When the prosecuting attorney in a great criminal trial arises to open
the case to the impanelled jury, very few, if any, of them have the
slightest conception of the enormous expenditure of time, thought and
labor which has gone into the preparation of the case and made possible
his brief and easily delivered speech. For in this opening address of
his there must be no flaw, since a single misstated or overstated fact
may prejudice the jury against him and result in his defeat. Upon
it also depends the jury's first impression of the case and of the
prosecutor himself--no inconsiderable factor in the result. In a trial
of importance its careful construction with due regard to what facts
shall be omitted (in order to enhance their dramatic effect when
ultimately proven) may well occupy the district attorney every evening
for a week. But if the speech itself has involved study and travail, it
is as nothing compared with the amount required by that most important
feature of every criminal case--the selection of the jury.
For a month before the trial, or whenever it may be that the jury has
been drawn, every member upon the panel has been subjected to an unseen
scrutiny. The prosecutor, through his own or through hired sleuths, has
examined into the family history, the business standing and methods, the
financial responsibility, the political and social affiliations, and the
personal habits and "past performances" of each and every talesman. When
at the beginning of the trial they, one by one, take the witness-chair
(on what is called the voir dire) to subject themselves to an
examination by both sides as to their fitness to serve as jurors in
the case, the district attorney probably has close fit hand a rather
detailed account of each, and perchance has great difficulty in
restraining a smile. When some prospective juror, in his eagerness
either to serve or to escape, deliberately equivocates in answer to an
important question as to his personal history.
"Are you acquainted with the accused or his family?" mildly inquires the
assistant prosecutor. "No--not at all," the talesman may blandly reply.
The answer, perhaps, is literally true, and yet the prosecutor may be
pardoned for murmuring
"Liar!" to himself as he sees that his memorandum concerning the juror's
qualifications states that he belongs to the same "lodge" with the
prisoner's uncle by marriage and carries an open account on his books
with the defendant's father.
"I think we will excuse Mr. Ananias," politely remarks the prosecutor;
then in an undertone he turns to his chief and mutters: "The old rascal!
He would have knifed us if we'd given him the chance!" And all this time
the disgruntled Mr. Ananias is wondering why, if he didn't "know the
defendant or his family," he was not accepted as a juror.
Of course, every district attorney has, or should have, information as
to each talesman's actual capabilities as a juror and something of
a record as to how he has acted under fire. If he is a member of the
"special" panel, it is easy to find out whether he has ever acquitted
or convicted in any cause celebre, and if he has acquitted any plainly
guilty defendant in the past it is not likely that his services will
be required. If, however, he has convicted in such a case the district
attorney may try to lure the other side into accepting him by making
it appear that he himself is doubtful as to the juror's desirability.
Sometimes persons accused of crime themselves, and actually under
indictment, find their way onto the panels, and more than one ex-convict
has appeared there in some inexplicable fashion. But to find them out
may well require a double shift of men working day and night for a month
before the case is called, and what may appear to be the most trivial
fact thus discovered may in the end prove the decisive argument for or
against accepting the juror.
Panel after panel may be exhausted before a jury in a great murder
trial has been selected, for each side in addition to its challenges
for "cause" or "bias" has thirty* peremptory ones which it may exercise
arbitrarily. If the writer's recollection is not at fault, the large
original panel drawn in the first Molineux trial was used up and
several others had to be drawn until eight hundred talesmen had been
interrogated before the jury was finally selected. It is usual to
examine at least fifty in the ordinary murder case before a jury is
secured.
* In the State of New York.
It may seem to the reader that this scrutiny of talesmen is not strictly
preparation for the trial, but, in fact, it is fully as important
as getting ready the facts themselves; for a poor jury, either from
ignorance or prejudice, will acquit on the same facts which will lead
a sound jury to convict. A famous prosecutor used to say, "Get your
jury--the case will take care of itself."
