OVERNIGHT, WINTER RETURNED. A steady snowfall buried the crocuses that had blossomed in uptown gardens during the preceding false spring. Saturday morning, January 14, emerged with a cloud-thickened sky and the lows of Hudson River ships carrying across Hoboken.
Eight inches of snow now covered the city’s pocked streets, temporarily erasing evidence of debris scattered by the McFeely Company’s open horse carts. At daybreak, before footprints and shovels unearthed the familiar, the streets and yards of downtown were dizzying to behold, with sudden sweeps of white replacing steps and clothesline stakes recast as sugared steeples. The accumulation would, in the end, turn too slushy for a full weekend of sledding or for packing the best snowballs; but on first viewing, Sixth and Monroe Streets, and every other block in Hoboken, would have seemed transformed.1
Little Joe Scutellaro was too young to know the particular delights of a “snow day” or to understand the disappointment of a Friday night snowfall to the city’s schoolchildren. But neither he nor his more knowledgeable sister would be playing outside, anyway. Instead, the Scutellaro children were bundled into their well-worn woolens and too-small winter coats and readied to travel to the Hudson County Courthouse. They knew they would see their father there, but they did not know much more.
Traffic moved slowly out of the city that morning—everything and everyone slowed by the snow. The glittering blanket draped over every ordinary house and gate and walkway had made Hoboken unreal—starry and soft-edged, where it was not.
The morning papers announced that state troopers would be stationed outside the chambers of the New Jersey Assembly on Monday, to block the Newark grocers and relief clients who planned to arrive that evening by the busload. Under the state formula, Newark, as New Jersey’s largest city, was owed about $2 million for the preceding year’s relief outlay. Protestors would demand their repayment and also insist that legislators come up with a plan to meet current relief needs. But in calling for state troopers, Assembly Speaker Herbert J. Pascoe seemed determined to treat the planned statehouse march as a threat to legislators’ dignity, rather than a sign of frustration with legislative inaction. “There will be no sit-in strikes such as disgraced the session several years ago,” Pascoe announced. The troopers, the speaker vowed, would keep dissenters from the assembly’s galleries, to prevent “any undue demonstration.”2
Scutellaro trial jurors read the newspapers that morning, and some might have been alarmed by the thought of the poor clamoring at the statehouse doors. But the papers had not even hinted at the true depth of New Jersey’s relief crisis—the untold numbers receiving no federal or state assistance and little, if any, aid on the local level. No reports mentioned that in the preceding year, nearly half of New Jersey’s 567 municipalities had received no state payments at all for general relief.3
Leibowitz arrived in court ten minutes late and apologized to Judge Kinkead and the jury. Although he had rushed to get to the courtroom, the criminal defender would have noticed the adjoining hall and balconies were empty. Fearing demonstrations and disorder, the judge had relegated Joe’s supporters to the icy steps outside the building.4
“Please forgive me for appearing tired in pleading for this man’s life,” Leibowitz began, after Kinkead acknowledged the defense attorney’s readiness to offer a summation. The half-moons under Leibowitz’s eyes were deeper and more pronounced than usual, and his face was unshaved. His eyes had the gleam of too little sleep and too much coffee.
He explained to the jury that he had not slept, as another murder case had demanded his attention. He would not go into the details—Leibowitz had been retained to defend a Bronx milliner, Louis Greenfield, for the “mercy killing” of his severely handicapped son—but the lawyer let them know that he had worked through the night.5
Leibowitz’s rough appearance that morning was likely a matter of choice, for he surely could have taken a few moments to shave before court, had he wanted to. But he had seized upon an opportunity for a bit of theater, a demonstration of his dedication: Leibowitz’s stubble could be read as a sign of the demands made upon him as a famous defender, or it could portray an image more familiar to the jurors—the look of an ordinary man, straggling in after a hard day’s work.6
Leibowitz pushed forward with his client’s defense, beginning his summation in a calm, measured voice. “Although the law says the burden is on the state, the burden is on Joseph F. Scutellaro in proving he is innocent,” Leibowitz said. His client had been paraded into court each day in manacles, as though Joe were a savage in need of containment. But the case before the jury was not about a brute, Leibowitz insisted, nor was it even about the act of murder. “This is not by the widest stretch of the imagination a murder case,” he said.
Picking up the desk spindle the state’s attorney had entered into evidence, Leibowitz acknowledged “there is no question that Barck died on February 25, 1938, from a wound, as testified by Dr. Braunstein—a wound inflicted by an implement.” The lawyer plainly described the spindle piercing the poormaster’s body. “The main issue in this case,” Leibowitz announced—using a familiar refrain—”is what happened in that room,” between the man who had died and the man accused of killing him.
The defender briefly addressed—and just as quickly dismissed—the testimony of Barck secretaries Shea, Mullin, and Cerutti, “who did not see what happened.” And so “we come to the alleged eyewitness, Miss Eleonore Hartmann,” Leibowitz continued. A hint of sarcasm had edged into his voice. He would spend much longer taking apart the secretary’s false claims than the assertions of her peers, pointing out portions of Hartmann’s testimony that were illogical or, to his mind, coached. He had not been able to fully unmask her on the stand, but he intended to do so now.
What had Miss Hartmann claimed she had seen? Leibowitz asked. He read her testimony about Joe’s “lunge” at the poormaster. “She said she didn’t see anything in Mr. Scutellaro’s hand,” Leibowitz pointed out. “I’ll tell you why—because if you get a witness like that and she is telling the truth, a jury would think she had seen too much. A very clever woman made that up. That is better drama, better stagecraft. This story has been gone over many times, and this lady knew exactly what she was to tell on the witness stand.” The testimony of Miss Eleonore Hartmann, he asserted, had been “gone over with a fine comb—not once but many times.”
“This woman lied for a reason,” Leibowitz continued. “Who is this woman? Just see what her interests are in this case. Is she a disinterested witness? First of all, Barck had known her since she was a little baby. They were neighbors. She used to pal with Barck’s daughters. Barck was her employer. Barck was a man who gave her her bread and butter, her boss, her superior. She worked with him day after day, so you see the close relationship there.” The lawyer’s speech turned cloying. “A kindly, charitable, genial man,” he said, paraphrasing Hartmann’s testimony.
