SENSATIONALISM AND JURY TRIALS
FOR the past twenty-five years we have heard the cry upon all sides
that the jury system is a failure. Indeed, such to-day is prevalently
believed to be the case; and to this general indictment is frequently
added the specification that the trials in our higher courts of
criminal justice are the scenes of grotesque buffoonery and heartless
merriment, where cynical juries recklessly disregard their oaths and
where morbid crowds flock to satisfy the cravings of their imaginations
for details of blood and sexuality.
It is unnecessary to question the honesty of those who thus picture the
administration of criminal justice in America. Indeed, thus it probably
appears to them. But before such an arraignment of present conditions
in a highly civilized and progressive nation is accepted as final, it
is well to examine into its inherent probabilities and test it by what
we know of the actual facts.
In the first place, it should be remembered that the jury was
instituted and designed to protect the English freeman from tyranny
upon the part of the crown. Judges were, and sometimes still are, the
creatures of a ruler or unduly subject to his influence. And that ruler
neither was, nor is, always the head of the nation; but just as in the
days of the Normans he might have been a powerful earl whose influence
could make or unmake a judge, so to-day he may be none the less a
ruler if he exists in the person of a political boss who has created
the judge before whom his political enemy is to be tried. The writer
has seen more than one judge openly striving to influence a jury to
convict or to acquit a prisoner at the dictation of such a boss, who,
not content to issue his commands from behind the arras, came to the
court-room and ascended the bench to see that they were obeyed. Usually
the jury indignantly resented such interference and administered
a well-merited rebuke by acting directly contrary to the clearly
indicated wishes of the judge.
But while admitting its theoretic value as a bulwark of liberty,
the modern assailant of the jury brushes the consideration aside by
asserting that the system has “broken down” and “degenerated into a
farce.”
Let us now see how much of a farce it is. If four times out of five
a judge rendered decisions that met with general approval, he would
probably be accounted a highly satisfactory judge. Now, out of every
one hundred indicted prisoners brought to the bar for trial, probably
fifteen ought to be acquitted if prosecuted impartially and in
accordance with the strict rules of evidence. In the year 1910 the
juries of New York County convicted in sixty-six per cent of the cases
before them. If we are to test fairly the efficiency of the system,
we must deduct from the thirty-four acquittals remaining the fifteen
acquittals which were justifiable. By so doing we shall find that in
the year 1910 the New York County juries did the correct thing in about
eighty-one cases out of every hundred. This is a high percentage of
efficiency.[3] Is it likely that any judge would have done much better?
After a rather long experience as a prosecutor, in which he has
conducted many hundreds of criminal cases, the writer believes that the
ordinary New York City jury finds a correct general verdict four times
out of five. As to talesmen in other localities he has no knowledge or
reliable information. It seems hardly possible, however, that juries
in other parts of the United States could be more heterogeneous or
less intelligent than those before which he formed his conclusions. Of
course, jury judgments are sometimes flagrantly wrong. But there are
many verdicts popularly regarded as examples of lawlessness
which, if examined calmly and solely from the point of view of the
evidence, would be found to be the reasonable acts of honest and
intelligent juries.
For example, the acquittal of Thaw _upon the ground of insanity_ is
usually spoken of as an illustration of sentimentality on the part
of jurymen, and of their willingness to be swayed by their emotions
where a woman is involved. But few clearer cases of insanity have
been established in a court of justice. The district attorney’s _own
experts_ had pronounced the defendant a hopeless paranoiac; the
prosecutor had, at a previous trial, openly declared the same to be
his own opinion; and the evidence was convincing. At the time it was
rendered, the verdict was accepted as a foregone conclusion. To-day the
case is commonly cited as proof of the gullibility of juries and of the
impossibility of convicting a rich man of a crime.
There will always be some persons who think that every defendant should
be convicted and feel aggrieved if he is turned out by the jury. Yet
they entirely forget, in their displeasure at the acquittal of a man
whom they instinctively “_know_” to be guilty, that the jury probably
had exactly the same impression, but were obliged under their oaths to
acquit because of an insufficiency of evidence.
An excellent illustration of such a case is that of Nan Patterson. She
is commonly supposed to have attended, upon the night of her acquittal,
a banquet at which one of her lawyers toasted her as “the guilty girl
who beat the case.” Whether she was guilty or not, there is a general
and well-founded impression that she murdered Cæsar Young. Yet the
writer, who was present throughout the trial, felt at the conclusion of
the case that there was a fairly reasonable doubt of her guilt. Even
so, the jury disagreed, although the case is usually referred to as an
acquittal and a monument to the sentimentality of juries.
