I was going through an FBI list looking to see if I could find any information on Arthur Flegenheimer. I didn’t find it under that name. So I went looking under the pseudonym he used. I didn’t find him there. I thought perhaps because he was a big gangster back in 1935 the list wouldn’t include people back in those days.
I checked for Baby Face Nelson who was killed in 1934, he wasn’t there. I found Kate “Ma” Barker who was killed in 1935; Pretty Boy Floyd killed in 1934; John Dillinger also killed in 1934.
You may know of Flegenheimer as Dutch Schultz who was a big time hoodlum and bootlegger out of New York City. I was looking for him because I heard that a criminal jury did for him what one had done for OJ Simpson, who by the way is back in the news.
I think of him because I wrote about jury nullification yesterday Schultz was considered public enemy number # 1 for a while. The government was unable to get him for the crimes he committed so it went after him for not filing income taxes for three years. He went on the lam for almost two years during which time he offered the government $100,000 to drop the charges. It wouldn’t so he surrendered.
His trial began in Albany. The prosecutor was the man who convicted Al Capone for the same thing. The government presented a strong case that went on over a week. Schultz’s defense that he didn’t think he had to pay taxes on illegal income lasted three hours. After a day and a half deliberation the jury was hung.
The case was scheduled for a retrial in Malone, NY., a small town ten miles south of the Canadian border. The trial lasted two weeks. The jury came back with an acquittal. It seemed for a week before the trial Schultz had been in town picking up the bar tab for all the locals.
Just before the jury left the courtroom the federal judge Frederick H. Bryant presiding over the trial said to it: “you have labored long and no doubt have given careful consideration to this case. Before I discharge you I will have to say that your verdict is such that it shakes the confidence of law-abiding people in integrity and truth. It will be apparent to all who have followed the evidence in this case that you have reached a verdict based not on the evidence but on some other reason. You will have to go home with the satisfaction, if it is a satisfaction, that you have rendered a blow against law enforcement and given aid and encouragement to the people who would flout the law. In all probability, they will commend you. I cannot.”
Jury nullification is something not much liked by the judges as Judge Bryant indicated yet is something they can’t do anything about. The California Supreme Court wants the judges to instruct jurors to turn in other jurors who say they won’t follow the law. The judges don’t like it because as I’ve noted several times “the law is what the judges say it is.” Even though the law can change, the judges want the jurors to stick to the law as told to them today, not that which they may have lived under previously or what it will be tomorrow.
We tend to think of jury nullification as something new when it isn’t. In the South at one time almost all white juries would acquit a white man charged with killing a black man. Yet at the same time, during the Underground Railroad days when the runaway slaves were tried before a jury under the Fugitive Slave laws most juries in the northeast would refuse to find the slave had to be returned.
Then there’s a much simpler case that occurred on Nantucket several years ago. There a man stood before a jury charged with drunk driving (operating under the influence). The evidence was truly overwhelming. Around 10:30 p.m.he put his car into a fence. He had been coming from a party. When the cops came he got out of the car carrying a pint of Old Granddad. He staggered forward mumbling incoherently. It was all on police tape. He was held up by two cops at the booking desk. He admitted he had been drinking since early afternoon. The jury was out a half hour and came back with a not guilty.
It seems the defendant was the guy who drove the trash truck on the island. The jurors were dependent on him to pick up the trash twice a week during the summer. None would dare deprive him of his driver’s license.
We might also have seen that in Boston in the trial I write about in my book Don’t Embarrass The Family. There a jury had a corrupt FBI agent John Morris and three gangsters Martorano, Weeks and Salemme testify. It refuse to convict Connolly on any evidence that was not independently corroborated by non-gangsters except in one instance involving the crying lying agent Morris who told about a double stacked case of wine with a thousand dollars in it that Connolly had given him.
When I heard Martorano testify I know I felt ill seeing a man who murdered twenty people joking in court and acting as a wise guy. It turned my feelings against the government thinking it would have allied itself with such a man. This is a real danger that faces the prosecution. Neither Flemmi nor Martorano have any redeeming features. They ooze corruption and filth but still think of themselves as wise guys. Their acts might play all right in some places but it’s not something that will endear themselves to a Boston jury.