FOOTNOTES: (continued 2)

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:

Year Convictions Pleas Acquittals by Jury and Direction Discharged on Own Recognizance Bail Discharged Indictment Dismissed Forfeitures Declared Insane Sentenced on another Indictment Superseded Indictment Dismissed by Grand Jury Discharged on Writ Discharged (Comp.) Total

1900 424 1,672 733 366 185 76 74 13 60 19 1,093 4 141 4,860

1901 551 1,838 688 434 192 165 113 8 77 36 1,045 4 116 5,267

1902 419 2,009 698 351 457 257 97 5 67 62 863 2 73 5,360

1903 485 1,918 615 321 299 92 62 12 65 40 807 7 86 4,809

1904 495 1,971 700 363 272 50 63 8 63 37 898 20 99 5,039

1905 489 2,001 602 352 207 57 51 8 82 38 1,035 5 93 5,020

1906 464 2,079 560 428 344 99 47 11 137 45 980 2 69 5,265

1907 582 2,266 656 493 202 100 45 12 179 38 1,529 4 131 6,237

Total 3,909 15,754 5,252 3,108 2,158 896 552 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 Disposed of Total Convictions Ratio

1900 3,620 2,096 .5790

1901 4,096 2,389 .5839

1902 4,410 2,528 .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:

Year Convictions by Verdict Pleas of Guilty Acquittals by Verdict Acquittals Directed Discharges Minor Dispositions

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

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 Convictions by Verdict Number Acquittals by Verdict Convictions Per Cent Acquittals Per Cent

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.