But as the examination of the panel and the opening address come last
in point of chronology it will be well to begin at the beginning and
see what the labors of the prosecutor are in the initial stages of
preparation. Let us take, for example, some notorious case, where an
unfortunate victim has died from the effects of a poisoned pill or
draught of medicine, or has been found dead in his room with a revolver
bullet in his heart. Some time before the matter has come into the hands
of the prosecutor, the press and the police have generally been doing
more or less (usually less) effective work upon the case. The yellow
journals have evolved some theory of who is the culprit and have loosed
their respective reporters and "special criminologists" upon him. Each
has its own idea and its own methods--often unscrupulous. And each has
its own particular victim upon whom it intends to fasten the blame.
Heaven save his reputation! Many an innocent man has been ruined for
life through the efforts of a newspaper "to make a case," and, of
course, the same thing, though happily in a lesser degree, is true of
the police and of some prosecutors as well.
In every great criminal case there are always four different and
frequently antagonistic elements engaged in the work of detection and
prosecution--first, the police; second, the district attorney; third,
the press; and, lastly, the personal friends and family of the deceased
or injured party. Each for its own ends--be it professional pride,
personal glorification, hard cash, or revenge--is equally anxious to
find the evidence and establish a case. Of course, the police are the
first ones notified of the commission of a crime, but as it is now
almost universally their duty to inform at once the coroner and also
the district attorney thereof, a tripartite race for glory frequently
results which adds nothing to the dignity of the administration of
criminal justice.
The coroner is at best no more than an appendix to the legal anatomy,
and frequently he is a disease. The spectacle of a medical man of
small learning and less English trying to preside over a court of first
instance is enough to make the accused himself chuckle for joy.
Not long ago the coroners of New York discovered that, owing to the
fact that the district attorney or his representatives generally
arrived first at the scene of any crime, there was nothing left for the
"medicos" to do, for the district attorney would thereupon submit the
matter at once to the grand jury instead of going through the formality
of a hearing in the coroner's court. The legal medicine men felt
aggrieved, and determined to be such early birds that no worm should
escape them. Accordingly, the next time one of them was notified of a
homicide he raced his horse down Madison Avenue at such speed that he
collided with a trolley car and broke his leg.
Another complained to the district attorney that the assistants of the
latter, who had arrived at the scene of an asphyxiation before him, had
bungled everything.
"Ach, dose young men!" he exclaimed, wringing his hands--"Dose young
men, dey come here and dey opened der vindow and let out der gas and all
mine evidence esgaped."
It is said that this interesting personage once instructed his jury
to find that "the diseased came to his death from an ulster on the
stomach."
These anecdotes are, perhaps, what judges would call obiter dicta, yet
the coroner's court has more than once been utilized as a field in the
actual preparation of a criminal case. When Roland B. Molineux was first
suspected of having caused the death of Mrs. Adams by sending the famous
poisoned package of patent medicine to Harry Cornish through the
mails, the assistant district attorney summoned him as a witness to the
coroner's court and attempted to get from him in this way a statement
which Molineux would otherwise have refused to make.
When all the first hullabaloo is over and the accused is under arrest
and safely locked up, it is usually found that the police have merely
run down the obvious witnesses and made a prima facie case. All the
finer work remains to be done either by the district attorney himself
or by the detective bureau working under his immediate direction or
in harmony with him. Little order has been observed in the securing of
evidence. Every one is a fish who runs into the net of the police, and
all is grist that comes to their mill. The district attorney sends
for the officers who have worked upon the case and for the captain
or inspector who has directed their efforts, takes all the papers and
tabulates all their information. His practiced eye shows him at once
that a large part is valueless, much is contradictory, and all needs
careful elaboration. A winnowing process occurs then and there; and
the officers probably receive a "special detail" from headquarters and
thereafter take their orders from the prosecutor himself. The detective
bureau is called in and arrangements made for the running down of
particular clues. Then he will take off his coat, clear his desk, and
get down to work.
