Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #14
Irving Greenwald
NEW YORK
In January, 1924, a number of money-order blanks were stolen
from post-office substation No. 28, located in a drug store in Buffalo, New
York, by a man who came into the store to use the telephone. The telephone
booth was situated near the cage which inclosed the small post office. The
man was of not unusual appearance, probably between five and a half and six
feet tall, and around twenty-five years of age; and other than that, he was
described as having blond hair and blue eyes. No particular thought was
given to him until the blanks were found to have disappeared. The postal
authorities were notified, and the usual procedure was followed to arrest
the culprit.
The stolen blanks began to appear in New York in February and March. Some
man came into the store of the A. Taylor Trunk Works on the twenty-first of
February, bought some goods, and cashed one of them. He received $65 cash in
change from the clerk, John Gravich. The money order purported to have been
issued in Buffalo, New York, on February 17, at post-office substation No.
28, and bore the name of W. Gallagher, the postal clerk at that substation.
This order bore the number 32,469.
The next orders appeared about March 21, 1924. One of them, for $75, was
cashed in Wanamaker's store. Some goods were bought from a clerk, Miss
Elizabeth A. Colby ; and when the money order was presented, the man was
sent to the credit department, where Mr. Noble, credit man for Wanamaker's,
approved cashing it. This one bore the number 32,975. The third money order
was given to R. J. Melamede, of Reynolds & Melamede, druggists at 275
Amsterdam Avenue, bore the number 32,457, and was for the amount of $25.
Another was passed the same day to C. Stiefel, a clerk in the Schwartz
Brothers' jewelry store at 1454 Broadway. It was for $75 and bore the number
52,476. Various dates were placed on them, but all purported to have been
issued at substation No. 28 in Buffalo. The man gave the name of J. C.
Alderman.
The post-office inspectors followed the trail closely, with Inspector Gurnie
Smith in charge. At the end of March they brought about the arrest, on Wall
Street, of a man who fitted the general description of build and weight
given by the several persons who had been tricked. He had blue eyes and
blond hair. Detectives tapped him on the shoulder, addressed him as J. C.
Alderman, and told him to come along with them for examination. He asked the
detectives what kind of game they were playing. When assured it was not a
game he still thought it very amusing and willingly consented to accompany
the officers. He merely insisted that his name was Irving Greenwald and that
he had never heard of Alderman.
The detectives were unconvinced, and he was taken into custody. Some or all
of the clerks from the stores which had been imposed on were called to
identify him as the man who had the forged money orders. They identified him
as the man, and things became more serious. On April 11, the grand-jury
indictment was filed against him for passing and uttering forged money
orders purporting to have been issued by the postmaster at Buffalo, and in
violation of Section 218 of the Federal Criminal Code. He was indicted on
four counts, one for each of the four money orders.
The Hon. J. Joseph Lilly, at one time Assistant United States Attorney in
New York, had known Greenwald and his family for a long time, and Greenwald
asked that Lilly defend him. Mr. Lilly investigated the case against
Greenwald. He had been associated with Hon. James Johnson, the Assistant
District Attorney who had charge of the prosecution of Greenwald, and was
told that the identification of Greenwald by the several clerks, the credit
man, and the druggist, was positive and that they would all swear that
Greenwald was the man who cashed the money orders -- that the case against
Greenwald was "cast-iron, brass-bound, copper riveted and air tight." As Mr.
Lilly knew that Johnson was not addicted to exaggerated statements, he went
to Greenwald, who was confined in the Tombs Prison, and advised him that, if
he was guilty, it would be best to plead guilty and thus perhaps obtain the
court's mercy. But Greenwald stoutly asserted his innocence, and flatly
refused to plead guilty, although he did not have a single witness to call
in his behalf. He had no money with which to hire experts to prove that the
handwriting on the forged money orders was not his. Possibly that would have
been of little avail in the face of his very positive identification by the
Government's witnesses and of the fact that the indictment was for uttering
and passing forged money orders, not forging them.
Accordingly a plea of not guilty was entered for him on April 14. The trial
was set for the twenty-first of April, and was concluded on the
twenty-second. Greenwald took the stand in his own defense and completely
contradicted the Government's witnesses; but to no avail, for the jury,
after remaining out only a few minutes, returned with a verdict of guilty.
That same day he was sentenced to seven and a half years in the Federal
penitentiary at Atlanta, Georgia, two and a half years each on three of the
four counts on which he had been indicted, one having been dropped.
Greenwald, when questioned by the court, vehemently and stubbornly asserted
his lack of knowledge of anything in any way connected with the crimes ; but
Judge Francis A. Winslow gave him practically the maximum sentence possible,
after a denunciation for his persistence in maintaining his innocence. In a
few days Greenwald was taken to the Atlanta penitentiary.
