Arthur Cheney Train

“ If an ignorant jury acquitted a murderer under the eyes of a gagged and helpless judge, we said that it was all right and that it was better that ninety-nine guilty men should escape than that one innocent man should be convicted. Yes,—better for whom? If another murderer, about whose guilt the highest court in one of the States said there was no possible doubt, secured three new trials and was finally acquitted on the fourth, it merely demonstrated how perfectly we safeguarded the rights of the individual. ”

“ With the jury keenly alive to all the possibilities of error in the testimony of even the most honest of witnesses, it is for the advocate, the psychologist of the law, to test by his cross-examination and demonstrate in his summing up the precise probative value of the evidence, frequently revealing, below an apparently limpid stream of truth, a turbid bed of conjecture, assumption, belief, hearsay, and inaccuracy of expression, with the rank weeds of perjury growing just beneath the surface. ”

“ He has the right to make his own powerful appeal to the jury and to have the services of the best lawyer he can secure to sway their emotions and their sympathies. If the prosecutor resorts to eloquence he is stigmatized as "over-zealous" and as a "persecutor." If a plainly guilty defendant be acquitted, not the trampled ideal of justice, but the vision of a liberated prisoner rejoicing in his freedom hovers in the talesman's dreams.
So far so good; we can afford to stand by a system which in the long run has served us fairly well. ”

“ It is not a difficult matter to preside with dignity at a trial, preserve order, exclude hearsay testimony, apply the other simple rules of evidence that are ordinarily involved in a case of assault, larceny, burglary or homicide, and instruct a jury as to "reasonable doubt," "good reputation" and the "presumption of innocence" in words of one syllable. We may fairly assume that it is no harder for the ordinary judge to try a man for picking a pocket than it is to dress himself in the morning. It must in time become automatic if not almost sub-conscious. ”

“ Appleboy is very tired; the dingy windows, the gloomy corridor, the unsympathetic policeman, the noise and smells of the Italian quarter, the weary trip to the district attorney's office and to the station house have brought him almost to the verge of tears. He is ashamed to go home and tell his wife that he has accomplished nothing,—he has not even seen the teapot. Feeling very small indeed Appleboy pushes open the door and passes out upon Mulberry Street. No one notices him; in this official world a bank president is but a unit among the countless multitudes of the public. ”

“ Crime is no more a disease than sin, and the sinners deserve a good share of the sympathy that is at present wasted on the criminals. The poor fellow who has merely done wrong gets but scant courtesy, but once jerk him behind the bars and the women send him flowers. If crime is a disease, sin is also a disease, and we have all got a case of it. It is strange that there is not more "straight talk" on this subject. Every one of us has criminal propensities,—that is to say, in every one of us lurks the elemental and unlawful passions of sex and of acquirement. ”

“ Judges are, after all, but men, and to err is human. But there is hardly a judge upon the bench who does not conscientiously strive to perform his duties in such a way that justice may be secured in the manner provided by the Constitution,—by leaving the jury untrammelled in their function of determining upon the sworn evidence in the case the guilt or innocence of the defendant. Finally it should be said that it is not the weak but the strong judge that is most apt to transgress in this direction, and that it is the strong judge who is most likely to serve the best interests of the community. ”

“ To read some supposedly scientific works one would imagine that every court of criminal justice was or should be nothing but a sort of clinic. To these learned authors, civilization, it is true, owes a debt for their demonstration that some crime is due to insanity and should be prevented, and, where possible, cured in much the same manner. But they have created an impression that practically all crime is the result of abnormality.
Every great truth brings in its train a few falsehoods,—every great reform a few abuses. ”

“ Not only are the names and degrees of the crimes which a defendant may have committed of very little assistance in determining his real criminality, but the fact that he has committed them by no means signifies that he is morally any worse than some man who has committed no so-called crime at all. Many criminals, even those guilty of homicide, are as white as snow compared with others who have never transgressed the literal wording of a penal statute. ”

“ Much as it is to be deprecated, an assertive lie is of much more weight with a jury than an anemic statement of the truth. The juror imagines himself telling the story, and feels that if he were doing so and his testimony were true, he would be so convincing that the jury could have no doubt about it at all. Ofttimes a witness leads the jury to suspect that he is a liar simply because he has too strong a sense of the proprieties of his position vehemently to resent a suggestion of untruthfulness. ”

“ After conviction the natural optimism of the human race reasserts itself and the defendant begins to believe that the worst is, after all, over, and to rely upon the assurances of his counsel or his political friends that the judge is going to be easy on him and give him a light sentence. Terrible is the disappointment of such a one who finds that he is going to be sentenced to State's prison when he expected the penitentiary or to the penitentiary when he expected to be set free entirely under a suspended sentence. ”

