Chapter X: Fight to Evade Trial

The indictments against Schmitz and Ruef were returned November 15. Schmitz reached San Francisco on his return from Europe on November 29.[133] He at once joined with Ruef in the fight to prevent the issue raised by his indictment being presented to a trial jury.

The two defendants were to have been arraigned on December 3, but at their earnest solicitation arraignment[134] was continued until December 6.

On that day the plans of the defendants became apparent. It was seen that they would divide the defense, demanding separate trials; and it was quite as evident that their first move would be an attack upon the validity of the Grand Jury.

Attorneys Frank C. Drew and John J. Barrett appeared for Schmitz, while Ruef was represented by Samuel M. Shortridge and Henry Ach. At the close of the proceedings, Ach asked that subpoenas be issued for the members of the Grand Jury to appear in court the following Monday to testify for the defendants. This meant the examination of the Grand Jurors for bias. The long technical fight to disqualify the Grand Jury had opened.[135]

In the attack upon the Grand Jury, Joseph C. Campbell joined with Schmitz's attorneys, Drew and Barrett, while Frank J. Murphy and Charles H. Fairall appeared with Shortridge and Ach for Ruef. Ach, in moving to set aside or quash the indictments, stated that the motion was made for Schmitz and Ruef jointly, but that the defendants reserved the right to plead and to be tried separately.

Ach's motion was based on nineteen counts. The point most insisted upon was that Grand Juror Wallace Wise was disqualified because of his having been on a petty trial jury panel during the current year. Wise, being thus disqualified, Ach argued, the whole indictment failed as much as though the whole nineteen Grand Jurors were disqualified.[136]

Judge Dunne, after a three days' hearing, swept aside the multitude of technical objections which the various attorneys for the defense had advanced. In particular did he refuse to declare the whole nineteen Grand Jurors disqualified, because of the alleged disqualification of Juror Wise.

The prosecution had gained another point in its fight to bring the defendants to trial on the merits of their cases.

But the attack upon the Grand Jury had scarcely begun. After Judge Dunne's ruling, the nineteen Grand Jurors were to be put on the stand and examined one by one for bias.[137] The defense went further, and had Rudolph Spreckels up to question him as to his motives in guaranteeing a fund for the investigation of graft conditions.[138] District Attorney Langdon was also placed on the stand to be examined as to his motive in appointing Heney his assistant. He denied most emphatically that he had appointed Heney for the sole purpose of instituting criminal proceedings against Ruef and Schmitz.

The examination of Grand Jurors, prosecutors and citizens lasted from December 17 until January 22. On the last named date, Judge Dunne denied the motion to set aside the indictments for bias. The prosecution had gained another step toward bringing the defendants to trial.

Judge Dunne stated that he was ready to set the cases for trial the next day. But the defendants had another delaying play. They demurred to the indictments. The demurrers were not disposed of until February 18.

In the meantime, the defense had made several complicating moves. The first of these was an application to Judge Graham to have the case against Schmitz transferred from Judge Dunne's court. At the same time Schmitz surrendered himself to the Sheriff, and applied to the Supreme Court for a writ of habeas corpus, and a writ of prohibition, setting up the points already raised in Judge Dunne's court against the indictments. The Supreme Court finally decided against Schmitz.

But there remained another way of having the case transferred from Judge Dunne's court. The law governing changes of venue could be changed by the Legislature. The 1907 Legislature had convened early in January. A measure was introduced in both Senate and Assembly under the terms of which a defendant in a criminal action was permitted to secure a transfer of his case from one court to another by merely filing affidavit of his belief that he could not get fair trial in the court in which his case was pending.[139] The measure was known as the "Change of Venue Bill." Its chief supporter in the Legislature was George B. Keane.

Keane was not only clerk of the Board of Supervisors, but he was a member of the State Senate representing a San Francisco district. Keane championed the "Change of Venue Bill."[140] The measure passed the Assembly, but failed of passage in the Senate. Ruef in his efforts to escape trial before Judge Dunne had lost again.

Early in February, when the efforts of Schmitz and Ruef to evade trial were being pressed the hardest, agitation against the Japanese gave Schmitz opportunity not only to absent himself from the State, thus bringing the proceedings so far as they applied to him, to a standstill, but to restore his prestige. Schmitz was quick to avail himself of the situation.

