‘Get that man’

The judge who took down Capone

Judging History

Michael B. Hyman

Justice Michael B. Hyman sits on the Illinois Appellate Court, 1st District. He is a former president of both The Chicago Bar Association and the Illinois Judges Association.
mhyman@illinoiscourts.gov

Seems everyone has heard of Eliot Ness’ role in bringing down Al Capone. But some argue that much credit also belongs to the Northern District of Illinois judge who oversaw the grand jury investigating Capone and handled Capone’s trial. Without Judge James Herbert Wilkerson (1869-1948), the reign of power and mayhem by the Brooklyn-born bad guy whose name is forever associated with Chicago might not have been accomplished.

Until his admission to the Illinois bar in 1893, Wilkerson worked as a teacher. He “read law” instead of attending law school. Wilkerson served short stints in the Illinois House, the Cook County State’s Attorney’s Office and as chair of the Illinois Public Utilities Commission.

He was a special assistant to the U.S. attorney general for five years, helping to prosecute the Standard Oil Co. and, from 1911-1914, U.S. Attorney for the Northern District of Illinois. In 1922, President Warren G. Harding appointed Wilkerson to the federal bench.

On Feb. 14, 1929, men disguised as police officers gunned down seven members of the “Bugs” Moran Gang. Suddenly, Capone became something of an obsession in Washington. President Herbert C. Hoover told his secretary of the Treasury, “get that man.”

Capone, at his winter home in Miami, received a subpoena from a federal grand jury in Chicago. Capone filed an affidavit from a doctor attesting that he suffered from bronchial pneumonia and travel to Chicago would endanger his health. Apparently, however, this condition did not preclude Capone from visiting Miami area race tracks or taking trips to the Bahamas.

Not long after, a healthy Capone appeared before the grand jury. Immediately following his testimony, FBI agents arrested Capone on contempt charges for the feigned illness. Overseeing the grand jury proceedings was Wilkerson.

Wilkerson held Capone in contempt and sentenced him to six months in jail, telling Capone, “[T]he [c]ourt is entitled to the fullest, fairest and most complete disclosure of all the facts. In no other way may the courts operate.”

A couple of months later, Capone drew Wilkerson, this time on charges of tax evasion and Prohibition violations, which carried a sentence of up to 32 years. Capone was supremely adept at hiding assets and never filed personal income tax returns. He told his lawyers that he wouldn’t receive a “fair” trial before Wilkerson.

Capone wanted to make a deal with the government. For its part, the government believed its case was circumstantial and realized that most of its witnesses were scoundrels. Capone agreed to plead guilty in exchange for a 2½-year sentence.

A Capone lawyer told Wilkerson that Capone accepted the plea bargain; Wilkerson continued the proceedings for sentencing. Wilkerson, however, had something else in mind.

To the astonishment of both the defense and the prosecution, Wilkerson rejected the plea, “It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a federal court.” Trial was set for October 1931.

On the day of trial, Capone had reason to be in good spirits. But so did Wilkerson. Unbeknownst to Capone, Wilkerson had learned that Capone’s men had either bribed or threatened the jury pool. Wilkerson told his bailiff, “Judge Edwards has another trial commencing today. Go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Edwards.”

When the trial did commence, Wilkerson barred firearms from the courtroom. Capone’s bodyguard, who sat behind Capone during the trial, was found to possess a fully loaded, .38-caliber revolver. Later, the bodyguard pleaded guilty to contempt of court.

At his sentencing, Wilkinson noted, “It must be borne in mind that this respondent was sitting with his concealed firearm behind the defendant [Capone], while the defendant was glaring at witnesses who were on the point of remembering something about the business in which the defendant was engaged, and which the witnesses could not possibly have forgotten, yet witnesses faltered and failed at the critical point.”

After the jury convicted him, Capone still expected a lenient sentence, as had been given to others in similar cases. But Wilkerson handed out a lengthy sentence for the time, 11 years, a fine of $50,000 and court costs of $30,000. As one of the jurors later recalled, “We all were impressed with the bearing and evident fairness of Judge Wilkerson.”