Legal Studies Forum
Volume 29, Number 2 (2005)
reprinted by permission Legal Studies Forum
CRIMES GONE BY
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Collected Essays of Albert Borowitz
1966-2005
THE JUDGE'S BLACK CADILLAC *
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Cleveland's Death Corner, the intersection
of East 9th Street and Hamilton Avenue, no longer exists. Lost in the Erieview
complex, the locale of the Kagy murder can be summoned up only by the most
imaginative mind's eye.
The killing took place with startling suddenness
shortly after midnight on Saturday, May 8, 1920. A black Cadillac touring
car drove up East 9th Street towards Lake Erie and stopped at the corner
of Hamilton. A number of passersby saw three men get out of the car and
heard words of argument. A shot was fired, and one of the men staggered
away and fell in the doorway of a nearby garage. The two other men vanished
in different directions, abandoning the Cadillac at the murder scene.
The police quickly identified the car as belonging
to William H. McGannon, first chief justice of Cleveland's Municipal Court
and expected to be the next Democratic candidate for mayor. A familiar
figure to Clevelanders, McGannon -- about six feet tall and 250 pounds,
a fashionable dresser credited with introducing the "Chesterfield" overcoat
to his city -- was recognized downtown shortly after the shooting; Detectives
Burkhardt and Skala passed him in front of the lamented Weber's Cafe that
used to stand on Superior Avenue near Public Square.
The victim was rushed to Lakeside Hospital,
where he lingered in great pain until his death on May 23. He was an automobile
dealer and mechanic named Harold Kagy. From the moment the police discovered
him crumpled in the garage entrance until his final statement shortly before
his death, Kagy steadfastly maintained that he had been shot by another
passenger in the Cadillac, John Joyce, a professional bondsman and saloonkeeper,
who had a few days before the murder been arrested on a Prohibition charge.
Kagy was extremely reluctant to talk about the third passenger in the car,
who he admitted had been his good friend Judge McGannon; however, his two
brothers, who heard his last words, understood him to say that the judge
had left the car at 9th and Euclid before it proceeded further north to
Hamilton.
The conflicting narratives of Kagy, Joyce
and McGannon became the subject of three murder trials and a perjury prosecution.
These court proceedings did little to resolve the bewildering variances
in the three companions' accounts of the crime and of the events that preceded
it.
In his final statement, made under oath in
the presence of his brothers but excluded from evidence at the trials on
the ground that it was not a dying declaration, Kagy said that after McGannon
had left the car, the following events transpired:
[653]
Joyce asked me to take him to a place near Hamilton
Avenue, NE and East 9th Street. When we got there and got out of the car,
he asked to be taken somewhere else. When I told him it was time to put
the car in the garage and that I couldn't take him any further, he said,
"Well, I have a way of making people do what I want."
Johnny Joyce had a very different version of the night's occurrences, though
for a long time he appeared to share Kagy's unwillingness to implicate
Judge McGannon. In June 1920, Joyce reportedly told the prosecutor that
the shooting had resulted from a quarrel over a stolen automobile. A man
he did not name had drawn a revolver and aimed it at Joyce, saying, "I'll
fix you." Johnny turned, and as he did so, the bullet passed him and struck
Kagy in the back. The car-theft story had a short life; when Joyce faced
murder charges in the light of Kagy's repeated accusations, he pointed
the finger unambiguously in the judge's direction. His ultimate version
of the tragedy was as follows:
At about ten o'clock on Friday night, Joyce
dropped in at Ferguson's at Euclid Avenue and Coltman Road. (Since this
was Prohibition, the Cleveland Plain Dealer politely described the
premises as a "former saloon.") At about eleven, Judge McGannon came in
with Harold Kagy, to whom Joyce claimed McGannon introduced him for the
first time. The entire party was under the influence of liquor -- Joyce
the most intoxicated and Kagy the least. The judge asked Joyce to join
them in a ride downtown. Kagy took the wheel; McGannon was at his side
and Joyce sat in the rear. At University Circle, they stopped the car and
each took another drink from the bottle they were carrying. At East 79th
Street, the car stopped again and the trio finished the contents of the
quart and threw the bottle onto the street. When the car reached Euclid
and East 9th Street, Kagy turned north to Hamilton. Joyce was asleep most
of the time, but on the way downtown he overheard McGannon and Kagy quarrelling
about money.
When Joyce got out of the car, he felt ill
and leaned against a lamp post as if to vomit. As he stood there, Kagy
and McGannon resumed their quarrel, and Joyce and other witnesses standing
by heard remarks such as "I'll stand for nothing like that," and "What
did you do with the money?" Shortly afterwards, while Joyce was still slumped
against the lamp post, a shot was fired. He stumbled away from the scene
and eventually slept off his drunkenness in his office at 718 Superior
Avenue.
