Not Guilty: Thirty Six Actual Cases in Which
An Innocent Man Was Convicted
by Judge Jerome Frank and Barbara Frank

Excerpt from Chapter 1 on

Joe Majczek and Ted Marcinkiewicz

In the year 1932, twenty-four-year-old Joe Majczek, an electrician by trade, was living with his wife, Helen, in an apartment at 3021 Farrell Street, Chicago, Illinois. Born in Poland when his mother, Tillie, was sixteen, Joe, at the age of one, had traveled with his parents to America. The family moved into a house at 2038 West Fifty-second Street, a district of Chicago populated mainly by the Majczeks' countrymen, the same neighborhood where Joe and Helen later lived. Tillie's husband, Michael, found a job in the city's stockyards and, within the next few years, Tillie bore three more children.

In the depression year of 1932 Joe, like hordes of his fellow citizens, was out of work. As an added financial strain, Joe and Helen soon expected the birth of their first child. But being full of youthful energy and very much in love, Joe probably felt competent to solve his problems and, in almost all the ways that mattered most, was satisfied. Certainly in later life his retrospective longing for that period must have been intense.

What happened at 3 P.M., December 9, 1932, wholly changed the direction of Joe's life.

Even for Chicago, on that day, the temperature was unseasonably low. The thermometer registered eight degrees below the zero mark, and Joe, at home, was spending a domestic afternoon. While Helen occupied herself with household tasks inside, Joe helped his father-in-law, who lived in the same building, to store a ton of coal the dealer had left for them in the alley next to the apartment house. Joe and Helen's father, dressed in their warmest clothes, shoveled the coal into baskets, then carried the baskets to a shed in the rear of the building. The job took several hours and occasionally between trips Joe and his father-in-law walked up to Joe's apartment, on the second floor, to join Helen in a cup of coffee and a cigarette near the warm stove. Nothing in the normal, tranquil afternoon gave warning of the tragedy ahead.

Elsewhere in the same neighborhood a crime was taking place.

A woman (who in this record will be called Mrs. Jones) owned a store near Joe's home, where she also sold whiskey in violation of the prohibition law. There the crime occurred at three o'clock.

Mrs. Jones had her living quarters in the same building. Since the house was cold, she had retired to her somewhat warmer kitchen, alert for sounds indicating customers inside the store. With her, companionably seated around the table near the stove, were two acquaintances: a uniformed police officer, William Lundy, who had stopped in for a chat, and John Zagata, a coal dealer who had just made a delivery to Mrs. Jones and remained to pass the time of day.

During a pause in the comfortable conversation Mrs. Jones heard a sound she recognized as the closing of the front door. Thinking that she had a customer, she left her guests to go into the store. Two men stood near the cash register, their grim purpose immediately clear: Each carried a revolver in his hand. One of the bandits, pointing his gun at Mrs. Jones, ordered her to raise her hands. Mrs. Jones hastily obeyed. The men, closing in on her, roughly pushed her through the open kitchen door. One of them looked into the kitchen to find out if anyone else was there. Seeing Zagata and the armed policeman seated at the table, the bandit called a warning to his companion. Lundy rose, taking his revolver from its holster, and stood his ground as the gunmen advanced on him. Mrs. Jones screamed, ran into a closet, and slammed the door against the violence impending in the room outside, while Zagata hurried out a door leading from the kitchen to the street.

A postman, Joseph Becker, passing on the street, heard Mrs. Jones scream, then the sound of seven shots inside the house. He saw two men, revolvers in their hands, race into the street, get into an automobile, and speed away.

Becker ran into the store. Near the front door lay Lundy's bullet-torn, bleeding dead body. Becker hastened to the phone and summoned the police.

That month Chicago's police files were in bad shape. Because the prohibition law had not stopped the sale of liquor but had, instead, multiplied the now illegal profits of such sales, bootlegging had become a thriving industry in the city. As a result Chicago's gangsters had increased in number, as had the city's crimes of violence. The police files contained many unsolved murders, including Lundy's. To make matters worse, the World's Fair was to open in Chicago soon, and the mayor thought that the city's much-advertised, very bad police record might keep potential customers away. The state's attorney, conferring with the mayor, agreed that every effort should be made to remedy this record before the fair's advent.

