The Kid Gets Bombed
A couple of bent-nose emissaries of the underworld left a message on Don (The Kid) Kings front porch in Cleveland while the Ohio city slept on May 20, 1957.
The message was a bomb, and it exploded at 3 a.m., bouncing King and his girlfriend out of bed.
Sirens screamed to Kings house, at 3713 E. 151st St. The occupants were riled but not hurt.
The Cleveland vice squad was not entirely surprised to learn that Kid King was the target of an attack.
King was a clearinghouse operator, in the dialect of the day. In other words, he ran a numbers game, better known as a lottery now that the old racket has been cloaked in government legitimacy.
King collected cash from numbers runners who took wagers in the neighborhoods, and he paid the occasional winner. On the side, he dabbled in bookmaking and loan-sharking, the cousins of the numbers racket.
The cops knew him well. He had resided in the city lockup for a time in 1954 after he was arrested for shooting a man to death. (The killing was deemed justifiable and King was released.)
Vice cops figured the bombing investigation was destined for the file cabinet overstuffed with permanently unsolved crimes involving the rogues of the Cleveland rackets.
People in that line of work dont talk to cops, as a rule.
But King made history, as the Cleveland Plain Dealer put it.
He talked: Shondor Birns did this.
Alex (Shondor) Birns, a Jewish immigrant from Hungary, was another familiar mug around Cleveland police headquarters, where he was No. 1 on the police roster of racketeers, as one crime scribe put it.
Birns had been sent up the river in 1954 for income tax evasion. By the time he got out of the joint 27 months later, Kid King and four other upstarts had honed in on the numbers turf. Birns sent goons around in October 1956 to suggest that each of the five should pay $200 a week to the boss, if they knew what was good for them.
Initially, all five agreed to pay.
But in December, a resentful Kid King reduced his weekly Birns payoff to $100, and in February, King stopped paying altogether, thumbing his nose at the tough Hungarian.
Shondor Birns sent the bomb as a reminder to King that he was in arrears.
King responded by naming Birns, his deputies, and his musclemen, some of whom came from Clevelands thriving crop of prizefighters.
The names that cropped up included that of Virgil Ogletree. Cops asked around and learned that he often spent time at a home at 14705 Milverton St., in the Shaker Heights section.
The homeowner there was named Dollree Mapp, better known as Dolly. Sgt. Carl Delau and two patrolmen from the vice squad were assigned to pay her a visit to jostle Ogletree.
Through this circuitous routea rackets debt, a bombing, a fink and a name–three cops showed up at Dolly Mapps door just after the lunch hour on May 23, 1957, three days after Kid King was bounced out of bed.
It was a knock on the door that would go down in American criminal justice history.
Born in Austin, Texas, Dolly Mapp moved to Cleveland with her family as a baby. She had grown up to be a tall, striking woman who had spent time on the arms of a number of well-known prizefighters.
As a young teenager, she hooked up with Larry Bivins, regarded as one of the finest boxers ever to come out of Cleveland.
Bivins scored 86 victories in a 15-year career that ended in 1955. Although undersized, he contended in both the heavyweight and light heavyweight divisions. He was never a champion, but he defeated eight men who were.
In 1944, when she was just 15, Mapp bore Bivins a daughter, Barbara.
In the early 1950s, Mapp took up with one of Bivins longtime rivals, Archie Moore. The men had fought five times, with Moore taking four of them.
Moore was another undersized fighter who bounced between the heavyweight and light heavyweight ranks.
He knocked out 141 opponents in a career that spanned a remarkable 27 years. He was light heavyweight champion for nearly 10 years, through most of his 40s. He lost his next-to-last fight, in 1962, to the upstart fighter who would become known as Muhammad Ali.
After years of hanging around tough-guy boxers, Dolly Mapp was no shrinking violet. Bright and well-spoken, she earned a reputation as a strong woman who would not back down from a challenge.
In 1956, she sued Archie Moore for breach of promise, charging that he had broken a vow to marry her. The suit was eventually dismissed after legal wrangling.
She supported herself by renting the first level of her tidy, two-story brick home to itinerant men, and she and her daughter often had female boarders living in the spare bedrooms of their upper unit.
Her boarders came from her earthy social circle, centered on the prizefight game and gamblers. Through these associations, Mapp lived on the fringes of the numbers rackets.
So Dolly Mapp knew a thing or two about the law and her rights when police came knocking that spring afternoon in 1957.
Sgt. Carl Delau, a vice cop in plainclothes, rang the buzzer of Mapps second story home. The woman looked out a window.
