Criminal Law in Action: I. The Lawyers

I

THOUGH the state’s attorney opens a criminal trial, the defendant’s counsel determines its character. For that reason, I consider first the counsel for the defense.

A young attorney freshly out of law school was defending a colored man accused of burglary. The state offered evidence to the effect that a policeman, seeing dim figures in a clothing store at night, had entered the broken rear door, had pursued the intruders out of the front door, across a bridge, and on to a slowly moving freight train, where he had succeeded in arresting one of them; that old clothes of a size to fit the arrested man had been found on the floor of the store, and that, when captured, he was wearing new clothes, with price tags still on them, which had been taken from the store. The state then rested its case. The situation looked hopeless for the defendant. The evidence was so clear that even his attorney could not pretend to the slightest doubt of his guilt. Conviction was clearly a matter of routine.

It happened, however, that not one word had appeared in the evidence to connect the defendant with the transaction. The Negro who had been arrested had committed the burglary — that was quite indisputable; and everyone knew by inference that the colored defendant was the man who had been arrested. But no witness had said, directly or indirectly, that the defendant was the arrested man. In the absence of such evidence, no conviction could stand. Obviously it would be improper to convict the defendant of burglary merely because the crime had been committed by some person whom the police had arrested, without any proof that he was that person.

The prosecuting attorney was oblivious of his failure to prove the case. The defense attorney, realizing the situation, was in a quandary as to his proper course of action. He could let the case go to the jury without putting his client on the witness stand, and without saying anything about the lack of evidence. The jury would undoubtedly convict. Thereafter the defendant, could demand a new trial, on the ground that the evidence in the first trial had been insufficient to warrant conviction. The stenographic record of testimony would show conclusively that no one had pointed out the defendant as the burglar, and it would then be too late to add further testimony. The conviction would undoubtedly be set aside and a new trial ordered.

Perhaps nothing would be gained for the defense by handling the situation in this way. The state undoubtedly had the necessary evidence and had merely forgotten to introduce it. But a new trial would mean delay, and, during the interval, something advantageous to the defendant might occur. The arresting policeman might die, in which event the state would possibly be unable to prove its case. Certainly delay might profit the defendant, and it could not prejudice him.

The attorney’s alternative course was to point out at once the lack of evidence, and to ask that the jury be ordered to acquit the defendant on that ground. The state would thereupon ask leave to reopen its case lor the purpose of putting in its evidence. The judge would of course give the permission, the evidence would be produced, and the jury would bring in a verdict of guilty which could not be successfully attacked. After some cogitation, the young lawyer adopted this course, and his client was promptly and properly convicted.

Many years later that attorney related this experience to an older lawyer whose remarkable success in the defense of persons accused of crime had brought him considerable fame, and — what is more notable — whose reputation for probity was unimpeachable. The old lawyer’s reaction was vigorous. ‘Do you mean to tell me,’ he said, ‘that you deliberately permitted a valid conviction when you could have got a conviction that would have been reversed on appeal? That is outrageous. You should have been disbarred for breach of duty to a client!’

This, I think, is typical of the attitude of even the best criminal lawyers. Indeed, it is the attitude which a criminal lawyer must assume if he expects any income from his practice. The attorney who can save only the innocent from punishment will have few clients. Even an innocent man feels safer in the hands of a lawyer skillful enough to protect the guilty as well. But when I say that a criminal lawyer’s prosperity depends on success in saving the guilty as well as the innocent, I do not say that he must necessarily be dishonest. The most successful criminal lawyer I know is also one of the most honorable of men. It is a question of philosophy as to the purpose of legal rules.

