Al Capone | The Untouchables

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It's just before 5 a.m.

on March 25, 1931, in the suburb of Cicero, just east of Chicago.

In the dim pre-dawn light, 27-year-old Eliot Ness nervously paces the sidewalk.

As head of a squad of Prohibition officers, Ness is calling the shots for this morning's raid on a suspected brewery.

He's got eight men in total, all of them armed.

Ness has been tasked with breaking the supply chain of Chicago's most notorious gangster, Al Capone, and finding evidence that he's been violating the National Prohibition Act.

It's no mean feat.

No one else has been able to find any evidence linking the big fella to illegal alcohol.

But Ness is determined to get the job done.

Now, after a couple weeks careful surveillance, Ness' squad have pinpointed a brewery here in Cicero, hidden in a large garage.

Over the last couple of days, Ness and his men have planned their operation with care and timed things so they'll arrive at the garage when there are the fewest employees on site.

Less chance of things going badly that way.

Right at 5 a.m., Ness gives the signal and his agents move swiftly to get into place.

A couple of them pull ladders off the squad's large truck and head down the block towards the garage.

The ladders have fabric wrapped around their ends, so when the agents prop them up against the building, the sound is muffled.

The men climb onto the roof of the garage to act as scouts and make sure no one gets away through the fire escape.

Meanwhile, two more agents park cars at the doors on either side of the building to block the exits.

Ness and the rest of the squad arrive in the truck, which rolls right up to the large double doors in front.

Drawing his gun, Ness climbs out of the truck and approaches the building.

Whoever's inside, they're not going anywhere.

But they still have to be careful.

The bootleggers themselves could be armed.

Grabbing the handle, Ness pushes on the door.

But it won't budge.

Despite all their meticulous planning, they didn't consider the possibility that the gangsters would simply lock the front door.

Luckily, one of Ness's men has an idea.

Climbing behind the wheel of the truck, he lines the rear bumper up with the center of the doors.

Then, giving himself a bit of a run-up, he lays on the gas.

And the doors are not completely off their hinges.

Ness signals to his men, and they head into the garage beyond.

But it's quickly clear that they're the only ones here.

The garage is completely empty.

Ness's heart sinks.

This whole operation has been a waste of time.

Then, one of the other agents calls Ness over.

He's found something.

The back wall of the garage is much closer than it should be for the size of the building, and it's been painted black.

Ness feels his heart race again.

Looking more carefully at the wall, he can just see the outline of a cleverly concealed set of doors.

Two of the bigger agents team up to crash through the doors, revealing another space where a large red truck idles without a driver in sight.

Knowing that they're getting closer, Ness and his men press on, breaking down another set of doors, and finally arriving at the hidden brewery.

The smell of yeast hits Ness' nostrils as he assesses the situation.

Over a dozen massive vats and several large cooling tanks fill most of the space, every one of them full of freshly brewed beer.

Scattered around the space are three brewers who timidly raise their hands when they see Ness and his men.

They know the jig is up.

Once the men are in custody, Ness orders his agents to gather samples of the beer to use as evidence.

Then they smash all the vats and barrels.

The contents spill out onto the floor, washing thousands of dollars of mob profits right down the drain.

But Ness is still left frustrated.

Again, he's failed to find any evidence tying the brewery to Al Capone.

So although it was a good morning's work, the fight is far from over.

And Eliot Ness won't rest until his mission is complete.

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From Airship, I'm Jeremy Schwartz and this is American Criminal.

In the story of Al Capone, there are plenty of big characters besides the man himself.

There's Johnny Torrio, the mentor who taught Capone everything about mob life.

Bugs Moran, the rival gangster who Capone targeted in the St.

Valentine's Day massacre.

And Frank J.

Wilson, the federal agent who found the evidence that got Capone put away on tax evasion charges.

But there's another famous name in the mix as well, Eliot Ness.

Because while Frank Wilson was chasing down Capone's bank accounts and pouring through old ledgers, Ness was doing much more high-profile work.

He was trying to prove that Capone was a bootlegger.

This was the crime that had really made Capone notorious.

At its height, Capone's outfit was pulling in millions of dollars every year from imported alcohol and illegally brewed beer.

The thing was that Capone had mastered the art of the bribe, which made it almost impossible for any charges to stick to him.

And besides that, most people in Chicago were in favor of drinking and didn't seem to mind Capone's actions so long as it kept them in booze.

Eventually, though, public opinion started to turn against Capone.

The violence of his actions marked him as public enemy number one, and even the president was urging his agencies to do everything they could to get Capone.

