The Purple Gang: Organized Crime in Detroit, 1910-1945 (18 page)

The
chances of officials finding Solly Levine were
remote.
It had even been rumored that a relative of one of the convicted
Purple gangsters had traveled to Oklahoma City to see Levine in
regard to the affidavit which recanted his original testimony. When
Levine found this out he quit his job and left the city. Fleisher's
legal counsel continued to deny that they had any knowledge regarding
his whereabouts.

On
August 1st, 1932, Fleisher's trial was again adjourned as the result
of a request by Toy, who was still unable to locate Levine. Toy
explained to Van Zile that he wanted to exhaust every angle to find
the missing witness. This adjournment was vehemently protested by
Edward Kennedy Jr., who denounced the courtroom tactics as
a
ruse
to prevent Fleisher from his constitutional right to a speedy and
immediate trial. Kennedy correctly argued that it had been Toy
himself who was responsible for Levine being in hiding and out of the
jurisdiction of the court. Kennedy's objection was overruled.

Toy
finally established that the court could not use the testimony of the
original murder trial against Fleisher. The only way that this
procedure was legal was if the court could prove Fleisher was
directly preventing Solly Levine from returning to testify. The
defense continued to argue that Fleisher had spent September 16th,
1931 in a Reading, Pennsylvania, jail cell.

The
murder trial of Harry Fleisher opened before Judge Henry S. Sweeny in
Detroit Recorders Court on September 7th, 1932. At the start of the
trial Toy made a motion for dismissal of the case against Fleisher
based on a legal motion of Nolle Prosequi (dismissal of the case
without prejudice). Toy charged in his statement that organized
gangdom had effectively prevented Sol Levine from testifying against
Fleisher. Edward Kennedy Jr. opposed the Nolle Prosequi motion
stating that Fleisher should have the right of a speedy trial. The
case was sent to Judge Edward Jefferies, the presiding Chief Judge
Jeffries then dismissed the case on the Nolle Prosequi motion.
Fleisher was immediately turned over to the U S Marshal's office on
the Leonard Warehouse indictment. In his motion to dismiss Prosecutor
Toy argued that stenographers' notes on Solly Levine's testimony used
in the original trial to convict Keywell, Bernstein and Milberg could
not be used against Harry Fleisher. Under Michigan law Fleisher would
have had to be present for Levine's original testimony. The defendant
was entitled to the right of confronting and cross examining the
witness, as required by the Michigan Constitution as well as the
Constitution of the United States in all criminal cases.

Toy
emphasized that Fleisher had surrendered to authorities only after
Sol Levine could not be located Toy noted that police officials
believed Levine's absence was caused by gang associates of Harry
Fleisher The prosecutor believed that if the State went to trial it
could not win the case against Fleisher. If other evidence was
discovered at a later date or if Levine appeared, Fleisher would
never again be able to be tried for the murders, as he would then be
placed in double jeopardy. The only thing left to do in Toy's opinion
was to dismiss the indictment without prejudice, essentially leaving
the case open. If evidence could be found at a later date, Fleisher
could still be charged on the original murder warrant

In
October of 1932 the Michigan Supreme Court upheld the murder
convictions of Bernstein, Keywell
and
Milberg. In the official statement handed down by the court, Purple
attorney Edward Kennedy Jr. was authorized to ask Judge Donald Van
Zile to reopen the case if new evidence was uncovered.

In
April of 1933 Kennedy submitted a request to Judge Van Zile to allow
New York attorney Fred D. Kaplan to be admitted to practice law in
Detroit. This was in preparation for filing a second motion for a new
trial in the Collingwood case. Kaplan would appear in court as a new
part of the Purple defense team if for some reason Kennedy could not.
He was admitted by Judge Van Zile.

Kaplan
was a former law partner of Mew York criminal attorney Isiah Leebove.
Leebove had caused a sensation of his own in Michigan when he sought
a private meeting with Bernstein, Milberg and Keywell in Marquette
Prison. Having recently been named a special advisor to Governor
William Comstock. It was widely believed that he was going to use his
political influence with the Governor to get a new trial for the
convicted Purple gangsters.