“ The judge who presides at the trial of a criminal case does but begin his labors when he receives the jury's verdict. If he be a man of sensibilities the strain of a trial is as nothing compared with the responsibility of determining whether the defendant shall be let go free under a "suspended" sentence or ordered to prison. No one appreciates the horror of prison life or its effect upon the individual better than the judge himself, and he may pass many a sleepless night before sentencing a man whose circumstances and whose years suggest the possibility of reformation. ”

“ Lack of respect for law is characteristic of the American people as a whole. Until we acquire a vastly increased sense of civic duty we should not complain that crime is increasing or the law ineffective. It would be a most excellent thing for an association of our leading citizens to interest itself in criminal-law reform and demand and secure the passage of new and effective legislation, but it would accomplish little if its individual members continued to evade jury service and left their most important duty to those least qualified by education or experience to perform it. ”

“ Regrettable as it may seem, no police force, however large, could arrest all the violators of every law, and no system of courts could dispose of the multitude of offenders. We do the best we can and make an example of a few, hoping thus to persuade the others to be good. If every citizen undertook to exercise his right of arresting every individual whom he saw committing petty crime, the business of the community would come to a standstill and the magistrates' courts would be hopelessly congested with great hordes of prisoners, irate witnesses, and gratuitous policemen. ”

“ After they have seen the prisoner emerge from the cells, pale, hollow-eyed, bedraggled, and have beheld the tears of his wife and children as they crowd around the husband and father, they begin to realize the horrible consequences of a criminal prosecution and to regret that they ever took the steps which have brought the wrong-doer where he is. ”

“ To-day, the grand jury, initiating a proceeding against a citizen who may be ignorant that he is even under suspicion, may be led to accuse him of some foul crime upon the mere ex parte statement of malicious witnesses, without giving him an opportunity to explain or contradict the evidence. The mere charge of crime is often enough to ruin a man forever. The argument that a suspected person may escape before arrest unless the charge is considered secretly, has in these days of telegraphs, railroads and extradition treaties little of the force which it may have carried with it in cruder times. ”

“ A shyster lawyer need but to keep his client off the stand and he can saturate the jury's mind with any facts concerning the defendant's respectability and history which his imagination is powerful enough to supply. On such occasions an ex-convict with no relatives may become a "noble fellow, who, rather than have his family name tainted by being connected with a criminal trial, is willing to risk even conviction"—"a veteran of the glorious war which knocked the shackles from the slave"—"the father of nine children"—"a man hounded by the police." ”

“ The reader might perhaps conclude from what has been said that the action of the ordinary jury in most [Pg 240] cases must be founded simply upon shrewd guesswork. To a certain degree this cannot be denied, and it is equally true that all the delicate processes of the human mind, and the shadowy presences there of intent, motive, and recollection, can never be demonstrated save by inference. Our machinery is crude indeed. Ofttimes it is like trying to dissect a butterfly with a pair of pincers, and the wonder is that the jury are able to get at the truth as frequently as they do. ”

“ This is the inevitable result of the fact that crimes are not crimes merely because they are wrong, but because the State has enjoined them. For example, to push a blind man over the edge of a cliff so that he is killed upon the rocks below is murder, but to permit him to walk over it, although by stretching out your hand you might prevent him, is no crime at all. ”

“ A belief that the course of criminal justice is slow and uncertain, that the chances are all in favor of the defendant, and that he has but to resort to technicalities to secure not only indefinite delay but generally ultimate freedom, breeds an indifference amounting almost to arrogance among law-breakers, powerful and otherwise, and a painful yet hopeless conviction among honest men that nothing can prevent the wicked from flourishing. Honesty seems no longer even a good policy, and the young business man resorts to sharp practices to get ahead of his unscrupulous competitor. ”

“ They are grateful to the defendant and his family, and impress the latter with the fact that the lawyer is doing everything in his power to get his client off.
It is now the judge's soul is tried. How far may he temper justice with mercy? How far are the interests of the public and the prisoner irreconcilable? Many youthful offenders, who have not hitherto been convicted, escape with a suspended sentence or a commitment to a reformatory—even when found guilty of crimes as serious as manslaughter or robbery. Little mercy is shown to old offenders. ”

“ In addition, the impression sought to be conveyed by the yellow press that our judiciary is corrupt and that money can buy anything—even justice—leads the jury in many cases to feel that their presence is merely a formal concession to an archaic procedure and that their oaths have no real significance.
The community, the "People," have a sufficiently hard task to secure justice at any criminal trial. On the one hand is the abstract proposition that the law has been violated, on the other sits a human being, ofttimes contrite, always an object of pity. ”

“ What the people want in our criminal courts is, of course, a "fair trial," but they want a "fair trial" that results in the acquittal of the innocent and the conviction of the guilty,—so long as he is convicted by what they deem fair means. The people do not expect a judge to be more than human. Did he appear as indifferent to results as theory might seem to require the jury would quickly infer that the case was of slight importance and their action a matter of utter indifference to the court. ”