OF ALL THE burglars and safe-crackers in New York who are watched over by the detectives of the Safe and Loft Squad, Morris Shapiro and Jacob Weiss were for many years the favorites. The Safe and Loft Squad operates out of Police Headquarters in Manhattan and is mainly concerned with keeping track of known specialists in the breaking-and-entering field of crime. The detectives follow them around when they seem to be getting ready to pull something off and try to catch them before, rather than after, they have done it. Shapiro was a tall man with a bulbous head, scrambled, irregular features that made his face look like a child’s drawing, and an immense, oval body. He weighed more than three hundred pounds. Weiss had startlingly large brown eyes in a pinched, sad face and was about the size of a jockey. The Safe and Loft men had a feeling for Shapiro and Weiss that was almost affectionate. Like most people who knew Weiss, they called him Little Jake, but in speaking of Shapiro, who was commonly referred to by his acquaintances as the Ape Man, the detectives called him Moishe, which is what some mothers call a child whose first name is Morris. Because Moishe was so tall and fat and Little Jake so short and thin, it was delightfully easy for the detectives to follow them around. The pair looked and acted a good deal like Sydney Green-street and Peter Lorre in some movie melodrama. The gigantic
Moishe waddled when he walked, and chuckled frequently in a sinister fashion. The tiny Jake had to hop and skip to keep up with Moishe, and he had an unforgettable way of simultaneously licking his thin lips and rolling his enormous eyes when he looked up at his partner. Through the years, Moishe and Little Jake were caught red-handed time after time just as they were about to finish picking a difficult lock or blowing a burglar-proof safe in a jewelry store or some other business establishment. The terms they served in Sing Sing and other penitentiaries were usually brief, because they could rarely be convicted of anything more than an attempt. They hardly ever actually committed a burglary, but they kept trying to until they grew old and tired. In the summer of 1951, Moishe was seventy years old and Little Jake was sixty-seven. Little Jake was the operator of an unprofitable bar-and-grill on Clarkson Avenue, in Brooklyn. Moishe did legitimate odd jobs around the same neighborhood and hung out in Little Jake’s place a good part of the time. They seemed to have retired from their lifelong profession of attempted burglary, but nevertheless the Safe and Loft men still kept track of them.
Around the middle of August that summer, word came to the Safe and Loft Squad from a stool pigeon that Moishe and Little Jake were acting as if they were about to pull something off. They had been doing a lot of whispering in one of the back booths of the bar-and-grill, and several times when a stranger in a new Chrysler had parked outside the place and tooted his horn, Moishe and Little Jake had gone out, got into the back of the car, and talked to him. Little Jake had an old Dodge sedan with New Jersey license plates (he couldn’t get license plates in New York State because of his record), and he seemed to be going out in it with Moishe more often than usual, both in the daytime and at night.
Detectives Howard J. Phelan, Francis Shannon, and James L. Daggett were assigned to keep watch on Moishe and Little Jake, and they did, sometimes working together and sometimes in shifts, depending on the press of other Safe and Loft work. For a couple of weeks, the detectives didn’t see them do anything that looked suspicious. Then, on the morning of August 31st, Moishe and Little Jake went in the Dodge to the corner of Sutter Avenue and That-ford Street, in Brooklyn, where truck drivers and their helpers hang around looking for jobs with trucking companies in the neighborhood. The drivers congregate in one group on the sidewalk and the helpers in another. Moishe and Little Jake parked their car, and after a while Moishe called to a spry, shabby-looking old fellow who was standing with the helpers and appeared to be one of them. The man came over and talked to them for a while, and the detectives got the impression that he was accepting some kind of proposition. He kept nodding enthusiastically, and then he grinned, bowed, waved, and walked off.
That afternoon, Moishe and Little Jake drove the Dodge to a public garage on Rockaway Avenue, in Brooklyn, and put the car inside. Little Jake stayed in the garage, and Moishe walked outside and sat down on a bench. Pretty soon, the man the detectives had taken to be a truck driver’s helper got off a bus and joined Moishe. They sat and talked briefly and then went inside the garage. There, Moishe, Little Jake, and the helper removed from the Dodge ten brown corrugated-cardboard cartons tied with heavy twine and put them in a locker. After that, the three men drove to Manhattan and drew up in front of a loft building at 9 West Eighteenth Street, in the garment district. Leaving Moishe and the helper in the car, Little Jake walked around the corner and presently reappeared with a well-dressed, respectable-looking middle-aged man. They stopped to speak to Moishe and the helper, and one of the detectives managed to hear Little Jake address the middle-aged man as “Mr. Keshner.” The middle-aged man then unlocked the street door of the loft building, and he and Little Jake went inside. A sign on the building listed the various tenants, one of which was Abraham Keshner, Inc., manufacturers of sports jackets and lounging garments. The Keshner factory occupied the fifth floor.
