volved in the graft scandal. All vrere not in-
dicted, but the names of all were printed. As
the report may be justly regarded as the judg-
ment of the regenerators on their own conduct,
it is of some value. In all the discussion rang-
ing from philippic to puerility there is ever
present the assumption that the regenerators
could do no wrong. The report breathes intense
consciousness of kinship with all the virtues and
the noblest ideals. It is a sweeping vindication
of the regenerators and a farewell snarl at the
higher-ups. The whitewash committee found a
pretext for going back in a review of municipal
affairs to the days when Phelan was mayor and
paying him the tribute of its approval. Coming
down to the real business in hand the committee
THE CALHOUN TRIAL 239
gives a recital of all the crimes charged against
the grafters and the higher-ups — with one excep-
tion. This one exception is noteworthy. No-
where in the report is mention made of the crime
charged against the officers of the Southern
Pacific Company. Notwithstanding what was
said in the report of the Oliver grand jury, so
far as the report of the whitewash committee
shows Mr. Harriman never did anything to
justify the fond hopes that were encouraged at
the inception of the work of redemption. The
whitewash committee tells of the crimes that
were committed to defeat the prosecution, among
them being the dynamiting of Gallagher's home,
the kidnaping of Older and the shooting of
Heney. But there is no mention of the hound-
ing of Biggy, or of the practices that were in-
dulged in to terrorize the courts, or of the short
cuts to conviction taken by trial judges. The
committee tells of the papers that were stolen
by detectives employed by the higher-ups, but
nothing is said in the report of the papers stolen
by the other side, or of the ignoring of the writ
of injunction served upon the prosecution by
William Metson, of counsel for the defense, the
day that Burns, armed with general warrants,
raided the offices of the United Railroads. In
the report there is but one invidious reflection on
the regenerators and that probably was the re-
sult of inadvertence. "The Administration,"
says the committee, "is still licensing the attrac-
240 THE REGENERATORS
tive and alluring debauchery of the French
restaurants." The Administration referred to
was that of Dr. Taylor, the good man discovered,
sponsored and vouched for by the regenerators.
With the defeat of Francis J. Heney the Graft
Prosecution petered out. Patrick Calhoun was
not given a second trial. The public was in-
formed by the regenerators that it was
deemed advisable to let Mr. Langdon's suc-
cessor inherit the case. At the same time
it was predicted by the dejected and disgruntled
patriots that nothing more would be done, as
Fickert was not likely to prosecute the men who
assisted him into office. It was a pretty safe
prediction for them to make. For no man,
were he the greatest and most zealous of prose-
cutors, could have accomplished anything in
the circumstances contrived by the prophets. Im-
mediately after his election Fickert said that
he would do whatever to him seemed just and
proper after he had familiarized himself with the
evidence against the higher-ups. He soon per-
ceived that there was nothing for him to do.
Before he took possession of the district at-
torney's office it was swept clean of the records
in the graft cases. Not a vestige was to be
found of the work done by the corps of special ,
agents employed by the city. A great mass of
documents had disappeared. There was no trace
of anything that might throw a ray of light on
THE CALHOUN TRIAL 241
the business transacted by the district attorney
in connection with the graft cases. In addition
to being deprived of the records of his office
District Attorney Fickert was further em-
barrassed by the disappearance of James Gal-
lagher, the chief witness for the prosecution.
Gallagher had been under the surveillance of the
former district attorney's special agents. A
detective accompanied him everywhere. This
surveillance was discontinued a few weeks be-
fore Fickert took possession of the district at-
torney's office. Before Fickert's election Burns
had doubly insured the presence of Gallagher.
All Gallagher's loot was in a safe-deposit box
which he could not open except in the presence
of Burns. Now it is obvious that the regen-
erators connived at the disappearance of Gal-
lagher. District Attorney Fickert learned that
after the defeat of Heney, Gallagher told his
friends he was going away. He made no secret
of the matter. Fickert also learned that though
the second trial of Patrick Calhoun was begun
by Heney no subpoena was ever served on Gal-
lagher. Consequently no attachment for him
could issue, and as he was in V^ancouver, where,
as he had told his friends, he intended to re-
main until the graft cases had been disposed of,
it was impossible to bring him back. These be-
ing the facts brought to light before Judge Law-
lor through the sworn testimony of witnesses
there appeared to be nothing for District At-
242 THE REGENERATORS
torney Fickert to do but move to dismiss the
graft cases. This motion Judge Lawlor would
not grant. He postponed the cases from week
to week against the protest of the defendants un-
til August 3, 1910, when he did something more.