“Look at the axe she has to grind,” Leibowitz suggested, his voice rising in indignation. “Well, it pays to be on the side of the administration that hired her. I don’t need any evidence to establish that. It pays to be on the side of the state, and Hoboken is part of the state. She is not a civil service employee—she is hired. That may have something to do with it. She may not want to offend someone in Hoboken. That is a natural impulse.”
But Eleonore Hartmann had not simply been reluctant to speak. “ ‘I knew better than to talk to the other side of the case,’ was her response to a question,” Leibowitz pointed out. “Disinterested witness? She’s in a camp, she’s on a team! A witness is a witness, and many may be questioned by ‘the other side.’ She was like a politician rooting for his party.” Leibowitz reminded the jurors of Miss Hartmann’s refusal to talk to defense cocounsel about the case. “Imagine anyone trying to bulldoze anyone in city hall!” Leibowitz said, feigning the disbelief of a Hoboken ward heeler.
The defense attorney reminded the jurymen that important trials brought a certain amount of notoriety to those involved, elevating in stature even the most minor figures who had little to do with the events detailed in the courtroom. Eleonore Hartmann’s tale had grown larger and more important, as needed. “She had a little talk with someone in city hall and she became an eyewitness,” Leibowitz asserted. Never mind the truth. “It’s only a little wop—only a nobody,” he said. But “who bears the cross?” the lawyer asked. “Who is the martyr? This poor, unhappy man, who can barely find the energy to stand.”
Leibowitz pointed to his ghostly client. “If you are going to crucify a man on stuff that came from sources of that kind—go ahead and do it, but stop calling it America!” he exclaimed. There would be no justice then. “To convict a man on stuff and nonsense!” Leibowitz continued. “Would you bank your life on that woman’s story? How sure are you? I submit to you that she was not in the room at all when it happened. She is contradicted by every other state witness.”
He reminded them of the testimony of Nick Russo and John Galdi. If Hartmann’s claims are “just a fabrication, a figment of her imagination,” he said, “then the state’s case fails.” And surely her testimony was false. “Why would Barck want to blow the whistle if the policeman and Miss Hartmann were there?” Leibowitz asked. “Barck blew the whistle because there was no one in the room.”
The defender asked the jurymen to question how they could convict a man who may have been railroaded, to imagine “getting into a corner” and having the authorities decide, “This Italian, we ought to make an example of him; if we don’t convict him, there will be murder in Hoboken.”
Joe Scutellaro had been visibly trembling throughout the first part of his lawyer’s summation, and now he slumped forward. While Leibowitz paused for a moment and the jurors watched, a court attendant leaned in close and whispered to the defendant, and Joe seemed to revive.
Leibowitz directed their attention to Anna Scutellaro and her children, seated in the same seats they had occupied throughout the trial. “What about the two little kiddies and the woman who are waiting to see what twelve men are going to do—whether they are going to break up a family and send him to the electric chair?” Leibowitz’s voice was soft and pleading. Anna’s sobs could be heard throughout the courtroom, though she tried to muffle them. Her son had climbed into her lap, and she pressed her face against him. From their position at the front of the room, reporters noted a few jurymen sweeping aside tears with their fingers.
“The one thing George is interested in is getting a conviction,” Leibowitz now declared, deftly launching an attack on the assistant prosecutor’s motives for threatening the death penalty, while diverting attention away from the defense’s own need for a restorative victory. “If it’s glory he wants, let him have it,” Leibowitz said with a weary sigh. “I am tired of glory, tired of publicity. I am getting along in years. I am tired of getting out of bed in the middle of the night. If I could give the glory I have to George in exchange for this defendant, I’d gladly do it.”
Assistant Prosecutor George, as the local lawyer, had been unfair, Leibowitz insisted. There had been rumors and innuendo about out-of-town counsel. “Counsel is a rogue, he is from New York,” Leibowitz said. “I heard ‘the lawyer from New York’ coming a thousand miles away from here. I heard it in the ‘Dark Belt,’ “ he said—an allusion to the Scottsboro case. “That is not honesty. It is prejudice of the refined sort, calculated to make men say, ‘Well, that fellow from New York, where criminals live and men are rogues.’ I have heard it when things were not so good, and I have heard it in this courtroom. Well, I am not ashamed of coming from New York. Many of you men travel across the river to earn your livelihood there.” But William George, Leibowitz suggested, had interjected this prejudice into the proceedings, intimating, “You’ve got to show that lawyer he can’t win in Hudson County with a local boy.” The defender added, “I wonder if that got across to the jury.”
The prejudice against his client, as a man on relief, would be harder for Leibowitz to combat. Although the Depression had upended the beliefs of many, the veteran defender surely knew that the “blue ribbon” jurymen he now addressed were not likely to challenge the status quo. Leibowitz would steer clear of anything that would remind the jury of organized radicals. Instead, he would call upon the jurors’ conservative notions of charity and their sense of fairness and right behavior toward their fellow man. Joe Scutellaro, Leibowitz insisted, was not one to demand his rights. His client had faithfully followed Barck’s arbitrary rules, and still his family had been denied enough to eat.
