Читать книгу "The System," As Uncovered by the San Francisco Graft Prosecution - Franklin Hichborn - Страница 20

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While the Supervisors were making full confessions of their participation in the bribery transactions, and the Grand Jury was dragging from unwilling promoters, capitalists and corporation employees information as to the source of the corruption funds, Ruef’s days and nights were devoted to consideration of plans for his own safety. Ruef, after his arrest and confinement under Elisor Biggy, became one of the scramblers of his broken organization to save himself.

But Ruef was more clever, more far-seeing than any of the Supervisors. His course from the beginning indicates that, in considering confession, he carefully weighed against the power of the regularly constituted authorities of San Francisco to protect him if he testified for the State, the ability of organized corruptionists to punish for betrayal. Ruef realized that although the all-powerful State “machine,” labeled Republican, of which the San Francisco organization labeled Union Labor, which he had built up, was but a part, had for the moment lost control of the San Francisco District Attorney’s office, but the “machine” still dominated the other departments of the municipal government, as well as of the State government[208]. Ruef realized that Langdon might die; that the State Attorney General might set Langdon aside and himself conduct the graft prosecution. And he realized that some day a district attorney other than Langdon would be prosecutor in San Francisco. In any of these events, what would be the lot of the man who had betrayed the scarcely-known captains of the powerful machine?

On the other hand, the hour when the evidence which the District Attorney had accumulated against him would be presented before a trial jury, approached with deadly certainty.

Such considerations led to Ruef devoting his days to resistance of the proceeding against him in the trial court, where a jury to try him on one of the five extortion charges on which he had been indicted, was being impaneled, while his nights were given to scheming to wring from the District Attorney immunity from punishment for the extortions and briberies which had been brought to his door.

The period was one of activity for both District Attorney and Ruef. On the whole, however, the District Attorney had the liveliest time of it.

To be sure, Ruef had been brought before the trial judge; that is to say, the impaneling of a trial jury had begun, but Ruef’s technical fight had not been abandoned for a moment.

The appearance of Ruef under arrest was signal for a fight to have him admitted to bail. But release under bonds Judge Dunne denied him on the ground of the immediate approach of his trial, and because he had attempted to put himself beyond the process of the court. Ruef’s attorneys appealed to the United States District Court for a writ of habeas corpus, but this was denied them. His attorneys filed affidavits alleging bias and prejudice on the part of Judge Dunne against Ruef, and demanding a change of venue. And with these various motions, all of which the District Attorney was called upon to meet, was the appeal from Judge Hebbard’s order to the Federal Supreme Court, which was considered in a previous chapter.

The actual work of drawing a jury to try Ruef began on March 13,[209] eight days later than the date originally set for trial. The State was represented by District Attorney Langdon, Francis J. Heney and Hiram W. Johnson. At the defense end of the table with Schmitz and Ruef were Attorneys Joseph C. Campbell, Samuel M. Shortridge, Henry Ach, Charles A. Fairall and J. J. Barrett. But it developed that one of the four citizens drawn for jury service was not in the courtroom. The defense objected to proceeding during the absence of the venireman. The hearing was accordingly postponed. Because of one technical obstruction and another, the work of impaneling the trial jury was delayed until April 2. Even after that date there were interruptions, but the work of securing the jury[210] went on until May 13, when the twelfth man to try Ruef was accepted.

But while Ruef was making this brave fight in public to head off trial on the extortion charge, behind the scenes he was imploring representatives of the Prosecution to grant him immunity from punishment in return for such confession as he might see fit to make.

As early as March 20, Ruef sent word to Heney through Burns[211] that he was willing to make confession, provided he were given immunity from punishment for all crimes which he had committed or in which he had participated.

Heney refused absolutely to consider any arrangement which involved complete immunity for Ruef. Negotiations on the basis of partial immunity followed.[212]

Heney, on the ground that he did not trust any of Ruef’s lawyers, refused to discuss the matter with them, but stated that he would meet any lawyer in whom he had confidence to negotiate terms of partial immunity, provided that Ruef’s representative were permitted:

(1) To give the names of Ruef’s accomplices who would be involved by his testimony.

(2) To give the general nature of the offenses in which the various accomplices were involved.

(3) To be prepared to assure Heney that Ruef’s evidence against his accomplices could be corroborated, and was sufficient to sustain a conviction.

Ruef at first appeared to be well satisfied with the plan. He sent for a list of San Francisco attorneys, and set himself enthusiastically to the work of selecting a list of the names of attorneys to be submitted to Heney. But he failed to make a selection, urging all the time to Burns that Heney accept Henry Ach. Ruef’s insistence that he deal with Ach convinced Heney that Ruef was not acting in good faith, and he refused to yield to Burns’s urging that he give way to Ruef in this particular and accept Ach as Ruef’s representative.[213]

Under Ruef’s temporizing, negotiations dragged until April 2, the day that, Ruef’s technical obstructions in the main set aside, his trial was to be resumed before Judge Dunne.

