to lean across the desk to do so, his shadow extending over the little man.
“Barck grabbed my coat,” Joe began, “and I tried to pull away.” He mimed attempts to draw back while Kuehn strained over the desk. The jury was taking in the image of a struggle between a giant and a little slip of a man. “I got very excited and punched at him. His face was very red,” Joe continued.
Leibowitz asked Kuehn to let go. “How did he go down?” the lawyer asked.
Joe bent the officer over, with his arms edging his torso and his hands dangling beneath the desk. “He went down with a bang,” Joe said. “He stood up with something sticking in his chest. It looked like a spindle. I pulled it out and threw it on the floor.”15
That was all. The jury had seen the reenactment of a terrible accident. When Joe returned to the witness stand, his lawyer surely noticed the alert and troubled faces of the jurors.
Leibowitz moved on to question his client about his state of mind after the fight. Joe said he was not exactly sure what had happened. He could recall explaining to Chief McFeely that he had had an argument with the poormaster and that Barck had fallen on a spindle on his desk. But when the police officers brought him back up to Barck’s office to re-create the scene, and Joe told them he didn’t know where the spindle had been on the desktop, the chief had shouted, “Take him out! He’s lying, boys.”16
That’s when all the other policemen went ahead, Joe continued. Lieutenant Scott took me down a dark corridor, and into a side room, alone—and then he threatened me. “You guinea bastard!” Joe said the lieutenant had shouted in his face. “If you don’t tell us you stuck him, I’ll knock your teeth down your throat!”17
And what was your reaction? Leibowitz asked.
“I was afraid,” Joe said, his voice choked. Dizzy, frightened, and faint, he had been led back into the chief’s office, where Chief McFeely had ordered: “Now tell us what happened.”
And what did you say? Leibowitz asked.
“I told him, ‘I stuck him,’ “ Joe said. He did not have his eyeglasses—the police had taken them from him—so he signed something he could not read.
Sam Leibowitz plucked from the defense table several letters Scutellaro had written to him while his client had been in prison awaiting trial. After Joe identified his own firmly written signatures, Leibowitz tore them from the letters and admitted the slips as evidence of Scutellaro’s usual handwriting. The jurors would be able to compare them to the barely legible autograph Joe had affixed to a statement the Hoboken police said he had made voluntarily.18
William George would have none of it. He meant to dispel the view that Joe Scutellaro was to be pitied, that he was a victim, somehow unaccountable for his actions. No one was above the law. George intended to bring out that the defendant had been angry and, even more, ungrateful—a reliefer who had repeatedly refused to accept limits on his receipt of public charity.
At first George made some headway: he probed Joe about his association with parolee Ralph Corrado, even suggesting—until Leibowitz objected—that Joe was an ex-con, too, because of his 1932 suspended sentence in Hoboken’s police court. And the assistant prosecutor bore down, as Leibowitz had expected, on Joe’s attack on the emergency relief officer, Harold Butler. Hadn’t Joe demanded relief from Butler and been denied? George asked. Wasn’t he arrested on a charge of assault and battery of Harold Butler? Yes, Joe responded. Yes.19
George was cutting with the defendant, likely trying to anger Joe. When George handed him a copy of a legal document from the 1932 case, and Joe hesitated in identifying it, George interjected a little ethnic barb. “You read English, of course?” the assistant prosecutor asked. “I do,” Joe replied, without taking offense, though the jurors, if they had looked out toward the spectators’ benches, would have likely seen the defendant’s father shaking his bowed head.20
As George hammered away at Joe’s past conviction in the 1932 case, Leibowitz rose to object that George was “retrying this issue,” and moved for a mistrial. “All this evidence is prejudicial and immaterial,” he charged. But Judge Kinkead denied the motion, noting that Leibowitz himself had introduced the incident during direct examination.
Assistant Prosecutor George returned to his rapid-fire questioning, and Joe’s replies became increasingly fitful. The defendant seemed to be hollowing out before the eyes of courtroom observers. Joe sagged in the witness box, staring blankly between queries. His eyes were rimmed red from rubbing them.
“You didn’t like Barck when you went to his office that day, did you?” George asked.
“I had no grudge against him,” Joe said. “I never had a dislike for him.”
“Did you respect him as an official?”
Joe replied that he did.
“And did you respect, also, the problem he was dealing with in the matter of giving out relief?” George asked.
Joe stared ahead. “Yes,” he said.21
“You knew it wasn’t an easy job, didn’t you?” George asked, and Joe said he knew.
“You just went there for relief and demanded it, didn’t you?” George said.
