By all odds the greatest abuse in criminal trials lies in the open disregard of professional ethics on the part of lawyers who deliberately supply of themselves, in their opening and closing addresses to the jury, what incompetent bits of evidence, true or false, they have not been able to establish by their witnesses. There is no complete cure for this, for even if the judge rebukes the lawyer and directs the jury to disregard what he has said as "not being in the evidence," the damage has been done, the statement still lingering in the jury's mind without any opportunity on the part of the prosecutor to disprove it. There is no antidote for such jury-poison. A shyster lawyer need but to keep his client off the stand and he can saturate the jury's mind with any facts concerning the defendant's respectability and history which his imagination is powerful enough to supply. On such occasions an ex-convict with no relatives may become a "n.o.ble fellow, who, rather than have his family name tainted by being connected with a criminal trial, is willing to risk even conviction"-"a veteran of the glorious war which knocked the shackles from the slave"-"the father of nine children"-"a man hounded by the police." The district attorney may shout himself hoa.r.s.e, the judge may pound his gavel in righteous indignation, the lawyer may apologize because in the zeal with which he feels inspired for his client's cause he perhaps (which only makes matters worse) has overstepped the mark-but some juryman may suppose that, after all, the prisoner is a hero or nine times a father.

There is one notorious attorney who poses as a philanthropist and who invariably promises the jury that if they acquit his client he will personally give him employment. If he has kept half of his promises he must by this time have several hundred clerks, gardeners, coachmen, ch.o.r.emen and valets.

In like manner attorneys of this feather will deliberately state to the jury that if the defendant had taken the stand he would have testified thus and so; or that if certain witnesses who have not appeared (and who perhaps in reality do not exist at all) had testified they would have established various facts. Such lawyers should be locked up or disbarred; courts are powerless to negative entirely their dishonesty in individual cases.

Clever counsel, of course, habitually make use of all sorts of appeals to sympathy and prejudice. In one case in New York in which James W. Osborne appeared as prosecutor the defendant wore a G.A.R. b.u.t.ton. His lawyer managed to get a veteran on the jury. Mr. Osborne is a native of North Carolina. The defendant's counsel, to use his own words, "worked the war for all it was worth," and the defendant lived, bled and died for his country and over and over again. In summing up the case, the attorney addressed himself particularly to the veteran on the back row, and, after referring to numerous imaginary engagements, exclaimed: "Why, gentlemen, my client was pouring out his life blood upon the field of battle when the ancestors of Mr. Osborne were raising their hands against the flag!" For once Mr. Osborne had no adequate words to reply.

By far the most effective and dangerous "trick" employed by guilty defendants is the deliberate shouldering of the entire blame by one of two persons who are indicted together for a single offence. A common example of this is where two men are caught at the same time bearing away between them the spoil of their crime and are jointly indicted for "criminally receiving stolen property." Both, probably, are "side partners," equally guilty, and have burglarized some house or store in each other's company. They maybe old pals and often have served time together. They agree to demand separate trials, and that whoever is convicted first shall a.s.sume the entire responsibility. Accordingly, A. is tried and, in spite of his a.s.severation that he is innocent and that the "stuff" was given him by a strange man, who paid him a dollar to transport it to a certain place, is properly convicted.* The bargain holds. B.'s case is moved for trial and he claims never to have seen A. in his life before the night in question, and that he volunteered to help the latter carry a bundle which seemed to be too heavy for him. He calls A., who testifies that this is so-that B., whom he did not know from Adam, tendered his services and that he availed himself of the offer. The jury are usually p.r.o.ne to acquit, as the weight of evidence is clearly with the defendant.

* The defence that the accused innocently received the stolen property into his possession was a familiar one even in 1697, as appears by the following record taken from the Minutes of the Sessions. It would seem that it was even then received with some incredulity.

CITY & COUNTY OF NEW YORK: ss:

At a Meeting of the Justices of the Peace for the said City & County at the City Hall of the said City on Thursday the 10th day of June Anno Dom 1697.