Leibowitz again detailed the privation of the Scutellaro family. Joe’s father, he said, had once owned property, “but the property now owns the father.” The defender described the meager breakfast Joe, Anna, and their children had shared the morning of February 25. “It’s a hard thing for a person with a full stomach to define hunger. Have you ever tried to feed four persons on twenty-five cents a day?” Leibowitz asked. “Do you wonder that people are driven to desperation?” Leibowitz shook his head in disbelief. “I’m disappointed not so much with Mr. Barck, but at a system that permits poor people to starve on $5.70 a month for four. There is something rotten there somewhere.” Now the lawyer’s disparaging tone became a plea. “Good God, how can such things exist among us when we pride ourselves as being the best nation in the world?” he implored. “It was no pleasure for this man to go to Barck’s office…. When hunger calls and children cry, you put your pride in your pocket and go.”7
But Harry Barck, Leibowitz insisted, was “a man inured to suffering, treating people not like human beings but like cheap objects, who had the poor in the palm of his dirty hand and crushed them like eggshells.” Of course, he hastened to add, “Barck could have been the worst creature that was ever made—bad though he was, he had a right to live. The fact that a man’s character is bad, that he is a wretch, is not just cause to violate a law.” Nevertheless, the poormaster’s bad character had to be discussed. Multiple defense witnesses had described Barck as “heartless, vicious, quarrelsome, and abusive of the poor over whom he had jurisdiction,” Leibowitz said. But harsh as they were, those words did not fully convey Barck’s dissociation from the poor. In preparing for his summation, the criminal defender had conjured various “word pictures” to describe the poormaster. At first Leibowitz had likened Harry Barck to a piece of machinery. But the lawyer finally settled on a metaphor that would not only recall the tyranny his parents had escaped when they left Romania but would also bring to mind the many tyrants that had emerged since. The Hoboken poormaster, Leibowitz declared, was a kind of “imperious czar,” an autocrat “who became a Hitler, a Mussolini, a Stalin.”8
What had happened when the poormaster, a ruler of “his own little world,” had heard the pleas of weak and needy Joe Scutellaro? “Barck boiled to have a poor, little unfortunate coming in there who couldn’t speak above a whisper,” Leibowitz said. How could Scutellaro be the kind of man who would go there to start trouble? “Why even Miss Hartmann said that the man spoke so low that Barck had to say to him, ‘Speak louder.’ “ Scutellaro had gone to the poormaster because his children were starving. “Did he go there with malice in his heart?” Leibowitz asked. “If he did, wouldn’t he have gone prepared? He knew there was a cop at the door, that he couldn’t escape. If he was going there to attack that man, wouldn’t he have gone prepared with a knife, a stiletto, or something?”
“There was no malice in Scutellaro’s heart when he went to Barck’s office,” Leibowitz asserted. “He carried no weapons of any kind in his pockets.” The two men had scuffled in the office following Barck’s suggestion that Anna Scutellaro work the streets as a prostitute. “Ask any American to take that from a no-good dog like that, who brought his own death on his shoulders. If you had a club handy, you’d have batted his brains out,” Leibowitz declared. And yet Joe Scutellaro had done nothing of the sort, the defense lawyer insisted; Barck had accidentally been impaled on the spike during the struggle between the two men.
Now Leibowitz reached for an unlikely defense: he would attribute the killing of Harry Barck to the hand of a vengeful God. He had used this argument at nearly a dozen trials, always with great success. The defense seemed to work because so many jurors, even if they did not attend a house of worship, believed human actions were overseen by a higher power or were fated. Or maybe those jurors simply did not want to send to the chair an ordinary person who, in extremis, had made a fatal mistake.
“It is my belief that the culprit responsible for Barck’s death is not Joseph Scutellaro. It is not even Barck,” Leibowitz began. “The responsibility rests with a system which expects a man to live in this great democracy under such shameful circumstances. If Barck had not pushed this man aside and had been mindful of his misery and suffering, this would not have happened! It was the hand of God that struck down Harry L. Barck, for all the misery he had brought on the poor and unfortunate. It was the hand of God that struck down Harry Barck.”9
And Harry Barck, Leibowitz was quick to remind the jury, was a McFeely stalwart. The poormaster’s death would not be ruled an accident when the political machine wanted Joe Scutellaro to go down for murder. Dr. Kelly had testified that Chief McFeely had been present when Scutellaro said it was an accident. “If that isn’t what he told McFeely, why didn’t McFeely take the stand?” the defender asked. Chief McFeely had been readily available throughout the trial. “He has been sitting in a chair of honor all week, smiling complacently,” Leibowitz declared, pointing to the chief of police. “He didn’t dare testify. If Dr. Kelly is telling the truth, their whole case is a miserable frame-up.” The doctor—”that man Kelly”—Leibowitz said, is “like a bone in the throat” to the state.10
The defender now turned his wrath on Lieutenant Scott, who eyed Leibowitz warily. “Romeo Scott is a man who has never beaten a prisoner,” Leibowitz said. “Just look at that face, just look at that face,” the lawyer instructed, and the jurors turned to stare at the jowly, frowning officer. “He’s a tough man—he showed it on the witness stand by his behavior. Just figure what he looks like down there where he is boss in his own station house.”
Courtroom spectators leaned forward in a rapt state, hanging on Leibowitz’s “every word,” a Times reporter later wrote. Certainly observers from Hoboken would have been astonished by the defender’s audacity. Sam Leibowitz was publicly confronting some of the city’s most powerful and vengeful men.
Scott “didn’t have to lay a hand on him,” Leibowitz continued. “He didn’t have to strike him in the condition that he was in at that time.” Just look at Scutellaro’s alleged confession, the defender added. Look at the defendant’s shaky signature. It was a confession that had been coerced. “I don’t care what is written on that paper. If Romeo Scott took the defendant into the room and”—Leibowitz now raised a clenched fist—”threatened him, this confession is worthless.” He walked over to where Scott was sitting and cooed, “My pal, my nice little pal.” Then the defender turned and approached his client. Putting his arm around Joe’s slight shoulders, Leibowitz nodded in Scott’s direction and repeated, “My pal.”
Leibowitz paused, perhaps to gather strength: he had been speaking for nearly three hours. But his voice betrayed no fatigue as he neared his conclusion. The defender challenged, then entreated the twelve jurors to acquit his client. “You may as well send him to the electric chair as behind gray prison walls,” Leibowitz announced, disparaging the idea of prison as an acceptable middle ground between freedom and a death sentence. The lawyer circled around the defense table and picked up a paper cup. It was “smart business,” he said, to buy one cup for a nickel and then to ask a dollar for it, making a later compromise seem reasonable. It was smart business, too, Leibowitz continued, for the state to ask for “any kind of conviction.”
