How They Got Jimmy Hoffa--or Did They?
by Robert M. Cipes
The case of Jimmy Hoffa and his conviction on charges of jury-fixing and fraud is now before the U.S. Supreme Court, which must consider whether the union boss’s constitutional rights were violated by the government’s methods of prosecuting him. The case has inspired Mr. Cipes, a former federal prosecutor and author of a widely valued treatise on criminal procedure, to take what he calls“anew look at the enemy within.”The essay is adapted from his bookTHE CRIME WAR,to be published by New American Library next year.
MUCH has happened since 1960 when Robert Kennedy wrote his book about corrupt unionists and called it The Enemy Within. Dave Beck, once powerful head of the Teamsters and Kennedy’s earliest target, was sentenced to long prison terms for larceny and tax fraud. His successor, Jimmy Hoffa, was convicted of jury-fixing and fraud. As Kennedy’s domestic crusade seemed to reach a successful climax, his interests turned to cultivating a liberal and internationalist image in his new role as a senator.
In an anticlimactic twist of history, however, the Hoffa case refused to die. Before Hoffa’s eightyear sentence could be carried out, the Supreme Court intervened. On January 31, 1966, the Court agreed to decide whether his constitutional rights had been violated by Kennedy’s placing an informer in Hoffa’s camp during a Nashville trial, which Hoffa had been convicted of trying to fix. fhe trial itself had ended in a hung jury.
Hoffa will have a stronger issue than Dave Beck, whose larceny conviction was affirmed by the Supreme Court. But there is a common denominator to both cases. It is found in Justice Douglas’ dissenting opinion in Beck. Referring to publicity which saturated the grand jury indicting Beck, Douglas said: “This case shows the need to make as sure as is humanly possible that one after whom the mob and public passions are in full pursuit is treated fairly.” To Robert Kennedy in 1960 it was perfectly clear that Jimmy Hoffa was the enemy within. Now, with the Supreme Court passing on the means used to catch Hoffa, the identity of the enemy within is less clear.
If the Court casts doubt on the propriety of using informers, the Hoffa case will have a tremendous impact on all levels of law enforcement. Few police agencies are without a network of informers. Despite the pro-Hoffa position of the American Civil Liberties Union, among civil rights groups there is anxiety that a Hoffa victory may jeopardize prosecution of the Klan. The principal testimony in the Liuzzo trial came from an FBI informer who had infiltrated the Klan. Presumably there are a number of such informants and undercover agents, not only in the Klan but in the Communist Party and other “subversive” groups. All federal and local law enforcement agencies have their slush funds for paying for information, and many of the informants are criminals or ex-convicts. Some idea of the widespread use of informers comes from a recent report of the FBI which credited 7500 arrests in 1965 to information furnished by its “criminal informants.”
An informer has special access to the enemy, usually as a member of a criminal organization. He works by deception, never disclosing his dual capacity because otherwise his usefulness would terminate. Unlike an undercover agent, an informer is a criminal to begin with. He may be frightened by the government into cooperating, he may do it for profit, or he may seek revenge. An undercover agent is a policeman who, in order to obtain incriminating evidence, disguises himself as a criminal and infiltrates behind enemy lines. He may become an important figure in the criminal machinery (as in the plot to blow up the Statue of Liberty), but he remains a government employee, working only one side of the street. The informer, on the other hand, lives in a tenuous world of shifting allegiances depending on who rewards or intimidates him.
The informer within Hoffa’s camp during his 1962 Nashville trial for a Taft-Hartley violation was Edwin Grady Partin, boss of a Baton Rouge local and close associate of Hoffa’s for some five years. Partin stayed with Hoffa during most of the Nashville trial, was one of his trusted inner circle, while all the time he was reporting daily on Hoffa’s activities to Kennedy’s men. Most of his reports involved attempts to bribe jurors. That was in the fall of 1962. A year and a half later Partin made his appearance in court as a witness for the government in the jury-fixing trial. Hoffa was dumbfounded. An endless series of hearings, charges, and countercharges followed, the main thrust being that Partin should not be allowed to testify because of the way in which he got access to Hoffa. The trial judge admitted Partin’s testimony, and Hoffa was convicted.
