The next morning Mr. Appleboy is up beti_The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

wife to come down to breakfast, but pours himself a cup of coffee and

snatches a roll at the sideboard. A quarter to nine finds him at Police

Headquarters. In the clear morning sunshine the building does not look

so repellent, and he trots up the steps, pushes open the door, and,

avoiding his adversary of the afternoon before, saunters nonchalantly

down the corridor until he sees a small door at the top of a couple of

steps bearing the legend, "Property Clerk's Office."

The property clerk, whoever he is, is already there. Appleboy finds

himself in a small room divided by a wire grating; this has a small

opening through which he is obliged to converse with the official in

charge.

"I have come to get a teapot which was stolen from me," explains

Appleboy.

"What is the state of the case?" inquires the property clerk.

"The thief has forfeited his, I mean her, bail," replies our hero.

"What was her name?"

"Maria Holohan."

"When did she steal the teapot?"

"Last June."

"Where did you last see the teapot?" asks the clerk.

"At the station house, with a tag on it," Appleboy replies.

"Well, what makes you think we have it?" asks the clerk.

"Why, the policeman down at the court-room told me that you kept all

the property which was retained as evidence," answers Appleboy.

The clerk rapidly turns over the leaves in a large book. Evidently he

finds what he is looking for and, nodding, answers: "Well, here's the

record of the case. One silver teapot, value fifty. Officer making

arrest, Patrick McGinnis. Prisoner's name, Maria Holohan. Claimant's

name, Silas Appleboy. That's you, is it? Stolen property, teapot. Held

for evidence, yes. There you are, and you say now she skipped her bail?"

"Certainly," answers Appleboy.

"And you want the teapot?"

"Of course I do," answers Appleboy.

"Well, first you have to get an order from the court to that effect,"

says the clerk.

Appleboy almost loses his temper. Has he got to make another trip down

to that miserable Criminal Courts building?

"Look here," he exclaims rather angrily, "what is the sense of all this

red tape? The case is over, I own the teapot,--why don't you give it to

me and be done with it?"

The clerk smiles,--a trifle condescendingly, thinks Appleboy.

"My dear sir," he says, "are you aware that I have no means of knowing

that you are the Silas Appleboy who owns this teapot, except your own

say so?"

"Isn't that enough?" shouts Appleboy.

"It ought to be," responds the clerk, "but sometimes it isn't. I don't

even know that the woman has skipped her bail."

Appleboy begins to see the force of the clerk's argument.

"I never imagined that a gentleman would be tossed about from pillar

to post, as I have been since I lost that teapot. What is it you say I

must do; get an order from the mayor?"

"No, no,--the judge," answers the clerk.

"How shall I get it?" inquires Appleboy rather huffily.

"Oh, ask the assistant district attorney; he will probably get it for

you."

"Thank you," says Appleboy stiffly, and marches out. This time he takes

the subway to Canal Street, reaching the Criminal Courts building a few

moments after nine. Much to his surprise Mr. Smith is already down at

his office hard at work.

"Ah, Mr. Appleboy, good-morning to you," he exclaims.

"How are you, Mr. Smith?" responds Appleboy. "I have come after that

confounded teapot."

"Oh, the one your cook stole. I remember it well. Where is it?"

"At Police Headquarters," responds Appleboy, "and they want me to get

an order from some judge or something before they will give it up to

me."

"That's easily managed," responds the assistant, "but you have to get a

waiver from this office of any claim that we may have upon the teapot

as evidence. There is a regular printed blank. I think, inasmuch as

Jones was actually going to try the case when Maria skipped her bail,

that he had better fill it out. After you get it, come back here and

I'll make the application for you."

Appleboy begins to feel better. Here is some one that knows his

business. He lights a cigar and descends to the next floor, where he

finds his old friend Jones. Jones is quite ready to give the desired

waiver, and selects one from a pigeon-hole in his desk. He fills it out

to read as follows:

New York, October 7, 1907.

District Attorney's Office,

County of New York.

The People of the State of }

New York on the complaint }

of }

} For Grand Larceny

Silas Appleboy } in the Second Degree

against }

Maria Holohan. }

This office has no further use for the property taken from the

defendant in this case, and now in the possession of the property

clerk of the police department. No objection is therefore made by me

to its delivery to any person who proves to your satisfaction his

right to the possession of the same,--one silver teapot.

A. BIRD,

District Attorney.

Per William Jones, D.A.D.A.

To the Property Clerk of the Police Department, Borough of Manhattan,

City of New York.

"Now we'll go down and see if the judge will give us an order," says

Jones.

"Why, is there any doubt about it?" inquires Appleboy, fearful that

perhaps after all he is going to lose his teapot.

"It all depends on circumstances," answers Jones. "Some of the judges

are perfectly willing to give orders while others are not. You see, the

trouble in your case is that the woman has never been tried, so that

the question of whether or not she stole your teapot has really not

been decided at all."

"The wicked flee--!" murmurs Appleboy in his most approved Friday

evening manner.

They take the elevator down to the second floor, and make their way to

that part of the Sessions upon whose calendar Maria's case appeared at

the time she forfeited her bail. A trial is going on, and a pompous

little lawyer is cross-examining a stout lady who weeps and laughs

hysterically by turns. As the lawyer pauses for breath Mr. Jones arises

and addresses the court.

"May it please your Honor, in the case of the People against Maria

Holohan, charged with grand larceny, the bail in which was forfeited

before your Honor about a week ago, I desire to apply for an order

directing the property clerk at Police Headquarters to turn over the

property, namely a silver teapot, to the complainant, who is here in

court."

"But the case has never been tried, you say, Mr. Jones," objects his

Honor.

"That is all very true," returns the assistant, "but the woman has run

away, her bail has been forfeited, and judgment entered and satisfied."

"Supposing, however, she were captured and brought back and tried, how

do I know but that the jury might acquit her? And they might acquit her

on the specific ground that the teapot belonged to her, and not to the

defendant. I should then be in a position of having directed its return

to a person to whom it did not belong."

"Of course what your Honor says is entirely correct," answers Jones,

"but it is unlikely that we shall ever hear of the case again."

"I don't know about that," answers the judge. "Your office might become

suddenly extremely energetic and try to extradite her."

"Well, it seems rather hard on Mr. Appleboy," responds Jones.

"Of course it's hard; he has my entire sympathy," replies the judge;

"but I cannot take the responsibility of deciding who owns property in

a case which has not been tried. I am not here for that purpose. Let

him take the proper legal steps to secure the return of his property in

the civil courts."

Appleboy, who has understood very little of this colloquy, but who

supposes that, for some entirely insufficient reason apparently, the

judge is trying to block his efforts to secure the return of his

property, suddenly jumps to his feet and shouts:--

"Look here, your Honor, I would like to have a word about this, if I

may! That teapot of mine was stolen last June; I caught my cook in the

very act of selling it to a pawnbroker; I had her arrested on the spot;

she admitted her crime, and acknowledged her guilt in the police court.

My teapot is tagged and locked up in a room at Police Headquarters,

and they won't give it to me unless your Honor will grant an order

directing them to do so. Kindly tell me what I am to do."

The crowd in the court-room titters and the court attendant raps

loudly with a paper-weight on the oaken railing for silence. The judge

regards Mr. Appleboy good-naturedly.

"I am very sorry you have had so much trouble. My position in the

matter simply is that I cannot personally take the responsibility of

deciding to whom this property belongs, particularly when no jury has

ever passed upon the guilt or innocence of the defendant. I shall be

very glad, however, to approve any certificate which the district

attorney may choose to give you stating that he has no further need or

use for the property."

Appleboy brightens.

"Your Honor," says he, "Mr. Jones has already given me such a

certificate, and I shall be much obliged to you if you will approve it."

Jones hands it to the judge, who writes the word "Approved" upon it,

then returns it to the assistant.

"You will observe," says his Honor, "that all I do in the matter is

to approve the statement of the district attorney that he makes no

objection to the delivery of the property to any person who proves to

the satisfaction of the property clerk his right to the possession

of the same. My approval really does not amount to anything at all.

I cannot grant you a court order. I am aware that several of my

associates might do so under exactly similar circumstances, but I

personally do not care to assume any such responsibility. Proceed with

the case on trial."

Out in the corridor Appleboy inquires anxiously of Jones how on earth

he is going to prove to the satisfaction of the property clerk his

right to the possession of the teapot.

"Oh, you won't have any difficulty at all," says Jones; "this

certificate from us, with the judge's 'O.K.' on it, is equivalent to a

court order, even if it is not one technically."

"I don't know," answers Appleboy doubtfully; "this paper seems to leave

it up to me to persuade the intelligence of the property clerk."

"You won't have any trouble," laughs the assistant. "Good-by."

Mr. Appleboy leaves the building once more, and again takes the subway

to Police Headquarters.

"Back again?" inquires the property clerk pleasantly.

"I have a certificate from the district attorney, approved by the judge

giving you permission to return the teapot to me," says Appleboy,

shoving the paper through the wicket.

The clerk takes it.

"This isn't a court order," says he. "Still, if the woman has skipped

her bail and the judgment has been satisfied, I guess we can take

a chance and let you have your teapot, provided of course you are

properly identified. You see, so far as we know, you may have picked

this certificate up on the street. The thing for you to do is to get

hold of the officer who made the arrest, and who knows all about the

case, and have him identify you."

"How shall I do that?" asks Appleboy, very much irritated. "I don't

know where he is; I can't go chasing all over the City of New York

after police officers; I'm sick of this whole business; you know

perfectly well I am Silas Appleboy, else I shouldn't have this paper,

and I shouldn't be around here trying to get that teapot."

"Don't be too sure about that," replies the property clerk. "We have

had three women here at the same time claiming the same pair of diamond

earrings, and each woman looked absolutely respectable. One of them

came in a carriage with a footman. We found out afterwards that the

earrings didn't belong to any one of them, but to an entirely different

person."

Appleboy loses all patience. Just as he is about to place his hands

upon the teapot, _presto_, it vanishes. Two Italians and a Chinaman,

escorted by an officer, now elbow past Appleboy, who disconsolately

gives them place. He is "up against it" again; there is no help for

it; rules are rules and the law is the law. How now to find Patrick,

the officer! He begins to wish he had been nicer to Patrick;--if he

had been a little more liberal in the way of cigars at the time the

teapot was stolen, things might have been very much easier for him

now. He utters an imprecation under his breath against all policemen

and police red tape. Grinding his teeth, he goes to the nearest

telephone booth and asks to be connected with the precinct to which

Patrick is attached. The operator refers him to 3100 Spring, namely,

Headquarters,--but there he is informed that private citizens may

not be connected with police stations. He hangs up the receiver with

something almost like an oath, Poor Vestryman Appleboy! Let us not be

too hard upon him.

It is now half-past eleven o'clock. He takes the car uptown and returns

to the station house, but the sergeant informs him that Patrick is down

in the Criminal Courts building as a witness in a burglary case. This

is the last straw. Frenzied, he rushes from the station house, takes

another car and sits tensely until once more he is at the Criminal

Courts building. Fortunately he has had the forethought to inquire of

the sergeant to which of the four parts of the General Sessions Patrick

has been subpoenaed, and he now finds that it is the same court-room at

the door of which presides his friend of the day before. The doorkeeper

greets him genially, and in response to Appleboy's inquiries replies,

shure, that he knows Pat McGinnis;--that Pat has been there all the

morning, but has just shtepped out over to Tom Foley's saloon. Although

Appleboy has not been inside the portals of such a place since he was

nineteen years old, he frantically inquires its direction, and, fearful

lest he lose the object of his search, dashes across the street to the

corner bar-room.