PRESENT. William Morrott Esquires James Graham / quorum

Jacobus Cortlandt Esquires Grandt Schuylor } Justices Leonard Lowie / of the Peace Jacobus Cortlandt, Esq., one of his Majestys justices of the peace for ye said City and County Informed the Kings justices that a peace of Linnen Ticking was taken out of his Shop this Morning. That he was informed a Negro Slave Named Joe was seen to take the same whereupon the said Jacobus Van Cortlandt Pursued the said, Joe and apprehended him and found the said peice of ticking in his custody and had the said Negro Joe penned in the cage, upon which the said Negro man being brought before the said Justices said he did not take the said ticking out of the Shop window but that a Boy gave itt to him, but upon Examination of Sundry other Evidence itt Manifestly Appeareth to the said Justices that the said Negro man Named Joe, did steal the said piece of linnen ticking out of the Shop Window of the said Jacobus Van Cortlandt and thereupon doe order the punishment of the said Negro as follows vigt. That the said Negro man Slave Named Joe shall be forthwith by the Common whipper of the City or some of the Sheriffs officers art the Cage be stripped Naked from the Middle upwards and then and there shall be tyed to the tayle of a Cart and being soe stripped and tyed shah be Drove Round the City and Receive upon his naked body art the Corner of each Street nine lashes until he return to the place from whence he sett out and that he afterwards Stand Committed to the Sheriffs custody till he pay his fees.

Many changes are rung upon this device. There is said to have been a case in which the defendant was convicted of murder in the first degree and sentenced to be executed. It was one of circ.u.mstantial evidence and the verdict was the result of hours of deliberation on the part of the jury. The prisoner had stoutly denied knowing anything of the homicide. Shortly before the date set for the execution, another man turned up who admitted that he had committed the crime and made the fullest sort of a confession. A new trial was thereupon granted by the Appellate Court, and the convict, on the application of the prosecuting attorney, was discharged and quickly made himself scarce. It then developed that apart from the prisoner's own confession there was practically nothing to connect him with the crime. Under a statute making such evidence obligatory in order to render a confession sufficient for a conviction, the prisoner had to be discharged.

In the case of Mabel Parker, a young woman of twenty, charged with the forgery of a large number of checks, many of them for substantial amounts, her husband made an almost successful attempt to procure her acquittal by means of a new variation of the old game. Mrs. Parker, after her husband had been arrested for pa.s.sing one of the bogus checks, had been duped by a detective into believing that the latter was a fellow criminal who was interested in securing Parker's release. In due course she took this supposed friend into her confidence, made a complete confession, and ill.u.s.trated her skill by impromptu copies of her forgeries from memory upon a sheet of pad paper. This the detective secured and then arrested her. She was indicted for forging the name Alice Kauser to a check upon the Lincoln National Bank. On her trial she denied having done so, and claimed that the detective had found the sheet containing her supposed handwriting in her husband's desk, and that she had written none of the alleged copies upon it. The door of the courtroom then opened, and James Parker was led to the bar and pleaded guilty to the forgery of the check in question. (For the benefit of the layman it should be explained that as a rule indictments for forgery also contain a count for "uttering.") He then took the stand, admitted that he had not only uttered but had also written the check, and swore that it was his handwriting which, appeared on the pad.

The prosecutor was nonplussed. If he should ask the witness to prove his capacity to forge such a check from memory on the witness-stand, the latter, as he had ample time to practise the signature while in prison, would probably succeed in doing so. If, on the other hand, he should not ask him to write the name, the defendant's counsel would argue to the jury that he was afraid to do so. The district attorney therefore took the bull by the horns and challenged Parker to make from memory a copy of the signature, and, much as he had suspected, the witness produced a very good one. An acquittal seemed certain, and the prosecutor was at his wit's end to devise a means to meet this practical demonstration that the husband was in fact the forger. At last it was suggested to him that it would be comparatively easy to memorize such a signature, and acting on this hint he found that after half an hour's practice he was able to make almost as good a forgery as Parker. When therefore it came time for him to address the jury he pointed out the fact that Parker's performance on the witness-stand really established nothing at all-that any one could forge such a signature from memory after but a few minutes' practice.

"To prove to you how easily this can be done," said he, "I will volunteer to write a better Kauser signature than Parker did."