As to Lundy's murder in particular, however, in the minds of the police a more important matter was at stake: A brother officer had been murdered and therefore, to his comrades, this was no ordinary crime. Lundy's violent death appeared to the police sufficient reason to administer justice in its ancient form. Indeed, it was not whose eye that mattered, or whose tooth, only that the crime should be avenged.

The police called Mrs. Jones to headquarters for questioning. She told them that she would not be able to identify the killers.

"I was so scared I ran away before I could look at them," Mrs. Jones said.

But the police did not intend to let the matter rest at that.

Ted Marcinkiewicz, a childhood friend and schoolmate of Joe Majczek's, lived in the Majczeks' neighborhood with his stepmother and his invalid father. Because the elder Marcinkiewicz had been ill for several years, Ted had taken on the responsibility of looking after an apartment house his father owned, keeping the building running smoothly, and collecting rents.

Early on the evening of December 9, Ted, walking home, was stopped by a friend who warned him that the police had a warrant for his arrest. It seemed that Mrs. Bessie Barron – a young housewife who was Ted's neighbor and a friend of Mrs. Jones – when questioned by the police earlier that day, had told them that Ted might be one of the gunmen who had killed the officer in Mrs. Jones's grocery store.

Although he was innocent of the murder, and had an alibi, when Ted learned that the police wanted him, he suddenly became terrified: He believed that the police would not hesitate to use the third degree, or attempt to frame him in some other way, in their zeal to avenge Lundy's death.

Ted hastened to the Majczeks' apartment, and asked the young couple to hide him for a while. When Joe and Helen heard his story, they agreed at once.

Ted stayed with Joe and Helen for three nights and days, concealing himself from the police. Perhaps belatedly realizing that he had placed his friends in jeopardy, on December 12 he left their home for some other hide-out.

Ten days later, on December 22, a bootlegger known as "Alex" had a minor auto accident. When, in the early morning hours, the police were summoned to the scene, they questioned Alex, as they were questioning everyone in any way connected with the underworld, about the Lundy murder case. Alex, who knew through the grapevine that the police were looking for Ted Marcinkiewicz, admitted driving him, the night of December 9, to Joe Majczek's home.

At 5:45 A.M., December 22, shortly after Alex had given his information to the police, a squad car pulled up in front of Joe's and Helen's apartment house. Two policemen got out and rang the Majczeks' bell. Joe opened the door but, too rudely aroused from his heavy, early morning sleep, appeared to hesitate when the officers asked him if he knew Ted Marcinkiewicz. The police, thinking that Joe was trying to stall for time, took Joe and Helen to headquarters for questioning.

There Joe, now fully awake, said that he did know Ted, adding that Ted had recently stayed with him. However, he went on to say, he did not know where Ted could presently be found. The police apparently thought that he lied. Realizing, however, that Helen did not have the information they sought, the police released her, telling her that they were holding Joe, who would be home as soon as he told the truth about Ted's whereabouts.

The next time Helen set eyes on Joe, he was behind bars, charged with Lundy's murder.

As long as they had Joe in custody, perhaps the police thought they had better try him out for size. At any rate, on Thursday afternoon, December 23, they confronted Joe with the three people who had seen the holdup men.

Becker, the postman who, in passing by the store, had heard the shots, said that, since he had seen the killers only in their frantic flight, he would not recognize either one of them. Zagata, the coal dealer who had seen the killing, stated that he was prepared to swear in court that Joe was not one of the murderers. The police recognized that they could not prevail upon these witnesses to change their minds. But the officers believed they could persuade Mrs. Jones to identify the suspect even though, when first questioned, she had said that she would not recognize either of the criminals. The method by which the police persuaded Mrs. Jones to co-operate was not revealed for many years.

On first seeing him Mrs. Jones said that she did not recognize Joe. The police then took Joe into another room and an hour later, after a conference with Mrs. Jones, they brought her in to look at Joe again. Once more she failed to identify him. Nevertheless the police held Joe in custody overnight and at 3:45 P.M. the next day, after another conference with Mrs. Jones, they again asked her to identify him. This time she did not even hesitate.

