Freedom's Detective Page 13
“Gentlemen, what say you?” the bailiff asked. “Is the prisoner at the bar guilty or not guilty?”
“Not guilty,” the jury foreman responded—whereupon Miner’s tense face spread into a grin and his friends erupted in applause. Judge Benedict pounded his gavel for silence. In disbelief, the prosecution asked to poll the jury. All twelve men concurred in the verdict. Within minutes, the counterfeiter was celebrating with champagne and lobsters at the Jockey Club uptown, accompanied by his lawyers—and several members of the jury.66
Whitley and his detectives, by contrast, lingered in the courtroom, staring blankly around them in utter shock.
* * *
Joshua D. Miner had escaped justice, despite the effort Whitley and his team poured into the case. In the process, Whitley’s reputation, and that of the Secret Service, had taken a hit. The trial was Whitley’s first appearance as Secret Service chief in a public forum, though he, and his men, had starred in the many newspaper accounts of the Secret Service’s exploits he served up to reporters—along with contraband cigars. New York knew little of his past. Now William S. Fullerton’s cross-examination had recast the master detective as a liar and kidnapper of freedom-seeking slaves and their white allies.
That Miner’s legal team did this with the aid of Beatty, Whitley’s former employee, made the outcome doubly galling. Possibly the only thing that might have stung Whitley more was the exultation Miner’s acquittal caused among his old foes in Columbus, Georgia. In that town, the editor of the Daily Sun greeted the news with an article trumpeting Judge Benedict’s instructions to the jury, and crowing about Whitley’s defeat: “Columbus has every reason to detest him and rejoice at the detection of his villainies.”
Whitley pasted a clipping of the Daily Sun piece in the scrapbook he kept at Bleecker Street and scrawled an angry rejoinder across it in pencil: “I arrested this man in 1868 for murdering Geo. W. Ashburn. They were Ku Klux.”67
The most pressing practical issue, though, was the possible impact on the Secret Service, if federal courts started to adopt the view of him and his detectives expressed in Judge Benedict’s skeptical jury instructions.
Prior to the Miner case, only one federal judge had told jurors to discount sworn testimony from detectives. In Whitley’s old haunt, New Orleans, Judge Edward Henry Durell—a transplanted New Englander who had worked with Union forces during the war—gave such instructions so frequently that Whitley had informed Solicitor Banfield in the fall of 1871 that he saw no point in continuing operations against counterfeiting in New Orleans.68
Judge Durell’s position was regrettable but tolerable, Whitley believed, given the relatively small scale of the counterfeiting business in the Deep South. However, if Durell’s interpretation “were to be confirmed by the other U.S. judges throughout the country,” he noted, “there would be an end to the detection of counterfeiters.” The Secret Service “would be paralyzed.”69
Now that hypothetical prospect seemed real; Judge Benedict, who handled most federal criminal cases in New York, the hub of counterfeiting in the United States, had echoed Durell’s view. After Miner’s trial, Whitley learned from seven of the jurors that they believed Miner guilty, but voted to acquit because of the judge’s instructions.70
The Secret Service chief decided to fight back—swiftly, and in the same bold, argumentative manner with which he had countered all of his previous antagonists, from R. M. Campbell in Cambridge to the pro-Klan newspapers in Georgia. He decided to send his own message to the future federal jurors of America.
* * *
As December 1871 gave way to January 1872, and a bitter winter cold wave enveloped the northeastern United States, Hiram C. Whitley sat down at his desk to compose an open letter, titled “To the People.” Salted with quotations from legal authorities, lyrics of Puritan hymns, and a full measure of Whitley’s abundant sarcasm, the document ran to some five thousand words. The Secret Service chief ordered it printed as a pamphlet and distributed to newspapers across the country. Over the last half of January, many papers republished it, either entirely or in part.71
It was an extraordinary direct appeal from a government official who owed his position neither to his fellow citizens’ votes nor to the votes of their representatives in Congress. Possibly for the first time in American history, an unelected federal bureaucrat openly advocated the undercover surveillance of civilians in peacetime, in frank defiance of the contrary views of a federal judge. Whitley declared that Judge Benedict’s views “should forever be denied a place in jurisprudence.” Undercover stalking of criminals, he insisted, was a noble calling, practiced by honorable men, who bore no bias against any individual, and whose “salary is in no manner contingent on the number of convictions secured.”
