Chicago Tribune May 10, 1936
A copy of the verdict which was written incorrectly. It had to be rewritten. The incorrect verdict found Capone guilty of counh in indictment 22852 instead of in indictment 23232.
ARTHUR O. PROCHNO
I SERVED on the Capone jury. My vote was one of the twelve that stamped the nation’s most notorious gangster an income tax cheater and therefore a criminal. As a law abiding citizen I am’ proud to have had a part in his trial.
AI Capone. whom the world knew as the original public enemy No.1, is now serving a ten-year sentence in Alcatraz prison, to be followed by a one-year jail term. We, the jury, convicted him on Oct. 17, 1931. Judge Wilkerson later . imposed sentence.
That was more than four years ago. It all seems as vividly fresh to me as though it took place yesterday. I have great reason to remember the Capone trial. I do not mean the thrills of the trial itself. I do not mean what it meant to Capone. I mean what it meant to me.
First of all let me say that I have lived most of my life in the Irving Park and Edison Park districts. I have been interested and active in civic work in those communities for many years. For nineteen years I was secretary of the Edison Park Improvement association. I was active in the affairs’of the United Edison Park Improvement association and in the Amalgamated Improvement association. I have fought for one-way fares for our neighborhood. I have been active on the Independence day committees of the neighborhood and other patriotic and civic committees.
I have been identified with the Men’s Fall Festival chorus, associated with Cook county Sunday school work. I have been and still am in the insurance business. ‘That has been my life work. Some people considered me a successful business man, I trust I will not be accused of boasting if I do say I was successful. I had many, many good accounts. I enjoyed the good will of my clients. I owned my home, I had a car. I was, in brief, a successful middle-class business man not rich not poor.
That was true up to the Capone trial.
A few days after the verdict, while I was attending my normal business, feelIng that I had done my duty as an honorable citizen, one of my biggest clients—I had enjoyed his business for years-approached me. He said:
You’re a hell of a juror to return that verdict. You’ll pay for it.
I have paid for it.
I have lost my home. I have lost my savings. I have lost many lucrative insurance accounts, virtually causing my business to collapse. The depression was not the main fault. I believe the Capone case was. Why? Because some of my clients quit me for voting guilty against Capone, and some of them quit me tor not voting more severe punishment. Never before had I realized how people felt about Capone. They were extreme one way or the other. And I was in the middle. These people showed their displeasure by penalizing me. The loss of their business was like an avalanche. It gathered things in its way and almost buried me.
Probably those people would see things in a different lighl if they knew the inside story of Capone’s conviction. I have been asked many times to tell it. Until now I have held off. ‘With Capone in prison, I don’t fcel that I will be violating any confidences if I relate my experiences as a juror in his trial. I think they will show what problems, difficulties, and hardships jurors meet.
Diagrammatic photograph of Capone trial in Judge Wilkerson’s court. Scenes such as this were of daily occurrence during the two weeks hearing of the trial.
I trust the following record will not create the impression that I was partial to Capone. Most certainly I was not. I will stand on my record as a civic worker in Edison Park. I will stand on my record as a juror in Judge Wilkerson’s court. My vote was guilty.
But I did insist on fair play for Capone, regardless of the crimes of which he was accused.
There were some jurors who wanted to convict Capone simply because he was a gangster. There were some who considered nationality and hinted even religion as excuses for conviction.
One juror took the attitude, “To bell with the evidence!” Another raised a fist. And I do not believe I am far wrong when I say that if we had not rushed our deliberations in our hurry to get home the verdict might have been much different -perhaps a disagreement. As it was, we convicted Capone on three felony and two misdemeanor counts, whereas we earlier had eliminated one of the three felony counts; we should have convicted him on only two.
My part in the Capone case really began on Oct. 5, 1931, when 1 rode to the federal building in answer to a venire summons. I was to appear before Judge Barnes. On the way I had made up my mind not to make any excuses to get out of service, I already had served on nine state civil and criminal juries. Of course, I gave no thought to the Capone case at the time. I noticed his trial was to start before Judge Wilkerson, but my summons was for Judge Barnes’ court.