The question of admitting Japanese to California schools was then under consideration at Washington. A request was extended the San Francisco Board of Education, through California Congressmen, that the members of the board go to Washington for conference with the government authorities. Members of the board held consultation with Schmitz, after which word was circulated about the State that in defense of the public schools against the Japanese, Schmitz must, on behalf of San Francisco and California, go to Washington.

A telegram was received from Congressman Julius Kahn, a close supporter of Ruef and Schmitz, who represented a San Francisco district in Congress, stating that "at the request of the President and Secretary of State we ask you to come here immediately for a conference with them and the California delegation."

Schmitz started for Washington on February 3.[141] He was absent from San Francisco until March 6. He did not, however, as had been predicted, return amid popular acclaim. The outcome of the Washington negotiations was not satisfactory to California. There was popular belief that the Mayor's mission had failed. At the State line Schmitz received the startling word that Ruef was a fugitive from justice; that Sheriff O'Neil had failed to discover the fugitive's whereabouts and had been disqualified. During the month of his absence from San Francisco, the Mayor was soon to learn, events of tremendous importance to himself and to his administration had occurred.

FOOTNOTES:

[133] On his arrival in New York after being indicted for extortion
in the French Restaurant cases, Mayor Schmitz in an interview
widely published at the time gave his attitude toward the
French Restaurants. The Mayor explained that these restaurants
had existed so long in the city that they had become a
recognized adjunct of a gay life of a gay town. He had not
favored their suppression, and whenever the Police
Commissioners agitated the revoking of their liquor licenses,
he had opposed them.

"The French restaurants did no great harm," he is quoted as
saying, "and to destroy them would be to ruin the men who had
invested money in them." The character of some of the heavy
investors in these establishments was brought out in the
report of the commission appointed by Mayor E. R. Taylor to
ascertain causes of municipal corruption in San Francisco, as
disclosed by the investigations of the Oliver Grand Jury. The
report set forth:

"The business (of the French restaurants) is very prosperous,
and, as is usual, the landlord shares in its prosperity.
People of social prominence were known to accept a portion of
the profits of such establishments, through the extremely
liberal rentals paid, and the system is received with easy
toleration. One of the largest of these assignation places was
located on a prominent corner of the downtown shopping
district where hundreds of women daily passed its doors. The
building, five stories in height, had four stories devoted to
the private supper bedrooms. The land was owned in trust by
one of the largest, if not the largest, trust company in the
West. A lease was sought and obtained by a man notorious in
the line of business above described; the building was
constructed by the trust company according to plans
satisfactory to him for this purpose, and the enterprise was
conducted there for seven years until the building was
destroyed by fire. The significant thing about such a
transaction is, not that there are people who are willing to
accept money from such a source, or financiers willing to put
trust moneys to such uses, but that the facts, though well
known, did not seem to detract in the slightest from the
social recognition accorded to the persons so taking a share
of the profits, while the officer of the trust company which
made the lease of that particular house situated in the
shopping district, was appointed a regent of the State
University."

[134] During the reading of the first of the five indictments,
Schmitz stood, but Ruef remained seated. When the second
indictment was read, both the defendants kept their seats.
Heney demanded to know what was going on. Judge Dunne
announced that the arraignment must proceed as in ordinary
cases. During the reading of the remaining indictments both
defendants remained standing, but Ruef kept his back turned
toward the court. Commenting upon this incident, the
Chronicle, in its issue of December 8, 1906, said in an
editorial article:

"In Judge Dunne's court a rogue on trial insolently refused to
stand and be arraigned like any other criminal, apparently on
the assumption that a political boss was above the courts. He
was finally compelled to stand and let his shame be seen. He
sat, however, through one arraignment, and the people have
reason to complain that the trial Judge did not earlier
enforce the respect due to the majesty of the law. In another
instance there is a more grave offense. A lawyer presumed to
bandy words with the Judge on the bench, and is reported to
have said to the Court in a loud and insolent tone, evincing
evident disrespect, 'And I have heard considerable oratory
from you.' Nothing was done about it, and Judge Dunne owes it
to the people to explain why he did not promptly commit the
insolent fellow to jail. The Judge on the bench represents the
majesty of the law. He sits for the people in solemn judgment
on offenders. He is expected to enforce due respect for the
tribunal, and for that purpose is invested with the power of
summary punishment for contempt. Our alleged administration of
criminal justice is disgraceful, and the evil permeates the
entire machinery, from the policeman on his beat to the
highest tribunal."