Delau said, Let me in, Dollree.
Mapp asked what he wanted, and Delau replied vaguely that he wanted to talk to her about something.
She said she wanted to speak with her lawyer first.
She called the Cleveland law firm of Alexander Kearns and Walter Greene, who had represented her in the lawsuit against Archie Moore. Greene advised her not to let the cops inside without a warrant.
She reported this to Sgt. Delau, who told Mapp he had a warrant, although he refused to produce it.
Mapp continued to refuse entry to Delau and the two patrolmen who accompanied him.
The cops believed Ogletree was in the house, and they were determined not to let him escape. But Mapp was determined not to let them inside unless she was allowed to read the warrant.
The standoff wore on for three hours.
At 4:30, four more cops showed up. They began to break down the door just as attorney Greene arrived on the scene.
The officers entered the house over the protests of the lawyer, who was restrained from going inside to witness the search.
What had begun as a simple police outing to pick up Virgil Ogletree had now been transformed into an ordeal that would take up most of the day.
The cops were not happy, and they resolved among themselves to find any evidence that could incriminate the stubborn Dolly Mapp, related to Ogletree and the King bombing or not.
Witnesses outside, including Greene, could hear shouting in the house as Mapp demanded again and again to see a search warrant.
At one point, Delau produced a piece of paper but refused to allow Mapp to read it. She grabbed the document and stuffed it down her bosom. Delau retrieved it.
Cops found Ogletree hiding on the first floor. He was arrested but would prove to be of no use in the King case.
Dolly Mapp, meanwhile, was handcuffed to a cop and held in her bedroom while police traipsed through the house looking for evidence of a crimeany crime.
The raid made the next days Plain Dealer, but the story barely mentioned Ogletree. The headline read:
Policy House Closed After 3-Hour Siege
The story identified the Milverton house as Mapps home, but wryly noted she had another address, depending on where she is staying. It made light of her refusal to allow cops inside without a warrant: Miss Mapp, they said, was stubborn about letting them inside.
The story said the police found a trunk full of slips and records from the numbers game. Cops hyped that seizure by crowing that they had found the policy house–or nerve center–of the California Gold numbers game, which would prove to be hollow hype.
The story included a single line about another police discovery at the house. As reporter Jerry Ballinger wrote, They also found a quantity of books, pamphlets and photographs they described as obscene.
The risqué materials amounted to a few nude sketches and four books: Affairs of a Troubadour, Little Darlings, London Stage Affairs and Memories of a Hotel Man.
The booklets were blue and bawdy, lewd and naughtyvignettes about various sexual feats that likely would seem quaint today.
After prosecutors had a look, they agreed with Sgt. Delau and his men that the books were obscene under Ohio law.
Mapp said the books and sketches belonged to a former renter, Morris Jones, who had left them behind when he suddenly moved out. She said she had packed up the books and stored them with Jones possessions in a trunk in the basement.
Mapp was not charged in the King bombing. But police brought two unrelated cases against her: a misdemeanor gambling charge, for possession of the betting slips, and a felony obscenity charge for the naughty books.
She was tried and acquitted on the gambling misdemeanor a month after her arrest.
The felony trial for obscenity, where the stakes were much higher, began September 3, 1958, in a Cuyahoga County Court in Cleveland.
Before the trial, Judge Donald Lybarger made a ruling on evidence that rendered moot the veracity of the search warrant. He said the smutty books and any other evidence seized by Sgt. Delau and his minions could be used against Mapp whether the search warrant was valid or not.
This made for a simple and brief trial.
The prosecution called just two witnesses: Sgt. Delau and Michael Haney, a patrolman. Each said they went to the house looking for Virgil Ogletree and found the obscene materials in Mapps bedroomnot the basementduring their search.
Haney testified that Mapp voluntarily allowed the officers inside her house. Delau contradicted that, saying they broke through a door.
Each said they had a search warrant but were vague about its origin.
In cross-examinations, Defense Attorney Alexander Kearns sought to clarify the details of the search warrant, but Delau said he knew nothing.
Kearns called three defense witnesses: Walter Greene, his law partner who witnessed the search from outside the house, Dolly Mapp, and a woman friend who helped pack away Morris Jones belongings.
The attorney returned to the search warrant in questioning Mapp.
She replied, When they came in I said, Inspector, I want to see the search warrant….He said, Here is the search warrant. He held it back from me, and I remember Mr. Greene told me I should see it and read it, and I told him I wanted to see it. He said, You cant see it. At that I reached over, took the search warrant from his hand and put it down in my bosom…The one that grabbed me said, Im going down after it. I said, No, you are not. He went down anyway.
