We will a.s.sume, however, that, in spite of the a.s.siduity of his lawyer, the prisoner has at last been indicted and is awaiting trial. What can be done about it? Of course, if the case could be indefinitely adjourned, the complainant or his chief witness might die or move away to some other jurisdiction, and if the indictment could be "pigeon-holed" the case might die a natural death of itself. Indictments, however, in New York County, whatever may be the case elsewhere, are no longer "pigeon-holed," and they cannot be adequately "lost," since certified copies are made of each. The next step, therefore, is to secure as long a time as possible before trial.

Usually a prisoner has nothing to lose and everything to gain by delay, and the excuses offered for adjournment are often ingenious in the extreme. The writer knows one criminal attorney who, if driven to the wall in the matter of excuses, will always serenely announce the death of a near relative and the obligation devolving upon him to attend the funeral. Another, as a last resort, regularly is attacked in open court by severe cramps in the stomach. If the court insists on the trial proceeding, he invariably recovers. Of course, there are many legitimate reasons for adjourning cases which the prosecution is powerless to combat.

The most effective method invoked to secure delay, and one which it is practically useless for the district attorney to oppose, is an application "to take testimony" upon commission in some distant place. Here again it must be borne in mind that such applications are often legitimate and proper and should be granted in simple justice to the defendant. Although this right to take the testimony of absent witnesses is confined in New York State to the defendant and does not extend to the prosecution, and is undoubtedly often the subject of much abuse, it not infrequently is the cause of saving an innocent man.

An example of this was the case of William H. Ellis, recently brought into the public eye through his connection with the treaty between the United States Government and King Menelik of Abyssinia. Ellis was accused in 1901 by a young woman of apparently excellent antecedents and character of a serious crime. Prior to his indictment a colored man employed in his office (the alleged scene of the crime) disappeared. When the case was moved for trial, Ellis, through his attorneys, moved for a commission to take the testimony of this absent, but clearly material, witness in one of the remote States of Mexico-a proceeding which would require a journey of some two weeks on muleback, beyond the railway terminus. The district attorney, in view of the peculiarly opportune disappearance of this person from the jurisdiction, strenuously opposed the application and hinted at collusion between Ellis and the witness. The application, however, was granted, and a delay of over a month ensued. During that time evidence was procured by the counsel of the prisoner showing conclusively that the complaining witness was mentally unsound and had made similar and groundless charges against others. The indictment was at once dismissed.

But such delays are not always so righteously employed. There is a story told of a case where a notorious character was charged with the unusual crime of "mayhem"-biting off another man's finger. The defendant's counsel secured adjournment after adjournment-no one knew why. At last the case was moved for trial and the prosecution put in its evidence, clearly showing the guilt of the prisoner. At the conclusion of the People's testimony, the lawyer for the defendant arose and harshly stigmatized the story of the complainant as a "pack of lies."

"I will prove to you in a moment, gentlemen," exclaimed he to the jury, "how absurd is this charge against my innocent client. Take the stand!"

The prisoner arose and walked to the witnesschair.

"Open your mouth!" shouted the lawyer.

The defendant did so. He had not a tooth in his head. The delay had been advantageously employed.

The importance of mere delay to a guilty defendant cannot well be overestimated. "You never can tell what may happen to knock a case on the head." For this reason a sufficiently paid and properly equipped counsel will run the whole gamut of criminal procedure, and:

1. Demur to the indictment.

2. Move for an inspection of the minutes of the proceedings before the grand jury.

3. Move to dismiss the indictment for lack of sufficient evidence before that body.

4. Move for a commission to take testimony.

5. Move for a change of venue.

6. Secure, where possible, a writ of habeas corpus and a stay of proceedings from some federal judge on the ground that his client is confined without due process of law.

All these steps he will take seriatim, and some cases have been delayed for as much as two years by merely invoking "legitimate" legal processes. In point of fact it is quite possible for any defendant absolutely to prevent an immediate trial provided he has the services of vigilant counsel, for these are not the only proceedings of which he can avail himself.

