Chapter 3

For the past twenty-five years we have heard the cry upon all sides
that the jury system is a failure, and to this general indictment is
frequently added the specification that the trials in our higher
courts of criminal justice are the scenes of grotesque buffoonery and
merriment, where cynical juries recklessly disregard their oaths and
where morbid crowds flock to satisfy the cravings of their imaginations
for details of blood and sexuality.

It is unnecessary to question the honesty of those who thus picture the
administration of criminal justice in America. Indeed, thus it probably
appears to them. But before such an arraignment of present conditions
in a highly civilized and progressive nation is accepted as final, it is
well to examine into its inherent probabilities and test it by what we
know of the actual facts.

In the first place, it should be remembered that the jury was instituted
and designed to protect the English freeman from tyranny upon the part
of the crown. Judges were, and sometimes still are, the creatures of a
ruler or unduly subject to his influence. And that ruler neither was,
nor is, always the head of the nation; but just as in the days of the
Normans he might have been a powerful earl whose influence could make or
unmake a judge, so to-day he may be none the less a ruler if he exists
in the person of a political boss who has created the judge before whom
his political enemy is to be tried. The writer has seen more than one
judge openly striving to influence a jury to convict or to acquit a
prisoner at the dictation of such a boss, who, not content to issue his
commands from behind the arras, came to the courtroom and ascended
the bench to see that they were obeyed. Usually the jury indignantly
resented such interference and administered a well-merited rebuke by
acting directly contrary to the clearly indicated wishes of the judge.

But while admitting its theoretic value as a bulwark of liberty,
the modern assailant of the jury brushes the consideration aside by
asserting that the system has "broken down" and "degenerated into a
farce."

Let us now see how much of a farce it is. If four times out of five
a judge rendered decisions that met with general approval, he would
probably be accounted a highly satisfactory judge. Now, out of every
one hundred indicted prisoners brought to the bar for trial, probably
fifteen ought to be acquitted if prosecuted impartially and in
accordance with the strict rules of evidence. In the year 1910 the
juries of New York County convicted in sixty-six per cent of the cases
before them. If we are to test fairly the efficiency of the system,
we must deduct from the thirty-four acquittals remaining the fifteen
acquittals which were justifiable. By so doing we shall find that in
the year 1910 the New York County juries did the correct thing in about
eighty-one cases out of every hundred. This is a high percentage of
efficiency.* Is it likely that any judge would have done much better?

* The following table gives the yearly percentages of
convictions and acquittals by verdict in New York County since
1901:

NUMBER NUMBER
YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS
BY VERDICT BY VERDICT PER CENT PER CENT

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..........68............32
1908........649...........301..........62............38
1909........463...........235..........66............34
1910........649...........325..........66............34

After a rather long experience as a prosecutor, in which he conducted
many hundreds of criminal cases, the writer believes that the ordinary
New York City jury finds a correct general verdict four times out of
five. As to talesmen in other localities he has no knowledge or reliable
information. It seems hardly possible, however, that juries in
other parts of the United States could be more heterogeneous or less
intelligent than those before which he formed his conclusions. Of
course, jury judgments are sometimes flagrantly wrong. But there are
many verdicts popularly regarded as examples of lawlessness which, if
examined calmly and solely from the point of view of the evidence, would
be found to be the reasonable acts of honest and intelligent juries.

For example, the acquittal of Thaw upon the ground of insanity is
usually spoken of as an illustration of sentimentality on the part of
jurymen, and of their willingness to be swayed by their emotions where
a woman is involved. But few clearer cases of insanity have been
established in a court of justice. The district attorney's own experts
had pronounced the defendant a hopeless paranoiac; the prosecutor had,
at a previous trial, openly declared the same to be his own opinion; and
the evidence was convincing. At the time it was rendered, the verdict
was accepted as a foregone conclusion. To-day the case is commonly
cited as proof of the gullibility of juries and of the impossibility of
convicting a rich man of a crime.

There will always be some persons who think that every defendant should
be convicted and feel aggrieved if he is turned out by the jury. Yet
they entirely forget, in their displeasure at the acquittal of a man
whom they instinctively "know" to be guilty, that the jury probably
had exactly the same impression, but were obliged under their oaths to
acquit because of an insufficiency of evidence.

An excellent illustration of such a case is that of Nan Patterson. She
is commonly supposed to have attended, upon the night of her acquittal,
a banquet at which one of her lawyers toasted her as "the guilty girl
who beat the case." Whether she was guilty or not, there is a general
impression that she murdered Caesar Young. Yet the writer, who was
present throughout the trial, felt at the conclusion of the case that
there was a fairly reasonable doubt of her guilt. Even so, the jury
disagreed, although the case is usually referred to as an acquittal and
a monument to the sentimentality of juries.

