"Tricks and treachery," said Benjamin Franklin, "are the practice of
fools that have not wit enough to be honest." Had the kindly philosopher
been familiar with all the exigencies of the criminal law he might have
added a qualification to this somewhat general, if indisputably moral,
maxim. Though it doubtless remains true as a guiding principle of
life that "Honesty is the best policy," it would be an unwarrantable
aspersion upon the intellectual qualities of the members of the criminal
bar to say that the tricks by virtue of which they often get their
clients off are "the practice of fools." On the contrary, observation
would seem to indicate that in many instances the wiser, or at least
the more successful, the practitioner of criminal law becomes, the more
numerous and ingenious become the "tricks" which are his stock in
trade. This must not be taken to mean that there are not high-minded and
conscientious practitioners of criminal law, many of them financially
successful, some filled with a noble humanitarian purpose, and some
drawn to their calling by a sincere enthusiasm for the vocation of the
advocate which, in these days of "business" law and commercial methods,
reaches perhaps its highest form in the criminal courts.
There are no more "tricks" practised in these tribunals than in the
civil, but they are more ingenious in conception, more lawless in
character, bolder in execution and less shamefaced in detection.
Let us not be too hard upon our brethren of the criminal branch. Truly,
their business is to "get their clients off." It is unquestionably a
generally accepted principle that it is better that ninety-nine guilty
men should escape than that one innocent man should be convicted.
However much persons of argumentative or philosophic disposition may
care to quarrel with this doctrine, they must at least admit that it
would doubtless appear to them of vital truth were they defending
some trembling client concerning whose guilt or innocence they were
themselves somewhat in doubt. "Charity believeth all things," and
the prisoner is entitled to every reasonable doubt, even from his own
lawyer. It is the lawyer's business to create such a doubt if he can,
and we must not be too censorious if, in his eagerness to raise this in
the minds of the jury, he sometimes oversteps the bounds of propriety,
appeals to popular prejudices and emotions, makes illogical deductions
from the evidence, and impugns the motives of the prosecution. The
district attorney should be able to take care of himself, handle
the evidence in logical fashion, and tear away the flimsy curtain of
sentimentality hoisted by the defence. These are hardly "tricks" at
all, but sometimes under the name of advocacy a trick is "turned" which
deserves a much harsher name.
Not long ago a celebrated case of murder was moved for trial after the
defendant's lawyer had urged him in vain to offer a plea of murder in
the second degree. A jury was summoned and, as is the usual custom in
such cases, examined separately on the "voir dire" as to their fitness
to serve. The defendant was a German, and the prosecutor succeeded
in keeping all Germans off the jury until the eleventh seat was to be
filled, when he found his peremptory challenges exhausted. Then the
lawyer for the prisoner managed to slip in a stout old Teuton,
who replied, in answer to a question as to his place of nativity,
"Schleswig-Holstein." The lawyer made a note of it, and, the box filled,
the trial proceeded with unwonted expedition.
The defendant was charged with having murdered a woman with whom he
had been intimate, and his guilt of murder in the first degree was
demonstrated upon the evidence beyond peradventure. At the conclusion of
the case, the defendant not having dared to take the stand, the lawyer
arose to address the jury in behalf of what appeared a hopeless
cause. Even the old German in the back row seemed plunged in soporific
inattention. After a few introductory remarks the lawyer raised his
voice and in heart-rending tones began:
"In the beautiful county of Schleswig-Holstein sits a woman old and
gray, waiting the message of your verdict from beyond the seas." (Number
11 opened his eyes and looked at the lawyer as if not quite sure of
what he had heard.) "There she sits" (continued the attorney), "in
Schleswig-Holstein, by her cottage window, waiting, waiting to learn
whether her boy is to be returned to her outstretched arms." (Number 11
sat up and rubbed his forehead.) "Had the woman, who so unhappily met
her death at the hands of my unfortunate client, been like those
women of Schleswig-Holstein--noble, sweet, pure, lovely women of
Schleswig-Holstein--I should have naught to say to you in his behalf."
(Number 11 leaned forward and gazed searchingly into the lawyer's face.)
"But alas, no! Schleswig-Holstein produces a virtue, a loveliness, a
nobility of its own." (Number 11 sat up and proudly expanded his chest.)
When, after about an hour or more of Schleswig-Holstein the defendant's
counsel surrendered the floor to the district attorney, the latter found
it quite impossible to secure the slightest attention from the eleventh
juror, who seemed to be spending his time in casting compassionate
glances in the direction of the prisoner. In due course the jury
retired, but had no sooner reached their room and closed the door
than the old Teuton cried, "Dot man iss not guilty!" The other eleven
wrestled with him in vain. He remained impervious to argument for
seventeen hours, declining to discuss the evidence, and muttering at
intervals, "Dot man iss not guilty!" The other eleven stood unanimously
for murder in the first degree, which was the only logical verdict that
could possibly have been returned upon the evidence.
At last, worn out with their efforts, they finally induced the old
Teuton to compromise with them on a verdict of manslaughter. Wearily
they straggled in, the old native of Schleswig-Holstein bringing up the
rear, bursting with exultation and with victory in his eye.
