Criminal Law in Action: Ii. The Judges

I

THE trial judge is the most important figure, both theoretically and practically, in the whole problem of law enforcement. Criminals may be detected without detectives and arrested without policemen. They may, if they consent, be tried without juries. Appellate courts and appellate judges are not constitutionally necessary. But no person can be legally convicted and punished in the absence of a trial judge. He is, as it were, the essential character of a court. Even in the inception of proceedings his presence or absence may be essential, unless legislation expressly provides otherwise. A judge was duly present and presiding when Ira N. Terrill was tried and convicted of murder. But when Terrill later sought release from the penitentiary his attorney pointed out to the Supreme Court of Kansas that no judge was present when that particular term of court was formally opened. The judge later appeared and presided at the trial of cases, but the Supreme Court decided that because of his absence when court was opened these latter proceedings, including the conviction of Terrill, were absolutely void.

Trial judges inherit broad powers over the trial proceedings, save in one respect: a judge may not order the jury to bring in a verdict of conviction; he must not directly or indirectly use the slightest compulsion to that end; nor, if a verdict of acquittal be rendered, can he lawfully set it aside and order the accused again put on trial. But in all other respects his heritage of authority is full and comprehensive. He may order a trial discontinued for lack of evidence, or refuse to permit the dismissal of prosecution even though the prosecutor requests it. His is the privilege of determining the fitness for service of men called to sit upon the jury. He determines, within established rules, what evidence is properly admissible and what is not. His discretion limits the extent to which cross-examination may be carried. Though he must not direct a verdict of conviction, he may order a verdict of acquittal, and he has authority to set aside a verdict of conviction and give the accused the privilege of another trial. He has power to maintain the dignity of his courtroom — to suppress applause, to prevent radio broadcasting of the proceedings, to insist on order and respect, and, specifically, to forbid such newspaper activity as the taking of pictures while trials are in progress.

He inherits authority, indeed, to reach beyond the limits of his court - room and to punish drastically any interference with the proper progress of justice. He can send recalcitrant witnesses, who refuse to obey subpœnas, to jail. He can proceed summarily, without red tape, against anyone who threatens a witness or seeks to bribe a juryman. He could, and English judges not infrequently do, penalize newspapers for the publication of alleged evidence not legally admissible at a trial, or other matter which derogates from the fairness of court proceedings toward the defendant or the public.

His exercise of authority, however, is reviewable, to-day, by appellate courts, which are astute in determining whether he has abused his discretion or overstepped his powers. Federal judges, for example, have unquestioned authority to comment to juries upon the evidence and to express their own opinions as to a proper verdict. But in Carney v. United States, where the defendant was on trial for violation of the Prohibition Act, the trial judge said to the jury: ‘You are not to be hoodwinked and bamboozled by anybody; nor by unreasonable testimony — if it is unreasonable. Remember the witnesses on either side can swear that black is white, if they think they can cause you to credit it, or to entertain a reasonable doubt; but you are not to be gulled. You are not to believe a thing is so simply because someone swears it is so, and if a witness testifies that down the street he saw an elephant climb a telephone pole, you are not bound to believe it is a fact, even though he shows you the pole.’ He then went on to intimate his own opinion that the defense testimony was of this type. The majority of the reviewing court held this manner of expression an abuse of his privilege of expressing an opinion, even though the judge had also said: ‘Remember, while you take the law from me, you don’t take the facts from me. I might tell you out and out whether I think the defendant guilty; I may comment on witnesses and evidence; but even if I did, it would not bind you to the same conclusion. You are the exclusive judges of the weight of the testimony and the credibility of the witnesses.’

So, too, every other action of a trial judge, and his every ruling on the law, may be objected to by the defendant’s attorney and brought to the notice of an appellate court for a determination of its propriety. But, subject to this review, the trial judge possesses enormous powers which he can and does use.