The acquittal of Roland B. Molineux is also recalled as a case where
a man, previously proved guilty, managed to escape. The writer, who
was then an assistant district attorney, made a careful study of the
evidence at the time, and feels confident that the great majority of
the legal profession would agree with him in the opinion that the
Court of Appeals had no choice but to reverse the defendant’s first
conviction on account of the most prejudicial error committed at the
trial, and that the jury who acquitted him upon the second occasion had
equally no choice when the case was presented with a proper regard to
the rules of evidence and procedure. Indeed, on the second trial the
evidence pointed almost as convincingly toward another person as toward
the defendant.
I have mentioned the Patterson, Thaw, and Molineux trials because they
are cases commonly referred to in support of the general contention
that the jury system is a failure. But I am inclined to believe that
any single judge, bench of judges, or board of commissioners would have
reached the same result as the juries did in these instances.
It is quite true that juries, for rather obvious reasons, are more apt
to acquit in murder cases than in others. In the first place, save
where the defendant obviously belongs to the vicious criminal class, a
jury finds it somewhat difficult to believe, unless overwhelming motive
be shown, that he could have deliberately taken another’s life. Thus,
with sound reason, they give great weight to the plea of self-defence
which the accused urges upon them. He is generally the only witness.
His story has to be disproved by circumstantial evidence, if indeed
there be any. Frequently it stands alone as the only account of the
homicide. Thus murder cases are almost always weaker than others, since
the chief witness has been removed by death; while at the same time
the nature of the punishment leads the jury unconsciously to require
a higher degree of proof than in cases where the consequences are
less abhorrent. All this is quite natural and inevitable. Moreover,
homicide cases as a rule are better defended than others, a fact which
undoubtedly affects the result. These considerations apply to all
trials for homicide, notorious or otherwise, the results of which in
New York County for the past ten years are set forth in the following
table:
+------+-------------+------------+-------------+------------+
| YEAR | CONVICTIONS | ACQUITTALS | CONVICTIONS | ACQUITTALS |
| | | | PER CENT | PER CENT |
+------+-------------+------------+-------------+------------+
| 1901 | 25 | 17 | 60 | 40 |
| 1902 | 31 | 11 | 74 | 26 |
| 1903 | 42 | 8 | 84 | 16 |
| 1904 | 37 | 14 | 72 | 28 |
| 1905 | 32 | 13 | 71 | 29 |
| 1906 | 53 | 22 | 70 | 30 |
| 1907 | 39 | 10 | 78 | 22 |
| 1908 | 35 | 17 | 67 | 33 |
| 1909 | 43 | 11 | 80 | 20 |
| 1910 | 45 | 15 | 75 | 25 |
+------+-------------+------------+-------------+------------+
| Total| 382 | 138 | Av. 73 | Av. 27 |
+------+-------------+------------+-------------+------------+
A popular impression exists at the present time that a man convicted of
murder has but to appeal his case on some technical ground in order to
secure a reversal, and thus escape the consequences of his crime. How
wide of the mark such a belief may be, at least so far as one locality
is concerned, is shown by the fact that in New York State, from 1887 to
1907, there were 169 decisions by the Court of Appeals on appeals from
convictions of murder in the first-degree, out of which there were only
twenty-nine reversals. Seven of these defendants were again immediately
tried and convicted, and a second time appealed, upon which occasion
only two were successful, while five had their convictions promptly
affirmed. Thus, so far as the ultimate triumph of justice is concerned,
out of 169 cases in that period the appellants finally succeeded in
twenty-two only.
Since 1902 there have been twenty-seven decisions rendered in
first-degree murder cases by the Court of Appeals, with _only three
reversals_.[4] The more important convictions throughout the State are
affirmed with great regularity.
As to the conduct of such cases, the writer’s own experience is that
a murder trial is the most solemn proceeding known to the law. He has
prosecuted at least fifty men for murder, and convicted more than he
cares to remember. Such trials are invariably dignified and deliberate
so far as the conduct of the legal side of the case is concerned. No
judge, however unqualified for the bench; no prosecutor, however
light-minded; no lawyer, however callous, fails to feel the serious
nature of the transaction or to be affected strongly by the fact that
he is dealing with life and death. A prosecutor who openly laughed or
sneered at a prisoner charged with murder would severely injure his
cause. The jury, naturally, are overwhelmed with the gravity of the
occasion and the responsibility resting upon them.
In the Patterson, Thaw, and Molineux cases the evidence, unfortunately,
dealt with unpleasant subjects and at times was revolting, but there
was a quiet propriety in the way in which the witnesses were examined
that rendered it as inoffensive as it could possibly be. Outside the
court-room the vulgar crowd may have spat and sworn; and inside no
doubt there were degenerate men and women who eagerly strained their
ears to catch every item of depravity. But the throngs that filled
the court-room were quiet and well ordered, and the merely curious
outnumbered the morbid.