But the man before them, Joe Scutellaro, “is either guilty or not guilty,” Leibowitz declared, returning the flimsy cup to the table. “I am praying to Almighty God that when you get in there, you will agree with the defense and let him walk out of here a free man after almost a year in prison for something he didn’t do.”
Leibowitz’s voice was now accompanied by the “audible sobs” of Joe’s relatives. Jurors dabbed at their eyes, perhaps responding as strongly to the Scutellaro family’s raw distress as to the theatrical power of Joe’s defender. “I am going to pray to God Almighty that men are not weak enough to sell their souls and their own consciences when one man says ‘guilty’ and ten or eleven say he is not—to compromise,” Leibowitz said. “While you’re in there, I will die a thousand deaths waiting for your verdict, but what I want is a just verdict, based on the evidence. Send this man home to his family.”
At 3:00 PM, after a recess, court reconvened. The assistant prosecutor would have to follow a summation at least one reporter described as “the most masterful ever heard in the courthouse.” But William George would have betrayed no uncertainty. He had years of experience with Hudson County jurors, and he was not about to be undermined on his own turf.11
George began with praise for Leibowitz’s skilled summation, then doubled back to condemn it. The famous Sam Leibowitz, George said, had used his legendary eloquence to vilify “the whole prosecution.” The defender had insinuated that the state’s attorneys sought only a conviction, not justice, George charged, and Leibowitz had accused him of being a glory-seeker. “If there is anyone in this box, who, because he may know me and decide to further my ambitions, and for that reason and only that reason convict this defendant, let him speak up,” George announced, “because I want to sleep the sleep of a babe tonight.” He challenged jurors to refuse the defender’s disreputable charge that the prosecutor’s office, in cahoots with Hoboken police, would stop at nothing—perjury, threats, a false confession—to convict Joseph Scutellaro.12
The jurors should follow the evidence, George said. Much had been made of Harry Barck’s insulting remark about Anna Scutellaro, for example, but Mrs. Scutellaro, the assistant prosecutor pointed out, had failed to testify.
An angry Sam Leibowitz called out an objection. When it was denied, he asked for an exception. Mrs. Scutellaro, the defense attorney announced when his request was granted, was not present when she was insulted by the poormaster, so there was no need to call her.
The assistant prosecutor continued, seemingly unperturbed by Leibowitz’s interruption. George defended the state’s witnesses, paying special attention to the ridiculed Hoboken police lieutenant J. Romeo Scott. “Scott is not a graduate of Yale University,” George said, implying that the famous defense attorney was a coddled elitist. “Scott’s childhood was not protected and nurtured by a French governess.” The Hoboken cop, the assistant prosecutor continued, was “ just a fellow like you and me.”
George paused, perhaps considering that some jurors might know that Sam Leibowitz had come up from the streets of New York’s Lower East Side. “Every one of us here has sprung from the common people,” the assistant prosecutor continued, “but some of us have had better opportunities. J. Romeo Scott became an ordinary cop twenty-three years ago.” Surely Scott had not used “the finest of language,” George conceded, but the officer was a plainspoken man. The assistant prosecutor asked the jurors to credit the Hoboken police officer with honesty.13
William George returned again to Leibowitz’s fancy oratory, which the prosecutor had studied in preparation for their legal contest. Sam Leibowitz so savored his own rhetoric, George charged, that the phrases the defender favored resurfaced in trial after trial. And indeed they did. “I have been around and I have heard summations before,” George chided. “I have heard summations similar to [the one we heard today,] by the same man, almost word for word. It is the result of a legal philosophy which has padded the career of this celebrated lawyer, which has given him a reputation [that] causes the various news agencies to follow him around the country. Gentlemen of the jury, if your families have saved the newspapers containing stories of this trial, you will see what I mean. He is news. He is Sam Leibowitz. He has a big reputation.” The jurors, George warned, should be wary of Leibowitz’s “stock-in-trade” manner of preying on their sympathies.
To make his point memorable, George stole a page from Leibowitz’s book and offered the jurors a visual reference: the worn slippers, belonging to Scutellaro’s daughter, that Leibowitz had tried—and failed—to introduce into evidence. The little scuffed shoes had remained on the counsel table all day, George said, so the jury could see them. “If this case is based only on sympathy, I say to you, ‘Acquit him,’ “ George declared. “But in doing so you will prostitute your oath, and you will violate the integrity which this disinterested judge believes you have.”
Similarly, George insisted the jurors not be swayed by the defendant’s gaunt appearance, nor should they reflect upon his hunger. Those conditions did not make his actions acceptable. Remember Harry Barck’s difficult line of work, George cautioned the jury. Remember that Barck was a public relief official working with a scant budget. “If a man hasn’t got the money to pass out in the quantities someone believes he should have,” George asked, his voice rising, “should he be murdered?”
Leibowitz immediately rose to complain that the assistant prosecutor’s comment was inflammatory, and Kinkead ordered it stricken from the record. “If Mr. Scutellaro asked me for relief, and I could give it to him, I’d give it to him just as quickly as Mr. Leibowitz,” George said. Again he shifted his attack to encompass the defender and his client. “One’s heart can bleed profusely for a client who pays him to prevent his conviction of a proper charge of murder,” George said.
Again Leibowitz objected. There is no evidence in the case that I am being paid, the defense attorney protested. “These are some of the hitting-below-the-belt tactics I complained of,” he grumbled to the judge. Kinkead agreed that the comment was unfortunate, but the jurist was less concerned about Leibowitz’s reputation than he was about Scutellaro’s. He didn’t think it fair, he said, for George “to intimate that this man, who was on relief, had sufficient funds to bring over counsel and create the impression that he was a fakir.”
“There are many cases in which I have not received a nickel,” Leibowitz continued, still fuming over the assistant prosecutor’s remark. “I’m for the underdog,” he said, “and it’s not fair for Mr. George to assume anything but the evidence.”
“I’m willing to leave that to the understanding of any twelve intelligent men who understand what is going on in this country,” George retorted. Leibowitz again objected and was again sustained.
