New-York tribune., 1918-07-03
O'Leary's Counsel
Has New Defence
For Second Trial
Fielder Contends Conspi-
racy Was Concocted Az
ter Brothers Separated

racy Was Concocted At
ter Brothers Separated
Can man be party to a conspiracy
concocted four days after he has sew
cred communications with the chief OF
his alleged co-conspirators?
With all the government cards on
abruptly suspended trial, that IS the
task to which the John J, OLeary de-
fence switched yesterday, when, after
completion of the jury, the retrial pro-
ceedings in this case got actively under
the United States District Court.
Colonel Thomas B. Fielder, counsel
for the accused, declared after court
had adjourned that this new defence
was going to transfer the whole case to
a radically different basis,
When John J. O'Leayy was first
brought to trial on the charge of hav-
ing consDired to aid in the recent SEN
sational flight Of his brother, Jere-
miah, it was on the events leading up
to the runaway that all the stress was
laid
"But now" said Colonel Fielder. ''it
is no longer question simply of Jere
miah OIeary's word against the word
Of the government witness. Arthur Ly-
ons. Lyons himself, although attempt
ing to implicate John OLeary, swears
hatched on Nav Z, in Ogden, Utah, hun
dreds of miles away from John
OLeary and four days after John
OLeary had parted from his brother.
The government cannot impeach its
own witness. Had the COVE rnment
charged this defendant only with oh
structing justice by aiding his brother
to escape. this point might not make
any difference. But the government
his brother in escaping.
Proving Conspiracy
In order to prove conspiracy it is
necessary to establish mutual under
standing, consummated by subse-
Quent overt act. The overt act charged
against this defendant is aiding his
brother to escape. But the governments $
own witness proves that he could not
have conspired herein if, as he testi-
fes, the conspiracy to escape WAS
formed subsequent to the commission
OF this overt act. The result is that
the governments case is reduced to
nonsense"
Mr.. Fielder advanced this argument
when, with the second witness on the
. stand, Earl B. Barnes, Assistant United
States Attorney, prosecuting for the
government, sought to introduce the
, blanket power OF attorney jeremiah
, OLeary gave the defendant just prior
to the fight of May T.
, =. In response Mr.. Barnes replied that
the conspiracy charge vas all inclusive
and the exhibit was inally admitted
subject 20 Colonel Felders objection.
IN his opening address, however, Inc
prosecutor gave evidence Of o disposi.
! tion to fight the case out on the new
,, lines suggested by the defence
! Says John O'Leary Lied
IF john O'Leary had stopped mis- &C
tivities at the time his brother boarde d
the train for The West" he told the
jurors. che would not be on t-ial IN this
court to-day It's not what he did up tc
shat time, but what he did after that
counts-what he did in concealing and
lying about his brothers case"
Mn. Barnes charged that, knowing tho
( whereabouts of his brother quite well
curing all this period when the authors.
ties were seeking him, John OLeary
strove to throw the authorities off the
trail by sending 'camoufiage kilograms,
and then appeared before the grant
jury and lied about the whole matter.
Colonel Fielder objected long ant
heatediy TO the use of the word "led >
but the court refused to have i,
!. stricken out.
For the rest Mr.. Barnes confined
himself to q brief review Of the nov
- familiar chronicle Of Jeremiah's FIGHT
Y ing it.
:. The one question for you to de
+ cidc,' he said to the jurors, "i
=, Whcther Lyons's story is true or false
- - every minute. There will be conflict
J ing evidence in this case and d
- Vergent stories, and you will have t
study and estimate the characters O
!. 'Ae various witnesses very carefully.
|. OIeary Encouraged
IS Al the close of court yesterday tn,
It defendant expressed himself AS vastl,
encouraged by the prosecutors atti
j. tude.
,. "lt's almost a complete backdowr
d from his former position" JOIN
sOLeary said. at looks to me as l.
Mr. barnes realized now that he's try
ing an innocent man, and has recon
cl!ed himself to losing the case"
While the first witnesses were bein,
| examined in Johns trial jeremiah
OLeary was brought over to the Fed
eral Building from the Tombs to con
ter with Judge Learned Hand abou
the counsel who will be appointed t.
s defend him when his own trial on tn,
e more serious charges comes up in th,
o fall. The Sim Fein agitator gave Judg,
: Hand long list Of men whom h,
e would aike to have assigned to hi
t case, and received assurances tha
/ every effort would be made TO prevail
upon one OF them to serve
: Mrs. OLeary and the accused man.
g two small daughters were on hend a
e the Federal Building to greet him
: and he was allowed long stay witt
o them before being taken back in tn
J, custody OF United States Marshal Nc
y Carthy to his cell in the Tombs.
8 C%o%e,c D1:I