"Gentlemen of the jury, have you agreed upon a verdict?" inquired the
clerk.
"We have," replied the foreman.
"How say you, do you find the defendant guilty or not guilty?"
"Guilty--of manslaughter," returned the foreman feebly.
The district attorney was aghast at such a miscarriage of justice, and
the judge showed plainly by his demeanor his opinion of such a verdict.
But the old inhabitant of Schleswig-Holstein cared for this not a whit.
The old mother in Schleswig-Holstein might still clasp her son in her
arms before she died! The defendant was arraigned at the bar. Then for
the first time, and to the surprise and disgust of No. 11, he admitted
in answer to the questions of the clerk that his parents were both dead
and that he was born in Hamburg, a town for whose inhabitants the old
juryman had, like others of his compatriots, a constitutional antipathy.
The "tricks" of the trade as practised by the astute and unscrupulous
criminal lawyer vary with the stage of the case and the character of
the crime charged. They are also adapted with careful attention to the
disposition, experience and capacity of the particular district attorney
who happens to be trying the case against the defendant. An illustration
of one of these occurred during the prosecution of a bartender for
selling "spirituous liquors" without a proper license. He was defended
by an old war-horse of the criminal bar famous for his astuteness and
ability to laugh a case out of court. The assistant district attorney
who appeared against him was a young man recently appointed to office,
and who was almost overcome at the idea of trying a case against so well
known a practitioner. He had personally conducted but very few cases,
had an excessive conception of his own dignity, and dreaded nothing so
much as to appear ridiculous. Everything, except the evidence, favored
the defendant, who, however, was, beyond every doubt, guilty of the
offence charged.
The young assistant put in his case, calling his witnesses one by one,
and examining them with the most feverish anxiety lest he should forget
something. The lawyer for the defence made no cross-examination and
contented himself with smiling blandly as each witness left the stand.
The youthful prosecutor became more and more nervous. He was sure
that something was wrong, but he couldn't just make out what. At the
conclusion of the People's case the lawyer inquired, with a broad grin,
"if that was all."
The young assistant replied that it was, and that, in his opinion, it
was "quite enough."
"Let that be noted by the stenographer," remarked the lawyer. "Now, if
your Honors please," he continued, addressing the three judges of the
Special Sessions, "you all know how interested I am to see these young
lawyers growing up. I like to help 'em along--give 'em a chance--teach
'em a thing or two. I trust it may not be out of place for me to say
that I like my young friend here and think he tried his case very well.
But he has a great deal to learn. I'm always glad, as I said, to give
the boys a chance--to give 'em a little experience. I shall not put
my client upon the stand. It is not necessary. The fact is," turning
suddenly to the unfortunate assistant district attorney--"my client has
a license." He drew from his pocket a folded paper and handed it to
the paralyzed young attorney with the harsh demand: "What do you say to
that?"
The assistant took the paper in trembling fingers and perused it as well
as he could in his unnerved condition.
"Mr. District Attorney," remarked the presiding justice dryly (which did
not lessen the confusion of the young lawyer), "is this a fact? Has the
defendant a license?"
"Yes, your Honors," replied the assistant; "this paper seems to be a
license."
"Defendant discharged!" remarked the court briefly.
The prisoner stepped from the bar and rapidly disappeared though the
door of the court-room. After enough time had elapsed to give him a good
start and while another case was being called, the old lawyer leaned
over to the assistant and remarked with a chuckle
"I am always glad to give the boys a chance--help 'em along--teach 'em a
little. That license was a beer license!"
BEFORE TRIAL
To begin at the beginning, whenever a person has been arrested, charged
with crime, and has secured a criminal lawyer to defend him, the first
move of the latter is naturally to try and nip the case in the bud by
inducing the complaining witness to abandon the prosecution. In a vast
number of cases he is successful. He appeals to the charity of the
injured party, quotes a little of the Scriptures and the "Golden Rule,"
pictures the destitute condition of the defendant's family should he be
cast into prison, and the dragging of an honored name in the gutter if
he should be convicted. Few complainants have ever before appeared in a
police court, and are filled with repugnance at the rough treatment of
prisoners and the suffering which they observe upon every side. After
they have seen the prisoner emerge from the cells, pale, hollow-eyed,
bedraggled, and have beheld the tears of his wife and children as they
crowd around the husband and father, they begin to realize the horrible
consequences of a criminal prosecution and to regret that they ever took
the steps which have brought the wrong-doer where he is. The district
attorney had not yet taken up the case; the prosecution up to this point
is of a private character; there are loud promises of "restitution" and
future good behavior from the defendant, and the occasion is ripe for
the lawyer to urge the complainant to "temper justice with mercy" and
withdraw "before it be too late and the poor man be ruined forever."