No man who disputes his guilt can properly be punished without a fair trial and an unprejudiced determination of the facts. He is entitled to an unbiased jury, to a searching examination of the truth of the state’s evidence, to full presentation of everything which would tend to prove his innocence, to proper observation of those rules of evidence whose object is to prevent verdicts based upon emotion rather than upon truth. To this end he is entitled to the aid of a trained lawyer, and the law gives him the right to have his case reviewed by an appellate court, so that the fairness of his conviction may be finally established. That his own attorney may believe him guilty does not derogate from these rights. A lawyer, in this country, has the privilege of refusing to represent a client whom he believes to be guilty, but he cannot constitute himself judge and jury. Every man who desires it is entitled to trial according to the procedure established by law, and it is eminently proper, therefore, for any lawyer, whatever he thinks of his client’s guilt, to see that he gets what he is entitled to.

Whether the lawyer should go so far as the law and the judges permit in evading prompt and unprejudiced determination of the truth is another matter. Is he obligated to see that society is protected as well as his client ? Or should he frankly serve to the limits of the law only one master, his client? In the case I have cited, it was here that the idealist, fresh from law school, parted company with tiic experienced practitioner. The one sought a fair trial, an assurance that his client should not be convicted without a determination by the jury of every necessary fact. The other would have so guided events as to prevent conviction if prevention were ‘legally’ possible. Each was honest, each adhered to what the law, as interpreted by the judges, permits; but their ideas of duty differed. In theory, every lawyer is an officer of the court, bound to strive only for justice. But self-interest rationalizes the concept of justice, not as truth, but as mere accurate observation of rule. ‘Justice’ then becomes ‘justice-according-to-law,’ and the lawyer’s duty to the court is thereby reconciled with the fullest protection of his client that the rules allow.

II

From this assumption the criminal lawyer is likely to pass by gradual stages to that indeterminate point where nominal dishonesty is condoned. Thus, I have heard it seriously and insistently asserted that anything the judge will tolerate in the way of courtroom tactics is ‘legally’ fair and proper, the attorney being ‘justified’ in relying on the judge’s understanding of the law; that a jury’s verdict of acquittal (but not of conviction) is necessarily ‘justice,’ regardless of the facts of the case, so long as it is not procured by fraud; and that, so long as there is no deceit, a strong emotional appeal to the jury, or a smothering of awkward facts by clever diversions or claims of immateriality, is not only permissible but obligatory.

Obviously, all criminal lawyers cannot be painted in the same colors, but I believe it fair to say that the great majority of those who specialize in the defense of persons accused of crime do profess essentially this philosophy.

When John Ellifor was put on trial for driving while intoxicated, his effective defense was not that he was not drunk, — that fact was tacitly though not openly admitted, — but that he was a poor man, and that the wealthy deputy sheriff who made the arrest had been unduly rough. His attorney began his preliminary statement to the jury with, ‘This is a persecution — I should say, a prosecution — of Mr. Ellifor, who drives a dirt truck in an effort to earn a modest living for his wife and three children whom you see right there.’ The prosecuting attorney objected, and the judge mildly informed the speaker that what he had said was improper; but the emotional coloring of the facts had already been conveyed to the jury, and that was all the defense lawyer desired.

During the trial, the evidence adduced for the defense, mostly by crossexamination, was not of the accused’s sobriety, but of his poverty, of the wealth of the state’s witnesses, and of the manner of the arrest. The state’s attorney, who was not a capable fighter, protested feebly, and the judge said nothing. Ellifor was acquitted by the jury, who knew he was guilty but did not want him punished. Neither the defense attorney’s opening statement nor the matters he brought out in evidence were permissible under the law. But what he did he did openly, the judge let him get away with it, and he considered that he had acted quite within the bounds of propriety. He had saved his client despite the fact of his legal guilt.

Many lawyers undoubtedly deprecate such methods as ‘ sharp practices,’ but there is little evidence of real disapproval. The attorney who secured Ellifor’s acquittal is held in high respect by his local confreres of the bar. In another case, the supreme court of the state pointed out, as incident to an appeal, that the defendant’s attorney had tacitly and consciously misled the jury as to the source of certain written evidence he had introduced; yet neither the judges nor his fellow lawyers ever publicly reprimanded him for his action, and he is known as a leader of his bar.