Of course, his first step is to get all the information he can as to the
actual facts surrounding the crime itself. He immediately subpoenas all
the witnesses, whether previously interrogated by the police or not,
who know anything about the matter, and subjects them to a rigorous
cross-examination. Then he sends for the police themselves and
cross-examines them. If it appears that any witnesses have disappeared
he instructs his detectives how and where to look for them. Often this
becomes in the end the most important element in the preparation for
the trial. Thus in the Nan Patterson case the search for and ultimate
discovery of Mr. and Mrs. Morgan Smith (the sister and brother-in-law of
the accused) was one of its most dramatic features. After they had been
found it was necessary to indict and then to extradite them in order
to secure their presence within the jurisdiction, and when all this had
been accomplished it proved practically valueless.
It frequently happens that an entire case will rest upon the testimony
of a single witness whose absence from the jurisdiction would prevent
the trial. An instance of such a case was that of Albert T. Patrick, for
without the testimony of his alleged accomplice--the valet, Jones--he
could not have been convicted of murder. The preservation of such a
witness and his testimony thus becomes of paramount importance, and
rascally witnesses sometimes enjoy considerable ease, if not luxury, at
the expense of the public while waiting to testify. Often, too, a case
of great interest will arise where the question of the guilt of the
accused turns upon the evidence of some one person who, either from
mercenary motives or because of "blood and affection," is unwilling
to come to the fore and tell the truth. A striking case of this sort
occurred some ten years ago. The "black sheep" of a prominent New York
family forged the name of his sister to a draft for thirty thousand
dollars. This sister, who was an elderly woman of the highest character
and refinement, did not care to pocket the loss herself and declined to
have the draft debited to her account at the bank. A lawsuit followed,
in which the sister swore that the name signed to the draft was not in
her handwriting. She won her case, but some officious person laid the
matter before the district attorney. The forger was arrested and
his sister was summoned before the grand jury. Here was a pleasant
predicament. If she testified for the State her brother would
undoubtedly go to prison for many years, to say nothing of the notoriety
for the entire family which so sensational a case would occasion. She,
therefore, slipped out of the city and sailed for Europe the night
before she was to appear before the grand jury. Her brother was in due
course indicted and held for trial in large bail, but there was and
is no prospect of convicting him for his crime so long as his sister
remains in the voluntary exile to which she has subjected herself. She
can never return to New York to live unless something happens either to
the indictment or her brother, neither of which events seems likely in
the immediate future.
Perhaps, if the case is one of shooting, the weapon has vanished. Its
discovery may lead to the finding of the murderer. In one instance where
a body was found in the woods with a bullet through the heart, there was
nothing to indicate who had committed the crime. The only scintilla of
evidence was an exploded cartridge--a small thing on which to build
a case. But the district attorney had the hammer marks upon the cap
magnified several hundred times and then set out to find the rifle which
bore the hammer which had made them. Thousands of rifles all over the
State were examined. At last in a remote lumber camp was found the
weapon which had fired the fatal bullet. The owner was arrested, accused
of the murder, and confessed his crime. In like manner, if it becomes
necessary to determine where a typewritten document was prepared the
letters may be magnified, and by examining the ribbons of suspected
machines the desired fact may be ascertained. The magnifying glass still
plays an important part in detecting crime, although usually in ways
little suspected by the general public.
On the other hand, where the weapon has not been spirited away the
detectives may spend weeks in discovering when and where it was
purchased. Every pawnshop, every store where a pistol could be bought,
is investigated, and under proper circumstances the requisite evidence
to show deliberation and premeditation may be secured.
These investigations are naturally conducted at the very outset of the
preparation of the case.
The weapon, in seven trials out of ten, is the most important thing in
it. By its means it can generally be demonstrated whether the shooting
was accidental or intentional--and whether or not the killing was in
self-defence.