In about fifteen minutes, Little Jake and Keshner came out. Little Jake got back in the car with Moishe and the helper, and Keshner walked over to Fifth Avenue and up to Nineteenth Street, where he waited at a bus stop. Little Jake and his companions picked him up there in a few minutes, and the four men drove up and down and back and forth around the district, finally parking the car on Sixth Avenue near Fourteenth Street. Moishe, Little Jake, and Keshner stood on the sidewalk and talked for about a quarter of an hour, while the helper sat in the car, and then Moishe, Little Jake, and the helper drove off. Keshner walked back to a parking lot near the loft building and drove off in a new Chrysler.
The detectives assumed that Keshner had hired Little Jake and Moishe to bring the cartons to his factory, steal some of his merchandise, and carry the loot out in them. This is a not uncommon practice among businessmen who are in financial difficulties and want to collect burglary insurance. The detectives figured Moishe and Little Jake had come to look the place over, and would do the job soon. They stuck with Moishe and Little Jake day after day and night after night. One evening, Moishe, Little Jake, and the helper got together at the Brooklyn garage, put the cartons into the Dodge, and met Keshner on West Eighteenth Street. Another night, Keshner met the three men at the garage and they all drove over to the loft building in his Chrysler, with six of the cartons in the luggage compartment and four on the rear seat; upon returning to the garage, they moved the four cartons on the rear seat into Little Jake’s Dodge. On neither of these trips did they take the cartons into the building; both times, the men just waited around outside for a while and then drove away. On both visits, Moishe carried a long, flat package.
Then, around seven o’clock on the evening of Monday, September 10th, three days after the trip in the Chrysler, Moishe, Little Jake, and the helper drove in the Dodge to a cafeteria at Broadway and Eighth Street. Leaving the helper outside in the car, Moishe and Little Jake went inside, and were joined almost at once by Keshner. The three men sat together over coffee and talked for twenty minutes. When they came out, Keshner walked down the street to his car and drove it up alongside Little Jake’s car. The four cartons that had been put in the Dodge after the previous expedition were now moved back to the rear seat of the Chrysler. The two cars were then driven to the loft building and parked in front of it, and Moishe got out, carrying the long, flat package. Keshner opened the luggage compartment of his car, and he and Little Jake and the helper took the six cartons in there and the four on the rear seat into the building, accompanied by Moishe. Detectives Phelan and Daggett had parked their car across the street, far enough down the block to watch the men but not close enough to attract their attention, and Detective Shannon had parked on the corner of Fifth Avenue.
In half an hour or so, Keshner and the helper came out of the building carrying a couple of cartons apiece, put them on the rear seat of the Chrysler, and went back and got more. When they had put all ten cartons on the rear seat, they got in and drove toward Fifth Avenue. Detective Daggett stayed to keep a watch on the building, and Phelan and Shannon went after the Chrysler in their cars. At Fourth Avenue, Phelan forced the Chrysler to the curb and Shannon, who was right behind him, jumped out of his car, drew his gun, and covered Keshner and the helper. When Phelan opened the door of the Chrysler to take a look at the cartons, he smelled gasoline. The top of one of the cartons hadn’t been properly tied, and Phelan saw a tin container inside. He took it out and looked at it. It was a five-gallon gasoline can, and it was empty. He ripped off the tops of the other cartons and found that all of them contained empty five-gallon gasoline cans. Until that moment, Phelan and the other detectives had assumed that the cartons had been carried into the loft building empty and carried out filled with some kind of loot. Now Phelan realized that what the men had in mind was arson.
KESHNER, WHO WAS known to his friends as Al, has been described by a psychiatrist as “a short and stocky, mild-spoken, middle-aged individual, without psychosis, of average intelligence, aggressive, abstemious in his personal habits, a good husband and father, but a man who possessed a rather deep acceptance of the questionable ethical standards with which he was evidently familiar in his everyday dealings in the garment district of Manhattan.” Around 1943, he had borrowed seven thousand dollars from friends and relatives in Brooklyn, where he was brought up, and had gone into business for himself, manufacturing sports jackets and bathrobes. He paid off his debts in three years. When business was good, he employed about forty workers in his factory, had a weekly payroll of four or five thousand dollars, drew a salary of a hundred and fifty dollars a week for himself, and most years made a profit of eight or ten thousand dollars. He had a married daughter, an eighteen-year-old son at college, and another son four years old. He lived in a comfortable apartment in Brooklyn, and in the spring of 1951 he had bought the new Chrysler, paying cash for it out of his savings, which amounted to something over seven thousand dollars. He went to lunch nearly every day at the Longchamps at Fifth Avenue and Twelfth Street, a favorite place among successful businessmen in that district. He spent his evenings quietly with his family.