III

This sense of obligation to use legal rules to protect one’s client against conviction, despite the truth, is often the mark which distinguishes the American criminal lawyer from his British cousin. To illustrate the sharp contrast, let me cite an incident from an English trial. The defendant, wife of a London policeman, was charged with obtaining money from another woman under false pretenses. The total sum was close to a thousand pounds, secured at different times, under pretense that the borrower’s mother, and then her brother, had died and left fortunes which were temporarily tied up in the probate court. The indictment charged the obtaining of various sums at different dates. At the defendant’s request the Crown elected to rely on the particular instance of £10 6s. obtained on August 14. The prosecution put both mother and brother on the witness stand to testify that they were still alive and possessed no fortune to leave. When the widow who had lent the money was put on the stand, she was excited and flustered. Her little red account book shook in her hands as she fluttered its leaves. She found in it entries of sums lent to the defendant on August 10 and on August 17, but she could not find the entry of August 14, though she was sure it was there.

In an American court, matters would have been brought to an impasse by this development. Had the state attempted to change its case and rely upon either of the other dates, an American criminal lawyer would have alleged ‘surprise,’ and would have insisted upon a continuance to enable him to prepare to meet the altered case. But the English barrister representing the defense refused to quibble. ‘We shall not insist upon the precise date,’ he said. ‘We contend that no money was obtained by false pretenses at any time.’ The case proceeded, and the defendant, who was obviously guilty, was convicted.

Would the delay which the American practitioner would have demanded have profited his client in the long run? In the case of the People v. Elmer J. Cousino, the defendant was charged in the information with having embezzled $5000, given to him by the prosecuting witness for the purchase of a one-eighth interest in a patent right. During the trial the prosecuting witness testified that he had given Cousino the $5000 to purchase a oneeighth interest in a certain ‘contract’ right growing out of a patent. Cousino’s attorney at once noted this discrepancy and asked the court to dismiss the proceedings because of the ‘variance.’ Instead, the court permitted the prosecutor to change the wording of the accusation to ‘contract right.’ Cousino’s attorney then asked for an adjournment on the ground that he was ‘ surprised ’ by the change. He made this assertion despite the fact that, he, during his own term as prosecuting attorney, had learned all the facts from the victim and, as defendant’s attorney, had been present and had crossexamined the prosecuting witness at two preliminary hearings, at both of which it had appeared that a contract right and not a patent right had been concerned. Nevertheless, the judge granted the request, adjourned the proceedings, and discharged the jury. That was on March 9, 1928. No further proceedings were ever held. In December 1931, the prosecuting witness died, and, for lack of his testimony, the prosecution of Cousino had to be dismissed.

Had the barrister in the English case asked for delay because of the variance in the dates, he might have staved off further proceedings, as Cousino’s attorney did. At least, at the second trial he would have had the advantage of knowing in advance just what the Crown’s evidence would be and how best to handle it. I believe that the average American criminal lawyer would have felt himself derelict in his honest duty to his client had he let that opportunity go by.

IV

This philosophy of success, regardless of the facts, is expounded and taught in the frankest and most open way. Mr. Francis L. Wellman, in his book, Day in Court, gives this advice to young lawyers concerning the selection of jurors: ’If for the plaintiff, an advocate should remember that he must win the twelve; if for the defendant, he needs only one. If he is defending in a criminal case, he needs all kinds of men on his jury, old and young, rich and poor, intelligent and stupid, a German, an Irishman, a Jew, a Southerner, and a Yankee. He should mix them up all he can and let them fight it out among themselves and agree if they can.’ Again, in The Art of Cross-Examination, he points out, not that truth may be established, but that ‘the entire effect of the testimony of an adverse witness can sometimes be destroyed by a pleasant little passageat-arms in which he is finally held up to ridicule before the jury, and all that he has previously said against you disappears in the laugh that accompanies him from the witness box.’ Not one word in the context suggests merely protecting the innocent; it has only to do with winning the case.