Where this last plea is interposed it is usually made at once upon the
arrest, the accused explaining to the police that he fired only to
save his own life. In such a situation, where the killing is admitted,
practically the entire preparation will centre upon the most minute
tests to determine whether or not the shot was fired as the accused
claims that it was. The writer can recall at least a dozen cases in his
own experience where the story of the defendant, that the revolver was
discharged in a hand-to-hand struggle, was conclusively disproved by
experimenting with the weapon before the trial. There was one homicide
in which a bullet perforated a felt cap and penetrated the forehead of
the deceased. The defendant asserted that he was within three feet of
his victim when he fired, and that the other was about to strike him
with a bludgeon. A quantity of felt, of weight similar to that of
the cap, was procured and the revolver discharged at it from varying
distances. A microscopic examination showed that certain discolorations
around the bullet-hole (claimed by the defence to be burns made by the
powder) were, in fact, grease marks, and that the shot must have been
fired from a distance of about fifteen feet. The defendant was convicted
on his own story, supplemented by the evidence of the witness who made
the tests.
The most obvious and first requirement is, as has been said, to find
the direct witnesses to the facts surrounding the crime, commit their
statements under oath to writing, so that they cannot later be denied
or evaded, and make sure that these witnesses will not only hold no
intercourse with the other side, but will be on hand when wanted. This
last is not always an easy task, and various expedients often have to
be resorted to, such as placing hostile witnesses under police
surveillance, or in some cases in "houses of detention," and hiding
others in out-of-the-way places, or supplying them with a bodyguard if
violence is to be anticipated. When the proper time comes the favorable
witnesses must be duly drilled or coached, which does not imply anything
improper, but means merely that they must be instructed how to deliver
their testimony, what answers are expected to certain questions, and
what facts it is intended to elicit from them. Witnesses are often
offended and run amuck because they are not given a chance upon the
stand to tell the story of their lives. This must be guarded against and
steps taken to have their statements given in such a way that they are
audible and intelligible. A few lessons in elementary elocution are
generally vitally necessary. The man with the bassoon voice must be
tamed, and the birdlike old lady made to chirp more loudly. But all this
is the self-evident preparation which must take place in every case, and
while highly important is of far less interest than the development
of the circumstantial evidence which is the next consideration of the
district attorney.
The discovery and proper proof of minute facts which tend to demonstrate
the guilt of an accused are the joy of the natural prosecutor, and he
may in his enthusiasm spend many thousands of dollars on what seems, and
often is, an immaterial matter. Youthful officials intrusted with the
preparation of important cases often become unduly excited and forget
that the taxpayers are paying the bills. The writer remembers sitting
beside one of these enthusiasts during a celebrated trial. A certain
woman witness had incidentally testified to a remote meeting with
the deceased at which a certain other woman was alleged to have been
present. The matter did not seem of much interest or importance, but
the youth in question seized a yellow pad and excitedly wrote in blue
pencil, "Find Birdie" (the other lady) "at any cost!" This he handed
to a detective, who hastened importantly away. It is to be hoped that
"Birdie" was found speedily and in an inexpensive manner.
When the case against Albert T. Patrick, later convicted of the murder
of the aged William M. Rice, was in course of preparation, it was found
desirable to show that Patrick had called up his accomplice on the
telephone upon the night of the murder. Accordingly, the telephone
company was compelled to examine several hundred thousand telephone
slips to determine whether or not this had actually occurred. While the
fact was established in the affirmative, the company now destroys its
slips in order not to have to repeat the performance a second time.
Likewise, in the preparation of the Molineux case it became important
to demonstrate that the accused had sent a letter under an assumed name
ordering certain remedies. As a result, one of the employees of the
patent-medicine company spent several months going over their old mail
orders and comparing them with a certain sample, until at last the
letter was unearthed. Of course, the district attorney had to pay for
it, and it was probably worth what it cost to the prosecution, although
Molineux's conviction was reversed by the Court of Appeals and he was
acquitted upon his second trial.
