The Third Act of the Mooney Drama
By MIRIAM ALLEN DEFORD
ON September 18, 1926, Matthew Brady, district attorney of San Francisco, wrote to the Governor of California, Friend W. Richardson: "If these matters that have developed during the trials could be called to the attention of a court that had jurisdiction to grant a new trial, undoubtedly a new trial would be granted. Furthermore, if a new trial were granted, there would be no possibility of convicting Mooney or Billings."
On May 24, 1933, the court and the new trial having been secured, William Murphy of the district attorney's staff, acting for and under the orders of Matthew Brady, refused to adduce any of the previous testimony for rebuttal, denied Mooney's plea that he be allowed to exonerate himself before the eyes of the world, and against all argument and persuasion insisted on moving for a directed verdict of not guilty. With perhaps unconscious cynicism he said: "You wanted a new trial, and now you have had it. As soon as the jury is sworn the defendant is in jeopardy. If you brought in witnesses from now to doomsday you could gain nothing more than an acquittal." The real point of the situation--that what Mooney wanted and was entitled to was a full vindication, an airing of the whole malodorous mess of the 1916 frame-up against him, not a mere empty verdict which might mean any one of a hundred things--Murphy, and through him Brady, ignored. Judge Louis H. Ward denied Mooney's appeal that the Judge order Brady into court to give publicly his reasons for his attitude, and said that he had no power to grant Mooney's alternative plea that he appoint a special prosecutor. He stated that if the district attorney's attitude had been a different one, he would have been prepared to admit a limited amount of rebuttal testimony, but now he had no choice under the law. Without leaving the box, the jury selected a foreman who signed the formal verdict. Legally, Thomas J. Mooney now stands acquitted of the murder of Arthur Nelson in the Preparedness Day explosion of July 22, 1916. But, legally, he still stands convicted of the murder of Hetta Knapp in the same explosion, and is serving life imprisonment for the crime.
Back of that climactic moment in Judge Ward's court lies the inextricable tangle of motives, influences, meanings, and passions that make up the Mooney and Billings case. The first act of the play consisted of the explosion itself, the frame-up by Fickert and his gang, the 1916 and 1917 trials of Billings and Mooney, and the resulting sentences. The second act covered the gradual exposure of the frame-up, the progressive impeachment of all prosecution witnesses, the long, weary fight, constantly frustrated but never suppressed, to bring about the release of two innocent men. The successful effort to retry Mooney on another of the 1916 indictments constituted the third act. What the fourth and final act will be remains for the future to reveal.
According to California law--the same sort of iniquitous law that in Massachusetts sent Sacco and Vanzetti to their martyrdom--the discovery of new evidence following conviction is not ground for a new trial; retrial can be ordered only for a flaw in the legal conduct or record of the case. A misplaced comma will secure a man a new trial, but not a lying witness. The Dempster bill, introduced into this year's legislature for the specific purpose of remedying this situation and giving Mooney a retrial on the Knapp indictment, was passed by the assembly but killed by the reactionary Judiciary Committee of the senate. Therefore, even had District Attorney Brady been willing to waive the strict letter of the law and give Mooney a chance for open exoneration, that exoneration could not have freed him from San Quentin, any more than does the formal verdict of acquittal. What it would have done, however, would have been to make clear to the whole world the grotesque falsity of the built-up case against him--a powerful argument for gubernatorial clemency and a mighty talking-point before the United States Supreme Court. Even as it is, Frank P. Walsh and John Finerty expect to use the outcome of this second trial in a plea to the Supreme Court on the basis of the Scottsboro verdict. But if Brady had really meant his long assertion of belief in Mooney's innocence and his desire to obtain Mooney's freedom, he would have given him more than this empty gesture. Or,c is driven to the conclusion that Brady knows Mooney to be guiltless and wants him vindicated, but not at the expense of the slightest abandonment of petty legalism or the least assault on the dignity of the district attorney's office.