The writer deprecates the impulse which leads judges, from a feeling
that justice should be publicly administered, to throw wide the doors
of every court-room, irrespective of the subject-matter of the trial.
We need have no fear of Star Chamber proceedings in America, and no
harm would be done by excluding from the court-room all persons who
have no business at a trial.
It is, of course, not unnatural that in the course of a trial occupying
weeks or months the tension should occasionally be relieved by a gleam
of humor. After you have been busy trying a case for a couple of weeks
you go to court and set to work in much the same frame of mind in
which you would attack any other business. But the fact that a small
boy sometimes sees something funny at a funeral, or a bevy of giggling
shop-girls may be sitting in the gallery at a fashionable wedding,
argues little in respect to the solemnity or beauty of the service
itself.
What _are_ the celebrated cases—the trials that attract the attention
and interest of the public? In the first place, they are the very cases
which contain those elements most likely to arouse the sympathy and
prejudices of a jury—where a girl has taken the life of her supposed
seducer, or a husband has avenged his wife’s alleged dishonor. Such
cases arouse the public imagination for the very reason that every
man realizes that there _are_ two sides to every genuine tragedy of
this character—the legal and the natural. Thus, aside from any other
consideration, they are the obvious instances where justice is most
likely to go astray.
In the next place, the defence is usually in the hands of counsel of
adroitness and ability; for even if the prisoner has no money to pay
his lawyer, the latter is willing to take the case for the advertising
he will get out of it.
Third, a trial which lasts for a long time naturally results in
creating in the jury’s mind an exaggerated idea of the prisoner’s
rights, namely, the presumption of innocence and the benefit of the
reasonable doubt. For every time that the jury will hear these phrases
once in a petty larceny or forgery case, they will hear them in a big
murder trial a hundred times. They see the defendant day after day, and
the relation becomes more personal. Their responsibility seems greater
toward him than toward the defendant in petty cases.
Last, as previously suggested, murder cases are apt to be inherently
weaker than others, and more often depend upon circumstantial evidence.
The results of such cases are therefore but a poor test of the
efficiency of a jury system. They are, in fact, the precise cases
where, if at all, the jury might be expected to go wrong.
But juries would go astray far less frequently even in such trials were
it not for that most vicious factor in the administration of criminal
justice—the “yellow” journal. For the impression that public trials
are the scenes of coarse buffoonery and brutality is due to the manner
in which these trials are exploited by the sensational papers.
The instant that a sensational homicide occurs, the aim of the editors
of these papers is—not to see that a swift and sure retribution is
visited upon the guilty, or that a prompt and unqualified vindication
is accorded to the innocent, but, on the contrary, so to handle the
matter that as many highly colored “stories” as possible can be run
about it.
Thus, where the case is perfectly clear against the prisoner, the
“yellow” press seeks to bolster up the defence and really to justify
the killing by a thinly disguised appeal to the readers’ passions. Not
infrequently, while the editorial page is mourning the prevalence of
homicide, the front columns are bristling with sensational accounts of
the home-coming of the injured husband, the heart-breaking confession
of the weak and erring wife, and the sneering nonchalance of the
seducer, until a public sentiment is created which, if it outwardly
deprecates the invocation of the unwritten law, secretly avows that it
would have done the same thing in the prisoner’s place.
This antecedent public sentiment is fostered from day to day until it
has unconsciously permeated every corner of the community. The juryman
will swear that he is unaffected by what he has read, but unknown to
himself there are already tiny furrows in his brain along which the
appeal of the defence will run.
In view of this deliberate perversion of truth and morals, the
euphemisms of a hard-put defendant’s counsel when he pictures a chorus
girl as an angel and a coarse bounder as a St. George seem innocent
indeed. It is not within the rail of the court-room but within the
pages of these sensational journals that justice is made a farce.
The phrase “contempt of court” has ceased practically to have any
significance whatever. The front pages teem with caricatures of the
judge upon the bench, of the individual jurors with exaggerated
heads upon impossible bodies, of the lawyers ranting and bellowing,
juxtaposed with sketches of the defendant praying beside his prison cot
or firing the fatal shot in obedience to a message borne by an angel
from on high.
How long would the “unwritten law” play any part in the administration
of criminal justice if every paper in the land united in demanding,
not only in its editorials, but upon its front pages, that private
vengeance must cease? Let the “yellow” newspapers confine themselves
simply to an accurate report of the evidence at the trial, with a
reiterated insistence that the law must take its course. Let them stop
pandering to those morbid tastes which they have themselves created.
Let the “Sympathy Sisters,” the photographer, and the special artist be
excluded from the court-room. When these things are done, we shall have
the same high standard of efficiency upon the part of the jury in great
murder trials that we have in other cases.
CRIMINALS