Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #41
James Sweeney
NEW JERSEY
"Eight Machine Gun Bandits Slay Driver in $160,000 Elizabeth Mail
Holdup." This headline appeared on the front page of the New York
Evening Post, and similar headlines were carried by other papers of the
New York Metropolitan District on Thursday, October 14, 1926. The columns
below told how at nine o'clock that morning in Elizabeth, New Jersey, at the
corner of Sixth and Elizabeth Streets, a bandit gang had held up a mail
truck carrying $300,000, as registered mail, from the Federal Reserve Bank
in New York to the Elizabethport National Bank, some of which was the pay
roll of the Singer Sewing Machine Company. The mail truck, driven by John
Enz and Patrick S. Quinn, his helper, was proceeding at a normal pace,
accompanied by Police Officer Jacob Christman mounted on a motorcycle.
Suddenly, a large sedan swung around a corner, headed directly toward the
truck, and caused it to veer into a side street and crash into a parked car.
Another sedan then swerved to run down the motorcycle policeman before he
could get into action. As he lay, dazed, in the street, a shotgun was fired
at him. Simultaneously, machine-gun fire was opened on the drivers of the
truck from a third sedan parked at the opposite corner of the intersection.
Enz toppled from the seat to the ground, shot through the head. Quinn jumped
from his seat and fired two shots before machine guns were turned on him,
pumping bullets into his left leg, arms, and hands. Charles Decatur, a
bystander, was wounded. Persons living near by who attempted to come into
the street were greeted by a fusillade of steel. At once four of the gang,
with bolt clippers, broke open the lock at the back of the truck. Mail bags
containing $151,300 were quickly removed from the truck to one of the
sedans, which left the scene at a rapid pace. One of their cars was driven
over the dead body of Enz and over the wounded Quinn.
A few pedestrians saw the holdup, and the bandits had a scant lead over an
improvised pursuit. In Newark, two cars, later identified as the bandit
machines, dashed past a traffic signal set against them. The traffic officer
opened fire without effect and then gave chase, but the cars eluded their
pursuers and escaped. Their course led to a search of the nearby Orange
Mountains. Col. Norman Schwartzkopf and Maj. Mark O. Kimberling of the New
Jersey State Police established what practically amounted to martial law in
that part of the state, their well-armed troopers being ordered "to shoot on
sight and shoot to kill." The Post Office Department detached a score of
crack investigators under Chief Inspector Rush D. Simmons to help solve the
crime. Orders were issued from Washington for the protection of United
States mails by marines.
It was believed that the same gang had been responsible for several recent
holdups in the vicinity, some accompanied by killings; and John ("Bum")
Rogers and James ("Killer") Cuniffe were mentioned as probable members of
the gang.
The first definite clues came from Detroit, where a gangster, Bill Crowley,
shot and killed another gangster, Jim Cuniffe, and his companion, Frances
Harris, in a hotel room. Police officers killed Crowley while attempting to
enter the room to arrest him. Crowley and Cuniffe, together with the girl,
Frances Harris, had gone to Detroit with part of the loot from the Elizabeth
holdup; and it was a quarrel either over division of the loot or over
letting Frances Harris return to New Jersey that precipitated the killing of
Cuniffe. By following up these clues the authorities were able to locate a
taxi driver in Elizabeth, New Jersey, who stated that during the previous
summer he had taken Frances Harris, Crowley, and Cuniffe, together with
others, to an apartment house located in a certain section of Newark,
although he did not know the exact address. The authorities searched this
section of the town and finally located the apartment. The wrappings that
had surrounded the bundles of money for the Singer pay roll were found lying
on the floor, showing that the bandits had returned to this apartment and
divided the loot after the holdup.
The underworld was combed for the characters known to have associated with
Crowley, Cuniffe, and Frances Harris,
and among others one Benjamin Haas was taken into custody and questioned.
On Haas was found a business card of James Sweeney, whose business was
"making books on crap games."
Pictures of Sweeney were obtained and presented to the eyewitnesses, who
positively identified Sweeney as a member of the gang. Sweeney was
extradited from New York and put on trial for the crime by Prosecutor Abe J.
David in the Court of Oyer and Terminer of Union County before Supreme
Court Justice Samuel Kalisch on April 11, 1927, about six months after the
holdup. Sweeney was defended by Col. George T. Vickers of Jersey City.
At the trial, one of the chief witnesses for the prosecution was Thomas
Devoy, who testified that five minutes before the holdup took place, he
passed the intersection and saw Sweeney standing on one corner. Devoy said
that he drove by and, after circling around the block, again passed the
fatal intersection and saw Sweeney walk out with a gun in his hand, act as
cover man while the rest of the gang were getting into the cars, and jump
into one of the cars as they dashed away.
The other chief witness for the state was Samuel Traubman, who passed the
scene of the crime in an automobile. He had identified Sweeney both from
pictures and in person before the trial, and at the trial he testified that
just before the holdup he saw Sweeney standing at the intersection with his
hand under his coat in a suspicious manner.