So as the 1920s drew to a close, Capone's fortunes started to shift, as did the methods the authorities used in the fight to bring him to justice.

And once Eliot Ness arrived on the scene, his name would become forever entangled with Capone's.

Over the years, the story of Eliot Ness evolved until it became something of a legend.

Ness himself co-wrote a book about his time in Chicago, which was then turned into a popular TV series in the 1950s and 60s.

A couple of decades later, they made an Oscar-winning film about Ness.

Ever since then, it's been hard to separate fact from fiction, to find the truth behind the myths.

Because Eliot Ness did play a big role in bringing Capone to justice.

But it didn't look like what audiences saw on screen.

Here to discuss the ways policing evolved to catch up to Al Capone and what role Eliot Ness played in Capone's story is author and historian Brad Schwartz.

Brad, thank you so much for joining us today on American Criminal.

I really appreciate it.

I'm looking forward to this.

It's my pleasure.

It's great to be here.

So tell me, what is it about Eliot Ness that made you want to write not just one book, but two books about him?

Well, I'll say to begin with, it started out as one book, and we discovered in the process of writing it that it really needed to be two.

You know, I had a co-author on this project, Max Allen Collins, who I'm sure many of your listeners are familiar with as a mystery and crime and comic and film and board game writer.

He's done everything.

But he and I had similar paths to this in that we both started out being really fascinated with the character of Dick Tracy.

I mean, for him, it was reading the comics when he was a kid.

For me, it was the Warren Beatty movie that I saw and loved when I was a kid.

At a certain point, we both had this epiphany where we discovered that there was a real guy who had lived some of the adventures that had been fictionalized as Dick Tracy, and we didn't know until he actually asked the creator of Dick Tracy, Chester Gould, and discovered that Eliot Ness was an inspiration for the character, so this was a more direct connection than we thought.

But digging into the story of the real man and discovering that even though it had been fictionalized by Hollywood, that becomes even more enticing in a sense because it's like you're discovering a secret, right?

You're discovering something that people don't really know about, and you want to share that with the world.

And also, I'll say too, because the story had been so fictionalized and so sensationalized, particularly the TV show that was done in the 60s, which was after Ness was dead, so he never saw sort of what Hollywood did to his story, that he had been given credit by Hollywood for a lot of things that he didn't do.

And there was a real backlash to that among people who were still alive and remembered the gangster era and for everything that I know about the man, he would have been horrified to see that representation of himself.

But this gave him a reputation in the historical literature as somebody who took credit for things that he didn't do was sort of self-aggrandizing.

And so the pitch that I made to Max was, somebody needs to do the book that sets the historical record right on this, both to tell the real story and also just sort of put in context the work that Ness actually did to help bring down Al Capone and after.

Well, okay, we know Eliot Ness grew up in Chicago.

He went into law enforcement at 26.

His brother-in-law, Alexander Jamie was his name, got him the gig with, what did they call it?

It goes back and forth.

Sometimes it's the Prohibition Unit, sometimes it's the Bureau of Prohibition, but we can say Prohibition Bureau for the sake of simplicity.

Okay, so it's Chicago Prohibition, he's 26.

What is the state of policing like in Chicago before Ness gets there?

Capone is, people love him and they're terrorized by him, he's a celebrity, the cops are not celebrities, they're buffoons.

So what do they do?

How does Chicago go about fixing this problem?

Well, you're characterizing the state of law enforcement at that time in Chicago quite accurately.

I do think if we're talking about the mid-1926, when Ness is sort of leaving the University of Chicago and coming into law enforcement, prohibition has been the law of the land operational for six years or so by this point.

The aspiration that this is going to be a moral revival among the American people has obviously not bottomed out.

Instead, as resulted, is diverting a whole new income stream toward organized crime.

And the fact that the industrial sort of nature of bootlegging, and particularly beer manufacturing, which becomes the big cash cow for the Capone outfit, requires you to pay off police and federal agents and government officials and anybody who could stop you in an official capacity because these are huge operations that you can only camouflage to a certain extent.

And the Capone organization would rather pay people off so they don't even try.

So I think the estimate was, you know, it costs $3 to manufacture a barrel of beer for which the Capone operation would then sell it for $55.

But at least $20, $25 of that profit goes back to police and law enforcement in the form of kickbacks.

So it's an enormous amount of corruption.

And further making the situation problematic is the fact that law enforcement back in those days is not seen as a profession.

It's seen as a job.

It had not been modernized and sort of reformed.

It was still very much a political sort of nature of a job.

If you think of big city machine politics in Chicago is the epitome of that.