While Phelan looked over the cartons and Shannon kept the two men in the front seat covered, Keshner said nothing and neither did the helper. Finally, Phelan spoke to Keshner, and the following eerie dialogue, later introduced in court as evidence, occurred:
“What’s this going to be, a fire?” asked Phelan.
“Yes,” said Keshner. “What’s this all about? I am a businessman. I have a place of business on Eighteenth Street.”
Phelan frisked him and found no weapons. Then Keshner reached in his vest pocket, handed him one of his business cards, and repeated, in an injured tone, “I am a businessman.”
“What time is the fire going to take place?” Phelan asked.
“About five o’clock in the morning.”
“Is Jake and Moishe going to stay in the building?”
“Yes, but—my God! Do you know them?”
“Yes, I know them a long time.”
“How did you get on to this?”
“Well, I know Jake and Moishe a long time. What happened last Friday night?”
“My God! Were you around then? There was somebody in the building and we couldn’t make it. I have been trying to make this damned fire for a month, and I was going to make it myself. Can’t we straighten this thing out? Can’t we talk this thing over? Can’t we let this thing go off?”
“Are you crazy? If you let this thing go off, there might be a hundred firemen killed. Ten five-gallon cans of gas is fifty gallons of gas.”
“Can’t you let it go off? I need the money. I’m in a desperate way.”
Phelan put an end to the conversation by telling Keshner to hand over the keys to the building and ordering him to drive back there in a hurry. Shannon took the helper in his car and followed Phelan. Then Shannon stood guard over both men while Phelan joined Daggett, who had been watching the front door. They let themselves into the building and climbed up four dark flights of stairs to Keshner’s factory. Inside, Moishe and Little Jake had finished systematically sloshing gasoline around, pouring it on the floor, on the desks, in the filing cabinets and wardrobes, and under the sewing machines. Moishe had his coat and shirt off and was sweating. He was evidently ready to set the fuse, which was in the long, flat package. The usual method used by professional firebugs is to play out the fuse down a couple of flights of stairs and light the end of it on their way out of the building. After the detectives had arrested Moishe and Little Jake, Phelan, who was almost overpowered by the gasoline fumes, said, “We better get out of here. This place is loaded.” They started downstairs. Then, at Phelan’s suggestion, they all went back into the factory to let Moishe get his shirt and coat, which he had hung on an office chair.
A minute or two after Moishe, Little Jake, and the two detectives went back into the factory, something set off the gasoline. There was an explosion that was heard for blocks, and flames shot out and upward from the fifth-floor windows to a height of thirty or forty feet. Detective Shannon, sitting in the car with Keshner and the helper, later said the sight reminded him of a flamethrower. A moment earlier, Keshner had asked Shannon, “Can’t we please go up there and dump the gasoline down the toilet and clean the place up before my employees come to work in the morning?”
Moishe and Detective Daggett were burned to death inside the factory. Little Jake was taken to St. Vincent’s Hospital, where he died. Detective Phelan was knocked unconscious. He came to shortly, crawled out of the office, and fell halfway down a flight of stairs. “I kept yelling for Daggett, and I could hear two voices screaming inside the loft,” Phelan said afterward. “My clothes were afire, and I managed to get my coat off and part of my shirt, and there were several bits of stuff all around the floor—part of the wall, which had collapsed onto the stairway—and I managed to get down the stairway to between the first and second floor, at which time I observed the form of a man hanging in the elevator shaft. I thought it was Daggett, and I called his name several times, and then I saw it was Little Jake. There was a lot of other debris and burning material that came down in through the elevator shaft, and it forced me out through the front door.” Phelan was also taken to St. Vincent’s Hospital, and he remained there for two months, being treated for third-degree burns of the face, back, and hands. He was later retired on a disability pension. He has never fully recovered, but he is now able to do some work as a private investigator.