The little old gentleman with the shining silk hat sticks his head

timidly through the door and observes Patrick at the end of the bar

crooking his elbow in the customary manner. He draws an inspiration

from the sight; with a bland smile he steps up to the bar himself,

slaps the officer familiarly on the back and, pulling off his gloves,

remarks, "Well, Pat, old boy, how do you feel? Have another on me!"

Patrick gazes at him open-mouthed. Can this be the stiff, little old

bank president he knew six months ago? But there can be no question

as to Appleboy's intention when he hears the latter order "two rye

high-balls _and another-for-yourself_" of the astonished barkeeper.

Appleboy toasts Patrick, Patrick toasts Appleboy. Patrick produces

cigars; Appleboy replaces them with others, larger and thicker than any

seen at Foley's.

"By the way," says Appleboy, "step up to Police Headquarters with me,

will you, Pat? Now that I happen to be down this way, I might as well

take that teapot home with me, don't you know."

"Shure," says Pat; "court's adjourned by this time, and I can get back

by two o'clock all right."

The best of friends, they go up in the subway together to Police

Headquarters. With a bold front and fearless eye Appleboy enters

the office of the property clerk, produces his certificate from the

district attorney, and demands his teapot.

"This officer will identify me," says he.

"Shure I indentify him," announces Pat.

The clerk takes the certificate, opens the record book and, with a

rubber stamp, enters up on the back of the original report the words:

"_Identified by officer_

_as owner of the property_."

"Write your name there," says he to Patrick, and McGinnis laboriously

scrawls his name between the lines.

The clerk now disappears into an adjoining room, presently returning

with an object about the size of a football, wrapped in coarse paper,

tied with a multitude of strings and bearing a tag.

"Here you are, sir," says he, opening the door in the wire grating and

passing the football to Appleboy, whose heart beats wildly.

The clerk then stamps the words "_Delivered on identification of

officer_" upon his record book, closes the same with a slam and turns

aside to other more important business. How simple it all is when you

once know how to do it!

"Easy, ain't it?" remarks Pat.

"Easy as rolling off a log," answers Appleboy with a grim smile.

CHAPTER IX

THE TRIAL OF FELONIES

It is a fact, which may at first appear paradoxical, that the jury in

the ordinary run of criminal cases passes upon the guilt or innocence

of very few professional criminals. A moment's consideration will

reveal the reason. The professional criminal usually has a "record"

and he knows full well that in view of his past history, if there be

any sort of a case against him, his own defence, however eloquent or

ingenious, will go for nothing. An affirmative answer to the simple

question, "Have you ever been convicted?" is, in three cases out

of five, equivalent to a plea of guilty. Now it is an understood

thing that any prisoner, who is willing to admit his guilt and save

the county the expense and trouble of a trial, shall receive some

consideration in return therefor when it comes time to impose his

sentence, and usually he expects to receive in addition a guarantee

of good faith from the assistant district attorney in the shape of

the latter's acceptance of his plea to a lower degree of the same

crime. The real "gun" is apt to have his life pretty well mapped out.

He anticipates serving about so much time "in stir" and figures on

beating about every other case before it reaches an actual trial. If

worst comes to worst, and he finds he must face a jury of his peers, he

dickers for the lowest plea he can get. Whole court terms often go by

without a single professional crook being actually tried. If one of

them is "caught with the goods" he generally throws up his hands and

stolidly takes his medicine.

The ordinary citizen quite naturally gains his impressions of the

administration of criminal justice by reading accounts of sensational

trials. He imagines that the daily life of the prosecutor consists in

demanding the conviction of hardened felons with sordid, crime-tracked

features, varied by occasional spectacular "star cases" where counsel

for the defendant and the prosecutor vie with one another in stupendous

outbursts of oratory in which the bird of liberty screams unrestrained

and Justice frantically waves her scales. He supposes, if he gives

the matter any consideration at all, that defendants languish away

their lives in the Tombs waiting for trials which never come, and

that influential criminals walk the streets while the indictments

against them lie accumulating an overcoat of dust in some forgotten

pigeon-hole. He frankly assumes that the jury system is pretty nearly

a failure, and knows of his own knowledge, or thinks he does, that any

one with enough money can either avoid being tried for crime at all or,

if by any mischance he be convicted, can easily escape punishment or at

least delay it indefinitely by technicalities of procedure and appeals.

In his customary dialect he "has no use" for the criminal or the

criminal courts, and his only dread is that he may some time be drawn

as a juror and be compelled to serve in a region of the city where he

will be unable to find a satisfactory place to get his lunch and in the

society of those whose companionship he fancies he is not likely to

enjoy.

Let us assume that Mr. Ordinary Citizen has been so unfortunate as to

receive one of those pink slips which call upon him to "all business

or other matters lay aside" and to attend at Part I of the General

Sessions of the Peace at ten o'clock on the first Monday of the month.

He finds himself in a large and well-lighted court-room, at one end

of which, on a dais, sits a judge more or less surrounded by various

persons who continually approach and engage him in conversation. At

a desk in front, a clerk and his assistant are busy with piles of

documents, which "O.C." learns later to be indictments, and with big

ledgers which are in fact the "Minutes of the Sessions." The room is

crowded, all the benches being filled with a varied, but, on the whole,

a respectable-appearing assortment of humanity. In front of the judge

and clerk, wandering around inside an enclosure, at one side of which

stands the temporarily empty jury-box, are several young men who are

earnestly engaged in talking to the lawyers, complainants and policemen

who throng at the bar.

Suddenly the clerk raises his voice and shouts, "Harken to the call

of the calendar!" An officer pounds on a railing with a paper-weight,

another bellows, "Find seats there! An' quit talkin'!" and the judge,

gazing at a long sheet of foolscap in his hand, remarks inquiringly:

"People against Murphy?"

The young assistant district attorney at once answers:

"People are ready."

"If your Honor please," nervously exclaims a stout man pushing his way

to the front, "this case has never been on the calendar before. I was

only retained last night and I did not receive any notice that it was

to be tried until this morning. I ask that it go over until next week."

"What do you say, Mr. District Attorney?" asks the judge.

"Oh, it's a very simple case," answers the assistant. "There's no

reason why it should not be tried to-day."

"Well, I'll give you until to-morrow," says the judge. "You must be

ready _then_."

"People against Smith?" he continues.

Both sides happen to be ready in this case.

"People against McCord?"

"Defendant's going to plead," says the assistant.

"People against Vermicelli?"

"We expect to make a recommendation in that case, your Honor,"

announces the assistant,--and so it goes until fifteen or twenty cases

have been marked "Ready" or "Passed for the day" or adjourned to let

the defendant get his witnesses or, in point of fact, for the lawyer to

extract his fee.

The clerk then calls the roll of the jury, and after the rush which

ensues to present excuses to the effect that the talesman's health or

business is in a precarious condition, the court settles gradually down

to its routine work.

A jury is empanelled and a lank, seedy-looking youth takes his seat at

the bar between a spruce, bald-headed little man and a court officer.

He is charged with having "policy-slips in his possession."

So far "O.C.," our juror, has been impressed with the business-like and

cheerful manner in which the proceedings have been conducted. Most of

the lawyers, instead of clamoring for a trial for their languishing

clients, have exerted all their efforts to secure delays. Then he

learns to his surprise that the average length of time which elapses

between a defendant's arrest for felony and his trial, unless the

prisoner be out on bail, is _less than one week_.[27]

"Jury satisfactory to both sides?" inquires the clerk.

"Entirely so," reply the little bald-headed man and the prosecutor

together.

Suddenly the lank youth leans over and whispers to the lawyer, who

after a moment's conversation beckons to the prosecutor. There is a

brief consultation and the assistant tosses the indictment to the clerk

with the announcement:

"He pleads guilty."

The defendant gets up and shuffles to the bar, where his pedigree is

taken and a day set for his sentence, which, in the event of his never

having been convicted before, will probably be a fine of twenty-five

dollars or a month in the penitentiary.

"Call the next case," says the judge.

"People against Thompson," shouts the clerk. "Bring up Thompson."

The door in the back of the room opens and "Thompson" is "brought

up." He is a good-looking young negro, defended by a member of his

own race. The jury say they have no prejudice against negroes and are

sworn without leaving the box. The charge is one of assault in the

first degree--that is to say, with intent to kill. The complainant is

a flashily dressed young mulatto woman, who asserts that the defendant

"done crack her head wif an ice-pitcher," and produces the fragments

of pitcher, done up in a newspaper. She admits that at the time of the

unfortunate occurrence she was living with the defendant as his wife.

There are no other witnesses for the People, and the defendant is

sworn without more ado. He explains that the complainant accused him

of being too attentive to a "yaller gal" on the next street and when

he attempted to go out of the house she attacked him with a pen-knife.

In confirmation of this he exhibits a small cicatrix on his wrist.

After hearing the evidence the assistant announces to the judge that

the case ought in his opinion to have been disposed of in the police

court and that the interests of justice will be subserved if his Honor

will discharge the defendant on his own recognizance. This the judge

does with an admonitory lecture, and the defendant and the complainant

go away together. "O.C.," the juror, begins to conclude that the

assistant is a pretty fair sort of a chap.

Trial follows trial with great rapidity. Gradually the crowd in

the court-room thins out. By one o'clock only a dozen or fifteen

witnesses and spectators remain, and by half-past three the benches

are practically empty. "O.C." has heard a dozen different complaining

witnesses tell the story of how as many defendants have wronged them.

The Bowery merchant whose packing-cases have been broken into has

followed as complainant the man who has been robbed in a saloon;

the "clothes-line fight" has given place to the story of the actual

abduction of a young girl by a "cadet"; the landlady who has received

a bad cheque from a lodger can hardly wait to recount the history of

her misfortunes, for the man who has lost a horse and wagon through a

drunken driver, whom he charges with grand larceny.

Generally the "People's case" consists of the complainant's version

of what has occurred, somewhat corroborated by another witness or

two, and the officer who made the arrest. Then the lawyer for the

defendant takes his client by the shoulder and with a gruff "Go 'round

there, young man," or, if he be playing for sympathy, a gentle "Please

take the stand, William," starts him upon that most dangerous of all

adventures, a journey to the witness-chair in his own behalf. In two

cases out of three the defendant's own testimony, if he is guilty, is

what convicts him. Both sides "sum" up in short, disconnected speeches,

and the judge delivers a brief charge. The jury file out and another is

immediately sworn. As the next trial begins very likely the door from

the "pen" will open and the proceedings be interrupted long enough to

allow another prisoner to tramp around the court-room, take his stand

at the bar, and plead guilty.

"John Keenan, alias Foxy Keenan, alias Gum-Shoe Jack, do you now desire

to withdraw the plea of 'Not guilty' heretofore entered by you, and to

now plead guilty to grand larceny in the second degree?"

The defendant acknowledges with no very amiable expression that this

is his inclination, and his pedigree, which is taken by the clerk

forthwith, discloses that he has served five times in State's prison

and twice in the penitentiary. "O.C." looks at his fellow jurors and

whistles under his breath. That was the real thing and no mistake. Very

likely the jury upon which he is now serving will convict, it having

thus been brought to their attention by a concrete illustration that

all the defendants are not innocent persons unjustly accused of crime.