Like other newspaper readers, I had formed a pretty fair picture of Capone. I understood that he was a terrible man who did not hesitate to murder those who stood in his way. I particularly could recall the killing of Dion O’Bannion, Joe Aiello, and the seven Moran gangsters in the Valentine day massacre. I understood, and did not doubt, that Capone controled the illicit booze and beer business in Chicago. I did not doubt that he dealt in bribery and graft. I did not doubt that he ran gambling houses in Cicero and elsewhere. And I did not doubt that be ran disorderly houses. To me, as to many others, he epitomized all that was evil.
I gave these things only scant thought as I entered the federal building in the loop. That was Monday. I expected to serve on some jury. My only hope was not to be tied up the next night, Tuesday, because my wife and I had invited friends in for dinner. When Monday adjournment came, and I had not been selected on a jury, my hopes rose for a free Tuesday night. I was excused, with others, until Tuesday morning.
I returned to Judge Barnes’ court Tuesday morning. The first thing to happen was a deputy marshal or entering our room. “Take your things and follow me,” he said. Some of us were a bit curious about this, and I inquired, “Where to? ” He replied, “Wait and see.” The moment we reached the other side of the building and saw the corridor lined with guards, telegraph operators, and reporters we knew that we were destined for the Capone case.
My name was called and I was taken to the jury box. Judge Wilkerson began asking me questions. As nearly as I can re- member these were sonic of the questions and answers the court and myself:
Q.—Have you read about this case? A.—I am like the average business man. I at least read the headlines of news items so I may discuss them as topics of the day.
Q.—Do you know any one connected with this case? A.—Your honor, I have been before you a number of times in the fight for one-fare transportation for my neighborhood.
Q.—Do you know any one else connected with the offices on either side? A.—The cashier of your court is a neighbor of mine and was president of an organization to which I belong.
Q.—Are you a member of the Anti-Saloon league? Do you contribute to it? A.—I am not a member of the Anti-Saloon league, nor do I contribute to it. I don’t agree with its methods. However, I have been in civic organizations for thirty years and pay dues.
Q.—Would it embarrass you if you were selected on this jury? A.—It might embarrass me considerably if I were tied up long on a jury. Then also, some neighbors and also business people, learning that I had a summons for a federal jury, expressed the hope that I would get on this case and give the defendant the limit. However, I would go by the evidence.
The defense accepted me, and after a bit the judge, seeming somewhat disturbed by my replies, turned to me and, pointing his finger, said, “See here, do you care or don’t you care if you are on this jury?” Realizing that I had no way out of it, I replied, “Your honor, It does not make a particle of difference to me whether I am chosen on this jury or not.”
I was accepted. My wife heard my name announced over the radio and dropped a dish on hearing it. I have made up a list of the jurors, showing their ages, occupations, and religions. Here they are, including myself:
NATE C. BROWN, 64, retired, Protestant, SL Charles.
BURR DUGAN, 54, farner. Catholic, Mc, Clare.
W. T. HEINRICHS, 52, engineer. Protestant, Thornton.
GEORGE H. LARSEN, 41. pattern maker, Protestant. Thornton.
A. G. MAETHER, 65, country store owner, Protestant. Prairie View.
W. F. McCORMICK, 58, receiving clerk. Catholic. Maywood.
M. E. MERCHANT, 30. real estate broker. Catholic, Waukegan.
ARTHUR O. PROCHNO. 49, insurance, Protestant, Edison Park.
A. C. SMART, 43, painter, Protestant, Libertyville.
JOHN A. WALTER, 54, abstracter, Protestant, Yorkville.
LOUIS P. WEIDLING, 62, painter, Protestant, Wilmington.
LOUIS T. WOELFERSHEIM, 64. retired. Protestant, Chicago.
Capone jury. Seated, left to right: W. J. Heinrichs, A. C. Smart, W. F. McCormick, A. O. Prochno, L. J. Woelfersheim, and J. A. Walter. Standing, left to right: Guard, G. H. Larsen, A. G. Maether, L. P. Weidling, Burr Dugan, N. C. Brown, and M. E. Merchant.
