First Felon

Twelve tired-eyed jurors, taut and nervous, filed solemnly into the District of Columbia Supreme Court room one morning last week after a day and a night's deliberation. A young bank teller, as foreman, cleared his throat huskily, read from a blue paper in his shaky hand: "Guilty, with a recommendation to the mercy of the court."

That statement convicted Albert Bacon Fall, onetime (1921-23) Secretary of the Interior, of bribery. It branded him as the first felon in a President's Cabinet in U. S. history. It made him liable to a three-year prison sentence, a $300,000 fine.* It changed the $100,000 in cash sent Fall in a little black bag by Oilman Edward Laurence Doheny from an innocent "loan" between old friends to a corrupt and criminal payment to influence the Secretary of the Interior to lease U. S. Naval Oil Reserve No. 1 at Elk Hills. Cal., to Doheny's Pan-American Petroleum Co. It insured the trial of Doheny.

The conviction of Fall as a bribe-taker, the first conviction to be obtained by the U. S. on direct evidence of the naval oil scandals (1921-23), produced a strange courtroom scene. Defendant Fall, seriously ill with bronchial pneumonia, sat in a green Morris chair, wrapped in an automobile robe, his black New Mexican sombrero in his lap. His eyes were stunned, blankly staring at the verdict. Down his white, sunken cheek rolled a teardrop, to be kissed away by his sobbing wife. Other women present moaned and groaned hysterically. Robust cowpunchers and ranchers bent their heads in sorrow for their friend. Oilman Doheny, crimson with rage and chagrin, shook his fist at the bench and screamed: "That damned court--." Mark Thompson, Fall attorney, went white and limp, slumped to the floor, lay there unconscious for ten minutes before physicians could revive him. Bending over him was Frank Hogan, chief defense counsel, ashy white with disappointment. Cried Lawyer Hogan: "Tell that damned jury to come back here and smile at this, too." The wife of one of the jurors had followed the case as a Fall sympathizer. After the verdict she chased violently after her husband to a public park where he was being photographed. "You miserable rat!" she screamed.

"Come here where I can get my hands on you!"

The facts on which Fall was tried were agreed on both sides. Fall and Doheny, gold prospectors together in the old West, had been friends for 43 years. Doheny had approached Fall, as Secretary of the Interior, for an oil lease. At the peak of negotiations--Nov. 30, 1921--he had sent Fall $100,000 in cash by his son. Four months later Doheny's oil company had the Elk Hills lease from which it expected to make $100,000,000. Two years ago a jury tried Fall and Doheny on practically the same evidence for conspiracy to defraud the U. S. That jury acquitted them. This time the jury had to judge, independent of Doheny, Fall's intent in receiving this cash. It found his intent criminal, the cash a bribe.

For a fortnight the jury of eight men and four women had heard evidence, listened to argument. Fall had collapsed at the beginning of the trial, had been pronounced a dangerously ill man by impartial doctors but, at his insistence, the trial had gone on (TIME, Oct. 21).

With well-worn evidence Messrs. Owen Josephus Roberts and Atlee Pomerene, special U. S. counsel, conducted the prosecution before Justice William Hitz. Only novelty: they managed to introduce the illuminating fact that Fall, in a parallel case, had received some $269,000 in Liberty bonds from Oilman Harry Ford Sinclair who in return received the Teapot Dome lease.

Lawyer Hogan, onetime Brooklyn urchin, now Washington's smartest, cockiest criminal attorney, had secured Oilman Doheny's acquittal on the conspiracy charge; had received, it was said, a million-dollar fee for his services. Now he was Fall's chief defender. His claims which the jury rejected: The $100,000 cash was a friendly loan for which Doheny held a torn note. Doheny had reluctantly taken the Elk Hills lease as the result of a Japanese war scare in 1921 and as an act of patriotism for national security. (The Navy, through Secretary Charles Francis Adams, refused to submit to the court confidential documents which might or might not support this war scare.) The whole Government from President Harding down collaborated in approving the Elk Hills lease.

The defense reeked with sentimentality and patriotism. Lawyer Hogan made the women of the jury weep. Doheny on the witness stand cried easily and often. Frequent were the references to Fall's bad health. Lawyer Thompson tried to describe "a red haired young man" (Doheny) and "a black haired young fellow" (Fall) meeting on the "deserts of the Southwest" when Justice Hitz cut in: "The color of Mr. Doheny's hair is not in evidence. Please follow the evidence." Lawyer Hogan made an impassioned plea for the jury to send Fall "back to the sunshine of New Mexico." Remarked Judge Hitz to the jury: "You have nothing whatever to do with the sunshine of New Mexico and must decide this case on its merits, without influence of sympathy or compassion."

Dr. Samuel Johnson (1709-84) became an issue in the trial. Prosecutor Pomerene cited the fact that the great lexicographer had called patriotism the last refuge of a scoundrel. Quick to see his chance Defender Hogan roared to the jury that this Englishman had vilified American revolutionary leaders, had advised a yardarm hanging for George Washington.

Justice Hitz made a strong charge to the jury, instructing them to seek and weigh Fall's intent, warning them against the sentimental appeals of the defense. Lawyer Hogan and Oilman Doheny were infuriated by this charge, vehemently contending that it had robbed Defendant Fall of a fair trial by jury. The exceptions to the Hitz charge and the introduction of the Sinclair evidence formed the basis for a demand for a new trial or, if denied, for appeal.

*The U. S. Criminal Code provides that the fine for bribery may be three times the amount of the bribe.