The frequency and the impunity with which American criminal lawyers go beyond even this code of ‘technical tactics’ are appalling. After the Capone conviction in the federal court in Chicago, Judge Wilkerson declared:—

‘It clearly appears from the facts and circumstances before the Court in this proceeding [against Capone’s bodyguard, D’Andrea, for contempt of court] and at the trial of United States versus Capone, that this respondent’s activities were linked with those of an organized body of men whose outlaw camp is at the Lexington Hotel. Of this body, defendant Capone was chief. To this camp at the Lexington were summoned witnesses who testified to the defendant Capone’s losses on horse races. To that camp were summoned counsel for conferences. And from that camp, under what coercive influences we can only conjecture from what transpired in court, came that array of shocking perjury with which the court was confronted during the closing days of the trial. We had here the spectacle of witness after witness testifying in a way which was psychologically impossible, pretending to remember things which in the very nature of the human mind the witness could not have remembered if he had forgotten the things which he pretended to have forgotten. It was perjury on the face of it.’

Judge Wilkerson did not explicitly say that the lawyers for the defense connived at that perjury, but. his whole statement intimates as much; the defense evidence ‘was perjury on the face of it ’ — apparent as such to the defendant’s lawyers as well as to the judge.

A flagrant instance of perjury acquiesced in by the defendant’s lawyer — if not actually instigated and arranged by him — was revealed in the prosecution of one Hymie Martin for the murder in Cleveland of William Potter on February 3, 1931.¹ Martin was traced to Pittsburgh, and the Ohio authorities sought to extradite him. A Pittsburgh lawyer named Rosenberg attempted Martin’s release on a writ of habeas corpus. At the hearing on this writ, Rosenberg produced witnesses to testify that Martin was in Pittsburgh on the night of the murder. Despite the testimony of these witnesses that Martin came into a Pittsburgh store and paid them a bill on the night of February 3, the court refused to grant the writ. Martin was then taken to Cleveland. At the trial his lawyer, the same Rosenberg, called none of the Pittsburgh witnesses whom he had used at the habeas corpus hearing, but produced other witnesses who swore on oath that Martin was in Akron, Ohio, on the night of February 3. Since Rosenberg did not explain to the jury this amazing contradiction in alibis, the jury decided that Martin was in truth in Cleveland, and convicted him of the murder.

But Attorney Rosenberg was not convicted of anything. I cannot find that either the court or his fellow members of the bar, either in Pittsburgh or in Cleveland, made any attempt to exclude him from the practice of the law, or to rebuke him for his vicious attitude toward criminal justice. Capone’s attorneys likewise remain uncondemned for the perjury which the trial judge virtually says they connived at. After Legs Diamond’s acquittal in up-state New York on the strength of an ‘alibi,’ prosecution of his witnesses was seriously contemplated, on the ground that their testimony was so obviously perjured that its falsity could not be doubted. Yet no group of reputable lawyers seems to have thought of investigating the possible complicity, or at least the possible gross neglect of duty to society, of Diamond’s attorneys.

In the Seabury Report on conditions in the magistrates’ courts of New York City, appalling improprieties and dishonesties of both magistrates and lawyers are revealed. Several magistrates are shown as having come to grief, but it is noteworthy how relatively little action was taken against the lawyers who induced, connived at, and profited by the magistrates’ derelictions.

So commonplace is the expectation of perjury in criminal cases that Deputy Sheriff Nardi advised Tony Coletto to hire a lawyer and fix up an alibi.

‘What do you mean, “alibi”?’ asked Tony.

‘A story — telling lies,’ explained the Deputy Sheriff.²

V

On occasions the bar has taken action to purge itself of such lawyers. In some instances the action has been effective and the dishonest lawyer has been disbarred. But in other cases the action taken has not been so vigorously condemnatory of the offense as to strengthen public confidence in the good faith of lawyers. In the proceedings of the State Bar of California against E. S. Green, it appeared that Green, while acting as attorney for a client, had gone on the witness stand, himself and had consciously sworn to what he knew was an untruth. Had he been prosecuted criminally for perjury, and convicted, he could have been sent to the penitentiary for from one to fourteen years, and during that time he would have been deprived of the privilege of holding any public office — such as that of an officer of the court, which a lawyer is. In this proceeding for disbarment, however, the supreme court of California stigmatized his conduct no more severely than to say that a lawyer who deliberately obstructs justice by giving false testimony under oath should be ‘suspended from the practice of law for a period of one year.’