"Remanded," says the clerk, and Gum-Shoe Jack tramps back to the little

door and the interrupted trial goes on. The stream of complainants,

witnesses and defendants is as varied as that in Balzac's "Comédie

Humaine." "O.C." begins to take a keen interest and now and then to

put a question himself. He has taken the opportunity to make the

acquaintance of the assistant district attorney at the noon hour and

now feels that he is really a part of the machinery of justice.[28]

Ordinarily in a full court day there will occur from two to four

complete trials, while an equal number of pleas may be taken. Sometimes

a hundred and fifty cases will be got rid of by trial or plea in a

single term in one part of the General Sessions alone. On the other

hand, if the calendar is made up of "old-bail cases," indictments

for receiving stolen goods, misappropriation, and Italian or Chinese

homicides, the office accounts itself lucky in getting rid of half a

dozen cases in the month. Occasionally, when a brisk, business-like

judge is sitting, a "homicide calendar" will be disposed of at the rate

of one a day, but this is rare and can occur only when most of the

cases are for manslaughter or criminal negligence.

When trials are rapid their speed always redounds to the benefit, not

of the People, but of the defendant.

Such a performance in a court of justice as the following, recounted by

Lord Brampton, could not take place to-day. It is worth reproduction as

marking the progress of criminal procedure:

The first thing that struck me in the after-dinner trials was the

extreme rapidity with which the proceedings were conducted. As judges

and counsel were exhilarated, the business was proportionately

accelerated. But of all the men I had the pleasure of meeting on

these occasions, the one who gave me the best idea of rapidity in an

after-dinner case was Muirhouse.

Let me illustrate it by a trial which I heard: Jones was the name

of the prisoner. His offence was that of picking pockets, entailing

of course a punishment corresponding in severity with the barbarity

of the times. It was not a plea of "Guilty," when perhaps a little

more inquiry might have been necessary; it was a case in which the

prisoner solemnly declared he was "Not guilty," and therefore had a

right to be tried.

The accused having "held up his hand," and the jury having solemnly

sworn "to hearken to the evidence," etc., the witness for the

prosecution climbs into the box, which was like a pulpit, and before

he has time to look around and see where the voice comes from, he is

examined by the prosecuting counsel.

"I think you were walking up Ludgate Hill on Thursday 25th about

half-past two in the afternoon and suddenly felt a tug at your pocket

and missed your handkerchief, which the constable now produces. Is

that it?"

"Yes, sir."

"I suppose you have nothing to ask him?" says the judge. "Next

witness."

Constable stands up.

"Were you following the prosecutor on the occasion when he was robbed

on Ludgate Hill, and did you see the prisoner put his hand into the

prosecutor's pocket and take the handkerchief out of it?"

"Yes, sir."

Judge to the prisoner: "Nothing to say, I suppose?"

Then to the jury: "Gentlemen, I suppose you have no doubt? I have

none."

Jury: "Guilty, my lord," as though to oblige his lordship.

Judge to prisoner: "Jones, we have met before--we shall not meet

again for some time--seven years' transportation. Next case."

Time: two minutes and fifty-three seconds.

But to return to our juror. What strikes "O.C.," who has now become

entirely disabused of his previous ideas of what criminal trials are

like, is the fairness with which those trials are conducted in the

General Sessions and the fact that the interests of the accused are

safeguarded in every possible way. Plenty of time is taken to try out

even a pickpocket case or a street-corner brawl. The judge always

covers the law fully and accentuates the necessity of giving every

reasonable doubt to the defendant. In his heart "O.C." begins to have

a slight feeling that the devil is getting a little more than his due.

He has acquitted so many of the persons who have been tried that

when he now sees a head he is not at all unwilling to hit it. He is

fast reaching that state of mind which the prosecutor has anticipated

when he has told his chief that in a few days he will have the jury

"knocked into shape," in other words, he no longer believes every

hard-luck story that he hears, he knows that certain criminal attorneys

are capable of almost any kind of misrepresentation, he realizes that

practically every defendant has already had a pretty exhaustive trial

in the police court before indictment, he is quite as anxious to see

the guilty convicted as he is to see the innocent acquitted, and he

has been properly disgusted with the attitude and actions of certain

of his colleagues in the jury-room whom he regards quite properly as

anarchists or idiots. The district attorney at the end of a week has

found out who some of these are. They have been "excused" for the

remainder of the term, and he can rely pretty safely on the others

rendering a fair verdict in any important case which he now desires to

move before them.

What naturally interests "O.C." and his fellow jurors most of all

is the defendant's own story of how he came to be involved in the

transaction out of which the charge against him arises. For the first

few days he very probably gives such explanations rather more credit

than they deserve, for he is sympathetically inclined to believe that

the prisoner is more likely to be the victim of circumstances than

guilty of an act of moral turpitude. The eager attitude of some of

the complainants likewise gives him an excuse for believing them to

be actuated by more than a mere desire to see justice done and to

have the truth prevail. He is inclined to look for hidden motives

for every prosecution. This gradually wears off and his attention

becomes centred on the defendant himself. Will he put in a defence?

Will he testify in his own behalf? What will he say? Little by little

"O.C." gets to inventing defences to fit the facts established against

the prisoner by the people's case. Meantime he is learning a little

law. That "the people must prove the defendant's guilt beyond every

reasonable doubt," and "that no unfavorable inference must be drawn as

against the defendant from his failure to testify in his own behalf."

"O.C." has some difficulty with the "reasonable doubt." Perhaps he

says to himself, "I am a reasonable man,--hence any doubt I have must

be reasonable." However, the judge's reiteration that not every doubt

is a reasonable one and that the words do not mean "a mere guess or

conjecture that the defendant may, after all, be innocent, but a

substantial doubt arising out of the evidence in the case, for which a

reason can be given," and of such a character as would influence him in

the important affairs of his daily life, eventually clears his mind on

this somewhat abstruse psychological problem, and he translates "beyond

any reasonable doubt" into the more lucid and comprehensive "moral

certainty" of ordinary existence.[29] But that he shall not permit

himself to be prejudiced against a defendant by the latter's refusal

to testify is a much more difficult matter. He knows it to be the law,

and he tries hard to obey it, but in a majority of cases he cannot

escape the sub-conscious deduction that if the defendant were innocent

he would not hesitate to offer an explanation. As time goes on and he

gains in experience it becomes even harder to follow the instructions

of the judge in this respect. He discovers that the district attorney

cannot prove the prison record or bad character of the defendant

unless the latter subjects himself to cross-examination by taking

the witness-stand, and hence is likely to suspect that any defendant

who does not testify is an ex-convict. Three jurors out of five will

convict any man who is unwilling to offer an explanation of the charge

against him. How they reconcile this with their oath it would be

hard to understand, if they were accustomed to obey it literally in

other respects. The writer has heard more than one talesman say, in

discussing a verdict, "Of course we couldn't take it against him, but

we _knew_ he was guilty because he was afraid to testify."

As the reader is doubtless aware, under the common law no defendant

in either a civil suit or criminal prosecution could testify in his

own behalf. He was regarded as a party in interest whose bias must

necessarily render his evidence of questionable, if of any, value.

This doctrine, along with many others, our fathers adopted on their

severance from England, and it continued to be the law in New York for

a long time,--in civil cases until 1849, and in criminal until 1869.

Then, ostensibly for the sake of the defendant and for the protection

of the innocent, the rule was abolished. That the change from the

common law was not generally approved either by the bench or bar of

New York is clear from the opinion of the Court of Appeals in one of

the earliest cases which arose under the new practice.[30] The court

expressed the opinion that the change would redound to the benefit

of the glib, quick-witted and hardened criminal who could invent a

plausible defence, and result in the confusion of the innocent man

unjustly accused of crime who might from stupidity or timidity involve

himself in apparent contradiction; to say nothing of the fact that

if the defendant did not take the stand the jury, however much they

were instructed to the contrary, would inevitably draw an unfavorable

conclusion from his failure to deny his guilt.

Now to any fair-minded American it must seem almost rudimentary justice

that the accused should have a chance to tell his own story. That in

itself is a sufficient reason for the rule. Just why, theoretically, if

a defendant does not see fit to give an explanation and subject himself

to cross-examination, the jury should _not_ be permitted to draw an

unfavorable inference is not so clear.

Experience has demonstrated that an innocent man need have no fear

about taking the stand. Jurors sympathize with a defendant who is

subjected to a withering fire of questions, and do not expect him to

be able to give a lucid account of himself since the day of his birth,

or to explain without the minutest contradiction every detail in the

evidence against him. But they do want him to deny his guilt and to

have an opportunity to "size him up." On the other hand, the slightest

word of explanation may suffice to change the whole complexion of a

case.[31] In the old days the guiltiest of criminals could, almost

with impunity, shield himself behind his lawyer's eloquent assertion

that his client had a "perfect defence," but that the law "had sealed

his lips." To-day in the vast majority of cases the prisoner who does

not take the stand is doomed. Out of three hundred defendants tried

by the writer's associate, Mr. C.C. Nott, twenty-three failed to take

the stand in cases submitted to the jury. Of these twenty-one were

convicted, one was acquitted, and as to one the jury disagreed. Had

these men been prevented by law from testifying in their own behalf,

the ratio would have been very different.

Thus a rule originally intended to benefit the innocent defendant by

_permitting_ him to offer his explanation of the charge against him has

practically resulted in _compelling_ all defendants, guilty or innocent

alike, to testify. It goes without saying that this has resulted in

a considerable benefit to the community. Its only disadvantage, and

this is probably more theoretical than practical, is that ex-convicts

on trial can no longer successfully conceal their pasts. If they do

not testify they will probably pay the usual penalty, and if they do

testify they are more than likely to be convicted "on their records."

Clever criminals often seek to avoid this dilemma by declining the

services of counsel and conducting their own cases, thus rendering it

impossible for themselves to take the stand, for in such an event there

would be no lawyer to examine them. This ruse is well calculated to

deceive the ordinary juryman.

The jury are also far less inclined to draw an unfavorable inference

from a defendant's failure to testify if, on the conclusion of the

evidence of the prosecution, he merely "rests on the people's case" and

puts in no defence at all, than if he puts in only a partial defence.

They readily appreciate that his counsel may honestly believe that as

matter of law no case has been made out against him, and they bend

their energies to the determination of the simple and unobstructed

issue of whether the uncontradicted evidence of the prosecution has

of itself established the guilt of the prisoner beyond a reasonable

doubt. If he puts in a defence and calls witnesses to contradict those

of the people, the jury are apt to concentrate their attention upon the

question of the relative truthfulness of the witnesses on either side.

Juries, quite naturally, are quick to infer guilt from any attempt at

deception on the part of the defence, and habitually visit the sins

of his witness upon the prisoner. Every criminal lawyer has had the

unpleasant experience of seeing his client convicted merely because

the jury have caught one of the witnesses for the defence lying on an

immaterial point. Whether the jury hear one or both sides of a case,

they inevitably labor under the disadvantage of never being able to

pierce the screen which the law has hung between them and the truth

in every case. Many a jury is struggling manfully with the question

of the defendant's guilt or innocence, while the latter sits in the

pen chewing the cud of narcotic contentment and wondering whether the

yarn he "framed" for them will be believed. He has figured out what he

is likely to get, knowing that even if he were found guilty the judge

would probably not "give" him "more than Elmira," and has resolved to

"take a chance." As the Elmira sentence is indeterminate, the defendant

has nothing to gain by pleading. Once there, he will be released in

fourteen months if his conduct appears to warrant it. The only real

"chance" that he takes, is, that the judge may send him to State's

prison, but he usually has made a study of the judge's character and

past performances. Similarly he may have offered to plead to a lower

degree of the same offence and his offer may have been refused, yet the

matter is confidential and the case has to be tried by the district

attorney as though he had no knowledge of the defendant's guilt. So

the jury retire and frequently end their deliberations by acquitting

the defendant, who leaves the court-room triumphantly to the great

chagrin of the prosecutor. The jury, on the other hand, are filled with

complacent satisfaction at having restored to liberty a man unjustly

accused of crime. But these trifling considerations are as nothing when

compared with the limitations which the laws of evidence and procedure

place upon the presentation of what is ofttimes a perfectly plain

case.[32]

The prosecutor who has thoroughly investigated a case has a knowledge

of its real merits which can never be brought to the minds of the jury.

