CHAPTER XXVIII.

DISMISSAL OF THE GRAFT CASES.

At the time of Mr. Fickert's election to the District Attorney's office, the second trial of Patrick Calhoun for offering a bribe was well under way. As at the other graft trials, there had been delays [457] so that after five months the jury was only half complete. That the trial could not be finished before Mr. Fickert assumed the duties of his office became evident. The case was, for that reason, on December 9, continued until January 10, in order that Mr. Fickert might participate in the selection of the trial jurors. But on that date, Mr. Fickert, who had been in office only two days, very frankly admitted himself to be unfamiliar with the facts, and not prepared to go to trial. Further continuance was accordingly granted until January 31, and then until February 7.

In the meantime former Supervisor James L. Gallagher, the pivotal witness in the case, had disappeared. Gallagher was known to have been in San Francisco for some three weeks after Fickert's election. About December 1 he dropped out of sight. He was supposed to have gone to Europe.[458]

On February 7, Mr. Fickert moved the dismissal of the case pending against Mr. Calhoun on the ground that there was not sufficient legal and competent evidence to warrant him submitting the case to a jury.[459]

Judge Lawlor denied the motion. In denying it, Judge Lawlor stated that in the view of the court the action should be tried by a jury and a verdict should be rendered by a jury, if that were possible, in the full operation of the law.

Fickert stated in the discussion which followed that he wanted his motion to apply to all the other graft cases of the same class as Calhoun's, with the exception of the defendants Ruef and Schmitz. But here again did the Judge deny the District Attorney's request.

After Judge Lawlor's ruling, Calhoun's attorneys announced themselves ready to proceed with the trial of the case. Fickert stated that he would be ready in a week. Judge Lawlor thereupon questioned Fickert very closely about the absent witness, Gallagher. Fickert gave assurance that diligent hunt was being made for the witness.

The questioning of the District Attorney was continued ten days later when the case again came up. Judge Lawlor asked Fickert to tell definitely whether he proposed to put the issue before a jury in the absence of his material witness.

Fickert replied that Gallagher's absence greatly weakened the State's case, and that in his belief certain facts could not be proved without Gallagher being present. But as for that, Fickert insisted that even with Gallagher present he did not believe that the State could make out a case.[460] Nevertheless, he continued to insist that he was ready to proceed to try the action even in the absence of the witness Gallagher.

But Judge Lawlor announced that he did not propose to proceed with the trial of the action:

(1) If a material witness were without the jurisdiction of the court.

(2) If the court did not believe that the cause were to be prosecuted with the vigor and fidelity that the law contemplates.[461]

Fickert also stated his position. He insisted that he did not believe that any evidence had ever existed against the trolley-graft defendants Abbott and Mullally, and did not believe it to be his duty as District Attorney to prosecute men against whom there was no evidence. Fickert even attempted to commit Judge Lawlor to this proposition, by stating that the Judge in chambers had confessed as much. This Judge Lawlor denied. Mr. Fickert's assistant, Mr. Berry, had been present during the discussion in chambers between Mr. Fickert and Judge Lawlor, but Mr. Berry failed to sustain his chief's contention.[462]

"In these cases, the cases against Mr. Abbott and Mr. Mullally," said Fickert, "I shall never proceed in them because there is absolutely no evidence which at all gives even a suspicion."

In respect to the other cases, Mr. Fickert announced that he intended to take the same course that he had in those under discussion, and stated that if the Judge so desired he would advise him before hand as to which of the cases he intended to make a motion for dismissal.

