John MacDonald worked as a waiter in San Francisco. His health was poor and had been syphilitic for several years. The disease attacked his nerve and brain tissue and gave him cerebral-spinal lues, a permanent syphilitic affliction, whose effects include distortion of memory and hallucinations. MacDonald illness resulted him having difficulty finding work.
On 22nd July, 1916, MacDonald was watching a march through the streets of San Francisco in favour of an improvement in national defence. During the march a bomb went off in Steuart Street killing six people (four more died later). MacDonald later claimed he saw two men with a suitcase at the scene of the crime at about 1.50 p.m. Around 2.00 p.m. the men left the suitcase on the sidewalk and disappeared into the crowd. Later he identified the two men as Warren Billings and Tom Mooney.
However, at the trial, a photograph showed that Mooney was over a mile from the scene. A clock in the photograph clearly read 1.58 p.m. The heavy traffic at the time meant that it was impossible for Mooney to have been at the scene of the bombing.
MacDonald's evidence was also undermined by the fact that he had been shown photographs of Mooney and Billings and had been taken to the cells where they were being detained before he identified them as the two men with the suitcase at the scene of the crime.
Despite this, Tom Mooney was sentenced to death and Warren Billings to life-imprisonment. MacDonald never received the reward he had been promised but the police did help him obtain a job in Tracy. This did not last long and in October 1919 he moved to Baltimore.
In November 1920, Draper Hand of the San Francisco Police Department, went to Mayor James Rolph and admitted that he had helped District Attorney Charles Fickert and Martin Swanson to frame Mooney and Billings. Hand also confessed that he had arranged for MacDonald to get a job when he began threatening to tell the newspapers that he had lied in court about Mooney and Billings.
Mooney's defence team now began to search for MacDonald. He was found in January 1921 and agreed to make a full confession. He claimed he did see two men with the large suitcase but was unable to get a good look at them. When he reported the incident to District Attorney Charles Fickert he was asked to say the men were identify Warren Billings and Tom Mooney. Fickert said that if he did this "I will see that you get the biggest slice of the reward."
In July 1930 McDonald made another statement where he completely repudiated his original testimony in court. He admitted that he had committed perjury because he had been promised money by District Attorney Charles Fickert.
As one reads the testimony and studies the way in which the cases were conducted one is apt to wonder at many things - at the apparent failure of the district attorney's office to conduct a real investigation at the scene of the crime; at the easy adaptability of some of the star witnesses; at the irregular methods pursued by the prosecution in identifying the various defendants; at the sorry type of men and women brought forward to prove essential matters of fact in a case of the gravest importance; at the seeming inefficacy of even a well-established alibi; at the sangfroid with which the prosecution occasionally discarded an untenable theory to adopt another not quite so preposterous; at the refusal of the public prosecutor to call as witnesses people who actually saw the falling of the bomb; in short, at the general flimsiness and improbability of the testimony adduced, together with a total absence of anything that looks like a genuine effort to arrive at the facts in the case.
These things, as one reads and studies the complete record, are calculated to cause in the minds of even the most blasé a decided mental rebellion. The plain truth is, there is nothing about the cases to produce a feeling of confidence that the dignity and majesty of the law have been upheld. There is nowhere anything even remotely resembling consistency, the effect being that of patchwork, of incongruous makeshift, of clumsy and often desperate expediency.
It is not the purpose of this report to enter into a detailed analysis of the evidence presented in these cases - evidence which, in its general outlines at least, is already familiar to you in your capacity as president, ex officio, of the Mediation Commission. It will be enough to remind you that Billings was tried first; that in September 1916, he was found guilty, owing largely to the testimony of Estelle Smith, John McDonald, Mellie and Sadie Edeau, and Louis Rominger, all of whom have long since been thoroughly discredited; that when Mooney was placed on trial, in January of the year following, the prosecution decided, for reasons which were obvious, not to use Rominger or Estelle Smith, but to add to the list of witnesses a certain Frank C. Oxman, whose testimony, corroborative of the testimony of the two Edeau women, formed the strongest link in the chain of evidence against the defendant; that on the strength of this testimony Mooney was found guilty; that on February 24, 1917, he was sentenced to death; and that subsequently, to wit, in April of the same year, it was demonstrated beyond the shadow of a doubt that Oxman, the prosecution's star witness, had attempted to suborn perjury and had thus in effect destroyed his own credibility.
