Defeat of the Commonwealth Club Bills.
Drawn By Committees of the Ablest San Francisco Attorneys Not Under
Retainer of Prison-Dodging Captains of Industry - Measures Not Allowed
to Reach Senate or Assembly, but Killed in Committees - Grove L.
Johnson's Keen Opposition.
The graft prosecution at San Francisco not only brought the fact
squarely before the public that large corporations sometimes catch the
easiest way to achieve their purposes by bribing public officials, but
that it is a deal easier to pass a camel through the eye of a needle
than a millionaire offender through the legal cobwebs of technicality to
a cell at San Quentin or Folsom[72].
That the technical defense in criminal cases was subject to grave abuses
had been generally recognized. But it took the graft cases at San
Francisco to fairly rub this unpleasant fact into the law-abiding
element. Because for the first time in the practice of criminal law in
California, unlimited wealth was available to employ the best legal
talent to defend men under indictment.
The defending lawyers took advantage of every technicality. They
emphasized the most trivial of them. Gradually it began to dawn upon The
People that here were legal refuges, based upon the most absurd of
technicalities, the sweeping away of which would in no way injure the
substantial rights of a person charged with crime, refuges which were
available to the rich man but denied to the poor or moderately
well-to-do.
To be sure, any person accused could make his technical defense if he
had the means to employ the necessary counsel. But in face of the
astonishing performances going on in the courts at San Francisco, it
soon became apparent to the thoughtful, that no man, whose fortune was
expressed in terms of less than five ciphers could make such a defense.
Thus the unpalatable truth was forced home, that we have in California a
technical defense available for the rich man charged with crime, which
is in effect denied even those of the so-called middle classes.
With this conviction came demand of reform of the criminal laws to
ensure:
(1) A prompt trial of an accused person on the merits of the case.
(2) A prompt judgment in the case of a verdict of guilty.
(3) A prompt hearing of the case in the Court of Appeal.
The machine was, of course, against any such "wicked innovations," as
Assemblyman Grove L. Johnson would have called them.
However, at San Francisco, three considerable bodies, the Bar
Association, the Commonwealth Club and the Citizens' League of Justice,
took the matter up, and for months had the ablest lawyers of the State -
at any rate the ablest not retained for the defense of capitalists under
indictment - at work wrestling with the problem of simplifying the
criminal codes and doing away so far as possible with technical defense,
except in such cases as the substantial rights of the defendant might be
involved.
A committee consisting of J. C. McKinstry, J. J. Dwyer, Lester H.
Jacobs, Oscar Cushing and Warren Olney Jr. was appointed for this
purpose by the Citizens' League of Justice. The Commonwealth Club
appointed Beverly L. Hodghead, Orrin K. McMurray, Alex. G. Eells,
Fairfax H. Wheelan, Sidney V. Smith, Lester H. Jacobs and Joseph
Hutchinson. One would go far before finding more representative or more
public-spirited bodies of citizens, or more able exponents of the law.
The labors of the several committees resulted in what may in a broad way
be regarded as two sets of bills being prepared.
The first, known as the Commonwealth Club bills, were sixty-five in
number, and were introduced in the Senate by Campbell, and in the
Assembly by Butler. The second set was known as the Bar Association
bills. They were introduced in the Senate by Burnett. They were nine in
number, and while apparently covering much of the ground of the
Commonwealth Club bills, were in no respects so complete as to method or
detail. The Bar Association bills pin-pricked an abuse; the Commonwealth
Club bills drove the knife in deep.
The sixty-five Commonwealth Club bills were readily divided into three
groups, those dealing with Grand Juries and indictments, with trial
juries and verdicts, and with appeals to the higher courts.
The general purpose of the measures dealing with Grand Juries was to
make those bodies purely accusatory, to make their findings conclusive
and not subject to attack. The basis of the proposed amendments and
additions to the laws governing Grand Juries was that Grand Juries are
primarily required to investigate secret offenses, and should be
regarded as purely accusatory bodies. On this theory the Commonwealth
Club bills made the indictment of a Grand Jury as binding as the action
of a committing magistrate who holds a defendant to answer. Had the
Commonwealth Club bills become laws there would have been no more
placing of Grand Jurors on trial for having found indictments against
persons able to employ crafty criminal lawyers.
But lest the defendant under investigation might be wronged, the
Commonwealth Club measures so amended the codes that a Grand Juror in
any way biased against the defendant was required to absent himself from
the Grand Jury room when the defendant's case was under consideration.
