Chapter XXVIII · Dismissal of the Graft Cases.

At the time of Mr. Fickert’s election to the District Attorney’s office, the second trial of Patrick Calhoun for offering a bribe was well under way. As at the other graft trials, there had been delays [457] so that after five months the jury was only half complete. That the trial could not be finished before Mr. Fickert assumed the duties of his office became evident. The case was, for that reason, on December 9, continued until January 10, in order that Mr. Fickert might participate in the selection of the trial jurors. But on that date, Mr. Fickert, who had been in office only two days, very frankly admitted himself to be unfamiliar with the facts, and not prepared to go to trial. Further continuance was accordingly granted until January 31, and then until February 7.

In the meantime former Supervisor James L. Gallagher, the pivotal witness in the case, had disappeared. Gallagher was known to have been in San Francisco for some three weeks after Fickert’s election. About December 1 he dropped out of sight. He was supposed to have gone to Europe.[458]

On February 7, Mr. Fickert moved the dismissal of the case pending against Mr. Calhoun on the ground that there was not sufficient legal and competent evidence to warrant him submitting the case to a jury.[459]

Judge Lawlor denied the motion. In denying it, Judge Lawlor stated that in the view of the court the action should be tried by a jury and a verdict should be rendered by a jury, if that were possible, in the full operation of the law.

Fickert stated in the discussion which followed that he wanted his motion to apply to all the other graft cases of the same class as Calhoun’s, with the exception of the defendants Ruef and Schmitz. But here again did the Judge deny the District Attorney’s request.

After Judge Lawlor’s ruling, Calhoun’s attorneys announced themselves ready to proceed with the trial of the case. Fickert stated that he would be ready in a week. Judge Lawlor thereupon questioned Fickert very closely about the absent witness, Gallagher. Fickert gave assurance that diligent hunt was being made for the witness.

The questioning of the District Attorney was continued ten days later when the case again came up. Judge Lawlor asked Fickert to tell definitely whether he proposed to put the issue before a jury in the absence of his material witness.

Fickert replied that Gallagher’s absence greatly weakened the State’s case, and that in his belief certain facts could not be proved without Gallagher being present. But as for that, Fickert insisted that even with Gallagher present he did not believe that the State could make out a case.[460] Nevertheless, he continued to insist that he was ready to proceed to try the action even in the absence of the witness Gallagher.

But Judge Lawlor announced that he did not propose to proceed with the trial of the action:

(1) If a material witness were without the jurisdiction of the court.

(2) If the court did not believe that the cause were to be prosecuted with the vigor and fidelity that the law contemplates.[461]

Fickert also stated his position. He insisted that he did not believe that any evidence had ever existed against the trolley-graft defendants Abbott and Mullally, and did not believe it to be his duty as District Attorney to prosecute men against whom there was no evidence. Fickert even attempted to commit Judge Lawlor to this proposition, by stating that the Judge in chambers had confessed as much. This Judge Lawlor denied. Mr. Fickert’s assistant, Mr. Berry, had been present during the discussion in chambers between Mr. Fickert and Judge Lawlor, but Mr. Berry failed to sustain his chief’s contention.[462] “In these cases, the cases against Mr. Abbott and Mr. Mullally,” said Fickert, “I shall never proceed in them because there is absolutely no evidence which at all gives even a suspicion.”

In respect to the other cases, Mr. Fickert announced that he intended to take the same course that he had in those under discussion, and stated that if the Judge so desired he would advise him before hand as to which of the cases he intended to make a motion for dismissal.

“In view of the statement you made on February 7,”[463] replied Judge Lawlor, “the Court will not feel called upon to grant any application looking to a dismissal of any of those cases. The Court will finally deal with them in the manner prescribed by the law. And if that situation is not reached so that the Court can proceed with the trial, the Court will be under the solemn obligation of setting down in its minutes the reason why a trial has not been had in any particular instance, and why cases are dismissed or disposed of without the trial of the general issue. The Court cannot escape its responsibilities. I have pointed out that under the law it is for the Court to say finally what shall become of cases that are not pressed to conclusion, and when the Court does that it must give its reasons—the law says so. In this State, since the formation of the government therein, the power has not for any considerable length of time lodged in the District Attorney to dispose of actions; that matter is confided to the Court. Counsel will be doing injustice to his own position if he assumes that the Court has any other attitude than to finally dispose of these matters according to the law without doing injustice to any person, either to the District Attorney or any person who is unfortunate enough to be involved. But when the Court comes to write down its action it will be based upon what it believes to be the fact and upon nothing else.”

Fickert replied that he was ready to proceed with the matter. To this Judge Lawlor reiterated that the Court was not going to permit the District Attorney to proceed in the absence of a witness, who, according to the District Attorney’s own statement, was material.[464]

Nor did the earnest plea of attorneys for the defense for dismissal move Judge Lawlor. In the absence of the material witness, Gallagher, he continued the case, on the Court’s own motion, until April 25.[465]

On that date, Calhoun’s attorneys moved for dismissal of all the indictments pending against their client upon the ground that his trial had been postponed and continued for more than sixty days without his consent and over his objection and exception.