"In view of the statement you made on February 7,"[463] replied Judge Lawlor, "the Court will not feel called upon to grant any application looking to a dismissal of any of those cases. The Court will finally deal with them in the manner prescribed by the law. And if that situation is not reached so that the Court can proceed with the trial, the Court will be under the solemn obligation of setting down in its minutes the reason why a trial has not been had in any particular instance, and why cases are dismissed or disposed of without the trial of the general issue. The Court cannot escape its responsibilities. I have pointed out that under the law it is for the Court to say finally what shall become of cases that are not pressed to conclusion, and when the Court does that it must give its reasons--the law says so. In this State, since the formation of the government therein, the power has not for any considerable length of time lodged in the District Attorney to dispose of actions; that matter is confided to the Court. Counsel will be doing injustice to his own position if he assumes that the Court has any other attitude than to finally dispose of these matters according to the law without doing injustice to any person, either to the District Attorney or any person who is unfortunate enough to be involved. But when the Court comes to write down its action it will be based upon what it believes to be the fact and upon nothing else."

Fickert replied that he was ready to proceed with the matter. To this Judge Lawlor reiterated that the Court was not going to permit the District Attorney to proceed in the absence of a witness, who, according to the District Attorney's own statement, was material.[464]

Nor did the earnest plea of attorneys for the defense for dismissal move Judge Lawlor. In the absence of the material witness, Gallagher, he continued the case, on the Court's own motion, until April 25.[465]

On that date, Calhoun's attorneys moved for dismissal of all the indictments pending against their client upon the ground that his trial had been postponed and continued for more than sixty days without his consent and over his objection and exception.

Fickert submitted the motion, fortifying it with a statement that he did not believe that the District Attorney's office would be justified in asking continuance until Gallagher's return.

Judge Lawlor postponed determination of the motion until July 14.[466] His ruling was announced on August 3.

Judge Lawlor went exhaustively into the situation presented.[467] He pointed out that a material and indispensable witness was absent from the State; he stated that the Court was called upon to intervene "because the District Attorney has at practically every turn followed the lead of these defendants"; he held that through the influence of unusual agencies, so far as the graft cases were concerned, the law had broken down, and that the crimes charged are of the most serious nature, "because such criminal activity tends to sap the very foundations of government"; he insisted that before the indictments should be finally disposed of every reasonable effort should be made to get at the truth of the situation.

"The disposition of grave charges other than on their merits," he concluded, "is not to be encouraged and should not be allowed, except in the face of a strict legal necessity." He continued the cases until August 29.

Stanley Moore, one of Calhoun's attorneys, when Judge Lawlor had concluded, demanded that he be permitted to reply. This demand was refused.

There followed one of the most extraordinary scenes ever recorded of a court of justice. The defendant's attorneys, the District Attorney, and even the prisoner at bar, openly and contemptuously defied the Judge on the bench.

Stanley Moore charged him with "doing politics from the bench that you stultify in your occupancy." A. A. Moore, another of Calhoun's lawyers, accused him of being "a partisan, a bitter partisan, and doing dirty politics."

"And," Stanley Moore hastened to add, "have been before these indictments were ever filed in this court, as the events of that midnight deal in which you participated on April 29 amply demonstrate."[468]

District Attorney Fickert, in the face of the Court's direction that he take his seat, denounced "the statements and aspersions you have tried to cast upon me" as "false in each and every particular."

A third of Mr. Calhoun's attorneys added his denunciation. Mr. John Barrett decried the proceedings as "infamous."

Judge Lawlor sentenced Calhoun's three attorneys to serve five days each in the county jail for contempt and ordered the Sheriff to take charge of them.

But the extraordinary scene was not concluded. The prisoner at the bar had not yet been heard. Calhoun took the floor to tell the judge on the bench that should the Judge send him (Calhoun) to jail for contempt "it will be heralded all over this country as an honor."[469] The Court attempted to interrupt the angry defendant. The interruption was ignored. The prisoner at the bar was exhibiting himself as more powerful in San Francisco than the Judge on the bench. When he had said his say, he took his seat.

The trolley-graft cases dragged along for more than a year after this astonishing scene in Judge Lawlor's courtroom.[470] The defendants applied to the Supreme Court in habeas corpus proceedings, but failed to secure interference. They then went to the State District Court of Appeal, where they secured a writ of mandate directing Judge Lawlor to dismiss the indictments in the cases of the trolley-graft defendants.[471] The District Attorney's office announced to Judge Lawlor that the District Attorney had no intention of prosecuting an appeal from the judgment and order of the District Court.