If the complainant is, however, bent on bringing the defendant to
justice and remains adamantine to the arguments of the lawyer and
the tears of the defendant's family connections, it remains for the
prisoner's attorney to endeavor to get the case adjourned "until matters
can be adjusted"--to wit, restitution made if money has been stolen,
or doctors' bills paid if a head has been cracked, with perhaps another
chance of "pulling off" the complainant and his witnesses. Failing in
an attempt to secure an adjournment, two courses remain open: first, to
persuade the court that the matter is a trivial one arising out of petty
spite, is all a mistake, or that at best it is a case of "disorderly
conduct" (and thus induce the judge to "turn the case out" or inflict
some trifling punishment in the shape of a fine); or, second, if it be
clear that a real crime has been committed, to clamor for an immediate
hearing in order, if it be secured, to subject the prosecution's
witnesses to a most exhaustive cross-examination, and thus get a clear
idea of just what evidence there is against the accused.
At the conclusion of the complainant's case, if it appear reasonably
certain that the magistrate will "hold" the prisoner for the action of a
superior court, the lawyer will then "waive further examination," or,
in other words, put in no defence, preferring the certainty of having to
face a jury trial to affording in prosecution an opportunity to discover
exactly what defence will be put in and to secure evidence in advance
of the trial to rebut it. Thus it rarely happens in criminal cases of
importance that the district attorney knows what the defence is to be
until the defendant himself takes the stand, and, by "waiving further
examination" in the police court, the astute criminal attorney may
select at his leisure the defence best suited to fit in with and render
nugatory the prosecution's evidence.
The writer has frequently been told by the attorney for a defendant on
trial for crime that "the defence has not yet been decided upon."
In fact, such statements are exceedingly common. In many courts the
attitude of all parties concerned seems to be that the defendant will
put up a perjured defence (so far as his own testimony is concerned,
at any rate) as a matter of course, and that this is hardly to be taken
against him.
On the other hand, if a guilty defendant has been so badly advised as
to give his own version of the case before the magistrate in the first
instance, it requires but slight assiduity on the part of the district
attorney to secure, in the interval between the hearing and the jury
trial, ample evidence to rebut it.
As illustrating merely the fertility and resourcefulness of some
defendants (or perhaps their counsel), the writer recalls a case which
he tried in the year 1902 where the defendant, a druggist, was charged
with manslaughter in having caused the death of an infant by filling a
doctor's prescription for calomel with morphine. It so happened that two
jars containing standard pills had been standing side by side upon an
adjacent shelf, and, a prescription for morphine having come in at the
same time as that for the calomel, the druggist had carelessly filled
the morphine prescription with calomel, and the calomel prescription
with morphine. The adult for whom the morphine had been prescribed
recovered immediately under the beneficent influence of the calomel, but
the baby for whom the calomel had been ordered died from the effects
of the first morphine pill administered. All this had occurred in
1897--five years before. The remainder of the pills had disappeared.
Upon the trial (no inconsistent contention having been entered in the
police court) the prisoner's counsel introduced six separate defences,
to wit: That the prescription had been properly filled with calomel
and that the child had died from natural causes, the following being
suggested.
1. Acute gastritis.
2. Acute nephritis.
3. Cerebro-spinal meningitis.
4. Fulminating meningitis.
5. That the child had died of apomorphine, a totally distinct poison.
6. That it had received and taken calomel, but that, having eaten a
small piece of pickle shortly before, the conjunction of the vegetable
acid with the calomel had formed, in the child's stomach, a precipitate
of corrosive sublimate, from which it had died.
These were all argued with great learning. During the trial the box
containing the balance of the pills, which the defence contended were
calomel, unexpectedly turned up. It has always been one of the greatest
regrets of the writer's life that he did not then and there challenge
the defendant to eat one of the pills and thus prove the good faith of
his defence.
This was one of the very rare cases where a chemical analysis has been
conducted in open court. The chemist first tested a standard trade
morphine pill with sulphuric acid, so that the jury could personally
observe the various color reactions for themselves. He then took one of
the contested pills and subjected it to the same test. The first pill
had at once turned to a brilliant rose, but the contested pill, being
antiquated, "hung fire," as it were, for some seconds. As nothing
occurred, dismay made itself evident on the face of the prosecutor,
and for a moment he felt that all was lost. Then the five-year-old pill
slowly turned to a faint brown, changed to a yellowish red, and finally
broke into an ardent rose. The jury settled back into their seats with
an audible "Ah!" and the defendant was convicted.
Let us return, however, to that point in the proceedings where the
defendant has been "held for trial" by the magistrate. The prisoner's
counsel now endeavors to convince the district attorney that "there
is nothing in the case," and continues unremittingly to work upon the
feelings of the complainant. If he finds that his labors are likely
to be fruitless in both directions, he may now seek an opportunity to
secure permission for his client to appear before the grand jury and
explain away, if possible, the charge against him.
We will assume, however, that, in spite of the assiduity of his lawyer,
the prisoner has at last been indicted and is awaiting trial. What
can be done about it? Of course, if the case could be indefinitely
adjourned, the complainant or his chief witness might die or move
away to some other jurisdiction, and if the indictment could
be "pigeon-holed" the case might die a natural death of itself.