Under the proposed laws each Grand Juror was required to take oath "not
to participate in the inquiry as to any matter or affecting any person
as to which or whom he is biased or could not vote freely either way
that the evidence presented would in justice require him to vote."
The Commonwealth Club amendments regarding trial juries dealt with the
problem in the same broad spirit. The chief object sought was to avoid
the trying of citizens called for jury service[73]. The proposed laws
obviated this by leaving it with the Judge to determine the
qualifications of the juror, that is to say, the examination of jurors
in criminal cases was to have been taken out of the hands of the lawyers
and required of the Judge. To compensate the defendant for whatever
substantial disadvantage he might suffer, the number of his peremptory
challenges was materially increased.
To prevent the setting aside of judgments on trifling technicalities,
the proposed amendments provided that the Judge should fix the legality
of the jury panel by general order, after which challenges could not
apply to the whole panel, although they still held as to individual
jurors.
One of the most important of the provisions regarding trial jurors was
that the reading of mere newspaper reports of a case should not
disqualify a trial juror, unless it were shown that the newspaper
article purported to be a true copy of the official testimony.
The fact that under the present law the term "reasonable doubt" is not
given legal definition paves the way for frequent miscarriages of
justice. The Judge is required to define the term for the jury. The
defendant may take exception to the definition, thus paving the way for
technical defense in the upper Courts. The Commonwealth Club bills
defined "reasonable doubt" to be, "that state of the case which, after
the entire comparison and consideration of all the evidence in the
cause, leaves the minds of the jurors in that condition that they cannot
say they feel an abiding conviction to a moral certainty of the truth of
the charge."
Amendments were also proposed to the law governing instructions to
juries. Under the present rule, each side presents a long list of
instructions for the Judge to give to the jury. If the Judge refuse to
give the instructions as requested, objections to his refusal can be
taken and made basis for a technical defense[73a]. Under the proposed
amendments objection could be made only to such instructions as were
given, not to those which were not presented to the jury.
In none of those proposed amendments could the substantial rights of the
defendant be said to be encroached upon. But the proposed laws did clear
away a mass of technicalities which has kept many a scamp out of jail.
The proposed amendments dealing with appeals in criminal cases aimed at
prompt judgment and sentence after conviction, prompt appeal and
conclusion of the case.
To this end, the measures provided that upon conviction the defendant
must be sentenced forthwith, and if appeals were taken, taken on the
judgment. Instead of the cumbersome bill of exceptions, which required
weeks and sometimes months to prepare, it was provided that the entire
testimony given at the trial, together with the complete minutes of the
proceedings, should be sent to the higher tribunal. This would place
before the Appellate and Supreme Courts all the facts and testimony
which the Lower Court had considered. This feature of the Commonwealth
Club bills was also covered by the measures which had been prepared by
the Bar Association.
Under the proposed Commonwealth Club amendments, the defendant was not
permitted to appeal on questions referring to the trial jury panels or
the Grand jury, nor on any error not affecting his substantial rights.
Error in an immaterial issue, or of not sufficient importance to affect
the substantial rights of the defendant, was not, under the provisions
of the Commonwealth Club bills, to be held ground for reversal.
"We believe," said the Committee which drew up the Commonwealth Club
bills, "that what we have proposed is in no way revolutionary and
deprives the accused person of no substantial right. The amendments
proposed are merely designed to make the present law more effective, to
relieve the Courts from the necessity of considering trivial matters and
to aid in determining more promptly whether a person accused of crime is
innocent or guilty."
The bills as introduced in the Assembly were referred to the Assembly
Judiciary Committee. In the Senate, the bills went to the Senate
Judiciary Committee.
The promoters of the Commonwealth Club bills made the mistake of
treating the machine Senators and Assemblymen as men who could be won
over with reason and plain statement. Instead of fighting for their
bills and demanding their passage, the agents of the club were willing
to listen courteously to suggestions from tricksters intent upon the
defeat of the measures, who were only playing for time.
Carroll Cook was at Sacramento lobbying against the bills, as were
others of that gentleman's view of affairs. Cook actually appeared
before the Assembly Judiciary Committee on invitation of one of its
members. The courtesy shown him by Grove L. Johnson, chairman of the
Committee, was touching or nauseating, as one might view it. Johnson,
who was in effect the Committee, took occasion on the day of Cook's
appearance to denounce the measures as revolutionary, unconstitutional,
vicious.