II

Such is the scheme and theory of judicial power. In practice, however, the rôle of the judge is circumscribed. Various forces, peculiar to conditions in this country, have conduced to partial disuse of these powers and even to their denial. In the first place, except in the federal courts and those of two or three states, American trial judges arc creatures of politics. They are dependent for the attainment and the retention of their positions upon influential lawyers, upon newspaper reporters and editors, upon gang-chief politicians, and upon all the other persons and forces which determine elections.

When Loretta Lee was convicted of participation in the armed robbery of a jewelry store, the representative of a newspaper asked Judge Pliny Marsh what sentence he intended to impose upon her. He replied that the newspaper would know along with the rest of the public when the sentence was declared from the bench. ‘Well,’ said the reporter, ‘I wasn’t after advance information; I only wanted to remind you that our paper is opposed to heavy sentences for women and to argue the matter with you.’ Replied the judge, ‘A man killed by a woman is just as dead as though a man’s finger had pulled the trigger, and society needs protection against a dangerous woman as completely as against a dangerous man. Moreover, as a judge, I cannot argue with a newspaper what sentence ought to be imposed.’ ‘In that case,’ came the threat, ‘I’m warning you that if you impose a stiff sentence on Loretta my paper will raise hell with your chance of reëlection. ’ Judge Marsh imposed a sentence of seven and one-half to fifteen years, with recommendation of ten, and the newspaper carried out its threat — with the result that the judge again became a practising lawyer and had to rebuild the clientele he had lost when he went on the bench.

How far a judge’s activities are influenced by the necessity for such favor, only he himself can say. At the time this is written, a newspaper reports that ‘three of the seventeen prisoners who were released on the request of Recorder’s Judge John A. Boyne after their arrest as frequenters of a gambling house failed to appear. . . . The arrests were made by Patrolman William Richardson and the men were released an hour later by Lieutenant Charles Prable, who said Judge Boyne called and vouched for their appearance in court.’ Such immediate action by judges in procuring releases is not infrequent, and there is nothing improper or illegal about it. But the attendant circumstances are often such as to raise some wonder whether they are a matter of friendship, of devotion to the spirit of the law, or of response to political pressure.

I once talked with another judge whose salary of $12,000 a year was worth keeping and who had been in the awkward position of having to deal with the son of a wealthy manufacturer for serious traffic violation. The company’s ‘fixer’ had come to him with a suggestion that the case be dropped. The judge refused. ‘Don’t you know,’ said the fixer, ‘that the 30,000 voters in his father’s factory will be lined up against you at the next election if you send that boy to prison?’

‘I did not order him out of my office,’ the judge said, ‘but I told him I would do my duty even though every voter in the city deserted me.’ As a matter of fact, he sentenced the son to jail for ten days. There was a twinkle in his eye as he related the incident; for, after imposing the sentence, to the accompaniment of much pleasing publicity, he modestly and unostentatiously ordered the boy’s release the following day. This judge was notably shrewd at the game of politics, and it is highly probable that he gained votes both by the sentence and by the release. But assuming that he did honestly and most courageously risk his continuance in office for the sake of his ideals of duty, and assuming that many another judge would, and does, do likewise, the point remains that American judges are constantly subjected to the choice of offending some important dealer in votes or of shading justice.

Under such circumstances, many a judge feels that he has to strike up a compromise with his conscience. He may find that inaction is safer than the affirmative exercise of his power, which would certainly offend one side or the other. This is, of course, peculiarly true of his conduct of trial proceedings. If he is not. asked to rule on questions of evidence, he runs no risk by refraining from a self-initiated ruling. If newspapers want to take pictures of witnesses, he saves himself from giving offense to the press by permitting it. If he can avoid some demanded action on the excuse that reviewing courts will not approve it, he can sidestep the blame.

Most criminal lawyers welcome a judicial policy of inaction and abdication. In theory, the lawyers are officers of the court, indifferent to the material results of litigation so long as the truth is triumphant and the rights legally appurtenant to the particular facts are respected. But practically they are men who have their own livings to make, and their greatest assurance of financial success lies in their ability to win cases. Quite naturally, therefore, they protest against and oppose any minimizing of their own trial talents through judicial interference. Ability to persuade juries, skill in smothering the real issues by a cover of immaterial evidence, the art of creating emotional prejudice — all these accomplishments would prove abortive if the judge, of his own motion, should exclude improper testimony, restrict cross-examination, or follow the advocate’s peroration to the jury by a calm, dispassionate, and accurate appraisal of the evidence.

