Chapter XXIII · The Defense Becomes Arrogant.

The prosecution’s reverses in the Appellate and the Supreme Courts were followed by startling changes of policy on the part of the defendants.

The officials of public service corporations, who by every technical device within the ingenuity of the best legal talent that could be purchased, had for months resisted trial, suddenly became clamorous for their trials to begin. Abe Ruef, who had been counted, by the public at least, as friendly to the prosecution, openly broke with the District Attorney and his associates.

President Calhoun of the United Railroads, who had been in the East, returned to San Francisco demanding trial. The San Francisco Examiner, now openly opposing the prosecution, announced this new move to be a bomb-shell thrown in the prosecution’s camp. Nevertheless, The Examiner could not entirely conceal the astonishment caused by the defense’s new policy.

“Just what has brought about this change in Calhoun’s attitude,” said the Examiner in its issue of January 28, 1908, “was not explained yesterday. Tactics of evasion, motions of obstruction, and every other artifice known to legal legerdemain to stay proceedings have heretofore been the accepted etiquette of the graft defendants, and conspicuously that of Patrick Calhoun.”

The Call, supporting the prosecution, boldly charged that the graft defendants were in treaty with Ruef.[356] And this view the District Attorney’s office was finally forced to accept.

No sooner had the decision of the Appellate Court been made public than Ruef clamored for dismissal of the extortion charge to which he had plead guilty, but which the higher court had decided in the Schmitz case did not constitute a public offense. In this Ruef was backed by Rabbis Nieto and Kaplan.

Ruef, after the Schmitz-Ruef officials had been swept out of office, had been confined in the county jail. From the day of his jail imprisonment the two Rabbis besought the District Attorney day and night[357] not to force the broken boss to remain behind the bars.[358]

Langdon, not having decided at the time to appeal from the Appellate Court decision to the Supreme Court, finally yielded to the importunities of the two clergy-men and stated to Judge Dunne that Ruef wanted to make a motion to withdraw his plea of guilty in the extortion case. Judge Dunne replied that he would not consider such motion.[359]

This closed the incident so far as dismissal of the case before the Supreme Court could pass upon it, was concerned. But it did not stop Ruef’s insistence that not only should he be allowed to withdraw his plea of guilty, but that he be given complete immunity from prosecution of all the charges against him.

Langdon, even before he had spoken to Judge Dunne about permitting Ruef to withdraw his plea, had become convinced, as Heney had become convinced long before, that Ruef was not playing fair with the prosecution. Ruef, when confronted with charges of holding back evidence, shifted and evaded, until Langdon, losing patience, charged him with falsehood.

About the middle of January, evidence came into Langdon’s possession[360] which convinced him beyond a shadow of a doubt that Ruef, instead of observing the immunity contract, was, as a matter of fact, dealing with and assisting his co-defendants, advising them of every move.

Langdon[361] at once called Ruef before him and notified him that the immunity contract was canceled.[362]

The abrogation of the immunity contract brought open break between Ruef and the prosecution. Ruef set up claim that under his immunity contract all the graft cases were to be dismissed against him, including that under which he had plead guilty to extortion. He insisted that he had lived up to his part of the agreement and charged that the prosecution was breaking faith.

In this position, Ruef was backed up by Rabbis Kaplan and Nieto, who for months had been clamorously active in his behalf. Indeed, long before the open breach had come, so persistent had the Rabbis become in their insistence that Ruef be released, that Heney had found it necessary to request Kaplan to remain away from his office.[363] When Ruef finally broke with the prosecution, the two Rabbis were to the fore backing up his contention that the prosecution was not keeping faith with him.[364]

Kaplan soon after filed an affidavit setting forth that under the agreement with the prosecution, Ruef was to have had complete immunity, and be allowed to withdraw his plea of guilty in the extortion case. Later on, Nieto, “Ruef’s diplomatic middle man,” as he was called, filed an affidavit to the same effect. Ruef, on his part, filed a voluminous affidavit, purporting to cover all his transactions with the prosecution, in which he not only set up the claim that he was to have been given complete immunity but alleged that Langdon, Heney and Burns, were guilty of subornation of perjury in having endeavored to get him to swear falsely against Schmitz and Ford.