Indictments, however, in New York County, whatever may be the case
elsewhere, are no longer "pigeon-holed," and they cannot be adequately
"lost," since certified copies are made of each. The next step,
therefore, is to secure as long a time as possible before trial.
Usually a prisoner has nothing to lose and everything to gain by delay,
and the excuses offered for adjournment are often ingenious in the
extreme. The writer knows one criminal attorney who, if driven to the
wall in the matter of excuses, will always serenely announce the death
of a near relative and the obligation devolving upon him to attend the
funeral. Another, as a last resort, regularly is attacked in open court
by severe cramps in the stomach. If the court insists on the trial
proceeding, he invariably recovers. Of course, there are many legitimate
reasons for adjourning cases which the prosecution is powerless to
combat.
The most effective method invoked to secure delay, and one which it
is practically useless for the district attorney to oppose, is an
application "to take testimony" upon commission in some distant place.
Here again it must be borne in mind that such applications are often
legitimate and proper and should be granted in simple justice to the
defendant. Although this right to take the testimony of absent witnesses
is confined in New York State to the defendant and does not extend to
the prosecution, and is undoubtedly often the subject of much abuse, it
not infrequently is the cause of saving an innocent man.
An example of this was the case of William H. Ellis, recently brought
into the public eye through his connection with the treaty between
the United States Government and King Menelik of Abyssinia. Ellis was
accused in 1901 by a young woman of apparently excellent antecedents
and character of a serious crime. Prior to his indictment a colored man
employed in his office (the alleged scene of the crime) disappeared.
When the case was moved for trial, Ellis, through his attorneys, moved
for a commission to take the testimony of this absent, but clearly
material, witness in one of the remote States of Mexico--a proceeding
which would require a journey of some two weeks on muleback, beyond
the railway terminus. The district attorney, in view of the peculiarly
opportune disappearance of this person from the jurisdiction,
strenuously opposed the application and hinted at collusion between
Ellis and the witness. The application, however, was granted, and a
delay of over a month ensued. During that time evidence was procured by
the counsel of the prisoner showing conclusively that the complaining
witness was mentally unsound and had made similar and groundless charges
against others. The indictment was at once dismissed.
But such delays are not always so righteously employed. There is a story
told of a case where a notorious character was charged with the unusual
crime of "mayhem"--biting off another man's finger. The defendant's
counsel secured adjournment after adjournment--no one knew why. At last
the case was moved for trial and the prosecution put in its evidence,
clearly showing the guilt of the prisoner. At the conclusion of the
People's testimony, the lawyer for the defendant arose and harshly
stigmatized the story of the complainant as a "pack of lies."
"I will prove to you in a moment, gentlemen," exclaimed he to the jury,
"how absurd is this charge against my innocent client. Take the stand!"
The prisoner arose and walked to the witnesschair.
"Open your mouth!" shouted the lawyer.
The defendant did so. He had not a tooth in his head. The delay had been
advantageously employed.
The importance of mere delay to a guilty defendant cannot well be
overestimated. "You never can tell what may happen to knock a case on
the head." For this reason a sufficiently paid and properly equipped
counsel will run the whole gamut of criminal procedure, and:
1. Demur to the indictment.
2. Move for an inspection of the minutes of the proceedings before the
grand jury.
3. Move to dismiss the indictment for lack of sufficient evidence before
that body.
4. Move for a commission to take testimony.
5. Move for a change of venue.
6. Secure, where possible, a writ of habeas corpus and a stay of
proceedings from some federal judge on the ground that his client is
confined without due process of law.
All these steps he will take seriatim, and some cases have been
delayed for as much as two years by merely invoking "legitimate" legal
processes. In point of fact it is quite possible for any defendant
absolutely to prevent an immediate trial provided he has the services of
vigilant counsel, for these are not the only proceedings of which he can
avail himself.
A totally distinct method is for the defendant to secure bail, and,
after securing as many adjournments as possible, simply flee the
jurisdiction. He will then remain away until the case is hopelessly
stale, or he no longer fears prosecution.
In default of all else he may go "insane" just before the case is moved
for trial. This habit of the criminal rich when brought to book for
their misdeeds is too well known to require comment. All that is
necessary is for a sufficient number of "expert" alienists to declare
it to be their opinion that the defendant is mentally incapable of
understanding the proceedings against him or of preparing his defence,
and he is shifted off to a "sanitarium" until some new sensation
occupies the public mind and his offences are partially forgotten.
In this way justice is often thwarted and the law cheated of its victim,
but unless fortune favors him, sooner or later the indicted man must
return for trial and submit the charge against him to a jury. But if
this happens, even if he be guilty, all hope need not be lost. There are
still "tricks of the trade" which may save him from the clutches of the
law.
AT THE TRIAL
What can be done when at last the prisoner who has fought presistently
for adjournment has been forced to face the witnesses against him and
submit the evidence to a jury of peers? Let us assume further that
he has been "out on bail," with plenty of opportunity to prepare his
defence and lay his plans for escape.