When George resumed speaking, his voice was thick with tamped anger. “If the time comes when you will be permitted to take by law what you want, even if it is necessary to take what man can’t create—a human life—it will be bad,” he warned, shaking his head. “This defendant is a schemer,” he announced. “He is not so innocent as he would like us to believe.” Yes, George admitted, they had all witnessed Joseph Scutellaro’s blank stares and his inability to respond to questions in court. The defendant’s afflictions, the assistant prosecutor could not help but notice, had been most pronounced when Scutellaro was being cross-examined by the prosecution. But Joseph Scutellaro had not been “in a stupor on February 25,” George asserted. On that day, the defendant “was alert. He reeked with venom.” Joseph Scutellaro had stabbed Harry Barck on that day, George declared, because the relief claimant had been enraged that Poormaster Barck had not rushed a check to him when Scutellaro had demanded one.
Now, George said, the jurors were witnessing Scutellaro’s genuine distress at the horror his rage had wrought. Scutellaro’s faltering testimony was not “phony,” George assured the jury, but the “result of strain. For eleven months, the ghost of Barck has haunted and plagued Scutellaro. He saw the blood of Barck on his hands. That’s why he was nervous.”14
And what about the testimony of Dr. Kelly? George asked, his voice now calm, almost casual. The doctor, he said, “is no bone in my throat, but a dagger to the side of Mr. Leibowitz.” After all, George continued, it was Dr. Kelly, a defense witness, who had recalled Scutellaro’s words: “Today it got so I could not stand it any longer, so I took a punch at Mr. Barck.” Dr. Kelly “told the truth,” George said, and the doctor’s testimony contradicted the defendant’s claim that the fight with the Hoboken poormaster had been sparked by an insulting comment about Mrs. Scutellaro.
George also found suspect Scutellaro’s description of Harry Barck’s fall onto the desk spindle. “We can’t violate the laws of gravity,” the assistant prosecutor declared. “We fall back.” George now called upon one of his colleagues, Louis Messano, to help him with a demonstration—again imitating one of Leibowitz’s techniques. The criminal defender must have been furious to see Messano and George reenact the demonstration he had previously directed, though now it would have a different outcome. Messano was heavyset, but as the shorter man, he played the role of Joe Scutellaro in the prosecutors’ performance. There was no struggle between the two men, no grasping of lapels. Messano mimed a blow to his colleague’s face, and George fell back.15
George next took the desk spindle and measured its length on a pad of paper, which he handed to Messano. “This defendant, in giving us a reenactment of the crime, was asked how Mr. Barck fell forward after he had been punched,” the assistant prosecutor said. Joe Scutellaro, he continued, answered, “With his arms under him.” But that posture would have made it impossible for the spindle to pierce his chest, George said. Leaning over the table with his arms under him, the assistant prosecutor demonstrated to the jury that the pillow formed by his arms kept his chest from touching the tip of the spindle, as marked on the pad held by his colleague.
“When Mr. Barck stood up, that instrument was pulled from his body,” George continued. “Did Mr. Barck pull it out? He was still standing up. He was on the other side of the desk, and Scutellaro was on the far side.” George paused for a moment. “What is the first normal reaction to pain?” he asked. “For Mr. Barck, as quickly as he felt the prick of his skin, to pull it out?” George ventured that if he were accidentally stabbed, he would certainly call for a doctor, instead of reaching for a police whistle. “You don’t call doctors by police whistles. You call the police. You don’t call police when you only want a doctor,” he said. “Gentlemen of the jury,” he continued, “I have asked you to believe the normal, reasonable properties of the mind of that human being, in those circumstances. If you do, there can be no altercation,” he concluded, and therefore, there can be no accidental death.
George called upon the jury to find the defendant guilty as charged. “If I did not ask that, you would be the first to clamor for my dismissal from office,” he said, and cautioned that if he called for anything less, “we would have a dangerous situation in this county and in the country.” George encouraged the jurors to view their verdict as a bulwark against rebellious reliefers. Consider the “sit-down relief strike” in Trenton, he began.16
But Leibowitz jumped up to object, calling the assistant prosecutor’s remark “highly inflammatory.” Judge Kinkead upheld the defender’s objection.17
George swiftly moved on to attack another defense claim: that politics played a role in the Scutellaro case. Although George well understood the sway a political boss could hold over a city’s government and its population, he argued away defense suggestions that Bernard McFeely, and his family’s many officeholders, were responsible for the desperation evinced in the Hoboken poormaster’s office. Sam Leibowitz “read a long list of McFeelys for the same reason that Joe Clark was called here as a witness,” George said. The former McFeely ally, now unemployed, was “called here for one purpose—to spit political venom.” Again George insisted the jury consider the evidence alone. He asked them to find the defendant guilty, as indicted, of the “willful, deliberate” murder of Harry Barck.18
But Joe Scutellaro had been indicted for murder in the first degree. A jury verdict, “as indicted,” would ordinarily result in a death sentence, though a recommendation of mercy could substitute death by electrocution with a life sentence at hard labor. Now, as Leibowitz had predicted, Assistant Prosecutor George withdrew his earlier call for the defendant’s execution. “I do not ask that this defendant be electrocuted,” George said. “God knows I do not want that.” He opened the way for a “compromise” verdict of second-degree murder, bringing with it a maximum of thirty years imprisonment, or even manslaughter, with a maximum of ten—though he did not mention these alternatives. He only said he would “leave the rest of it to this great judge for whatever sentence is to be imposed,” a statement Leibowitz called highly improper.19
The assistant prosecutor was prepared to close. “Tonight I will sleep the sleep of a child,” he announced. “I will be able to look my God in the face. I have done my duty.” William George raised his voice, overwhelming the sound of Joe Scutellaro’s broken sobs. “I have given you implicitly, honestly, every aspect of this case,” he declared, “and I know that you will find from the evidence a verdict of guilty as indicted.”20
Both prosecution and defense would later praise Robert Kinkead for his courtesy and fairness during the trial and for the extreme care with which he charged the jury. If Sam Leibowitz had once questioned Kinkead’s New Year’s Day hobnobbing with Boss Hague, the defender would, at the close of the trial, reveal no concern over the judge’s potential political bias. Leibowitz had observed Kinkead’s gentle approach to Joe Scutellaro throughout the proceeding and had determined that the judge was “an upright man.”21
Leibowitz’s favorable view of Robert Kinkead would have been helped along by the jurist’s ready incorporation of defense arguments into his thirty-five-minute charge to the jury. After explaining the different verdicts, the judge referred to the confession and to the defense’s contention that it had been coerced. “If you believe the defendant’s version of how Barck met his death, you must acquit,” Kinkead said, noting that even if the jurors disregarded the claim of an accidental killing, they might still consider Scutellaro’s right of self-defense if he was in a position that caused him to fear bodily harm—whether or not he was actually in danger.