Rabbis Kaplan and Nieto, in their affidavits gave versions of the meetings with Judges Dunne and Lawlor, when the Judges stated their confidence in the District Attorney and his assistants, which differed from the accounts contained in the affidavit of Heney and the judges.[365] This brought the trial judges as well as the assistant prosecuting attorney into the controversy.

The members of the Grand Jury that had indicted the graft defendants had already had their trials in open court;[366] petit jurors and witnesses had, in effect, been on trial also. And now District Attorney and trial judges were placed on their defense.[367]

Other graft defendants joined in the upholding of Ruef and the denunciation of the prosecution. Adverse newspapers joined in the cry of unfairness and hinted at worse. The story became current that no appeal would be made from the Appellate Court’s decision in the Schmitz case to the Supreme Court. Another story had it that the prosecution was breaking down, that the situation had become so complicated that no other trials could be had.[368]

On the other hand, the outcry did not in the least shake the faith of the citizens who were insisting upon the crushing out of corruption at the State’s metropolis. Colonel Harris Weinstock, one of the largest merchants of the State, in a ringing address condemned the efforts made to discredit the prosecution.[369] The same position was taken in pulpit, club room and street discussion. From all parts of the State resolutions and memorials were sent the prosecution approving and upholding its work.[370] And doggedly the prosecution proceeded to justify the expressions of confidence in its singleness of purpose and in its ability to cope with the tremendous odds brought against it.

The immediate indictments about which the controversy raised by Ruef’s claim for immunity centered were those in the United Railroad cases. The prosecution accordingly went before the Grand Jury then sitting—the Oliver Grand Jury which had brought the original indictments had long since adjourned—and secured three indictments against Ruef, Calhoun and Ford for the bribery of three Supervisors, Furey, Nicholas and Coleman.

In these indictments every technical error which the ingenuity of the defense had brought out was eliminated. The new indictments were not secured because the prosecution regarded the objections as having merit, but that the District Attorney’s office might be prepared to meet any emergency which might arise.[371]

The next step was to bring Ruef to trial. The prosecution selected the indictment under which Ruef had been brought to bar for offering a bribe to Supervisor Jennings Phillips to vote for the Parkside street railroad franchise.[372]

Prospect of immediate trial made a different man of Ruef. He was at once seized with the panic which had come upon him when the jury had been completed to try him on the extortion charge. He begged for time. He insisted that he was without counsel. He asked for three weeks, a week, even two days.[373]

Then came an entirely new technical defense based upon the immunity contract. Ruef alleged that he had been deprived of his constitutional rights as a defendant, by following the set program outlined in the contract. But here Ruef had over-reached himself. He had on January 31 entered a plea of not guilty in the Parkside case, the case on trial. The District Attorney had abrogated the immunity contract thirteen days before, on January 18. Whatever technical advantage Ruef may have had because of the immunity contract was forfeited by his plea of not guilty after its annulment.

His attorney gravely contended, however, that Ruef—one of the shrewdest practitioners at the San Francisco bar—was without legal counsel when he had entered his plea, and that he had therefore innocently foregone his constitutional rights. This contention provoked a smile even from Ruef’s partisans. The point was not urged further.

Seeing that trial could not be warded off on technicalities, Ruef endeavored to disqualify Judge Dunne, the trial judge. But this move proved premature. Judge Dunne was about to go on his vacation and Judge Dooling,[374] a Superior Court Judge from the interior, was called to sit in Judge Dunne’s stead. Ruef thereupon proceeded to disqualify Judge Dooling. He alleged that Judge Dooling, as Grand President of the Native Sons of the Golden West, had signed an order expelling him (Ruef) from the order; he alleged further that Judge Dooling had attacked him in a speech at a banquet.

Judge Dooling, placed on trial as Judges Lawlor and Dunne had been, was forced to make defense. He denied in affidavits that he had ever specially mentioned Ruef’s name in any speech, but admitted that he might have said that any man guilty of crime should be expelled from the Native Sons order.

Ruef went to the Appellate Court for a writ of prohibition to prevent Judge Dooling trying the case. The Appellate Court denied his petition. Then Ruef went to the Supreme Court. Here again his prayer was denied. Thus, protesting as vigorously as a cat pulled over a carpet by the tail, was Ruef for a second time dragged to trial. The work of securing a jury to try him began.