[135] The attack upon the Grand Jury had, however, been begun the
day before, and was progressing in another department of the
court even as Ruef and Schmitz were arraigned. Investigation
into graft conditions had by this time got beyond the
tenderloin. Several minor indictments had been brought.
Supervisor Fred P. Nicholas had been indicted for accepting a
bribe of $26.10. As chairman of the Public Building and
Grounds Committee, the Grand Jury found he had accepted a 10
per cent. commission on $261 worth of furniture purchased for
the city. Several witnesses had been indicted for perjury in
connection with the graft investigation. That the
investigation was going far was now conceded. The defense
concentrated to disqualify the Grand Jury. On behalf of
Nicholas and Duffy, the Grand Jurors were haled into Judge
William P. Lawlor's court December 5, the day before Schmitz
and Ruef were arraigned. The defendants were represented by
Frank J. Murphy, who was to play a prominent part in the graft
defense. The following taken from the examination of Foreman
B. P. Oliver, as printed in the San Francisco Chronicle of
December 7, is a fair sample of the nature of the inquiry:

"Did you say to anyone that this is just the beginning of the
investigation of municipal corruption?"

"I have said that from the statements I have heard in the
Grand Jury room that the corruption of the municipal
administration was so great that the present Grand Jury could
hardly expect to make any impression upon it. As to when and
where I made that statement I cannot tell," replied Oliver,
who proceeded: "As to myself, the mere testimony I have heard
in the Grand Jury room has filled me with horror and disgust."

"Does it fill you with such horror that you believe everyone
connected with the administration is corrupt?" asked Lawyer
Fairall of counsel for the defense. "I do not believe anyone
to be corrupt until he is proved to be so."

"Could you act fairly and impartially, as a Grand Juror, while
having your present feeling of horror and disgust?" "Yes,
absolutely so, for I have a conscience."

"You feel that your conscience would enable you to act
fairly?" "I do. If I erred at all it would be on the other
side, so as to be sure that I did the accused no injustice."

This examination went on for several days. The same
examination of the Grand Jurors followed in the case of Ruef
and Schmitz, and was repeated for the third time on behalf of
public-service corporation agents who were indicted later.

[136] The question of the eligibility of Grand Juror Wise was
finally decided by the State Supreme Court in the matter of
the application of A. Ruef for a writ of habeas corpus (150
California, p. 665.) The Court held that the presence on the
Grand Jury of a member who had served and been discharged as a
juror by a court of record within a year of the time that he
had been summoned and impaneled to act as a grand juror does
not affect the validity of an indictment found by the Grand
Jury.

[137] The Chronicle, in its issue of December 18, 1906, said of the
attack upon the Grand Jury:

"The fact that the felons whom we are trying to convict are
officials has nothing to do with their demonstration of the
fact that it is impossible, under the laws, to put thieves in
the penitentiary, when there is a large band rounded up at one
time and they all fight. Under our laws the half-dozen rascals
who have already been indicted for their share in the orgy of
official plunder in this city can block our criminal courts.
The disgraceful farce of putting the Grand Jurors and the
District Attorney on trial instead of the scoundrels who have
been indicted can apparently be protracted for weeks. Happily
the Legislature meets early next month, and if it does not put
a speedy end to it we are mistaken. We are getting an object
lesson which, perhaps, was needed. The whole miserable
machinery of obstruction must be swept away. Whoever is
indicted by a Grand Jury must go to trial, unless, in the
opinion of the trial Judge, extraordinary conditions indicate
that some inquiry should be made to be conducted solely by
himself. The public will be satisfied with nothing short of
that, nor will it be satisfied with that. The abuses of appeal
must be ended."