Thus it happens that the judge is impelled by political necessities to a policy of self-effacement, while the trial lawyer is driven by self-interest to urge and advocate the judge’s abdication of power, and to protest publicly against any exercise of judicial authority.

III

Moreover, neither appellate courts nor legislatures evince great confidence in the capacity of elected trial judges to use their power wisely or fairly. And, oddly enough, the appellate court judges are rather more skeptical of their inferior colleagues’ ability than are the legislators. When the ideas of probation and suspended sentence as a means of treatment for redeemable criminals were less popular than at present, an Illinois trial judge suspended the sentence of a convicted man during good behavior. The question was then raised before the Illinois Supreme Court as to whether such action was within his authority. There was no statute covering the matter, nor had Illinois courts previously determined it. The Supreme Court was free to decide the matter as it thought best; it faced an open choice, based on its own ideas of practical wisdom. It chose to deny such authority to trial judges, and the reason given was a frankly expressed fear that such power might be outrageously abused. ‘Thus, a youth charged with crime to which he pleads guilty may be in effect assured by the court, before whom he enters the plea, that he ought not to suffer punishment, and be given his liberty, and yet in after years, no matter what may then be his family relations or position in society, that judge, or another of the same court, may consign him to the penitentiary.’

In another case, a trial judge was asked by the jurors for additional instructions; instead of calling them back into the courtroom and speaking from the bench, he stood at the juryroom door with his head and shoulders inside. The appellate court refused even to inquire whether anything improper had been said by the judge, but reversed the defendant’s conviction as a matter of course. Its theory, apparently, was that the risk to justice in such occasional actions by trial judges is too great to be remedied by mere appellate rebuke.

Although American judges inherited from their English predecessors the privilege of expressing their own opinions to juries, they have lost that right in most of the state courts. And that loss is the result, in large measure, of a general distrust of the judges’ capacity for fair and intelligent comment.

In English and Canadian courts, and in our own federal courts, the advocates’ perorations are followed by the judge’s own summing up of the evidence, and his comments upon its forcefulness, or trustworthiness, or the credibility of the witnesses. The procedural theory is that a calm, dispassionate discussion of the whole case by one whose training and experience should enable him to see through pretenses, and to remain comparatively unmoved by emotional superficialities, must necessarily be of value to the jury in its effort to determine the truth. The jury is under no obligation to accept any opinion of the judge; it is free to follow its own belief as to the facts, and is expected to do so. But it is permitted to hear the opinion of the judge as well as the opinions of the lawyers. In most of the state courts, however, the trial judges have been stripped of that power. The lawyers may still argue as they choose to the jury, but the judge must keep out of the contest. He is a mere umpire, a chairman, who must not directly or indirectly give the jury any inkling of his opinion.

The movement to preclude the judge from revealing his own opinions to the jury began in the South, in North Carolina and Tennessee, in 1796. Half a century passed before it developed in the North, in Illinois, in 1845. But at present, by statute or by appellate court decisions, judges have lost their original power in over three fourths of the states.

‘Prior to and extending to 1796, a bitter quarrel raged between bench and bar in North Carolina. Three judges were in office at this time, Ashe, Spencer, and Williams, and with these for various reasons the bar seemed unable to get along. In 1786 the legislature passed an act forbidding persons (loyalists) whose property had been confiscated from bringing suit. The judges were willing to enforce this, and as such suits had been a profitable field of litigation for attorneys, the attorneys rather unfairly, it seems, blamed the judges. The court then banished two tories, Brice and McNiel, although there was no statute that provided banishment as a punishment. This inflamed the bar, as it was greatly interested in caring for the rights of the loyalists. . . . Hostility grew up between bench and bar that persisted for many years. . . . There seems little doubt but that the legislative act restraining the power of the judges was a final consequence of this bitter feud with the judges, who were no doubt rather high-handed at times.’¹