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Soon after Greenwald was imprisoned, other stolen money
orders began to appear in Philadelphia and New York, and Inspector Gurnie
Smith was again put on the trail. The money orders in Philadelphia were
passed under practically the same circumstances as those in New York, and by
a man who answered the description of the man who had passed them in New
York. Within sixty days of the time Greenwald had been convicted, Mr. Lilly
was called to the office of Assistant District Attorney Johnson and informed
by Mr. Johnson and Inspector Gurnie Smith that apparently Greenwald was not
the man who had passed forged money orders, but that another man then in
custody was the real criminal. The money orders which had been passed in
Philadelphia and New York bore the same forged signature of W. Gallagher,
the name of the Buffalo postmaster, and bore numbers very close to those
which had been passed earlier in New York. Two of them were: 32,474 and
32,481.
To make sure that the actual culprit had been captured, the witnesses who
had testified against Greenwald were again called to identify this second
man, Richard Barry, who also used the names W. H. Ford and John Derby. Barry
had given the names of the places where he passed money orders, and had told
just how they had been stolen in Buffalo. When presented to the witnesses,
he told each of them the circumstances under which he had cashed the money
orders, described the goods he had bought, and described his actions as well
as their actions and appearance at the time. All save one of the witnesses
now identified Barry as the man who had passed the money orders. The only
one who did not change his identification was the postal clerk in Buffalo,
but he was not present at the time Barry was being investigated. Except for
the blond hair and the blue eyes, there was no material resemblance between
Greenwald and Barry. Upon the information of the witnesses who had once
identified Greenwald, Barry was indicted on the same counts as Greenwald,
and on June 23, 1924, pleaded guilty and was sentenced to three years in the
Atlanta penitentiary.
Now two men were in Atlanta for a crime of which one only could have been
guilty. Barry disclaimed knowing or ever having known Greenwald, and it was
clear that only one of them stole the money orders from the post office in
Buffalo, and only one man had passed them in New York. To secure Greenwald's
speedy release from prison, Mr. Lilly made a motion for a new trial upon the
ground of newly discovered evidence. This was done within the ninety days
allowed under the fifth General Rule of the United States District Court, in
which the case was tried, and under the authority of R.S. 918 and Judicial
Code, Section 269. At the hearing of the motion, the affidavits in support
alleging that Barry and not Greenwald was the criminal were conceded to be
true by the District Attorney; but the application was denied by Judge
Winslow upon the authority of the case of U.S. v. Howe, 280 Fed. 815, which
holds that it is doubtful whether the court has the power to rescind its
judgment and grant a new trial after a sentence of imprisonment has been in
part executed. The court, it is believed, misconceived the purport of that
case. But as the application for a new trial is addressed to the discretion
of the District Court, no appeal from its denial could be taken to the
Circuit Court of Appeals. This technicality caused considerable further
delay and left open only one avenue for Greenwald's freedom -- a
presidential pardon.
On August 7, 1924, Irving Greenwald was given a full and unconditional
pardon by President Coolidge, on the ground that he was "innocent of the . .
. offenses of which he was convicted."
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This is another case of mistaken identity. It is not
unusual, either in the fact that four or five persons identified the wrong
man, or that the resemblance was very slight. The emotions of the victim of
injury, fraud, or deception create a predisposition to believe the worst of
a person brought before him as the probable offender, especially when there
is no alternative suspect. Motive is a persuasive interpreter of
probabilities and possibilities, which under the passion of injured pride
easily become "certainties." When two alternative offenders are presented,
impartial judgment, discretion, a balancing of evidence and truth have a
better chance. So it proved in the Greenwald case. Postal Inspector Gurnie
Smith was perhaps a little more sure than was justified, and may well have
exerted an unconscious influence upon the victims to identify Greenwald. He
is to be given credit for admitting his mistake, and opening the road to the
correction of the error. Judge Winslow was excessively technical, if not,
indeed, perhaps wrong on his legal grounds, in prolonging Greenwald's
detention by refusing him a new trial and compelling resort to the
President's pardon. Judge Winslow's denunciation of Greenwald when
pronouncing sentence, though conceived in good faith, proves to have been
rather unfortunate. Greenwald was restored to society, but the injury done
him by the administrative machine has never been repaired.
BIBLIOGRAPHY
1. United States Attorney General's Report, 1925, p. 386.
2. The record in the case of United States v. Irving Greenwald, alias J. C.
Alderman, No. C 37-174, on file in the Office of the Clerk of the United
States District Court, Southern District of New York, particularly the
motion for a new trial.
3. The record in the case of United States v. Richard Barry, alias John
Derby, alias W. H. Ford, No. C 38-389, in same court.
4. New York Sun, June 28, 1924.
5. Boston Sunday Post, November 30, 1924.
6. Acknowledgments: Hon. J. Joseph Lilly, Office of the Corporation Counsel,
Municipal Building, New York City ; Hon. Robert B. Watts, Assistant United
States District Attorney, New York City.