Leebove
had already gained notoriety in Mew York by successfully defending a
number of major Mew York mobsters, including Arnold Rothstein, "Legs"
Diamond, and "Dapper" Don Collins. He was a principal
contributor to the Comstock gubernatorial campaign. After the
election Leebove was appointed by the Governor to make a study of the
Michigan prison system and recommend cost cutting changes. His former
law partner, Fred Kaplan, was retained by Joe Bernstein.

The
second motion for a new trial in the massacre case was filed on
Monday, July 16, 1933, by Edward Kennedy Jr. The motion was based on
thirty affidavits,
three
of which were from the prisoners themselves and another from a former
Reading, Pennsylvania, police officer.

The
affidavits were comprised of 156 pages of supposedly new alibi
evidence. Essentially, the new information claimed that Harry Keywell
and Ray Bernstein were placing telephone bets with bookmakers around
the country on the afternoon of September 16th, 1931 when the
massacre took place. These bets were made from the home of
Bernstein's sister, Mrs. Jean Winston. Irving Milberg stated that he
was in bed most of the day, and Harry Fleisher spent that day and
night in a Reading, Pennsylvania jail cell. The nature of the alibis
presented in the motion for a new trial demonstrated the tremendous
influence that the Purple Gang wielded at the time. This influence
was not only local but included important contacts in the national
underworld.

In
a statement to the court, Abe Bernstein claimed that he had obtained
long distance telephone records from a former superintendent of the
Michigan Bell Telephone Company named Lou Bert, supposedly
Bernstein's personal friend. These phone slips showed that long
distance phone calls had been placed from the Bernsteins' sister's
home on the afternoon of September 16, 1931, to Cincinnati, Chicago,
and New York.

They
had been made between the hours of 2:00 p.m. and 4:00 p.m. (the
massacre occurred between 3:25 and 3:30 p.m. on the 16th). Bernstein
explained that the phone slips, documenting a $1200 horse bet, had
not been mentioned in the original Massacre trial because he had
misplaced them. They were not found, according to Bernstein, until
April of 1932.

The
phone company superintendent died shortly before the Collingwood
trial began. Abe Bernstein now claimed that if this had not happened
he would have been able to produce the telephone records sooner.
Additional affidavits were presented to substantiate Abe Bernstein's
statement. These statements were signed by out-of-town bookies. The
bookmakers stated that they had accepted bets from Ray Bernstein and
Harry Keywell on the date and times mentioned in Abe Bernstein's
information. Milberg and his wife Bertha swore in their affidavit
that they had been up all night playing cards until 7:30 on the
morning of September 16, 1931. They then went to bed and did not get
up until 3:30 that afternoon. Harry Fleisher was reported to have
spent the night in a Reading, Pennsylvania, jail under the name of
Harry Fishman.

A
signature on the Reading jail arrest ticket for September l6, 1931
perfectly matched Fleisher's handwriting sample. Kennedy was asked by
the court why the phone call evidence offered by Abe Bernstein was
not presented as information in the original Massacre trial. Kennedy
claimed that because Bert had died the day before testimony was to be
taken, duplicate phone call receipts could not be produced. Kennedy
told the court that he thought if Abe Bernstein had testified that he
had lost the original receipts in his possession, it would have
looked ridiculous to a jury. Therefore, he chose not to use the alibi
evidence. Kennedy was then asked by the court why he did not include
the evidence of the telephone calls when he filed the first motion
for a new trial. Abe Bernstein had supposedly found the misplaced
slips again that April. Kennedy had no answer to this question.

On
August 8th, 1933, Harry Fleisher was introduced as the first alibi
witness. Defense attorney Kaplan told the court that by establishing
Fleisher's innocence in the Collingwood affair he hoped to introduce
new evidence in favor of the three convicted Purples and their legal
struggle for a new trial. Kaplan further argued that the original
evidence used to arrest Bernstein, Milberg, and Keywell was
insufficient as no one had identified the three Purples, not even
Solly Levine. According to Kaplan, Levine had been subjected to
torture at the hands of the police and did not recall himself whether
he had identified any of the defendants during the initial
questioning.