To what extent other factors contributed to this derogation from judicial power and authority one cannot say. It is undeniably true that many trial judges have been utterly incompetent to comment intelligently and fairly upon the evidence. ‘The calm judicial demeanor, the superiority to the passions which tear the breast and influence the actions of clients and their lawyers, was not in those days expected of the bench. Fierce sarcasms like those of Ellenborough and Chase, and foul curses like those of Thurlow, could be paralleled at many courts in America.’ Nor are the elected judges of to-day always judicious, unbiased, and temperate. At any rate, distrust of their capacity to use their power properly is what chiefly motivated appellate judges and legislatures to take it away.

IV

Appellate judges have shown also a rather shocking readiness to find technical error in the proceedings of trial courts. This may have been, in fact, no intentional depreciation on their part of the intellectual standard of the procedure in the lower courts. In many cases, it is obvious that any plausible excuse was seized upon for remitting punishment — perhaps because the reviewing court disagreed with the jury’s verdict but had no persuasive argument for openly repudiating it, or for some reason of sympathy not appearing in the record. In many respects these reversals suggest a mere convention of official attitude, built up under peculiar social conditions and adopted by succeeding judges without real question of its reason or result. In recent years the judicial psychology has been changing; appellate courts have tended more and more to consider objections to trialcourt rulings on their merits. Moreover, legislatures have declared as emphatically as words allow that convictions must not be reversed unless it affirmatively appears that the error in the trial proceedings was prejudicial to the merits of the defendant’s case. But during a considerable period of time, for one reason or another, reversals on highly technical grounds were more or less commonplace. Rules of procedure ceased to be merely the safe means of attaining justice. The meticulous observance of rule was treated as an end in itself.

‘It may be shown by the most irrefragable proof that the defendant is guilty of the offense charged against him,’ declared the Wisconsin court, ‘ but this does not justify the violation of well-settled rules of evidence in order to secure his conviction,’ and a conviction so secured must be reversed. A Nebraska court, speaking of evidence which the trial court had refused to let the jury hear, decided that although the evidence ‘would not have proved any fact of the least value in the case had it been properly admitted,’ its rejection was a breach of rule for which the conviction must be reversed. A Massachusetts court, considering a case where the evidence had been admitted instead of being refused, says, ‘Since this evidence was admitted as having some tendency to show a criminal intent, and since we are unable to see that it had any such tendency, we feel constrained to grant a new trial, although the other evidence may have been sufficient to warrant the conviction.’

In an Illinois case of little more than a decade ago, one Goldberg was indicted and prosecuted on fifty separate counts for the illegal sale of liquor. The trial jury convicted him on all fifty counts. But in the written accusation his name was spelled as Goldberg in forty-nine of the counts and as Holdberg in one of them. The Supreme Court felt compelled, therefore, to reverse the conviction on all counts because Goldberg and Holdberg did not even sound alike. The Missouri Supreme Court has more than once reversed a conviction of murder, not because there was any doubt of the defendant’s guilt, but simply because the written accusation concluded with the words, ‘the grand jurors do say’ instead of ‘the grand jurors on their oaths do say.’

In 1908 the Missouri court rendered two notorious decisions, one of them reversing a conviction of rape, to the effect that the conclusion of an indictment ‘against the peace and dignity of State’ is not ‘substantial compliance’ with the constitutional requirement that indictments shall conclude‘against the peace and dignity of the State.’ A Massachusetts Supreme Court once reversed a conviction because the accusation stated the offense to have been committed on ‘the fifteenth day of July, 1855,’ and the court pretended to believe that no one could be sure whether it referred to 1855 A.D. or 1855 B.C.

In Texas an appellate court decided that a conviction of robbery could not stand because the accusation was that the defendant took the property ‘from the person and possion of’ the victim, instead of from his ‘possession.’ And in another case it said the defendant could not be punished because the written record showed that the jury found him ‘guity’ instead of ‘guilty.’ So recently as 1931 an Oklahoma appellate court held that the trial judge had abused his discretion because he required a defendant to stand trial on an accusation which charged him with larceny of ‘ domestic fowls ’ — which were the precise words used in the statute making larceny of domestic fowls criminal — without informing him what kind or class of domestic fowls they were.