On that day, a new actor appeared in the person of Dr. Jacob Nieto, a Jewish Rabbi of some prominence in San Francisco.

Nieto, according to Burns’s statement to Heney, asked the detective if he had any objection to his (Nieto’s) calling upon Ruef. Nieto stated further that he believed that he could get Ruef to confess, and volunteered the theory that the “higher-ups” were endeavoring to make Ruef a scapegoat for all the boodling that had been committed.

Burns reported to Heney that he not only replied to Nieto that he had no objection to Nieto’s visiting Ruef, but would be glad to have the Rabbi endeavor to get Ruef to tell the truth.

When Burns told Heney of this conversation, Heney did not show himself so well pleased with the arrangements as Burns might have expected. The prosecutor took occasion to warn Burns against Nieto. Heney had already had unpleasant experience with Rabbi Nieto.[214] Nevertheless, Nieto visited Ruef. Members of Ruef’s family were called into consultation. Conferences were held between Ach, Ruef and Burns. Heney states in his affidavit that he did not attend these meetings. Finally Burns brought Heney word that Ach and Ruef wanted citations to show that the District Attorney had authority to grant immunity. Heney sent back word that he was confident that the District Attorney had no such power, but with the further statement that if the terms of the immunity agreement were reasonable and in the interest of justice, that the Court, provided it had confidence in the District Attorney, would unquestionably follow such recommendation as that official might make.

Burns brought back word to Heney that Ruef and Ach continued to insist upon complete immunity.

Heney sent back an ultimatum to the effect that Ruef must plead guilty to the extortion case then on trial before Judge Dunne[215] and take his chances with the sentence that would be given him; that if Ruef did this, Heney was willing to arrange for complete immunity in all the other cases, provided Ruef showed to Heney’s satisfaction that his testimony could be sufficiently corroborated and would sustain a conviction of his accomplices other than Supervisors, in cases where members of the Board of Supervisors had been bribed.

In the meantime, the work of selecting a jury to try Ruef on the extortion charge was going on with the deadly certainty of the slide of the knife of a guillotine. The second week of the examination of prospective jurors brought Dr. Nieto to Heney’s office. Burns accompanied the Rabbi.

Nieto[216] described himself as no particular friend of Ruef. He expressed the opinion that Ruef should be punished; that he should restore his ill-gotten gains. Heney stated to Nieto his attitude toward Ruef, as he had expressed it many times before. From that time on Dr. Nieto was a frequent caller at Heney’s office, always for the purpose of discussing the question of Ruef’s confession. During all these meetings Heney did not depart a jot from his original position that the extortion charge against Ruef should not be dismissed.

Later on, a second Rabbi, Dr. Bernard M. Kaplan, joined Nieto in these visits to Heney’s office. Kaplan continued active in the negotiations to secure immunity for the fallen boss.[217] Finally Nieto, Kaplan and Ach sent word to Heney and Langdon by Burns that they desired to meet the District Attorney and his assistant at Heney’s office to discuss the immunity question. Heney and Langdon consented and the meeting was held in the latter part of April.

Ach insisted upon complete immunity, but admitted that he had advised Ruef to take the best he could get.[218] Neither Langdon[219] nor Heney would consent to complete immunity, nor to material change in the stand which Heney had taken. Ach wanted assurance that the Judges before whom the bribery cases were pending would, on motion of the District Attorney, dismiss them as to Ruef, and suggested to Heney that he go to the judges and get them to consent to the proposed agreement. To this Heney made emphatic refusal, stating that the utmost he would do would be to go with Ach to Judges Dunne and Lawlor and ask each of them whether he had confidence in him (Heney) and what the Judge’s general practice was in relation to matters of this kind, generally, when they came before his court.

Other conferences[220] were held, at which Ach continued to urge complete immunity for Ruef, which finally brought out emphatic statement from Heney that he did not trust Ruef and would enter into no agreement with him which did not leave it in the power of the District Attorney to send him to the penitentiary if at any time the District Attorney and himself concluded that during the progress of the matters Ruef was acting in bad faith, or that the information which he might give was not of sufficient importance to the people of the city and the State equitably to entitle him to go without punishment.

Heney takes pains all through his affidavit to make it clear that he treated with Nieto and Kaplan at all times upon the theory that they were Ruef’s special pleaders and special representatives, who believed that Ruef was sure to be convicted upon as many of the felony bribery charges as the District Attorney tried him on, and that he would go to the penitentiary for a term of years equivalent to life.

