not been withholding- some of the truth. We
have come to the conclusion that you must be
flirting with the other side."

When the immunity contract and the repudia-
tion of it became the subject of public discussion
the regenerators denied that they had ever prom-
ised Ruef complete immunity. Affidavits of
great bulk were made by Heney and Burns in
which they gave their version of the immunity
bargain. To believe them is to believe that the
clergymen wandered far froni the truth, but only
in matters of collateral interest. The attorney
and detective enveloped the issue in a cloud of
words. They dwelt chiefly on Ruef's trickery
and their own shrewdness. Clearly their main
purpose was to convince the public that negotia-
tions were opened by Ruef and that they never
had any confidence in him. They always feared
that he intended to trick them, and they asserted
that he had not been honest in his dealings with
them. Nevertheless the "midnight meeting" was
held. Heney said it was held merely to have the
judges explain their usual policy in regard to
dismissing cases against defendants who had
"turned State's evidence" and as to their con-
fidence in the affiant and Langdon. But why
Ruef should want the judges to explain some-
thing with which he was as familiar as they
were themselves does not appear. Burns ad-
mitted in his affidavit that he authorized Wilson



134 THE REGENERATORS

and Gallagher to call on Ruef and tell him that
"he could have the same opportunity of coming
through which had been given them." But, ac-
cording to Burns, he acted without Heney's au-
thority. Heney would never agree to anything
but that Ruef should be promised leniency in
the French restaurant case. So after all there
is but a slight difference between Ruef's version
and the version of the prosecution. For the
prosecutors admit that all cases save the French
restaurant cases were to be dismissed and that
even as to that case Ruef was to be vouchsafed
"leniency."

When it was pointed out that Ruef was mor-
ally entitled to immunity under the written con-
tract, the Supreme Court having decided that
the indictment in the French restaurant case. to
which he pleaded guilty and with reference
to which the verbal agreement had been made,
was invalid, they said that it was the under-
standing that he would sufifer imprisonment on
one charge. Of course the regenerators tried
to exculpate the judges, but circumstances seem
to justify the conclusion that the judges were
alone responsible for the cancellation of the con-
tract. District Attorney Langdon gave color to
this theory when he issued a statement for pub-
lication to the effect that he had kept all the
terms of the contract. He did not say that Ruef
had violated the contract. So the inference was
that the third party to the contract — the court —



RUEF PLEADS GUILTY AND WHY 135

had made it impossible to carry out its provisions.
Let the truth be what it may there was no more
talk of immunity for Ruef. He had to go to
trial.



VII

THE SCHMITZ CASE

A Trial in Which the Law Was Adapted to the
Purposes of the Regenerators Without Regard
to Elemental Principles or the Constitu-
tional Rights of the Defendant

A study of the Graft Prosecution would be in-
complete without a review of the Schmitz case ;
nay, no history of American jurisprudence will
ever be complete which does not contain the
story of this case — the story of the trial with its
exhibition of the complete and abject surrender
of a criminal court by its judge into the hands
of "special prosecutors" ; the story of the appeal
where every weapon of vilification, defamation,
and incitement to lynch law, was brought to
bear upon the appellate courts in the effort to
break them down and make them as pliant and
subservient to the will of the Graft Prosecution
as the trial court had proved itself to be.

The story then has two chapters. That to
which we first come presents a humiliating, un-
relieved picture of the swift and utter degrada-
tion to which a court of record can reduce it-
self by willing subservience to any man or set
of men.

Schmitz and Ruef, as we have seen, had been



THE SCHMITZ CASH 137

indicted jointly for extorting money from the
French restaurateurs of San Francisco. The in-
dictments were the first ones found. They were
handed out as a pabulum to a hungry public
which was growing tired waiting for something
to happen. Ruef had never denied, indeed he
had for years openly admitted, that he had
been employed to represent certain restaurateurs
as attorney at law in securing their retail liquor
licenses. The flimsiness of the evidence upon
which these indictments were brought is amaz-
ing in the light of after events. It was charged
that the two men conspired to extort money.
Ruef's evidence at the time the indictments were
brought was not open or known to the prose-
cution. Without that evidence there is not the
shadow of testimony showing Schmitz guilty of
any offense, and even with Ruef's evidence the
proof, as will appear, must be regarded as
wholly unsatisfactory.