"Yes, I know him," she said. "He is one of the killers."

The grand jury, on the basis of Mrs. Jones's testimony, indicted Joe for murder in the first degree.

Between the indictment and the trial Joe had several weeks in which to wonder what would happen to him now. There must have been the nightmare hours, but, on the whole, Joe was a man of common sense. Since he had not committed murder, the state could not prove otherwise. That an incredible error had been made would inevitably be demonstrated at the trial, for that's what trials were for: to find the truth.

So thinking, Joe was able to sleep at night.

The police continued an unsuccessful search for Ted Marcinkiewicz. However, on January 26, six weeks after Lundy had been murdered, Ted, bone-weary of the chase, turned himself in to the police, who again summoned Mrs. Jones to headquarters, this time to say whether she recognized the second suspect in the case. She immediately identified Ted as Joe's accomplice in the crime.

The grand jury indicted Ted for murder in the first degree. In February 1933, Joe and Ted together went to trial.

As the first witness for the state, Mrs. Jones took the stand. She testified that Joe was the killer who, aiming his gun at her, ordered her to raise her hands. She also saw, she said, the beginning of the struggle which ended Lundy's life. According to this witness Ted was the second holdup man.

Since Mrs. Jones was the state's key witness, it was imperative that the defense attempt to show the jury that she lied or, at the least, was unreliable. Joe had informed his lawyer that twice, at headquarters, Mrs. Jones had not been able to identify him, but the lawyer, when he cross-examined, failed to question her about that all-important fact, or attempt to prove it in some other way. He told Joe that the matter was too trivial to bother with. The fact was, however, that, if Mrs. Jones's testimony had been undermined, the prosecution's case would have collapsed, since she was the only witness who testified that the men on trial were the murderers.

As the second witness, Mrs. Jones's friend, Mrs. Barron, swore that Ted, shortly before the murder, had questioned her about Mrs. Jones's grocery store and about the size of Mrs. Jones's bank account. When Mrs. Barron told Ted, so she testified, that the store was doing very well, Ted replied that he himself was broke and, referring to the grocery store, said he was "going to make the joint."

The state's third witness was an acquaintance of Ted, a man named Bruno Uginchus. He testified that, about 6 P.M. on De­cember 9, while he was sitting in a parked car, the defendant, passing on the street, stopped to say he was "in a little trouble," and asked the witness for a ride. Uginchus drove to the corner of Forty-seventh and Wood with Ted on the running board; Ted then got off and went into a speak-easy. That testimony closed the prosecution's case.

The defendants presented alibis as the substance of their defense. Joe did not himself testify, relying on his witnesses for his alibi. Helen did not take the stand, since in Illinois a wife could not testify for her husband, but Helen's father did, and swore that at three o'clock, when the crime took place, Joe was at home, helping to haul some coal. The dealer who had delivered the coal testified that he had seen Joe there at that hour and that Joe's father-in-law then gave him a receipt for the delivery. The witness introduced a duplicate of the receipt.

Six witnesses appeared in court to establish an alibi for Ted. A neighbor testified that Ted had been with him, helping to thaw out a frozen pipe, until almost three, the hour at which the crime occurred. Ted's stepmother, two aunts, and a business acquaintance of Ted's father, who had been calling on the elder Marcinkiewicz that afternoon, all swore that Ted had been at home from a little before three until almost three-fifteen, and that he then went to a speak-easy across the street. The bartender and a customer testified that Ted had remained in the speak-easy from ten minutes after three until six o'clock.

Ted then took the stand. He repeated the facts to which his alibi witnesses had testified. He elaborated on the conversation with Uginchus, saying that it was accurate but adding that he had also told Uginchus that he was scared because the police had a warrant for his arrest. He explained that Mrs. Barron had misunderstood her conversation with him: He had not said that he wanted "to make the joint" but that, considering Mrs. Jones attractive, he had thoughts of "making" her.

Another witness testified that Mrs. Jones had once addressed him as "Marcinkiewicz"; thus it would be clear to the jury, so the defense hoped, that since the witness bore no resemblance to Ted, Mrs. Jones could well have made a similar mistake about Joe. The last witness testified to Ted's good reputation in the community.