On the night of April 21,[221] when the work of selecting a jury to try Ruef was nearing completion, Ach, Kaplan and Nieto visited Heney’s office with assurance that Ruef had about concluded to accept Heney’s terms. But, they explained, a new difficulty had come up. Rabbi Nieto was to leave San Francisco the next morning for a trip to Europe. Neither he nor Dr. Kaplan was familiar with the practices of the courts, and while the judges would no doubt consider favorably any recommendation which was made by Mr. Langdon or by Mr. Heney, nevertheless, the two Rabbis would like to hear from Judge Dunne and Judge Lawlor statement as to what the practice of each of these judges was in that respect before they urged Ruef any further to accept the terms which had been offered him. As Dr. Nieto was to leave for Europe early in the morning, they wanted to see the judges that night.

Heney assured his visitors that owing to the lateness of the hour, he was afraid it would be impossible for them to see the judges before morning. But they insisted. Burns was finally sent out to find the judges if he could. He succeeded in locating Judge Lawlor at the theater. Judge Lawlor at first refused to see Nieto and Heney that night, stating that they could appear at his chambers the next morning. But Burns explained that Nieto had to leave for Europe the next morning, adding that he was sure that both Nieto and Heney would consider it a great favor if the Judge would see them that night, as the matter was very important. Lawlor finally consented to see them, but stated that he would do so only at his chambers, if, as he understood it, Heney and Nieto wanted to see him about his duties as judge. Burns took word back to Heney’s office that they could go to Judge Lawlor’s chambers, where the Judge would go as soon as the theater was over.

Heney, Kaplan and Nieto met Lawlor at his chambers. Heney went straight at the purpose of the meeting.

“Judge,” Heney sets forth in his affidavit he said in substance, “we come up here tonight to ask you what the practice of your court is in criminal cases in relation to recommendations which may be made by the District Attorney?”

Judge Lawlor replied in effect that the District Attorney represents the public in the prosecution of crime, and that under the law it was the practice for that official to submit to the court recommendations concerning persons who turn state’s evidence; that the law vests the authority in the Court to determine all such recommendations and that it is proper for the District Attorney to make them; that such recommendations should be carefully considered by the Court; and if they are in the interests of justice they should be followed, otherwise not. Judge Lawlor stated further that he would not consider or discuss any cause or case of any individual except upon a full hearing in open court, and that it would be determined alone upon what was so presented. Final decision, he said, would in every case rest with the Court, and if the application was in the interest of justice, it would be granted, but if not it would be denied.

Immediately after having made this statement Judge Lawlor excused himself and left the building.

Judge Dunne, when finally found by Burns, objected as strongly as had Judge Lawlor to going to the courtroom that night, but finally yielded to the same representations as had been made to Judge Lawlor.

All parties at the meeting with Judge Dunne at the courtroom were agreed and the incident was quickly over.

Heney asked the Judge, in effect, to state for the benefit of Nieto and Kaplan the practice of his court in criminal matters in relation to any recommendations which may be made by the District Attorney’s office in the interest of justice when the defendant becomes a witness on behalf of the State against his accomplices. Heney stated further that the two Rabbis would also like to know whether or not Judge Dunne had confidence in District Attorney Langdon and himself.

Judge Dunne replied in substance: “I have confidence in you, Mr. Heney, and in the District Attorney, and while I have confidence in the District Attorney, whenever a recommendation or suggestion is made by him in a case pending in my department, it is my practice to entertain and be guided by it, provided, of course, it is in the interest or furtherance of justice.”

Kaplan wanted to know what the course would be should a man plead guilty and afterwards ask to change his plea.

“You have heard what I have said, gentlemen, as to my practice,” replied Judge Dunne. “Of course, in all cases of such recommendations, and which I insist shall always be made in open court, whenever the District Attorney fails to convince me that he is well advised, or that good and sufficient grounds exist for his motions, it must be remembered that the final determination must always rest with me. But, of course, I would give great weight to any recommendation either you, Mr. Heney, or Mr. Langdon might make.”

From the courtroom Nieto, Kaplan and Burns went to Ruef, but Ruef still insisted that he should not plead guilty to the extortion charge, “backed and filled,” as Burns expressed it.

Ruef sent word to Heney by Burns, asking an interview. But this Heney refused to grant, bluntly stating that should he meet Ruef, Ruef would misrepresent anything that he might say. Heney instructed Burns to tell Ruef that he could accept the proposition that he had made to him or let it alone as he pleased, that no more time would be wasted on him; that trial of the extortion charge would be pressed to conclusion and regardless of whether conviction were had or not, Ruef would be tried immediately on one of the bribery charges.