So how you get on the police force, let's say, in the first place requires some political pull and likely requires payment of a bribe.

So the people who are getting those jobs are already open to a level of corruption.

And so you have probation agents who are in it because they're political appointees, they're not professional law enforcement officers.

They are most likely out for a bribe rather than to have any sincere desire to enforce the law.

And this is, you know, even before we sort of think of the FBI as the first major federal law enforcement agency, but it's really the Bureau of Investigation that the bureaucracy balloons.

You know, this is the first time you have sort of hundreds of armed federal officers in America's cities.

And they're incompetent.

I mean, they're notorious for shooting people, innocent bystanders, by accident.

That happens quite frequently.

And so, you know, people would have like bumper stickers on their car that said, you know, don't shoot them, not a bootlegger.

So not only are they corrupt, but they're causing all sorts of damage and dragging the reputation of the federal government into ill repute.

It's not Kevin Costner walking into a room and suddenly Chicago is cleaned up.

This is a good paying job.

Taking bribes is easy and it pays well.

So was it really just the arrival of Eliot Ness or was there more at play?

What was it that caused this city, as it were, to wake up finally and decide that they've had enough?

What was the sea change?

I don't know to what extent the city actually has ever woken up.

You know, Chicago is Chicago.

You mentioned the Kevin Costner film.

I mean, the first thing of the many things that that film gets wrong is that it has him coming into Chicago as an outsider, which he wasn't.

He was from a suburb south of the city, Roslyn Kensington, which is technically part of Chicago.

He lived, like, five miles away from Al Capone on the same street?

Is that true?

Yeah, when Capone moved, because obviously he's from Brooklyn.

So when he moves to Chicago around 1919, 1920, yeah, he buys a brownstone on the same street, several blocks, many blocks from where the Ness family was living at that time.

But yeah, he's a native Chicagoan, and he grows up reading Sherlock Holmes stories and wanting to be that sort of scientific crime-fighting detective.

And you mentioned Alexander Jamie, who is in young Ness's mind sort of the real-life example of that.

And Jamie is first employed by J.

Edgar Hoover's Bureau of Investigation.

And Ness never, he never made it in, but he always wanted to be part of the FBI or the Bureau of Investigation.

It's because Jamie has to change jobs, then he ends up in the Prohibition Bureau that Ness takes this job, which, you know, as you said, pays well if you're corrupt, but it doesn't pay well if you're not.

And he wasn't.

So he, having a college degree, which was rare for anybody at that time, but especially for law enforcement, and having these ambitions to want to professionalize the field, he sort of looks around and says, well, there's not going to be a whole lot of competition in the Prohibition Bureau for people who want to do this right.

So it's several years before he's well known in Chicago or anywhere else as a federal agent.

But he sets himself up as the symbol of what federal law enforcement can be.

I think what makes that possible, what brings about sort of a change in the public mind, at least at the short term, is specifically the St.

Valentine's Day massacre.

All of the gang killings.

But that one in particular, before that, Capone is more admired than feared or reviled in the general public.

But the photographs from that to the brutality of it, just the calculation of it, the fact that, because this is the era when everything is getting professionalized and sort of big business is becoming bigger, and you have people talk about this, you know, that the Capone organization has brought big business efficiency to committing murder.

And so that is so shocking to a lot of people that that finally inspires the public to sort of say, we need to do something about this man, Capone, specifically.

Even they don't dig out the roots of the corruption, but we got to get rid of Al Capone.

Well, let me ask you this.

So you said something interesting.

You said that Al Capone basically brought an industrial business sense to murder.

What did Eliot Ness bring to the table?

What was it that made him so special?

On one level, it's just the fundamental philosophy that law enforcement is a profession, it's not a job.

The notion in his mind is he wanted to be a cop the way you can be a lawyer or can be a doctor, that you have graduate training and a theoretical understanding of what you're doing.

He doesn't study criminology or anything like that really as an undergrad, but when he's a prohibition agent, he goes back to the University of Chicago because they had brought in the chief of police from Berkeley, California, a famous police reformer of the era by the name of August Vollmer, who's one of Ness' most important mentors, because Vollmer had developed out in Berkeley the foundations of what law enforcement is today, the notion of professionalizing it, and things like putting cops in street cars and using the radio.

In Vollmer's lab out in California, he'd been working with the people who invent the lie detector, bringing in those sorts of innovations.

So technology, science, Ness is studying down at the University of Chicago, but they also have a crime lab up at Northwestern where they're doing things with not just with a lie detector, but with ballistics and forensic science, those sorts of things.