At testimonys end, Judge Lybarger instructed the jury that Mapp could be convicted of possession of obscene materials no matter where they were found it in her homethe bedroom or a trunk in the basement–if jurors thought she had control over all contents of the house.
The jurors voted to convict.
Middle America in the 1950s was in the midst of a moral panic over changing mores in the country, and much of the hysteria centered on pornography.
It may seem absurd from the viewpoint of the modern worlds Internet-driven porn saturation, but the conviction was considered a very serious offense.
Judge Lybarger sentenced Dollree Mapp to serve up to seven years in the Ohio Reformatory for Women.
In legal jargon, the area of the law concerning evidence searches and seizures is known as the exclusionary rule. If evidence of a crime is illegally obtained, should it be excluded from use at a defendants trial? Does the end justify the means?
This has been a push-and-pull issue among crooks, cops and the courts for a century.
As Benjamin Cardozo, a future Supreme Court justice, put it in the 1920s, Why should the criminal go free just because the constable blundered?
Yet the Fourth Amendment to Constitution prohibits unreasonable searches and seizures from persons, houses, papers and effects.
But what is unreasonable?
In 1911, police in Kansas City collared a woman for shoplifting gloves. After the arrest, police intercepted a warning note she sent to her husband, Fremont Weeks. Police rushed to the Weeks home without a search warrantlegal authorization signed by a judge–and seized records and correspondence that seemed to confirm that Weeks operated a numbers game.
He was indicted for sending lottery tickets through the mail, a federal crime. The trial judge allowed use of the seized evidence, and Weeks appealed all the way to the Supreme Court.
He won that final appeal, and the conviction was overturned.
But in that era, states considered it their prerogative to ignore or apply federal rulings to their courts.
Some did, but most didnt.
The exclusionary rule of evidence continued to roil the American legal system for decades. In 1928, Supreme Court Justice Louis Brandeis made this impassioned plea:
If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the meansto declare that the government may commit crimes in order to secure the conviction of a private criminalwould bring terrible retribution.
Nonetheless, three decades later two-thirds of all states continued to believe that it was their right to ignore the federal exclusionary rule.
Ohio was one of them.
Attorney Kearns announced his intention to challenge Mapps conviction, and Judge Lybarger granted her continued freedom on a $2,500 bond during the appeal process.
Kearns appealed to higher Ohio courts on a number of counts, including the validity of the states obscenity law. The appeals failed in two lower courts, and Kearns turned to the Ohio Supreme Court.
There, the state justices sorted out the mysterious search warrant once and for all. The cops had no warrant. The document that Sgt. Delau showed Mapp was a police affidavit used to secure a warrant, but he had not gone the next step of gaining a judges signature to authorize the search.
The Ohio court ruled, however, that the evidence seized was valid even if the search warrant was notthe essence of the exclusionary rule. The justices pointed out that Ohio did not exclude such evidence.
Mapp lost again, but she decided to press on, at a cost of $8,000, to the U.S. Supreme Court.
Her attorney filed the notice of appeal on June 15, 1960, three years after the police raid.
In his summary of appeal issues, Kearns wrote that Mapps constitutional rights under the Fourth, Fifth and Fourteenth amendments had been violated by the Cleveland police departments shocking disregard for human rights.
The American Civil Liberties Union filed a brief supporting Mapps appeal.
In 1960, the Supreme Court received 2,313 appeal petitions. The justices agreed to hear fewer than one in 25 of the appeals.
Yet they agreed to consider Dollree Mapps case, with its search-and-seizure issues that had been left unresolved for decades in American criminal justice.
The Supreme Court scheduled oral arguments in Mapp v. Ohio for March 29, 1961.
Dolly Mapp traveled by train to Washington and arrived early at the Supreme Court Building on that brisk March day. She took a seat in the spectators gallery and watched as the nine robed justices filed into the vast marble courtroom.
This was the Warren Court — named for Chief Justice Earl Warren — which rendered a series of monumental decisions in the 1960s regarding constitutional rights and criminal justice, from the Miranda Warning ruling to the right to free counsel in the Clarence Gideon case.
Warren was joined on the long bench at the head of the imposing room by Justices Hugo Black, William Brennan Jr., Tom Clark, William Douglas, Felix Frankfurter, John Harlan, Potter Stewart and Charles Whittaker.
Attorney Kearns, 66, was making his first appearance before the high court. He had barely begun his rather overstated oration on behalf of Dolly Mapp when Justice Frankfurter cut him off:
May I trouble you, Frankfurter said sarcastically, to tell us what do you deem to be the questions that are open before this (court).