USUALLY informers do not end up testifying. Their normal function is to give the police leads to other evidence. The government keeps its informers under wraps for several reasons. In the first place, exposing the informer means subjecting him to possible harm, including death. The government’s solicitude is less a concern for the individual than for a system of detection in which he is deemed indispensable. Police who consider themselves dependent on a network of informers cannot afford a reputation for a high rate of informer mortality.
A more covert reason for keeping informers out of court is that jurors might not convict if they got a close look at the state’s methods. Jurors usually presume that a defendant is guilty — contrary to the theoretical presumption of innocence. But a feeling that the state’s witnesses are liars or otherwise shabby characters may shake that presumption, cast doubt on the prosecutor’s honesty, and generally taint the state’s case. This is what happened in the recent “Candy” Mossier trial, where defense counsel convinced the jury that state witnesses were trading their testimony for shorter prison terms.
The practice of sparing one criminal to catch another is an old one. Two centuries ago in England a convict got an automatic pardon if he informed on his accomplices. Under special laws in some jurisdictions the prosecutor can formally grant immunity from prosecution to a witness who testifies against others. But informal grants of immunity arc more common. In Ed Partin’s case the government had an indictment for misuse of union funds over his head. Since Partin helped convict Hoffa, that indictment has not been tried, and it is a safe guess that it never will be.
Using a friend to trap a friend is not an unusual practice for police and prosecutors. Pressure will even be exerted on a witness to betray a member of his own family. A bizarre example was the testimony of David Greenglass in the Rosenberg trial which was responsible for sending his sister to the electric chair.
When Clarence Darrow was charged with attempted bribery in the McNamara case in Los Angeles, one of the chief witnesses against him was John Harrington, a friend and ex-colleague whom he had brought with him from Chicago to help prepare for the McNamara trial. For ten days Harrington lived with Darrow and his wife and shared their confidences, while behind his bureau was a Dictograph taking down everything Darrow said. The district attorney never used the Dictograph, so apparently there was nothing incriminating said, but Darrow was able to use the image of this Judas to win the sympathy of the jury and an acquittal.
In dealing with an informer, stool pigeon, or other “cooperating” witness, the prosecutor develops a proprietary interest in him. As they fight the common cause, the witness is part of the team, and his past crimes are seen in a different light. There are mitigating circumstances and explanations. The prosecutor’s subjective approach is typified by the Assistant U.S. Attorney who described the informer-witness in a tax prosecution as an “honest, honorable American citizen” doing his patriotic duty in testifying for the government. A year later when the same witness appeared for a defendant, he was “a black marketeer and a perjurer and almost anything else you can name.”
Sometimes a cooperating witness so dominates the scene that he may look as if he were running the prosecution. In the United Dye stock-fraud case — the longest federal trial on record — the government’s chief witness, Alexander Guterma, was on the stand for three months. It is not hard to understand how a prosecutor comes to regard as indispensable a man on whom so much depends. The fact that Guterma was the genius behind the fraud, testifying against less culpable men, did not prevent their conviction. In the adversary system the prosecutor’s goal is to make a case against the man on trial, not to present an objective picture of what happened.
Few prosecutors actually suborn perjury by deliberately asking a witness to tell a false story. They can often obtain the result they want without having to go this far. The resourceful criminal who becomes a cooperative witness knows that he is expected to get his former associates convicted. That knowledge is enough to shape his testimony, aided by suggestive questioning by the prosecutor. If the details do not sound convincing, the prosecutor may correct them, but not often will he take the testimony apart to pin down the line between truth and fabrication.