I mean, that's how we know really beyond a shadow of a doubt that Al Capone's organization was behind the same Valentine's Day massacre because of the ballistics work that was being done up at Northwestern.

That's the first time really in American history you have that evidence being used in that way.

So it's not that he's sort of this singular visionary who's coming up with these ideas on his own, but he's the person who's going to put them into practice.

Well, okay, so that takes us to 1930 then, which was the perfect time for him because he was put in charge of putting together a team of agents to go after Capone.

How did that come about?

Well, it came about again through this personal connection that he had with his brother-in-law, Alexander Jamie, who had left the Prohibition Bureau and had become the chief investigator of this organization called The Secret Six, which was put together by a group of wealthy Chicago businessmen.

There were more than six people involved.

That's just sort of the term the newspapers put on it.

And they were spurred to get together.

There was a shooting at a hospital.

Yeah, down by the University of Chicago.

Do you think that that specifically had something to do with kind of getting the important people off their keisters and setting some stuff in motion to put this guy in check?

Yeah, it was one of these catalyst moments that you have when it brought together a lot of trends that had been developing for a long period of time.

Because if you're talking about the businessmen who were involved in The Secret Six, their opposition to Al Capone is that the more famous that he's become, and really by 1930, he's at the peak of his international fame, he is becoming the living embodiment of the city of Chicago.

And that's having bad economic effects on the city now that we're in the depression, that people don't want to invest, they don't want to do business in the city of Chicago because they think they're going to get shot walking around in the loop.

And so the businessmen want to get rid of this guy who's seen as competition, and the shooting of this foreman, this contractor, Meager, down near the campus of the University of Chicago is the moment that catalyzes and gets Robert Isham Randolph to sort of go to the Association of Commerce and say, we need to do something about this.

And so they put together a vigilante organization.

I mean, it's sort of crazy when you think about what they were actually doing, which was putting together their own secret police force funded by wealthy, wealthy businessmen to gather intelligence.

Frank Lesh, who was another one of these wealthy businessmen, he's the one who literally goes to the White House around 1930 and meets with Herbert Hoover, the president, and says, you need to do something about this.

And then the federal apparatus swings into gear.

But the local law enforcement, the municipal politics in the city of Chicago are so irredeemably corrupt.

And that's the St.

Valentine's Day Massacre demonstrates that as well, because everybody knows who's done this, who has the means, the motive, the opportunity.

And not only that, but thanks to Calvin Goddard at the Northwestern Crime Lab, we have the ballistics, we have the evidence.

It's not really debatable beyond that point.

And yet the police, because this is a state crime, it's not a federal crime, this is murder, they can't indict or they certainly can't convict somebody like this.

So there's got to be a federal involvement to do something about this organization.

And so Alexander Jamie leaves the Prohibition Bureau to become the chief investigator of this organization, The Secret Six.

And then he writes a memo to his former superiors in the federal government and says, you really should promote Eliot Ness because he's experienced, he's got the credentials, the education, and I work well with him.

And so then we can have this sort of public-private partnership between the federal government, the Prohibition Bureau and the Justice Department and The Secret Six, so we can really do something about this.

And Ness is not promoted to the job that Jamie wants for him, which is to lead the Prohibition Office in Chicago.

But a few months later, the prosecutor, George Johnson, is putting together the effort to prosecute some sort of federal case against Al Capone.

And Jamie again says, well, if you're putting together a task force of Prohibition agents, you can trust Eliot Ness and he can work with us and he can work with, by that point, Ness is a Justice Department agent.

So he can work with Treasury and he can work with the Secret Six and we can actually get something done.

And then Ness gets the job.

So it's about his qualification as being involved with this emerging movement between the business community and different branches of the federal government.

Right.

And because it is this ocean of corruption in Chicago, when he is tasked with putting together this team, how much time did he spend walking through the tall grass, just cutting out the weeds to try and find decent people out there?

I mean, he doesn't have the luxury of waiting until he can put a team together because he's put in charge in like November or December 1930, and the indictments come down in June of 31.

So they're racing from the get-go.

And the agency is short-staffed.

He knows what he wants.

He wants agents like himself, but finding them within the federal bureaucracy is not going to be easy.

So he puts together, initially, it's about six people, but he finds people who look like they could do the job.

And then over time, people leave because they're incompetent or corrupt in one or two cases, and they're replaced by people who are more to his liking.

So it's not like in the film or certainly in the TV show where he...

I think in the TV show, they literally show him going to Washington and going through the files and saying, this is the 10 perfect people who are incorruptible.