He thereupon seized a pen and began to demonstrate his ability to do so. Mrs. Parker, seeing the force of this ocular demonstration, grasped her counsel's arm and cried out: "For G.o.d's sake, don't let him do it!" The lawyer objected, the objection was sustained, but the case was saved. Why, the jury argued, should the lawyer object unless the making of such a forgery were in fact an easy matter?

In desperate cases, desperate men will take desperate chances. The traditional instance where the lawyer, defending a client charged with causing the death of another by administering poisoned cake, met the evidence of the prosecution's experts with the remark: "This is my answer to their testimony!" and calmly ate the balance of the cake, is too familiar to warrant detailed repet.i.tion. The jury retired to the jury-room and the lawyer to his office, where a stomach pump quickly put him out of danger. The jury is supposed to have acquitted.

Such are some of the tricks of the legal trade as practised in its criminal branch. Most of them are unsuccessful and serve only to relieve the gray monotony of the courts. When they achieve their object they add to the interest of the profession and teach the prosecutor a lesson by which, perhaps, he may profit in the future.

CHAPTER IX. What Fosters Crime

To lack of regard for law is mainly due the existence of crime, for a perfect respect for law would involve entire obedience to it. Yet crime continues and from time to time breaks forth to such an extent as to give ground for a popular impression that it is increasing out of proportion to our growth as a nation. Now, while it may be fairly questioned whether there is any actual increase of crime in the United States, and while, on the contrary, observation would seem to show an actual decrease, not only in crimes of violence, but in all major crimes, there nevertheless exists to-day a widespread contempt for the criminal law which, if it has not already stimulated a general increase of criminal activity, is likely to do so in the future. This contempt for the law is founded not only upon actual conditions, but also upon belief in conditions erroneously supposed to exist, which is fostered by current literature and by the sensational press.

Thus, as has already been pointed out, while it is popularly believed that women are almost never convicted of crime, and particularly of homicide, the fact is, at least in New York County, that a much greater proportion of women charged with murder are convicted than of men charged with the same offence. To read the newspapers one would suppose that the mere fact that the defendant was a female instantly paralyzed the minds of the jury and reduced them to a state of imbecility. The inevitable result of this must be to encourage lawlessness among the lower orders of women and to lead them to look upon arrest as a mere formality without ultimate significance. The writer recalls trying for murder a negress who had shot her lover not long after the discharge of a notorious female defendant in a recent spectacular trial in New York. When asked why she had killed him she replied:

"Oh, Nan Patterson did it and got off."

This is not offered as a reflection upon the failure of the jury to reach a verdict in the Patterson case, but as an illuminating ill.u.s.tration of the concrete and immediate effect of all actual or supposed failures of justice.

A belief that the course of criminal justice is slow and uncertain, that the chances are all in favor of the defendant, and that he has but to resort to technicalities to secure not only indefinite delay but generally ultimate freedom, breeds an indifference amounting almost to arrogance among law-breakers, powerful and otherwise, and a painful yet hopeless conviction among honest men that nothing can prevent the wicked from flourishing. Honesty seems no longer even a good policy, and the young business man resorts to sharp practices to get ahead of his unscrupulous compet.i.tor. In some localities the uncertainty and delay attendant upon the execution of the law is the alleged and maybe the actual, cause of the community crime of lynching. Even where the administration of justice is seen at its best many people who have been wronged believe that there is so little likelihood that the offender will after all be punished that the cheapest and easiest course is to let the matter drop. All this gives aid and comfort to the powers of darkness.

The widespread impression as to the uncertainty of the law is not entirely a misapprehension. "We have long since pa.s.sed the period when it is possible to punish an innocent man. We are now struggling with the problem whether it is any longer possible to punish the guilty." It is a melancholy fact that at the present time "penal statutes and procedure tend more to defeat and r.e.t.a.r.d the ends of justice than to protect the rights of the accused."