There is much evidence, not technically admissible, which properly

should be considered by him in determining his official action, and

there is usually an equal amount of evidence, the competency of which

will depend on the course of the trial. He occupies a delicate and

frequently a very difficult position, since he must prosecute the

case without reference to facts which might conclusively prove the

defendant guilty, could they be introduced in evidence. The real

character of the accused can almost never be demonstrated, for unless

he takes the stand in his own behalf his "record" is inadmissible,

and even when he does take the stand, he can deny with impunity any

allegation as to his past offences and conduct, since the law does not

permit the prosecutor to disprove such denials unless they relate to

actual convictions for crime. Similarly the excellent character of the

complainant and his witnesses may not be shown, unless the defendant

himself directly attacks it, so that it is probable that throughout

the case the injured party and the wrong-doer appear to the jury to

be of equal credibility. The district attorney is a "quasi-judicial"

officer, who must be at one and the same time the friend and right

arm of the court and the advocate of the public right. His official

position gives him an influence with the jury which honor forbids him

to abuse, and demands an impartial consideration of the evidence and a

dignified method of conducting the case, irrespective of the tactics

of the defence. He represents not only the public, but the defendant,

who is one of the public. He should be glad to welcome at any stage of

the proceedings credible evidence tending to establish the innocence

of the accused, and if it convinces him that the defendant is not

guilty, he should, even in the midst of a trial, arise and move that

the jury be discharged and the prisoner set free. But this is by no

means inconsistent with a vigorous insistence upon the people's rights,

nor does it require that the prosecutor should refrain from using

the advocate's customary weapons of attack and defence. While he is

cross-examining the witnesses for the defence and arguing to the jury,

he is for the time being the lawyer for the people, and the appellate

courts have said that it would be manifestly unfair not to extend to

him in summing up the case an equal latitude of expression and scope of

argument with counsel for the defendant.

It is the consciousness that he is indeed sore let and hindered in

really laying the truth before the jury that makes the accusation of

"unfairness" so bitter to a prosecutor, and it is the cause of whatever

"overzealousness" it is often popular to ascribe to the district

attorney's office. One would think, to read the communications in

the evening papers during a recent trial, that the community had no

privileges at all. A prosecutor frequently reaches that conclusion

from experience. The writer is not aware that the constitutional

guarantees which protect the liberty of the individual were intended to

deprive the public of an advocate. In the nature of things, if justice

is to be done, the People should be entitled to the same rights as

the individual. If we are to have respect for law, the law must be

deserving of respect, and law which makes rather for the acquittal than

for the conviction of the guilty is not of that sort.

But with a trained panel of jurors, at the end of the second week

of the term, the chaff having been separated from the wheat, the

prosecution may reasonably expect to see the mill of justice grinding

smoothly and reasonably fine, the jury at home in the court-room,

familiar with their duties, and appreciative of the fact that all the

assistant is trying to accomplish is the disposal of as many cases as

possible consistent with fair trials and just verdicts. By the middle

of the term he must be a very indifferent sort of fellow if he has

not made friends of the jury; and assuming that he has done his work

disinterestedly and in a business-like fashion, he will find that he

has now the good-will and respect of the entire panel,--a regard which

may well stand him in good stead later on in his career. This is the

prosecutor's reward,--to try cases before a body of men who know that

he is anxious to do the right thing, ready to welcome any evidence that

really tends to establish the innocence of the accused, but insistent

that no guilty man shall go free unless his act is first stamped as

wrong by a conscientious verdict on the part of the jury.

Yet, as the writer has already stated, when the jury disband at the

conclusion of the term with the thanks of the court, they have seen

few professional criminals, save for a fleeting glance as one or

two are led to the bar to admit their guilt. One exception readily

suggests itself,--namely, the prosperous swindler who, by means of

the "wire-tapping," "sick engineer" or other similar device, has

parted some gullible person from his savings. Yet these gentry always

save plenty of money with which to engage able counsel and are only

forced to trial after they have exhausted every means of delay known

to the law. They never plead guilty, but fight until the last gun is

fired, believing that as they have escaped punishment in the past, so

they will in the future. Their records rarely make it possible for

them to take the stand in their own behalf, and if the case goes to

the jury at all they are immediately convicted. Almost every panel

has the opportunity to hear at least one "sucker" tell his story and

to render a speedy verdict in his favor. It needs little explanation

from a prosecutor to convince the twelve hard-working tradesmen

before him that the defendants in this class of cases are the "real"

criminals,--systematic enemies of society.

The great bulk of cases, that is to say, nearly seventy-five per

cent, are disposed of by plea, by direction of the court, or

"recommendation," that is to say, on the written application of the

district attorney that the defendant's bail be discharged. Hundreds of

cases are thus "turned out" every year, and for the most part represent

those instances where the magistrate and grand jury have not had either

the time or the inclination to assume the responsibility of discharging

the defendants, preferring to put the question "up" to the district

attorney or a petit jury. These recommendations are made on numberless

grounds, the principal being (1) that it is clearly apparent that a

reasonable doubt exists on the evidence; in other words, that as a

matter of law the case should not be submitted to a jury; (2) that the

People's witnesses have disappeared or left the jurisdiction; (3) that

the case has once been tried with the jury standing almost unanimously

for acquittal; (4) that owing to the peculiar circumstances in the case

it is quite unreasonable to suppose that any jury would convict,--such

as where an entirely respectable young woman being out of work has, in

a fit of despair, attempted her own life.[33] Two or three cases are

disposed of in this manner in each part of the Sessions almost every

calendar day in the year.

The defendants who plead guilty are professional criminals,

ex-convicts, and prisoners whose guilt is so overwhelmingly clear that

they have no hope of getting even a disagreement.

Thus most of the cases tried are neither "dead open and shut," as the

saying is, nor exceptionally weak. They usually present some question

of doubt,--usually only a conjectural one, however, or at least admit

of a more or less logical argument for an acquittal on the part of the

defence.

In trivial cases the jury are inclined to take the law into their

own hands. Boys charged with attempting to pick pockets or burglarize

small stores, with assaulting police officers, carrying concealed

weapons such as knives and brass knuckles, having policy-slips in their

possession, rioting, malicious mischief, etc., are usually acquitted.

This is because the jury think that they have been already punished

enough for the character of offence which they have committed,--not

because they believe them innocent. Cases where the charge is a serious

one and which are tried before trained panels on a substantial amount

of evidence usually result in conviction. In so-called "important"

or "star" cases, defendants are rarely acquitted. If the reader will

recall the sensational first trials of the last ten years he will find

that there is hardly a single acquittal among them.[34] It is the petty

law-breaker who profits by the lawlessness of the modern jury.

The fact that the prosecutor appears every day before the general panel

of jurors in the Part to which he is assigned throughout the term and

soon gains among them the reputation of being fair, and that he on

his side knows their peculiarities and idiosyncrasies is what makes

the jury system in criminal cases work more accurately and accomplish

better results than in civil trials, where the jury usually has never

seen either counsel before and probably distrusts both of them. A

prosecutor who knows his petit jury, its faults, virtues and foibles,

can move an important case before it, even though it be composed of

retail cigar and newspaper dealers and small tailors from the East

Side, more safely and with a better expectation of a just verdict than

before a "special" panel of bankers and architects with whom he is

unfamiliar. The ordinary panel at its daily task during the last two

weeks of every term illustrates the jury system at its best. Cases

moved at the beginning of the term usually result in acquittals.

Occasionally a jury will open a term with a rather unexpected

conviction, but it takes three or four days before they realize that a

reasonable doubt is not meant to include "a mere guess or conjecture

that the defendant may, after all, be innocent." Wily criminal

practitioners seek if possible to have their cases put on the calendars

at the opening of a term, and to secure adjournments at the end of the

term in order that they may go over to the beginning of the next.

Court officers often win fame in accordance with their ability as "plea

getters." They are anxious that the particular Part to which they are

assigned shall make as good a showing as possible in the number of

cases disposed of. Accordingly each morning some of them visit the pens

on the floor below the court-room and negotiate with the prisoners for

pleas. The writer suspects that the assistant in charge of the Part is

usually depicted as a fierce and relentless prosecutor and the jury as

a hardened, heartless crew who would convict their own mothers on the

slightest pretext. The joys of Elmira as contrasted with other places

of confinement are alluringly described and a somewhat paradoxical

readiness to accept any sort of plea, in view of his bull-dog

character, is attributed to the assistant.

The writer has known of the entire population of a prison pen pleading

guilty one after another under the persuasion of an eloquent bluecoat

assisted by an opportune conviction. Of course the prisoners expect to

be treated with a considerable degree of leniency, and if one of their

comrades goes up to plead and returns with the story that the judge is

"easy" and the assistant "all right," and a sentence to Elmira, the

others are apt very quickly to follow suit. If, however, the first

of the batch called for trial does not come back at all (having been

acquitted), the remainder will not "plead" under any circumstances.

The same thing is true if the first prisoner who pleads gets a severe

sentence. Prosecutors anxious to dispose of business hope for light

sentences at the beginning of the term.

Most of the homicide cases are tried in the Criminal Term of the

Supreme Court, and a great many pleas to "manslaughter" are accepted

by the judge where the technical charge is murder in the first degree.

The grand jury indict for murder in almost every homicide case on the

theory that some evidence may possibly be given at the trial which will

warrant such a verdict. A very large proportion of these defendants

plead guilty to manslaughter, and are encouraged in all legitimate

ways to do so. About two years ago, in the Supreme Court, the first

defendant called to the bar concluded that discretion was the better

part of valor and pleaded guilty. The judge, who had never sat in

Criminal Term before, promptly gave him eighteen years,--only two less

than the maximum, although the shooting had occurred during a quarrel

over a game of "craps." Not a single other prisoner offered a plea to

any degree of crime during the remainder of the term.

A great deal of interest is felt everywhere in the practical results

of the jury system, and particularly in the proportion of convictions

to acquittals. Figures purporting to show such ratios should be

scrutinized with great care, as they usually include among "verdicts

of conviction" pleas of guilty voluntarily offered by the defendant,

and similarly include among "acquittals" all cases where defendants

are discharged without trial on the motion of the prosecutor. The only

figures which have any particular bearing on the question of how far

the jury system is efficacious are those drawn from the results of

actual trials in which verdicts have been rendered.