Ruef, it will be remembered, was put upon
trial under this joint indictment, and having
secretly arranged with the prosecution for im-
munity, pleaded guilty, coupling his plea with
the astounding statement that he pleaded guilty
though innocent.

The indictments against Schmitz were allowed
to slumber until the exigencies of Graft Prose-
cution politics demanded Schmitz's elimination
from the mayoralty. As mayor he still con-
trolled a most important municipal office and its



138 THE REGENERATORS

patronage. He had agreed to resign, leaving
the nomination of his successor to a committee of
the recognized civic bodies of San Francisco,
but when that committee, headed by Judge
Charles Slack, submitted this proposition to
Rudolph Spreckels, the members were driven
from his sanctuary with scorn and contumely,
denounced as emissaries of the infamous South-
ern Pacific, and informed that Mr. Spreckels
would name his own mayor. Mayor Schmitz
must, therefore, be excised. Under the law of
California the mere conviction of a criminal of-
fense — regardless of the fact whether or not the
conviction be upheld on appeal — works a for-
feiture of office. Aware of this the way of the
prosecution was plain, and by a considerate
judge could be made easy. All that was neces-
sary was to convict Schmitz, and to this end,
and not to determine his guilt or innocence, the
trial was begun. The conclusion was foregone
before a word of evidence was taken ; indeed,
before the jury was impaneled. During the
slow process of jury getting an astute member
of the pugilistic fraternity leaned over and
whispered to a companion — "Let's get out of
here. Dis aint on the level. Dey aint going to
give Schmitz a dead man's chance." Nor did
they. Incredible as it may read, the matter and
the fact are simply these : whatever the prose-
cution desired it obtained, regardless of the pro-
tests and objections of the defense; of what the



THE SCHMITZ CASE 139

defense desired, it obtained nothing if there was
the sHghtest objection by the prosecution. It
is nevertheless conceivable, you may say, that
the prosecution was always right and the defense
always wrong. The answer to this may well
be left to the Court of Appeals which was later
called upon to review these performances, (for
they can scarcely be called rulings) which will be
dwelt upon presently. For the present it is
enough to say that the judicial ermine was as
spotless after that trial as before. It was all
black. When the foreordained verdict was an-
nounced nobody was surprised, and but a few
were shocked. Not that every lawyer and most
laymen did not know that the trial had been
either a judicial farce or a judicial tragedy,
depending on one's point of view. But at that
time everything was given for nothing and
taken for granted so far as the prosecution was
concerned. It was recognized that the elimina-
tion of Schmitz was a matter of expediency.
The manner of his elimination was of no con-
sequence, since the end must justify the means.
As to what might occur on appeal, nobody
cared. The conviction was the thing and it had
done its work. Schmitz by force of it went out
of office. That this is an unvarnished recital of
the facts the records will show. Let us glance
at them. The charge was that defendants
Schmitz and Ruef feloniously "threatened the
said Joseph Malfanti, Charles Kelb, and William



140 THE REGENERATORS

Lafrenz, that unless they should then and there
pay to them the said sum of money hereinbe-
fore referred to, and promise and agree to pay
one year thereafter a further sum of one thou-
sand dollars the said Malfanti, Kelb and Lafrenz
could not and would not obtain said license for
the sale of said liquors and wines from the said
City and County of San Francisco, and the said
Schmitz and Ruef would prevent the said Mal-
fanti, Kelb and Lafrenz from carrying on or
conducting the said business of selling said wines
and liquors." Here there is a charge of extor-
tion by threat, the particular threat being ex-
plicitly set forth.

Early in the trial and previous to the taking
of evidence the judge had removed any possi-
ble doubt as to his attitude. A juror by the
name of Harris after having been accepted by
prosecution and defense and sworn to try the
case, was afterwards successfully challenged with-
out cause by the district attorney. The code of
California, like the law of New York from which
it is drawn, permits a challenge to a sworn
juror to be made only when good cause to ex-
cuse the delay is shown. Says the Court of Ap-
peal of New York (People v. Hughes, 137
N. Y. 29) : "The obvious meaning of the sec-
tion is that a challenge for good cause, which
is required to be taken before the juror is sworn,
may nevertheless be taken thereafter and before
evidence is given, in the discretion of the court.