“No, sir.”22
George lifted from the prosecutor’s desk the grocery check for eight dollars that Anna Scutellaro had received in the mail the morning the poormaster was killed. George entered it into evidence, along with the envelope Chief McFeely had made Anna sign when she had been forced to relinquish the relief.
Isn’t this the relief that arrived at your home while you were in the poormaster’s office that morning? George asked.
“I hadn’t known about it then!” Joe protested, and began to sob. He was visibly trembling.
Sam Leibowitz jumped up and accused William George of “torturing Scutellaro with a lot of unnecessary questions to wear him down.” Over the sounds of Joe Scutellaro’s loud weeping, his lawyer requested a short recess.23
But after it was over, it soon became clear to both prosecution and defense that the break had changed nothing. When Joe returned to the witness box ten minutes later, he was not able to answer one question put to him by the prosecutor. Joe sat and cried and seemed unable to stop. After eleven minutes passed without a response to George’s queries, the lawyers conferred with Judge Kinkead, and both agreed that Joe Scutellaro should be temporarily withdrawn as a witness, to regain his composure.24
Leibowitz called Dr. Lawrence J. Kelly. The young doctor had been a hospital intern when he had been called the year before to assist Harry Barck. He was now a licensed physician.
Dr. Kelly’s clarity and assurance on the stand made a striking contrast to Joe’s opacity. Under Leibowitz’s questioning, the doctor detailed his activities in the poormaster’s office that February morning. As a further twit to the state’s star witness, the criminal defender made sure that Kelly recalled his request that Barck be moved to a reclining position to allow for a better examination.25
Kelly had been prepared to leave Barck’s office for the hospital, he testified, but Chief McFeely asked him to stay. While waiting in the poormaster’s office, Kelly heard McFeely ask Joe Scutellaro what he’d done with the paper file. Scutellaro had explained that he’d pulled it out of the poormaster. Chief McFeely had responded, “You pulled it out of him? Who put it in him?” Joe had denied stabbing Harry Barck, Kelly said. The defendant—who the doctor described as “timid and meek and in a confused state of mind”—had told the police chief that Barck had “fallen over the desk and rammed his chest on the file.”26
As Leibowitz continued with his questioning, Kelly confirmed that Joe had told McFeely that a fight had caused Barck to fall. But then Kelly added, “Scutellaro said that he had been coming for relief for some time and had been refused.” Quoting Joe, the doctor testified: “Mr. Barck would say ‘Next! Next!’ and today, today it got so that I could not stand it anymore, and I took a punch at Mr. Barck.”27
Not a fight caused by an offensive remark about the relief client’s wife, but a punch thrown after a refusal of aid, after Joe Scutellaro “could not stand it anymore.” Leibowitz quickly sought to gloss over the damning remark. He had Kelly repeat Joe’s assertion that Barck had “stuck himself when he fell over the desk,” then followed it with a question to establish Kelly’s independence as a witness.28
“Did you ever know me personally?” Leibowitz asked.
“No sir,” Kelly replied.
“Did you ever have any business with me?”
“No.”
“Did you ever know this Italian man by the name of Scutellaro in your life before you saw him there in Barck’s office?”
“No.”
“Is there any reason under the sun, any interest that you have, any interest whatever, for you to come to court here and try to help this defendant unless you are telling the truth on the witness stand?”
“None,” the doctor said.29
In his cross-examination, William George made it plain that he, too, believed Dr. Kelly’s testimony—all of it. He had Kelly twice repeat his prior assertion that he had heard Joe Scutellaro tell Chief McFeely, “Today it got so I could not stand it any longer, so I took a punch at Mr. Barck.”30
And when Joe Scutellaro was again returned to the witness box after a lunch recess, George picked up his questioning of the defendant from that point. “What did you do or say after you told Barck that your wife is a decent woman?” George asked Joe.
The courtroom, which had been humming with the low chatter and rustling of trial observers, grew quiet. Joe drew his hand over his forehead as if he was clearing something away, but he said nothing.
“You still haven’t answered me. Why?” George asked, after several minutes had passed.
Joe stared ahead. A New York Times reporter, seated by the rail with other journalists, observed that the defendant “seemed to be in a stupor” and was crying again.31
Finally, Joe said he was afraid. “You are afraid of me?” George repeated. “Please tell me—why?”
“Because you are the prosecutor,” Joe said.
“You are afraid of me because I am the prosecutor, because you know I am trying to see to it that you tell the truth?”
“No, that you are trying to convict me,” Joe said.
George’s pointed reply—that he would convict Joe Scutellaro “upon the truth in this case,” rather than the testimony calmly elicited by his defense lawyer—was stricken from the record.
