"The System," As Uncovered by the San Francisco Graft Prosecution

by Franklin Hichborn

“In reply to your inquiry I cannot state when I shall return to San Francisco, if at all. I may remain here.”

In my judgment a review of the showing up to this time leads to the inference that the witness left this jurisdiction and is remaining away because of some form of understanding or agreement. The circumstances under which he left California clearly show that he was acting guardedly, notwithstanding the testimony, which there is no reason to doubt, that he informed several persons of his intention to take a trip. When the quoted statement of Robert F. Gallagher was first made I was disposed to assume that the witness left the State principally because he believed the prosecution was at an end, and that he made his plans quietly so that the step would not occasion comment. In other words, that he did not believe there would be any further attempt to prosecute the so-called graft cases. But from a study of the entire showing I cannot adhere to that theory. I repeat that up to the time his presence was discovered in Vancouver, the showing was uncertain as to whether he really intended to return to California, and if so, when he would return. It was to be seen that the action of the Court would be influenced by this uncertainty, so when the exigencies of the situation called for a definite showing as to the witness’ intentions, he seems to suddenly appear in Vancouver, where, under the treaty conditions, he would be safe from extradition, and is promptly discovered by the reporter of a New York paper. In the clippings his quoted statements on the subject of his intentions are unequivocal. He is to make his home in Vancouver. But his personal communication to Thomas J. Gallagher, already referred to, which he probably realized would be produced in Court, is significant in tenor and he is apparently less certain of his intentions. This would tend to make his future action consistent should he hereafter return to California. From the entire showing I do not entertain any serious doubt as to what his real purpose is. I am inclined to believe that when the necessity for his presence as a witness has passed he will return. To entertain any other view, or be in serious doubt on the point, is to ignore the inherent probabilities of the showing and to deny a fair consideration to the known history of this litigation.

Now, it must follow that if the witness has left and is remaining away from the State because of an arrangement of some nature affecting these cases, the responsibility for his absence should be placed where it belongs. On April 25th, 1910, the District Attorney stated to the Court:

“... and it appearing also that James L. Gallagher left with the consent and connivance of those who had preceded me in office, I at this time do not wish to assume any responsibility for his disappearance. Whether he shall return or not I cannot say. Some of the witnesses who were called here testified that he went away with the intent and with the purpose of embarrassing my administration and that he was supposed to keep away until such time as certain persons would request his return....”

The foregoing fairly states the position of the District Attorney on this point, as repeatedly expressed in Court since he first moved the dismissal of these indictments. If the charge that the former administration entered into a bargain with the witness to default be true, there would be no alternative but to dismiss the indictments without delay. But I have found no evidence in the showing tending to support so grave a charge, and upon sound reasoning it would seem to be opposed to every reasonable probability. According to the showing, William J. Burns left the State about three weeks in advance of the witness, and, so far as the Court is advised, he has not since been in the State. That the former administration may have distrusted the official intentions of the District Attorney toward these indictments might be assumed from all the surrounding circumstances. But it does not seem probable that the former administration would induce a material and indispensable witness to leave the State and thereby make it easy for the District Attorney to secure a result which otherwise might entail serious embarrassment. So far as the showing is concerned there is no tangible proof tending to support the charge of the District Attorney, nor is there any proof which would justify such an inference.

Nor, on the other hand, do I find any formal evidence in the showing which tends to bring the responsibility for the disappearance of the witness home to these defendants. In the absence of tangible proof neither side should be charged with so grave an act. But if there has been complicity on the part of either of the parties, every effort should be made before disposing of these cases finally to establish the facts. It has been pointed out that if the former administration entered into a bargain with the witness looking to his absence, the application should be granted without delay. And clearly, if the defendants are responsible for the absence of the witness, under a familiar maxim of the law, the application should be promptly denied. (Sec. 3517 Civil Code.) There being no tangible proof, therefore, before the Court, of the complicity of the parties, should the pending application be granted at this time?

A person accused of crime is entitled to a speedy trial. (Sec. 13, Art. I, Const.) This fundamental right has been made the subject of statutory provision. The second subdivision of Section 1382 of the Penal Code provides that:

“Unless good cause to the contrary is shown, the court must order the prosecution to be dismissed if the indictment is not brought to trial within sixty days after the filing thereof.”

More than sixty days have run in favor of this application, and the question presented at this time is whether the showing touching the absence of James L. Gallagher shall constitute “good cause” within the meaning of the law. This term must be construed and applied according to the peculiar circumstances of each case. It should be interpreted so that the rights of both parties shall be equally recognized. The absence of a material and indispensable witness for the People would, under proper circumstances, constitute good cause, provided that good faith and diligence are shown in the effort to produce the witness. In re Bergerow (133 Cal., 349) is a leading authority on this question and is almost invariably cited in support of applications of this character. It is proper to point out that in the prevailing opinion the Court studiously eliminates from the pertinency of the authority the absence or illness of a witness for the prosecution.

The conclusion I have reached is that under the law, and the surrounding circumstances, including the recent action of the witness, that another reasonable continuance should be directed in order, if possible, that the duty of the Court in the premises shall be rendered more clear. At this time the Court is not satisfied that the relief sought should be granted. On the other hand it is realized that a final decision should not much longer be delayed. In the determination of this matter the Court, while fully recognizing the rights of the defendants, is mindful of the rights of the People and its own sense of responsibility, and is anxious to avoid a decision which will serve as a mischievous precedent.