THE SCHMITZ CASE 141

If it does not mean that it must necessarily
mean that the court may for any good reason,
even though undisclosed, set aside a sworn
juror in its discretion. I do not think that is its
meaning or its purpose." The California deci-
sions are to the same purport. Yet the judge
witJiout oiiy cause shozvn or reason assigned,
permitted the prosecution to interpose a chal-
lenge and excuse Harris.

Another juror, Bray, had likewise been sworn.
His examination was reopened. A newspaper
had asserted that his wife was a fourth or fifth
cousin of Schmitz's wife. Interrogated, the
juror replied that he knew nothing of it and had
heard nothing of it. Nobody else knew any-
thing or proved anything. A challenge by the
prosecution to the juror on the ground that he
was related to the defendant by consanguinity
or affinity within the prohibited fourth degree,
was allowed by the judge with the solemn state-
ment, 'T think any relationship, no matter how
remote, ought to keep a person off the jury."
Says the Court of Appeals : "The evidence did not
show any relationship of the juror to the de-
fendant to any degree or in any way."

Upon ex parte affidavits from the prosecuting
attorneys the court found the sheriff and coroner
disqualified, and appointed Biggy an elisor to
take charge of the jury. It refused permission
to the defense to read and rebut the affidavits ;
refused permission to file affidavits showing the



142 THE REGENERATORS

disqualification of Biggy and his bias and hos-
tility to defendant. It found the sheriff and
coroner disqualified on the ex parte statements
of the prosecution, but refused a man whose
liberty was at stake the right to show that his
jury was to be put in the hands of his personal
enemy. How exact an echo of the prosecution
the judge made himself may be shown by two
excerpts from the record: "The prosecuting at-
torney (speaking of the appointment of an elisor
to counsel for defendant) : That is a matter over
which neither of us have any control. It is
nothing with which we are concerned.

"The court (to defendant's counsel, Mr.
John J. Barrett) : It is no concern of yours,
Mr. Barrett; you have nothing to do with it."

Says the Court of Appeals, after showing what
is all-apparent, that this was a most unwar-
ranted deprivation of a defendant's right to be
heard in the matter: "Fair dealing and the
rights of the defendant required that he should
be heard on both propositions." The remark of
my pugilistic neighbor thus seems fully jus-
tified.

But coming to the evidence and taking it in
the light most unfavorable to Schmitz, it showed
that the approval of the police commissioners
was necessary before the restaurateurs could
secure their liquor licenses ; that their licenses
were refused to the impairment of their busi-
ness of conducting assignation houses : that they



THE SCHiMITZ CASE 143

were advised by their attorney that they could
secure their Hcenses only by employing Ruef to
represent them ; that Ruef agreed to represent
them as their attorney in the matter of the
licenses and also in any matter of litigation that
might arise in connection with their l)usiness, for
two years at an annual salary or retainer of
$5000; that they agreed to this and paid the
money ; that neither Schmitz nor Ruef threat-
ened them in any way ; that Ruef promised
merely to do what he could for them, and that
to one of them Schmitz had said that he favored
the issuance of their licenses, and would look
into the matter of the delay and see what could
be done to remedy it.

Reagan, an ex-police commissioner, appointed
and dismissed by Schmitz, testified that the
mayor had told him that the French restaurants
were evil places and licenses should be denied
them. He had never visited, had never heard
of the restaurants. He visited and inspected one
and found nothing objectionable and voted for
its license. Subsequently complaint was made of
another (the complaint growing out of the refusal
of the proprietor to unionize his waiters) and evi-
dence was brought before the commissioners that
lewd women frequented the place. Reagan then
voted to refuse it a license. The mayor told him
they were all alike and that none should be granted
licenses. Thereafter, Reagan admitted, he was
resolved to favor the licensing of only such res-