So experienced a practitioner as District Attorney Banton of New York County begins a written article with the declaration: ‘It is notorious that, while perjury is on the increase, convictions therefor are not numerous.’³ They are not numerous because convictions for perjury are peculiarly difficult to obtain, and frequent prosecutions are not practicable. No law, as law, can ever stop perjury. The only feasible way of preventing it is by reforming the attitude of lawyers. In this, as in so many other connections, the efficiency of law enforcement depends, not on the law, but upon the men who administer it. I am not referring merely to the frequency of perjury and its insufficiently vigorous repudiation, but to the whole philosophy of the criminal lawyer’s duty to his client.

A change in the attitude of criminal lawyers themselves is too much to hope for, so long as their financial success, their very continuance in their profession, depend upon their ability to protect clients from conviction. It was incalculably valuable advertising for Mrs. Winnie Judd’s attorney that he could say, after her conviction by the jury: ‘This fight has just begun. Ninety-one persons, including Mrs. Judd, have placed their lives in my care during my career. Ninety-one of them are still alive to-night.’ Clarence Darrow’s failure to get even a disagreement from the racially heterogeneous jury in the Massie case would cost him thousands of dollars in prospective fees had he not already virtually retired from practice. The newspapers could speak of Mrs. Ruth Snyder’s lawyers as ‘two of the ablest trial lawyers in Queens County — one of them has never lost a murder case in which he has been counsel, and he has been in many — he and his partner claim a record of eleven successive acquittals in murder cases.’ Gray’s lawyer was damned by the faint praise that he looked impressive but had no reputation for success.

The more fortunate criminal lawyers can build up this needed reputation without dishonesty, through sheer skill, a gift of persuasive oratory, or mere good luck, in the type of case that comes to them. Their less able colleagues are too often forced by the press of competition to employ dishonorable methods. Between these extremes lies a wide opportunity for conduct whose ethical character is disputable.

Just how a change in the psychology of criminal lawyers can be brought about, I do not know. It. may dev elop through the influence of that part of the bar upon whom the necessity for success in trial practice is less oppressive. It may come through the refusal of the judiciary to countenance any practices which are not fair to both sides and which do not truly conduce to quick verdicts, based on the pertinent facts. It may come, like certain other reforms, through pressure from outside the legal profession. But change in the attitude of defense attorneys must be brought about, somehow, if criminal trials are to approximate their ideal purpose of convicting the really guilty and acquitting only the truly innocent.

VI

Though defense counsel determines the trial as a contest or an investigation, the state’s attorney is a dominant factor in the whole process of prosecution.

On the state’s attorney, in this country, rests the obligation of bringing guilty men to justice, once they have been arrested. In England, prosecution is in the hands of the person injured, who may hire his own attorney, or is the duty of the police; only in rare cases of exceptional importance is it taken over by the Director of Public Prosecutions. In this country, on the contrary, private citizens are not allowed to prosecute criminal cases, and even the police lose all control over a case the moment an accused person is arrested. Under the law, they must bring him immediately before a magistrate, and from then on the power and responsibility of the police are at an end. They can neither save the accused from prosecution nor see that he is prosecuted. The responsibility and the result are in the hands of the state’s attorney.

The police, in their own job of bringing criminals into court, are far from efficient, as their own reports demonstrate. The standard form of report lists both ‘crimes known to the police’ and ‘crimes cleared by arrest,’ the latter covering the number of cases in which some person has been charged with a definite crime. The Detroit record for 1931 is not worse than that of other cities, yet it shows a startling failure to discover the perpetrators of crime. The report reads as follows: —

By their own estimate of their accomplishment, then, it appears that the police brought suspects before the courts in only one case out of five — an efficiency index of 20 per cent.

But that same record, in another column, points to serious inefficiency of the courts in dealing with those few whom the police do accuse.