Here, too, the judge followed Leibowitz’s lead, inviting jurors to put Barck’s character on trial. Kinkead asked the jury to carefully weigh witness testimony describing the Hoboken poormaster as “vicious, quarrelsome, irascible, and offensive.” Consider the weight and stature of the two men, the judge urged the jurors. Consider Barck’s frame of mind, knowing that Lena Fusco had spat on him prior to his meeting with the defendant.22
Kinkead also returned to Scutellaro’s admission that he had been convicted of assault on a state relief officer and explained that Leibowitz had asked about it to test the defendant’s credibility as a witness. That conviction, the judge warned, was not to be considered part of the trial.
By 6:30 PM Kinkead was done. The jurors were to be kept in session until they reached an agreement or were ready to report a disagreement, the judge said. “May Almighty God guide you in your deliberation in the jury room” so that the verdict you return will “serve the cause of justice, justice to the State of New Jersey, and justice to Joseph Scutellaro.”
As the twelve men filed out of the courtroom to begin their deliberations, a squad of county police officers swept through the courthouse halls to evict any lingering spectators. Then the police locked the courthouse doors.23
During the first two hours of jury deliberation, Marie Scutellaro and her brother distracted themselves with play. The marble halls outside the Court of Oyer and Terminer, cleared now of their father’s supporters, became their temporary playground. While their weary mother waited in court, Marie and little Joe took up a game of tag, sliding on the marble floors as they rounded the railing of the center well. After Marie tired of the diversion and returned to her mother’s side, her little brother found several newsmen and photographers more than willing to pass the time pitching pennies.
Around 9 PM the jurors returned to the courtroom. When they asked the judge to clarify the circumstances required for acquittal, Joe’s family must have felt its thrilling possibility—that Joe might soon be returned to them. But by midnight, no verdict had been returned. While Anna sat upright, knowing Joe would search for her as soon the officers returned him to court, Marie and little Joe stretched out on a court bench, falling asleep on thick “improvised beds made of overcoats.”24
William George and his colleague Louis Messano left the courthouse just after midnight. Sam Leibowitz remained; but on the urging of his associates, he left Kinkead’s court for another section of the building, where a couch was available. He had not slept for almost forty-eight hours.
Nevertheless, the defense lawyer found that he could not rest, and walked the courthouse corridors instead, stopping occasionally to chat with cocounsels Vincent Impellitteri and Thomas Tumulty or to smoke with newsmen waiting to report the outcome of the trial.
Just before 4 AM on Sunday, January 15, Judge Kinkead left for his Jersey City home. He would have to be called back to the courthouse when a verdict was announced. Leibowitz and his colleagues prepared to leave, too. The lawyers shrugged on their heavy winter coats. As they descended into the marble rotunda, a man called out to Leibowitz from the balcony. In the dimly lit great hall, the defense attorney tilted his head back to catch sight of the man who had shouted his name.
Wait! the court officer called out. A verdict is expected.25
Marie Scutellaro awakened abruptly at the sound of the judge’s gavel. The tired girl sat up just long enough to climb from her makeshift bed into her mother’s lap, then she returned to sleep.
It was 4:45 AM. The twelve jurors had filed back to announce their verdict to the trial participants and to the few observers permitted in court. Most were newspaper reporters and photographers.
All turned to watch as the pallid, gray-suited prisoner, moving “like a robot,” was led into the room. Anna Scutellaro, seated in the same spot she had held throughout the trial, met her husband’s gaze and smiled. But the strain behind that smile was great; when Joe shuffled past and could no longer see her face, Anna began to cry. Little Joe stirred and awakened from his slumber. I’m hungry, he wailed several times before Anna wiped her tears and settled the toddler with a bottle he had already drained of milk.26
Now came the jury’s verdict. Joe did not react when the young foreman, Richard Van Horn, announced it: manslaughter. After a six-day trial and ten hours of deliberation, the jurors had determined that Joseph F. Scutellaro had killed Harry Barck “in a sudden transport of passion, in the heat of blood, or with reasonable provocation and without malice.”27
How had they decided? Although one of the jurors later told the Hudson Dispatch that the panel had “agreed at the outset not to reveal to anyone what transpired in the jury room,” several newspapers quickly printed accounts of the jury’s deliberations, perhaps based on tips received from court employees. Il Progresso Italo-Americano described the verdict as a compromise reached in response to “the pig-headedness” of a single juror. The eleven other men were said to have given in to the dissenter in order to avoid a mistrial. “A well informed source” identified the holdout to the Italian-language newspaper as Harold Tompkins, the prosperous mechanical engineer who was the jury’s sole homeowner and the only juror to ask Kinkead to review the portion of his charge explaining first- and second-degree murder. The New York Daily News matched Il Progresso’s account, announcing a compromise forced by Tompkins, “who for more than ten hours, held out against the eleven others, who favored outright acquittal.”28
The verdict, though not completely unexpected, stunned Joe’s relatives. At first, they were silent. Then came Frank Scutellaro’s repeated gasps, as if he had been leveled a physical blow, and the high keening of his wife and daughter-in-law.