The following table shows the comparative number of convictions, pleas,

acquittals, etc., in New York County during the last eight years:

-----+--------+------+-----------+------------+----------+----------+

-----+--------+------+-----------+------------+----------+----------+

1900 | 424 | 1,672| 733 | 366 | 185 | 76 |

1901 | 551 | 1,838| 688 | 434 | 192 | 165 |

1902 | 419 | 2,009| 698 | 351 | 457 | 257 |

1903 | 485 | 1,918| 615 | 321 | 299 | 92 |

1904 | 495 | 1,971| 700 | 363 | 272 | 50 |

1905 | 489 | 2,001| 602 | 352 | 207 | 57 |

1906 | 464 | 2,079| 560 | 428 | 344 | 99 |

1907 | 582 | 2,266| 656 | 493 | 202 | 100 |

-----+--------+------+-----------+------------+----------+----------+

Total| 3,909|15,754| 5,252 | 3,108 | 2,158 | 896 |

-----+--------+------+-----------+------------+----------+----------+

-------+------+----------+----------+----------+----------+--------+------

-------+------+----------+----------+----------+----------+--------+------

74| 13 | 60 | 19 | 1,093 | 4 | 141 | 4,860

113| 8 | 77 | 36 | 1,045 | 4 | 116 | 5,267

97| 5 | 67 | 62 | 863 | 2 | 73 | 5,360

62| 12 | 65 | 40 | 807 | 7 | 86 | 4,809

63| 8 | 63 | 37 | 898 | 20 | 99 | 5,039

51| 8 | 82 | 38 | 1,035 | 5 | 93 | 5,020

47| 11 | 137 | 45 | 980 | 2 | 69 | 5,265

45| 12 | 179 | 38 | 1,529 | 4 | 131 | 6,237

-------+------+----------+----------+----------+----------+--------+------

552| 77 | 730 | 315 | 8,250 | 48 | 808 |41,857

-------+------+----------+----------+----------+----------+--------+------

During 1907 in New York County out of 4,573 indictments .62 per cent.

(including pleas of guilty) resulted in convictions. The following

table shows a gradually increasing percentage of such convictions for

the past eight years:

-----+-----------------------+-------------------+-------

Year | Number of Indictments | Total Convictions | Ratio

| Disposed of | |

-----+-----------------------+-------------------+-------

1900 | 3,620 | 2,096 | .5790

1901 | 4,096 | 2,389 | .5839

1902 | 4,410 | 2,428 | .5506

1903 | 3,909 | 2,403 | .6144

1904 | 4,022 | 2,466 | .6131

1905 | 3,887 | 2,490 | .6405

1906 | 4,214 | 2,543 | .6035

1907 | 4,573 | 2,848 | .6228

-----+-----------------------+-------------------+-------

During this eight-year period 32,731 indictments were finally

disposed of either by trial, plea, direction of the court or on the

recommendation of the district attorney. These dispositions bear the

following ratios to each other:

----+-----------+--------+----------+----------+----------+------------

----+-----------+--------+----------+----------+----------+------------

1900| .1171 | .4619 | .1013 | .1012 | .1707 | .0478

1901| .1345 | .4487 | .0840 | .0840 | .1831 | .0657

1902| .0950 | .4556 | .0792 | .0791 | .2324 | .0587

1903| .1239 | .4905 | .0786 | .0785 | .1770 | .0515

1904| .1231 | .4901 | .0887 | .0853 | .1685 | .0443

1905| .1258 | .5148 | .0769 | .0779 | .1585 | .0461

1906| .1101 | .4934 | .0584 | .0745 | .2067 | .0569

1907| .1273 | .4955 | .0577 | .0857 | .1739 | .0599

----+-----------+--------+----------+----------+----------+------------

What the reader is naturally most curious to discover is in what

proportion of cases (where they had any say in the matter at all)

the jury let the defendant go. Roughly speaking, the proportion of

convictions to acquittals _by actual verdict_ is considerably more than

two to one,--the ratio for 1907 being as 69 is to 31:

----+-----------+----------+-----------+----------

Year| Number | Number |Convictions|Acquittals

|Convictions|Acquittals| Per Cent | Per Cent

|by Verdict |by Verdict| |

----+-----------+----------+-----------+----------

1900| 424 | 367 | 54 | 46

1901| 551 | 344 | 62 | 38

1902| 419 | 349 | 55 | 45

1903| 485 | 307 | 61 | 39

1904| 495 | 357 | 58 | 42

1905| 489 | 299 | 62 | 38

1906| 464 | 246 | 65 | 35

1907| 582 | 264 | 69 | 31

----+-----------+----------+-----------+----------

The writer desires very particularly not to be understood as suggesting

that because the district attorney in all these cases thought the

defendant guilty or even _knew_ him to be guilty, the action of the

jury was necessarily improper. So far as his opinion may be worth

anything he believes thoroughly in the jury system in criminal cases,

with some trifling modifications. In a vast proportion of the cases

in which acquittals resulted there was undoubtedly room for an honest

difference of opinion as between reasonable men,--men in the long run

better qualified to judge of the defendant's guilt _on the evidence_

than the prosecutor himself, who is always at the disadvantage of

knowing the "inside" or "unprovable" elements of the People's case, a

fact which is apt to lead him to believe that the record establishes

his own contention more than it appears to do so to the jury. The

propriety of any jury's action must be determined only upon the basis

of the evidence presented to them, and upon which they are permitted

to act. The writer is inclined to believe that nearer eighty than

seventy per cent of the defendants tried should be convicted. In the

heat of conflict he might even claim ninety per cent and maintain that

if a majority of eleven on each jury could render a verdict, nine out

of every ten defendants, after a hearing in the magistrate's court,

an examination by the grand jury, and a careful investigation by the

prosecutor's office, should be convicted. The writer submits that the

increasing percentage of convictions shown on the opposite page is

evidence of the effectiveness of the jury in criminal cases in New York

County.

FOOTNOTES:

[Footnote 27: This is a vast improvement over the conditions which

existed in this regard six or seven years ago, when defendants in

prison could count themselves fortunate if tried within three weeks,

or, if on bail, within a year. It was by no means unusual to have

cases appear upon the calendars from three to five years old, the

backs of the indictments being covered with the names of assistants

long since departed from official life. The writer once tried a case

that had appeared on the calendar TWENTY-EIGHT times, and cases which

had appeared there from ten to twenty times were the rule, not the

exception. In the days when the present district attorney was a deputy,

indictments were so carelessly found and treated that in order to

clear the calendars bushel baskets of them would be brought into court

and dismissed "on the recommendation" of the district attorney. A

house-cleaning process of this sort would ordinarily occur just before

it became necessary to make an official report on the number of cases

"disposed of." To-day there are very few indictments not tried within

the year, and almost any defendant who wants one can get a speedy

trial, such delays as arise being generally caused by the defendant

himself. Of course during the summer months when but two courts are

open, and the judges sit from only ten-thirty to one o'clock, action

is somewhat less speedy, and as homicide cases usually require more

time for trial than others, and are tried _seriatim_ in order of age,

the defendants may have to wait a little longer than in cases of less

gravity. Even in such cases defendants generally have to be "forced to

trial" against their will.]

[Footnote 28: The writer's colleague, Mr. Charles Cooper Nott, Jr., has

recorded, as follows, the actual proceedings of an ordinary court day:

"Maria Dzialozindky takes the stand and swears that after a brief

acquaintance she married (as she supposed) the defendant before a rabbi

of his choosing; a man in charge of an officer is identified by her

as the rabbi; he is brought over from the penitentiary on Blackwell's

Island where he is serving a sentence for larceny, being a thief and

not a rabbi; Maria then goes on to relate how the defendant then

procured from her one hundred and forty-nine dollars, and disappeared,

leaving her alone in the Suffolk Street tenement which was to have been

their connubial bower of bliss; it further appears that the defendant

had a wife living at the time that he went through the ceremony of a

mock marriage with Maria. Defendant takes the stand, modestly admits

that he is possessed of such unusual attractions that Maria persecuted

him into this marriage; that she forced the one hundred and forty-nine

dollars upon him, and that he unfortunately slumbered in a saloon and

it was stolen from his person. The jury fail to give credence to his

tale, and promptly convict him. The next defendant is smooth and well

dressed, a hanger-on in the region known as the Tenderloin. Testimony

is given that he and another did take and carry away and sell certain

typewriting machines from an office in Thirty-fourth Street. Defendant

with an engaging smile tells how his companion had just been discharged

from the office in question, and had enlisted his (defendant's) aid

to remove the machines, which he informed defendant were his own, and

how shocked he was later to learn that this wicked companion had no

right or title to them. His smile is so engaging, and his looks so

respectable, that the jury acquit him, and are somewhat chagrined when

the judge, in discharging him, states that in the court's opinion he

is a smooth and plausible thief and guilty beyond a doubt--which is

the fact, as previous to the trial he had offered to plead guilty to a

lower degree of the crime charged. Next comes a stalwart Irishman who

describes with much feeling how the defendant (unfortunately a much

smaller man), without any provocation whatever, viciously assaulted him

in the hallway of the West Side tenement-house where they both lived,

and cut him in various vital parts with a pocket knife. Defendant

(bandaged to no less a degree than complainant) describes how he had

"an argument" (a term embracing any affray ending in anything short of

murder in the first degree) with complainant and his brother over a

game of cards, whereupon they followed him to the hallway, threw him

down and kicked him, and then struck at them with a large key. His

talk sounding reasonable and being corroborated by several neighbors,

defendant is acquitted. Lastly, an unsuspecting passenger and an

alert trolley-car conductor tell how defendant, a shifty-looking

young gentleman, while sitting next to the unsuspecting passenger,

kept with one hand a newspaper shoved under the latter's chin, while

with the other he abstracted a fine diamond scarf pin adorning his

cravat. When their tale is completed, the defendant and his counsel

put their respective heads together, and counsel then announces that

his client, the sole support of a widowed mother, did, in a moment

of temptation induced by filial anxiety, endeavor to acquire this

pin, and he therefore desires to throw himself upon the mercy of the

court and plead guilty, which he does. It appears, however (of course

to counsel's astonishment), that his portrait has for several years

ornamented the Rogues' Gallery, and that his record as a son is not

all that it might be, whereupon he is sentenced upon the spot, and

court adjourns. This is the summary of the actual record of a court day

presenting no unusual features"--_"In the District Attorney's Office,"

Atlantic Monthly for April, 1905._]

[Footnote 29: Cf. "Reform in Criminal Procedure," by Everet P. Wheeler,

4 Columbia Law Rev. 356.]

[Footnote 30: Ruloff vs. The People, 45 N.Y. 221.]

[Footnote 31: Mr. Nott cites the following case:

"The complainant, A, a well-dressed bartender, testified that he had

known the defendant, B, for some time; that on the night in question B

came to A's rooms, and shortly after B's departure, A found that his

watch was missing; the watch had been in the pocket of A's vest, which

A had left hanging on a chair, and A had stepped out of the room for

ten minutes, leaving B alone there. B afterwards admitted to A that he

had "hocked" the watch. Of course this testimony, if believed, made a

case against B, and it is difficult now to realize how any one could

ever have believed that the chance of explaining or contradicting it

could be more dangerous to B than the certainty of having A's testimony

go to the jury uncontradicted. B took the stand and testified that he

was getting a good salary as manager of an "intelligence office"; had

never been even arrested before; that A had obtained a loan of fifteen

dollars from him and had left the watch with him on the understanding

that B was to pawn it for fifteen dollars and give A the ticket; B did

pawn it in his own name and was shortly thereafter arrested. This case

is a fair illustration of a puzzling class. On the one hand, no motive

or reason was shown why A should cause the arrest of his friend on a

false charge (unless that of getting the watch back from the pawnbroker

without payment of the fifteen dollars, on the ground that it had been

stolen, is an adequate one). Upon the other hand, B's character and

position in life seemed to make it unlikely that he would commit such a

theft, and his act in pawning the watch under his true name gave color

to his story. The jury acquitted, and who can say that there was not at

least a reasonable doubt?"]