Nevertheless, the persistent Ruef got an interview with Heney. He secured it in this way:

After Heney had retired on the night of May 1st, Burns called him up on the telephone, to state that if Heney would give Ruef a moment’s interview that Burns was confident that Ruef would accept Heney’s proposition. Heney granted the hearing.

Ruef plead for complete immunity. He argued that for him to plead guilty to the extortion charge would weaken his testimony in the bribery cases. He urged that public opinion would approve his release. He charged Heney with being prejudiced against him.

Heney listened to him patiently, but refused to consider any suggestion that he alter the original proposition.

By this time ten jurors had been secured to try Ruef. Ruef begged for an interview with Langdon. It was granted, with Heney and others present. The same ground was gone over again; the same denials made. And then Heney bluntly told Ruef in substance: “You must plead guilty in case No. 305 and take your chances on the sentence which will be imposed in that case. This is our ultimatum and you must agree to this before the first witness is sworn in case No. 305, or we will withdraw our proposition and will never again renew it, or any other proposition looking to any sort of leniency or immunity for you.”[222]

The day following, Burns brought word to Heney that Ruef had concluded to accept the Prosecution’s proposition, and had begun his confession by reciting the particulars of the United Railroad’s bribery. Burns recited what Ruef had told him. Burns’s enthusiasm suffered a shock from Heney’s cool analysis of Ruef’s statement.[223]

Heney pointed out that Ruef had made no revelation which the Prosecution had not known before, and further that Ruef was certainly concealing part at least of what had occurred between him and General Ford. Heney was now convinced of Ruef’s treachery.[224] Ruef’s future course tended to strengthen this conviction.

Having agreed to make full statement of his connection with the bribing of the Supervisors, Ruef haggled over the form of immunity contract. He endeavored to force upon the Prosecution a contract of his own drawing. Failing in that he tried to persuade Heney and Langdon to enter into a stipulation that he might withdraw his plea of guilty in the extortion case.

In neither move was he successful. Heney refused to depart a jot from his original proposition. Ruef finally accepted the immunity contract which Heney had submitted.[225]

Even after the immunity contract had been signed, Ruef continued to urge Burns that he be not required to plead guilty. The prosecution was not sure what Ruef would do. The examination of jurors to try him went on. The jury was completed on May 13,[226] and was sworn. But the actual taking of testimony was delayed by Ruef demanding change of venue from Judge Dunne’s court. This motion after the filing of numerous affidavits by both sides, was denied.

However, Ruef’s last motion delayed the taking of testimony for two days more.

Upon Judge Dunne’s ruling the next move would have been the placing of witnesses on the stand. But before this could be done, Ruef whispered to his attorney, Ach. Ach arose and addressed the Court.

“I am requested by our client, your Honor,” Ach said in substance, “that it is his desire to have a conference with his counsel. I would like to draw your Honor’s attention to the fact that up to this time Mr. Ruef has not had a single opportunity to confer with his counsel alone. If the elisor, or the guards, were not in the same room they were quite close by. I think, in view of this fact, that we might be granted an adjournment until say two o’clock of this afternoon so that Mr. Ruef may have this privilege of conferring with us.”

Heney promptly denied Ach’s statement. “What Mr. Ach has stated is not a fact,” said Heney. “Mr. Ruef has always been granted privacy in his conference with counsel.”

On Langdon’s suggestion, a half hour’s recess was granted to allow Ruef to confer with counsel. With his attorneys, Henry Ach, Samuel M. Shortridge, Frank J. Murphy and Judge Fairall, Ruef went into Judge Dunne’s chambers for conference.

On their return to the courtroom, Ach and Shortridge, with Ruef’s consent, withdrew from the case on the ground that they could not agree with Ruef as to the manner in which the case should be conducted. Fairall and Murphy remained by their client.

And then Ruef, the tears streaming down his face, addressed the Court. He stated his intent to acknowledge whatever there may have been of wrong or mistake in his record, and pledged himself, so far as it lay in his power to make it right.[227]

“I desire,” concluded Ruef, “to withdraw my plea of not guilty heretofore entered, and to enter the contrary plea, and at the proper time submit to the Court further suggestions for its consideration.[228]

“If the defendant wishes to change his plea of ‘not guilty’ to ‘guilty,’” said Heney, “the prosecuting attorney will consent to the discharge of the jury, as he requests, but we think the indictment should first be re-read so that he may enter the plea as he wishes.”

The indictment was read.

“What is your plea?” asked Judge Dunne of the prisoner.

And Ruef replied, “Guilty.”[229]