After each side summed up, the judge charged the jury about the legal rules they must apply to the evidence. The jury then retired to their weighty task: to decide which set of witnesses had lied, or erred, or told the truth, and, on the basis of that choice, to fix the future of the men on trial.

Perhaps the jurors reasoned that where there is smoke there is always fire, even if there is scarcely any smoke; that, although nine witnesses had supported the defendants' alibis, while only one witness said that they were the criminals, nevertheless the prosecutor, an honorable official of the state, would not bring suspects of dubious guilt to trial; and that the accused, at bay, might have gone to any lengths to establish a defense. Or perhaps that was not the jury's reasoning at all; it could as well have taken any other form. The fact is that, after two hours and forty minutes of deliberation, they returned to tell the court that the defendants were guilty of the charge.

As a matter of invariable routine, at this point in the proceedings the lawyer for the accused makes a motion for a new trial. But the defense counsel failed to make the customary move.

It happened that the judge, suspicious of Mrs. Jones's demeanor when giving testimony, and convinced of the defendants' innocence, had decided to grant the prisoners a new trial. But because their lawyer had failed to make the appropriate motion, the judge felt that he had no choice but to accept the jury's verdict. He sentenced each prisoner to ninety-nine years in Joliet, the state penitentiary. Late in 1933, Joe and Ted arrived at Joliet to begin serving their life terms.

Joe and Ted appealed the judgment to the Supreme Court of Illinois. Their basic argument was that the evidence presented by the state had been insufficient to convict.

The judges sitting on the upper court replied that since no motion for a new trial had been made in the court below, they could consider, not the sufficiency of the evidence, but only whether there had been improprieties in the conduct of the trial.

As to one issue, apparently minor, raised on the appeal, the court opinion had this to say: "On cross-examination [the witness Mrs. Jones] was asked whether it was not a fact she sold whiskey to two men whose names were stated and whether that was not a part of her business . .. Objections to the questions were sustained. Cross-examination is largely within the discretion of the trial court. A cause will not be reversed for alleged improper rulings on questions asked on examination unless the defendant has been prejudiced or deprived of a fair trial. The [defendants] were not prejudiced by the ruling of the court."

But if Mrs. Jones had answered the question, and had answered it truthfully, she would have admitted that she bootlegged whiskey; and beneath the surface of that fact lay the concealed rottenness of the prosecution's case. However, since, on the face of it, the trial had been conducted properly, the Illinois Supreme Court sustained the prisoners' convictions.

Eleven years went by. Events changed swiftly. The country moved from a depression to the threshold of prosperity, then into a world war, the start of the atomic age, and toward a troubled peace.

And Helen Majczek bore Joe's son. When the boy was seven years old, Helen, having agreed with Joe that she should divorce him for the child's sake, married an old friend who had stood by them both.

The world moved swiftly, while Joe Majczek and Ted Marcinkiewicz stayed in thestate penitentiary, and Tillie, Joe's mother, fought to prove Joe innocent.

Tillie Majczek had begun her fight for Joe's release the day he was assigned his prison cell. For the evidence she had heard in court, and the jury's verdict, were so many hollow sounds to her. The only significant words that Tillie heard were Joe's, and Joe said he was innocent.

But Tillie was no fool. She fully realized that officially the case was closed. She felt sure that her son's only hope of vindication lay with her, but she needed help to prove Joe innocent, and realized that she needed money to stimulate anyone else's interest in clearing him.

Thus began the conflict between an uneducated, forty-one-year-old immigrant and the powerful forces of organized society. Tillie fought the battle on her hands and knees, after dark, for her husband, Michael, earned just enough for their support; as she was not trained in any trade, she got a job in a Chicago office building, scrubbing floors. She had to do her work at night, after the offices had emptied, and it was hard, exhausting work. It took a lot of scrubbing of a lot of floors to earn what Tillie thought necessary to free Joe. It also took eleven years.

On October 11, 1944, having reached the goal she set herself late in 1933, Tillie appeared at the offices of the Chicago Times to place this ad:

"Five thousand dollars reward for killers of Officer Lundy on December 9, 1932. Call Gro-1758, 12-7 P.M."