A totally distinct method is for the defendant to secure bail, and, after securing as many adjournments as possible, simply flee the jurisdiction. He will then remain away until the case is hopelessly stale, or he no longer fears prosecution.

In default of all else he may go "insane" just before the case is moved for trial. This habit of the criminal rich when brought to book for their misdeeds is too well known to require comment. All that is necessary is for a sufficient number of "expert" alienists to declare it to be their opinion that the defendant is mentally incapable of understanding the proceedings against him or of preparing his defence, and he is shifted off to a "sanitarium" until some new sensation occupies the public mind and his offences are partially forgotten.

In this way justice is often thwarted and the law cheated of its victim, but unless fortune favors him, sooner or later the indicted man must return for trial and submit the charge against him to a jury. But if this happens, even if he be guilty, all hope need not be lost. There are still "tricks of the trade" which may save him from the clutches of the law.

AT THE TRIAL What can be done when at last the prisoner who has fought presistently for adjournment has been forced to face the witnesses against him and submit the evidence to a jury of peers? Let us a.s.sume further that he has been "out on bail," with plenty of opportunity to prepare his defence and lay his plans for escape.

When the case is finally called and the defendant takes his seat at the bar after a lapse of anywhere from six months to a year or more after his arrest, the first question for the district attorney to investigate is whether or no the person presenting himself for trial be in point of fact the individual mentioned in the indictment. This is often a difficult matter to determine. "Ringers"-particularly in the magistrates' courts-are by no means unknown. Sometimes they appear even in the higher courts. If the defendant be an ex-convict or a well-known crook, his photograph and measurements will speedily remove all doubt upon the subject, but if he be a foreigner (particularly a Pole, Italian or a Chinaman), or even merely one of the h.o.m.ogeneous inhabitants of the densely-populated East Side of New York, it is sometimes a puzzling problem. "Mock Duck," the celebrated Highbinder of Chinatown, who was set free after two lengthy trials for murder, was charged not long ago with a second a.s.sa.s.sination. He was pointed out to the police by various Chinamen, arrested and brought into the Criminal Courts building for identification, but for a long time it was a matter of uncertainty whether friends of his (masquerading as enemies) had not surrendered a subst.i.tute. Luckily the a.s.sistant district attorney who had prosecuted this wily and dangerous Celestial in the first instance was able to identify him.

Many years ago, during the days of Fernando Wood, a connection of his was reputed to be the power behind the "policy" business in New York City-the predecessor of the notorious Al Adams. A "runner" belonging to the system having been arrested and policy slips having been found in his possession, the reigning Policy King retained a lawyer of eminent respectability to see what could be done about it. The defendant was a particularly valuable man in the business and one for whom his employer desired to do everything in his power. The lawyer advised the defendant to plead guilty, provided the judge could be induced to let him off with a fine, which the policy King agreed to pay. Accordingly, the lawyer visited the judge in his chambers and the latter practically promised to inflict only a fine in case the defendant, whom we will call, out of consideration for his memory, "Johnny Dough," should plead guilty. Unfortunately for this very satisfactory arrangement, the judge, now long since deceased, was afflicted with a serious mental trouble which occasionally manifested itself in peculiar losses of memory. When "Johnny Dough," the Policy King's favorite, was arraigned at the bar and, in answer to the clerk's interrogation, stated that he withdrew his plea of "not guilty" and now stood ready to plead "guilty," the judge, to the surprise and consternation of the lawyer, the defendant, and the latter's a.s.sembled friends, turned upon him and exclaimed:

"Ha! So you plead guilty, do you? Well, I sentence you to the penitentiary for one year, you miserable scoundrel!"

Utterly overwhelmed, "Johnny Dough!" was led away, while his lawyer and relatives retired to the corridor to express their opinion of the court. About three months later the lawyer, who had heard nothing further concerning the case, happened to be in the office of the district attorney, when the latter looked up with a smile and inquired:

"Well, how's your client-Mr. Dough?"

"Safe on the Island, I suppose," replied the lawyer,

"Not a bit of it," returned the district attorney. "He never went there."

"What do you mean?" inquired the lawyer. "I heard him sentenced to a year myself!"