We were taken to quarters in the Great Northern hotel. We had to stay in our rooms. There were three rooms for twelve men. Some of us had to sleep double. We read. ily saw that we were going to be more prisoner than the defendant in the case. We decided we might as get acquainted. We divided into groups which could be broadly and roughly defined as students, gossipers, and jokers. Among us, it developed, were a couple of men who had as jurors in the income tax case of Ralph Capone, Al’s brother, a year or two before. T’hey had convicted him. I was told that these men wanted to get on Al Capone’s case to give him some of the same medicine.
Our guards were Deputies Frank Otto and Ladd Purcha. They tele- phoned our families that we would not be home. Next all our clothing was minutely examined. Pockets were turned inside out. Cuffs of trousers were rolled down. Even sleeves were turned inside out. Correspondence was carefully censored. We were not allowed to talk over the phone to our families, even in the presence of a deputy. We were not allowed to see our wives.
Our newspapers were strictly censored. The deputies wielded scissors very expertly, cutting out headlines and stories pertaining to the Capone trial. Once they slipped. We saw a five-line item about Philip D’Andrea, Capone’s bodyguard, who was arrested in court while carrying a gun. This little item was contained in a news column entirely unrelated to the Capone case. This explained how the deputies missed it. When they learned about it they became greatly excited. I assured them, however, that only a few of us had seen the item. I destroyed it. Not only newspapers, but magazines also, were censored. Nor did the radio escape. We wanted to go in a body to either a Protestant or Catholic church. This was denied.
It wasn’t long before I clashed with the jury guards. I took notes of the testimony the first. morning. During the recess the guard ordered me to stop taking notes. He said it was not allowed. I told him to ask the judge I could not do this. I pointed out that jurors ought to be permitted to take notes the same as lawyers and others who were more familiar with the trial of cases. I don’t know if the guard asked the judge, but, anyway, I was permitted to take notes. They proved helpful later on.
As the trial progressed I for one got the idea that the government lawyers were making a good case out of nothing and that they did not want Capone’s tax money, which he had offered in compromise, so much as they wanted him and the honor that went with a conviction. We all were impressed with the bearing and evident fairness of Judge Wilkerson and the conduct of the prosecution and defense lawyers. (District Attorney George E. Q. Johnson, Dwight H. Green, Samuel Clawson, and Jacob I. Grossman for the prosecution; Michael Ahern and Albert Fink for the defense.) We naturally studied Capone considerably and noted that he had a ready smile.
We were highly concerned wilh every bit of evidence, every exhibit, every witness. We were particularly interested in the grandiose things that we had read about Capone, some of which now were being un- folded to us. We heard about his Florida mansion and walled-in estate on Palm Island. We tried to visualize it. Some of us recalled seeing pictures of Capone clad in a bathing suit and fishing from the deck of his yacht.
Witnesses told of huge sums that Capone spent on entertainment. In addition there was the evidence on gambling. Stacks of checks for thousands of dollars Were introduced. These were described as representing gambling gains and losses. This impressed us. So did the dia- mond belt buckles that Capone gave to his friends.
Gangster Capone taking seat just before court opens. His lawyers, Michael Ahern, left, and Albert Fink, right, don’t seem to be worried.
The trial was long. We naturally tired at times. This probably was due more to our confinement than to anything else, We were practically prisoners In our hotel. Our meals excellent but too heavy, considering the little exercise we were allowed. One of the Jurors, Mr. Maether, became ill For a time we thought the case would be delayed.
Walking was our main exercise.
Oceasionally we were on short strolls in Michigan avenue or to Ihe front, but mostly our walks were around the federal building during the noon recess. This was not always pleasant. Crowds stared at us as though we were freaks. Many people apart from neWspaper men trick to take our pictures. We didn’t want our pictures taken. Whenever one of us spotted a camera we’d give a warning and dodge or turn our heads.
We had our reasons. Most of us feared that pictures might make us or our families targets for annoy- ancc. This actually happened in my case, I learned later. While I was on the jury many automobiles drove slowly past my house, their occupants gazing intently into the windows. Several times practical jokers telephoned my wife, only to hang up abruptly. This worried her.