Gradually, the jury box filled. But before it was completed there occurred an incident of the prosecution even more startling than the sending of cash books out of the State, the trailing of members of the prosecution by agents of the defense,[375] the disappearance of witnesses, the larceny of the prosecution’s records, or the attempted kidnaping of Witness Lonergan and Editor Older.

On the eve of taking testimony in the Ruef case an attempt was made to murder James L. Gallagher by dynamiting his residence. Gallagher was the pivotal witness against Ruef, as well as against Ford, then on trial.

In the Ruef case, Gallagher had taken word from Ruef to the Supervisors that there would be $750—later increased to $1000—for each of them if they granted the Parkside franchise. Without Gallagher’s testimony the case against Ruef would fall flat.

General Ford’s third trial was then in progress and well advanced. Here again, Gallagher was the pivotal witness. He had taken the trolley bribe money from Ruef to the Supervisors. He supplied the link between those who had been bribed, and Ruef. His testimony was indispensable if Ruef and Ford—then on trial—were to be convicted. His testimony was equally necessary in the cases against Calhoun, Drum, in fact all the graft defendants, except those who had dealt directly with the Supervisors.

The evening of the day following Gallagher’s testimony in the Ford case, but before he appeared at the Ruef trial, dynamite was exploded at the front doors of the house in which he was residing. The dynamite had been placed next to the dining room. Gallagher was at the time living at the home of W. H. H. Schenck at Oakland.

So violent was the explosion that the house, a frame building, was split in twain. A pillar from the porch was thrown 150 feet. In the building on the adjoining premises, every window was broken. The family had just completed the evening meal and a number of them were still seated around the table. The table was split from end to end. At the moment of the explosion, one of those in the house was showing a curious watch guard and had the watch in his hand. The watch stopped, thus fixing the exact time of the explosion, 7:30 P. M.

There were in the house at the time of the explosion, W. H. H. Schenck and wife, and three children, the youngest seven years old; Lieutenant Guy Brown of the National Guard; and Gallagher and his wife. Every one in the building was thrown down by the force of the explosion, but extraordinary to say, none of them was seriously injured. Gallagher and his wife were in an upper room of the building. The stairway was demolished, and Gallagher was obliged to lower his wife to the ground, getting down himself the best way he could.

A month later three buildings in Oakland belonging to Gallagher were destroyed by dynamite. Soon after this second explosion a young Greek, John Claudianes, was arrested and charged with the outrage.

Claudianes made full confession, involving his brother Peter as principal. Peter Claudianes was finally captured at Chicago. On his return to San Francisco he confessed,[376] stating that he had been employed by a Greek, one Felix Pauduveris,[377] to murder Gallagher. Felix Pauduveris fled the city and the police of the world have been unable to locate him. Peter Claudianes was convicted of the attempt upon Gallagher’s life, was sentenced to prison for life, and at present writing is confined in San Quentin prison.[378]

Quite as extraordinary as the attempted assassination of Gallagher was the indifference with which the outrage was received by the press that was supporting the graft defense.[379] The Chronicle condemned the outrage, but took occasion to denounce Gallagher.[380] The weekly press, however, treated the affair as something of a joke on the confessed bribe-taker.[381]

In the face of the ridicule of the graft-defense press, the dynamiting of witnesses, and the continent-wide hunt for the dynamiters, the Ruef trial went steadily on.

One incident of the beginning of the trial, because of the event that grew out of it, eventually proved even more important than the trial itself.

During the examination of jurors, an ex-convict, one Morris Haas, was discovered to have been sworn to try the case. Heney exposed him and he was excused from service.[382] The incident, compared with the other tremendous happenings of the time, was of small importance, but it was destined to lead to the greatest outrage of all the history of the prosecution, the shooting down of Assistant District Attorney Heney in open court. But for the time, Haas passed out of the graft cases and was forgotten.

The Ruef trial was not unlike the Ford trials. The courtroom was packed with detectives, agents and thugs employed by the various graft defendants.[383] There was the same hesitancy on the part of witnesses. At one stage of the proceedings Ach, Ruef’s chief of counsel, sneered that the State was having trouble with its own witness.