“Mr. Scutellaro, is your desire that I ask you no more questions?” George asked, but Joe said nothing. “Is it?” George asked again, and received no reply.
Leibowitz came forward to ask Kinkead’s permission to speak with his client privately, in the presence of the court. When the judge agreed, Leibowitz spoke softly to Joe, who held his head in his hands. Kinkead suggested that Leibowitz call another witness while the defendant recovered. As the defendant shuffled away from the stand, his lawyer called Reverend C. Robert Pedersen, pastor of the First Baptist Church of Hoboken—a man of moral authority—to recount Harry Barck’s misdeeds.32
Sam Leibowitz had been as careful in his selection of witnesses as he had been in jury selection. Surely he had read about Herman Matson and knew the daring activist could have supplied him with vivid accounts of Harry Barck’s denial of aid and also chilling details of the McFeelys’ clenched domination of the city. But the defense attorney could not risk associating his client with an organizer of the jobless poor. Instead, through his research, Leibowitz had found Reverend Pedersen, the pastor who had publicly advocated on behalf of one poor, pleading family—the Hasties—and who could recall in detail his own unsavory encounters with the Hoboken poormaster. Tracing back issues of the local newspapers, Leibowitz had discovered that six weeks before Donald Hastie’s death from starvation, the pastor of Hoboken’s First Baptist Church had entered into a public war of words with Barck over the poormaster’s unwillingness to provide enough aid to the boy’s family. Leibowitz would have reckoned that jurors who had read about Donald’s death would not have easily forgotten the awful news. By calling Pedersen to testify, the defense lawyer meant to call up memories of Harry Barck’s most egregious offense.33
But before Leibowitz could begin, all attention was diverted to the horrible sound of Joe Scutellaro collapsing, tumbling head first so that “the thud of his head striking the marble floor could be heard through the crowded courtroom.” Now motion and noise overwhelmed all courtroom decorum. Observers stood to watch, and newspaper reporters hustled to leave the room to call in the news. Anna Scutellaro’s cries pierced through the buzzing chatter. Court matrons led Anna and her children, who clung to her hands, from the spectator’s benches to the exit doors. As the attendants led the way through the bronze doors, the white flash and crackle of camera bulbs seemed to rush toward the weeping family, like a lightning storm sweeping through the corridor.34
Inside Judge Kinkead’s court, four officers lifted the unconscious defendant and, shouldering his rigid form, carried Joe into the jury room. Kinkead struggled to restore order. When the noise had ebbed sufficiently to allow him to be heard, the judge declared another recess to allow Joe’s examination by a physician.35
Twenty minutes later, Dr. Murray Levin, a Jersey City Medical Center intern who had arrived by ambulance, announced to the court: “This man is not in shape to go on.” Joe had regained consciousness but was to be returned to the county jail and placed under observation. Dr. Levin then left to see to Anna Scutellaro. She had been near collapse when she left court, and the attending matrons had taken her to another room.36
Kinkead recalled the jurors and had witnesses summoned to the courtroom. Sam Leibowitz cited Dr. Levin’s conclusion and requested the trial be postponed for the evening because of “the shock” the defendant had suffered. William George concurred. With Judge Kinkead’s apologies and his request for the forbearance of witnesses and the jury, court was adjourned until the following morning, Friday, January 13.37
Once again the defendant was led into court in handcuffs. Although he had received treatment at the jail’s clinic, he would not be returned to the witness stand. With a guard beside him, Joe Scutellaro would sit out the rest of his trial on the prisoner’s bench and stare at the parade of defense witnesses called to herald his good character—or to defame Harry Barck. Among the character witnesses were a priest from St. Ann’s Church who described Joe as “honest and God-fearing”; a Franciscan brother who recalled performing Joe and Anna’s marriage and noted that the Scutellaro’s ten-year anniversary was but a few weeks away; and Joe’s doctor from the Jersey City Medical Center clinic, who read from his patient’s records and described the disquieting symptoms of encephalitis lethargica. The illness brought tremors and confusion and a strange flattening of expression; the face of a sufferer might appear unresponsive, the doctor said—even when that person was fully aware of what was going on around him.38
William George was gentle with these witnesses. He would not challenge testimony on Joe’s faith, his loving marriage, or his ill health. But when Leibowitz had completed his direct examination of Joseph Vincent, the district supervisor of the New Jersey State Employment Service, the assistant prosecutor became confrontational. Vincent had testified to his own unpleasant exchanges with Harry Barck and to the bitter complaints of hundreds of Hoboken job seekers. The poormaster had always been “vicious, quarrelsome, and irascible,” Vincent said, and had even been known to shove people out of his office after denying them aid.39
George hammered away at Vincent’s assertions, what he claimed to have heard from “hundreds” of clients. He meant to challenge Leibowitz’s implication that Barck’s insults were an outrage equal to a deadly attack. And in all your conversations with Hoboken job seekers, George asked the witness, had Barck’s reputation included inflicting bodily injuries on any person?