This attitude of appellate judges has changed notably in recent years. Such decisions by modern courts are rare. Legislatures have set the example, by statutes to the effect that convictions shall not be reversed except for error which affirmatively appears to have prejudiced the defendant on the merits of his case, and appellate courts, even in the absence of statute, have tended toward a similar attitude. Nevertheless, the period of technicality made its mark, and has left its influence upon the psychology of trial judges. It created a reign of rigidity in rule and formalism whose natural consequence was a hesitancy on the part of trial judges to exercise any discretion or to make any move not explicitly directed by rule or sanctioned by appellate approval.

Within the year, a Supreme Court, judge, speaking at a bar association meeting, lamented the prevalent belief that Supreme Courts deleteriously affect the enforcement of law by frequent reversals. He carefully pointed out how few reversals had actually occurred of late, and how nontechnical, from his point of view, they were. Yet six days later a trial judge of that state granted the seventh continuance in an already outrageously delayed case, and for exceedingly flimsy reasons; and his privately expressed explanation was that he believed the defendant, when tried, would be convicted, and he did not want the Supreme Court to have any excuse for a reversal.

These various influences on the trial judge have had precisely the result that one would expect. The powers inherited by the American trial judge have atrophied.

V

The English judge is an active participant in cases before him. It is he, the judge, who conducts the trial, assisted by the lawyers, as a search for truth and justice. For example, in the prosecution of Colonel Edward Cawston for arson, Cawston admitted that he had purposely dropped a match into a pile of straw and had closed the door without knowing whether the straw had ‘permanently’ caught fire or not. He said that he wanted to burn that part of the building because a fire would stave off the making of certain costly repairs which the local building inspector was insisting on, and the building as a whole was so constructed that the fire could not possibly spread from the dilapidated part. This, in itself, was not criminal. The charge was that the structure was insured, and that he had intended to defraud the insurance company. In defense he asserted that he supposed the dilapidated part, being independent of the main structure, was not included in the insurance. Whether he did really so believe was the important issue of the case.

The judge was continually an active participant in the proceedings. At one time he suggested to defendant’s counsel that ‘it would be well not to encumber the record with unnecessary material’; at another he, of his own initiative, excluded evidence on the ground that it was both irrelevant and prejudicial to the defendant. Again he commented, ‘It is for the jury, not for me; but I find it very difficult to believe that.’ At another point the defendant testified that by a certain letter written to the insurance company he meant to indicate his assumption that the particular part of the building group was not covered by insurance. The lord justice read the letter himself and remarked with a sort of good-humored irritation, ‘Oh now, you know, it’s really incapable of that meaning, it seems to me.’ Counsel on both sides were men of ability and experience in criminal cases, yet no one displayed perturbation lest these activities of the judge might derogate from the fairness or independence of the jury’s verdict. Nor did the jury abandon its own freedom of opinion, it would seem, since the verdict was an acquittal.

The American trial judge, on the contrary, feels constrained to adopt the attitude shown in the Detroit trial of two Italians accused of kidnapping a Syrian girl. Their lawyer, a Greek, was droning in broken English through a tedious and unintelligent cross-examination. One of the jury was asleep, the others inattentive, and the Irish judge was rocking back and forth with his head in his hands. At recess a friend asked why, in the name of reasonable expedition, he did not stop the ridiculous performance. ‘If I can stick it out,’ he answered, ‘I know how to handle him so that we’ll be through in two or three days, and the jury is sure to convict [which they did]. But if I stop him, he may get a reversal in the upper court, and it would take a week to try it over again before some other judge.’