Keshner was taken to the Tenth Precinct station house while firemen were still trying to put out the fire. There he talked freely to detectives and to Assistant District Attorney James L. Daly, of the Homicide Bureau. He made no attempt to deny he had hired Weiss and Shapiro to set the fire and had helped them with their preparations for it. His motive, he said, was to collect fire insurance. He knew he was in trouble and evidently thought he would be sent to jail for second-degree arson. When Assistant District Attorney Alexander Herman, chief of the Homicide Bureau, had absorbed the main facts of the case, he conferred with District Attorney Frank S. Hogan, and it was decided that Keshner should be, and possibly could be, convicted of first-degree murder under a New York statute that covers what is known as a felony murder. Holdup men who kill somebody without premeditation, or even by accident, in the course of committing the felony of armed robbery have frequently been sent to the electric chair in this state, but there was no precedent that exactly covered Keshner’s case. However, the definition of murder in the first degree, which includes the so-called felony murder, appeared to Hogan and Herman to encompass Keshner’s act. The definition is: “The killing of a human being is murder in the first degree when committed, first, from a deliberate and premeditated design to effect the death of the person killed; and, two, when committed without a design to effect death by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed, or otherwise.” If it could be proved beyond a reasonable doubt that Keshner had hired Weiss and Shapiro and had helped them prepare for the fire, Keshner would be guilty of attempting to commit arson in the second degree, even though he wasn’t in the building when the fire broke out, and an attempt to commit arson in the second degree is a felony. Keshner was indicted for the murder of Detective Daggett. The truck driver’s helper, whose name was Jacob Mayron, insisted he hadn’t known about the arson plot, but he was nevertheless indicted on the same charge. Keshner and Mayron were held in the Tombs without bail and went on trial together before Judge Francis L. Valente and a jury in the Court of General Sessions in April, 1952, seven months after the fire.
BEFORE THE TRIAL , Assistant District Attorney Herman had talked over the case at great length with Assistant District Attorney Richard G. Denzer, chief of the Appeals Bureau, and had tried to prepare it as carefully as possible. Herman and Denzer had sounded out many of their friends in the legal profession, and almost all these lawyers were certain that under the circumstances outlined, a conviction for first degree murder couldn’t be obtained, and that even if it were, the Court of Appeals wouldn’t sustain the conviction. Herman and Denzer, supported by Hogan, believed that Keshner and Mayron were as guilty of murder in the first degree as they would have been if a death had resulted from an armed robbery they had conspired to commit, and they based their case on that belief. As chief of the Homicide Bureau, Herman ordinarily leaves prosecutions to his assistants, but he decided to handle this one himself, with the help of Daly, who had taken Keshner’s statement a few hours after the fire and had done most of the leg work in the preparation of the case. Keshner hired James D.C. Murray, one of the best criminal lawyers in New York, to defend him, and Mayron had Abraham J. Gellinoff, Morris Dickman, and LeRoy Campbell, who were appointed by the court.
Herman’s opening statement to the jury was brief, factual, and unemotional. A police detective had been killed, he said, in a fire that had resulted from an arson plot in which the defendants were conspirators, and, under the law, that constituted a felony murder. “Gentlemen of the jury,” he said in conclusion, “we will prove to you that these two defendants, Keshner and Mayron, with two associates, Weiss and Shapiro, who are now dead, caused the death of Detective James Daggett by committing this criminal fire, this arson which all four of them perpetrated in Keshner’s loft at his request and at his direction, so that he might collect the fire insurance. Listen well and carefully to the evidence, gentlemen. See where the truth lies. Apply the laws of this State to the facts as you find them to be, apply the laws as you get them from His Honor without mental reservation, and exactly as you get them, and do justice not only by these defendants but by the People of the State of New York.”
Murray said, in part, “This defendant, Al Keshner, is a man in his early forties. All his life there was no taint or criminality connected with him. We will prove that he worked all his life honestly, trying to earn a living, and that he never in all his life committed a criminal act. And I shall call character witnesses to show you his reputation in the business world and in his social contacts. Gentlemen, I say to you, and we shall prove, that the defendant Keshner may have been ill advised, he may have done things he should not have done, he may have been guilty of some dereliction, but murder—never. It was the farthest thought from his mind that any human being should ever be harmed. It is true that business was bad. It is true that he had insurance. . . . It is true that he set about to have a fire made. This being a felony murder, this being one of the charges, one of the harsh features of the law, we will prove to you that he tried to stop anything that would hurt anybody in this case. And I say to you again, without going into details, that he may not have done what was right, but murder—never.”
The attorneys for Mayron told the jury that his defense would be that he knew nothing of the arson plot, that he had been paid fifteen dollars to help carry the cartons, and that he had not been allowed to carry them all the way to the fifth floor of the building, where he might have seen what Weiss and Shapiro were doing with what was inside the cartons.
The first witness for the prosecution was Dr. Milton Helpern, Deputy Chief Medical Examiner. Daggett’s body had been found inside the factory, with all his clothes burned off and his detective’s shield resting on his chest. The body had been identified at the morgue, in Dr. Helpern’s presence, by a brother, a friend, a first cousin, three firemen, and a patrolman.