The subject of criminal-law reform is too extensive to be discussed here even superficially, but historically the explanation of existing conditions is simple enough. The present overgrown state of the criminal law is the direct result of our exaggerated regard for personal liberty, coupled with a wholesale adoption of the technicalities of English law invented when only such technicalities could stand between the minor offender and the barbarous punishments of a bygone age. We forget that the community is composed of individuals, and we tend to disregard its interests for those of any particular individual who happens to be a prisoner at the bar. We revolted from England and incidentally from her system of administering the criminal law, by which the defendant could have no voice at his own trial, where practically every crime was punishable with death, and where only the Crown could produce and examine witnesses. Every one will have to agree that the English system was very harsh and very unfair indeed. To-day it is better than ours, simply because its errors have been systematically and wisely corrected, without diminution in the national respect for law. When we devised our own system we adopted those humane expedients for evading the law which were only justified by the existing penalties attached to convictions for crime,-and then discarded the penalties. We were through with tyrants once and for all. The Crown had always been opposed to the defendant and the Crown was a tyrant. We naturally turned with sympathy towards the prisoner.

We gave him the right of appeal on all matters of law through all the courts of our States, and even into the courts of the United States, while we allowed the People no right of appeal at all. If the prisoner was convicted he could go on and test the case all along the line,-if he was acquitted the People had to rest satisfied. We stopped the mouth of the judge and made it illegal for him to "sum up" the case or discuss the facts to any extent. We clipped the wings of the prosecutor and allowed him less lat.i.tude of expression than an English judge. Then we gazed on the work of our intellects and said it was good. If an ignorant jury acquitted a murderer under the eyes of a gagged and helpless judge, we said that it was all right and that it was better that ninety-nine guilty men should escape than that one innocent man should be convicted. Yes, better for whom? If another murderer, about whose guilt the highest court in one of the States said there was no possible doubt, secured three new trials and was finally acquitted on the fourth, it merely demonstrated how perfectly we safeguarded the rights of the individual.

The result is that we have unnecessarily fettered ourselves, have furnished a mult.i.tude of technical avenues of escape to wrong-doers, and have created a popular contempt for courts of justice, which shows itself in the sentimental and careless verdicts of juries, in a lack of public spirit, and in an indisposition to prosecute wrong-doers. In addition, the impression sought to be conveyed by the yellow press that our judiciary is corrupt and that money can buy anything-even justice-leads the jury in many cases to feel that their presence is merely a formal concession to an archaic procedure and that their oaths have no real significance.

The community, the "People," have a sufficiently hard task to secure justice at any criminal trial. On the one hand is the abstract proposition that the law has been violated, on the other sits a human being, ofttimes contrite, always an object of pity. He is presumed innocent, he is to be given the benefit of every reasonable doubt. He has the right to make his own powerful appeal to the jury and to have the services of the best lawyer he can secure to sway their emotions and their sympathies. If the prosecutor resorts to eloquence he is stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty defendant be acquitted, not the trampled ideal of justice, but the vision of a liberated prisoner rejoicing in his freedom hovers in the talesman's dreams.

So far so good; we can afford to stand by a system which in the long run has served us fairly well. But an occasional evil, an evil which when it occurs is productive of great harm and serves to give color to the popular opinion of criminal law, begins only when the lawyers have had their opportunity for elocution. At the conclusion of the charge the defendant's attorney proceeds to put the judge through what is familiarly known as "a course of sprouts." He makes twenty or thirty "requests to charge the jury" on the most abstract propositions of law which his fertile mind can devise,-relevant or irrelevant, applicable or inapplicable to the facts,-and the judge is compelled to decide from the bench, without opportunity for reflection, questions which the attorney has labored upon, perchance, for weeks. If he guesses wrong, the lawyer "excepts" and the case may be reversed on appeal. This is not a test of the defendant's guilt or innocence, but a test of the abstract learning and quickness of the presiding judge.

It is generally believed that appellate courts are p.r.o.ne to reverse criminal cases on purely technical grounds. Whether this belief be well founded or ill, its wide acceptance as fact is fertile in bringing the law into disrepute.* Justice to be effective must be not only sure but swift. An "iron hand" cannot always compensate for a "leaden heel".

*Cf. "Criminal Law Reform," G.W. Alger, "The Outlook," June, 1907. Also article having same t.i.tle in "Moral Overstrain," by same author.

See also, by Hon. C.F. Amidon, "The Quest for Error and the doing of Justice," 40 American Law Rev. 681, and article on same subject in "The Outlook" for June, 1906.