With bitter mortification Judge Lawlor realized
that the end was approaching. The prospect was
a melancholy one for him. The cause with
which he was identified, into which he had in-
extricably wound himself, had not only been
defeated but befouled, and he himself had been
besmirched. Agitated by impotent regret, sore
from great vexations, it was impossible for a
man of his temperament, in whom cunning and re-
sentment seem to be congenital deformities, to
yield gracefully and amiably to the weight
of untoward circumstance. He was resolved
to have one more inning. And he had it. Un-
der pretense of explaining why he would not
grant the motion to dismiss the trolley cases
he read a long typewritten arraignment of
the defendants. The result was the last of the
many explosions that marked the progress of the
Graft Prosecution. Judge Lawlor began his
discourse by admitting that Gallagher vvas an
indispensable witness ; but it was not clear, he
said, that Gallagher left town with the permis-
sion of the former district attorney. Notwith-
standing the control which Judge Lawlor knew
that Burns, Heney and Langdon exercised over
Gallagher ; notwithstanding the undisputed testi-
THE CALHOUN TRIAL 243
mony as to the time and circumstances of Gal-
lagher's disappearance, Judge Lavvlor thought it
as likely that the defendants had induced Gal-
lagher to run away as that the former prosecutors
had done so. Such was the thought that he
expressed. And then he went on to impute to
Patrick Calhoun the consciousness of certain
crimes, such as the dynamiting of Gallagher's
home and the suppression of testimony. There
was nothing to justify these imputations. Yet
Judge Lawlor made them by way of suggesting
the possibility of Calhoun's having instigated the
flight of the indispensable witness. At the con-
clusion of the court's wholesale gratuitous as-
sertions Stanley Moore, of counsel for the de-
fendant, asked permission to reply. He was or-
dered to take his seat. Thereupon the pent-up
indignation that had been fermenting for four
years was liberated. In denying Moore the right
to be heard Judge Lawlor suggested in an
ironical tone that the attorney might reply
through the columns of the press.
"We assign that," said Moore, "as the last
word of your partisanship. We insist on a right
which any court with a speck of fairness will
freely accord us." Judge Lawlor again ordered
him to sit down, and threatened to send him to
jail. "Your honor," said Moore, "is doing pol-
itics from the bench that you disgrace by your
occupancy and as you have been doing before
the indictments were filed."
244 THE REGENERATORS
At this point A. A. Moore, father of Stanley
Moore, announced that he heartily agreed with
his son. "Your honor," he added, "is a bitter
partisan and doing- dirty politics."
Stanley Moore was still insisting on his right
to be heard, and the court ordered him into cus-
tody, at the same time adjudging him guilty of
contempt. A moment later he also adjudged A.
A. Moore guilty of contempt. As the senior
Moore was not promptly taken into custody he
rose and said, "I do not quite understand your
honor. I tried to line myself up here in thorough
accord with Stanley Moore, holding your honor
as I do in thorough detestation, believing you
to be an absolutely contemptible man." At this
point A. A. Moore was taken into custody.
The scene was not yet ended. Attorney J. J.
Barrett had a few words to say. "I want to
register on behalf of Mr. Calhoun," he said, "a
most solemn and serious protest. . I want to say
that he considers the proceedings of today in-
famous ; that his rights have been trampled
upon ; that the attempt to silence him in view of
that address which your honor has upon your
desk typewritten, intending, I assume, to hand to
the newspapers reporters to have it go broadcast
without a denial by Mr. Calhoun — 1 want to say
that it is the most unjust and oppressive ruling
that was ever made in an American court of
justice. I want to protest in the name of Ameri-
cans. I want to protest in the name of my pro-
THE CALHOUN TRIAL 245
fession. I want to protest in the name of de-
cency. To level that kind of a document at these
defendants, and then, under penalty of sending
their counsel to jail, deny them an opportunity
to reply to it, is taking this case out of the sacred
temple of justice into the political arena. Your
honor being' a candidate for office at this time,
and having postponed these cases till the eve of
the primaries should not be guilty of any such
oppression. In the name of Mr. Calhoun I want
to register my protest, and I only regret that I
have not more severe language in which to ex-
press his indignation."