His detectives deserved comparison not with the criminals they pursued, Whitley wrote, but with the most skilled and humanitarian of professionals: “the detective...dissects society as the surgeon dissects his subject.” Accordingly, their testimony was perfectly credible, as was the testimony of counterfeiters whom detectives entrap and induce to turn against former partners in crime, Whitley argued. Having burned their bridges with their erstwhile confederates, such witnesses had little alternative to “sincerity” on the witness stand. They were “far more worthy of belief than the perjured friends of the culprit.”
Whitley acknowledged “many honorable people do not fully approve” of what he and his men do, “from the simple fact that they do not fully understand it.” The best answer to such well-meaning critics was that his methods worked. “The system of using one counterfeiter against another has created greater distrust, and caused more alarm among them as a class than the untiring labor of the most skilled detectives,” Whitley argued.
Obviously, infiltrating counterfeiting gangs involved lying and deception, as Judge Benedict had said, but, Whitley asked, “Is this a wrong done to the criminal, or a right done to society?” There was no alternative. “When fish bite at naked hooks, when nanny goats are adepts at catching weasels and expert rogues turn fools,” Whitley sneered, “counterfeiters can be caught without deception and the betrayal of mutual confidence.”
It was Whitley at his most articulate, logical, and pragmatic—aggressive, to be sure, but not sanctimonious. The Boston Times found Whitley’s arguments “plausible,” and praised the results the Secret Service had achieved against the coney traffic so far. The Pittsburgh Chronicle agreed with Whitley’s main argument that the damage counterfeiting did to the public “would turn the balance in favor of employing detectives.”72
* * *
Joshua D. Miner, however, thought that Whitley protested too much. The counterfeiter, recalling how the detective squirmed under cross-examination at his trial, decided to press the attack.
At the very time Whitley published his open letter, a Senate committee was on an extended visit to New York for hearings on allegations that officials at the gigantic New York Custom House had steered warehousing contracts to a crony of President Grant. The scandal had no direct connection to Whitley or the Secret Service, but Miner and his Tammany Hall lawyers took advantage of the situation to stage a further attack on their nemesis: they persuaded Democrats on the committee to call Abraham C. Beatty as a witness.
On February 6, 1872, Beatty sat before the committee and regaled the senators with his tale of alleged corruption at Whitley’s Secret Service, from the manipulation of moieties to the hoarding and distribution of contraband cigars. Miner’s lawyers had not called Beatty as a witness in the trial, probably to avoid cross-examination about his checkered past, so this was the first time he had testified personally in public. The New York newspapers splashed his allegations across their front pages.
Whitley, enraged, wrote Solicitor Banfield in Washington, assuring him Beatty’s “tissue of falsehoods,” was a story “only equaled perhaps by the famed legends of the Arabian Nights or of the Baron Munchausen.” His tes
timony, Whitley assured his boss, was part of Miner’s attempt at “breaking me down in the estimation of the government and the people.” The whole business might even be the prelude to an attempt on his life, Whitley wrote.73
Whitley demanded an opportunity to respond, and the committee gave it to him. His daylong testimony on February 8 represented the first time the chief of the Secret Service had faced Congress. The morning session consisted of mostly friendly questioning from Republican senators, who gave Whitley a platform to deny everything they had heard from Beatty—“certainly the most unmitigated scoundrel I ever met,” Whitley called him. He made an equally sweeping condemnation of the jury’s verdict in favor of Joshua D. Miner. It was the result, he said, of “rank perjury; I know it.”74
Whitley was confident and persuasive on that point, but when the committee resumed the hearing after a dinner break, Democratic Senator Eugene Casserly of California had consulted with Miner and his lawyers, who occupied seats near the front of the committee’s makeshift auditorium—a grim basement storeroom in the opulent Fifth Avenue Hotel. Facing questions from Senator Casserly scripted by Miner’s team, Whitley “seemed very anxious to exculpate himself,” and “spoke so rapidly as to be hardly understood,” a journalist noted.75 He repeatedly claimed lapses of memory about his dealings with Beatty. Senator Casserly confronted Whitley about his Boston pawnbroker license, about the contraband cigars stockpiled at Bleecker Street—and about his time in Kansas before the Civil War.