“Will you describe the body as you found it, and give us your findings?” asked Herman. “And give us the cause of death, if you can?”
“The body was that of a white man appearing to be about the stated age of thirty-seven years,” said Dr. Helpern. “It was five feet eight inches tall, and weighed a hundred and forty pounds, and was rather slender but otherwise well developed and well nourished. At the time of the autopsy, it was noticed that the body was extensively burned. A section of the head and chest, abdomen, back, the extremities, were burned so that the tissues were actually charred by flame, but despite the extensive burning it was possible to demonstrate a scar on the left side of the scalp, and also a scar on the abdomen, on the lower right side. That scar was really a double one. One was the scar of an operation and the other was the scar of a drainage operation. It was a pair of scars, old surgical scars, and I emphasize this because they were described to me by the relatives of the deceased.”
“You recognized them as identifying marks?”
“Yes.”
“Go ahead, Doctor.”
“Now, the autopsy indicated that the deceased had been burned to death. The burns were very extensive, and there was definite indication that the deceased had been alive before the burning had taken place, and that evidence was found by the presence of soot which had been inhaled into the air passages, and also by the presence of carbon monoxide in the blood. When anyone dies in a fire, the smoke which is inhaled contains carbon monoxide, and that accumulates in the blood and shows up on chemical examination. So the inhalation of the soot and the presence of the carbon monoxide in the blood indicated that this man was alive when the burning occurred, and also confirms the fact that he burned to death. The autopsy otherwise was essentially negative, except for the burns.”
“And what was the cause of death in this particular case?”
“The cause of death, in my opinion, was the extensive burns of the body.”
“That is all.”
Murray made no attempt to dispute this testimony when he cross-examined Dr. Helpern, and merely brought out the fact that Dr. Helpern had performed autopsies on Weiss and Shapiro after the fire and that both these men had also died as a result of burns. Firemen then testified that the explosion blew out all the windows in the building and also in buildings across the street. The building was gutted from top to bottom, they said, and it took several hours to get the fire under control. No firemen were killed. They told of finding the bodies and about the shield on Daggett’s chest.
A man who hung around the garage where the conspirators had met testified that he had seen them several times in and near the garage, had known that the cartons contained gasoline because he had smelled it, and had been told by Shapiro that they were taking the gasoline to Montauk for a fishing boat they owned. Detective Shannon then took the stand and told of the various meetings between the conspirators, and of what Keshner had said when he and Phelan stopped him at Fourth Avenue before the fire. The next witness was Samuel Tabor, a chemist who works at the Police Laboratory. He testified that he had obtained enough of the contents of the cans to identify it as gasoline. He had tested it by smelling it, by chemical analysis, and by lighting it to determine its flash point—the temperature at which a vapor explodes. The flash point proved to be that of gasoline. Then an insurance broker testified that Keshner had two policies, one for twenty thousand dollars and one for twenty-five thousand, against loss by fire. Detective Phelan testified about the meetings he had observed between the conspirators and repeated his conversation with Keshner just before the fire. Detective Shannon corroborated his testimony. Two fire marshals and a detective who had questioned Keshner testified that he had told them, in more detail, the same story he had told Phelan. Keshner’s statement to Assistant District Attorney Daly was introduced in evidence, and it, too, was substantially the same.
In the cross-examinations of all these witnesses, nothing of much benefit to Keshner’s defense was brought out, but Mayron’s attorneys established several times that, as far as the witnesses knew, Mayron had had no knowledge of the arson plot.
The question of what had set off the fire was taken up next. Detective Phelan had testified that both he and Daggett had put their guns in their holsters when they realized how strong the gasoline fumes were in the factory, because they knew that an accidental shot might cause the fumes to explode. Daggett’s gun had been found near his body. An expert from the Ballistics Squad testified that the gun had contained four undischarged shells and two discharged shells. However, he said, the primers of the discharged shells showed no indentation of the sort made by the firing pin of a gun. This witness and other ballistics experts testified that in their opinion the discharged shells could not have been fired by pulling the trigger but were set off by the heat of the fire. The defense did not dispute this testimony.
The last witness for the prosecution was William G. McKenna, Chief Chemist for the Bureau of Explosives of the Association of American Railroads. He is a member of the American Chemical Society, the National Research Institute, the National Academy of Sciences, and the National Fire Protection Society. He qualified as an expert on inflammables, and especially on gasoline. He testified that gasoline vaporizes when poured over a flat surface, but that it will not ignite of its own accord.
“In other words,” asked Herman, “can gasoline vapor when mixed with air ignite spontaneously?”
