Tom Mooney Trial: 1917

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Tom Mooney Trial: 1917

Defendant: Thomas J. Mooney
Crime Charged: Murder
Chief Defense Lawyers: W. Bourke Cockran and Maxwell McNutt
Chief Prosecutors: Edward A. Cunha and Charles Fickert
Judge: Franklin A. Griffin
Place: San Francisco, California
Dates of Trial: January 3-February 9, 1917
Verdict: Guilty
Sentence: Death by hanging, later commuted, then pardoned

SIGNIFICANCE: Tom Mooney's case demonstrated how America's phobia about radicals from before World War I and through the 1920s and '30s corrupted its sense of justice and even its common sense. While the improper conviction of Mooney—based on perjury, suppression and fabrication of evidence, and subornation of perjury—was established within a year after the trial, political maneuvering kept him in prison until 1939. This failure of the legal system to acknowledge that a conviction based on perjured testimony justified a new trial is demonstrated that an unpopular defendant could be denied due process in the state of California.

Qn "Preparedness Day," July 22, 1916, a bomb killed 10 spectators and injured 40 others during a military parade in San Francisco. Opposition to the parade had been planned and announced by radical labor leaders and anarchists who thought the march promoted militarism, and who were against American entry into the World War then raging in Europe. The bombing looked like anarchists' work.

Within hours of the bombing, District Attorney Charles Fickert was visited by Martin Swanson, a private detective employed by the Pacific Gas and Electric Company (PG&E). Swanson suspected that the insurgent responsible for the parade bombing was 34-year-old Tom Mooney, a union organizer who had drifted through at least a dozen jobs across the country as an ironworker and had earned a reputation as "a corner" with officers of his union, the International Molders. Mooney had even drifted twice to Europe, where he was strongly attracted to socialism. Back in the United States, he had been an active orator and fund-raiser in the 1908 presidential campaign of Socialist Eugene V. Debs, who liked Mooney's forceful persistence and made him his "official party literature agent."

One of "The Blasters'

Swanson knew Mooney had been acquitted of possessing dynamite in a strike against PG&E. Swanson also implicated Warren K. Billings, another labor activist who had been convicted of transporting dynamite.

Billings, Mooney, his wife Rena and their friend Israel Weinberg, a taxi driver, were arrested immediately without warrants. Rena Mooney and Weinberg were charged with complicity; Billings and Mooney with murder.

Billings was tried first, convicted, and sentenced to life imprisonment—mainly on the testimony of John McDonald, who said he had seen Billings and Tom Mooney at the scene just before the bomb went off.

On January 3, 1917, opening the Mooney trial for the prosecution, Prosecutor Edward Cunha reviewed Mooney's earlier association with an organization called "The Blasters." Their stated goal was an uprising of California's workers, who would seize property and destroy the government. Their revolution called for violence, even the assassination of the president. For a week, Cunha presented circumstantial evidence, most of which had been seen or heard in the Billings trial.

A Surprise Witness—and a Jitney

Then Cunha came up with a surprise witness: one Frank C. Oxman, an Oregon cattleman who traveled frequently to California and Kansas, buying and selling cattle. He testified that he had arrived in San Francisco on the morning of the parade and was watching it when he saw a jitney containing five people turn from Market Street onto Stewart. As it stopped, men he identified as Mooney and Billings jumped out, put a suitcase on the sidewalk, and hopped back in the car. Oxman declared under oath that Weinberg was at the wheel, and Rena Mooney was visible in the car. Dramatically pulling a yellow envelope from his pocket, Oxman stunned the courtroom by announcing he had had the presence of mind to jot down the jitney's license number. It was Weinberg's.

The Mooney defense team, led by W. Bourke Cockran, was flustered by Oxman's sudden appearance. The defense did not ask for a recess while it could check on his credibility. It also failed to exploit the inconsistencies in the testimony of Oxman and McDonald, who had testified to seeing the defendants on foot, not in a car. It did not put on the stand any of the 18 policemen stationed along Market Street during the parade, any one of whom could have testified that they had orders to keep cars off Market Street that afternoon and that only two, with official passes, had trespassed on the parade route—neither one of which was Weinberg's jitney.