"I can't help that," said the district attorney. "The other day a workingman went down to the Island to see his old friend 'Johnny Dough.' There was only one 'Johnny Dough' on the lists, but when he was produced the visitor exclaimed: 'That Johnny Dough! That ain't him at all, at all!' The visitor departed in disgust. We inst.i.tuted an investigation and found that the man at the Island was a 'ringer.'"

"You don't say!" cried the lawyer.

"Yes," continued the district attorney. "But that is not the best part of it. You see, the 'ringer' says he was to get two hundred dollars per month for each month of Dough's sentence which he served. The prison authorities have refused to keep him any longer, and now he is suing them for damages, and is trying to get a writ of mandamus to compel them to take him back and let him serve out the rest of the sentence!"

Probably the most successful instance on record of making use of a dummy occurred in the early stages of the now famous Morse-Dodge divorce tangle. Dodge had been the first husband of Mrs. Morse, and from him she had secured a divorce. A proceeding to effect the annulment of her second marriage had been begun on the ground that Dodge had never been legally served with the papers in the original divorce case-in other words, to establish the fact that she was still, in spite of her marriage to Morse, the wife of Dodge. Dodge appeared in New York and swore that he had never been served with any papers. A well-known and reputable lawyer, on the other hand, Mr. Sweetser, was prepared to swear that he had served them personally upon Dodge himself. The matter was sent by the court to a referee. At the hour set for the hearing in the referee's office, Messrs. Hummel and Steinhardt arrived early, in company with a third person, and took their seats with their backs to a window on one side of the table, at the head of which sat the referee, and opposite ex-Judge Fursman, attorney for Mrs. Morse. Mr. Sweetser was late. Presently he appeared, entered the office hurriedly, bowed to the referee, apologized for being tardy, greeted Messrs. Steinhardt and Hummel, and then, turning to their companion, exclaimed: "How do you do, Mr. Dodge?" It was not Dodge at all, but an acquaintance of one of Howe & Hummel's office force who had been asked to accommodate them. Nothing had been said, no representations had been made, and Sweetser had voluntarily walked into a trap.

The attempt to induce witnesses to identify "dummies" is frequently made by both sides in criminal cases, and under certain circ.u.mstances is generally regarded as professional. Of course, in such instances no false suggestions are made, the witness himself being relied upon to "drop the fall." In case he does identify the wrong person, he has, of course, invalidated his entire testimony.

Not in one case out of five hundred, however, is any attempt made to subst.i.tute a "dummy" for the real defendant, the reason being, presumably, the prejudice innocent people have against going to prison even for a large reward. The question resolves itself, therefore, into how to get the client off when he is actually on trial. First, how can the sympathies of the jury be enlisted at the very start? Weeping wives and wailing infants are a drug on the market. It is a friendless man indeed, even if he be a bachelor, who cannot procure for the purposes of his trial the services of a temporary wife and miscellaneous collection of children. Not that he need swear that they are his! They are merely lined up along a bench well to the front of the court-room-the imagination of the juryman does the rest.

A defendant's counsel always endeavors to impress the jury with the idea that all he wants is a fair, open trial-and that he has nothing in the world to conceal. This usually takes the form of a loud announcement that he is willing "to take the first twelve men who enter the box." Inasmuch as the defence needs only to secure the vote of one juryman to procure a disagreement, this offer is a comparatively safe one for the defendant to make, since the prosecutor, who must secure unanimity on the part of the jury (at least in New York State), can afford to take no chances of letting an incompetent or otherwise unfit talesman slip into the box. Caution requires him to examine the jury in every important case, and frequently this ruse on the part of the defendant makes it appear as if the State had less confidence in its case than the defence. This trick was invariably used by the late William F. Howe in all homicide cases where he appeared for the defence.