It is interesting to note that sixty-three of the sixty-five bills as
introduced in the Assembly never got beyond Johnson's Committee. They
died right there. The two exceptions got out of the Committee in the
closing days of the session, one on March 10th, the other on March 20th.
They were reported out with the recommendation that they do pass. It was
then too late to take any action on them. They died on the Assembly
file.
Those who were making a fight for the measures were kept running between
the Judiciary Committee of the Assembly and that of the Senate. The
Senate Committee, while a majority of its members were against the
machine, was led by men who were not at all in sympathy with any plan
that was calculated to clear away legal cobwebs. On the pretext that the
reforms proposed were covered by the Bar Association bills, or that the
measures were duplicated by other bills, or that they were loosely
drawn, on any pretext, in fact, the Senate Committee recommended that
fifty-two of the sixty-five measures be withdrawn. And they were
withdrawn. Of the thirteen remaining, seven stuck in the Committee, died
there; five, just before the session closed, were referred back to the
Senate with the recommendation that they do not pass. They didn't. Of
the sixty-five bills, the Senate Committee gave only one favorable
recommendation. This lone recipient of Committee approval got back to
the Senate on March 5th. It died on the files.
Such was the fate of the measures prepared under the direction of the
Commonwealth Club for reform of the methods of indictment, trial and
appeal in criminal cases. The Bar Association bills received somewhat
better treatment.
Of the nine so-called Bar Association bills, eight passed the Senate;
the other died in the Senate Judiciary Committee. Of the eight which got
through the Senate, two were defeated in the Assembly, while six passed
that body and went to the Governor.
Four of the six Bar Association bills which passed dealt with the repeal
of those sections of the code which provide for bills of exceptions in
criminal cases and substituted the plan, described in considering the
Commonwealth Club bills, of providing the higher Court with complete
record of the testimony and the proceedings in the trial Court.
One of the two remaining measures requires sentence to be imposed upon a
convicted felon in not less than two nor more than five days after the
verdict or plea of guilty, with the right reserved for the Court of
extending the time to ten days. The sixth measure defines "a motion in
arrest of judgment."
Such was the outcome of the effort made by reputable lawyers and public
spirited laymen to eliminate quackery from the practice of the criminal
law. But measures calculated to make the practice of the criminal law
even more involved and technical than it is were granted more
consideration. Many of them passed both houses. How they were passed and
what they are will be considered in another chapter.
[72] No sooner had the indictments been returned in the San Francisco
cases than the validity of the indicting Grand Jury was attacked. For
months that issue occupied the attention of the Courts. One by one the
members of the Grand Jury were dragged into Court, and in effect placed
on trial that technical disqualification if such existed might be
established. The greater part of a day was, for example, consumed in
thrashing over the question whether one or three motions had been made
in nominating the stenographer to the Grand Jury.
Then came appeals to the higher Courts which occupied more months and
all but endless labor and expense.
When the attacks on the Grand Jury had been met and disposed of, and the
defendants brought to the trial Court, the Prosecution found its labors
scarcely begun. Every trial juror was placed on trial. Weeks and even
months were required, because of technical objections, to secure a trial
jury.
Just before the Legislature convened, Abe Ruef, had, as example, been
convicted by a jury in the securing of which the metropolis of the State
had been raked as with a fine-tooth comb for talesmen who were not
technically disqualified to serve. Thousands were available who would
have given the defendant a fair trial, but in all San Francisco very few
could be found who were not because of one technical reason or another
disqualified.
After conviction came the defendant's appeal, in which the Most trivial
reasons were accepted for freeing the defendant whose technical defense
had failed him in the lower Courts. Former Mayor Schmitz of San
Francisco, after conviction of extortion, and Abe Ruef, after having
pleaded guilty to the charge, were given their freedom under
circumstances which, to put it mildly, shocked the whole State.
[73] A prominent San Francisco attorney told the writer recently that
"the criminal lawyer too often questions a talesman needlessly, not so
much to disqualify him, as to get technical error into the record."
[73a] It was on a technicality of this kind that the District Court of
Appeals found excuse for reversal of the judgment in the case of Louis
Glass, convicted of bribing a member of the San Francisco Board of
Supervisors. E. J. Zimmer, the auditor of the Pacific States Telephone
Company, of which Glass was an official, refused to testify at Glass'
trial. The trial court refused to instruct the jury to disregard the
refusal. The Appellate Court held this to be a fatal error.