No Yellow Necktie

There was no doubt that the attic room was stuffy. Dice that have felt the sweat of men's hands, cards that are grimy on the edges and sticky on the faces, fiction magazines and cigarets that have been consumed, bedclothes that have been kicked into contortions--do not litter a rose garden. One dozen men were in this attic room; they had lived there for three weeks; they needed haircuts. One night last week, eleven of them were trying to sleep; the other one played a phonograph malignantly, said he would never let them go to sleep unless they came to a decision.

It happened, they knew not how, that they were the "twelve good men and true," who were selected by lot to decide whether or not Albert B. Fall, onetime Secretary of the Interior, and Edward L. Doheny, oil potentate, were guilty of conspiracy to defraud the U. S. Government (TIME, Dec. 6). Having heard the summing up of Owen J. Roberts and Atlee Pomerene, counsel for the Government, of Frank J. Hogan and Wilton J. Lambert, counsel for the defense, and having received final instructions from Judge Adolph A. Hoehling, the jurors returned to their attic room to balance the scales of justice. Various tales-- have leaked out of what happened there. One thing is certain; ten of the jurors accepted the major arguments of the defense without coercion, while two of them, an educated man and a bank clerk who is studying law, doggedly dissented. For most of 19 hours they argued. "You can't tell me old man Doheny is a crook," said one juror. "Didn't these Navy men [onetime Secretary Denby and Captain John K. Robison, who lost the rank of Rear Admiral because of his connection with the oil scandals] go and ask him to bid on the contracts?"

"But how can you get away from that $100,000 in the little brown satchel?" demanded a dissenter.

"I think it was a loan between friends. We know Fall and Doheny had been friends for 40 years. Doheny is a millionaire. Why wouldn't he lend $100,000 to an old friend if he needed it?"

"Why did Doheny send it in cash by his son?"

"Well, you've got to remember that Fall was going down there to New Mexico to buy a ranch, and I think he figured the greenbacks would make a bigger impression on those New Mexicans than a check." "Why did Fall lie about the source of the money, several years ago?"

"It was a white lie. You can't blame Fall very much for that. He would have had a yellow streak a foot wide if he hadn't tried to protect his old friend after all Doheny had done for him." Then the jurors paused for dinner, sang "Bye, Bye, Blackbird," argued, turned on the phonograph, argued, slept, argued. . . . At 9:30 a.m., another ballot was taken. The vote was unanimous for acquittal.

Mr. Doheny and his family went home to Los Angeles, Calif., to gather round their Christmas tree. All criminal charges against the oil man and his son will probably be dropped. Not so, Mr. Fall--he remains in Washington, where he will soon go on criminal trial with Harry F. Sinclair because of the Teapot Dome oil leases. This trial will be dismally anticlimactic. For, how could Mr. Fall be a patriot at Elk Hills and a crook at Teapot Dome? Even the jurors were surprised, on hearing for the first time, that Mr. Fall had to face another criminal trial, that the Government had already won both its civil suits involving Messrs. Fall, Doheny, Sinclair.

Echoes. Senator James Thomas Heflin of Alabama read the decision of the Fall-Doheny jurors. His white waistcoat swelled with indignation; he hastened to tell his colleagues about it. When they saw him rise from his seat in the back row of the Senate, they knew he would discourse for a half hour. Said he: "I do not want this day to pass without saying a word about a farcical trial&* and miscarriage of justice that has taken place in the city of Washington. I feel that the people of the nation, the law-abiding citizens, the honest men and women, the country-loving and God-fearing people of the nation, are entitled to have someone here say that justice has been thrown to the four winds and two big criminals set free. . . . "But I regret to say that it seems that a rich man can not be convicted in courts established by the Harding-Coolidge administration. If a man has money, he has the passport to his freedom. . . . "I thank God that there is a place in the Republic where the representatives of the people can express their opinion and make known their convictions without being awed or intimidated by the fear that the court could punish them for what it might call contempt of court, and this place is one of them. . . . "Mr. President, there are millions of his [Mr. Fall's] countrymen who would not object to seeing him adorned with a yellow necktie in the form of a grass rope. If an American soldier in charge of the oil reserves of the nation had done what he has done he would have been court-martialed and shot. "... I am going to close now with this appropriate quotation from Shakespeare's King Lear: Through tatter'd clothes small vices do appear; Robes and furr'd gowns hide all. Plate sin with gold, And the strong lance of justice hurtless breaks; Arm, it in rags, a pygmy's straw does pierce it. "Shame on those who brought this Fall and Doheny case to a miserable close; shame on those who forgot their oaths of allegiance to their country; and shame on those who have forgotten and who have betrayed their country." Perhaps, Attorney Hogan* would have liked to plant his fist in Mr. Heflin's white waistcoat; perhaps, Messrs. Fall and Doheny would have liked to have sued him for libel. But they did not. Mr. Heflin is a Senator, and Senators are public servants, whose words know no end.

Senator Thomas J. Walsh of Montana, who, more than anyone else, was entitled to speak on the oil scandals, gave the saner view which was backed up by most of the press of the land. He found no corruption in the conduct of the trial, but he pointed out the difficulty of proving a conspiracy charge and said that the jury's verdict would not change public opinion concerning Messrs. Fall and Doheny.

Not Guilty or Guilty? Obviously, the citizenry of the U. S. can hold only two beliefs concerning Messrs. Fall and Doheny:

1) These two old men are in fact not guilty; they have been maligned by Senate investigations and by the press; now they are righteously vindicated; they are patriots who leaped to their country's defense when war with Japan threatened; they ought to have monuments erected to them.

2) They are in fact guilty of an underhanded crime against their Government, no matter what the jury decided. The jurors arrived at an erroneous verdict because: a) shrewd, able Attorney Hogan played upon their emotions and handled the defense skilfully, while the Government prosecutors bungled; b) the jurors were either corrupt or too ignorant to understand such a complicated case; c) the task of proving actual conspiracy was too great, even though the case was fairly tried and backed by public opinion.

Jinx Poem. If any man has a right to draw a moral from the Fall-Doheny trial, it is Atlee Pomerene, onetime Senator from Ohio, prosecutor for the Government. The moral: Never quote from Edwin Markham's magnificent poem, The Bell Tower of Venice, if you want to win. Mr. Pomerene quoted from it repeatedly when he was running for Senator and during the summing up of the oil trial. Both times he lost. Excerpts from the poem: Yet all the while in secret, without sound, The fat worms gnawed the timbers underground. The twisted worm whose epoch is an hour Caverned its way into the mighty tower And suddenly it swayed, it shook, it broke. And fell in darkening thunder at one stroke. The tall shaft, with an angel on the crown, Fell ruining--a thousand years went down. And so I fear, my country, not the hand That shall hurl might and whirlwind on the land. I fear not Titan traitors that shall rise To stride like broken shadows on our skies ; I fear the vermin that shall undermine Senate and school and citadel and shrine; The worm of fraud, the fatted worm of ease ' And all the crawling progeny of these. I fear the vermin that shall honeycomb the towers And walls of state in unsuspecting hours.

*The most complete of which was told by Paul Y. Anderson, Washington correspondent of the St. Louis Post-Dispatch, who recently revealed the "Olds incident" (see p. 5).

*Who is reported to have received $400,000 for his services as counsel for Mr. Doheny. Wilton J. Lambert, counsel for Mr. Fall, is said to have received $100,000.