“Yes,” replied Heney, “The People have no witness—no volunteer witnesses. We merely produce them.”

When J. E. Green, president of the Parkside Company, who had authorized the payments to Ruef, refused to testify on the ground that he might incriminate himself, it looked as though the case was going against the prosecution. But Heney met this objection. He promptly moved the dismissal of the fourteen indictments pending against Green.[384] Ach objected, but the motion was granted. Green was left free to testify.

Green testified how he had sent his attorney,[385] Judge Walter C. Cope, to Ruef to find out what Ruef was after. Ruef wanted $50,000 to put the franchise through. Green testified that Ruef finally agreed to take $30,000, and was actually paid $15,000 on account.

G. H. Umbsen testified to having received $30,000 from the Parkside Company for Ruef and had paid Ruef $15,000, the balance being held until the deal should be consummated. In addition to this, the sorry manner[386] in which the company’s books had been juggled to cover up the transaction was shown by witnesses connected with the Parkside Company.

Ruef’s intimation through his attorney that the money had been paid as a fee was offset by testimony that the books had been juggled to cover up the payment to Ruef because Ruef was the political boss of the city, and it was believed that it would do the company no good if the fact of his employment were known.

Gallagher testified that he had been Ruef’s representative on the board; that Ruef had told him that the Parkside franchise was to be held up and delayed; that later Ruef had stated that each Supervisor would receive $750 because of the Parkside deal; that finally, after the fire, Ruef had told witness that the Parkside people wanted the franchise in a new form, and that the $750 to each Supervisor would be increased to $1,000; that he (Gallagher) had conveyed this information to the Supervisors. Supervisors testified to having been given the information by Gallagher.

Ruef offered no testimony. The jury was out forty-three hours. By a vote of 6 to 6 the jury failed to agree. Again a graft trial had ended in discouraging failure for the prosecution.[387]

After the disagreement of the jury in the Ruef Parkside case, to judge from most of the San Francisco public prints of the time, the prosecution was utterly discredited in San Francisco. But there is a surer means of estimating public opinion—namely, by the votes of the people.

Much of the graft defense’s abuse and vilification was heaped upon Judges Lawlor and Dunne, who had stood firmly for enforcement of the law regardless of who might be affected. Judge Dunne’s term as Superior Judge was to expire in 1909. He was, at the November election of 1908, a candidate for re-election.

Judge Dunne was frankly fought by the graft defense, and supported by those who approved the work of the prosecution. The Republican county convention refused to nominate him, and hissed his name. The Union Labor party convention received his name with a turmoil of hoots and jeers. A letter to the last-named convention from the Good Government League urging his nomination was thrown into the waste-paper basket.

On the other hand, when given opportunity for expression The People gave Judge Dunne encouraging endorsement. The Good Government League proceeded to have his name put on the ballot by petition. For the petition 1,765 signatures were required. Over 3,000 persons signed it the first day. The press—outside San Francisco—following the graft trials closely, was practically a unit in urging Judge Dunne’s return to the bench.[388] And in spite of the costly contest of his election, The People of San Francisco re-elected Judge Dunne.

Thus again were the contentions of the graft defense repudiated at the polls.

Another important endorsement of the prosecution came from the Board of Supervisors. The Supervisors provided in their annual budget $70,000 to meet the extraordinary expenditures because of the graft cases. Burns and the men who had theretofore been paid out of the fund controlled by Rudolph Spreckels, became regular municipal employees operating under the District Attorney.

The criticism of the defense had been that it was shameful that a privately-financed prosecution should be tolerated. Their cry now was at the shame of wasting the public funds on Burns and his staff. Action was instituted, through William H. Metson, to prevent the municipal officials paying Burns and his associates out of this fund. For months the salaries of those affected were held up. Although eventually the opposition to the prosecution lost in the contest, and the men were paid the amounts due them, the suit was an annoyance and a handicap.

But in spite of the tremendous opposition which the graft defense was working up, the prosecution went steadily on with its work. Ruef was put to trial for offering a bribe to Supervisor Furey to vote for the permit giving the United Railroads its overhead trolley franchise.