The government will go to great lengths to protect its witnesses. For instance, in a recent federal case in New York the defense hired a private investigator to watch the comings and goings of the government’s main witness, on whom the case rested. The prosecutor unsuccessfully protested to the judge, accusing the defense attorney of obstructing justice (a federal crime). This objection was ironic because in a previous case the same prosecutor had the defendant tailed for an entire year, taking motion pictures of him whenever he emerged from his house. A curious double standard.
This objection to surveillance is typical of the prosecutor’s single-minded absorption in his manhunt. Since the pressure for victory is great, every obstacle thrown in the path of conviction becomes an enemy trick or annoying technicality. When the defendant begins to match the prosecutor’s methods and imitate his style, this is taken as an “obstruction of justice.” To the prosecutor, “justice” and conviction are synonymous. The threat of prosecution for obstruction of justice can be a club held over the head of criminal lawyers lest they fight too hard or play too rough.
The competing lawlessness of prosecution and defense is a process of escalation, with each side getting more and more desperate, as fire is fought with fire and new weapons are created to replace the old. In this process the prosecution has the edge, since the public condones illegal methods as long as they seem to serve the higher good of catching the crook.
THE war between Kennedy and Hoffa illustrates this double standard. The first round was the 1957 trial of Hoffa for bribing an investigator for the McClellan Committee. Kennedy was the chief counsel. Hoffa allegedly tried to “plant” Attorney John Cye Cheasty on the committee as a counterespionage agent. Cheasty told Kennedy about it. He arranged to hire Cheasty, and permitted him to take committee documents. The FBI was alerted, and right after Cheasty passed the documents to Hoffa, the latter was placed under arrest. For a private citizen to put a paid informer on the government’s payroll is a crime. But five years later when Kennedy’s men did the same thing in reverse, they committed no crime.
The original bribery charge was interesting because it influenced the pattern of Kennedy’s later campaign to put Hoffa in prison. Hoffa was acquitted of the charge and two months later went on to win the presidency of the Teamsters. Kennedy felt that the government had poorly prepared the case.
Another lesson was derived from Hoffa’s trial on wiretapping charges in 1958, in which he was acquitted. During the trial a juror was excused after disclosure that he had been “approached.” There was no proof that the approach had come from Hoffa, but the incident alerted Kennedy to another area to watch.
When Kennedy became Attorney General he set up an elite team inside the Justice Department to work on Jimmy Hoffa and his men. The team was headed by Walter Sheridan, an ex-FBI man, and consisted of about a dozen lawyers, as well as investigators and other personnel. Sheridan answered directly to Kennedy, although there was a criminal division within the Department and a section in charge of organized crime. Within Justice, Sheridan’s men were known as the “Hoffa group,” though the existence of the group was seldom acknowledged outside the Department. During its lifetime the team chalked up more than 100 Teamster convictions. But so far as Sheridan and the top legal talent were concerned, getting Hoffa was their full-time job.
“Sheridan knew from the beginning,” wrote Life after the conviction, “that anything less than a total, prolonged effort, a war of attrition — a ‘vendetta,’ according to Hoffa — would have resulted in more acquittals, more hung juries.” There was no room for doubt of Hoffa’s evil “in the good-guys-and-bad-guys-only world that Walt Sheridan inhabits with Bob Kennedy.”
Into this world one day in October, 1962, walked Edward Grady Partin, the man who was to hand Hoffa on a silver platter to Kennedy and Sheridan. When Partin first made his appearance in the Kennedy camp, it might have been hard to tell him from one of the bad guys. He had a long criminal record and for years had been one of Hoffa’s toughest henchmen. By the time Partin had finished his work as Kennedy’s informer two years later, he was a hero.
The picture of Partin which emerges from the thirteen-page Life article is that of a bad boy who somehow got religion. The photographs show him as a devoted father, a handsome ex-prizefighter, a responsible union executive. The most appealing thing about Partin’s story was the motive that finally turned him against Hoffa. He says he was revolted by Hoffa’s suggestion that he throw a bomb at Bobby Kennedy’s house which would endanger the lives of the children. Partin got no money for the Life article. “I want this story to put enough backbone in other Teamsters so they’ll stand up and kick Hoffa out of our union.”