Judge McGannon (whom the Plain Dealer,
anticipating Graham Greene and Orson Welles, delighted in referring to
as "the third man") was first questioned by the police at his home about
two hours after the shooting. He told Captain Charles Sterling and the
other detectives who had roused him and his wife from sleep -- and he always
insisted there-after
[654]
-- that he had left the car before it arrived at Death Corner. He said
that he had left City Hall a little after 4:00 p.m. on Friday and met Kagy
at Euclid Avenue and East 55th Street about 8:00 p.m. Kagy was driving
the judge's Cadillac, which he had taken to repair, and the two men tested
it out by driving along Lake Shore Boulevard to the northeastern suburb
of Willoughby. On the way back they stopped, at Kagy's suggestion, at a
restaurant, and there the judge took "a mouthful or two of brandy." They
had nothing further to drink on the drive into town, and soft drinks were
their only refreshments at Ferguson's -- where they encountered Johnny
Joyce, who appeared to the judge to be intoxicated. McGannon said that
Johnny had stood with his back to the desk in Ferguson's office and that
a revolver that the judge had seen on the desk as he observed Joyce from
the doorway had disappeared when he looked again a few minutes later.
McGannon denied that there had been any stops
for drinking bouts during the subsequent drive downtown, and tried to put
an innocent light on the quarrels about money that Joyce claimed to have
overheard. When they arrived at the corner of Euclid Avenue and East 9th
Street, he had awakened Joyce to tell him that this was as far as they
were going. Here the judge had offered Kagy money -- $11 for repairs to
the car -- but the friendly mechanic had refused to accept anything.
The judge said good night to Kagy and Joyce
at East 9th Street and walked towards Public Square. At Vincent Avenue
he turned to look back and saw the car still standing where he had left
it. He strolled on to Superior Avenue and turned west to the Square, where
he boarded a Euclid Avenue streetcar and went home. When he was asked why
he had walked to Public Square to catch a Euclid streetcar when he was
already on Euclid Avenue, the judge offered the explanation that he would
not have been able to find a seat by the time the streetcar reached East
9th Street. Cleveland must have been a livelier place on weekend nights
in 1920.
Judge McGannon's claim to have left the Cadillac
before it arrived at Death Corner conflicted with the statements of several
eyewitnesses who identified him as the bulky third man who fled the murder
scene. The witnesses included two policemen, a bowling alley scorekeeper,
and a Canadian war veteran who recognized McGannon from having seen him
at City Hall. These informants put the judge's candor in doubt early in
the investigation, but Kagy's accusations and the judge's fine civic reputation
combined to make Johnny Joyce the prime suspect.
In November 1920, Joyce was brought to trial
for the murder of Kagy and was acquitted. Nine days later, the grand jury
indicted Judge McGannon for second-degree murder. Ordinarily, justice is
not well served by consecutive trials of two alternative and mutually exclusive
[655]
suspects for the same crime, but in this case the prosecution had, or
thought it had, a good reason; it seemed that the "third man" had a "second
woman." She was a thirty-nine-year-old nurse named Mary Neely, who had
known the judge for sixteen years. There was, of course, a good deal of
speculation about their relationship; but neither the newspapers nor the
police peered too closely, and presiding Judge Maurice Bernon kept prosecution
questioning under tight rein. Still, it was apparent that the witness's
friendship with McGannon had had its ups and downs. For a year they had
met every day, and then for several years about three times a week; then
their meetings had been much less frequent until November 1919, when they
had started seeing each other daily again. So far as one can glean from
the trial reports, Mary had been spying on Judge McGannon, whom she suspected
of some unspecified improper behavior. She testified that on the morning
of May 7 she saw Judge McGannon's car in front of an apartment house at
East 85th Street and Hough Avenue. She watched the judge and Kagy come
out of the house and drive away. Asked by Prosecutor Roland A. Baskin what
she did next, she gave the remarkable answer that she telephoned Mrs. McGannon
to describe what she had seen and then "went downtown to report to the
Bar Association." Late that night, she was riding on a Euclid Avenue streetcar
near East 9th Street and thought she recognized the judge's Cadillac. She
got off hurriedly as the Cadillac turned the corner at East 9th, and followed
it up the street. Standing two short blocks away from Hamilton Avenue,
she saw the judge and Kagy help someone out of the car. The two men she
had identified stood there talking for about twenty minutes. Miss Neely's
next words caused quite a stir in the courtroom:
"I observed Kagy start to walk away. As he
turned, I saw McGannon pull something out of his pocket, and simultaneously
I saw a shot fired. Kagy pitched forward. The judge then crossed East 9th
Street and went down Hamilton Avenue. He was trying to put something in
his pocket. I don't know what it was."