So at the same time that he's putting this team together, Frank Wilson is coming in to take a look at the books.

Is there any cross-pollination or Eliot Ness and Wilson, are they working together?

Wilson, I'm assuming, has his own team of people.

I would think that Eliot Ness would be smart enough to go.

That information sharing is important at this point.

So what was that relationship like?

Yeah, they are part of the same effort.

You know, the person who is in immediate charge of the whole operation is the prosecutor, George EQ.

Johnson.

And he's responsible for, you know, we sort of talk about it as a two-pronged attack, but they were actually doing different things.

I mean, the FBI is involved in trying to investigate a few crimes against Capone that don't ultimately pan out.

Ultimately, it's the tax, income tax investigation and the prohibition investigation that get as far as indictments.

But Johnson is the one who is the general in charge of the whole operation.

And then, you know, Ness is in charge of the prohibition case.

Wilson, as you say, is in charge of the tax case.

And there was information sharing, even though these were basically independent investigations, that we know and sort of Wilson, before he changes his story on this, talked about it, you know, saying that they did work together and that there was coordination.

And Ness is always extremely complimentary of Frank Wilson.

Wilson is very complimentary of Eliot Ness until the television show happens and then he changes his opinion.

As most people do when the television show comes out.

Because Wilson lives much longer.

You know, he lives into the 70s, I think.

But yeah, so when you look at like the indictments that are put together for these two cases, I mean, a lot of the prohibition and conspiracy indictment that the Untouchables put together.

I mean, they're drawing from evidence that was gathered from some of the same raids and investigations that go into compiling the tax indictment.

Much of the work of actually building a case against Capone, which is very difficult based on how the law was written at that time.

They have to look back into the past.

They have to look over a decade or more of raids and confiscation of trucks and property and testimony of various different kinds.

Right.

And back then, they wouldn't have needed a warrant for a wiretap, I guess, which to our eye can make Ness' squad seem like cowboys.

But they were just at the forefront of these new policing tactics.

So what kinds of superpowers did the team have and what set them apart as investigators?

One of the things that Ness is looking for and does determine who he puts on the team are technical skills, driving specifically the ability to tail beer trucks, to follow them around, to find the distribution points.

That's a lot of what the Untouchables do.

And also putting in wiretaps.

And that is like, if you go to the National Archives in Chicago and you sort of go through the Frank Wilson's files, like there are wiretap transcripts gathered by Eliot Ness and people who are involved with the Untouchables in those files.

So that's part of the evidence that it's another connection between the two.

These are sort of the cutting edge law enforcement tools of the day, because nowadays we have like the recode law, right?

We have this notion that you can, that we have the legal tools to go after a criminal conspiracy that's, cause you're talking about somebody who's ordering people to commit murder, but not actually committing the murder himself or ordering somebody to transport alcohol, not after a certain point driving the beer trucks himself.

So the recode law didn't exist back then.

How do you prove the existence of a conspiracy?

And it becomes as basic as, I mean, the wiretaps, obviously, if you're listening to Al Capone's brother, Ralph, placing beer orders, then you can make certain connections there.

But also Lyle Chapman is the Untouchable, who Ness refers to as his pencil detective and whose responsibility it ultimately was to tie some of this evidence together.

So checking the registration of beer trucks.

I mean, they would confiscate a truck that was carrying beer and in some cases, they were able to find out that Al Capone earlier in his criminal career bought that truck.

And so they're putting together, it's Rico before Rico exists, that they are attempting to show on paper that this criminal conspiracy exists, that these are the specific lines of evidence that show that it exists.

And we're not only after a certain point when they're actually raiding breweries and arresting people, that it's not just the people who are arrested on the premises, that we can then connect them through evidence to the boss who is Al Capone.

So it's a much more complex endeavor that I think people fully appreciate.

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We have to do our job, and we have to find out who did they kill, if it's possible.

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Thank The Untouchables, just those two words are in the lexicon at this point.

But how did they get that name?

I don't think I've ever heard anyone actually ask that question.

How did they get that name?

It's actually very interesting because this is one of the things that in Ness' memoir, which becomes the television show and later the movie, The Untouchables, the story that's told there is that he refuses this bribe from the Capone Organization, which he did, it's documented that he refused many bribes.

But that he refuses this bribe and that he goes to the press and that's when they get the name The Untouchables.

But that's actually not how it happened.

What really happened, as best we can determine, is that the name The Untouchables was in the newspapers in early 1931 because of Mahatma Gandhi, who is doing his humanitarian work with The Untouchables of India on the other side of the world, and that's getting into the Chicago newspapers.