When the case is finally called and the defendant takes his seat at the
bar after a lapse of anywhere from six months to a year or more after
his arrest, the first question for the district attorney to investigate
is whether or no the person presenting himself for trial be in point
of fact the individual mentioned in the indictment. This is often
a difficult matter to determine. "Ringers"--particularly in the
magistrates' courts--are by no means unknown. Sometimes they appear even
in the higher courts. If the defendant be an ex-convict or a well-known
crook, his photograph and measurements will speedily remove all doubt
upon the subject, but if he be a foreigner (particularly a Pole, Italian
or a Chinaman), or even merely one of the homogeneous inhabitants of
the densely-populated East Side of New York, it is sometimes a puzzling
problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was
set free after two lengthy trials for murder, was charged not long ago
with a second assassination. He was pointed out to the police by various
Chinamen, arrested and brought into the Criminal Courts building for
identification, but for a long time it was a matter of uncertainty
whether friends of his (masquerading as enemies) had not surrendered a
substitute. Luckily the assistant district attorney who had prosecuted
this wily and dangerous Celestial in the first instance was able to
identify him.
Many years ago, during the days of Fernando Wood, a connection of his
was reputed to be the power behind the "policy" business in New York
City--the predecessor of the notorious Al Adams. A "runner" belonging
to the system having been arrested and policy slips having been found
in his possession, the reigning Policy King retained a lawyer of eminent
respectability to see what could be done about it. The defendant was a
particularly valuable man in the business and one for whom his employer
desired to do everything in his power. The lawyer advised the defendant
to plead guilty, provided the judge could be induced to let him off with
a fine, which the policy King agreed to pay. Accordingly, the lawyer
visited the judge in his chambers and the latter practically promised
to inflict only a fine in case the defendant, whom we will call, out
of consideration for his memory, "Johnny Dough," should plead guilty.
Unfortunately for this very satisfactory arrangement, the judge, now
long since deceased, was afflicted with a serious mental trouble which
occasionally manifested itself in peculiar losses of memory. When
"Johnny Dough," the Policy King's favorite, was arraigned at the bar
and, in answer to the clerk's interrogation, stated that he withdrew his
plea of "not guilty" and now stood ready to plead "guilty," the judge,
to the surprise and consternation of the lawyer, the defendant, and the
latter's assembled friends, turned upon him and exclaimed:
"Ha! So you plead guilty, do you? Well, I sentence you to the
penitentiary for one year, you miserable scoundrel!"
Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and
relatives retired to the corridor to express their opinion of the court.
About three months later the lawyer, who had heard nothing further
concerning the case, happened to be in the office of the district
attorney, when the latter looked up with a smile and inquired:
"Well, how's your client-Mr. Dough?"
"Safe on the Island, I suppose," replied the lawyer,
"Not a bit of it," returned the district attorney. "He never went
there."
"What do you mean?" inquired the lawyer. "I heard him sentenced to a
year myself!"
"I can't help that," said the district attorney. "The other day a
workingman went down to the Island to see his old friend 'Johnny Dough.'
There was only one 'Johnny Dough' on the lists, but when he was produced
the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at
all!' The visitor departed in disgust. We instituted an investigation
and found that the man at the Island was a 'ringer.'"
"You don't say!" cried the lawyer.
"Yes," continued the district attorney. "But that is not the best part
of it. You see, the 'ringer' says he was to get two hundred dollars per
month for each month of Dough's sentence which he served. The prison
authorities have refused to keep him any longer, and now he is suing
them for damages, and is trying to get a writ of mandamus to compel them
to take him back and let him serve out the rest of the sentence!"
Probably the most successful instance on record of making use of a
dummy occurred in the early stages of the now famous Morse-Dodge divorce
tangle. Dodge had been the first husband of Mrs. Morse, and from him
she had secured a divorce. A proceeding to effect the annulment of her
second marriage had been begun on the ground that Dodge had never been
legally served with the papers in the original divorce case--in other
words, to establish the fact that she was still, in spite of her
marriage to Morse, the wife of Dodge. Dodge appeared in New York and
swore that he had never been served with any papers. A well-known and
reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear
that he had served them personally upon Dodge himself. The matter was
sent by the court to a referee. At the hour set for the hearing in
the referee's office, Messrs. Hummel and Steinhardt arrived early, in
company with a third person, and took their seats with their backs to a
window on one side of the table, at the head of which sat the referee,
and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was
late. Presently he appeared, entered the office hurriedly, bowed to
the referee, apologized for being tardy, greeted Messrs. Steinhardt and
Hummel, and then, turning to their companion, exclaimed: "How do you do,
Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe
& Hummel's office force who had been asked to accommodate them. Nothing
had been said, no representations had been made, and Sweetser had
voluntarily walked into a trap.
The attempt to induce witnesses to identify "dummies" is frequently
made by both sides in criminal cases, and under certain circumstances
is generally regarded as professional. Of course, in such instances no
false suggestions are made, the witness himself being relied upon to
"drop the fall." In case he does identify the wrong person, he has, of
course, invalidated his entire testimony.