Miss Neely claimed that she had informed the
judge that she had seen the shooting and had exhorted him repeatedly to
tell the police that it was an accident. She recalled having said to him:
"I know you were all drunk. . . . You are making yourself ridiculous in
the eyes of the public by making two or three statements." McGannon, however,
had rejected her advice on the ground that it was too late to change his
story. He had a better idea of his own. During a car ride in November,
just before his trial, he told her that he was trying to get someone to
say that he had seen him leave the Cadillac at East 9th and Euclid. After
he heard that Mary was talking to the police and might appear before the
grand jury, he had offered her "five new $100 bills" for favorable testimony.
[656]
Miss Neely's account of the murder was counterbalanced
by a parade of defense witnesses who supported McGannon's alibi; and a
taxi driver swore that he had driven Miss Neely and two other women near
the outskirts of the city at the time of the shooting. It is no wonder
that the jury, faced with this conflicting evidence, failed to reach a
verdict. Still deadlocked after fifty-three ballots, they were discharged
on New Year's Eve.
Five days after the first McGannon trial,
the Cleveland Foundation, "spurred on by recent outrages of murder and
robbery which police are apparently unable to check," announced that it
would undertake a survey of the administration of criminal justice in Cleveland
under the direction of two luminaries of Harvard Law School, Dean Roscoe
Pound and Professor (later United States Supreme Court Associate Justice)
Felix Frankfurter. The judge's second trial and its aftermath amply proved
that the survey was timely. Mary Neely, asked at the retrial whether she
saw Judge McGannon on or about May 7, stated: "I refuse to answer because,
in doing so, I might disgrace or incriminate myself -- Judge McGannon is
not guilty of the murder of Harold Kagy." This turn of events contributed
to the jury's acquittal of McGannon.
However, the prosecution was not prepared
to let the matter rest. Perjury indictments were brought against McGannon,
Mary Neely, and a large number of witnesses for the judge and for John
Joyce. McGannon was indicted for perjury in testifying that he had left
the automobile at Euclid Avenue, and indictments were also brought against
the taxi driver who had claimed to have transported Miss Neely elsewhere
on the murder night and against six of the judge's alibi witnesses. McGannon
was convicted of perjury -- also of conspiracy with two former reporters
of the Cleveland News to induce Miss Neely to change her testimony.
The star witness in the judge's perjury trial was once again Mary Neely.
Under the shadow of her own perjury indictment, she once again changed
her story, repeating her original testimony that she had seen the judge
shoot Kagy. Pressed by Judge Florence Allen to explain her inconsistent
statement at McGannon's second murder trial, Mary revealed that she was
a woman scorned. She had promised her silence in exchange for McGannon's
bribery money and his promise "to give up a certain friend, to be more
attentive to his wife, to go to church, and to be a better man." The reference
to the judge's other "friend" seemed to cast new light on McGannon's rendezvous
at the apartment on East 85th Street on the day of the murder.
Judge Florence Allen sentenced McGannon to
a term of from one to ten years in the Ohio Penitentiary on the perjury
indictment. As he turned to leave the courtroom, he cried out:
[657]
As there is a Jesus Christ in Heaven, he will
make these people suffer as I have suffered. He will torture them and punish
them as I have been punished. If they don't suffer as I have suffered,
then there is no God.
In January 1924, when McGannon had served nineteen
months in the penitentiary, the parole board freed him. The release was
granted on the recommendation of the prison physician, who advised the
board that the judge was suffering from a grave case of diabetes. McGannon
came back to Cleveland but could not return to the practice of law, having
been disbarred because of his conviction. With his wife, who had stood
by him through his tribulations, he moved to Chicago, where he found a
job as a clerk in a law firm. In 1928, he died of a heart attack while
boarding a streetcar.
In crime history, as in human affairs generally,
it is indeed an ill wind that blows no good. The sordid murder of Harold
Kagy, and the insight it gave that a leading judge was not above perjury,
obstruction of justice, and perhaps homicide as well, was the catalyst
for the Cleveland Foundation's trail-blazing study of the administration
of urban justice.
[658]
* This article was previously published in Gamut
40-46 (Winter, no. 25, 1988) and in Jonathan Goodman (ed.), The Vintage
Car Murders 58-65 (London: Allison and Busby, 1988). |