The acquittal of Roland B. Molineux is also recalled as a case where a
man, previously proved guilty, managed to escape. The writer, who
was then an assistant district attorney, made a careful study of the
evidence at the time, and feels confident that the great majority of the
legal profession would agree with him in the opinion that the Court of
Appeals had no choice but to reverse the defendant's first conviction on
account of the most prejudicial error committed at the trial, and that
the jury who acquitted him upon the second occasion had equally no
choice when the case was presented with a proper regard to the rules of
evidence and procedure. Indeed, on the second trial the evidence pointed
almost as convincingly toward another person as toward the defendant.

I have mentioned the Patterson, Thaw, and Molineux trials because they
are cases commonly referred to in support of the general contention
that the jury system is a failure. But I am inclined to believe that
any single judge, bench of judges, or board of commissioners would have
reached the same result as the juries did in these instances.

It is quite true that juries, for rather obvious reasons, are more apt
to acquit in murder cases than in others. In the first place, save where
the defendant obviously belongs to the vicious criminal class, a jury
finds it somewhat difficult to believe, unless overwhelming motive be
shown, that he could have deliberately taken another's life. Thus, with
sound reason, they give great weight to the plea of self-defence which
the accused urges upon them. He is generally the only witness. His story
has to be disproved by circumstantial evidence, if indeed there be any.
Frequently it stands alone as the only account of the homicide. Thus
murder cases are almost always weaker than others, since the chief
witness has been removed by death; while at the same time the nature of
the punishment leads the jury unconsciously to require a higher degree
of proof than in cases where the consequences are less abhorrent. All
this is quite natural and inevitable. Moreover, homicide cases as a rule
are better defended than others, a fact which undoubtedly affects the
result. These considerations apply to all trials for homicide, notorious
or otherwise, the results of which in New York County for ten years are
set forth in the following table:

YEAR CONVICTIONS ACQUITTALS CONVICTIONS ACQUITTALS
PER CENT PER CENT
1901.........25............17..........60............40
1902.........31............11..........74............26
1903.........42.............8..........84............16
1904.........37............14..........72............28
1905.........32............13..........71............29
1906.........53............22..........70............30
1907.........39............10..........78............22
1908.........35............17..........67............33
1909.........43............11..........80............20
1910.........45............15..........75............25
TOTAL.......382...........138......Av. 74........Av. 27

A popular impression exists at the present time that a man convicted of
murder has but to appeal his case on some technical ground in order to
secure a reversal, and thus escape the consequences of his crime. How
wide of the mark such a belief may be, at least so far as one locality
is concerned, is shown by the fact that in New York State, from 1887 to
1907, there were 169 decisions by the Court of Appeals on appeals from
convictions of murder in the first degree, out of which there were only
twenty-nine reversals. Seven of these defendants were again immediately
tried and convicted, and a second time appealed, upon which occasion
only two were successful, while five had their convictions promptly
affirmed. Thus, so far as the ultimate triumph of justice is concerned,
out of 169 cases in that period the appellants finally succeeded in
twenty-two only.

Since 1902 there have been twenty-seven decisions rendered in
first-degree murder cases by the Court of Appeals, with only three
reversals.* (* Written in 1909.) The more important convictions
throughout the State are affirmed with great regularity.

As to the conduct of such cases, the writer's own experience is that
a murder trial is the most solemn proceeding known to the law. He has
prosecuted at least fifty men for murder, and convicted more than he
cares to remember. Such trials are invariably dignified and deliberate
so far as the conduct of the legal side of the case is concerned.
No judge, however unqualified for the bench; no prosecutor, however
light-minded; no lawyer however callous, fails to feel the serious
nature of the transaction or to be affected strongly by the fact that
he is dealing with life, and death. A prosecutor who openly laughed
or sneered at a prisoner charged with murder would severely injure his
cause. The jury, naturally, are overwhelmed with the gravity of the
occasion and the responsibility resting upon them.

In the Patterson, Thaw, and Molineux cases the evidence, unfortunately,
dealt with unpleasant subjects and at times was revolting, but there was
a quiet propriety in the way in which the witnesses were examined
that rendered it as inoffensive as it could possibly be. Outside the
court-room the vulgar crowd may have spat and sworn; and inside no doubt
there were degenerate men and women who eagerly strained their ears to
catch every item of depravity. But the throngs that filled the courtroom
were quiet and well ordered, and the justified interested outnumbered
the morbid.