Judge Lawlor thereupon dismissed the cases as directed. He also included the cases against Frank G. Drum, Eugene de Sabla and John Martin, which were governed by much the same considerations as the trolley cases. Four years and a half had passed since the indictments had been brought. Little by little, the influence of those of the community who were for law and order and impartial law enforcement had been sapped and broken down. The prosecution had been worn out; the community had been worn out. The defense had shown greater staying qualities than either peace officers or community. It had been pretty thoroughly demonstrated that convictions could not be had.[472]

The dismissal of the trolley-graft and gas-graft cases was the final breaking down of San Francisco's efforts to have the cases tried upon their merits. To be sure, the indictments against the telephone-graft defendants and the prizefight-graft defendants, and against Schmitz and Ruef still stood. Glass, a telephone-graft defendant, had been convicted, but the Supreme Court had reversed the decision on technicalities.[473] The absent witness, Gallagher, was not a material witness in the Glass case. But when along in August, 1912, a year after the dismissal of the gas and trolley-graft cases, Glass's case was called, it was found that important witnesses had disappeared. The incident was taken by the papers, not as a reflection upon the community, but as a joke on Judge Lawlor.[474] The Glass cases were finally dismissed.

Former Mayor Schmitz in February, 1912, was brought to trial. Ruef was brought over from San Quentin prison to testify against him. But Ruef refused to testify unless the Ruef indictments were dismissed. This, Judge Dunne,[475] before whom many Ruef indictments were pending, refused to do. Ruef did not testify. Schmitz was acquitted. The other indictments against Schmitz were eventually dismissed.

The same course followed in the cases of the other graft defendants. The graft defense had beaten San Francisco; its record of shameful success was complete.

FOOTNOTES:

[457] The second trial of Patrick Calhoun (No. 1437) was begun July 19, 1909. Owing to the illness of one of Mr. Calhoun's counsel, the trial was suspended on August 16th, and resumed September 30th. The following day the defendant secured further continuance until November 15th, upon the ground of the pendency of a municipal political campaign. After the election the trial was resumed. On December 9th, it was, by agreement between the parties continued until January 10th, when the new District Attorney should be in office.

[458] The motives which prompted Gallagher to flee the city are among the undetermined elements of the graft cases. Perhaps recollection of his attempted assassination had something to do with it. It may be that the defense, which had done so many extraordinary things during the course of the graft trials, made it worth his while to go. Gallagher is known to have been plentifully supplied with money while he was away. An attempt was made to create the impression that agents of the Prosecution had been instrumental in getting Gallagher out of the State. But the attempt, while it confused the situation somewhat, was not taken seriously. When in August, 1911, Judge Lawlor dismissed the indictments against the alleged bribe-givers in the trolley case, he took occasion to say: "I am more convinced now than I was when these same motions were urged more than a year ago, that James L. Gallagher is remaining out of this jurisdiction for a specific purpose. The future will make that point entirely clear. When his importance as a witness in any of these so-called graft cases has ceased there is no doubt that James L. Gallagher will be again in our midst. If I were able to lay the responsibility for that situation upon any individual or set of individuals I repeat that appropriate proceedings would have been instituted to have the law redressed in that behalf."

Judge Lawlor was right. After the dismissal of the graft cases Mr. Gallagher returned to San Francisco.

To the intimation of District Attorney Fickert that Gallagher left the State to embarrass the District Attorney's administration, Judge Lawlor on one occasion said in an opinion: "That the former administration may have distrusted the official intentions of the District Attorney toward these indictments might be assumed from all the surrounding circumstances. But it does not seem probable that the former administration would induce a material and indispensable witness to leave the State and thereby make it easy for the District Attorney to secure a result which otherwise might entail serious embarrassment. So far as the showing is concerned there is no tangible proof tending to support the charge of the District Attorney, nor is there any proof which would justify such an inference."