It is probably true that in some of the States such a tendency exists and may result in making the administration of justice a laughing stock, but it is far from being so in States of the character of New York and Ma.s.sachusetts. The Appellate Division, First Department, and Court of Appeals in New York are distinctly opposed to reversing criminal cases on technical grounds and are p.r.o.ne to disregard trivial error where the guilt of the defendant is clear. The writer can recall no recent criminal case where the district attorney's office has felt aggrieved at the action of the higher courts, and on the contrary believes that their action is generally based on broad principles of public policy and common-sense.

During the year 1905 the district attorney of New York County defended forty-seven appeals from convictions in criminal cases in the Appellate Division. Of these convictions only three were reversed. He defended eighteen in the Court of Appeals, of which only two were reversed. One of the writer's a.s.sociates computed that he had secured, during a four years' term of office, twenty-nine convictions in which appeals had been taken. Of these but two were reversed, one of them immediately resulting in the defendant's re-conviction for the same crime. The other is still pending and the defendant awaiting his trial. Certainly there is little in the actual figures to give color to the impression that the criminal profits by mere technicalities on appeal,-at least in New York State.

In nine cases out of ten the reversal of a conviction in a criminal case is due to the carelessness or inefficiency of the prosecuting officer or trial judge and not to any inadequacy in our methods of procedure. Yet the tenth case, the case where the criminal does beat the law by a technicality, does more harm than can easily be estimated. That is the one case everybody knows about, the one the papers descant upon, the one that cheers the heart of the grafter and every criminal who can afford to pay a lawyer.

Yet the evil influence of the reversal of a conviction on appeal, however much it is to be deprecated, is as nothing compared with a deliberate acquittal of a guilty defendant by a reckless, sentimental, or lawless jury. Few can appreciate as does a prosecutor the actual, practical and immediate effect of such a spectacle upon those who witness it.

Two men were seen to enter an empty dwelling-house in the dead of night. The alarm was given by a watchman near by, and a young police officer, who had been but seven months on the force, bravely entered the black and deserted building, searched it from roof to cellar, and found the marauders locked in one of the rooms. He called upon them to open, received no reply, yet without hesitation and without knowing what the consequences to himself might be, smashed in the door and apprehended the two men. One was found with a large bundle of skeleton keys in his pocket and several candles, while a partially consumed candle lay upon the floor. In the police court they pleaded guilty to a charge of burglary, and were promptly indicted by the grand jury.

At the trial they claimed to have gone into the house to sleep, said they had found the bunch of keys on the stairs, denied having the candles at all or that they were in a room on the top story, and a.s.serted that they were in the entrance hall when arrested.

The story told by the defendants was so utterly ridiculous that one of the two could not control a grin while giving his version of it on the witness stand. The writer, who prosecuted the case, regarded the trial as a mere formality and hardly felt that it was necessary to sum up the evidence at all.

Imagine his surprise when an intelligent-looking jury acquitted both the defendants after practically no deliberation. Both had offered to plead guilty to a slightly lower degree of crime before the case was moved for trial.

These two defendants, who were neither insane nor degenerates, consorted with others in Bowery hotels and saloons,-incubators of crime. What effect could such a performance have upon them and their friends save to inculcate a belief that they were licensed to commit as many burglaries as they chose? They had a practical demonstration that the law was "no good" and the system a failure. If they could beat a case in which they had already pleaded guilty, what could they not do where the evidence was less obvious? They were henceforth immune. Who shall say how many embryonic law-breakers took courage at the story and started upon an experimental attempt at crime?

The news of such an acquittal must instantly have been carried to the Tombs, where every other guilty prisoner took heart and prepared anew his defence. Those about to plead guilty and throw themselves upon the mercy of the court abandoned their honest purpose and devised some perjury instead. Criminals almost persuaded that honesty was the best policy changed their minds. The barometer of crime swung its needle from "stormy" to "fair."

But apart from the law-breakers consider the effect of such a miscarriage of justice upon a young, honest and zealous officer. First, all his good work, his bravery, his conscientious effort at safeguarding the sleeping public had been disregarded, tossed aside with a sneer, and had gone for naught. The jury had stamped his story as a lie and stigmatized him, by their action, as a perjurer. They had chosen two professional criminals as better men. His whole conduct of the case instead of being commended as meritorious had resulted in a solemn public declaration that he was not worthy of credence and that he had attempted wilfully to railroad to State's prison two innocent men. In other words, that he ought to be there himself. What was the use of trying to do good work any longer? He might just as well loiter in an area on a barrel and smoke a furtive cigar when he ought to be "on post." Perhaps he might better "stand in" with those who would inevitably be preferred to him by a jury of their peers.