The writer deprecates the impulse which leads judges, from a feeling
that justice should be publicly administered, to throw wide the doors
of every courtroom, irrespective of the subject-matter of the trial. We
need have no fear of Star Chamber proceedings in America, and no harm
would be done by excluding from the courtroom all persons who have no
business there.

It is, of course, not unnatural that in the course of a trial occupying
weeks or months the tension should occasionally be relieved by a gleam
of humor. After one has been busy trying a case for a couple of weeks
one goes to court and sets to work in much the same frame of mind in
which one would attack any other business. But the fact that a small
boy sometimes sees something funny at a funeral, or a bevy of giggling
shop-girls may be sitting in the gallery at a fashionable wedding,
argues little in respect to the solemnity or beauty of the service
itself.

What are the celebrated cases--the trials that attract the attention
and interest of the public? In the first place, they are the very cases
which contain those elements most likely to arouse the sympathy and
prejudices of a jury--where a girl has taken the life of her supposed
seducer, or a husband has avenged his wife's alleged dishonor. Such
cases arouse the public imagination for the very reason that every
man realizes that there are two sides to every genuine tragedy of
this character--the legal and the natural. Thus, aside from any other
consideration, they are the obvious instances where justice is most
likely to go astray.

In the next place, the defence is usually in the hands of counsel of
adroitness and ability; for even if the prisoner has no money to pay his
lawyer, the latter is willing to take the case for the advertising he
will get out of it.

Third, a trial which lasts for a long time naturally results in creating
in the jury's mind an exaggerated idea of the prisoner's rights, namely,
the presumption of innocence and the benefit of the reasonable doubt.
For every time that the jury will hear these phrases once in a petty
larceny or forgery case, they will hear them in a lengthy murder trial
a hundred times. They see the defendant day after day, and the relation
becomes more personal. Their responsibility seems greater toward him
than toward the defendant in petty cases.

Last, as previously suggested, murder cases are apt to be inherently
weaker than others, and more often depend upon circumstantial evidence.

The results of such cases are therefore an inadequate test of the
efficiency of a jury system. They are, in fact, the precise cases where,
if at all, the jury might be expected to go wrong.

But juries would go astray far less frequently even in such trials were
it not for that most vicious factor in the administration of criminal
justice--the "yellow" journal. For the impression that public trials
are the scenes of buffoonery and brutality is due to the manner in which
these trials are exploited by the sensational papers.

The instant that a sensational homicide occurs, the aim of the editors
of these papers is--not to see that a swift and sure retribution is
visited upon the guilty, or that a prompt and unqualified vindication is
accorded to the innocent, but, on the contrary, so to handle the matter
that as many highly colored "stories" as possible can be run about it.

Thus, where the case is perfectly clear against the prisoner, the
"yellow" press seeks to bolster up the defence and really to justify
the killing by a thinly disguised appeal to the readers' passions. Not
infrequently, while the editorial page is mourning the prevalence of
homicide, the front columns are bristling with sensational accounts of
the home-coming of the injured husband, the heartbreaking confession of
the weak and erring wife, and the sneering nonchalance of the seducer,
until a public sentiment is created which, if it outwardly deprecates
the invocation of the unwritten law, secretly avows that it would have
done the same thing in the prisoner's place.

This antecedent public sentiment is fostered from day to day until it
has unconsciously permeated every corner of the community. The juryman
will swear that he is unaffected by what he has read, but unknown to
himself there are already tiny furrows in his brain along which the
appeal of the defence will run.

In view of this deliberate perversion of truth and morals, the
euphemisms of a hard-put defendant's counsel when he pictures a chorus
girl as an angel and a coarse bounder as a St. George seem innocent
indeed. It is not within the rail of the courtroom but within the pages
of these sensational journals that justice is made a farce. The phrase
"contempt of court" has ceased practically to have any significance
whatever. The front pages teem with caricatures of the judge upon the
bench, of the individual jurors with exaggerated heads upon impossible
bodies, of the lawyers ranting and bellowing, juxtaposed with sketches
of the defendant praying beside his prison cot or firing the fatal shot
in obedience to a message borne by an angel from on high.

How long would the "unwritten law" play any part in the administration
of criminal justice if every paper in the land united in demanding, not
only in its editorials, but upon its front pages, that private vengeance
must cease? Let the "yellow" newspapers confine themselves simply to
an accurate report of the evidence at the trial, with a reiterated
insistence that the law must take its course. Let them stop pandering
to those morbid tastes which they have themselves created. Let the
"Sympathy Sisters," the photographer, and the special artist be excluded
from the court-room. When these things are done, we shall have the same
high standard of efficiency upon the part of the jury in great murder
trials that we have in other cases.