[Footnote 32: Mr. Nott gives the following illustration from an actual

trial:

"Take, for example, a certain case tried in the Criminal Branch of

the Supreme Court in the January term of 1902. The jury saw the

defendant, a stalwart, open-faced laboring man of nearly sixty years,

on trial for murder in the first degree; they heard a bartender and

a smooth-shaven, bullet-headed witness describe how the defendant in

the saloon became involved in a dispute with the deceased, caused by

the defendant's bad taste in reminding him that he had done time for

killing his own father; and they heard him of the bullet-head admit

on cross-examination that a scar adorning his neck had been inflicted

by the deceased some two years before; they heard the two witnesses

describe how the deceased left, breathing threatenings and slaughter,

and how a few minutes later the defendant, in the room back of the

saloon, was approaching the rear door, cutting a plug of tobacco with

his knife, which he had providentially drawn for that purpose, when the

deceased leaped upon him from the door and tried to stab him, whereupon

a fight ensued, in which the defendant was cut, and after which the

deceased left, followed a few minutes later by the defendant and the

bullet-headed, who saw naught further of him. To mar the symmetry of

this tale of self-defence (proved by the prosecution's own case), but

two jarring facts appeared--first, the saloon proper (not the rear

room) was found soaked in blood, and, second, the deceased was found

shortly after the defendant's departure at three A.M. lying on the

sidewalk in plain sight of the rear door, with his throat cut from ear

to ear. No evidence was put in for the defence, the defendant modestly

refrained from taking the stand, and of course an acquittal was

inevitable.

"From behind the scenes, however, the facts assumed a different aspect.

The frank-faced defendant was one 'Red,' who had served time for

robbery and other offences; the bullet-head surmounted shoulders upon

which rested a heavy load of crime and violence, their owner having

served the State several times and been implicated in numerous crimes,

including murder; the bartender would have considered it quite as safe,

and far more comfortable, to put a bullet through his head than to

testify against this choice pair; while it was true that the deceased

had killed his own father, the act was performed while parent and son

were in a drunken fight, by striking the old man on the head with a

water pitcher, and had occasioned great mortification to the son when

he became sober; and it was true that defendant and the bullet-headed

were both bitter enemies of the deceased. On this statement of facts,

there is little doubt that the deceased was murdered in the saloon

where the blood was found, and his body thrown out on to the sidewalk,

and the story arranged, the defendant shouldering the quarrel because

he had received a cut in the course of the fight. As the defendant did

not take the stand, his record and character could not be shown; as

the State was compelled to call the bartender and the other witness

(they being the sole witnesses to the occurrence), it could not impeach

their veracity nor attack their character. To the prosecuting officer,

therefore, was presented the choice of recommending the 'turning out'

of a desperate criminal without a trial, or of putting in what facts

the law permitted to be shown, and leaving the jury to acquit, while

marvelling that such a weak case should be presented to them."]

[Footnote 33: The number of these cases is one of the saddest

commentaries upon the conditions of life in a great city. Upon this

charge during the year 1905, 268 males and 114 females, a total of 382,

were arrested. Thirteen males and no females were held for trial and

the others were discharged.

_Comparison with Previous Years_

------+--------------------------+-------------------------

| Number Arraigned | Number Held for Trial

Year +--------+---------+-------+-------+---------+-------

------+--------+---------+-------+-------+---------+-------

1896 | 147 | 72 | 219 | 30 | 6 | 36

1897 | 228 | 130 | 358 | 42 | 12 | 54

1898 | 202 | 159 | 361 | 26 | 15 | 41

1899 | 257 | 140 | 397 | 40 | 13 | 53

1900 | 251 | 173 | 424 | 40 | 12 | 52

1901 | 244 | 143 | 387 | 24 | 3 | 27

1902 | 244 | 158 | 402 | 23 | 6 | 29

1903 | 374 | 156 | 530 | 15 | 4 | 19

1904 | 234 | 123 | 357 | 15 | - | 15

1905 | 268 | 114 | 382 | 13 | - | 13

1906 | 269 | 136 | 405 | 20 | 2 | 22

1907 | 258 | 135 | 393 | 13 | 1 | 14

---------------------------------------------------------

]

[Footnote 34: Peo. _vs._ Molineux, Peo. _vs._ Bissert, Peo. _vs._

Glennon, Peo. _vs._ Mills, Peo. _vs._ Patrick, Peo. _vs._ Ammon,

Peo. _vs._ "Al" Adams, Peo. _vs._ Hummel, Peo. _vs._ Wickes, Peo.

_vs._ Wooten, Peo. _vs._ Rothschild, Peo. _vs._ Kanter, Peo. _vs._

Summerfield, Peo. _vs._ Sam Parks, Peo. _vs._ Weinseimer, Peo. _vs._

Burnham, Peo. _vs._ Gillette, Peo. _vs._ H. Huffman Browne.]

CHAPTER X

THE JUDGE

The two principal functions of the judge of a criminal court are,

first, to preside at the trial, declaring the law and seeing to it

that the rules of procedure and of evidence are properly observed

and, second, to impose sentence in case of a conviction. In the

first case he is a judge of the law; in the last he becomes a judge

of the facts. It would be impossible to say which of these duties

is the more important, but the latter is certainly vastly the more

difficult. An unjust sentence is as bad, if not worse, than an unfair

trial, for the defendant does not have a chance of escape and, since

punishment is a matter of discretion upon the part of the judge, it

cannot be considered or reversed on appeal. It must be of precious

little satisfaction to a convicted prisoner to know that he has had a

perfectly impartial trial, if at the same time he receives a sentence

four times longer than he deserves, and equally little consolation to

a prosecutor when, after a fair contest, he has convicted a political

rascal of influence if the judge "suspend sentence" and the defendant

is permitted to walk the streets in spite of his offences.

The amount of learning requisite to preside with efficiency at an

ordinary criminal trial is comparatively small, and provided the judge

be honest, impartial, possessed of common-sense and what is known

as "backbone," neither prosecutor nor defendant's counsel need, as

a rule, complain, but the trouble, time, courage and discrimination

necessary adequately to determine what punishment should be meted

out to a particular offender for a given offence cannot well be

overestimated. It is not a difficult matter to preside with dignity

at a trial, preserve order, exclude hearsay testimony, apply the

other simple rules of evidence that are ordinarily involved in a

case of assault, larceny, burglary or homicide, and instruct a jury

as to "reasonable doubt," "good reputation" and the "presumption of

innocence" in words of one syllable. We may fairly assume that it is no

harder for the ordinary judge to try a man for picking a pocket than it

is to dress himself in the morning. It must in time become automatic if

not almost sub-conscious. He could probably do it in his sleep. Most

petty criminal cases "try themselves." The trouble begins when the same

judge is compelled to decide whether the convict shall be sent to the

Elmira Reformatory (where he may reasonably expect to be discharged in

fourteen months) or to State's prison for twenty years.

Let us consider first the conduct of the judge during the trial itself.

Theoretically it is his duty, at least in most States of the Union,

simply to declare the law governing the case and to rule impartially

upon the questions of evidence presented. He is supposed to give no

hint of his own opinion as to whether or not the defendant should be

convicted and to refrain from any marshalling of the facts claimed

to have been proven by either side in such a way as to influence the

verdict of the jury. In England he may and generally does "sum up"

the case; in America such a course would usually be a ground for

reversal, his function being limited to an abstract discussion of the

law involved, with little reference to the facts save in so far as it

may be necessary for purposes of illustrating the way in which the

jury shall apply it. He is supposed to sit upon his dais serenely,

indifferent as to whether a murderer be convicted or acquitted, whether

an inexperienced assistant district attorney be "trounced" by an astute

criminal lawyer with a couple of generations of trial experience,

or, on the other hand, a bulldozing prosecutor bedevil a miserable

prisoner, defended by an ignorant and untutored counsel, into State's

prison,--provided either be done within the strict rules of evidence

and proper court behavior.

This may be all very well in theory,--but it is very far from what is

either followed in practice or, to speak frankly, desirable. What the

people want in our criminal courts is, of course, a "fair trial," but

they want a "fair trial" that results in the acquittal of the innocent

and the conviction of the guilty,--so long as he is convicted by what

they deem fair means. The people do not expect a judge to be more than

human. Did he appear as indifferent to results as theory might seem

to require the jury would quickly infer that the case was of slight

importance and their action a matter of utter indifference to the

court. Juries need to be kept in order and made to behave themselves,

and, if judges did not from time to time exert a disciplinary

influence, would easily run wild and become hopelessly demoralized. It

is almost impossible to overestimate the awe with which the ordinary

juryman regards the judge presiding at a criminal trial. He may have

a supreme contempt for his personality or private conduct, but once

let the judicial ermine enshroud the individual and he sees only the

judge,--the personification of the law, the autocrat of the court-room,

the "boss" of the particular "job" upon which he is temporarily

employed. He knows nothing of the abstract theory of the situation.

He wants to do well as a juryman and believes, quite naturally, that

an improper verdict will be visited by the judicial wrath and a just

one be acknowledged by a look of benignant commendation. If he thought

the judge did not care he would take little interest in the business

himself, and the apprehension of the court's approval or disapproval is

an ever-present factor in keeping him doing conscientious work,--quite

as important in its results as his own lightly murmured oath as a juror.

The judge, in addition to his theoretic duties, is in effect the

individual who must keep the gang at work and see that every one

of them earns his two dollars a day. If he appeared to them to be

star-gazing or studying Epictetus they would soon rest on their

shovels. Many juries take their cue from the court, laughing when he

laughs, and frowning when he frowns, and instinctively, however much he

may admonish them to the contrary, trying to determine from his manner

and charge what his own impression of the case may be.

Now, a judge who has sat for ten or fifteen years on the criminal bench

is usually keener to detect a liar or see through a "faked" defence

than any twelve men drawn indiscriminately from different walks of

business activity. A timely question from him may demolish a perjured

explanation which, but for his interference, would have acquitted a

guilty criminal. Theoretically it is none of his business. Practically

it is. An inexperienced prosecutor may be so inadequate to the task of

coping with some old war-horse of a lawyer that save for the assistance

of the court a rascal would be turned loose upon the community; or,

turn about, a stupid lawyer may convict his own client if not prevented

by a considerate presiding justice. Theoretically the judge must let

the parties fight it out by themselves. In point of fact it is his

business to even things up. The old country judge was not so far wrong

when on being assigned to the criminal term of the Supreme Court in New

York City he said to the prosecutor:

"Mr. District Attorney, I reckon that, between us, we shall let no

innocent man be convicted,--and no guilty man escape."

Practically this expresses in a nutshell the popular idea of what a

criminal judge is for, and it is certainly the idea which pervades the

minds of the jury. Nothing can eradicate it. It is a fact,--an existing

condition, which the court must inevitably take into consideration

in determining his course of conduct upon the bench. By this it is

not meant that a judge should be either counsel for the defendant or

district attorney, nor that he should force his ideas upon the jury,

but simply that to be effective he must be more than a nonentity, a

mere law book, or an ornament, must guide the course of the trial,

and, in default of its being done by the counsel on either side, test

by his questions the truth or falsity of the testimony. More than

this, he should in his charge indicate the tests which the jury should

apply to the various phases of the evidence and, while not influencing

them upon the questions of fact which they are to determine, should

nevertheless so elucidate their task that they may be guided in their

deliberations and not go astray among the tangled underbrush of an

adroit counsellor's "requests to charge."

The writer has endeavored in the preceding paragraphs to set forth

briefly the theoretical function of the judge as opposed to his

proper practical function if he is to be of any value in the actual

administration of criminal justice. One more step is necessary, namely,

to comment on the actual conduct of some judges who from natural

disposition or a conscientious purpose to "do justice" are inclined

to usurp the function of the jury and practically to direct either an

acquittal or a conviction.

Under our prevailing doctrines the court has no right to influence

the jury on the facts in the slightest degree, and indeed most judges

expressly direct the jury to disregard absolutely any idea they may

have obtained of what the court's opinion may be. This, in the face of

the balance of the charge, must often seem paradoxical to the talesman,

for few judges entirely succeed in concealing their own views of the

case, however hard they may honestly try to do so.