In his defense Sweeney attempted to establish an alibi. He testified that on
the morning of the crime he left his home at 1813 Cauldon Street in the
Bronx Borough of New York City at 9.00 A.M., and that at 10.00 A.M., by
prearrangement, he met a woman named Jean Harrigan and a man named Ray
Mulcahey at the entrance to the Dyckman Street subway station. The three
then drove to Sing Sing, where Jean Harrigan wanted to visit her husband,
Charles Harrigan, alias John McCarthy. Sweeney signed his visitor's slip
with the name Michael Branley. The party waited half an hour, and then spent
one hour visiting with Charles Harrigan, leaving at 1.00 P.M.
It developed at the trial that Sweeney was a former convict and had served
time in Sing Sing. He had been twice convicted of crimes, once for attempted
grand larceny. As an ex-convict Sweeney could not have visited Sing Sing
under his own name and for that reason he signed the visitor's slip with
the name Michael Branley, which was the name of Jean Harrigan's brother.
Sweeney's testimony as to his trip to Sing Sing was supported by the
testimony of his mother, Anna Sweeney, and by that of Jean Harrigan and
Charles Harrigan.
The prosecution was familiar with Sweeney's alibi, as he had presented it in
opposition to the extradition proceedings, and took steps to overcome it.
This was done by having several citizens of Elizabeth drive in their own
cars from the scene of the crime to Sing Sing, keeping exact record of the
time required for the trip. These facts were used at the trial to prove that
Sweeney could have participated in the holdup and afterward have driven to
Sing Sing and arrived at the time alleged by him.
Justice Kalisch, in his charge to the jury, said that he doubted Devoy's
story. Nevertheless, Sweeney was convicted and sentenced to life
imprisonment.
--------------------
Defense Attorney Vickers was positive of Sweeney's innocence and he, as
well as others connected with the case, continued to search for additional
evidence that would have a bearing on the question of Sweeney's connection
with the crime.
By his investigation, Colonel Vickers established that John Yates, a bus
driver, heard the shooting as he was stopping his bus to discharge a
passenger a block away from the scene of the holdup. Immediately thereafter
two big, dark, closed cars, followed by a Ford delivery truck, drove by,
traveling at about forty miles an hour. He left his bus and ran to the scene
of the holdup, where he saw a policeman lying face down on the street, a
motorcycle near him. He also noticed a machine gun lying on the sidewalk at
the corner. By this time a crowd was gathering, but it was necessary for
Yates to return to his bus and drive to the end of
his route. Arriving there, he entered a lunch wagon and related what he had
seen of the holdup to a crowd of men gathered there, including Thomas Devoy.
immediately after hearing Yates tell his story, Devoy got into his Ford and,
with Barney Shapiro, drove around to the scene of the crime. It turned out
that Devoy had been at the lunch wagon from 7.00 A.M. until after he heard
Yates tell about the holdup. These facts were established by the affidavits
of Yates and other men who were with Devoy in the lunch wagon and clearly
proved that the testimony of Devoy at the trial was false.
Additional facts exonerating Sweeney came to light with the arrest of Frank
Kiekart on December 8, 1927, and the rearrest of Benjamin Haas on January
23, 1928. Both of these men confessed, turned state's witnesses, and
definitely established the identity of the gang, clearing Sweeney of any
connection whatever with the holdup. The actual bandits were James Cuniffe
(murdered in Detroit), William Crowley (killed while resisting arrest in
Detroit), Frank Kiekart, alias Charles Miller (who confessed), William
Fanning, Charles Neary, Daniel Grosso (electrocuted April 10, 1931) , and
Benjamin Haas (who confessed). There were only seven in the group.
When these facts were discovered, those working on the case were impressed
by the strong resemblance between James Sweeney and James Cuniffe, who
actually participated in the holdup. This resemblance became perfectly
apparent from a comparison of photographs of the two men and accounts for
the honest though mistaken identification by the witness Traubman.
On the basis of this new evidence, an application was made to the State
Board of Pardons on Sweeney's behalf. The application was supported
personally by Justice Kalisch and Prosecutor David. Sweeney was set free in
November, 1928.
--------------------
This error came about through a combination of mistaken identity, circumstantial evidence, and perjury. The fact that Sweeney's card was found on Haas first entangled Sweeney in the case. The facts that he was an ex-convict, that the audacity of the crime had aroused the country, and that he was identified by two people were sufficient in the minds of the jury to overcome his truthful alibi. The mystery was unraveled by the discovery of Devoy's perjury and by the confessions of some of the real bandits. In this respect it is not unlike many cases of cooperative crime, when a single man to whom the finger of suspicion points is exonerated by the confessions of the real participants, all of whom are accounted for. Confessions of that kind can usually be verified and are likely to be reliable. The prosecuting officials and the judge in the Sweeney case, when they realized the error of Sweeney's conviction, took immediate steps to undo the wrong and free Sweeney, one and one-half years after his commitment to the penitentiary. But for the assiduity of his counsel, it is not at all certain that Sweeney might not have served out his life sentence.
BIBLIOGRAPHY
1. New Jersey v. James Sweeney, Court of Oyer and Terminer of Union County,
New Jersey, April, 1927.
2. Lutz, Karl B. The Case of James Sweeney (manuscript document,
unpublished).
3. Various newspapers of metropolitan New York, October 14-20, 1926.
4. Acknowledgments: Hon. Abe J. David, Prosecutor of the Pleas, Union
County, N.J.; Col. George T. Vickers, Jersey City, N.J.