As court matrons tried to calm the distraught family, Joe’s defense team asked that the jurors be polled. “Several of the jurors appeared on the verge of tears when they were polled for their individual verdicts,” the Daily News reporter later wrote. The jurors “replied hesitatingly, their eyes averted from the seemingly-stupefied defendant, as if they regretted their decision and still wished to change it.” Maybe so, but the twelve men had made no request that the judge be merciful, which they could have done. Joe Scutellaro, they determined, had killed Harry Barck. They left Joe’s fate to Judge Kinkead, as William George had directed them. That pronouncement was to wait for a sentencing hearing yet to come.29
The trial was over. Leibowitz had expended his great reserve of energy on his summation, and now his shoulders sagged with exhaustion. He had kept Joe Scutellaro from the electric chair, but he had not persuaded the jury to acquit. Leibowitz would try to secure his client’s release through other means—on appeal, possibly, or through a persuasive argument put before Kinkead at sentencing—but first he needed rest. He could do little more now than encourage the judge to give him a sympathetic hearing in the future.
After the jurors were discharged with the thanks of the court, the famous orator turned his charm on Judge Kinkead. “Counsel for the defense,” Leibowitz announced, “very deeply appreciates the extreme courtesy, gentleness, and fairness—of the conduct of Your Honor—during this trial. We want the whole world to know,” Leibowitz enthused, “that never a fairer judge” has “ever graced the bench.”
Robert Kinkead must have been well pleased. “Don’t think I’m fulsome in saying that your reputation precedes you as one of the foremost lawyers of this country,” the judge responded. “A tribute from you is deeply appreciated by this court.”
And that was all. The tired lawyers and newsmen abandoned the courthouse to meet other obligations. Leibowitz would spend time with Anna and her relatives before heading home to Brooklyn. Impellitteri was to confer with Joe after he was returned to his cell in the Hudson County Jail.30
The men who had been ejected from the courthouse had crowded its top steps until midnight, waiting in the bitter air for the jury’s verdict. Their number had dwindled through the early hours. By sunrise, when the verdict was declared, only the hardiest among them—or the most determined—remained on the frost-crazed steps to hear the news. Their verbal response, if there was any, was not recorded. The demonstration that Judge Kinkead had feared did not occur.
When they were ready, the poorest men walked the mile and a half back to Hoboken. A few lingered on the granite steps long enough to hear Vincent Impellitteri make a statement to the Italian-language press. Given the evidence presented by the state, Impellitteri announced, Joe Scutellaro should have been acquitted. But in this case, the defense associate said, “prejudice” had taken “an upper hand to justice.” Harry Barck “was a politician,” he charged, “while the accused was an Italian,” a powerless man in a city that conceded nothing to Italian Americans, never mind those who were on relief. Nevertheless, the associate observed, the verdict was lighter than it could have been. “A few months ago,” Impellitteri announced, “the opinion of the political circles in Hudson County was that Scutellaro should receive the electric chair.”31
Certainly Joe’s supporters were relieved that the former relief client would not be executed by the state. But in the days to come, at least one editorial would note that the poor man’s sympathizers were not the only ones pleased by his evasion of the death house. “The Hoboken authorities are mainly interested in drawing the curtain, which the trial momentarily pulled back, over the terrible realities of the lives of men and women on relief in New Jersey,” the Nation asserted. “A death sentence would have had the opposite effect. The jury’s verdict, carrying a maximum penalty of ten years, has the advantage, for Hoboken, of putting the bewildered little man back behind the bars.”32
The publication urged its readers to remember what the Scutellaro trial had revealed about the lives of the jobless poor and to take that knowledge into future battles over relief. A Nation contributor, McAlister Coleman, later declared: “I commend study of the full record of the Scutellaro case to those who would take one million Americans off the WPA rolls and turn them back to the mercies of the local authorities.”33
Anna went back to Monroe Street and put Marie and little Joe to bed. Accosted by reporters waiting outside her home, she refused to be questioned or photographed. She was now far too savvy to allow newsmen inside the apartment. But her refusal did not prevent a local paper from reusing an image of her and her children, taken eleven months earlier, when they’d finally learned of Joe’s arrest. Under the photograph of the sobbing family, the Hudson Dispatch inserted a caption claiming the picture expressed “the feelings of the wife and children of Joseph Scutellaro” on hearing the jury’s verdict.34
The Dispatch also sought reaction from Harry Barck’s widow, Augusta, who had moved out of her upper Hudson Street apartment to stay near her daughters, in Dover, New Jersey. One of Mrs. Barck’s sons-in-law, Peter Vanderwolf, spoke to reporters just long enough to inform them that the family was shielding the widow from all mention of the case.35
Twice postponed, the sentencing of Joseph Scutellaro was finally set for February 2, 1939, the day before the Scutellaros’ tenth wedding anniversary. On that morning, the prisoner’s father-in-law, John Angelo, and Joe’s father Frank, accompanied Anna to the hearing. She did not bring her children, who stayed at home, in a neighbor’s care.