If you're talking about it in the context of the Indian caste system, Untouchable means undesirable.

And so this arises as a description of how Ness' team are treated by everybody else in Chicago, specifically the other law enforcement agencies that are corrupt, that are in league with Al Capone.

Nobody wants anything to do with these prohibition agents who refuse to be bribed and who are messing everything up.

And so they start to talk about themselves as a joke that they are the Untouchables, that nobody wants anything to do with them.

And then the prosecutor, George Johnson, is the one who says, no, actually, this is something you should be proud of.

And he's the one who changes the meaning of it to mean incorruptible, untouchable in the sense of you can't be influenced.

You know, that name does not appear in any published context until after the indictment that Ness's team has put together comes down in June 1931.

And this all gets in the newspapers.

And then Johnson is the one who goes to the press and says, look at, you know, this wonderful, clean-cut, young, 20-something federal agent, Eliot Ness, who is the head of, in quotes, the Untouchables.

And he and the Justice Department, I think quite consciously, are putting Ness, and really not mentioning any of the others, but they're putting Eliot Ness forward as a symbol of what a G-man, what a federal agent should be, right?

If we're in a public relations war with Al Capone, and Al Capone is winning in 1931, how do we restore people's faith in the federal government?

Well, we show them this incorruptible, college-educated, highly competent federal agent who is doing God's work in the city of Chicago.

And so that's then really where the myth comes from.

And a lot of the mistaken perceptions that people have about, if you read the newspaper articles, it says, it basically says that every member of the Untouchables is like Eliot Ness, they're all college-educated, they're all young, you know, and they weren't.

Right, right.

I know in your book, you quote the Hollywood Daily Citizen and they say that, no soldier on the battlefield ever performed more heroic work than has Eliot Ness performed.

So they build up Eliot Ness, right?

But they take down the biggest personality in the country with something as mundane as tax evasion.

They went for tax evasion instead of everything that Eliot Ness brought to the table.

I have a theory on that that I think that it had something to do with an attempt to kind of de-celebritize Al Capone.

We hit him with something boring in every day and we demystify him a little bit.

Do you think that that had something to do with it or you obviously have much deeper insight into this?

So I would say the income tax evasion seems mundane to us now, but the income tax law was very new back then, first of all.

And the way it was written, particularly before World War II, most, the vast majority of Americans did not need to pay income tax.

That's only something you did if you were really wealthy.

So, you know, Capone is still on a pedestal to a certain extent, even being liable for income tax, because most Americans didn't need to file a 1099 or a W-2 back then.

You know, I think what it really comes down to fundamentally is the fact that tax evasion was a much stiffer sentence.

I mean, because of the way the law was written and because of the nature of Capone's criminal activity, he's not actually violating the prohibition law.

He's conspiring to violate the prohibition law.

And the maximum for that is two years.

The maximum for all of the counts of income tax evasion against him was something like 70 years.

I mean, he didn't end up going down for that.

But if you total it all up and have it run consecutively, it's an enormous potentially amount of time.

And the judge in the case, Judge Wilkerson, who had, as judges often do, ambitions to be on the Supreme Court.

And he was close with the president, Herbert Hoover, at that time.

Once it gets into the newspapers that, because the way they total up the indictment prohibition case, it's however many barrels of beer that they can trace to this conspiracy.

So it ends up being 5,000 individual counts.

And so you have these headlines, 5,000 crimes in Dyke Capone.

And it's like, well, so he's charged with 5,000 crimes and the best you can do is two years on this.

And then Johnson, the prosecutor, because he knows that just like how the income tax law is new, prohibition conspiracy cases are pretty rare, even though the crime is not rare, the prosecutions are rare.

And some of the attacks of Asian evidence is really shaky.

So Johnson, as prosecutors often do, the safest thing is to try and get some sort of plea deal.

And so he gets Capone's lawyers to agree to two and a half years for all of it, which is only a little more than if he's convicted of prohibition conspiracy by a jury.

And then Capone being Al Capone, is so thrilled with the deal that he's gotten that he brags about it to reporters.

And so it gets in the press.

And so suddenly Judge Wilkerson is being characterized as, and people are outraged that he's the guy who's essentially gonna rubber stamp a two and a half year deal for 5,000 crimes against the worst criminal in American history.

So he, and this is the thing in the movie that's the most ridiculous where, they show the judge throwing out the tainted jury and Capone changing his plea in the middle of a trial, which is not how trials work.

Yeah.

But I mean, all of that did happen.

It just happened before they had empaneled a jury and gotten halfway through the testimony, right?