Thus fearful was the American judge of doing what the English judge does as a matter of course — fearful lest it be held by a reviewing court that his attitude, or his restrictions on the conduct of counsel, had prejudiced the jury, or had violated some one of those technical rules whose minute observance has been glorified as an end in itself through the misapplied cliché of ‘justice according to law, not according to men.’ And a judge is sometimes fearful also, though not in this particular case, lest he may offend a defendant’s lawyer who holds necessary votes in the palm of his hand.

In another Detroit trial, that of Dr. Loomis for the murder of his wife, a Mrs. Bloxom was put on the witness stand by the state. She testified merely that she had passed the Loomis house a few minutes before nine o’clock in the evening, and had heard sounds which might have been caused by a struggle. This was important evidence because Loomis admitted that he had not left his house until nine o’clock, and that his wife was alive when he left and no struggle had occurred. The defense attorney therefore undertook by his cross-examination to weaken the credibility of Mrs. Bloxom’s testimony. He did so quite effectively, by developing the fact that the witness had no watch but had estimated the time from other events. It became fairly clear that the time she passed the house might truly have been some minutes after nine o’clock. Then the cross-examiner undertook to attack her personal credibility, and for hours he forced the woman to answer questions concerning her personal history. Eventually he dragged out of her, for the newspapers to publish to the world, the confession that her first child, born many years before, had come into the world less than seven months after her marriage. The state’s attorney, who had put the woman on the stand in the interests of justice, protested that this disgracing of the witness could not so bear upon the accuracy of her testimony concerning the time of day as to justify the injury it would do her. But the trial judge allowed the questioning to continue.

In the trial, in London, of Mrs. Eddy on a charge of obtaining money by false pretenses, a witness testified that she had lent money to Mrs. Eddy on the inducement of certain false statements. This witness was, like Mrs. Bloxom, living most respectably. She was an unintelligent person, elderly, not well, and fearfully excited by her situation. She would have been putty in the hands of a skillful crossexaminer. The defense lawyer did cross-examine her upon the matters to which she had testified. Then, like the attorney in the Loomis case, he began to delve into her past. Immediately the trial judge, on his own initiative, interrupted him, ‘Why do you ask those questions?’ he queried. ‘To shake her credibility,’ was the reply. ‘But under the circumstances, do you think you would really shake her credibility?’ ‘I believe I have the legal right to ask such questions, your lordship.’ The judge leaned forward. ‘Ah, yes,’ he said, ‘you perhaps have the right and I could not stop you. But I consider it a most indecent thing to do.’ The questioning did not continue. Everyone concerned apparently assumed that the barrister had earned the rebuke, and that justice had been served, rather than hampered, by the judge’s remark.

The law in the two countries is fundamentally and essentially the same. The marked differences in procedure are differences in practice, and in the theory of application of t he law rather than in the law itself. The actual trial of a case in this country is conducted and even directed rather by the lawyers than by the judge, who acts only when they disagree. Speaking generally, it may safely be said that in practice and in conventional theory it is the lawyers who determine what evidence shall be adduced and what shall not, what witnesses shall be called, which ones shall be put upon the stand, and what questions shall be asked of them. It is questionable whether the judge of his own accord may exclude evidence which the established rules of law do not admit if the lawyers for both parties desire its admission. In the absence of statute, the lawyer, not the judge, has the privilege of questioning the prospective jurors as to their fitness to serve in the case. It has even been held (though it is not the conventional rule) that while juries must accept the law as declared for them by the judge, the judge has no authority to declare the law except as it is written out for him by the lawyers in the case.

VI

One marked result of such judicial abdication is that American trials tend to become ‘contests,’ and that proceedings drag along to outrageous lengths.

In 1927, Daniel J. Graham was brought to trial for murder. He was a New York policeman who had been detailed to guard Judson Pratt, paymaster for a construction company, on pay days. Graham did guard Pratt and the money for several Saturdays. Then one pay day Pratt failed to appear at the paymaster’s shed. Search revealed that he had been killed and his pay roll taken. His body was found in an automobile parked in the Bronx. Earlier in the day, witnesses had seen Graham driving that same car with a passenger whose hat was over his face and who was slumped down in the seat. Previously, while Graham was in the car, a sharp explosion had been heard coming from its direction. Part of Pratt’s hat, blown away by a bullet, was found in the path of the automobile near where the explosion had occurred. Later Graham was seen to board an elevated train near the place where the abandoned automobile was found. Graham had been off duty on that Saturday, ostensibly on sick leave, although he admitted that he was not sick. He pretended to have gone to Albany, which was proved false. The bullet which killed Pratt was of the type used in Graham’s revolver.