Inside the courtroom we forgot outside worries and gave complete attention to the case. We realized its importance. We realized the mighty battle going on between the two groups of lawyers. Without prejudging Capone’s case, we were not unconscious of what he repre- sented in the public eye. We could not help knowing he was the biggest representative of gangland in the world. And there he was, a big, fat man, facing the bar of justice like any other man accused of crime, and we, twelve ordinary citizens, sitting in judgment.
Near the end of the second week we realized that the case was coming to an end. We were quite happy, because all of us were anxious to get home, and some of us were on edge. Our nerves were getting a little ragged. One of the men had been ill. A few of us thought the case would be over by Friday, Oct. 16. That was the day that dissension first broke out. By that time it was evident that the jury was separating into factions on the question of guilt or innocence.
Anyhow, during the noon recess on this Friday we returned to our room. I was the last man in. I found one of the first men inside waiting for me. He remarked:
“We’ll get this case about 4 o clock and be home for supper.”
“Not with all this evidence,” I answered.
“To hell with the evidence!” he said. “The first son of a gun ties us up for over an hour I’ll smash in the face.”
I didn’t like this, and I told him that so far I had no particular interest in the case either way, but that from now on I would do my part for fair play.
“If any juror wishes to examine the evidence I’ll protect him,” I added.
“And if he does I’ll knock him cold,” continued this belligerent juror. Then In a more friendly and diplomatic vein he said:
“Why, there s nothing to it. We know he s guilty. Let’s give him the limit of 72 years. The judge will get credit and be appointed to the Appellate court.”
I shook my head. I said that so far as I was concerned there d be no bouquets to either side. I argued that we should abide by the evidence. I told the juror that I did not think Judge Wilkerson would approve his attitude.
The juror I have just quoted wanted to give Capone the limit in years. Throughout the trial all of us believed that If we convicted Capone on all 23 counts in the case he would face a maximum of 72 years in prison. I have only recently learned the maximum would have been 32 years. Concerning the juror’s reference to Judge Wilkerson’s appointment to the higher bench, I believe the judge at the timne was being considered for the Circuit Court of Appeals.
Back in our hotel quarters that Friday night, we showed signs of strain and uneasiness. Extra guards were posted outside. Deputies watched our every move. I felt like a goldfish. Most of us tried to pass the time reading. I was sitting on my cot reading when one of the younger jurors—most of us were over 50—sat down beside me, I sensed he had something confidential to say. So I pretended to read. He did, too, meanwhile whispering to me:
There seems to be some effort around to disregard the evidence and to give Capone the limit. I don’t favor the idea. A quick ver- dict would look bad for us. The public might think we framed and railroaded him.
“That’s what I think,” I replied. I told this juror about my spat with another juror. I said I was already being suspected of wanting to tie up the jury. I told this juror I could not act on account of that suspicion. I suggested that he sound out the neutral jurors and persuade them to vote not guilty on the first ballot, after that to do as they pleased. lie did that. My idea was to prevent a stampede.
We had been thrilled by the closing arguments of the various lawyers. The final plea, delivered Saturday morning by District Attorney Johnson, was the biggest thrill of aJl. It was a not only in but in what it meant. It meant that the trial was almost over. We knew that we’d get the case this day.
After Mr. Johnson had finished, Judge Wilkerson gave us his charge. It is pointed out our duties and responsibilities. He quoted the law and general rules. He said the defendant did not have to testify in his own behalf. He said his failure to do so should not influence us. I had hoped Capone would take the stand. I presume some of the other jurors had hoped likewise.
Then came the dramatic moment when the fate of Capone, most publicized gangster in the world, was placed in our hands. Only a person who has served on a jury in a trial where a human being s life or liberty is at stake can comprehend the heavy responsibility
I mentioned earlier that I had served on many state juries. The first time was at the trial of a newsboy charged with murder. The evidence was circumstantial. It was a hanging case. Ten jurors wanted to hang him. Another juror and I held out for life. Something—we don’t know what; it wasn’t sentiment—urged us not to vote death. We didn’t. The newsboy got life and went to prison. Seven years later the real slayer confessed. The boy was freed. That taught me to be doubly cautious in cases where human liberty or life was involved.