The man in charge of classified ads pricked up his ears. He told the city editor that Tillie was worth an interview. The editor agreed. His nose for news smelled a human-interest story, good for one or two issues of the Times, and he sent a reporter to talk to Tillie. When the reporter read Tillie's letters from Joe containing the facts about his trial, he sensed a story bigger than what it had first seemed. After several conferences with Tillie the city editor assigned two of his best men, Jack McPhaul and Paul McGuire, to investigate Joe's case, on the theory that to print the facts resulting from the investigation would probably advance the cause of justice, and would certainly advance the circulation of the Times.

McPhaul's and McGuire's investigation was conscientious and complete. For several months they interviewed all the people still alive who had in any way been involved, and examined all available records. Nearly twelve years after his conviction Joe's full story was revealed. It did not at all resemble the story the prosecution had unfolded at his trial.

The Times published these revelations in a series of articles that, had they not been factual, would have invited some costly libel suits. No libel suit was ever brought. The articles reported an interview with Mrs. Barron, who, having learned the truth about the prosecution's case only after the trial had ended, was relieved to tell her story publicly at last. "On numerous occa­sions since the trial," Mrs. Barron said, "I personally heard [Mrs. Jones] admit that her identification of the two convicted men was improper and false. When I asked her why she did it, she replied, 'What the hell did you expect me to do? I had to go along with the police, didn't I?' "

For, as the Times series made clear at last, Mrs. Jones had lied when she testified that Joe and Ted were the killers in her grocery store. She had no idea who the killers were. However, he police had made it clear to her, that, unless she identified the suspects, she would be prosecuted for her violation of the prohibition law, and probably be sentenced to the maximum prison term. But, in return for her false testimony, the police promised to protect Mrs. Jones from arrest. For this protection the terrified state's witness paid with perjured testimony, and Joe Majczek and Ted Marcinkiewicz paid, respectively, with twelve and seventeen prison years.

That was how the death of Officer Lundy had been avenged. His murderers were never found.

The series in the Times, which had concentrated on Joe
Majczek's case, attracted wide attention in the state of Illinois,
and was directly responsible for his eventual release. In the
month of August 1945, twelve years after he had begun his
prison term, when Joe had reached the age of thirty-six, the
Governor of Illinois granted him an unconditional pardon. In
February 1946, the state legislature, by a special statute, awarded him $24,000 as compensation for his wrongful imprisonment.

Ted Marcinkiewicz, however, remained in prison for five years after Joe's release.

In spite of the undisputed revelations about his trial, the authorities evidently felt that Ted's innocence was not clear, since there was independent evidence pointing to his guilt. That evidence consisted only of one witness's testimony that Ted had said he intended to rob the grocery store, and another's that, just after the murder, Ted had remarked that he "was in a little trouble"—evidence that, in itself, could not have supported Ted's conviction, which rested on perjured testimony induced by the police. At the very least, the disclosure of that perjury demanded a new trial. But the authorities took no action, and Ted remained a prisoner.

There is no record concerning Ted's attempt to get another day in court, or the obstacles he encountered on the way. But not until 1950, five years after the facts had been made public, did Ted succeed in obtaining a hearing, on habeas corpus, in the criminal court of Cook County, before Judge Thomas Lynch.

The judge's findings, based on the new evidence, were brief and to the point: It was now clear that, in 1933, Ted had been deprived of a fundamental constitutional right, due process of law. The judge ordered the prisoner's release.

Ted, believing that the state should compensate him for what he had endured, filed a claim for damages in the Illinois Court of Claims. The court rejected his petition, since Illinois had no general law allowing compensation to a man who had served a prison term for a crime in which it had not been proved he had played a part. If Ted feels no hatred of society, he is a stronger man than most.


1. People v. Majczek, 360 Ill. 261 (1935).

2. Chicago Times, November 27 through December 5, 1944.

3. Whitman, Howard, "When Justice Goes Wrong," New York Herald Tribune, March 24, 1946, magazine section, p. 9.

4. 15 Chicago Law Review, p. 775, n. 13 (1948).

5. Marcinkiewicz v. State, 21 Ill. C.C.R. 153 (1952).