Not in one case out of five hundred, however, is any attempt made
to substitute a "dummy" for the real defendant, the reason being,
presumably, the prejudice innocent people have against going to prison
even for a large reward. The question resolves itself, therefore, into
how to get the client off when he is actually on trial. First, how can
the sympathies of the jury be enlisted at the very start? Weeping wives
and wailing infants are a drug on the market. It is a friendless man
indeed, even if he be a bachelor, who cannot procure for the purposes of
his trial the services of a temporary wife and miscellaneous collection
of children. Not that he need swear that they are his! They are
merely lined up along a bench well to the front of the court-room--the
imagination of the juryman does the rest.
A defendant's counsel always endeavors to impress the jury with the idea
that all he wants is a fair, open trial--and that he has nothing in the
world to conceal. This usually takes the form of a loud announcement
that he is willing "to take the first twelve men who enter the box."
Inasmuch as the defence needs only to secure the vote of one juryman to
procure a disagreement, this offer is a comparatively safe one for the
defendant to make, since the prosecutor, who must secure unanimity on
the part of the jury (at least in New York State), can afford to take no
chances of letting an incompetent or otherwise unfit talesman slip into
the box. Caution requires him to examine the jury in every important
case, and frequently this ruse on the part of the defendant makes it
appear as if the State had less confidence in its case than the defence.
This trick was invariably used by the late William F. Howe in all
homicide cases where he appeared for the defence.
The next step is to slip some juryman into the box who is likely for any
one of a thousand reasons to lean toward the defence--as, for example,
one who is of the same religion, nationality or even name as the
defendant. The writer once tried a case where the defendant was a Hebrew
named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for
the defendant. Having left an associate to select the jury the writer
returned to the courtroom to find that his friend had chosen for foreman
a Hebrew named Abraham Levy. Needless to say, a disagreement of the jury
was the almost inevitable result. The same lawyer not many years ago
defended a client named Abraham Levy. In like manner he managed to get
an Abraham Levy on the jury, and on that occasion succeeded in getting
his client off scot-free.
No method is too far-fetched to be made use of on the chance of
"catching" some stray talesman. In a case defended by Ambrose Hal.
Purdy, where the deceased had been wantonly stabbed to death by a
blood-thirsty Italian shortly after the assassination of President
McKinley, the defence was interposed that a quarrel had arisen between
the two men owing to the fact that the deceased had loudly proclaimed
anarchistic doctrines and openly gloried in the death of the President,
that the defendant had expostulated with him, whereupon the deceased had
violently attacked the prisoner, who had killed him in self-defence.
The whole thing was so thin as to deceive nobody, but Mr. Purdy, as
each talesman took the witness-chair to be examined on the voir dire,
solemnly asked each one:
"Pardon me for asking such a question at this time--it is only my duty
to my unfortunate client that impels me to it--but have you any sympathy
with anarchy or with assassination?"
The talesman, of course, inevitably replied in the negative.
"Thank you, sir," Purdy would continue: "In that event you are entirely
acceptable!"
Not long ago two shrewd Irish attorneys were engaged in defending a
client charged with an atrocious murder. The defendant had the most
Hebraic cast of countenance imaginable, and a beard that reached to
his waist. Practically the only question which these lawyers put to the
different talesmen during the selection of the jury was, "Have you any
prejudice against the defendant on account of his race?" In due course
they succeeded in getting several Hebrews upon the jury who managed in
the jury-room to argue the verdict down from murder to manslaughter in
the second degree. As the defendant was being taken across the bridge to
the Tombs he fell on his knees and offered up a heartfelt prayer such as
could only have emanated from the lips of a devout Roman Catholic.
Lawyers frequently secure the good-will of jurors (which may last
throughout the trial and show itself in the verdict) by some happy
remark during the early stages of the case. During the Clancy murder
trial each side exhausted its thirty peremptory challenges and also the
entire panel of jurors in filling the box. At this stage of the case the
foreman became ill and had to be excused. No jurors were left except one
who had been excused by mutual consent for some trifling reason, and
who out of curiosity had remained in court. He rejoiced in the name of
Stone. Both sides then agreed to accept him as foreman provided he was
still willing to serve, and this proving to be the case he triumphantly
made his way towards the box. As he did so, the defendant's counsel
remarked: "The Stone which the builders refused is become the head Stone
of the corner." The good-will generated by this meagre jest stood him
later in excellent stead.
In default of any other defence, some criminal attorneys have been known
to seek to excite sympathy for their helpless clients by appearing in
court so intoxicated as to be manifestly unable to take care of the
defendant's interests, and prisoners have frequently been acquitted
simply by virtue of their lawyer's obvious incapacity. The attitude
of the jury in such cases seems to be that the defendant has not had a
"fair show" and so should be acquitted anyway. Of course, this appeals
to the juryman's sympathies and he overlooks the fact that by his action
the prosecution is given no "show" at all.
Generally speaking, the advice credited to Mr. Lincoln, as being given
by him to a young attorney who was about to defend a presumably guilty
client, is religiously followed by all criminal practitioners:
"Well, my boy, if you've got a good case, stick to the evidence; if
you've got a weak one, go for the People's witnesses; but--if you've got
no case at all, hammer the district attorney!"