Frankfurter took the lead in questioning both Kearns, ACLU attorney Bernard Berkman and Gertrude Mahon, the Cleveland prosecutor who argued the states position in Mapp v. Ohio.
Frankfurter, a liberal member of the court, was born in Austria and raised in a New York City tenement by immigrant parents. Fabulously bright, he had edited the Harvard Law Review as a student and returned to become a young lion of that university’s law faculty after a brief career as a federal prosecutor in New York.
President Roosevelt appointed him to the Supreme Court in 1938. After 23 years on the bench, he was sometimes guilty of impatience.
And the arguments that day were a frustrating hodgepodge for Frankfurter and his colleagues.
The justices had an obvious agenda in agreeing to the Mapp appeal.
In a 1949 case from Colorado, the Supreme Court had refused to apply the federal evidence-exclusion rule to state courts. A dozen years later, the justices saw Mapp v. Ohio as an opportunity to revisit the issue.
Yet Kearns ignored that states-right argument, instead focusing on the illegality of the search since Cleveland police had no valid warrant.
The justices tried to lead Kearns in the right direction.
One justice asked whether the attorney was seeking to have the 1949 Colorado ruling overruled. The proper response was yes. Instead, Kearns said, No, I dont believe we are.
Prosecutor Mahon spent a good deal of her time arguing the validity of Ohios obscenity lawanother tangent that tried the patience of the justices.
But she eventually found her way to the exclusionary rule.
The absence of a search warrant can be no defense to a crime, Mahon said. If the evidence establishes the crime, what defense is there in the absence of a search warrant?
The justices listened for two hoursan hour longer than most oral argumentsbefore adjourning.
Eighty-two days later, the court made its ruling. On a 6-3 vote, the justices reversed the Ohio court decision and invalidated Dolly Mapps conviction. She was free.
The decision would become one of the most scrutinized in Supreme Court history.
The justices were divided in their written opinions, and some justices would later charge collusion among five of their brethren in the majorityClark, who wrote the majority opinion, along with Black, Brennan, Douglas and Warren.
The Clark opinion specifically took on the states-rights implications of the 1949 decision in Wolf v. Colorado.
Presently, a federal prosecutor may make no use of evidence illegally seized, but a states attorney across the street may, Clark wrote. Thus the state, by admitting evidence unlawfully seized, serves to encourage disobedience of the Federal Constitution which it is bound to uphold.
The justice acknowledged that a criminal could go free due to a constables blunder, in the famous phrase of Benjamin Cardozo.
In some cases this will undoubtedly be the result, Clark wrote, …but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.
The decision had vast practical results: Any evidence seized in violation of the Constitution would no longer be admissible at any criminal trialfederal or state.
Justice Stewart wrote a separate opinion that supported Mapps appeal because he felt Ohios obscenity law was unconstitutional.
Justices Frankfurter, Harlan and Whittaker voted to reject the appeal. Harlan wrote that the five majority justices had overstepped their boundaries to reverse the Colorado case without legal justification since attorney Kearns had flatly stated that Wolf v. Colorado was not at issue.
Potter Stewart would later charge that the five had met in a rump caucus and agreed to use the Mapp appeal to overturn the 1949 case and apply the exclusionary rule to the states.
Cops and prosecutors across America were infuriated by the decision, which they saw as another impediment to catching crooks, in addition to an infringement upon state rights by the federal government.
Yet they were forced to learn to live with the ruling and its implications.
The law enforcement protocols that resulted from Mapp v. Ohio persisted for 40 years with some tweaking.
Most importantly, the more conservative Burger Court in 1984 added a good-faith exception to the exclusionary rule.
It ruled in a federal case that evidence need not be excluded if the warrant used is found to defective due to an honest mistake. These could include factual errors in a police affidavit used to secure the warrant.
Justice Byron White wrote that the good-faith exception pertains when there is no police illegality but not when an officer knowingly uses false information to obtain a judges authorization for a search.
Law enforcers hailed the change. But some critics view it as part of a gradual erosion of the Mapp ruling.
In Samuel Dashs book The Intruders, published just before he died in May 2004, the Watergate investigator wrote that the terrorist attacks in 2001 had diluted the Mapp ruling and other standards of law for searches and seizures in America.
Worse, he said, is the apathy toward the governments new methods of accusations and evidence collection.