What must have been the effect on the court officers, the witnesses, the defendants out on bail, the complainants, the spectators? That the whole business was nonsense and rot! That the jury system was ridiculous. That the jurymen were either crooks or fools. That the only people who were not insulted and sneered at were the lawbreakers themselves. That if two such rogues were to be set free all the other jailbirds might as well be let go. That an honest man could whistle for his justice and might better straightway put on his hat and go home. That the only way to punish a criminal was to punish him yourself-kill him if you got the chance or get the crowd to lynch him. That if a thief stole from you the shrewdest thing to do was to induce him as a set-off to give you the proceeds of his next thieving. That it was humiliating to live in a town where a self-confessed rascal could snap his fingers at the law and go unwhipped of justice.

The jury's action must have been due either to a wilful disregard of their oath or an entire misconception of it. a.s.suming that the jury deliberately declined to obey the law, the whole twelve elected to become, and thereby did become, lawbreakers. They disqualified themselves forever as talesmen. No prosecutor in his senses would move a case before a jury which numbered any one of them. They had arraigned themselves upon the side, and under the standard, of crime. They became accessories after the fact. If on the other hand they misconceived the purpose for which they were there the performance was a shocking example of what is possible under present conditions.

Just as there are three general cla.s.ses of wrongs, so there are three general and varyingly effective forms of restraint against their perpetration. First there is the moral control exerted by what is ordinarily called conscience, secondly there is the restraint which arises out of the apprehension that the commission of a tort will be followed by a judgment for damages in a civil court, and lastly there is the restraint imposed by the criminal law. All these play their part, separately or in conjunction. For some men conscience is a sufficient barrier to crime or to those acts which, while equally reprehensible, are not technically criminal; for others the possibility of pecuniary loss is enough to keep them in the straight and narrow way; but for a large proportion of the community the fear of criminal prosecution, with implied disgrace and ignominy, forfeiture of citizenship, and confinement in a common jail is about the only conclusive reason for doing unto others as they would the others should do unto them. Were the criminal law done away with in our present state of civilization, religion, ethics and civil procedure would be absolutely inefficacious to prevent anarchy. It is as imperative to the ordinary citizen to know that if he steals he will be locked up as it is for the child to know that if he puts his hand into the fire it will be burned. The acquittal of every thief breeds another, and the unpunished murder is an incentive for a dozen similar homicides.

Crimes are either deliberate or the result of accident or impulse. The last cla.s.s may rise to a high degree of enormity, such as manslaughter, but these crimes are rarely possible of restraint. The perpetrator does not stop to consider, even if he be sober enough to think at all, whether his act be moral, whether it will entail any civil liability, or what will be its consequences, if it be a crime. So far as such acts are concerned those who commit them are hardly criminals in the ordinary sense, and no influence in the world is able to prevent them.

The question is how far these different kinds of restraint operate upon the community as a whole in the prevention of deliberate crime. Clearly the fear of pecuniary loss through actions brought to judgment in the civil courts is practically nil. Most persons who set out to commit crime have no bank account, the absence of one being generally what leads them into a criminal career.

The writer has no intention of attempting to discuss or estimate the efficacy of religion or ethics as restraining influences. A certain limited proportion of the community would not commit crime under any circ.u.mstances. It is enough for them that the act is forbidden by the State even if it be not really wrong from their own personal point of view. Side by side with these very good people are a very large number who wear just as fashionable clothing, have the same friends, attend the same churches, but who would commit almost any crime so long as they were sure of not being caught. If we had no criminal law we should soon discover who were the hypocrites.

But for an overwhelming majority of the community something more practical than either religion, ethics, or philosophy is necessary to keep them in order. They must be convinced that the transgressor will surely be punished,-not some time, not next year or the year after, but now. Not, moreover, that his way will be merely hard; but that he will be put in stripes and made to break stones.