“Were you ever engaged during that period...in catching runaway Negro slaves?” Casserly asked.
“I went, sir, by request of an officer, and aided him in the execution of the fugitive-slave law,” Whitley responded, adding that he had gone along “at the suggestion of a friend,” and “never received a cent for it.”
“Now do you think an amateur hunter of runaway Negro slaves is more respectable than an official hunter of them?” Casserly sneered.
“Yes, sir,” Whitley insisted, as Miner’s friends hooted with derision.76 “I did this in a legal manner, and...did no wrong against the law or anything else.” He claimed, preposterously, that the captured African Americans had voluntarily returned with him and the rest of the posse to Missouri. “They saw their master and they were tickled to death.”
Senator Casserly ridiculed this obvious falsehood. “Then it was a philanthropic pursuit you were engaged in, was it?”
Toward the end of the long evening, Senator Casserly tried to get the Secret Service chief to admit that, given Miner’s acquittal, the deal Whitley struck with Harry Cole had “resulted in nothing,” except for enabling that known counterfeiter to go free.
To this, Whitley did have a convincing answer: despite the acquittal—based on perjury, he hastened to repeat—his investigation had resulted in the capture of Miner’s counterfeiting plates, presses, and money-fabricating matériel, including Thomas Ballard’s ersatz fiber paper. None of that would have been achieved unless Cole had cooperated.
“It was a very valuable transaction to the Government, according to my judgment,” he said. “It broke up a very extensive gang of counterfeiters of which Miner was the head.”
Miner and his friends were not laughing now. Whitley was right. Miner’s counterfeiting organization could not easily recover from its thorough exposure in court. Neither would Miner’s reputation as a legitimate businessman; acquitted or not, undisputed evidence at his trial established that he agreed to meet with known criminals like Bill Gurney and Harry Cole. The erstwhile Tammany big shot could not readily explain that. He had his freedom, but was “far from coming out of the ordeal with clean hands or with an untarnished name,” the New York Sunday Dispatch opined.77 In fact, there were still separate indictments pending against him, though it was unclear when or if he would face trial on those charges.
Every fiber of Whitley’s contentious being told him to keep on talking—to litigate, in the court of public opinion, against both Miner’s attempted character assassination and Judge Benedict’s more legalistic, but no less damaging, criticism. His open letter was still circulating, in pamphlet form, and it was winning him a few converts.
Whitley decided to play his ultimate card: the Secret Service’s confidential dossiers.
Squirreled away at Bleecker Street were a half dozen out-of-court statements from “Jot” Miner’s former neighbors in Steuben County, detailing his youthful criminal activities, and those of his family. These raw investigative files described counterfeiting and horse-stealing by the Miners going back to the 1840s; a former judge had told Whitley’s detectives that Miner was hauled into his court in 1854 on a charge of bastardy by the unwed mother of his now eighteen-year-old daughter. Such allegations could not be introduced at Miner’s trial, but would certainly taint perceptions of the contractor once they did enter the public domain.
Whitley cleverly understood that they would be most damaging to his enemies if they appeared to come from someone else’s mouth. He approached an old acquaintance, Massachusetts journalist George P. Burnham—a former United States Army mess hall boss, Republican Party spoilsman, and poultry breeder—whose previous published book History of the Hen Fever, recounted the speculative mania in exotic chicken breeds that swept the United States in the 1850s.78 Whitley asked Burnham to be the credited author of a book, derived from the Secret Service’s records, that would present the division and its men in the best possible light, and their underworld opponents in the worst.