The danger is, however, that a prosecutor who has an unlimited amount
of money at his disposal may be led into expenditures which are hardly
justified simply because he thinks they may help to secure a conviction.
Nothing is easier than to waste money in this fashion, and public
officials sometimes spend the county's money with considerably more
freedom than they would their own under similar circumstances.
The legitimate expenses connected with the preparation of every
important case are naturally large. For example, diagrams must be
prepared, photographs taken of the place of the crime, witnesses
compensated for their time and their expenses paid, and, most important
of all, competent experts must be engaged. This leads us to an
interesting aspect of the modern jury trial.
When no other defence to homicide is possible the claim of insanity is
frequently interposed. Nothing is more confusing to the ordinary juryman
than trying to determine the probative value of evidence touching
unsoundness of mind, and the application thereto of the legal test
of criminal responsibility. In point of fact, juries are hardly to be
blamed for this, since the law itself is antiquated and the subject one
abounding in difficulty. Unfortunately the opportunity for vague yet
damaging testimony on the part of experts, the ease with which
any desired opinion can be defended by a slight alteration in the
hypothetical facts, and the practical impossibility of exposure,
have been seized upon with avidity by a score or more of unscrupulous
alienists who are prepared to sell their services to the highest bidder.
These men are all the more dangerous because, clever students of mental
disease and thorough masters of their subject as they are, they are able
by adroit qualifications and skilful evasions to make half-truths seem
as convincing as whole ones. They ask and receive large sums for their
services, and their dishonest testimony must be met and refuted by the
evidence of honest physicians, who, by virtue of their attainments, have
a right to demand substantial fees. Even so, newspaper reports of the
expense to the State of notorious trials are grossly exaggerated.
The entire cost of the first Thaw trial to the County of New York was
considerably less than twenty thousand dollars, and the second trial
not more than half that amount. To the defence, however, it was a costly
matter, as the recent schedules in bankruptcy of the defendant show.
Therein it appears that one of his half-dozen counsel still claims
as owing to him for his services on the first trial the modest sum of
thirty-five thousand dollars. The cost of the whole defence was probably
ten times that sum. Most of the money goes to the lawyers, and the
experts take the remainder.
It goes without saying that both prosecutor and attorney for the defence
must be masters of the subject involved. A trial for poisoning means
an exhaustive study not only of analytic chemistry, but of practical
medicine on the part of all the lawyers in the case, while a plea of
insanity requires that, for the time being, the district attorney shall
become an alienist, familiar with every aspect of paranoia, dementia
praecox, and all other forms of mania. He must also reduce his knowledge
to concrete, workable form, and be able to defeat opposing experts
on their own ground. But such knowledge comes only by prayer and
fasting--or, perhaps, rather by months of hard and remorseless grind.
The writer once prosecuted a druggist who had, by mistake, filled
a prescription for a one-fourth-grain pill of calomel with a
one-fourth-grain pill of morphine. The baby for whom the pill was
intended died in consequence. The defence was that the prescription
had been properly filled, but that the child was the victim of various
diseases, from acute gastritis to cerebro-spinal meningitis. In
preparation the writer was compelled to spend four hours every evening
for a week with three specialists, and became temporarily a minor expert
on children's diseases. To-day he is forced to admit that he would not
know a case of acute gastritis from one of mumps. But the druggist was
convicted.
Yet it is not enough to prepare for the defence you believe the accused
is going to interpose. A conscientious preparation means getting ready
for any defence he may endeavor to put in. Just as the prudent general
has an eye to every possible turn of the battle and has, if he can,
re-enforcements on the march, so the prosecutor must be ready for
anything, and readiest of all for the unexpected. He must not rest upon
the belief that the other side will concede any fact, however clear
it may seem. Some cases are lost simply because it never occurs to the
district attorney that the accused will deny something which the State
has twenty witnesses to prove. The twenty witnesses are, therefore, not
summoned on the day of trial, the defendant does deny it, and as it is a
case of word against word the accused gets the benefit of the doubt and,
perhaps, is acquitted.