[459] Fickert's motion had been prepared in advance and was read to the court. "Since the calling of this case on January 10th," he said, "I have made a thorough and careful examination of the evidence left in the District Attorney's office by my predecessor, Mr. Langdon, and he informed me on my accession to the office, that he had delivered to me all the evidence of every kind and character in his possession or under his control in this case. I have also examined the transcript of testimony given at the former trial of this defendant; besides this, I have made independent search for further evidence. These examinations convince me that there is not sufficient legal and competent evidence to justify me, as a sworn officer of the law, to present this case to a jury.

"My opinion is confirmed by the fact that 42 out of 48 jurors sworn to try this defendant and the defendant, Tirey L. Ford, upon the same state of facts, voted 'Not Guilty.' I, therefore, 'In furtherance of justice,' move the dismissal of this indictment, on the grounds that the evidence is wholly insufficient to warrant another trial of this case."

[460] Judge Lawlor was also careful to make clear that if the court proceeded with the formation of a jury, jeopardy would attach to the case. He also pointed out that the statute of limitations had run against the alleged crimes. The following is from the transcript, the questions being directed to Mr. Fickert:

The Court: You are aware that if you proceed to form a jury to try this issue, and the witness does not appear, that jeopardy has nevertheless attached and that the defendant will be entitled to ask for his deliverance at the hands of that jury, whether that witness is produced or not.

"Mr. Fickert: Yes, I am aware of that, if your Honor please.

"The Court: And you are aware further that the alleged criminal act set up in the indictment is outlawed within the meaning of Section 800 of the Penal Code; that is to say, that more than three years have intervened since it is claimed that that act was committed.

"Mr. Fickert: That is correct, if your Honor please.

"The Court: The witness, James L. Gallagher, gave testimony in the trial of case 1436 against this defendant. You are aware that the testimony relating to an indictment cannot be read to a jury on a retrial of the action; in other words, that if James L. Gallagher does not appear in this trial his testimony cannot be presented to the jury."

Fickert suggested that counsel might stipulate that the evidence be read. But counsel for Mr. Calhoun hastened to assure Mr. Fickert that counsel would stipulate to nothing of the kind.

[461] "At the present time," said Judge Lawlor in making this announcement, "it is the intention of the Court to deal with this matter, so far as the absence of that material witness is concerned, and to suspend judgment as to the ultimate attitude of the District Attorney in respect to this and other causes before the Court. I do not intend to sit here and preside over a trial if for any reason, whether it seems sufficient to the District Attorney or not, the Court reaches the conclusion that the case is not being prosecuted in good faith. The Court, in pointing out the duty of the District Attorney on February 7th, was not inviting a suggestion that we should proceed to trial without regard to the outcome of that trial or to its particular features or the manner in which it should be tried. The Court will try no case, it will not consume its own time, it will not consume the time of others, it will not allow the expenditure of public money for the mere purpose of going through the forms of a trial. The Court must feel in the end that the people are represented. Now, what its final view shall be as to the District Attorney will be announced when the Court deems that announcement pertinent and proper. The Court has its own views as to what may be done within the exercise of its prerogative in the event that it does not feel that the people are represented, and will act upon its own judgment when that time arrives. At this time the witness being absent from the jurisdiction of the Court, the Court points out to the District Attorney his duty under Section 1052 of the Penal Code, to move for a proper continuance of this action until the Court can be advised as to whether or not that witness can be produced."