For the most part, we have not been concerned over the many illegal government searches and seizures committed frequently all around us, Dash wrote. We have accepted, apparently, law enforcement officials rationalizations that, on balance, fighting crime, and now terror, should be considered by the people to have a greater priority than some technicalities in the Bill of Rights…Alarmingly, it reveals popular complacence to constitutional abuses in the name of public safety.
Two players in the Dolly Mapp saga went on to lead noteworthy lives.
First among them is Don (The Kid) King, whose house bombing started everything.
King served four years for manslaughter from 1967-70 after he beat to death on the streets of Cleveland a man who owed him money. His prison term was cut short when the Ohio governor pardoned him.
He dropped his nickname and reinvented himself as a Brillo-topped boxing promoter.
He rose to prominence in 1974, still fresh from prison, when he promoted the famous Rumble in the Jungle fight in Zaire between George Foreman and Muhammad Ali.
As the countrys first major black promoter, he has arranged fights for the most prominent heavyweight boxing champions of the past three decades, including Foreman, Larry Holmes, Mike Tyson and Evander Holyfield.
Long ago, he adapted a signature catch phrase appropriate for somebody who has gone from Cleveland numbers racketeer to the top of the boxing world: Only in America!
The slogan might have been appropriate for Shondor Birns, as well.
The Hungarian immigrant managed a long career in the cutthroat rackets in Cleveland. But like so many others in that rough trade, his life was cut short.
In 1975, a Cleveland mobster named Danny Greene found an unexploded bomb under his car. He angrily told underworld associates that he would see to it that the bomb was returned to the old bastard who sent it.
A few weeks later, in April 1975, Shondor Birns was blown up by a car bomb. No one was ever charged in the murder.
Dolly Mapp made her way back into the news, as well.
She sold her house in Cleveland and moved to New York a few years after her successful Supreme Court appeal.
She dabbled in real estate and a furniture business, among other things.
In 1973, Dolly Mapp once again answered a knock on her door and found a small squadron of Queens detectives at her threshold. One of them said, We have a search warrant this time.
She allowed them inside, as required by law.
The cops had had Mapp under surveillance for six weeks as a suspected fence for stolen property.
In her home police found stolen television sets, furs, silver and antiques. They also found 50,000 $3 hits of heroin.
She was convicted at trial and sentenced to 20 years in prison under New Yorks tough new drugs laws championed by Gov. Nelson Rockefeller.
Mapp served more than 9 years, from 1972 until 1981, before Gov. Hugh Carey, who opposed the Rockefeller laws, commuted her sentence.
Now in her 70s, Mapp lives in St. Albans, Queens.
In a telephone interview, she told Crime Library that the Cleveland police raid seems like just yesterday.
She hasnt forgotten a single detail.
They said they had a warrant, she said. I said, What is your warrant for? When he wouldnt say, I stood firm. I guess I was a little belligerent at times. But I know right from wrong, and I knew I was right in this case. I think I might have died for my rights at that point.
She acknowledged that the police probably were surprised to find such a determined woman when they knocked on her door. Black people tended to cow to cops in 1957, she said.
I was always a determined woman, she said, and I suppose I grew even more determined as a single mother trying to raise a child. I knew I was being railroaded, and I said Im not going to take this lying down. I was determined to take it as far as I needed to take it, and it turned out that meant going to the Supreme Court.
Mapp said she had no regrets over Mapp v. Ohio, pronouncing vee as a lawyer might.
I stand firm on my convictions. Always have, she said. I believe you dont run away from nothing. You have to be man enough or woman enough to stand and fight if its something worth fighting for. And Mapp v. Ohio was worth fighting for.
Books
The Intruders: Unreasonable Search and Seizures from King John to John Ashcroft, Samuel Dash, Rutgers University Press, 2004
Landmark Supreme Court Cases: Mapp v. Ohio, Deborah A. Persico, Enslow Publishers, 1997
Crime and Punishment in American History, Lawrence M. Friedman, Basic Books, 1993
The Constitution: That Delicate Balance, Fred W. Friendly and Martha J.H. Elliott, Random House, 1984
Articles
5 Now Held in Bombing of Kings Home, Cleveland Plain Dealer, May 21, 1957
Policy House Closed After 3-Hour Siege, by Jerry Ballinger, Cleveland Plain Dealer, May 24, 1957
Figure in Landmark Case Is Seized Here as a Fence, by Robert D. McFadden, New York Times, Nov. 3, 1970
Woman in Drug Case Gets Two Years to Life, New York Times, May 27, 1971
16 Prisoners Sentences Are Commuted by Carey, New York Times, Jan. 1, 1981
Internet