No case is properly prepared unless there is in the court-room every
witness who knows anything about any aspect of the case. No one can
foretell when the unimportant will become the vital. Most cases turn
on an unconsidered point. A prosecutor once lost what seemed to him the
clearest sort of a case. When it was all over, and the defendant had
passed out of the courtroom rejoicing, he turned to the foreman and
asked the reason for the verdict.
"Did you hear your chief witness say he was a carpenter?" inquired the
foreman.
"Why, certainly," answered the district attorney,
"Did you hear me ask him what he paid for that ready-made pine door he
claimed to be working on when he saw the assault?"
The prosecutor recalled the incident and nodded.
"Well, he said ten dollars--and I knew he was a liar. A door like that
don't cost but four-fifty!"
It is, perhaps, too much to require a knowledge of carpentry on the part
of a lawyer trying an assault case. Yet the juror was undoubtedly right
in his deduction.
In a case where insanity is the defence, the State must dig up and have
at hand every person it can find who knew the accused at any period of
his career. He will probably claim that in his youth he was kicked in
a game of foot-ball and fractured his skull, that later he fell into an
elevator shaft and had concussion of the brain, or that he was hit on
the head by a burglar. It is usually difficult, if not impossible, to
disprove such assertions, but the prosecutor must be ready, if he can,
to show that foot-ball was not invented until after the defendant had
attained maturity, that it was some other man who fell down the elevator
shaft, and to produce the burglar to deny that the assault occurred.
Naturally, complete preparation for an important trial demands the
presence of many witnesses who ultimately are not needed and who are
never called. Probably in most such cases about half the witnesses
do not testify at all. Most of what has been said relates to the
preparation for trial of cases where the accused is already under arrest
when the district attorney is called into the case. If this stage has
not been reached the prosecutor may well be called upon to exercise some
of the functions of a detective in the first instance.
A few years ago it was brought to the attention of the New York
authorities that many blackmailing letters were being received bearing
the name of "Lewis Jarvis." These were of a character to render the
apprehension of the writer of them a matter of much importance. The
letters directed that the replies be sent to a certain box in the New
York post-office, but as the boxes are numerous and close together it
seemed doubtful if "Lewis Jarvis" could be detected when he called
for his mail. The district attorney, the police, and the post-office
officials finally evolved the scheme of plugging the lock of "Lewis
Jarvis's" box with a match. The scheme worked, for "Jarvis," finding
that he could not use his key, went to the delivery window and asked for
his mail. The very instant the letters reached his hand the gyves were
upon the wrists of one of the best-known attorneys in the city.
When the district attorney has been apprised that a crime has been
committed, and that a certain person is the guilty party, he not
infrequently allows the suspect to go his way under the careful watch
of detectives, and thus often secures much new evidence against him. In
this way it is sometimes established that the accused has endeavored
to bribe the witnesses and to induce them to leave the State, while
the whereabouts of stolen loot is often discovered. In most instances,
however, the district attorney begins where the police leave off, and
he merely supplements their labors and prepares for the actual trial
itself. But the press he has always with him, and from the first moment
after the crime up to the execution of the sentence or the liberation of
the accused, the reporters dog his footsteps, sit on his doorstep, and
deluge him with advice and information.
Now a curious feature about the evidence "worked up" by reporters for
their papers is that little of it materializes when the prosecutor
wishes to make use of it. Of course, some reporters do excellent
detective work, and there are one or two veterans attached to the
criminal courts in New York City who, in addition to their literary
capacities, are natural-born sleuths, and combine with a knowledge of
criminal law, almost as extensive as that of a regular prosecutor, a
resourcefulness and nerve that often win the case for whichever side
they espouse. I have frequently found that these men knew more about the
cases which I was prosecuting than I did myself, and a tip from them has
more than once turned defeat into victory. But newspaper men, for one
reason or another, are loath to testify, and usually make but poor
witnesses. They feel that their motives will be questioned, and are
naturally unwilling to put themselves in an equivocal position.