144 THE REGENERATORS

taurants as would comply with the regulations of
the board and do away with bedrooms, and he
would at any time have voted licenses for any
that would comply with these regulations. After-
ward, while he was voting against the licenses
and they were being withheld, the mayor told
him that great pressure was being brought to
bear on him by business men and politicians
to grant the licenses ; that the pressure was so
great that he feared it would injure him politic-
ally if the refusal were continued, and asked
Reagan if he could not change his vote. Reagan
said he could not, and the mayor said he could
not ask him to stultify himself but would remove
Hutton who was with Reagan in opposition.
Hutton was removed. Ruef appeared before
the board, and suggested new regulations under
which licenses could properly be issued. These
regulations were adopted, and licenses were
issued, but Reagan still voted against them.
There was here no evidence that Schmitz or
Ruef or Reagan threatened any of the restau-
rateurs. But it was argued by the prosecu-
tion that the threat charged to have been ut-
tered was embraced in and conveyed by the act
of Reagan in voting against the licenses. Yet
the truth is that Reagan voted against the licenses
to the end and that he testified he would have
voted for them if the proprietors had been will-
ing to give up their assignation-house business.
With this testimony the prosecution rested its



THE SCHMITZ CASE 145

case. There was no word of evidence pointing
to a threat, to a conspiracy or to a sharing by
Schmitz of the fee Riief received. Whatever
Ruef's testimony would be the prosecution knew,
yet he was not called to the witness stand.

When the prosecution rested Schmitz was
sworn. His testimony was confined absolutely
to denials of certain statements attributed to him
by Reagan. In effect he said he had not changed
front on the license question ; that he had alvvays
advocated with Reagan the issuance of licenses
except to proved immoral places. This was all
his testimony.

By the Constitution and laws of the State of
California, as of every State, I believe, no de-
fendant can be compelled to furnish evidence
against himself; and if he ofifers himself as a
witness he may be cross-examined only as to
those matters about which he was examined in
chief. Yet when Schmitz was turned over to the
prosecution for cross-examination the question he
was made to answer, over the objection of his
counsel, was : "Did Ruef pay you any part of the
$5000 that has been testified he received from
the French restaurants ?" Schmitz's whole cross-
examination was made up of like interrogatories.
It needs no lawyer to perceive that this cross-
examination was not upon the matters about
which Schmitz was examined in chief. It needs
no lawyer to perceive that it was an examina-
tion upon outside matters designed to force evi-



146 THE REGENERATORS

dence or denials from a defendant in open and
obvious violation of his constitutional rights, an
examination countenanced and upheld by the
judge in brazen defiance of the Supreme Court
which long before had declared : "A defendant ac-
cused of crime in this State has a constitutional
right to be protected from forced examination.
As to any matters concerning which he has not
voluntarily testified in his own behalf, )io evi-
dence can be zvrung from him." (People v. Ar-
righini, 122 Cal. 126.)

Yet is this tale of the prostitution of justice
but half told? Schmitz denied the receipt of
any money from Ruef, and under the pretense of
rebutting this evidence so wrung from Schmitz
by illegal cross-examination, Ruef was called
and was permitted to testify that after receiv-
ing his fee he offered half to Schmitz, who ac-
cepted it. And then Ruef was turned over to
the defense for cross-examination. Bear in
mind that it was suspected then, though pub-
licly denied by the prosecution, and not known
till months after, that Ruef had been promised
complete immunity by the prosecution and was
testifying under that promise ; bear in mind that
evidence of the existence of such a promise of
complete or partial immunity is always permis-
sible to show the strong motives that may actu-
ate a witness to color his testimony ; bear in
mind that Ruef was a co-defendant with Schmitz
and had dramatically pleaded "guilty though in-




FRANK H. DUNNE



The "midnight meeting" judge who presided at the
Schmitz trial.



THE SCHMITZ CASE 147

nocent," to the same charge ; bear in mind also
that judge, as well as prosecutors, knew all these
things, and that the judge was a party to the
secret "midnight conclave," at which the word of
all, judges and prosecutors, was given to the
rabbis that Ruef should receive absolute im-
munity ; bear in mind, moreover, that the rules
of evidence have always sanctioned the utmost
liberality in the cross-examination of a co-con-
spirator, and that in this connection the Supreme
Court had said : "The utmost latitude of cross-
examination justified by the law in any case
should be extended to the testimony of such a
witness," (People v. Williams, 18 Cal. 191) ; and
finally bear in mind the illegal latitude allowed
in the cross-examination of Schmitz, and then
follow the record of Ruef's cross-examination.
Ruef stated that he had told the prosecution all
the facts and that the larger part of them were
favorable to Schmitz. This is the record of in-
terrogations :

"Q. State those facts now in detail."