The second Mooney trial took place at a time when an unprecedented number of exciting and important events engaged the attention of the American people. The full Morgan revelations broke on the concluding day of the Mooney retrial; Federal Judge Louderback was acquitted of ment charges that same day; Roosevelt had just electrified the world and the nation by his open ending of American isolation. But nowhere in America or the world was there; more dramatic scene than in Judge Ward's shabby court room in the old Hall of Justice in San Francisco. Standing with its back to the Italian quarter and Telegraph Hill, it face to Chinatown, adjoining the City Prison where Mooney was kept a prisoner during the trial, the Hall of Justice is the only official building in San Francisco which survived the 1906 earthquake and fire. Across the street from it is Ports mouth Square, with its famous statue "to remember Robert Louis Stevenson." A month ago, when the case was first called on April 26, that square was crowded with demonstrators chanting "Free Tom Mooney," until mounted police cleared them away to neighboring corners. On May 23 there were more police, and no demonstrators; everybody for a square block around the Hall of Justice was kept moving unless he could prove his right to be there. The demonstration in April was Judge Ward's ostensible reason for postponing the trial until May 22. On May 23 he let the cat out of the bag when he said, "I gave you a month's postponement in the hope that you would decide not to proceed."
When the postponement took place, John O'Gara, formerly of the district attorney's staff and a close associate of the 1916 prosecutors, had already threatened to appeal to the State Supreme Court to have the trial stopped. Undoubtedly Judge Ward hoped that O'Gara would be successful in this; in fact, he pleaded with him to get it over with quickly. Instead, O'Gara waited, probably deliberately, until May 19; then, "as a taxpayer and a member of the bar," he asked the Supreme Court to declare the case res adjudicata, on the grounds that since Mooney had been convicted of one Preparedness Day murder he stood convicted of all; that the taxpayers of San Francisco County should not be put to the expense of a trial; and, rather humorously, that Mooney must not be placed in double jeopardy. The Supreme Court could not meet until May 22, the day for which the trial was called, and the Judge therefore ordered another day's postponement. Experience has shown how few friends Mooney or Billings has on the California Supreme Court; nevertheless, after a day's deliberation it unanimously refused O'Gara's petition, but solely because he had no right or qualification to present it. This left the field clear, and the case was called for trial on May 23. Five days previously Mooney had been whisked from San Quentin in a private yacht lent for the occasion, to avoid crowds at the ferry, and lodged in the City Prison, where he first awaited trial in 1916. The stage was set and the curtain rose.
To a spectator closely familiar with the Mooney case from its beginning, it seemed as if in that crowded little courtroom (it holds only 130 persons outside the press section) there were two sets of actors--the new figures of the present trial and the ghosts of 1916. There was the judge--cold, dry, a bit protective of his dignity as short men are apt to be, making an effort to be fair but utterly unable to hide his antagonism to Mooney, his extreme dislike of Mooney's attorney, Leo Gallagher, and his distaste for the entire, proceeding. There was Murphy--young, florid, heavy set, not liking his job overmuch. There was Gallagher, who was a professor of law in Los Angeles until his communistic activities led to his dismissal--gray-haired, small, and spectacled, but so highly charged with indignation that he fairly crackled. They were the new men. And there were the ghosts--Fickert, Oxman, McDonald, Estelle Smith, the Edeau women, Cowley, and the rest. Among those who had played a part in 1916 was Charles Goff, sitting at Murphy's elbow, practically, in spite of his police uniform, an aid to the prosecution--he has declared openly that Mooney was convicted by perjured evidence and should be freed, and yet has proved ; himself one of Mooney's most implacable enemies. There were old Mother Mooney and brother John and sister Anna and Rena Mooney, a tragic, harrowed figure, a tear-wasted caricature of the blooming young woman of 1916. There was Frank Walsh, the noble warrior, growing old and heavy, but still a great gentleman and a formidable attorney. And there was Tom Mooney, the most famous prisoner in the world.