The Clock in the Photos

In his defense, Tom Mooney said he and Rena Mooney had watched the parade from atop the Eilers Music Company Building at 975 Market Street, 1.15 miles from the site of the bombing. To prove this, Cockran introduced three photographs taken from the roof by an Eilers employee. Enlargements made in the presence of two detectives revealed the time on a street clock down on Market: eight minutes, five minutes, and two minutes before the bomb went off. In each photo, Tom and Rena Mooney could be seen in the foreground, on the rooftop. In addition, 12 witnesses swore that Tom Mooney had been there throughout the parade.

The defense tried to show that Mooney was being framed. Weinberg testified that private detective Swanson had earlier tried to bribe him. Cockran asked for a directed acquittal, but Judge Franklin A. Griffin ruled that was up to the jury.

The district attorney himself, Charles Fickert, summarized for the prosecution and asked for the death penalty. His stirring words urged the jury to be fearless:

For, with conscience satisfied with the discharge of duty, no consequence can harm you. There is no evil that we cannot face or fly from but the consciousness of duty disregarded. A sense of duty pursues us ever. It is omnipresent like the deity …

The D.A. went on for another minute or two in this vein, an inspiration to juryman and spectator alike. But on the front page of the Bulletin that evening, two reporters revealed that the same inspiration had been uttered, word for word, by Daniel Webster at a murder trial in 1830.

Defense attorney Maxwell McNutt's summation to the jury charged that Martin Swanson had devised a frame-up—an idea that prosecutor Cunha labeled absurd. Judge Griffin advised jury members they were entitled to question the trustworthiness of the prosecution if they viewed the arrest of the defendants without warrants as a violation of their rights, and he invited them to weigh the credibility of the witnesses as well.

In 6 and one-half hours, the jury found Tom Mooney guilty of first-degree murder and recommended the death penalty.

Letters to an Old Friend

Within two months, an old friend of Frank Oxman named Ed Rigall tried to sell the prosecutors several letters that Oxman had written him soon after the bombing, inviting him to San Francisco to swear that he had been with Oxman at the parade. It turned out that Oxman had arrived in the city four hours after the bombing and later, upon learning that the reward for information leading to the conviction of the perpetrator had climbed to $15,350, had had another friend inform Cunha that he, Oxman, was available as a witness.

Mooney's defense team got hold of the letters and published them. Subsequently the juries in Weinberg's and Rena Mooney's trials for complicity in the bomb murders found them each not guilty. Oxman was tried for subornation of perjury and acquitted. Meanwhile, Mooney sat on death row in San Quentin prison. In March 1918, the California Supreme Court upheld his conviction. Execution was set for August 23. President Woodrow Wilson appealed to the California governor, William D. Stephens. Demonstrations on Mooney's behalf were being held around the world. William Randolph Hearst, reversing the support his papers had given District Attorney Fickert, announced that Mooney should not be put to death. "Mooney Day" was celebrated nationwide in July, with speeches by top labor leaders and liberals, and the governor approved a reprieve. In November, Judge Griffin proposed a pardon and retrial. Two weeks before the scheduled hanging, the governor commuted Mooney's sentence to life imprisonment.

For 20 more years, attempts were made to free Mooney through legal channels. But California had an outdated system for review of convictions, and the courts declared there was no procedure that could give him a new trial based on the evident perjury. Every governor during these two decades refused to take the political risk involved in freeing the radical. From his prison cell, Mooney himself interfered with his lawyers, passing up at least one chance to ask for parole.

In 1939, Democratic Governor C. L. Olson, five days after his inauguration, gave Mooney an unconditional pardon. San Francisco then saw another Market Street parade—a victory procession with Tom and Rena Mooney, with the mayor, and prominent labor leaders at the head.

Mooney lived only three more years. For most of that time, he was bedridden with illnesses contracted in prison.

—Bernard Ryan, Jr.