Later, when Fickert suggested that all criminal causes be transferred to some other department where the judge might be of a different opinion, Judge Lawlor said:

"I have had no occasion to find fault with your acts in respect to any other causes that have been brought before this Court. I am endeavoring to have your mind concentrated upon one thing, and that is the matters which are before this Court, and for the prosecution of which you, under your sworn oath of office are required to give your full attention to. Your own statement in support of your motion to dismiss this case evinces in my judgment a disposition not to do your duty. However, I still say that this matter I bring to your attention, and ask you to give full reflection upon the matter. I have no desire in any manner to hamper you. The process of this Court is at your disposal at all times, in all causes, and if any person or set of persons be found to be interfering with the due administration of Justice you will have a full hearing before this Court in order that you shall not be so hampered. Your statement concerning these cases is calculated not alone to affect the fortune of these undetermined cases, but it is well calculated to affect the disposition of the other causes and other charges wherein convictions were had against other persons growing out of this alleged transaction, and which cases are now on their way for a determination to the courts of appeal in this State."

[462] "I think your Honor well knows," Fickert had said, "that certain defendants in this particular class of cases, that there have not been produced here in Court, and I do not think ever existed, any evidence against them. I allude to Mr. Abbott and Mr. Mullally. And I so informed you in your chambers, and you in words confessed that proposition."

Judge Lawlor took this statement up. The following is from the transcript: "The Court: Now, before you pass to those other cases, in regard to these two cases do you make the statement that I made any statement to you, in the presence of Mr. Berry, that I said there was not sufficient evidence?

"Mr. Fickert: I so informed you, and you, in effect, so stated.

"The Court: Did you so understand it, Mr. Berry?

"Mr. Fickert: That there was no evidence against those men?

"Mr. Berry: I remember Mr. Fickert saying he did not consider there was any evidence against those men, but I do not remember the Court's reply: I do not remember that the Court did reply.

"The Court: I did not. It is not the province of the Court to pass upon the facts in a criminal case. The facts are placed before a jury, and the jury pass on the facts.

"Mr. Fickert: I am certainly not mistaken in that matter.

"The Court: You are certainly mistaken in that matter; I was careful not to make any such statement."

[463] See footnote 459, page 426.

[464] "In dealing with the attitude of the District Attorney," said Judge Lawlor, "as is manifested by all that I have said upon that subject, I have endeavored to deal justly with him, to reach no conclusion myself definitely as to the attitude of the District Attorney. I sincerely hope that in these cases, as in all cases that may come before the Court, the District Attorney will do his full duty. I desire it equally understood, however, that if the District Attorney in any case fails of his duty the Court is not going to be recreant and it is not going to sit here as a minister of justice and permit a travesty in any form, for any purpose, whatever the views of the District Attorney may be. Now, I have endeavored to make it clear that there are two considerations that will affect the Court in the final disposition of this business: First, that it will not proceed with the trial of any action where material testimony is not forthcoming. That would be the disposition of the Court in any case, but it is especially its attitude in this case in view of the sweeping statement of the District Attorney made on February 7th that there is no sufficient evidence upon which to proceed to trial against any of these four defendants."

[465] The statement was made repeatedly that Gallagher was not under subpoena when he left the State. The statement was even contained in the opinion of the Appellate Court, granting the writ of mandate that preceded the dismissal of the graft cases. Judge Lawlor at the proceedings when the cases were finally dismissed, touched upon this feature as follows:

"The Court: The statement has been made in the opinion that I am not able to account for its appearance in the showing. This statement was made that no service had been made upon James L. Gallagher or that he was not under the order of the Court. That is a proposition of fact which has never been resolved by this Court and I am unable to determine how it could be determined elsewhere, how it could be declared elsewhere, in the absence of such testimony as I might be able to give on the subject. I expressly refrained, on an occasion when I made an extended statement covering these cases, from making any final word on that subject. I am not prepared now to say so, because I don't know.

"Mr. Berry: I will state to the Court that I have made a very careful inquiry in the District Attorney's office, and of the records, and of the officials in that office in the previous administration, and I have been unable to secure or to get any definite information on that point."

[466] Judge Lawlor, in announcing this decision, said in part: "Section 13 of Article I of the Constitution provides in part: 'In criminal prosecutions in any court whatever the party accused shall have the right to a speedy and public trial. * * *.' Section 1382 of the Penal Code declares in part: 'The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * *. 2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within sixty days after the finding of the indictment, or filing of the information.'