It is quite as foreign to the spirit of our institutions for a judge to

interfere with the jury on questions of fact as for a jury to arrogate

to itself the decision of points of law. The system is designed to do

"justice" by means of its several parts working harmoniously together,

but neither part "working justice" by itself. If the judge arrogate

the jury's function, the jury becomes superfluous. This is not the

intent of the Constitution. There is no real trial by jury when the

judge decides the whole matter, and it would be far more dangerous

for a single man to act as arbiter of the defendant's fate than for

twelve. Yet more or less consciously there is often a tendency upon

the part of the criminal bench to lend itself to the success of one

party or the other, however positively it may declare and direct to the

contrary. The actual amount of suggestion needed to give the jury an

effective hint is infinitesimal. The almost imperceptible accentuation

of a word, the slightest lifting of an eyebrow, and a verdict has been

determined--by the judge.

Now a printed record on appeal fails utterly to disclose the tone of

the voice or the stage effects of a judge's charge. A distinguished

member of the bench, now long since deceased, was accustomed to deliver

charges so drastic that a defendant charged with a serious offence

rarely, if ever, escaped. Upon appeal absolutely no exception could be

taken to his remarks, yet nothing more unfair could be conceived of.

The record would show that the judge had charged:

"If you believe the defendant's testimony you will of course acquit

him. He is presumed to be innocent until the contrary is proved. If you

have any reasonable doubt as to his guilt you must give him the benefit

of it. On the other hand, if you accept the testimony offered by the

People you may and will convict him."

Now, nothing on its face would seem to be fairer. What the jury

actually heard was:

"If [scornfully] you _believe_ the defendant's testimony you will of

course acquit him. He is _presumed_ [with a shrug of the shoulders] to

be innocent until the contrary is proved. If you _have_ [another shrug]

any _reasonable_ doubt as to his guilt you must give him the benefit of

it. _On the other hand_, if you accept the testimony offered in behalf

_of the People_ you may _and will convict him_!" [The last few words in

tones of thunder.]

Sometimes a judge becomes known as a "convicting" judge, although,

perhaps, at the same time as a learned one. This usually occurs where a

man of pronounced opinions with the advocate's temperament is elevated

to the bench. Very likely by inclination he is a "prosecutor," with

strong prejudices against law-breakers and bitterly intolerant of

technicalities. The powers that prey may cower inert in their dens

of darkness knowing full well that if one of them be haled before

this Jeffries he will pay the uttermost penalty. Yet the spectacle of

such a judge does not increase the public respect for law, and juries

sometimes revolt and acquit out of sheer resentment at such dictation.

But happily these men are of the past, and the more enlightened

sentiment of to-day would frown as much upon a "hanging" judge as upon

a jelly-backed wearer of the gown who was afraid of the displeasure

of some politician if a "heeler" were convicted and who ruled

systematically against the people because they had no appeal and could

take no exceptions to his conduct.

Nothing strikes so sharply at our conception of liberty as the failure

of criminal justice, and the conviction of a defendant not legally

proven guilty or the acquittal of an influential criminal has a more

disastrous effect upon the body politic than ten thousand bales of

anarchistic propaganda. The partisan judge, who makes up his mind to

convict or acquit if he can, may be right nine times out of ten, but

the other time he commits an outrage. The judicial temperament is a

jewel above all price. The writer recalls a certain case of a variety

subject at the time to great public condemnation, where the judge

before the indictment was moved for trial, inquired casually of the

clerk what the defendant was charged with. When he learned the nature

of the accusation he exclaimed audibly:

"Ha! He's one of those ----s, is he? Well, I'll try _this_ case."

And he did. Unfortunately judges often "try" cases, either for the

defendant or against him.

Nothing is more unfortunate for the judicial equilibrium than the

fact that the prosecution has no right of appeal in the event of a

verdict of acquittal. The judge may persistently prevent the district

attorney from putting questions which are both competent and proper and

rule flatly against him on the most obvious points of law without any

redress on the part of the people. A weak judge will take no chances on

being reversed and will pursue this course, while at the same time he

is allowing every latitude to defendant's counsel and is ruling in his

favor in defiance of the established doctrines of law.

A criminal lawyer of great adroitness, learning and probity, after

he had concluded an argument of the most utter absurdity to which

the presiding judge had listened with much attention and apparent

consideration, frankly stated to the writer:

"You think my argument was nonsense? Well, you are quite right, it

was. But no proposition of law is too far-fetched or ridiculous to be

advanced in behalf of a defendant without some prospect of success in

our criminal courts." The lawyer in question will undoubtedly recognize

his dictum in these pages.

The attitude and disposition of the various judges becomes speedily

known among the members of what is popularly known as the "criminal

bar," and heroic efforts (often successful) are made to bring certain

cases before the "right" judge.

"Do you think I'd try the Smith case before ----?" one will say. "Not

on your life!"

In similar fashion lawyers retained by complainants will seek to have

their cases put on the calendar of such and such a judge.

"Put it before ----," they will say. "He's _hell_ on larceny!"

Some judges are supposed to be more lenient in the matter of

sentences than their brothers of the bench, but the writer, after six

years of observation, believes this to be a fiction. They are all

lenient,--entirely too much so.

Much of the impression among criminal lawyers that they will fare worse

at the hands of one member of the judiciary than another is due to the

obvious fact that some judges are by reason of their training better

suited to sit in certain classes of cases than others. One may have

had an exhaustive experience in commercial matters and thus be better

qualified to pass upon the questions of law involved therein. Another

may have heard many complicated cases involving expert testimony,

etc., etc. Of course as a rule the less well equipped a judge is

to hear a certain kind of case the more apt he will be to listen to

ill-founded argument on the law or the facts. No insurance swindler

would want to be tried before an expert on insurance law. He would very

naturally prefer a judge whose experiences had converged upon assault

and battery. It must be admitted that occasionally a judge is to be

found who seems to feel that every complainant who has lost money in a

commercial transaction has no standing in the criminal courts but must

be relegated to civil tribunals. This is but another way of saying that

such a judge does not believe that the criminal law is meant to cover

cases where there has been fraud in commercial transactions. This is

hardly to be wondered at considering the present ineffectiveness of our

statutes governing such classes of crime.

The writer recalls prosecuting such a case before a certain judge who,

after hearing some rather complicated evidence in regard to certain

written instruments, called abruptly for the defendant. The latter took

the stand, and the judge inquired with a smile:

"You didn't intend to cheat this man, did you?"

"Certainly not!" cried the defendant.

"Gentlemen of the jury!" said the judge. "This is not the kind of case

that should be brought before a jury at all. This court is not the

place to collect civil debts. I instruct you to acquit."

Learning wisdom by experience, the writer moved the case of the

co-defendant for trial before another judge and convicted him, although

he was, if anything, less guilty than the first. He was sentenced to a

substantial term in State's prison.

As a rule, however, little fault can be found with the conduct of

our judges at criminal jury trials. In some instances it may seem

to one side or the other that a judge shows bias, but these cases

are comparatively few and seldom result in any actual miscarriage

of justice. If some judges are inclined to rule against the People

upon doubtful questions of law, this in the long run has at least the

beneficial effect of reducing the number of cases reversed upon appeal.

The judges are almost invariably courteous, long-suffering, and given

to allowing the greatest latitude to each side in getting its evidence

before the jury. In addition they are practical men of common-sense,

most of them of long and profitable experience, and experts in the

rapid disposition of business.

Let us now turn to the other and no less important function of the

judge,--the imposition of sentence. It is a platitude that the chief

failing of modern criminal justice is the inequality of punishment. It

may well be and often is the case that in one branch of the General

Sessions a prisoner is being released upon "parole" under a "suspended"

sentence at the precise moment that some other and no more guilty

defendant in another branch of the same court is being sentenced to

prison for three, five or even ten years at hard labor.

That most able and practical of English criminal judges, Sir Henry

Hawkins, has this to say in his reminiscences in the matter of

sentences of convicted persons:

"The want of even an approach to uniformity in criminal sentences

is no doubt a very serious matter, and is due, not to any defect

in the criminal law (much as I think that might be improved in

many respects), but is owing to the great diversity of opinion, and

therefore of action, which not unnaturally exists among criminal

judges....

"The result of this state of things is extremely unsatisfactory, and

the most glaring irregularities, diversity and variety of sentences

are daily brought to our notice, the same offence committed under

similar circumstances being visited by one judge with a long term of

penal servitude, by another with simple imprisonment, with nothing

appreciable to account for the difference.

"In one or the other of these sentences discretion must have been

erroneously exercised.... Experience, however, has told us that the

profoundest lawyers are not always the best administrators of the

criminal law...."

Sir Henry likewise speaks of the great intellectual difficulty of a

conscientious English judge in trying to determine for himself the

amount of punishment he should inflict in any given case. The English

bench occupies an altitude practically unknown in this country. Access

to it is far less easy than with us, and the personal, familiar, and

off-hand method of communication between the judge and the bar, not

to mention interested outside parties, witnesses, and relatives of

the defendant, in vogue in our trial courts would hardly be viewed

there with favor. It is the wholesale attempted interference with the

action of the judges in our criminal courts that imparts a flavor of

indecision and arbitrariness to so many scenes upon a sentence day.

It is not unheard of to see a prisoner actually at the bar awaiting

sentence while the judge upon the bench holds a sort of open levee,

free to all comers, in which the prisoner's lawyer, his wife, the

officer who made the arrest, the complainant, and the district attorney

(and sometimes others who have far less claim to be heard) endeavor to

bring the judge to their own particular way of thinking, and harangue

him and each other in tones by no means always either deferential or

amicable. Meanwhile the judge who will permit any such performance

sits with an expression of exasperated indecision, and usually finally

ends the matter by "remanding" the prisoner for further investigation.

Such scenes are calculated to bring the administration of justice into

contempt. Snap-shot judgments formed in the midst of an altercation may

be unfair to the defendant and frequently are so to the People. A judge

who tries to please everybody ends by pleasing nobody and makes a farce

of justice. The administration of the criminal law is not a pleasing

matter nor is it conducted for the purpose of pleasing the various

parties. The judge is there to attend to his own business and make his

own decisions. The writer once heard a judge inflict sentence in the

following manner:

"Your counsel says sentence ought to be suspended upon you. The

district attorney says you ought to get five years in State's prison.

Well, I'll split the difference and send you to the Elmira Reformatory."

The sentence may have been the result of a conscientious and careful

attempt upon the part of the judge to decide the question, but the

phraseology in which it was couched will hardly commend itself as a

standard.

A thousand indefinite factors enter into the determination of the

exact amount of punishment to be meted out to an offender, and

relatively trivial circumstances may eventually decide whether the

stroke of the judge's pen in his sentence book shall swerve from a

"three" into a "five." Assuming that the judge have the rectitude of

a granite monolith and be impervious to influence of every sort, he

is nevertheless compelled when inflicting sentence to depend in large

measure upon "hearsay" testimony and evidence that could not possibly

be admitted upon actual trial. He seeks to find out if he can what

the past record and reputation of the defendant have been, and in so

doing often is forced to rely almost entirely upon the word of the

officer who originally made the arrest. If the latter be vindictive

he can easily convey the impression that the defendant is a man of

the worst possible character who has hitherto had the luck to escape

being caught. In most cases the prisoner has little opportunity to

traverse these vague and generally unheard allegations. Again it often

happens that he has been previously arrested. This fact is of course

excluded upon the trial for his present crime upon the common-sense

doctrine that the fact of his former arrest of itself proves nothing

whatever as to his guilt or innocence of the charge upon which he was

thus arrested. When, however, he comes up for sentence it is frequently

considered by the court, no matter what the subsequent disposition of

the case against him may have been, on the general assumption that

"where there is so much smoke there is generally a little fire." If he

has actually been convicted before, the fact weighs heavily against

him.