“No, sir, it does not,” replied the witness.
“You say it has to have a source of ignition?”
“That is correct.”
“What do you mean by that?”
“Well, a match flame, some sort of a spark, such as in your automobile the sparking of the two electrodes of your sparkplug, or some source of, any source of flame—spark.”
“An electric spark?”
“Yes, sir.”
“How about static electricity?”
“That would do it, sir.”
Under cross-examination, Murray brought out that gasoline fumes could be set off by the firing of a gun, by lighting an electric light, by the ringing of an electric bell, by a shoe nail scraping on concrete, and by a spark of static electricity caused by a man walking across a carpet and touching another man. The defense lawyers took pains to have the witness reiterate the fact that gasoline fumes could not be set off without some kind of igniting agency.
The prosecution rested, the jury was asked to leave the courtroom, and the defense attorneys argued long and hard in support of motions for the Judge to dismiss the indictment. Keshner’s attorney had an exchange with Judge Valente that brought out the difficulties of obtaining a conviction in such a case, and also made fairly clear the views of the Judge in the matter.
“Your Honor is inclined to believe, to be more precise about it,” said Murray at one point, “that the mere fact that the arsonists [Shapiro and Weiss] spread gasoline about in the loft on the fifth floor of this building at 9 West Eighteenth Street, without any further effort on the part of the arsonists, constitutes murder in the first degree, a felony murder, because Officer Daggett died, without any proof of any further overt act on the part of the arsonists—is that your view, Your Honor?”
“Yes,” said Judge Valente. “On the theory, of course, as I have indicated, that at least there was an attempt to commit the crime of arson in the second degree, and that their activity at the time of the commission of the act in furtherance of the attempt is what controls. Even if they were in custody at the time this place was ignited, I say it is not their status at that time that controls. It is their conduct in spreading that gasoline that fixes, that attaches that responsibility.”
“I see Your Honor’s reasoning, but what intrigues me is this: They are both under arrest and they are outside of the loft premises and they can do nothing in furtherance of igniting the gasoline. I think that is conceded.”
“Yes.”
“They are taken back by the police. They don’t go back themselves. And my view of it, Your Honor, is even though we concede spreading the gasoline was an attempt to commit arson, that there must be some overt act on the part of the arsonists to cause the fire and the consequent explosion. You have nothing like that in this case.”
“But you have the attempt, which consists in the spreading of the gasoline, and if it had not been for the fact that they were taken in custody it is a fair assumption they would have gone on to ignite it. It would have made the completed crime of arson in the second degree.”
“But, Your Honor, they could not have caused the death without some overt act beyond what they had done, isn’t that so? I mean from the evidence in the case?”
“Yes, but it was that overt act which was the primary cause of the fire that in turn resulted in Daggett’s death.”
“But, Your Honor, that was not a competent cause for igniting. Anything they did did not ignite this gasoline, according to the evidence in this case.”
“That is true.”
“Absolutely nothing.”
“But if they had not spread it, there would not have been any igniting.”
Murray argued a little while longer, and then the Judge asked Herman if he had anything to say.
“I don’t think it is particularly necessary to take up Your Honor’s time,” said Herman. “Confining my consideration only for a moment to the last point of argument of both counsel, it seems to me that the question before Your Honor to answer is whether an attempt to commit the crime of arson was present, and as the result of that attempt was there a fire which was touched off or sparked off by an unknown agency, was that attempt followed by a fire which was caused through the attempt, and if that is so, was Daggett killed as the result of that fire? If that were so, why, then, Daggett was killed as the result of this attempt, and that is the underlying felony of attempted arson.”
After the jury was brought back in, a number of character witnesses called by Keshner’s attorney testified that Keshner was an honest businessman and a good family man, and the prosecution did not try to controvert what they said. Then Keshner took the stand in his own defense. Murray led him through a summary of his early life in Brooklyn, where he grew up as the youngest of five children in a comfortably situated middle-class family. He told how his garment business, which was owned by him and his wife, started losing money in the summer of 1951. He told how he had met Weiss casually in a Brooklyn restaurant, had learned that Weiss might be willing to “take care of anybody who had enough fire insurance,” had looked Weiss up at his bar-and-grill, and had started the negotiations that had led to the fire. He had agreed to pay Weiss and Shapiro fifteen hundred dollars to set the fire and had given them two hundred dollars as a starter and eleven hundred and fifty dollars more on the night of the fire. He said he didn’t know the cans in the cartons contained gasoline but had thought it was something that would have to be mixed with something else before it could be used to start a fire. He said he had postponed the fire on the two earlier times they had taken the cartons to the loft building because he had found other people in the building and hadn’t wanted anybody to get hurt. He said it had never occurred to him that firemen might be hurt or killed fighting the fire, and that when Detective Phelan had brought this possibility to his attention he had wanted to go into the building and call the thing off. He didn’t deny the testimony of the detectives, the fire marshals, and Assistant District Attorney Daly as to what he had said to them before and after the fire, but he did say he couldn’t remember all he had said, because he had been under an emotional strain. He said that, as far as he knew, Mayron hadn’t been aware of the plot and hadn’t been allowed to go up to the fifth floor. He himself went up, he said, and had seen Weiss and Shapiro pour the contents of the cans into a large metal trash barrel and then put the cans hack into the cartons. He said he was supposed to dump the cartons at a junk yard in Brooklyn that Weiss had told him about.