Against this picture of Partin, the “good guy,” there were certain other facts which magazine publicity could not hide, though it attempted to color them. Partin did Hoffa’s dirty work “without any hesitation.” This meant using “any tool you can get, from a sawed off shotgun to some crooked cop or politician.” Hoffa trusted him with “ticklish jobs” and always paid him well for them. There was a familiar note to Partin’s explanation. In the Hoffa world “you’re either one thing or another, and I was a Hoffa man.”
Most of the thousands of words of Partin’s Life story were taken up with explanations for the dozen crimes which he had been charged with and in some cases convicted of. The intricacies of frame-ups, mistaken identities, and misunderstandings read like a bad soap opera. Even giving credit to these explanations, Partin’s history as a hoodlum and bully is unmistakable. No amount of retouching could erase the portrait of Partin’s delinquency. Nor could it hide the irony that Kennedy’s highpurposed crusade to save the labor movement had come to rest on a man like Partin.
Partin was described in different terms in a Teamster magazine published after the conviction. His entire sordid record was listed to show how unworthy of belief he was. I wonder whether the union members were gullible enough to miss the flaw in the argument. For it was precisely because of his capacity for lies and violence that Partin had been so useful to Hoffa.
For his part, how did Partin rationalize his intimacy with Hoffa? He recognized that Hoffa was crooked, but “as long as I thought it would help the union,” said Partin, “I’d do darn near anything he asked me to.”
Somehow revelation finally comes to Partin: “But the funny thing was that the better I got to know, him, the closer we got; and the more he seemed to trust me and the more things I did for him, the more doubtful I got. I began to see Hoffa wasn’t working for the Teamsters; he was working for Hoffa and for Hoffa’s power.”
Partin admitted that by the time he contacted Kennedy he had his “own good reasons for quitting Hoffa.” He was knifed once, and shot at another time. He wondered whether Hoffa could have been behind these attacks. Another reason must have been the federal indictment for misuse of union funds, returned several months before. Partin knew the reputation of Sheridan’s group, its box score of Teamster convictions, and must have realized that he could not beat this rap by payoffs. In any event, the assassination story gave Partin a shrewd basis for approaching Kennedy, and he made the most of it. Like John Cye Cheasty five years before, he was moved by idealism.
DURING the Nashville trial Ed Partin spent most of his time with Hoffa and his team of co-defendants and lawyers. He always seemed to be around when Hoffa needed something done. During the trial Partin was in touch with Sheridan nearly every day. Sheridan told him not to report on Hoffa’s trial strategy but only on jury-tampering. Even then the prosecution was worried that the informer’s interference with Hoffa’s right to consult counsel might jeopardize a conviction.
In Partin’s work as an informer, security precautions were strictly observed. Partin and Sheridan met surreptitiously — almost always in an automobile. Sheridan’s group had code names for the key characters. Partin was known as “Andy Anderson,” and Jimmy Hoffa was labeled, not very deceptively, “Himself.”
When Partin appeared as a surprise witness in the bribery trial, defense counsel tried to suppress his testimony. In the course of extended hearings which followed, Sheridan was asked whether Partin was paid or promised anything for acting as an informer. Sheridan flatly denied that he was. Later a memorandum was discovered from Sheridan to the administrative chief of the Department of Justice requesting a payment of $300 per month. The payment was to be made to a department attorney for delivery to an undisclosed person, later admitted to be Partin’s estranged wife. Faced with the disclosure, the government claimed that this monthly sum was not “payment” to Partin but simply reimbursement for his expenses. Sheridan’s direction that the money should come out of the Department’s “confidential fund” was reminiscent of the 1957 bribery trial when Hoffa testified that informer Cheasty was paid $3000 out of the Teamster’s “revolving fund.”