The day following the murder, Graham bought an automobile for which he paid $1650 in fifty-dollar bills. Something over $2000 of Pratt’s pay roll had been in fifty-dollar bills. Later he bought $500 worth of jewelry and gave $900 to a woman friend. He ‘loaned’ five twenty-dollar bills to another friend, and gave $145 to a chorus girl. Before the murder, he had ordered the automobile, making a deposit of $25 and promising to pay the rest after Saturday. As a police officer his pay was small, and he had no other known source of income. He made no attempt at the trial to explain whence came his sudden access of wealth, but to the police, after his arrest, he said that an aunt had died and left it to him. This was proved false.

Such was the evidence which the state put in. The defendant offered no testimony, nor did he take the witness stand himself. The trial began on October 24, and the jury brought in a verdict of conviction on November 28. The printed record of testimony covers 1100 pages. Only about 30 per cent of this bulky record is taken up by the state’s presentation; 70 per cent of it is cross-examination by the defendant’s attorney. The comment of an experienced court official was, ‘You see, Snitkin’s got no defense; he is trying to work error into the record so as to get a reversal.’

The same year, 1927, the case of Mary O’Donoghue came up for trial in London. It was as heavily fraught with emotional potentialities as could well be imagined. The girl had come from Ireland to London so that her illegitimate baby might be born where friends would not learn of her disgrace. She worked as a hotel chambermaid until the day the child was born, with no help or sympathy and no medical attention until after the birth. For two weeks thereafter she was in a charity hospital. Then she and the child were set adrift in the streets of London. She had forty dollars, which she herself had saved, in her pocket, a two-weeks-old baby in her arms, no job and no friends. For three weeks she hunted work and cared for the child. Her health was bad. Abscesses formed in her breasts and burst; headaches were frequent; she could not afford a doctor’s advice. Eventually she found a job, but lost it because no one would look after the baby while she was gone. Her money gave out. For two days she went without food. Then she killed the child.

There was no defense that could be made on the fact of the killing; Mary admitted that she had done it. But there was the possibility of building up an emotional reaction in her favor. Was not the crime really the fault of society in allowing such a situation to develop? The girl’s mental state could have been expounded as ‘emotional insanity.’ Acquittal would have been guaranteed by an American criminal lawyer.

The defense which the English lawyer actually set up was ‘puerperal insanity.’ Under an English statute this would have reduced the grade of her crime from murder to manslaughter. No real attempt was made to move the jury through its emotions or to persuade it to a verdict of acquittal in violation of its oath, although as a matter of fact some of the jurors were brought to tears by the facts. The Crown presented its evidence simply and completely. The defense put the girl on the witness stand and had her tell her story. Medical experts were introduced by each side, who more or less agreed as to her actual mental state. The attorneys argued to the court as to whether that mental state could be considered ‘puerperal insanity’ within the meaning of the statute. The judge ruled that it could not — a ruling eventually approved by the appellate court. The case then went to the jury, which immediately agreed on a verdict of guilty.

The whole proceeding was begun and ended within a single day. In a straightforward, fair, and orderly trial, the girl was proved to be guilty, and to have had no legal excuse for her act. The jury recommended mercy, and the mitigating circumstances were taken into consideration in the treatment of Mary O’Donoghue after the conviction. The case was appealed on the ground that the judge’s interpretation of the insanity statute was wrong, but no one thought of alleging scores of technical errors in the procedure, as the defense did in the Graham case.

