Capone: The Life and World of Al Capone (62 page)

In August Teresa Capone retained one of the country's foremost attorneys, William E. Leahy of Washington, D.C., to get her son out of prison. With his younger associate, William J. Hughes, Jr., Leahy reopened the question of the statute of limitations. Strangely, the trial counsel had not pressed it at all, as the government feared they might (an omission which purportedly lost the Nash-Ahern firm its entire gangster clientele). The previous April the Supreme Court, ruling on a Boston tax case, had held that an attempt to evade a tax did not constitute fraud and that the three-year limitation, not six, should apply as in civil cases. Contending that Capone's case was parallel and that therefore he was illegally imprisoned, the attorneys petitioned the federal court in Atlanta, on September 21, for a writ of habeas corpus. The procedure governing such petitions required the presence of the prisoner, and so Capone emerged from the penitentiary to appear for half an hour before judge E. Marvin Underwood. The judge took the petition under advisement.

On December 5, while Capone was still awaiting the judge's decision, an era came to an end-an era without precedent in the profits it produced for organized crime. President Roosevelt proclaimed the ratification of the repeal of the Eighteenth Amendment.

At Capone's next court appearance in January, Judge Underwood cited a section of the federal statute of limitations whereby the time the offender is absent from the district in which he committed the offense "shall not be taken as any part of the time limited by law for the commencement of proceedings." Between 1925 and 1931 Capone was either in the Philadelphia jail or his Miami retreat for periods totaling several years. The judge continued:

"If [trial counsel's] motion had put in issue the question of fact as to whether or not petitioner had been within the district a sufficient length of time for the statute to establish a bar, then a denial by the prosecution might have been necessary, but this was not done, and the Court, according to the allegations of the petition, overruled the motion on the ground that the six-year limitation was applicable."

The ruling should have been challenged at the trial or on appeal, Judge Underwood decided; the issue had no place in the habeas corpus hearing. That the Supreme Court later declared the threeyear limitation applicable months after the Capone trial did not affect the hearing either. Finally: ". . . on habeas corpus, only the jurisdiction of the court whose judgment is challenged can be called in question. . . . Any other rule . . . would make a Federal Court of a district where a penitentiary was located, a Court of Appeals to retry all cases of prisoners who might apply for writs of habeas corpus. . . ." He dismissed the petition, and the attorneys returned to Washington.

"Overpaid dumb bastards," said Capone in his cell that night. "They couldn't spring a pickpocket."

Memorandum from U.S. Attorney General Homer S. Cummings to Special Assistant Joseph B. Keenan, August 1, 1933:

... would it not be well to think of having a special prison for racketeers, kidnapers, and others guilty of predatory crimes, said prison to be in all respects a proper place of confinement. It would be in a remote place-on an island or in Alaska, so that the persons incarcerated would not be in constant communication with friends outside. . . .

Memorandum from Sanford Bates, Director of the Bureau of Prisons, to U.S. Attorney General Cummings, August 8, 1933:

At your request, please find herewithin estimate of the probable maintenance charges at the prison at Alcatraz Island if operated by the Department of justice on the basis of 200 prisoners. I am of the opinion that the removal of perhaps one hundred of the most desperate men in each Atlanta and Leavenworth would be a distinct benefit to those places and would aid in the prevention of threatened demonstrations... .

From a radio address by U.S. Attorney General Cummings on "The Recurring Problem of Crime," October 12,1933:

For some time I have desired to obtain a place of confinement to which could be sent our more dangerous, intractable criminals. . .. You can appreciate, therefore, with what pleasure I make public the fact that such a place has been found. By negotiation with the War Department we have obtained the use of Alcatraz Prison, located on a precipitous island in San Francisco Bay, more than a mile from shore. The current is swift and escapes are practically impossible. It has secure cells for 600 persons. It is in excellent condition and admirably fitted for the purpose I had in mind. Here may be isolated the criminals of the vicious and irredeemable type so that their evil influence may not be extended to other prisoners who are disposed to rehabilitate themselves.

The Attorney General, accompanied by Mrs. Cummings, spent August 18 inspecting the former Army disciplinary barracks. The Army had left behind thirty short-term military prisoners, and the Bureau of Prisons had transferred the first batch of civilians from McNeil Island. The Cummings' guide was Warden James A. Johnston, a former banker, whose mild, avuncular manner concealed a talent for devising ways to break the toughest convict's spirit. Since January, when he took office, he had been transforming Alcatraz into the world's most redoubtable bastille.

Originally named by the eighteenth-century Spanish explorers Isla de los Alcatraces (Island of Pelicans) after the birds that then roosted there, Alcatraz has an area of 12 acres and rises steeply to 136 feet above the bay. At six points, commanding between them a view of every foot of the island, Johnston erected a guard tower equipped with a .30-caliber carbine and a high-powered rifle. A 12foot-high cyclone fence, topped by barbed wire, enclosed the work sections. Barbed-wire barriers dotted the shoreline. All old sewer outlets and utility tunnels opening on the water were blocked. Not that any escapee, even if he could crawl through them, would be likely to reach the- mainland 1I miles away, swimming in cold water against currents that often reached a velocity of almost 4 knots.