Fickert submitted the motion, fortifying it with a statement that he did not believe that the District Attorney’s office would be justified in asking continuance until Gallagher’s return.

Judge Lawlor postponed determination of the motion until July 14.[466] His ruling was announced on August 3.

Judge Lawlor went exhaustively into the situation presented.[467] He pointed out that a material and indispensable witness was absent from the State; he stated that the Court was called upon to intervene “because the District Attorney has at practically every turn followed the lead of these defendants”; he held that through the influence of unusual agencies, so far as the graft cases were concerned, the law had broken down, and that the crimes charged are of the most serious nature, “because such criminal activity tends to sap the very foundations of government”; he insisted that before the indictments should be finally disposed of every reasonable effort should be made to get at the truth of the situation.

“The disposition of grave charges other than on their merits,” he concluded, “is not to be encouraged and should not be allowed, except in the face of a strict legal necessity.” He continued the cases until August 29.

Stanley Moore, one of Calhoun’s attorneys, when Judge Lawlor had concluded, demanded that he be permitted to reply. This demand was refused.

There followed one of the most extraordinary scenes ever recorded of a court of justice. The defendant’s attorneys, the District Attorney, and even the prisoner at bar, openly and contemptuously defied the Judge on the bench.

Stanley Moore charged him with “doing politics from the bench that you stultify in your occupancy.” A. A. Moore, another of Calhoun’s lawyers, accused him of being “a partisan, a bitter partisan, and doing dirty politics.”

“And,” Stanley Moore hastened to add, “have been before these indictments were ever filed in this court, as the events of that midnight deal in which you participated on April 29 amply demonstrate.”[468]

District Attorney Fickert, in the face of the Court’s direction that he take his seat, denounced “the statements and aspersions you have tried to cast upon me” as “false in each and every particular.”

A third of Mr. Calhoun’s attorneys added his denunciation. Mr. John Barrett decried the proceedings as “infamous.”

Judge Lawlor sentenced Calhoun’s three attorneys to serve five days each in the county jail for contempt and ordered the Sheriff to take charge of them.

But the extraordinary scene was not concluded. The prisoner at the bar had not yet been heard. Calhoun took the floor to tell the judge on the bench that should the Judge send him (Calhoun) to jail for contempt “it will be heralded all over this country as an honor.”[469] The Court attempted to interrupt the angry defendant. The interruption was ignored. The prisoner at the bar was exhibiting himself as more powerful in San Francisco than the Judge on the bench. When he had said his say, he took his seat.

The trolley-graft cases dragged along for more than a year after this astonishing scene in Judge Lawlor’s courtroom.[470] The defendants applied to the Supreme Court in habeas corpus proceedings, but failed to secure interference. They then went to the State District Court of Appeal, where they secured a writ of mandate directing Judge Lawlor to dismiss the indictments in the cases of the trolley-graft defendants.[471] The District Attorney’s office announced to Judge Lawlor that the District Attorney had no intention of prosecuting an appeal from the judgment and order of the District Court.

Judge Lawlor thereupon dismissed the cases as directed. He also included the cases against Frank G. Drum, Eugene de Sabla and John Martin, which were governed by much the same considerations as the trolley cases. Four years and a half had passed since the indictments had been brought. Little by little, the influence of those of the community who were for law and order and impartial law enforcement had been sapped and broken down. The prosecution had been worn out; the community had been worn out. The defense had shown greater staying qualities than either peace officers or community. It had been pretty thoroughly demonstrated that convictions could not be had.[472]

The dismissal of the trolley-graft and gas-graft cases was the final breaking down of San Francisco’s efforts to have the cases tried upon their merits. To be sure, the indictments against the telephone-graft defendants and the prizefight-graft defendants, and against Schmitz and Ruef still stood. Glass, a telephone-graft defendant, had been convicted, but the Supreme Court had reversed the decision on technicalities.[473] The absent witness, Gallagher, was not a material witness in the Glass case. But when along in August, 1912, a year after the dismissal of the gas and trolley-graft cases, Glass’s case was called, it was found that important witnesses had disappeared. The incident was taken by the papers, not as a reflection upon the community, but as a joke on Judge Lawlor.[474] The Glass cases were finally dismissed.

Former Mayor Schmitz in February, 1912, was brought to trial. Ruef was brought over from San Quentin prison to testify against him. But Ruef refused to testify unless the Ruef indictments were dismissed. This, Judge Dunne,[475] before whom many Ruef indictments were pending, refused to do. Ruef did not testify. Schmitz was acquitted. The other indictments against Schmitz were eventually dismissed.

The same course followed in the cases of the other graft defendants. The graft defense had beaten San Francisco; its record of shameful success was complete.