Here, if all the men arrested were guilty, we have an apparent court efficiency of 75 per cent. And this is notably better than other courts have shown. In Chicago, according to the Illinois Crime Survey, out of 12,543 persons actually arrested and charged with major crime, only 2449 were eventually convicted. Cleveland court proceedings resulted in something over 50 per cent of convictions in 1926 and 63 per cent in 1928. But New York’s court, efficiency is rated by the New York Crime Commission at only 25 per cent; the figures show 4004 convictions out of 19,084 persons accused of felony. In London, during the same time, 10,732 persons were charged and 9827 were convicted.

But, since it is absurd to assume that every man accused is guilty, we have in truth no measure whatsoever of court efficiency. Not every man whom the courts refuse to convict represents a miscarriage of justice; neither are all those who go free really innocent of the charge against them. We may be sure, however, that the courts often fail to convict those who merit conviction; and to the extent that this is true, be it in greater or less degree, the state’s attorney is usually responsible. This is not always so, of course. Of Detroit’s 90 who escaped conviction for carrying concealed weapons, at least 36 and probably more were freed, not at all because they were innocent, but solely because of the manner in which their crimes were discovered. This was no fault of the prosecuting attorney, but a peculiarity of the judge-made law.

VII

Other cases are more dubious. John Ryan’s gambling joint was raided by the police in the early morning of January 4. They gathered in 150 men and boys, all of whom were brought to trial that same day on a charge of frequenting a gambling house. All pleaded guilty, were fined $20 each, and, the newspapers said, Ryan paid the fines. Six other men, however, were charged by the police with the more serious crime of‘maintaining and operating’ a gambling establishment. Two police officers, Sims and Mutter, not yet long enough on the force to have become known to gambling-house lookouts, had got into Ryan’s place ahead of the raid, in the guise of patrons. They were prepared to testify that Carl Smith, Forrest Smith, Lewis Sanderson, Jack Brown, and two others had actively participated in the operation of the place. These men all had previous police records under those names.

Although the state statutes make it ’the duty of all courts and public officers ... to bring [such matters] to a final determination without delay,’ and require magistrates to order accused persons brought before them ‘immediately,’ and to hold preliminary examinations within ten days, the cases of these six were not brought up until January 18. At that proceeding, though the record of the testimony does not explain it, two of the men were discharged and further proceedings ordered against the other four. These four were not held in custody, however. The examining magistrate released them on their promises to appear when wanted; no cash bail, nor other security, was required. Naturally, they were in no hurry to have their own cases brought to trial.

So the matter stood for five months longer. Not until June 14 were the cases set for trial. By that time Officer Sims had left the force and disappeared, and Mutter had participated in so many more gambling raids that his memory of the particular affair would have been made ridiculous on cross-examination. The state’s chance for conviction was gone, and everybody knew it. So the charges against Carl Smith, Brown, and Sanderson were dropped (as other charges against them had been dropped at other times), and Forrest Smith pleaded guilty, with the understanding that he would be given a light fine instead of imprisonment.

The police had never asked for delay in these cases, nor did they desire it. Possibly the prosecuting attorney himself could not have handled matters otherwise and was scarcely to blame. The county jail at that time was horribly overcrowded; these four men were out on bail, and he disposed of the jail cases first. But, from any point of view, it must be recognized that here was an instance in which guilty men evaded punishment because of inefficient court procedure.

The case of Mike-the-Pike Shinkman, as reported by the Cleveland Association for Criminal Justice, was an indubitable example of prosecuting incompetence. Shinkman had been arrested and charged with murder. At the preliminary hearing, where the state’s case was handled by an assistant prosecuting attorney, the evidence was so ineffectively presented that Tittle was proven except the inadequacy and incompetence of the prosecution.’ On motion of the defense counsel, the magistrate reduced the charge against Shinkman to manslaughter, ordered a continuance, and declared that unless stronger evidence were produced at the next hearing he would discharge Shinkman altogether.