Under cross-examination, Keshner stood up fairly well, but even before the cross-examination he had testified that he had hired Weiss and Shapiro to set fire to his factory and had helped them in their preparations for it. Undisputed evidence presented earlier had established that Daggett had met his death as a result of a fire that would not have occurred if these preparations had not been made. After summations by Herman and the defense lawyers and the Judge’s charge had been delivered, the jury retired at one o’clock in the afternoon. It returned to the courtroom two and a half hours later.
“The jurors, please rise,” said the court clerk. “The defendants, please rise. Jurors, look upon the defendants. The defendants, look upon the jurors. Gentlemen of the jury, have you agreed upon a verdict?”
“We have asked for some information from the Court,” said the foreman.
“You have not agreed?”
“We have not agreed.”
“Please be seated,” said the clerk.
“I am in receipt of a communication from the jurors, which reads as follows,” said Judge Valente. “‘Will you please read that portion of the charge which has to do with the definition of conspiracy, and does the guilt or innocence of a defendant depend upon his full and specific knowledge of the nature and extent of the conspiracy to commit an arson?’
“Now, I will read to you the law defining a principal and then go into conspiracy. The law defining a participant, a principal, or an accomplice in a crime is as follows, and I quote: ‘A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, is a principal, as is also a person who directly counsels, commands, induces, or procures another to commit a crime.’ You can see from this definition that you are a principal in the commission of a crime and guilty of the commission of that crime if you do it yourself, help someone else do it, or procure someone else to do it. . . . Now, answering your question: ‘Does the guilt or innocence of a defendant depend upon his full and specific knowledge of the nature and extent of the conspiracy to commit an arson?’ In order for a defendant to be considered a member of the conspiracy, you would have to be satisfied beyond a reasonable doubt that whatever he did was done by him with knowledge of the purpose; namely, in this instance, to commit an arson in Keshner’s loft so as to collect on the insurance. Is that clear now?”
“Yes, sir,” said the foreman, and the jurors retired to deliberate for another three-quarters of an hour. Then they returned to the courtroom and said they had found Mayron not guilty and that they had found Keshner guilty of murder in the first degree, without a recommendation. When there is no recommendation in a case of first-degree murder, the judge has no course but to sentence the convicted man to death. Ten days after the verdict, Keshner was brought back before Judge Valente to be sentenced.
“Al Keshner,” said the court clerk, “have you any legal cause to show why judgment of death should not now be pronounced against you according to law?”
Keshner said nothing. His attorney did the talking.
“Well, there is nothing I can say, Your Honor; I wish I could,” said Murray. “Your Honor’s hands are tied and the judgment is mandatory.”
“There is nothing that the Court has to add to what has already been said. It is an unfortunate situation,” said the Judge. “This man, in his desire for money, literally pulled his own house down on his head.”
Murray remarked, in effect, that Keshner had saved Mayron’s life by his testimony concerning him. “There is no question in my mind about that whatever, Your Honor,” Murray added, “and I think it was a pretty decent thing on the part of this defendant.”
“I agree with you,” said the Judge, “and whatever satisfaction it is to him, he can find some solace in that.”
“Of course, Your Honor,” Murray went on, “it was more or less a grievous blow to me that the jury didn’t recommend life, and perhaps it was some failing on my part that brought about that situation.”
“I do not think it was any failing on your part at all, Mr. Murray,” the Judge said. “It was one of those situations that developed here in this court. Certainly you had a very difficult case, and I think you used all your years of experience to good advantage and did everything you possibly could do for this defendant. It is just one of those situations where the jury saw fit to do as they did, and certainly it is in no wise due to any lack of effort or lack of ability on your part. I think everyone in this courtroom is in agreement as to that, and you shouldn’t take the verdict as a reflection on yourself personally or on your ability as an attorney.”