"This provision has repeatedly been declared to be a statutory expression with reference to the section of the constitution to which the Court has referred. It has been held to mark the period within which a party accused of crime is to be brought to trial, unless good cause to the contrary is shown. About the general proposition of law involved in the determination of the present motion there can be little ground for contention. The perplexity usually arises in the determination of what the reserve language of Subdivision 2 of Section 1382 of the Penal Code may be included to cover. An application of this character must be determined according to the peculiar circumstances surrounding the application." * * *

"The Court is of the view that so far as the determination of the motion itself is concerned the onus is on the People to show good cause, which would take the case out of the operation of the constitutional provision and the statute referred to. The Court, in that view of the matter, has addressed the District Attorney as to what his attitude is with respect to the motion, and the District Attorney has made it plain that it is not his intention to take any step toward meeting the application of the defendant to have the causes dismissed. In the view which the Court takes of the general attitude of the District Attorney toward the four defendants at bar, the Court feels it is a case where it must act, and to the extent that it may be needed, to protect the public interests. The Court has judicial knowledge of the history of the charges against these four defendants. It knows judicially that a material, and, it is claimed, an indispensable witness to the prosecution of these charges is without the jurisdiction of the State. It is not prepared, on any evidence before it, to charge the responsibility of the absence of that witness either to the former administration or to the present administration in the District Attorney's office. The fact, however, that the witness is absent from the State and not within reach of the process of the Court, is a fact established before the Court at this time.

"It is not the intention of the Court to disregard the rights of this or any other defendant, that may be urged before this Court, but, it is likewise the disposition of the Court, to see that the public interests are safeguarded, and that no arrangement between the defendants and the sworn officer of the law shall be suffered to direct and control the action of this Court. And in that view of the matter the Court has reached the conclusion that it is its duty to continue these causes further, in order to see whether or not the missing witness can be secured, and if he cannot be secured within such time as this Court may deem to be proper and which would take the case out of the exception contained in the provision of the statute, and the constitutional provision, then to deal with this motion.

"It is therefore ordered that the determination of the pending motion in the causes against the four defendants named be continued for further hearing until 10 a. m., Thursday, July 14, 1910."

[467] Judge Lawlor's decision will be found in full in the Appendix, page i.

[468] See Chapter XV.

[469] Calhoun's denunciation of Judge Lawlor was as follows:

"Mr. Calhoun: May it please your Honor: I have been educated, sir, to have respect for the courts. I have sat in your court under circumstances that would have tried the patience of any American. Throughout these trials I have sought, sir, to give you under most trying circumstances that respect to which your office entitles you. But, sir, I cannot sit quiet and listen to the vile insinuations which you yourself 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 this country as an honor. You have seen fit, sir, to send three of the most distinguished counsel of this State to jail. Why? Because they have sought to express in terms of respect, and yet in terms of strength, their protest against injustice----

"The Court: Mr. Calhoun----

"Mr. Calhoun: There is a time--pardon me, your Honor--when every man has a right to be heard----

"The Court: Mr. Calhoun----

"Mr. Calhoun: Now, before I take my seat, I desire further to say this, that any insinuation that implies either that I was a party to any obstruction of justice, or that I was a party to the absence of this witness, or that I have sought to control the District Attorney's office of this city is untrue. There is no evidence before this Court. You yourself know it."

[470] Judge Lawlor's term of office expired in January, 1913. At the 1912 November elections he was a candidate for re-election. The force of the influence of the graft defense was thrown against him. Nevertheless, he was re-elected to serve as Superior Judge of the City and County of San Francisco until January, 1919. In November, 1914, however, he was elected to the Supreme Bench of the State, his term of office beginning in January, 1915, and ending in January, 1927.

[471] Of the three Appellate Judges who granted this writ, one of them, Kerrigan, was prominent in the flash-light picture taken at Santa Cruz during the 1906 State Convention, in which Ruef occupied the center position of honor. See Chapter IV.