Almost anything may be presented for the consideration of the judge,

however remote its connection with the crime of which the defendant has

been convicted, and either as militating for or against the prisoner.

Affidavits, letters, newspaper clippings and memoranda are submitted

tending to show that he is of either good or bad character, has had a

reputable or a disreputable past, has or has not committed or attempted

to commit other crimes, or is or is not likely to "reform." Often these

may have a good deal of weight, but the persons who present them are

almost never sworn or placed upon the witness-stand or the defendant or

prosecutor given a chance to cross-examine them as to their accuracy.

The mere attitude of complainants, obviously an entirely immaterial

matter, is also often a considerable factor in determining how the

prisoner shall be disposed of. If they are vindictive and anxious

to "make an example" of the offender it may happen that they will

persuade the judge honestly to believe that a heavy sentence should be

inflicted, whereas if they are sorry for the prisoner and his family

and are willing to "give him another chance," and intercede strongly

for him, the judge may "suspend sentence" upon the same man. Now the

attitude of the parties wronged is largely determined by the character

and disposition of the parties themselves, and of course in many cases

has no relation whatever to the real rights of the case. For example, a

half-drunken laborer lacking the money to buy liquor may wander into an

area and cut away a strip of copper water-spout belonging to some old

lady. He sells it for a few cents and then is arrested and is convicted

of petty larceny. No one has any particular interest in the case and

the old lady comes into court and begs for the defendant's "parole."

He has hitherto led a decent life and the judge lets him go. Now, if

the same man, instead of stealing a piece of pipe out of an area, finds

himself in the vicinity of a freight yard and cabbages a piece of

iron belonging to a railroad company, he is no sooner convicted than

the attorneys for the company swarm about the judge demanding that

"this wholesale pillage of corporation property" be put an end to,

that an example be made of such thieves, and insisting that it is an

important case where a severe sentence should be inflicted. The judge

cannot be blamed if his mind is, to a certain extent, affected by the

representations of these gentlemen and he may easily give the defendant

six months or a year in the penitentiary. The moral guilt of the

prisoner is precisely the same and so will be the significance of his

punishment so far as its serving as a deterrent to himself or to others

is concerned.

Another instance is where a young clerk in a banking, express, or

insurance office is caught pilfering. He has, to be sure, violated the

trust reposed in him, but if the officers of the company are disposed

to intercede in his behalf and express the belief that he "has learned

his lesson" it is probable that they can persuade the judge to give

the boy another chance, whereas if their attitude were otherwise he

would, and perhaps very properly, be sent to Elmira or to State's

prison. It thus, in many cases, lies within the power of the lawyer for

a defendant, if he be assiduous, persuasive, or have influence which

can be exerted upon the complainant in the case, to lessen materially

the sentence of his client, who without his services would perhaps

receive the maximum of punishment. The poor or friendless prisoner,

who cannot pay for able or indefatigable counsel, inevitably suffers

in consequence, for his _defence to punishment_ after trial cannot be

adequately presented. His guilt is the same.

Another matter, frequently entirely fortuitous, which yet may affect

the question of punishment, is the fact of restitution. Where a

prisoner has been guilty of embezzlement or theft and afterwards

returns the money it is almost inevitably taken into consideration

when sentence is imposed. Naturally it is apt to affect the attitude

of the complainant in the highest degree. Now, if the offender be

merely foolish, he very probably has spent the money he has stolen in

gambling or feasting, while if he be shrewd and cunning he has laid it

by until he can accumulate enough to go to South America. In the latter

case he can be made to disgorge; in the former he cannot, and is often

far worse off when he comes to be sentenced than if he had been more

criminally minded.

From what has been said the reader should not infer that the majority

of sentences are excessive. In point of fact the leniency of most of

our judges is surprising, and when they err it is invariably upon

the side of mercy.[35] The sentences actually inflicted are often so

short that they must seem to the average layman almost trivial, and

the number of cases in which sentence is "suspended" and the offender

paroled in the custody of the Prison Association is almost seventy-five

per cent of the total number of first convictions.

The reasons for this leniency are varied. Primarily it is because the

judge realizes that it is not so much the length of imprisonment as

the fact that the defendant is imprisoned at all that, in the majority

of cases, acts as a deterrent upon that particular offender and upon

those to whom his conviction is calculated to serve as an example;

secondarily, it is due to the sentimental attitude of society towards

criminals of all varieties; and, lastly, to an appreciation of the

unfortunate inequality of punishment, and the difficulty in adequately

and justly determining what weight should be given to hearsay evidence

as to the convict's past history. In some instances leniency may arise

from other and less creditable sources, such as sheer cowardice in

defying influence, political or otherwise, the desire to curry popular

favor in the hope of subsequent preferment in office, or possibly

from the hope that if a light sentence is inflicted the case will

not be appealed and the conviction reversed. This dread of reversal

in the case of some judges amounts almost to hysteria, and there are

well-known instances in which judges in the criminal courts have stood

heroically by the district attorney and the People with the result

that some scoundrel of great political influence has been convicted,

and have then completely nullified the effect of their good conduct by

weakly suspending sentence or by inflicting one so slight as to arouse

the amusement and contempt of even the defendant himself.

The ultimate object of the proper administration of criminal justice is

to sustain and increase the general respect for law. If it result in a

lessened regard for law by engendering a belief that its officers are

weak, cowardly, venal, or ineffective, it is a failure. The adjuration

therefore to avoid even the appearance of evil applies strongly to

all members of the bench. Nothing conduces more to lawlessness than a

popular impression that criminal judges are incapable, "easy," or are

subject to influence. A judge who, it is supposed, can be "reached,"

is an incentive to crime. Now it is highly improbable that any judge

is ever "reached." Our judges are honorable men. But once let an

impression to the contrary get abroad among criminals and the same

result follows as if the judge were actually "crooked." If a judge is

supposed to be amenable to influence, the criminal will assume that his

own particular pull will be effective.

As an illustration, let us suppose that one of a band or "gang" of

young toughs has been apprehended in making a vicious assault which

might well have resulted in murder. Perhaps he has been paid fifty or

a hundred dollars to "knock out" (kill) his victim. He receives a fair

trial and is convicted. He deserves all he can get--ten years. Instead

he is sent to the Elmira Reformatory. The rest of the gang, with their

hangers-on, amounting in number very likely to forty or fifty youths

and men, are immediately convinced either that they have been able to

influence the judge through their political friends or that he and his

associates are "easy." "Going to Elmira" is nothing in their eyes; and

the conviction of their comrade results in no deterrent effect upon

them whatever. He becomes a clever hero. Any one of them is ready to

undertake the same job at the same price. If his conviction be reversed

and he be set at liberty they conclude that in addition the authorities

are incapable and that they can "beat the case" any time they happen

to be caught. The effect of an important conviction reversed in its

effect upon lawless sentiment cannot be overestimated.

A sense of judicial propriety is one of the most to be desired

qualities in a judge. The slightest suspicion that he is giving ear to

voices from behind the dais nullifies his effectiveness and destroys

popular respect for the law which he may perhaps in fact enforce with

ability and justice. The sight of a politician emerging from a judge's

chambers may baselessly destroy the latter's influence for good.

Actual infractions of judicial propriety should be visited with the

utmost severity. Prescott speaks of the jealousy of the Aztecs of the

integrity of their bench:

"To receive presents or a bribe, to be guilty of collusion in any

way with a suitor, was punished in a judge with death. Who or what

tribunal decided as to his guilt does not appear. In Tezcuco this was

done by the rest of the court. But the king presided over that body.

The Tezcucan prince, Nezahua Epilli, who rarely tempered justice with

mercy, put one judge to death for taking a bribe, and another for

determining suits in his own house,--a capital offence, also, by law."

Perhaps this was going too far.

"The judges of the higher tribunals," he continues, "were maintained

from the produce of a part of the crown lands, reserved for the

purpose. They, as well as the supreme judge, held their offices for

life. The proceedings in the courts were conducted with decency and

order. The judges wore an appropriate dress, and attended to business

both parts of the day, dining always, for the sake of despatch, in

an apartment of the same building where they held their session; a

method of proceeding much commended by the Spanish chroniclers, to whom

despatch was not very familiar in their own tribunals."

We can appreciate to a considerable extent the emotions of the Spanish

chroniclers. Judges often dine together, but not always for the sake

of despatch. The writer has no hesitation in affirming that disregard

of the comfort and time of jurors and witnesses is the most obvious

fault of certain of them. Some judges occasionally adjourn court from

one until two and make their own appearance any time before three. It

is small consolation to a juror nervously distracted by waiting to find

that the judge expects conscientiously to make up the time thus lost by

keeping the jury at work until five. In most instances, however, the

judges are more punctual and business-like than the jurors and counsel

who appear before them.

Some judges occasionally seem to feel that the benefit of the

"reasonable doubt" to which a prisoner is entitled before the jury

remains with and should be given to him even after conviction. This

sometimes manifests itself in the extraordinary phenomenon of a

defendant who has stood trial and perjured himself in his own behalf

receiving a less severe sentence than his co-defendant who has pleaded

guilty and saved the county the expense and labor of a trial. There was

once a case where this occurred in which two of the perpetrators of a

brutal robbery pleaded guilty and received seven years apiece, while

their "side-partner," after being convicted before a jury, was given

five years by another judge. It was not in this case, but an earlier

one, in which a judge, obviously on the theory of reasonable doubt,

addressed the prisoner substantially as follows:

"Young man, you have been convicted by a jury of your peers after a

fair trial. Your offence is a heinous one. You took the stand and

perjured yourself, asserting your innocence. I might inflict a severe

punishment. Still, under all the circumstances, _and in view of your

claim that you are not guilty_, I will suspend sentence."

The reader should not and will not assume that these instances of

unequal punishment and erratic clemency are set forth for the purpose

of illustrating the usual course of justice. They are the exception,

not the rule. That they sometimes occur cannot be denied. They should

never occur. They are probably due frequently to utter weariness on the

part of the judge, coupled with the realization that it is sometimes

practically a human impossibility to get at the true inwardness of

a case or know _what_ to do. Seemingly arbitrary sentences on close

observation are sometimes found to be erratic only in the language

in which they are phrased,--not in the amount of the punishment. The

table on the opposite page shows, the writer believes, that the average

sentences imposed in the various classes of crime bear a remarkably

sound relation to one another.

Could, however, the separate sentences be examined, an astonishing

and lamentable inequality would be discovered,--an inequality which

is an actual injustice, but an injustice which cannot be prevented

under our present system. Unless all offences should be tried before a

single judge of unvarying disposition and physical condition absolute

equality could not be secured. Where they are tried before four or five

different judges there will be four or five different and constantly

varying factors which must be multiplied into the constants shown by

the record. Some judges regard certain crimes as more detestable than

others do, and some judges see greater possibilities of reformation in

any given criminal than others. Some are more affected by the immorality,

as distinguished from the illegality, of a given crime than others, and

certain judges will take into consideration features of the case that

would be entirely disregarded by their associates.

========================================================================

_Classified list of the number of persons convicted, and the average

term imposed for each particular crime during the year 1907 in New York

County._

MALES

The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice · 第 20 / 23 章

The next morning Mr. Appleboy is up betimes. He does not wait for his