While Keshner stood waiting to be sentenced, Murray continued for some moments to discuss the case with the Judge and seemed to find some solace in what the Judge said. “Your Honor,” he said finally, “to me, in certain instances, the felony-murder theory, I think, is proper and just, but I think in this case the felony theory that makes this man guilty of murder in the first degree is barbarous. That’s what I think about it.”
“Well,” said the Judge, “if it reaches the point where it will come to the hands of the Governor, I am sure you will be able to make a very good argument.”
“That’s about all I could do,” said Murray, “and I haven’t got the remotest doubt that it will fall on deaf ears.”
Judge Valente then turned to Keshner and sentenced him to die in the electric chair at Sing Sing during the week beginning Monday, June 23, 1952.
THE DATE OF execution was postponed when Keshner filed an appeal. His son had to leave college and go to work, and his wife spent the remainder of the family savings on the attorneys’ fees and other legal expenses in connection with the appeal. Murray dropped out of the case, and the law firm of Wegman, Epstein & Burke represented Keshner from then on. As chief of the Appeals Bureau, Assistant District Attorney Denzer spent most of that summer doing research and preparing his brief in support of the conviction.
The Court of Appeals upheld the conviction by a vote of six to one. Justice Edmund H. Lewis, in a dissenting opinion, dwelt on the fact that, according to the evidence, neither the defendant nor his accomplices actually set the fire and that therefore the defendant could not be held responsible for the death of Detective Daggett. There was no majority opinion; the six other justices simply voted to sustain the conviction.
Keshner’s execution was set for Thursday, March 12, 1953. His attorneys petitioned Governor Dewey to exercise executive clemency and, although the District Attorney’s Office had fought hard to get a conviction and to have the conviction sustained, after many conferences Hogan, Herman, and Denzer decided to support the petition by recommending clemency.
“Mr. Herman and I spent, literally, many hours in analytical discussion of the moralities and philosophies of the problem, both with each other and with other members of the office,” Denzer wrote at the time in summing up the case. “During this period, I made it a point to harass both legal and lay acquaintances by posing the factual situation and requesting personal opinions as to whether or not Keshner should suffer the death penalty. I must have waylaid from fifty to seventy-five persons in this fashion, and in the vast majority of instances I received the answer that Keshner should not go to the chair. When asked the reason for that opinion, the person interrogated would cite one or more of the following factors: that while the crime was a most unsavory one, the actual consequences resulted from a most extraordinary and unforeseeable series of incidents; that Keshner unquestionably would never have entered upon the venture had he had any inkling of the outcome; that he cannot be classified with the armed robber who kills during a holdup; that he was not a criminal by trade but a legitimate businessman with a previously clean record; and that while he deserves very severe punishment, this is not a case for the extreme penalty.
“Far from satisfied with such offhand expressions of opinion, or by our own inconclusive discussions of the matter, Mr. Herman and I delved into the feelings of those more closely affected by the tragedy. Mr. Herman sought the opinions of the father of the deceased detective, of the injured detective, and of their commanding officer. I spoke to Police Commissioner George Monaghan. Each of these men volunteered that he had no opposition to the exercise of clemency.
“Despite all this, and despite continued discussion of the matter with Mr. Hogan and among several members of the office, we never reached any clear-cut conclusion concerning the merits of the application. In one respect, however, we were unanimous. In everyone’s mind, doubts appeared from all directions. In this troubled state of our feelings, it was the opinion of Mr. Hogan and all who had wrestled with the problem that we should extend the defendant the benefit of those doubts in a situation where his life was at stake, and for that reason we recommended clemency.”
On March 10th, the warden of Sing Sing sent out the customary invitations to those officials, including a representative of the District Attorney’s Office, who by law were supposed to attend the execution of Keshner on March 12th Governor Dewey commuted his sentence to life imprisonment on the day the invitations were sent out.
“Keshner’s crime was a heinous one,” said the Governor in commuting the sentence. “He hired persons to set a fire in the midst of a populous city and caused the death of three men. The nature of his confessions to the detectives after his arrest discloses a total failure to apprehend the tragic consequences that might and did result from his acts.” The Governor said he had decided to commute Keshner’s sentence largely in view of the recommendation made by the District Attorney’s Office and of the fact that the father of the dead detective, as well as the injured detective, were not opposed to it.
After the death of Moishe and Little Jake, the Safe and Loft men made some inquiries in the neighborhood of Little Jake’s bar-and-grill in Brooklyn. They are convinced by what they learned that the tall fat man and the short thin man took up arson more or less as a whim, and that the job on Eighteenth Street was undoubtedly their first attempt in this new field of crime.