[472] Assistant District Attorney Berry on the occasion of the dismissal of the indictments said on this point: "If the men who are involved in this transaction have transgressed the laws they are sowing the wind possibly which may reap the whirlwind by breaking down the institutions of the land. I regret exceedingly, if these men are guilty of the offense with which they have stood charged here, that they cannot be convicted. I assure the Court and I state here that it would be my purpose to follow these cases, if these defendants are guilty and the evidence were had, to the uttermost in order to bring about the ends of justice. It is no doubt in the minds of the community that where men of prominence and where men of wealth are concerned, and are brought before the bar of justice and justice is not had, that those who are less fortunate in influence and means are thereby made to feel and believe that this is not a government for those who stand before the law equal with those who stand with the tremendous power of influence behind them."

[473] The seven Justices of the Supreme Court took no less than four views of the points raised in the Glass case. The majority opinion was written by Justice Henshaw, and concurred in by Justices Melvin and Lorigan. Chief Justice Beatty concurred in the judgment, but not in all the particulars of the opinion. In signing the decision, the Chief Justice adds: "I concur in the judgment of reversal and in most particulars in the opinion of Justice Henshaw. I shall, if other pressing duties permit, present my views in a separate opinion." (See 112 Pacific Reporter, page 297.) The dissenting opinion was written by Justice Shaw and concurred in by Justice Angellotti. A third opinion was written by Justice Sloss. Justice Sloss, after defending the single point in the majority opinion in which he concurs, concludes: "On each of the other points discussed in the opinion of Justice Henshaw, I agree with the dissenting members of the court (Shaw and Angellotti) that no prejudicial error was committed."

The fourth opinion, which the Chief Justice intimated he might file, was not filed.

[474] The following from the San Francisco Call of August 2, 1912, indicates the completeness of the triumph of the defense campaign:

"Mrs. Theodore Halsey, wife of Theodore V. Halsey, appeared before Superior Judge Lawlor yesterday morning on a bench warrant in the case of Louis Glass, indicted for bribery in the telephone cases growing out of the so-called Graft Prosecution. She was in court to explain the absence of her husband from the State, whose appearance is wanted if Lawlor orders Glass to trial.

"Attorney Bert Schlesinger appeared with Mrs. Halsey, explaining the bench warrant was void inasmuch as Mrs. Halsey was not a fugitive. He said he did not wish to impede the trial in any way and would allow her to answer any questions propounded by the Court.

"Lawlor asked Mrs. Halsey, through her attorney, where her husband was. Mrs. Halsey was not compelled to take the stand. She said Halsey left San Francisco six weeks ago because of ill health, going to Nevada, and that she has not heard from him in a week.

"Assistant District Attorney Berry said a motion was before the Court to dismiss the indictments pending against Glass and he wished to know the Court's intention. Lawlor said he believed Halsey and Emil J. Zimmer, who is said to be in Europe, were competent witnesses against Glass, and it was his duty to try Glass again. He said the result of the former Glass trials showed Halsey had knowledge of the source of the bribe money and who paid it to the Supervisors.

"Lawlor continued the cases of Glass until August 12th, to learn from the District Attorney if the Prosecution has exhausted all its resources in the matter.

"Schlesinger and Mrs. Halsey were about to leave the courtroom when Lawlor said, 'I trust, Mr. Schlesinger, you will inform the Court of the whereabouts of Mr. Halsey, if you learn in the meantime.'

"'I will assist the Court in any way possible,' replied Schlesinger. 'But I regard all these Graft Prosecutions as corpses and the mourners have long since ceased to mourn.'

"The Judge said nothing in the record showed such a condition. Detective Sergeant Prool took the stand and said he had learned nothing more of the whereabouts of either Halsey or Zimmer."

[475] Judge Dunne, until the last, stood as staunchly for effective prosecution of the graft cases as had Judge Lawlor.