Kaplan
pointed out that even as late as September 18th, 1931 Toy had spoken
of five men leaving the murder scene and was not sure if Solly Levine
was one of them. Kaplan also presented an affidavit in which Levine
denied all previous statements and again claimed that he was forced
by the police to name the four Purples in the murders. This affidavit
was supposedly substantiated by a police prisoner in the cell next to
Levine's during the interrogations. This man claimed that Levine had
been beaten and brutalized by police. He further stated that Levine
told him police tried to force him to implicate more Purple gangsters
in the Collingwood murders, including Abe Axler and Joe "Honey"
Miller.

That
same day the prosecutor began blowing holes in the defense alibi
affidavits. The lost telephone receipts that had been provided by Abe
Bernstein were discredited by a Bell Telephone Supervisor named
Joseph Brett and by Superintendent Burt's former secretary. Both Bell
employees stated that they had never met Abe Bernstein before and had
never seen the phone slips presented by the defense. They also
destroyed
the defense team's argument that the lost telephone slips could not
be duplicated. Both testified that all telephone record slips were
held by the company for six months and then destroyed. Bernstein
could have obtained copies of the slips on request at any time during
the six month period, without having to secret them out of telephone
company files. Toy argued that if Bernstein had really lost the slips
as he claimed, the defense could have easily gotten duplicates.

Toy
also destroyed the Milbergs' alibi. In an affidavit given shortly
after the massacre, the Milbergs' maid claimed Irving Milberg left
home shortly after noon on September 16, 1931, and did not return
until 6:00 p.m. She also added that when Milberg returned home he was
too nervous to eat dinner. Mrs. Milberg found out that the maid made
a statement to Detroit police and promptly fired her. She claimed
that several days later she was approached by Mrs. Milberg and a man
she did not know, and offered $130 plus back pay if she would stay
away from the trial and not testify. The maid agreed not to testify
for fear that she or her child would be harmed.

Affidavits
from two former Reading, Pennsylvania, police officers presented by
the defense were also successfully refuted by Toy. The first
affidavit presented by the prosecutor was from J. Stanley Giles, the
Reading Police Commissioner. In the affidavit Giles explained that
all records of arrests were first entered on a yellow sheet in long
hand then typed onto a pink sheet when placed in the official
records. The name Fishman (Fleisher's alias when he was arrested) did
not appear on any yellow sheet for the week in question. The name,
however, had been found on a pink sheet dated September 18th, 1931,
that had obviously been tampered with. Another affidavit was
presented by Toy from a Sergeant Jacob Rapp of the Reading police.
Rapp claimed that there was no arrest record of any man named Fishman
in the docket during the time in question. A police clerk named Deem
swore in another affidavit that he had searched the records from
September 9th, 1931 to December 31st, 1931. He found no record of the
arrest of a man named Fleisher or Fishman. Deem claimed that he
personally typed all of the pink sheets. The one that was presented
by Purple Gang defense attorneys was not typed by him and was in fact
typed on a different typewriter than the machines normally used by
the department. Deem said that in his opinion the original sheet had
been removed from the book and replaced by another sheet bearing
Fleisher's signature using the alias "Fishman."

The
most incriminating affidavit refuting Fleisher's alibi came from
Samuel Kirchoff. Kirchoff was a guard at the Reading jail. He worked
the midnight shift from midnight to 8:00 a.m. and had never seen
Harry Fleisher in his jail. He would have remembered him if he had.
He also had no recollection of a man named Fishman arrested on the
date mentioned by the defense. Kirchoff did acknowledge, however,
that on October 23th, 1931, the acting captain of detectives came to
him and told him that there had been a mistake in the records. He
then ordered Kirchoff to make out two arrest record tickets for two
persons he claimed were arrested a month or so before and to date
them September 16th, 1931. Acting captain Dentith then took the
tickets with the signatures of the prisoners left blank. Kirchoff
asserted that this incident was the only time in his eighteen years
as a jail guard that he was ever asked to make out an arrest ticket
after the day of the actual arrest.