PREPARING A CRIMINAL CASE FOR TRIAL
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—and 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
inquisitorial process. The prosecutor, through his own or through
hired sleuths, has studied with microscopic care 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 at 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 into a thousand pieces 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, pretty good
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 celèbre_, 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[2] 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.
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
draft 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 them escape. 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 und dey opened der vindow und let out der gas und
_all mine evidence esgaped_.”
The same coroner on another occasion discovered that a murderer had
removed the body of his victim to New Jersey, thus depriving him of any
corpse upon which to hold his inquest. A sympathetic reporter thereupon
suggested that it would be well to have a law prohibiting any such
removal by the party committing a homicide.
“Dot vas a good idea!” solemnly replied the medical Solon. “It should
be made a crime! I will haf it proposed at der next legislature.”
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 head-quarters and
thereafter take their orders from the prosecutor himself. The detective
bureau is called in and arrangements made for the running down of
particular clews. 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
subpœnas 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 law-suit followed, in which the sister swore that the
name signed to the draft was not in her handwriting. She won her case,
but some disinterested though 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. Let us hope 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 præcox_, 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 court-room 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 has related 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 (like Gus. Roeder
of the _World_) 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 over-enthusiastic 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!’ 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 cuss pull his gun and shoot!”
“Well, why didn’t you say so?” laughs the prosecutor, and Patrick,
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 talesmen. 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.