[138] Mr. Spreckels testified in part as follows: "I am not
interested in the downfall of any man, either Eugene E.
Schmitz or Abraham Ruef. I did guarantee the sum of $100,000
to detect any wrongdoing whatsoever in the city of San
Francisco. I indicated that to Mr. Heney. I cannot recollect
as to dates, but I think it was a short while before the
commencement of these proceedings. It was since the calamity
of April 18. I had been interested for a long while before
that in starting an investigation.... I did not guarantee to
Mr. Heney $100,000, but I did guarantee that for the purpose
of investigation for the collection of evidence, I would
personally guarantee $100,000 for the expenses.... My object
was merely to ascertain the truth or falsity of things that
had been generally stated. Some of the things I had known of
myself. I knew there was an effort made in the city here of
doing things in the past. Mr. Ruef, himself, had had a
conversation with me which indicated that he was in a position
to do certain things, and knowing these things I was willing
that an investigation should proceed to the bottom, and to
furnish the money necessary to collect the evidence. I have
stated publicly relative to this fund of $100,000."

[139] The San Francisco Chronicle, in its issue of January 17, 1907,
said of the Change of Venue bill:

"Assemblyman Grove L. Johnson of Sacramento, and Senator L. A.
Wright of San Diego, have introduced identical bills which
provide in brief, that in any criminal trial the accused may
displace the Judge upon his mere affidavit that he 'believes
he cannot have a fair and impartial trial.' Upon the filing of
such an affidavit the services of some other Judge must be
secured, provided that in counties having more than one
department of the Superior Court the case shall be transferred
to some other department of the same county. The bill provides
that the act shall take effect immediately upon its passage.
The obvious intent of the law is to enable the indicted
boodlers of this city to select the Judge who shall try them,
to set aside all that has thus far been done to get them
before a jury and have their cases retried from the
beginning."

[140] Ruef had, as early as 1904, secured a hold on the State
Legislature, by putting up and electing a Union Labor party
legislative ticket. "I told the legislators," said Ruef in a
statement published after he had entered San Quentin prison,
"to vote on all labor questions and legislation directly
involving labor interests always for the labor side. I told
them on all other questions to follow the Herrin program.
Herrin was appreciative. He expressed his sense of
obligation."--Abraham Ruef's "The Road I Traveled," published
in San Francisco Bulletin, July 6, 1912.

Keane, at the trial of The People vs. Ruef, No. 1437, admitted
that he had supported "The Assembly bill providing for changes
of place of trial in certain cases," at the special request of
Ruef. See transcript on appeal, part 3, book 1, pages 442-3.
Keane was also active in the advocacy of other measures
changing the law governing criminal cases. One of these
practically forbade public comment on a criminal trial from
the impaneling of the Grand Jury until the rendering of the
verdict. Commenting upon this anti-publicity bill, E. H.
Hamilton, in a dispatch from Sacramento to the San Francisco
Examiner, published in that paper March 5, 1907, said: "This
bill had been sneaked through the Senate the other night when
no one was paying any attention, but Senator Boynton moved to
reconsider the vote by which the bill was passed, and brought
up the matter to-day, asking that the bill be given a free
discussion before it was acted upon. He showed that it was
directly in opposition to the Constitution of the United
States and the Constitution of the State, because it was aimed
directly at the freedom of the press and intended to prevent
newspapers from publishing accounts of criminal trials.

"Senator Sanford of Mendocino said that it was an attempt to
muzzle the press and to prevent people from ascertaining what
was going on in criminal lawsuits, but the Senate refused to
reconsider the vote by which it had passed the
unconstitutional bill."

Keane also pressed an amendment to the codes to prevent
stenographers and bookkeepers testifying against their
employers. During the discussion in the Senate Committee on
the Change of Venue bill, Keane offered an amendment to make
this measure take effect immediately.

[141] On the way across San Francisco Bay to take the train at
Oakland, in the words of newspaper reports of the incident,
members of Mayor Schmitz's personal following who accompanied
him, "were frankly delighted with the prospect of the indicted
Mayor returning from the national capital covered with glory,
and acclaimed the savior of the country from a war with
Japan."

Ruef regarded the incident cynically. "As soon as Schmitz got
aboard that train," said Ruef on the day of the Mayor's
departure, "the nation was saved."