Once inside the Jury room, someone suggested a straw vote to see how we stood. This was voted down. Instead we went about the business of choosing a foreman. Woelfersheim, Heinrichs, and Walter were nominated. The two first men withdrawing, Walter was elected foreman. I was chosen secretary.
The first ballot was taken soon afterward and showed six guilty and six not guilty. Several jurors grinned at me, and one jokingly remarked, “Prochno, you re a good politician and vote getter.” Another vote was taken. The result was the same. Foreman Walter became angry and openly accused me of tying up the jury. The usual bickering followed, and later I went to the rest room. One of the men followed me in, closed the door, and said:
You’re not dumb. You know Capone is a bad man. The papers for years have been full of his activities, and now that we have the chance, let s give him the limit, All you have to do is to give the word and it will all be over.
I replied that I wouldn’t listen to that stuff, nor would I attempt to dictate to any one how to vote.
At Woelfersheim’s suggestion the exhibits were handed around tile table, leading to hot arguments. One juror made the point that Capone had lost $17,500 gambling in one year and that this should offset income. I more or less agreed with this contention, where- upon one of the jurors who wanted to give Capone the limit left his chair at the opposite end of the table. He carried a handful of checks.
“This Is enough evidence for me,” he shouted. He swished the checks in my face, loosening my spectacles. Silence followed this outbreak. After a long wait the man apologized. I accepted his apology, saying, We all ought to cool off and take a rest.” We did this, and then Weldling recommended that each of us have the floor and speak uninterrupted. This system was followed and we all had our say.
Scarface Al Capone.
The villainy he compounded caught up with him in an O. Henry finish.
Some jurors talked about Capone’s past, saying he was a leader among bad men. Yet a few had some good words to say about him. Here are some typical remarks:
‘Capone hired men to bump off people.’
‘There’s no proof of that.’
‘Capone has a big head.’
‘Conditions made him that way.’
‘He’s no good. The newspapers have told us he ran disorderly houses and gambling joints.’
‘But he has done good things, such as supporting soup kitchens and helping the poor.’
All this talk nettled one juror. He said:
‘Let’s forget these things and go by the evidence,’
It wasn’t that easy. On the whole I should say that the jury was a timid one. The principal debaters were Larsen, Walter, one other man, and myself. Frankly, I like to debate. As a boy I had belonged to a debating club. In addition my services on nine state juries had acquainted me with law and procedure. I was ready to debate any disputed point.
One of the jurors didn’t appreciate this. He didn’t appreciate my attitude, which, I want to say emphatically, was inspired by a desire for fair play. This juror, who wanIed to give Capone the limit, chided me thus:
Why he so narrow?
I narrow! Simply because I held off signing a verdict to send a man to prison for long Years until I was certain he was guilty as charged in the indictment. A little farther on I shall cite a real example of narrowness.
My fighting in the case drew another remark.
“Why are you so interested? ” I was asked. My answer was, “Fair play.” One juror wanted to know if I were associated with lawyers or newspapers, the way I was debating. Now, even though our deliberations were sometimes frenzied, we never became really rowdy. No names were called. A juror would have his say and bow out, maybe angrily, maybe not. One in particular was the type. He’d start an argument and then turn away. He wanted to give but not take. When he was through and didn’t win his way he’d go off to one side and sulk. Once he sat against a wall for a half hour while we finished something he had started.
After a while—after we had eliminated some of the differences—we settled down to business. Juror Maether reminded us that there were two indictments. He suggested we consider them separately. We took up the first. As secretary, I read it. Juror Weidling asked for a straw vote. Juror Heinrichis objected, but immediately withdrew his objection. The vote was five guilty, six not guilty, and one blank, the blank being mine. I changed it to not guilty, making the vote seven not guilty and five guilty.
This was only a test vote, but it showed a deadlock. Then we took up the second indictment and after considerable talk voted on it. The vote was six guilty, four not , one blank, and one vote missing.