As a rule, however, criminal lawyers are not in a position to "hammer"
the prosecuting officer, but endeavor instead to suggest by innuendo or
even open declaration his bias and unfairness.
"Be fair, Mr.--!" is the continual cry. "Try to be fair!"
The defendant, whether he be an ex-convict or thirty-year-old
professional thief, is always "this poor boy," and, as he is not
compelled by law to testify, and as his failure to do so must not be
weighed against him by the jury, he frequently walks out of court a free
man, because the jury believe from the lawyer's remarks that he is in
fact a mere youthful offender of hitherto good reputation and deserves
another chance.
By all odds the greatest abuse in criminal trials lies in the open
disregard of professional ethics on the part of lawyers who deliberately
supply of themselves, in their opening and closing addresses to the
jury, what incompetent bits of evidence, true or false, they have not
been able to establish by their witnesses. There is no complete cure for
this, for even if the judge rebukes the lawyer and directs the jury to
disregard what he has said as "not being in the evidence," the damage
has been done, the statement still lingering in the jury's mind without
any opportunity on the part of the prosecutor to disprove it. There is
no antidote for such jury-poison. A shyster lawyer need but to keep his
client off the stand and he can saturate the jury's mind with any
facts concerning the defendant's respectability and history which
his imagination is powerful enough to supply. On such occasions an
ex-convict with no relatives may become a "noble fellow, who, rather
than have his family name tainted by being connected with a criminal
trial, is willing to risk even conviction"--"a veteran of the glorious
war which knocked the shackles from the slave"--"the father of nine
children"--"a man hounded by the police." The district attorney may
shout himself hoarse, the judge may pound his gavel in righteous
indignation, the lawyer may apologize because in the zeal with which
he feels inspired for his client's cause he perhaps (which only makes
matters worse) has overstepped the mark--but some juryman may suppose
that, after all, the prisoner is a hero or nine times a father.
There is one notorious attorney who poses as a philanthropist and who
invariably promises the jury that if they acquit his client he will
personally give him employment. If he has kept half of his promises
he must by this time have several hundred clerks, gardeners, coachmen,
choremen and valets.
In like manner attorneys of this feather will deliberately state to the
jury that if the defendant had taken the stand he would have testified
thus and so; or that if certain witnesses who have not appeared (and who
perhaps in reality do not exist at all) had testified they would
have established various facts. Such lawyers should be locked up or
disbarred; courts are powerless to negative entirely their dishonesty in
individual cases.
Clever counsel, of course, habitually make use of all sorts of appeals
to sympathy and prejudice. In one case in New York in which James W.
Osborne appeared as prosecutor the defendant wore a G.A.R. button. His
lawyer managed to get a veteran on the jury. Mr. Osborne is a native of
North Carolina. The defendant's counsel, to use his own words, "worked
the war for all it was worth," and the defendant lived, bled and died
for his country and over and over again. In summing up the case, the
attorney addressed himself particularly to the veteran on the back row,
and, after referring to numerous imaginary engagements, exclaimed: "Why,
gentlemen, my client was pouring out his life blood upon the field
of battle when the ancestors of Mr. Osborne were raising their hands
against the flag!" For once Mr. Osborne had no adequate words to reply.
By far the most effective and dangerous "trick" employed by guilty
defendants is the deliberate shouldering of the entire blame by one of
two persons who are indicted together for a single offence. A common
example of this is where two men are caught at the same time bearing
away between them the spoil of their crime and are jointly indicted
for "criminally receiving stolen property." Both, probably, are "side
partners," equally guilty, and have burglarized some house or store in
each other's company. They maybe old pals and often have served time
together. They agree to demand separate trials, and that whoever is
convicted first shall assume the entire responsibility. Accordingly, A.
is tried and, in spite of his asseveration that he is innocent and that
the "stuff" was given him by a strange man, who paid him a dollar to
transport it to a certain place, is properly convicted.* The bargain
holds. B.'s case is moved for trial and he claims never to have seen
A. in his life before the night in question, and that he volunteered to
help the latter carry a bundle which seemed to be too heavy for him. He
calls A., who testifies that this is so--that B., whom he did not know
from Adam, tendered his services and that he availed himself of the
offer. The jury are usually prone to acquit, as the weight of evidence
is clearly with the defendant.
* The defence that the accused innocently received the stolen property
into his possession was a familiar one even in 1697, as appears by the
following record taken from the Minutes of the Sessions. It would seem
that it was even then received with some incredulity.
CITY & COUNTY OF NEW YORK: ss:
At a Meeting of the Justices of the Peace for the said City & County at
the City Hall of the said City on Thursday the 10th day of June Anno Dom
1697.
