I met Michael O'Rourke, author of O'Banion's Gift, four years ago at the Golden Age of Gangsters Convention in Itasca, Illinois. Michael is a former criminal court judge and still maintains a busy legal practice, so I recently asked him to comment on the treatment of Lieutenant Charles Becker's case by the New York courts. I sent him a link to the Court of Appeals decision in the People v. Becker (May 25, 1915), which affirmed the policeman's conviction and denied the defense's motion for a new trial. This is what he had to say:
"I got a chance to read the case you sent some while ago (People v. Becker), and I had a few observations regarding it.
My understanding is that your interest in the case relates to the fact the Zelig was about to testify at the trial when he was killed. I know nothing of that aspect, but I found several features of the Court of Appeals opinion to be interesting, and I have the overall sense that the trial would have been conducted differently -- generally to Becker's advantage -- in a modern American courtroom.
That's not to say that the reviewing court would have been more likely to remand the case for a third trial, but rather that the trial judge would have felt less need to rigidly apply the rules of evidence. For example, the dying declaration of Dago Frank would likely have been admitted, not under the classical exception for dying declarations discussed by the appeals court, but rather under what is generally referred to in state law as "Subsection 24" (or Federal Rule 807, "Residual Exceptions"), under which a trial court may determine that the "interests of justice will best be served by admission of the statement into evidence." That wide exception did not exist when Becker was tried. It was his misfortune to go to trial during a period when the rules of evidence were narrowly and dogmatically applied in most states.
On the other side, it is my view that Shapiro's statement that "Becker had the cops fixed," would have been excluded at trial -- not because the trial judge's technical analysis was incorrect (he properly instructed the jury not to consider the statement for its truth or falsity) but rather because of its extreme prejudice.
Perhaps the most interesting part of the analysis by the reviewing court relates to corroboration. It has always been the law that a conviction cannot be based on the uncorroborated evidence of an accomplice(s), but there is a wide variance in what courts hold to be sufficient to qualify as corroboration. (Finger prints or DNA would be strong corroboration, whereas an inferred motive would not). In this case it seemed to have been a close call -- in which event the appeals court properly deferred to the trial judge's ruling. In today's world, though, it is less likely that the corroboration would have been deemed sufficient by the typical trial court.
So, given the time period, I'm not surprised by the court's decision upholding the result in the second trial. But I'm appalled by the manner in which the clemency request was handled. For the former prosecutor to fail to recuse himself is nothing less than astonishing and should, in and of itself, have been grounds for a separate appeal to a judicial tribunal. It might also have been grounds for a petition to impeach the governor.
Although unrelated to the merits, I was interested to see that the famous mouthpiece Bourke Cochran was involved in the case. He was a remarkable person and the idol of the young Winston Churchill, whose mother Jenny was Cochran's good friend. Churchill credited Cochran with most of his own public speaking skills."
Thanks for that, Michael.
Charles Whitman should have recused himself in the matter of Becker's clemency request. He did not. Becker had the misfortune to go on trial for his life when trial by newspaper set the tone for jury verdicts, the rules of evidence were more rigidly applied and the governor was more ambitious than merciful.