Time, that has dealt so many cruel blows to Tom Mooney, has in other ways been very kind to him. I have had occasion to write of him many times in the past, and I have an apology to offer him. I have called him obstinate, cantankerous, surly, self-centered; and he has been all these things. But he is none of them today. Tom Mooney is not only, after sixteen years in San Quentin, a sturdy, youthful, healthy, clear-skinned, and bright-eyed man; he has learned self-control, he has mellowed, he has dignity and poise and patience. Even in the distinguished presence of Frank Walsh he stood out; he was easily the biggest personality in that courtroom.
There was a touch of farce, with the request for an instructed verdict threatening from the beginning, in the protracted and elaborate choosing of a jury. The first day the panel of the department was exhausted. Only one juror was finally accepted from among the first twelve called to the box. In the end there were six men and six women; an interesting jury, nearly all unemployed white-collar workers, and I think much under the usual age. Four of them were certainly under thirty, and only two much above it. There was a reason for this--men and women under thirty were children in 1916; they had been little affected by the Preparedness Day catastrophe or by the wave of anger and vengeance which followed it. Talesman after talesman was excused because of a fixed opinion. There was one woman whose father had been injured in the explosion; there was a policeman's son; there was a friend of Rena Mooney's sister. It would have been almost impossible to find in San Francisco a person of voting age, resident in the city long enough to serve on a jury, and of normal intelligence, who knew nothing of the Mooney case and had never expressed or felt a belief concerning it. Some of the salesmen called to the box had such strong opinions and feelings concerning the case that it was easily possible to discern whether they were for or against Mooney--and the majority were for him.
With the jury selected and sworn, after a brief recess the climactic moment arrived. Gallagher requested the production of the exhibits; his request was peremptorily denied. He read a list of out-of-town witnesses and asked for subpoenas for them; Ward replied sarcastically, "The county is broke. Motion denied." Then Mooney rose to his feet and in a quiet, clear voice stated that he wished to act as his own attorney, with the advice of counsel. Grudgingly Ward agreed, adding the gratuitous remark that "ninety-nine times out of a hundred a man makes a fool of himself by acting in his own behalf."
It was Murphy's move. He lumbered to his feet and with rather a shamefaced air presented his chief's justification of his attitude. "The evidence in this case is insufficient There is no evidence on behalf of the people. The defendant is entitled to rest behind a plea of not guilty and the pre gumption of innocence. The people are in no position after seventeen years to produce evidence to overcome that pre gumption of innocence. There is nothing for the defendant' to rebut. If the defendant is allowed to introduce evidence he will be merely shadow-boxing with himself. The State asks for an instructed verdict of not guilty, and rests."
Mooney was standing in an instant; his calm had not yet left him. He asked that the motion be denied, that Brady be called into court to give his reasons, so that the record would show just what they were. It was not true that the former evidence was no longer available; only Oxman was dead, all the other ]917 witnesses could be produced in court if the county would subpoena them. "My object," he said, "is to prove to the jury that I am not guilty on this charge, and hence on the other charge. If this is not allowed, this trial will be a farce. Before you pass on this motion, the jury has a right to hear the district attorney."
Gallagher jumped up, to be squashed instantly, reminded that he was now acting only in an advisory capacity. "May I not speak even as a friend of the court?" he begged. "You are no friend of the court, Mr. Gallagher," retorted Ward grimly. He refused to call Brady; to do so would be an offense to the able and worthy Mr. Murphy. Mooney read aloud Brady's 1926 letter to Governor Richardson, quoted at the beginning of this article. The plea was again denied. Mooney quoted Judge Ward to Judge Ward, his own statement that there should be a new trial and a reading by stipulation of the old evidence. Then Mooney asked that Ward appoint a special prosecutor--anyone, no matter who, who conscientiously believed him guilty--so that he might have a real hearing and present and rebut all the old testimony. Ward was adamant.