Barrett was adjudged guilty of contempt.
Then Calhoun addressed the court thus :
"May it please your honor, I have been
educated to have respect for the courts. I have
sat in your court under circumstances that would
have tried the patience of any American. I have
sought, sir, to give you that respect to which your
office entitles you. But I cannot sit quiet and
listen to the vile insinuations which you your-
self have stated there was no evidence before you
to justify. There have been periods, sir, when
the greatest honor that could come to a man was
to go to jail; and as an American citizen I say
to you that if you should send me for contempt
it will be heralded all over the country as an
honor. You have seen fit to send three of the
most distinguished counsel of this State to jail.
Why? Because thev have sought to express in
246 THE REGENERATORS
terms of respect, and yet in terms of strength,
their protest against injustice."
"Mr. Calhoun — " interrupted the court.
"There is a time — pardon me, your honor —
but there is a time when every man has a right
to be heard."
Judge Lawlor a second time interrupted, but
Calhoun concluded what he had ri$en to say :
"Before I take my seat I desire to say that any
insinuation that implies that I was a party to any
obstructions of justice, or that I was a party to
the absence of any witness or that I have sought
to control the district attorney's office, is untrue.
There is no such evidence before this court. You
yourself know it."
Calhoun was not adjudged guilty of contempt.
In the course of time the attorneys for the
higher-ups applied to the District Court of Ap-
peal for a writ of mandate requiring Judge Law-
lor to dismiss the cases that he refused to try.
The matter was argued by Garret W. Mc-
Enerney, who pointed out that it was the estab-
lished constitutional and statutory rule of law
in California that every man accused of crime
must be brought to trial, unless good cause for
delay be shown, within sixty days after the filing
of the indictment. Of neither the law nor the
facts was there any dispute. It was admitted
that the continuance of a case for more than sixty
days, notwithstanding the protest of the defend-
ant, entitled him to a dismissal unless it could be
THE CALHOUN TRIAL 247
shown that there was good cause for postpone-
ment. The District Court of Appeal issued the
writ of mandate on August 16, 1911. The opin-
ion of the court is of some interest inasmuch as
it bears out what has been said in this chapter
with reference to the flight of Gallagher. The
only question before the court was whether the
State was responsible for the absence of the in-
dispensable witness. "It was shown," said the
court, "that Gallagher had left the vState if not
openly, at least without concealment of his inten-
tion. It was shown that he had openly and
freely visited ticket offices inquiring about rail-
road and steamship transportation. He declared
to his friends that it was his intention to make
an extended tour of Europe ; that he was not un-
der the process of the court ; that the time in
wdiich he could be indicted for complicity in the
crime charged against petitioner had expired ;
and that he was 'not coming back until the whole
thing blows over.' " All this, it is important to
note, occurred when Langdon was district at-
torney and when Heney was his assistant. It is
also important to note that Judge Lawlor in his
return to the application for a writ of mandate
admitted the facts to be as recited in the fore-
going language. This is important because
Judge Lawlor, as we have seen, thought it pos-
sible on one occasion that the defendants might
have prompted Gallagher to run away. Having
this thought Judge Lawlor continued the Ford
248 THE REGENERATORS
case fifty-six times and kept Ford's motion to dis-
miss under advisement four hundred days. He
said tliat the facts of the case "warranted the in-
ference" that Gallagher would return. The Dis-
trict Court of Appeal said no such inference was
warranted ; furthermore, that so clear was the
right of the defendant that "to deny it would
be a deliberate defiance of the plain mandate of
the law and a manifest misuse of judicial power."
So much for Judge Lawlor.
There is little more to be said. But now that
the smoke of battle has lifted, let us, dear reader,
before parting, take a survey of the battlefield.