The defense objected, but Judge Kinkead allowed the question. “To my knowledge, it did not,” Vincent admitted.40
But Leibowitz was determined to establish Barck’s bad character. He had greater success when he again called Reverend Pedersen to the witness stand. Under Leibowitz’s questioning, the minister recalled his repeated attempts to obtain public aid for the Hastie family.
Pedersen said he had only recently arrived in Hoboken, when the Hasties’ troubles became severe. At first, he sought no municipal aid for them, but marshaled his parishioners to provide charity directly. James Hastie had lost his job at a local battery factory, and after initially receiving assistance through the state program, he had been cut off when Barck purged the Hoboken relief rolls in April 1936. First Baptist congregants agreed to pay the Hastie family’s modest rent—James exchanged janitorial services for the rent reduction—and supplied food parcels and milk for the three boys. Nevertheless, by mid-May, the pastor recalled, the church’s stopgap measures were failing. The family had lost its electricity and gas because of nonpayment, and they had run out of the oil they’d been burning for light.41
James had begged the pastor to intervene. Maybe Barck would listen to a clergyman. But Pedersen learned that Barck would not—no matter how many times he confronted the overseer. Citing the municipal budget, Harry Barck had bluntly refused to assist the Hasties and, in dismissing Pedersen, had suggested that freeloaders had taken in the gullible minister.
Not long after, Barck responded publicly to mounting criticism of the cuts he had made in relief—cuts that had abandoned thousands of Hoboken children to hunger. The press release Barck issued to defend his policies must have been haunting for the minister to recall. “Nobody is starving in Hoboken,” Harry Barck had declared.42
William George allowed the minister to step down without further questioning. With Pedersen’s testimony, Leibowitz had revealed to jurors an all-powerful bureaucrat who could blithely deny, based on his false “understanding” of the jobless poor, what was readily apparent to a politically neutral newcomer: that a Hoboken family was starving and needed public relief to survive.
But who had given Harry Barck such powers? Leibowitz would now call to the stand Joseph Clark, the former Hoboken commissioner whose recollections of Boss-directed attacks on his Italian political opponents had been featured in the notorious Post exposé of the McFeely tribe. Leibowitz was going to try to advance his claim that the McFeelys commanded the city and every person employed in the Hall.
Joseph Clark had been a police officer for twenty years prior to his ascension to city commissioner, and he had the requisite height and heavy build of a Hoboken cop. But he also had a sad, hangdog face that would have registered hurt when trial observers snickered at his current occupation: caretaker of seven children. Court spectators only learned later, through Leibowitz’s continued questioning, that Clark had become a widower in the early years of the Depression and that he had been unable to find new employment since his forced resignation, in 1934, from his Hoboken commissioner’s post.43
Clark had once been considered McFeely’s “closest friend,” but the two had split violently when Commissioner Clark, as overseer of the police department, had tried to press charges against the mayor’s brother for lounging at home, drunk, instead of reporting for duty as the chief of police. Clark had feared he would be “thrown out of the window” for challenging the mayor. Instead, the former commissioner had been crushed by job loss.44
William George knew very well why Leibowitz had called Joseph Clark as a defense witness. The assistant prosecutor vigorously blocked every question the defender asked that would have allowed testimony on Boss McFeely’s rule. Twenty-five times George objected, and twenty-five times Judge Kinkead upheld him. Finally Leibowitz limited his queries to Clark’s knowledge of Harry Barck. Clark said he had known the poormaster for thirty years and that Harry Barck’s reputation was really “very bad.” The poormaster, he testified, had a reputation for insulting women.45
In a sense, trial testimony ended there. The late-afternoon session, devoted to the examination of rebuttal witnesses, introduced little of value to prosecution or defense, and so often devolved into verbal sparring between the lead attorneys that Judge Kinkead issued an exasperated scolding to both. By then trial spectators could also see snow falling outside the courtroom window, and the attention of the restless among them had likely wandered during the proceeding’s more tedious moments, to thoughts of traffic conditions for their return journey home.
After rebuttals and counter-rebuttals, testimony came to a close with Leibowitz’s curt declaration, “That is all.” Judge Kinkead adjourned court until 10:00 AM the next morning, when the two lawyers were to make their final arguments before the jury.46