With special pride, Johnston explained to Mr. and Mrs. Cummings the three-door security system he had designed for the main entrance to the cell house on the crest of the island. It required two guards to operate. Before anybody could pass the first door, one of the guards, observing him through a glass panel, had to identify him. If satisfied, he would throw a switch, sliding back a steel plate that covered the lock. Only the second guard had the key. As soon as this guard had admitted the visitor, Guard No. I would send the steel plate gliding again over the lock. A few paces farther on the first of two inner doors with a vision panel barred the way. The Guard No. 2 would scan the corridors beyond and, if clear, unlock it, let the visitor through, lock it behind them, and advance to the third and last door. When the visitor left, the entire process would be repeated in reverse. To overpower the guard with the key, Johnston pointed out, would not help an escapee because the first guard operated the outer door from an impregnable sentry box of steel and bulletproof glass.

At four gates between the landing dock and the cell house, used by either prisoners or visitors, Johnston had installed "snitch boxes," oscillatory circuits, tuned to a certain electrostatic capacity which the presence of metal would disturb, activating a warning buzzer. To search the cells for hidden metal objects, there were portable electronic detectors.

In the three-tiered cell blocks, painted pink and red-Johnston's prescription for imparting a note of cheer-he had replaced the soft steel bars with toolproof steel. All the cells were one-man cells. Measuring 8 by 4 feet, they contained a fold-up bunk hooked to the wall, fold-up table and chair, shelf, washbasin, toilet, and a shaded ceiling light. The warden had designated cell block D as a disciplinary unit. Here were "light holes," ordinary cells, but set apart for solitary confinement, and the Hole, smaller cells with solid steel doors behind which the worst offenders were kept in total darkness. They had no furnishings other than a mattress, which a guard removed every morning. There was a so-called Oriental toilet, an opening in the floor, which could be flushed only from the outside of the cell.

"This prison is our pet project," said the Attorney General. "I am proud of the work you have done on it." In the mess hall, with its ceiling rack of tear-gas cylinders that could be opened at the touch of a wall button, Johnston showed Mrs. Cummings a sample menu. "M-m-m-m-m!" she burbled. "Why, we don't eat that much at home!"

A month earlier Cummings and J. Edgar Hoover visited the Atlanta Penitentiary ostensibly on a general inspection tour of all federal correctional establishments. But the explanation given convinced few inmates. They had heard and read too much about Alcatraz. They assumed the visitors were acting as "talent scouts" for the first trainloads to the island.

Capone, however, appeared unconcerned. "I've got things squared, Rusty," he assured his cellmate.

Rudensky was skeptical. "They'll never open that show without a name star."

"The fix is in," Capone insisted. "It cost plenty. I tell you I ain't going."

In the Atlanta Penitentiary, the day Warden Johnston was showing the Cummingses around Alcatraz, heat baked the cells. Sweat poured off the men in rivulets. At about 8 P.M. a guard known as Swede rattled his stick against the bars of Capone's cell. "Come on, Al," he said, "and leave your belongings behind." When he added that the order included the family photographs, Capone went berserk. It took three more guards to drag him out of the cell. "What are they doing to me, Rusty?" he yelled. "Where the hell are those dumb bastards who said I'd be out?"

Rudensky never saw him again. "I missed him very much," he recalled. "All of us did. I respected him for two reasons-he kept up his hopes to the end, and he never apologized. He was Capone, and there would never be another. What he'd done he'd done in a giant way." (Rudensky himself achieved total self-rehabilitation. As founder and editor of the prison paper the Atlantian, he attracted the interest of the Atlanta novelist Margaret Mitchell, of Ralph McGill, editor of the Atlanta Constitution, and of Eleanor Roosevelt. Freed after a total of almost thirty-five years behind bars, he was among the 200 ex-convicts employed by Charles Allen Ward, president of the St. Paul Advertising Agency, Brown & Bigelow, and himself an ex-convict. Rudensky became chief copy editor. In recent years the former safecracker has acted as consultant to lock manufacturing companies, banks and police departments. He never lost his admiration for Capone.)

THE train was switched to a spur track and run through a sally port into the penitentiary yard. It comprised only six carstwo specially constructed prisoners' cars, baggage car, diner, sleeper for the prison personnel, and engine. Steel bars and steel mesh screens covered the windows of the prisoners' cars and boiler plate reinforced the flooring. Inside each of these cars Captain of the Guards Comer Head posted two of his men, unarmed to eliminate any possibility of a prisoner seizing their weapons, and at both ends, enclosed by a wire-screened cage, two men carrying shotguns. The air brake signal cord had been restrung in such a way that only the caged guards could reach it.

Fifty-three "incorrigibles" were prepared for the journey under the direction of Warden Aderhold, stripped and searched, their uniforms changed, their commitment papers verified, and their train seats assigned, two to a seat, shackled together. It was 5 A.M. when Aderhold finally climbed aboard, followed by Captain Head and Dr. Ossenfort.

For security the train followed a circuitous route known in advance only to a few railroad officials and federal authorities. Passing through Montgomery, Mobile, New Orleans, San Antonio, El Paso, Yuma, Los Angeles, it stopped only to change crews or take on water and fuel and then at unscheduled stations far from the passenger platforms. As Cummings wrote later in a congratulatory memoran dum to Sanford Bates, "A slip-up or mistake, even an unfortunate happening of some kind, would have entailed unpleasant reactions and consequences. It was a difficult job. I do not believe that very many people realized how ticklish a job it was. . . .