"I believe," he said coldly, "that the world-wide interest in this case would have made it advisable to hold a trial had the prosecution conscientiously believed the defendant guilty; but this is not the case now. I postponed this trial a month hoping you would withdraw the motion for a trial, but you have not done so. The opinion in the East which thinks Mooney innocent demanded that California do something about it. That opinion should have been satisfied by the scathing decision of the State Supreme Court on Billings. If this jury took the same view of the case, Mooney would be reconvicted. I have attempted to settle this case one way or the other; I failed because the Attorney-General would not appoint a special prosecutor. It seems to me that you have either shown very poor judgment or have had very poor advice. It looks as if the defendant really did not want a trial."
The unjustified slur and the amazing non-sequitur following it were too much for Walsh. He demanded and finally received a right to protest what he felt was an insulting reference to his conduct of the case. In a moving speech, his voice shaking with emotion, he reviewed his connection with the Mooney case since the death of Bourke Cockran. He told how he had served without pay, how he had given his time and services and money in a thankless, burdensome task, treating Mooney exactly as if he were his richest client, solely because he was convinced of his innocence. "He hoped to have an opportunity to exonerate himself," Walsh pleaded. "He has said to me that he would rather die in a felon's cell than be considered capable of committing so foul a crime."
Ward cut Walsh short, and then Mooney for the last time hurled himself against the brick wall of the district attorney's stand. For a few minutes he ceased to be an attorney pleading for himself as client, and became a man, begging for justice from another man.
"You say the evidence is insufficient to convict me," he cried. "Four governors, the prison pardon board, and the Supreme Court have held that same evidence sufficient to hold me in San Quentin. If it is sufficient for that, it is sufficient to place before a jury." He turned directly to Murphy and begged him as a matter of decency to withdraw his motion for an instructed verdict. There was a second when Murphy seemed to hesitate. If it had been Matthew Brady himself in that chair, it is possible that he would have reconsidered. But Ward had refused to call Brady into court. Never meeting Mooney's eye, Murphy got himself through his distasteful job.
"The State honestly thinks the evidence unavailable. We tried to be removed from the case and the Attorney-General denied our plea. We had to come here to protect the rights of the people. The defendant has insisted on a trial, and he has had it. The case has come to the point where the only relief that can be granted is by the Governor. All the witnesses connecting Mooney with the explosion are impeached. We cannot prove a case against him and cannot pass on the defendant's moral guilt; that is up to the Governor. We have been as decent as we could be, but we will not violate our honor.'
Judge Ward granted the motion for an instructed verdict of not guilty. The foreman signed the verdict. The jury was discharged. Without even a farewell to his family Mooney was handcuffed to a deputy--each day of the trial he was brought into court shackled, and released only when he reached his seat--and taken directly back to San Quentin. The second trial of Thomas J. Mooney for the Preparedness Day murders was over. There was nobody in California with both the power and the desire to waive a few legal technicalities and give this man the day in court for which he has waited for seventeen years.
Brady would not "make himself ridiculous" by prosecuting a case for which there was no valid evidence. Attorney-General Webb would not do anything so irregular as to appoint a special prosecutor. Judge Ward would not over-assert his jurisdiction by one slightest ruling. Governor Rolph, asked what he would do if, armed with this legal acquittal, Mooney once more asked for a pardon, replied that he would refer the matter again to his advisers, principally Matt I. Sullivan. (It was Sullivan, his bitterest foe, whom Mooney wanted as special prosecutor.) Everyone directly connected with the case knows and declares Tom Mooney IS innocent--and therefore he must remain a prisoner!
Except for the possibility, after a long wait, of electing a Governor of California who will end the disgrace and shame of this case, the only hope of wiping this blot from the State's shield, and of giving Tom Mooney the freedom to which by every right of decency and justice he is entitled, lies in the pending appeal to the United States Supreme Court.