The writer well remembers that in the Mabel Parker case, where the
defendant, a young and pretty woman, had boasted of her forgeries before
a roomful of reporters, it was impossible, when her trial was called, to
find more than one of them who would testify--and he had practically to
be dragged to the witness chair. In point of fact, if reporters made a
practice of being witnesses it would probably hurt their business. But,
however much "faked" news may be published, a prosecutor who did not
listen to all the hints the press boys had to give would make a great
mistake; and as allies and advisers they are often invaluable, for they
can tell him where and how to get evidence of which otherwise he would
never hear.
The week before a great case is called is a busy one for the prosecutor
in charge. He is at his office early to interview his main witnesses and
go over their testimony with them so that their regular daily work
may not be interrupted more than shall be actually necessary. Some he
cautions against being overenthusiastic and others he encourages to
greater emphasis. The bashful "cop" is badgered until at last he ceases
to begin his testimony in the cut-and-dried police fashion.
"On the morning of the twenty-second of July, about 3.30 A.M., while on
post at the corner of Desbrosses Street--," he starts.
"Oh, quit that!" shouts the district attorney. "Tell me what you saw in
your own words."
The "cop" blushes and stammers:
"Aw, well, on the morning of the twenty-second of July, about 3.30 A.M."
"Look here!" yells the prosecutor, jumping to his feet and shaking his
fist at him, "do you want to be taken for a d--n liar? 'Morning of
the twenty-second of July, about 3.30 A.M., while on post I' You never
talked like that in your life."
By this time the "cop" is "mad clear through."
"I'm no liar!" he retorts. "I saw the ------ pull his gun and shoot!"
"Well, why didn't you say so?" laughs the prosecutor, and the officer
mollified with a cigar, dimly perceives the objectionable feature of his
testimony.
About this time one of the sleuths comes in to report that certain
much-desired witnesses have been "located" and are in custody
downstairs. The assistant makes immediate preparation for taking their
statements. Then one of the experts comes in for a chat about a new
phase of the case occasioned by the discovery that the defendant
actually did have spasms when an infant. The assistant wisely makes an
appointment for the evening. A telegram arrives saying that a witness
for the defence has just started for New York from Philadelphia and
should be duly watched on arrival. The district attorney sends for the
assistant to inquire if he has looked up the law on similar cases in
Texas and Alabama--which he probably has not done; and a friend on the
telephone informs him that Tomkins, who has been drawn on the jury, is
a boon companion of the prisoner and was accustomed to play bridge with
him every Sunday night before the murder.
Coincidently, some private detectives enter with a long report on the
various members of the panel, including the aforesaid Tomkins, whom they
pronounce to be "all right," and as never having, to their knowledge,
laid eyes on the accused. Finally, in despair, the prosecutor locks
himself in his library with a copy of the Bible, "Bartlett's Familiar
Quotations," and a volume of celebrated speeches, to prepare his summing
up, for no careful trial lawyer opens a case without first having
prepared, to some extent, at least, his closing address to the jury. He
has thought about this for weeks and perhaps for months. In his dreams
he has formulated syllogisms and delivered them to imaginary yet
obstinate talesman. He has glanced through many volumes for similes and
quotations of pertinency. He has tried various arguments on his friends
until he knows just how, if he succeeds in proving certain facts and
the defence expected is interposed, he is going to convince the twelve
jurors that the defendant is guilty and, perhaps, win an everlasting
reputation as an orator himself.