Then the Association for Criminal Justice took up the matter and insisted that the case be handled properly. At the next hearing the prosecuting attorney himself came into action, and representatives of the press were on hand to see how he behaved. This time the evidence was presented in so different a fashion that the magistrate ordered Shinkman held for grand jury proceedings on the murder charge. The grand jury indicted him and a trial jury eventually convicted him of murder. Yet, had not an outside agency become interested in the case, Shinkman would probably have evaded justice because of an assistant prosecuting attorney’s incompetence.

VIII

In Chicago, 5G per cent of the persons charged with felony arc freed at the preliminary hearing. In the words of the Illinois Crime Survey: —

Either the police have been arresting too many innocent persons or more than half of the work of the police in enforcing the law in serious crimes is thus wiped out in this stage of procedure. . . . The assistantstate’s attorneys in charge in these preliminary hearings are usually drawn from the lower ranges of the salary grades in the state’s attorney’s office. Their salaries run from two to three hundred dollars a month. They are, therefore, the less experienced and confident members of the staff. Oftentimes, especially in the outlying branches of the court, they are selected with reference to their own political bailiwicks. . . . An examination [of some of their work] indicates that some of the assistants scarcely rise above the literacy grade. . . . About the only concern that some of them seem to have in the cases which are passing in review is to get the name of the defendant, the number of the case, and the charge on the form which is lying on the desk before him. He permits the judge to put most of the questions. He conducts very few examinations. Only occasionally does he address a question to the witness, and one is never able to feel that the real proceeding which is taking place is an inquisition of those accused of crime by the state so that the presiding judge may decide whether there is ‘probable cause.’ The state’s attorney’s position seems to be that of a clerical officer, who is merely keeping track of cases which his office may subsequently be required to prosecute. He shows no familiarity with the cases, in fact he is probably entirely ignorant of these cases until they are brought before him in this manner, and even then he shows no disposition to overcome this initial handicap of acquainting himself with the facts of the case. . . .

It is not too much to say, in summing up what we have just outlined, that the presence of the assistant state’s attorney in the preliminary hearing is merely perfunctory, and in actual fact there is no prosecution worthy of the name in the preliminary hearing at all.

In New York, during the recent investigation of the magistracy, John C. Weston, at one time assistant in the district attorney’s office, admitted on the witness stand that he had received thousands of dollars during his tenure of office for deliberately dropping or blocking prosecution of guilty persons. Asa Keyes of Los Angeles was sent to the penitentiary for accepting bribes to drop felony cases while he was prosecuting attorney.

Nor is incompetence, indifference, or dishonesty of state’s attorneys confined to the larger cities. Every practising attorney can point to instances in his own county, urban or rural, where men who should have been convicted escaped through the ineffectiveness of the county’s prosecutor.

A state’s attorney who is actuated by political motives, who is lazy or indifferent or dishonest, can ruin the efforts of any police force, however efficient its work. The function of the prosecutor is, in theory, not to advocate conviction and punishment, not to be partisan, but to protect the innocent while bringing the guilty to justice by presenting all the facts to jury and judge. His power, however, permits him, if he will, to cherish the guilty and oppress the innocent. He cannot proceed if suspected criminals are not brought into court, and he has no evidence save what is brought to him. To that extent the scope of his own activity depends upon and follows the efforts of others.

But concerning those who are arrested, and with the evidence that is brought to him, he can, in practice, do as he wishes. He may act vigorously, promptly, and wisely, or he may procrastinate indefinitely. He may prosecute when he believes there is no guilt, or ‘nolle’ a water-tight case against a political patron. He may make the best of what evidence he has, or deliberately so mishandle it as to permit an acquittal. He may save himself with both the voters and the politicians by getting convictions — which he and his backers know will be upset on appeal. Once the police have done their work, he is a highly important factor in the law’s proceedings, second only to the trial judge. In short, the will and the capacity of the state’s attorney mark the upper limit of the law’s efficiency.

(Next month Professor Waite will conclude his discussion of 'Criminal Low in Action’ with an article on the judges)