So Wilkerson over the objections really of George Johnson, because Johnson does not want to see this case go to trial because he knows how risky it is.

And the only thing worse than letting Capone get off with a plea deal is having him acquitted by a jury.

So.

Because even at that time, he still was that much of a folk hero to the common man.

I mean, it was, there's always the possibility that you get an uncooperative jury, although because this is a federal case, you're drawing a jury from the whole federal district, not just from the city of Chicago.

So they ended up with a lot of farmers from downstate Illinois on the jury, which is very helpful for the prosecution, because they were much more supportive of prohibition and the population of the city of Chicago.

But I think it was more just that sort of the ledger, the key piece of evidence that Frank Wilson had for the tax case.

There was a legitimate question as to whether that was inadmissible, whether the statute of limitations had passed.

This letter that they had from his attorneys, the American Bar Association, I think in the 90s, did a retrial of this and found that absolutely not, according to the rules of evidence, should this stuff have been included in the trial.

So maybe he's acquitted, maybe he's convicted, but it's reversed on appeal, which on the merits it honestly probably should have been.

It ended up being such a dangerous prospect to take Al Capone to trial that Johnson was willing to accept the plea deal.

It all seemed to be sewn up.

And then Wilkerson is the one who says no, and that he maneuvers so that the probation case, which only gives you two years, is set aside, and they go forward with the tax case.

And so the judge's rulings are such that he's very, very helpful to the prosecution.

So just because Capone was guilty doesn't mean he got a fair trial, I would say.

But that's how it works sometimes.

So it's done.

After this whole thing is finished, and Eliot Ness has to find something else to do.

He is not the squeaky clean guy, that television, Hollywood, movies, the whole nine may come out to be.

He was often described as being rigid and obtuse.

What did he do afterwards?

Well, his salad days, his sort of, I think the best decade, let's say, of his life is really the decade after the Untouchables.

I mean, you know, he's briefly famous as a result of the Capone case, but that actually, in the short term, that goes away pretty quickly, and then Prohibition goes away too.

And so he's sort of stuck in a dying agency without a viable career path.

But he gets an opportunity from the newly elected reform mayor of the city of Cleveland.

The police department in Cleveland is the most corrupt, the most inept, the most racist, the most everything terrible in America at that time.

And the mayor, Harold Burton, needs somebody who can not only clean up the police force and then the city, but who has a track record of getting the sort of public attention that Ness had gotten as a result of the Capone case.

So again, Ness is very young.

He's only about 33, 34 when he gets the job to be in charge of the police and fire departments in the city of Cleveland and is putting all of these ideas that he's learned from Vollmer at the University of Chicago really into practice for the first time and revolutionizes the police department, brings in radio police cars and tries to change the relationship of the individual citizen to the cop.

I mean, doing all sorts of progressive things that would be progressive even today.

He's way ahead of the curve on some of this stuff, but it's whenever you're dealing with entrenched corruption at that level, whenever you're trying to reform an institution, the institution always fights back, which is what he runs into.

And the other thing he runs into in Cleveland, of course, is a serial killer who is cutting the heads off mostly anonymous, mostly unidentified people.

By now, we're really in the depths of the Depression, and Cleveland is a Grand Central Station for a lot of hobos and transients.

And so this is the perfect sort of hunting ground for a madman who comes to be known as the mad butcher of Kingsbury Run and who is preying on, you know, people talk about them as individuals that society is not going to miss.

It's this great challenge to everything that Ness says about law enforcement.

Like, if you really want a police department that is there for every Clevelander, what can you do about this person who is attacking the most vulnerable people in your city?

And he struggles against it.

You know, we wrote a whole second book about this, so I won't go into the nitty gritty, but, you know, he becomes convinced that he knows who did it, but he can't prove it and takes action to try and take this person out of circulation.

But the case is never resolved in the public mind, and this on top of some other scandals and setbacks and, again, sort of the institutions of Cleveland turning against him eventually leads him to leave, and he works for the federal government during the war, runs for mayor unsuccessfully, mayor of Cleveland.

And after that, after he's sort of done the one thing he said he would never do, which is go into politics, then he can never enter law enforcement again.

And so he ends up in the mid to late 50s working for a paper company, initially in Cleveland, but eventually it's based in a little town in Pennsylvania called Countersport.

And he's going, traveling around the country, trying to raise money for this business venture, and it's his friend who works in the paper company who connects him to this sports writer out in New York City called Oscar Fraley, because they think Fraley is going to invest.

But by now, the stories of Ness's exploits have become sort of the sales pitch for the company.