"Q. Did you in your conversations with
these gentlemen (of the prosecution) tell them
that you would not stand for anything except
complete immunity ?"

"Q. In pleading guilty to this charge, you
stated at the same time that you were not guilty.
Was that true?"

"O. What do you mean, Mr. Ruef, by that
statement that you were not guilty of this
charare ?"



148 THE REGENERATORS

"Q. Did you change your plea to guilty after
you had your conversation with Mr. Burns in
which he told you he would do all he could to
secure leniency for you?"

"Q. Did you prior to the time you say you
gave defendant one-half your fee, have any con-
versation with him in relation to any division, or
giving him any part of any fee which you re-
ceived from the French restaurant keepers?"

"Q. Did you go to the French restaurant
keepers, or did they come to you?"

"Q. Did you tell defendant in any conversa-
tion that you had ever threatened any restaurant
keeper that if they did not pay you money their
licenses would be held up?"

"Q. Now I will ask you this, Mr. Ruef, if
you are not now giving your testimony under
the expectation of immunity — complete im-
munity ?"

The answers to these and dozens more of
equally pertinent inquiries were one and all shut
out by the court (and mark the ruling) as "not
being proper cross-examination." And to what
end? Plainly the purpose was twofold: first, to
prevent disclosures of the bargain which had
been entered into between Ruef, the prosecutors
and the judge, which bargain would injure them
and reduce the weight of Ruef's evidence ; and,
second, to exclude from the case any word of
evidence which might help the defendant. Jef-
fries was doubtless an abler judge, but his meth-
ods were not superior in blunt directness.



THE SCHMITZ CASE 149

Such then was the trial. Its naked shameless-
ness is here but half revealed. The case will be
found reported in 7 Cal. App. R., page 330,
where the court comments on the matters here
set forth. Expressed though these comments are
in language characteristic of the philosophic calm
peculiar to the Bench, the arraignment of the trial
judge has a sting that the average indignant lay-
man might strive in vain to inflict. It is well to
emphasize this citation and again to direct the
reader to People v. Schmitz, 7 Cal. App. R. 330,
for none of the comments will be found in
the decision of the Supreme Court. In the
petition for hearing before that court, the prose-
cution dropped even the pretense of defending
its own conduct or that of its judge; it voiced no
protest against the rulings and denunciation of
the Court of Appeal upon any of these matters ;
by its silent acquiescence it admitted the truth of
the charge almost openly made by the Court
of Appeal, that with the aid of a subservient
judge the prosecutors had at every point want-
only denied a defendant at the bar of a criminal
court in the State of California every right to a
fair and impartial trial guaranteed him by the
Constitution and statutes of the commonwealth.

Again it is important that these matters should
be understood, for they go far to explain why
in the campaign of abuse soon to follow both
higher courts were deluged with vituperation by
the Graft Prosecution press, while the trial



X



150 THE REGENERATORS

judge was posed, limned and painted as an up-
right and able jurist, struggling heroically within
the law to uphold the people's rights.



Thus was Schmitz convicted and put out of
office. He took his appeal. While it was pend-
ing Ruef continued to live in charge of the
prosecution's elisor and eight guards at the
city's expense. Week by week, month by month,
as has already appeared, he was brought to the
court before whose bar he had pleaded guilty, and
on each occasion, without reason shown or sug-
gested, his sentence was postponed. Daily, with
ever increasing vociferation, the graft prosecutors
declared that they had not promised Ruef im-
munity, but they vouchsafed no other informa-
tion to the restive public, and as yet nothing was
known of the immunity bargain.

Such was the situation when in January, 1908,
the District Court of Appeal rendered its decision
reversing the judgment in the Schmitz case. It
was received with perfect equanimity by the
public because the public knew that a reversal
was inevitable. Much more singular is the
fact that it was received with equal complaisance
by the graft prosecutors and their press, the dis-
trict attorney expressing doubt as to whether an
application would ever be made to the Supreme
Court for a reconsideration. Then shortly after
the storm broke. The Bulletin invited the mob



THE SCHMITZ CASE 151

to lynch the three judges of the Court of Ap-
peal, and daily published their pictures and