Partin was not the only man working for the government from within the HofFa camp. After the Nashville trial, one of Hoffa’s lawyers, Z. T. Osborn, Jr., was indicted for obstructing justice by offering a bribe to a prospective juror. The middleman in the alleged bribe attempt, whose testimony convicted Osborn, was Robert D. Vick. Vick, it turned out, was also working for Sheridan while posing as Osborn’s investigator. An appeal from Osborn’s conviction will be heard by the Supreme Court, along with the Hoffa case.
Of the twenty-one claims advanced by Hoffa’s lawyers, the following is the one the Court selected for argument: “Whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and councils of a defendant during one criminal trial so violates the defendant’s Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge.”
In selecting this question, the Court hopefully will not indulge in the kind of quibbling that occupied the lower courts — whether the government “placed” Partin in the Hoffa camp, or Hoffa placed him there, or he went there voluntarily. Even if Hoffa originally asked Partin to come to Nashville (which he did not), the fact that Partin was a government informer at the time should be the only significant point.
WHEN the appeal is discussed in legal circles, the usual question is not whether Hoffa will win, but how he will win. To Hoffa this might not make much difference, but the Court’s treatment of the informer issue may influence the future course of civil rights, internal security, narcotics, and other prosecutions. The Court has stated that the Hoffa appeal raises questions under the Fourth, Fifth, and Sixth Amendments. The Fourth Amendment covers unreasonable searches and seizures; the Fifth Amendment includes the privilege against self-incrimination; and the Sixth Amendment, the right to assistance of counsel. Unless the Court decides to uphold Hoffa’s conviction, it will not reach all of these questions. A decision that any one of Hoffa’s constitutional rights has been violated makes it unnecessary to pass on the others. The alternatives open to the Court to reverse the conviction are many. I will discuss only one of them.
Two years ago the Court decided an appeal with facts resembling the Hoffa case. It set aside the narcotics conviction of a seaman named Massiah, found guilty on evidence obtained through use of an informer. The informer (Colson) was indicted along with Massiah, then induced or coerced into cooperating with the government to develop a bigger narcotics case. The key testimony was obtained by planting a radio transmitter under the seat of Colson’s auto while he carried on an incriminating conversation with Massiah. Narcotics agents, listening to their radio in a nearby car, took it all in. Massiah and other accomplices were indicted again, tried, and convicted.
The Supreme Court held that under the circumstances Massiah’s incriminating statements could not be used against him. But the Court sidestepped the real issues concerning informers and eavesdropping. Instead, it pitched its decision on interference with the right to counsel. A man under indictment is entitled to a lawyer. The purpose of a lawyer at that stage is to protect him from selfincrimination, and the narcotics agents of course did not warn Massiah’s lawyer what they were going to do to his client. This reasoning provoked Justice White to dissent, saying that the majority was treating law enforcement like a game and guaranteeing “sporting treatment for sporting peddlers of narcotics.” White recognized that the “issue lurking in the background ... is the legitimacy of penetrating or obtaining confederates in criminal organizations.”
Whether the issue which lurked in the background there will become decisive in the Hoffa case remains to be seen. It is unlikely that the Court is prepared to outlaw ancient methods of police espionage. Yet it is also unlikely that the Justices will lend their explicit approval to Such methods. The only comfortable way out may be to follow the Massiah case, finding an interference with Hoffa’s right to consult freely with his lawyers. Hoffa was not under indictment for jury-tampering at the time Partin infiltrated his camp, but he was under indictment in another case. Besides, a month after Massiah, the Court decided in the Escobedo case that the fact of indictment was not decisive. The right to a lawyer attaches whenever police investigation begins to “focus” on a suspect. By this test, Hoffa and his lawyers might have been entitled to protection from informers even as early as 1961 —when Robert Kennedy became Attorney General.
Whatever legal rationale emerges from the opinion, the underlying ethical issue can hardly be suppressed. In deciding to take another look at the enemy within, some of the Court might have had in mind words of Justice Brandeis written forty years ago. Answering a claim that an intrusion of rights was justified in the aid of law enforcement, Brandeis said: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasions of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”