A dozen or more newsmen, including at least one reporter from the Italian-language press, also returned to Judge Kinkead’s court, to record the final disposition of the case. The reporter for Il Progresso Italo-Americano took careful notes for the paper’s dedicated readers, detailing Joe’s entrance into court, his handcuffs, his immediate search for Anna in her usual spot. When Joe’s eyes met hers, he smiled reassuringly, perhaps noticing, as the reporter had, that Anna’s eyes were rimmed red from sleeplessness and worry. Sam Leibowitz then approached his client and, putting a hand on the little man’s shoulder, whispered a few words in his ear before advancing to the defense table.36
For a time, the defender would have had some hope that Kinkead would release Scutellaro on sentencing day, elating Joe and his family, of course, but also turning the case into another clear Leibowitz victory. Area newspapers had highlighted a remark Kinkead had made at a church convocation not long after the trial’s conclusion, that “the main duty of a jurist was to dispense justice, which did not necessarily mean that every person convicted of a crime should go to jail.” The judge may have floated the option to test political reaction. Governor A. Harry Moore, a Hague ally, had proposed Kinkead’s promotion to the New Jersey Circuit Court, and the judge’s backers would not have wanted the relief claimant’s tale of near-starvation to cling to their nominee.37
Response to Kinkead’s suggestion of clemency—at least from those charged with dispensing relief—had not been favorable, Leibowitz now knew. Il Progresso would later cite the displeasure of “various relief agencies” and the “strong pressure” they had exerted on the judge, “so that the crime that was committed [would] not go unpunished.” Relief employees, the newspaper reported, feared that a show of leniency for Joe Scutellaro “could provoke a wave of rebellion amongst relief applicants, who are often denied assistance.” Now, after denying the defense’s two motions—for an arrest of judgment and for a stay of sentence on the grounds of alleged errors in the case and a conviction against the weight of evidence—Judge Kinkead allowed Leibowitz one final go at a plea for mercy for his client.38
By all accounts the criminal defender’s forty-five-minute appeal was passionate. His round face flushed, Leibowitz challenged and declaimed, drawing upon older themes he invested with immediacy by linking them to current events. “Scutellaro is not responsible for this crime,” the criminal defender declared, “but the conditions in this state, which permit relief at the rate of a penny a day to be paid out by a poormaster to a starving family, while billions are spent for roads and bridges.” Leibowitz had surely read that the New Jersey State Legislature was considering a bill that would offset the City of Newark’s $2 million claim for relief reimbursement with its $2 million debt to the state for highway construction. Some were calling it a hardhearted tradeoff. And indeed, when the bill later passed, Newark’s mayor, Meyer C. Ellenstein, declared: “The unemployed of the city of Newark have asked for bread and the legislature has said: ‘Let them eat State Highway Route 21.’ “39
But the defense attorney, adjusting his rhetoric, did not want to suggest that his client was anything like those Workers Alliance picketers, the reliefers and unpaid grocers who had continued to protest at the New Jersey Statehouse while Joe had awaited sentencing. The demonstrators had refused Assembly Speaker Pascoe’s offer to allow a few of their number into the chamber, because the offer came with the requirement that they remain silent while there. Citing their unwillingness “to barter away their constitutional right of free speech,” the Workers Alliance members had returned to the street and continued their protest.40
“I do not feel I am pleading the cause of a criminal who has committed a crime against society for gain or advantage,” Leibowitz now said. “Scutellaro had always been a quiet citizen, not an agitator as are so many these days and whom the country would be well rid.” Leibowitz may have been swept into rallies during his defense of the Scottsboro Boys, but he could never be confused with a comrade-in-arms. He had taken on the Scutellaro and the Scottsboro cases to win. Now, in arguing for Joe’s release, Leibowitz drew a line between vocal protestors and his passive client. It would be a “great injustice,” the lawyer insisted, to make Joe Scutellaro “a scapegoat, so his sentence would serve as an example to others.”41
In closing, Leibowitz suggested that the judge satisfy the wishes of the greater community, the struggling, proud families of Hudson County, to whom the defender attributed a desire for leniency for his client. “This is a case where the court would be justified before God and the people of this community in erring on the side of mercy,” Leibowitz announced. “I dare to say the good women of Hudson County, had they been able to come here, would have voted 99 percent in favor of having this man go back to his wife and children. I ask Your Honor to do the same.”42
Kinkead, at least one reporter noted, was moved by Leibowitz’s plea. He took a few moments to compose himself before speaking. But when the judge began his response, he delivered a speech he had prepared well in advance. Rather than responding to the defense arguments made just moments before, Kinkead launched into a reply to absent critics, who had lamented his performance at trial. It is “unfortunate,” Kinkead opined, that some had the impression that in the charge to the jury, the court had attacked Barck’s character, when the court had only referred to testimony by defense witnesses.43
Harry Barck, the judge continued, “was an earnest public official, doing the best he could for the city. If he had only displayed sympathy and understanding of the circumstances, he would not have made the short answer he made to Scutellaro but would have advised him to go home, where he would have found his relief check.” Instead, Kinkead said, “Mr. Barck, in a rage because of treatment just received from a woman client before Scutellaro entered, ordered Scutellaro out of his office.”
In Kinkead’s telling of the events of February 25, 1938, Barck’s rage had then been matched by the rage of Joe Scutellaro. Holding the desk spindle that had been placed into evidence, Judge Kinkead asserted that the furious relief client had “picked up this desk spindle and plunged it into Barck’s body.” He declared the court in accord with the jury verdict of manslaughter and added: “The court cannot overlook the fact that human life has been taken.”44
Kinkead now called the blank-eyed defendant by name, as if to awaken him. “Scutellaro,” the judge declared, “I can’t let you go home today, but I am keeping in mind the extenuating, mitigating circumstances.” He mentioned that several priests had spoken on Joe’s behalf. Then, drawing himself up, Kinkead made an announcement. “Mayor Bernard McFeely of Hoboken appealed to me yesterday for leniency,” the judge revealed, as newsmen bowed their heads to scrawl the judge’s unexpected statement. “I consider Mayor McFeely a big man for his act, despite adverse criticism of himself and his administration,” Kinkead said. “The mayor told me he knew you and your family and that you were not a relief chiseler or a troublemaker.”45
The judge then pronounced his sentence: Two to five years in state prison.46
Joe Scutellaro bent his head as he was led out of the courtroom to the county jail, to await removal to Trenton. He looked up once as he was shuttled past the gleaming benches, to find Anna. A reporter noted that she was “seated in the same spot she [had] faithfully held every day,” and there, she wept without restraint.47
On that same day, February 2, 1939, Herman and Elizabeth Matson received stirring news that they hoped would bring change to Hoboken—maybe even topple Boss McFeely. The office of the United States Attorney General had telegrammed to confirm a meeting with a delegation from the Workers Defense League of New Jersey. In ten days Herman would be one of nine WDL representatives traveling to Washington, DC, to discuss the “flagrant violation of civil rights” in Hudson County. The Justice Department was about to begin an investigation into Herman’s assault in a Hoboken park, after he had tried to speak out against political corruption and the inadequacy of public relief.48
Anna Scutellaro leaving the courtroom with defense attorney Samuel Leibowitz after her husband’s sentencing.
New York Daily News Archive/Getty Images.