The 436-page result, Memoirs of the United States Secret Service, appeared within weeks of Whitley’s testimony before the committee. The epigraph, a quotation from a French monarchist journalist who fled that country’s Revolution in 1789, Antoine Rivarol, set the tone: “Wrong is wrong. No fallacy can hide it, no subterfuge cover it so shrewdly but that the All-seeing Eye will discover it and punish it.” This French allusion was in keeping with the book’s contention that the Secret Service arose because “it was...deemed advisable that our National Government should inaugurate an elaborate plan of detection—similar to that supported advantageously in European countries.” The first chapter, a twenty-nine-page biography of Whitley, praised him for combining “a Fouché’s power of organization and combination, with the executive capacity of a Vidocq.”79 He had put these gifts to work on behalf of the federal government in the Ashburn case—which had “previously baffled all predecessors”—and in his more recent battle against the counterfeiters. His fight against crime had inevitably prompted a “stealthy attack” from “vilifiers,” but Whitley possessed the “true moral courage” to withstand it.
Yes, Whitley had helped in the capture of “certain fugitives he encountered or followed up” in Kansas before the war, but that was a youthful indiscretion, attributable to his lack of “the training that was needed for one to cope with the prejudices of the people he found there.” As much as Whitley now “regretted” this “mistaken course,” it reflected his otherwise admirable zeal about “the supremacy of the law,” and the law, at that time, included the Fugitive Slave Act. Like many others at the time, he “honestly then believed that he was following the right in lending his assistance to the government,” Memoirs noted.
It was a self-serving account, a blatant attempt at limiting the damage he sustained during the Miner trial and the committee hearing. It was also as close as Whitley would ever come to apologizing for his treachery toward John Doy. If anyone still held that against him, Memoirs offered a final argument: nowadays Whitley enjoyed the “unlimited confidence” of the Grant administration, from President Grant, Secretary Boutwell, and Solicitor Banfield on down. If he was good and honorable enough for stalwart Republicans and antislavery men such as these, he should be good and honorable enough for anyone.
The same applied to the men who worked for Whitley, who must be “honest, temperate, morally upright, and of good general standing in the community.” Memoirs presented laudatory biographies of selected detect
ives: Ichabod C. Nettleship, Abner B. Newcomb, Thomas Lonergan, Charles Anchisi. Through detailed recitation of their educational, business, and military credentials—accompanied by handsome “accurate portraits”—these chapters sought to persuade the public that Judge Benedict’s mistrust of undercover operatives was biased and out-of-date: “It can hardly be fairly said of men such as these...that they are not worthy of being believed, on oath.”80
Memoirs contrasted the detectives’ qualities with those of the counterfeiters whose evil deeds the book described in lavish detail. The criminals’ likenesses appeared in Memoirs, too: Whitley wanted to be sure that people everywhere knew not only the damning contents of the Secret Service’s files about these men, but could also recognize their faces.
The portraits were drawn by professional illustrators from photographs Whitley had ordered taken of suspected counterfeiters while in custody, and which he hung like trophies on the walls of his Bleecker Street office. This “rogues’ gallery,” much commented-upon by visiting journalists, was no mere publicity ploy.81 It represented the first systematic use of photography as an identification tool by a federal agency. With this innovation, Whitley kept pace with police departments in London, Paris, and Berlin that adopted photographic technology in the 1870s.82
The book’s dramatic final chapter laid out, almost verbatim, everything the Secret Service had on “the autocrat of American coney men,” Joshua D. Miner, including that previously secret affidavit about his out-of-wedlock child. Miner had escaped formal punishment for counterfeiting, due to Judge Benedict’s words, Memoirs acknowledged. Nor would Joshua D. Miner face trial on the charges still pending against him after his 1871 acquittal. Judge Benedict ruled that out as a form of double jeopardy.83
Still, on what Whitley considered the key long-term issue—whether the courts would accept his detectives’ testimony—his view, not Judge Benedict’s, would ultimately prevail. Whether due to Whitley’s advocacy or other factors, more and more federal judges concluded that detectives could indeed be trusted. One judge in New Jersey instructed a Trenton grand jury in 1873 that “there had been too much disposition on the part of the press and public to find fault with” the Secret Service. A few years after the Miner trial, even Judge Benedict would change his tune, telling a detective he “would be pleased to have any and all members of the Secret Service...give any information that would throw light on any case.”84