The next step is to slip some juryman into the box who is likely for any one of a thousand reasons to lean toward the defence-as, for example, one who is of the same religion, nationality or even name as the defendant. The writer once tried a case where the defendant was a Hebrew named Bauman, charged with perjury. Mr. Abraham Levy was the counsel for the defendant. Having left an a.s.sociate to select the jury the writer returned to the courtroom to find that his friend had chosen for foreman a Hebrew named Abraham Levy. Needless to say, a disagreement of the jury was the almost inevitable result. The same lawyer not many years ago defended a client named Abraham Levy. In like manner he managed to get an Abraham Levy on the jury, and on that occasion succeeded in getting his client off scot-free.

No method is too far-fetched to be made use of on the chance of "catching" some stray talesman. In a case defended by Ambrose Hal. Purdy, where the deceased had been wantonly stabbed to death by a blood-thirsty Italian shortly after the a.s.sa.s.sination of President McKinley, the defence was interposed that a quarrel had arisen between the two men owing to the fact that the deceased had loudly proclaimed anarchistic doctrines and openly gloried in the death of the President, that the defendant had expostulated with him, whereupon the deceased had violently attacked the prisoner, who had killed him in self-defence.

The whole thing was so thin as to deceive n.o.body, but Mr. Purdy, as each talesman took the witness-chair to be examined on the voir dire, solemnly asked each one:

"Pardon me for asking such a question at this time-it is only my duty to my unfortunate client that impels me to it-but have you any sympathy with anarchy or with a.s.sa.s.sination?"

The talesman, of course, inevitably replied in the negative.

"Thank you, sir," Purdy would continue: "In that event you are entirely acceptable!"

Not long ago two shrewd Irish attorneys were engaged in defending a client charged with an atrocious murder. The defendant had the most Hebraic cast of countenance imaginable, and a beard that reached to his waist. Practically the only question which these lawyers put to the different talesmen during the selection of the jury was, "Have you any prejudice against the defendant on account of his race?" In due course they succeeded in getting several Hebrews upon the jury who managed in the jury-room to argue the verdict down from murder to manslaughter in the second degree. As the defendant was being taken across the bridge to the Tombs he fell on his knees and offered up a heartfelt prayer such as could only have emanated from the lips of a devout Roman Catholic.

Lawyers frequently secure the good-will of jurors (which may last throughout the trial and show itself in the verdict) by some happy remark during the early stages of the case. During the Clancy murder trial each side exhausted its thirty peremptory challenges and also the entire panel of jurors in filling the box. At this stage of the case the foreman became ill and had to be excused. No jurors were left except one who had been excused by mutual consent for some trifling reason, and who out of curiosity had remained in court. He rejoiced in the name of Stone. Both sides then agreed to accept him as foreman provided he was still willing to serve, and this proving to be the case he triumphantly made his way towards the box. As he did so, the defendant's counsel remarked: "The Stone which the builders refused is become the head Stone of the corner." The good-will generated by this meagre jest stood him later in excellent stead.

In default of any other defence, some criminal attorneys have been known to seek to excite sympathy for their helpless clients by appearing in court so intoxicated as to be manifestly unable to take care of the defendant's interests, and prisoners have frequently been acquitted simply by virtue of their lawyer's obvious incapacity. The att.i.tude of the jury in such cases seems to be that the defendant has not had a "fair show" and so should be acquitted anyway. Of course, this appeals to the juryman's sympathies and he overlooks the fact that by his action the prosecution is given no "show" at all.

Generally speaking, the advice credited to Mr. Lincoln, as being given by him to a young attorney who was about to defend a presumably guilty client, is religiously followed by all criminal pract.i.tioners:

"Well, my boy, if you've got a good case, stick to the evidence; if you've got a weak one, go for the People's witnesses; but-if you've got no case at all, hammer the district attorney!"

As a rule, however, criminal lawyers are not in a position to "hammer" the prosecuting officer, but endeavor instead to suggest by innuendo or even open declaration his bias and unfairness.

"Be fair, Mr.-!" is the continual cry. "Try to be fair!"

The defendant, whether he be an ex-convict or thirty-year-old professional thief, is always "this poor boy," and, as he is not compelled by law to testify, and as his failure to do so must not be weighed against him by the jury, he frequently walks out of court a free man, because the jury believe from the lawyer's remarks that he is in fact a mere youthful offender of hitherto good reputation and deserves another chance.