This O’Donoghue case, fairly tried in one day, is reasonably typical of English trials. The Daniel Graham affair is probably representative of scores of proceedings in the United States. The New York Times characterized the three-weeks-long SnyderGray trial as ‘a model murder trial,’ with a ‘swift and satisfactory conclusion,’ ‘very nearly a record for speed.’ ‘Speedy Jersey justice’ required a three-day trial to convict George Yarrow of murdering a young girl by shooting her twice and strangling her with a piece of wire, despite the fact that Yarrow confessed the killing and said that he wanted to go to the chair, and his attorney confined his defense to the proposition that Yarrow’s act was not premeditated. That other New Jersey trial which resulted in the amazing and irrational verdict that Willis Beach and Margaret Lilliendahl were guilty only of manslaughter lasted from November 28 to December 8. In Ohio it took weeks to get the jury’s solemn, if ludicrous, verdict that George Remus was ‘insane’ when he killed his wife. Leo Brothers’s conviction of the murder of Jake Lingle came only after two weeks of court procedure. (It was one year later before the conviction was affirmed and Brothers was sent to the penitentiary.) Michigan’s conviction of State Representative Chester A. Good for burglary necessitated sixteen days of trial. In New York the acquittal of Greco and Carillo required two weeks. The Hall-Mills case went on through twenty-three days. The ‘Hamtramck Vice’ trial, resulting in conviction, lasted seven weeks. The Loeb-Leopold affair, which was not a trial at all, but merely a hearing to enable the judge to determine what sentence he would impose, dragged along for thirtythree days.

An interminable list of other lengthy American trials might be compiled, while the English records would furnish scarcely one. It is not true, of course, that all American trials are unduly long; many of them are expeditious enough. But it is the long ones, the Graham and Snyder-Gray and Remus affairs, which truly represent the spirit of American trial practice.

VII

That the situation should be remedied if possible is incontrovertible. The ‘sporting’ trial does not conduce to truth and justice. There is no evidence that a month-long American trial more properly protects the innocent or more surely reveals the truth than does the prompt and expeditious English procedure. Neither is it demonstrable that our more rigid adherence to procedural rules facilitates more accurate results. Indeed, one of the criticisms of the Sacco-Vanzetti case was precisely that justice had not been done, and truth had not been ascertained, despite the Supreme Court’s finding that the rules of trial procedure had been strictly adhered to in every particular. On the other hand, insistence upon the sanctity of rule, despite the justice and truth of the particular case, is obviously injurious to the end which the criminal law purports to accomplish.

The laws of England and the United States are essentially similar. If one has fallen into a practice which is inferior to that of the other, the fault — and the remedy — lies in the men who administer the laws.

In the words of one, himself a judge: ‘Should the judge be a mere umpire between skilled lawyers, or should he guide the trial of the case? Should he remain silent when lawyers depart from the issues, or should he bring them back to the case without waiting for the other side to object? Should he remain silent when a lawyer does not bring out what a witness knows, or should he by proper questions bring the facts to the attention of the jury? Should he assist the jury in sifting out the material evidence, or should he give a colorless charge, which contains general propositions of law? In England the judge tries the case, the lawyers assist. In Ohio the lawyers try the case, the judge sometimes does no more than to preserve order, and sometimes not even that.’

Alteration of the situation is not likely to come from within the legal profession itself. Nor is it probable t hat American trial lawyers will readily approve the more effective use of power by trial judges. Indeed, real improvement is scarcely conceivable until such time as judges themselves arc so independent of political favor as to dare to use the power they fundamentally possess, and are of such character that the public will dare to support them in its use. Trial judges could be the dominant factors in every aspect of the court proceedings; they can influence materially the speed, the efficacy, the accuracy, and the reality of criminal justice. Occasional judges, outstanding against the conventional judicial background, have shown what can be done in the fair, dignified, expeditious administration of justice. But no one judge, nor occasional scattered units of the judiciary, can accomplish permanent or completely effective improvement.

The gravest defects in the administration of criminal law could be remedied by a dependable judiciary, entrusted with power, trusting themselves with it, and fearless in using it for the ends of justice. But that consummation cannot even be hoped for until some scheme of permanent tenure is developed which will lift judges above the paralyzing necessity of constantly considering the political effect of their every action.