This superficial sketch of how an important criminal case is got
ready for trial would be incomplete without some further reference to
something which has been briefly hinted at before--preparation upon its
purely legal aspect. This may well demand almost as much labor as
that required in amassing the evidence. Yet a careful and painstaking
investigation of the law governing every aspect of the case is
indispensable to success. The prosecutor with a perfectly clear case may
see the defendant walk out of court a free man, simply because he has
neglected to acquaint himself with the various points of law which may
arise in the course of the trial, and the lawyer for an accused may
find his client convicted upon a charge to which he has a perfectly good
legal defence, for the same reason.
Looking at it from the point of view of the prisoner's counsel, it is
obvious that it is quite as efficacious to free your client on a point
of law, without having the case go to the jury at all, as to secure an
acquittal at their hands.
At the conclusion of the evidence introduced in behalf of the State
there is always a motion made to dismiss the case on the ground of
alleged insufficiency in the proof. This has usually been made the
subject of the most exhaustive study by the lawyers for the defence,
and requires equal preparation on the part of the prosecutor. The writer
recalls trying a bankrupt, charged with fraud, where the lawyer for
the defendant had written a brief of some three hundred pages upon the
points of law which he proposed to argue to the court upon his motion to
acquit. But, unfortunately, his client pleaded guilty and the volume was
never brought into play.
But a mastery of the law, a thorough knowledge and control of the
evidence, a careful preparation for the opening and closing addresses,
and an intimate acquaintance with the panel from which the jury is to be
drawn are by no means the only elements in the preparation for a
great legal battle. One thing still remains, quite as important as the
rest--the selection of the best time and the best court for the trial.
"A good beginning" in a criminal case means a beginning before the right
judge, the proper jury, and at a time when that vague but important
influence known as public opinion augurs success. A clever criminal
lawyer, be he prosecutor or lawyer for the defendant, knows that all the
preparation in the world is of no account provided his case is to come
before a stupid or biased judge, or a prejudiced or obstinate jury.
Therefore, each side, in a legal battle of importance, studies, as well
as it can, the character, connections, and cast of mind of the different
judges who may be called upon to hear the case, and, like a jockey
at the flag, tries to hurry or delay, as the case may be, until the
judicial auspices appear most favorable. A lawyer who has a weak defence
seeks to bring the case before a weak judge, or, if public clamor is
loud against his client, makes use of every technical artifice to secure
delay, by claiming that there are flaws in the indictment, or by moving
for commissions to take testimony in distant points of the country.
The opportunities for legal procrastination are so numerous that in a
complicated case the defence may often delay matters for over a year.
This may be an important factor in the final result.
Yet even this is not enough, for, ultimately, it is the judge's charge
to the jury which is going to guide their deliberations and, in
large measure, determine their verdict. The lawyers for the defence,
therefore, prepare long statements of what they either believe or
pretend to believe to be the law. These statements embrace all the legal
propositions, good or bad, favorable to their side of the case. If
they can induce the judge to follow these so much the better for their
client, for even if they are not law it makes no difference, since the
State has no appeal from an acquittal in a criminal case, no matter how
much the judge has erred. In the same way, but not in quite the same
fashion, the district attorney prepares "requests to charge," but his
desire for favorable instructions should be, and generally is, curbed by
the consideration that if the judge makes any mistake in the law and the
defendant is convicted he can appeal and upset the case. Of course, some
prosecutors are so anxious to convict that they will wheedle or deceive
a judge into giving charges which are not only most inimical to the
prisoner, but so utterly unsound that a reversal is sure to follow; but
when one of these professional bloodhounds is baying upon the trail all
he thinks of is a conviction--that is all he wants, all the public
will remember; to him will be the glory; and when the case is finally
reversed he will probably be out of office. These "requests" cover
pages, and touch upon every phase of law applicable or inapplicable to
the case. Frequently they number as many as fifty, sometimes many more.
It is "up to" the judge to decide "off the bat" which are right and
which are wrong. If he guesses that the right one is wrong or the wrong
one right the defendant gets a new trial.