This was deemed an error and we voted again, and the result was seven guilty, four not guilty, and one bank.
We all realized that we were getting nowhere, and a juror—not the one who had followed me into the rest room—invited me to one side. I told him our discussions must be in the open.
He suggested that I ought to stick with his crowd—we belonged to the same fraternal organization—and mentioned religion, nationality, and public opinion as reasons for cracking down on Capone.
“After all, he s only a dago,” this juror said.
I told this man those things were out of the question; that we must abide by the evidence as it applied to each count. I said I was interested only in fair play for the defendant. Frankly, I felt that Capone was guilty of some of the charges, but I wanted to be sure. I wanted to know what I was doing and why I was doing it.
As time passed we became hungry. It was now 8 O’clockc Saturday evening. No food had been offered us. We asked for sandwiches, but didn’t get them. Some of us resented the idea of “being whipped into line by starvation.” When it became apparent that we weren’t progressing much we instructed tile foreman to send word to the judge for advice on the matter of a disagreement. Word came back that no disagreement would be allowed.
Besides lack of food and our inability to get anywhere, plus rising temper and irritability, we had another worry. That was whether we might be locked up over Saturday night and Sunday. We wanted to get home. And every so often we d receive word that the judge might go home. That would mean a weekend .
Naturally we hurried. I suggested we take up each count. It was generally agreed that the government hadn’t put much emphasis on the counts In the first indictment, those covering the first years, and we finally voted not guilty.
I was not surprised when the “give him the limit” faction voted for acquittal, for I expected they’d use their not guilty vote as a lever to pry a few of us holdouts into a guilty vote on the remaining counts. That’s what happened. One of the men said that inasmuch as they hall made a by voting not guilty on sonic counts, we ought to make a concession and vote guilty on the others.
I guess I was about tile last hold-out, and some time after 10 p.m.—it was around eight hours after we had received the case—I said I was willing to vote guilty on several counts. But counts? That neant more argument. And meantime word came in that the judge was going home. We wanted to go home, too.
Finally we agreed to tIhe first counts all each year and call it quits. This ill three felony counts and two misdemeanor counts. I can’t explain it, but one of these felony counts on which we voted guilty had earlier been disregarded—the some as a not guilty vote.
I really believe the final intent was to convict Capone on two, not three, felony counts, and two misdemeanors. (A felony carries a five- year prison sentence, a misdemeanor a one-year sentence in jail. Even with only two felony counts two misdemeanors, Capone could have received the ten-year prison and one-year jail sentence that hle did receive.)
Foreman Walter drew up the verdict, hut did it incorrectly. He wrote in the five guilty counts in the first indictment, No. 22S52, on which we had found Capone not guilty. He should have written not guilty on the counts l that indictment and guilty on tle five counts in the second indictment, No. 23232. There were a number of not guilty counts In this second indictment also. The error was understandable, since the indictments were joined into one. Foreman had to rewrite the verdict. We signed the correct one. (I kept the faulty one and still have it.) We thought our troubles were over. But just as we were about to leave the room one of the jurors halted us.
“Here, wait a minute,” he said. “There are misdemeanor counts in this verdict. He’ll get only ten or twelve years. I want him to have more.”
Somebody told him to “forget it,” and another said, “Let’s get through,” but it took us more than five minutes to persuade tills balky juror to let the verdict stand as It was. We had an uneasy moment in court when we were polled after the verdict was read. We were afraid when this juror Was asked, “Was this and is this your verdict.?” that he’d say. “No.” But he didn’t, and we breathed easier.
The court commented that the verdict was “inconsistent, very inconsistent.” That worried us anew. A twenty-minute delay occurred while lawyers looked tip the law to see it our verdict wias legal. It was.
The reading of the verdict and the polling of the jury elided our part in this most unusual and important case. We returned to our homes. I felt at the time and I still feel that I did my honest duly. I have no regrets. even I believe that my part as a juror in the Capone case injured me financially. That part was played In 1931. I was 49 years old. Today, at 54, I am trying o a comeback.