And so Ness's friend says, you ought to hear about Eliot going after the Capone mob and raids and all this stuff.

It was really dangerous.

It was really exciting.

And Fraley is not interested in the paper company, but he is interested in these stories.

The paper company is failing.

Ness is trying to hold it together.

By this time, I think it's pretty clear, it developed a drinking problem.

And the book project that he's developed with Oscar Fraley is the one ray of light left in his life by 1956, 1957.

I've spoken to people who knew him in those years in counter sport.

And we sort of quote one of them in the book talking about how she'd see him just sitting in the office looking absolutely depressed.

And then as soon as he'd see somebody, he'd try to hide it.

But he's in a really dark place.

God, like just a man out of his time.

It's like when Buster Keaton ended up living in a trailer in a parking lot across the street from the studio that he basically helped to build.

And then I, you know, I spoke to somebody who, when I met him, he was in his early 90s.

He's since passed away, but he would see Ness, you know, they would have coffee at this little restaurant in town.

And Ness would always talk to him about the book project.

And then one day he comes in and says, well, I got good news.

Hollywood's interested in this book.

And very soon after that, Eliot Ness has a heart attack in Pennsylvania and dies.

And so he never sees the publication of the book.

He never sees the TV show or sort of the limited financial rewards that come out of that.

And so he dies in obscurity.

But, you know, one of the remarkable things is that all these, he had been, you know, he was an outsider in this very small town.

He had sort of been welcomed in, but people would hear him talk about these experiences that he had, and they just didn't believe it.

And then when he dies, you know, suddenly they're getting all these telegrams from Harold Burton, the mayor, by that point he'd become a Supreme Court justice.

J.

Edgar Hoover sends a telegram of condolence.

All these people, and they're like, wow, actually this guy was telling the truth.

You know, these exploits that he had were real.

Right, right.

So we will not dwell on the sadness.

Instead, regale me with one of your favorite bits about the Untouchables.

Well, one of the things that Hollywood really gets wrong about him is that Eliot Ness hated guns.

He would refuse to carry one in almost all circumstances, even when he really should have.

And so there's a story that John Larson, who's one of the inventors of the lie detector, and was involved in the crime lab at Northwestern University, he told where Ness had been up there, this is around 1930 during the Untouchables period, and Ness is in the crime lab for some reason, and they get word that there's some sort of beer shipment or something going into a warehouse down the street, and Ness is like, well, let's go, let's raid.

And it's Ness and John Larson and somebody else who's in the lab, so these are technicians, these are not cops, and none of them have guns.

And so Ness, you see people do this in old movies, and apparently they did it in real life, where they sort of make a finger gun with their hands and they stick it in the pockets of their jackets.

And so that's how they arrest these Capone figures without guns, but they're pointing their fingers in their pockets, and they pull off the raid.

But those are the sort of things he would do.

People who knew him later in life would talk about how shy and retiring he was.

I mean, he was too shy to even ask somebody for a restaurant record, just to stop somebody on the street.

But I think having the badge, one of the attractions for him, was that it gave him this shield, this authority, and so he grows into it, and he's playing a role that was not who he really was, but it allowed him to be that sort of daring character that has now come down to us through popular culture.

And it's in moments like this when you see he's playing a role, even though he's the real deal.

Brad Schwartz, thank you so very, very much for sitting down with us on American Criminal today.

Man, I can't tell you what a pleasure this was.

Fascinating.

You were terrific to have on.

I really, really appreciate it.

It was a treat.

That was my conversation with Brad Schwartz, co-author of Scarface and the Untouchable, Al Capone, Eliot Ness and the Battle for Chicago.

From Airship, this is our final episode in our series on Al Capone On the next season of American Criminal, a series of deadly pipe bombs rock Salt Lake City, leaving the city on edge and investigators scrambling for answers.

Their search for the truth will have them chasing down every lead, even ones that bring them to the door of the Mormon Church.

We use many different sources while preparing this episode.

One we can particularly recommend is Scarface and the Untouchable, Al Capone, Eliot Ness and the Battle for Chicago, by Max Allen Collins and Brad Schwartz.

This episode may contain reenactments or dramatized details, and while in some cases we can't know exactly what happened, all our dramatizations are based on historical research.

American Criminal is hosted, edited and produced by me, Jeremy Schwartz.

Audio Editing by Mohammed Shazeen.

Sound Design by Matthew Filler.

Music by Thrum.

This episode is written and researched by Joel Callan.

Managing Producer, Emily Burke.

Executive Producers are Joel Callan, William Simpson and Lindsey Graham for Airship.