The higher-ups with one exception are at lib-
erty. The one exception is A. K. Detweiler of
the Home Telephone Company. When indicted
he was not in sight, and Detective Burns never
tried very hard to find him. After Gallagher's
disappearance Detweiler surrendered himself to
the authorities, and afifected an eagerness to be
tried. But nothing has yet been done in his
case. It will probably be dismissed.
In all there were 383 indictments in the Graft
cases. The only persons found guilty were
Abraham Ruef, Eugene Schmitz, Supervisor
Michael Cofifey and Louis Glass, vice-president of
the Pacific States Telephone and Telegraph Com-
pany. Glass was convicted when public senti-
ment was at white heat. He was given the
regulation Heney style of trial ; and for what re-
formers are pleased to describe as "technicalities"
THE CALHOUN TRIAL 249
the verdict was set aside. These "technicalities"
are plain, nnvarnished transgressions of consti-
tutional rights. Coffey was tried in violation of
his immunity contract for not giving the right
kind of testimony. An appeal was taken in his
case, and is still pending. The principal point
on which he relies is that he was convicted on the
testimony of an accomplice.
So, as we have seen, the attorneys for the
prosecution met with a great deal of discourage-
ment in the trial courts, of which they have
never had occasion to make complaint. To ac-
count for their defeats they have charged
the appellate courts with having shielded the
higher-ups, whereas they never succeeded in
convicting more than one of the representatives
of the public service corporations. Tirey L.
Ford was acquitted, and Patrick Calhoun almost.
Theodore Halsey, of the Pacific States Telephone
and Telegraph Company, was tried twice, de-
fended by liert Schlesinger and acquitted both
times. In addition to these cases there were the
cases of two men charged with jury-bribing, de-
fended by Bert Schlesinger, and acquitted. There
was also the case of Luther Brown, charged with
the kidnaping of Fremont Older. Brown was
defended by Bert Schlesinger and acquitted.
Obviously if justice was "broken down" in San
Francisco, as the regenerators have frequently
asserted, the catastrophe occurred in the jury-
box, over whjch the prosecution exercised a
250 THE REGENERATORS
supervision never surpassed in the history of the
criminal courts of this country. To the recal-
citrance of jurors, if not to the inherent weakness
of the evidence, must be attributed the failure
of Heney and his associates to procure the con-
viction of the higher-ups. But throughout the
length and breadth of the land, and even in
California itself, the impression prevails that the
great scheme of redemption was rendered
frustrate by the appellate courts, owing to a
strong bond of sympathy between the judges and
the rich men under indictment. Perseverance
in slander seldom goes unrewarded. California
has been frequently pointed to of late as a State
that needs the application of the principle of the
recall to the judiciary; and the failure of the
Graft Prosecution is the reason. The failure of
the Graft Prosecution is the reason that the
Legislature of California, at the suggestion of
Governor Johnson, decided to submit to the
people a proposal to put the recall in the Con-
stitution. Men have a curious facility in be-
lieving what they want to believe. They can
even, by frequent repetition, come to believe
false assertions about their own experience.
Probably Governor Johnson really believes that
the judges of the appellate courts thwarted the
regenerators, and that consequently those judges
should be recalled. It remains to be seen what
measure of success will attend the efforts of the
Governor and his associates .They are still
THE CALHOUN TRIAL 251
devoting- their talents to the work of regenera-
tion. Their field of operations now extends over
the whole State and even into the domain of
national politics. Rudolph Spreckels, impervious
to discouragement, has consecrated his genius to
the task of redeeming a nation. Francis J.
Heney, now a lawyer without a client, cherishes
the hope of becoming a Senator of the United
States, and keeps himself before the public in
the role of platform muckraker. James D.
Phelan appears to be attending strictly to busi-
ness. Once the star performer on all public
occasions, months have passed since this fore-
most citizen enjoyed the opportunity of deliver-
ing so much as an address of welcome What-
ever may be the sentiment' of the people of the
State, it is certain that the affections of the people
of the metropolis have been alienated from the
zealous exemplars of the unwisdom of being
righteous overmuch. Long ago the populace
ceased to scjuander its reverence on patriots, who,
while professedly eager to purge the city of cor-
ruption, made a mockery and a scandal of the
most sacred of the institutions of government.
IM Ml 1_I_>S >\IN(jfc.l_E.S
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