PRESENT. William Morrott \ Esquires
James Graham / quorum
Jacobus Cortlandt \ Esquires
Grandt Schuylor } Justices
Leonard Lowie / of the Peace
Jacobus Cortlandt, Esq., one of his Majestys justices of the peace for
ye said City and County Informed the Kings justices that a peace of
Linnen Ticking was taken out of his Shop this Morning. That he was
informed a Negro Slave Named Joe was seen to take the same whereupon the
said Jacobus Van Cortlandt Pursued the said, Joe and apprehended him and
found the said peice of ticking in his custody and had the said Negro
Joe penned in the cage, upon which the said Negro man being brought
before the said Justices said he did not take the said ticking out of
the Shop window but that a Boy gave itt to him, but upon Examination of
Sundry other Evidence itt Manifestly Appeareth to the said Justices that
the said Negro man Named Joe, did steal the said piece of linnen ticking
out of the Shop Window of the said Jacobus Van Cortlandt and thereupon
doe order the punishment of the said Negro as follows vigt. That the
said Negro man Slave Named Joe shall be forthwith by the Common whipper
of the City or some of the Sheriffs officers art the Cage be stripped
Naked from the Middle upwards and then and there shall be tyed to the
tayle of a Cart and being soe stripped and tyed shah be Drove Round the
City and Receive upon his naked body art the Corner of each Street nine
lashes until he return to the place from whence he sett out and that he
afterwards Stand Committed to the Sheriffs custody till he pay his fees.
Many changes are rung upon this device. There is said to have been a
case in which the defendant was convicted of murder in the first degree
and sentenced to be executed. It was one of circumstantial evidence and
the verdict was the result of hours of deliberation on the part of the
jury. The prisoner had stoutly denied knowing anything of the homicide.
Shortly before the date set for the execution, another man turned up who
admitted that he had committed the crime and made the fullest sort of
a confession. A new trial was thereupon granted by the Appellate Court,
and the convict, on the application of the prosecuting attorney, was
discharged and quickly made himself scarce. It then developed that apart
from the prisoner's own confession there was practically nothing
to connect him with the crime. Under a statute making such evidence
obligatory in order to render a confession sufficient for a conviction,
the prisoner had to be discharged.
In the case of Mabel Parker, a young woman of twenty, charged with
the forgery of a large number of checks, many of them for substantial
amounts, her husband made an almost successful attempt to procure her
acquittal by means of a new variation of the old game. Mrs. Parker,
after her husband had been arrested for passing one of the bogus checks,
had been duped by a detective into believing that the latter was a
fellow criminal who was interested in securing Parker's release. In
due course she took this supposed friend into her confidence, made a
complete confession, and illustrated her skill by impromptu copies of
her forgeries from memory upon a sheet of pad paper. This the detective
secured and then arrested her. She was indicted for forging the name
Alice Kauser to a check upon the Lincoln National Bank. On her trial
she denied having done so, and claimed that the detective had found the
sheet containing her supposed handwriting in her husband's desk, and
that she had written none of the alleged copies upon it. The door of the
courtroom then opened, and James Parker was led to the bar and pleaded
guilty to the forgery of the check in question. (For the benefit of the
layman it should be explained that as a rule indictments for forgery
also contain a count for "uttering.") He then took the stand, admitted
that he had not only uttered but had also written the check, and swore
that it was his handwriting which, appeared on the pad.
The prosecutor was nonplussed. If he should ask the witness to prove
his capacity to forge such a check from memory on the witness-stand, the
latter, as he had ample time to practise the signature while in prison,
would probably succeed in doing so. If, on the other hand, he should not
ask him to write the name, the defendant's counsel would argue to the
jury that he was afraid to do so. The district attorney therefore took
the bull by the horns and challenged Parker to make from memory a copy
of the signature, and, much as he had suspected, the witness produced
a very good one. An acquittal seemed certain, and the prosecutor was
at his wit's end to devise a means to meet this practical demonstration
that the husband was in fact the forger. At last it was suggested to him
that it would be comparatively easy to memorize such a signature, and
acting on this hint he found that after half an hour's practice he was
able to make almost as good a forgery as Parker. When therefore it came
time for him to address the jury he pointed out the fact that Parker's
performance on the witness-stand really established nothing at all--that
any one could forge such a signature from memory after but a few
minutes' practice.
"To prove to you how easily this can be done," said he, "I will
volunteer to write a better Kauser signature than Parker did."
He thereupon seized a pen and began to demonstrate his ability to do so.
Mrs. Parker, seeing the force of this ocular demonstration, grasped her
counsel's arm and cried out: "For God's sake, don't let him do it!" The
lawyer objected, the objection was sustained, but the case was saved.
Why, the jury argued, should the lawyer object unless the making of such
a forgery were in fact an easy matter?
In desperate cases, desperate men will take desperate chances. The
traditional instance where the lawyer, defending a client charged with
causing the death of another by administering poisoned cake, met the
evidence of the prosecution's experts with the remark: "This is my
answer to their testimony!" and calmly ate the balance of the cake, is
too familiar to warrant detailed repetition. The jury retired to the
jury-room and the lawyer to his office, where a stomach pump quickly put
him out of danger. The jury is supposed to have acquitted.
Such are some of the tricks of the legal trade as practised in its
criminal branch. Most of them are unsuccessful and serve only to relieve
the gray monotony of the courts. When they achieve their object they add
to the interest of the profession and teach the prosecutor a lesson by
which, perhaps, he may profit in the future.