The exposure of Oxman's perfidy, involving as it did the district attorney's office, seemed at first to promise that Mooney would be granted a new trial. The district attorney himself, Mr. Charles M. Fickert, when confronted with the facts, acknowledged in the presence of reputable witnesses that he would agree to a new trial. His principal assistant, Mr. Edward A. Cunha, made a virtual confession of guilty knowledge of the facts relating to Oxman, and promised, in a spirit of contrition, to see that justice should be done the man who had been convicted through Oxman's testimony. The trial judge, Franklin A. Griffin, one of the first to recognize the terrible significance of the expose, and keenly jealous of his own honor, lost no time in officially suggesting the propriety of a new trial. The attorney general of the state, Hon. Ulysses S. Webb, urged similar action in a request filed with the Supreme Court of California.
Matters thus seemed in a fair way to be rectified, when two things occurred to upset the hopes of the defense. The first was a sudden change of front on the part of Fickert, who now denied that he had ever agreed to a new trial, and whose efforts henceforth were devoted to a clumsy attempt to whitewash Oxman and justify his own motives and conduct throughout. The second was a decision of the Supreme Court to the effect that it could not go outside the record in the case - in other words, that judgment could not be set aside merely for the reason that it was predicated upon perjured testimony.
There are excellent grounds for believing that Fickert's sudden change of attitude was prompted by emissaries from some of the local corporate interests most bitterly opposed to union labor. It was charged by the Mooney defendants, with considerable plausibility, that Fickert was the creature and tool of these powerful interests, chief among which are the Chamber of Commerce and the principal public-service utilities of the city of San Francisco. In this connection it is of the utmost significance that Fickert should have entrusted the major portion of the investigating work necessary in these cases to Martin Swanson, a corporation detective, who for some time prior to the bomb explosion had been vainly attempting to connect these same defendants with other crimes of violence.
Since the Oxman exposure, the district attorney's case has melted steadily away until there is little left but an unsavory record of manipulation and perjury, further revelations having impeached the credibility of practically all the principal witnesses for the prosecution. And if any additional confirmation were needed of the inherent weakness of the cases against these codefendants, the acquittal of Mrs. Mooney on July 26, 1917, and of Israel Weinberg on the 27th of the following October would seem to supply it.
These acquittals were followed by the investigation of the Mediation Commission and its report to the President under date of January 16, 1918. The Commission's report, while disregarding entirely the question of the guilt or innocence of the accused, nevertheless found in the attendant circumstances sufficient grounds for uneasiness and doubt as to whether the two men convicted had received fair and impartial trials.
Ordinarily the relentless persecution of four or five defendants, even though it resulted in unmerited punishment for them all, would conceivably have but a local effect, which would soon be obliterated and forgotten. But in the Mooney case, which is nothing but a phase of the old war between capital and organized labor, a miscarriage of justice would inflame the passions of laboring men everywhere and add to a conviction, already too widespread, that workingmen can expect no justice from an orderly appeal to the established courts.
Yet this miscarriage of justice is in process of rapid consummation. One man is about to be hanged; another is in prison for life; the remaining defendants are still in peril of their liberty or lives, one or the other of which they will surely lose if some check is not given to the activities of this most amazing of district attorneys.
McDonald said to me, "Unless I get a job I'm going to spill everything to Fremont Older."
I went to Lieutenant Goff and warned him to arrange a job of some kind for McDonald. Then he was given a job - in Tracy or somewhere in the interior of the state.
He didn't tell everything then, but I'm sure that he'd tell the truth if he were brought here now.
About a week before the trial of Thomas J. Mooney, Assistant District Attorney Ed Cunha sent for me and I went into his private office. He read over the testimony which I had given in the Billings trial. He said to me: "You had better make the time that you saw the man set the suitcase at 1:30 instead of 1:50." I said to him: "Mr. McNutt will grab that right away; he will see that I changed my testimony from what it was in the Billings trial."
He said, "Oh, hell, we will beat him on that. You can say that you were not positive about it at the time of the first trial." He said, "You see, if that suitcase was set at 1:30 that would give them time to get back up Mission street on top of the Eilers' building".
I followed the instruction of Mr. Cunha, and said that I was not positive, that it might be between 1:30 and 1:45.