Courts and Criminals

by Arthur Cheney Train

In default of any other defence, some criminal attorneys have been known to seek to excite sympathy for their helpless clients by appearing in court so intoxicated as to be manifestly unable to take care of the defendant's interests, and prisoners have frequently been acquitted simply by virtue of their lawyer's obvious incapacity. The attitude of the jury in such cases seems to be that the defendant has not had a "fair show" and so should be acquitted anyway. Of course, this appeals to the juryman's sympathies and he overlooks the fact that by his action the prosecution is given no "show" at all.

Generally speaking, the advice credited to Mr. Lincoln, as being given by him to a young attorney who was about to defend a presumably guilty client, is religiously followed by all criminal practitioners:

"Well, my boy, if you've got a good case, stick to the evidence; if you've got a weak one, go for the People's witnesses; but—if you've got no case at all, hammer the district attorney!"

As a rule, however, criminal lawyers are not in a position to "hammer" the prosecuting officer, but endeavor instead to suggest by innuendo or even open declaration his bias and unfairness.

"Be fair, Mr.—!" is the continual cry. "Try to be fair!"

The defendant, whether he be an ex-convict or thirty-year-old professional thief, is always "this poor boy," and, as he is not compelled by law to testify, and as his failure to do so must not be weighed against him by the jury, he frequently walks out of court a free man, because the jury believe from the lawyer's remarks that he is in fact a mere youthful offender of hitherto good reputation and deserves another chance.

By all odds the greatest abuse in criminal trials lies in the open disregard of professional ethics on the part of lawyers who deliberately supply of themselves, in their opening and closing addresses to the jury, what incompetent bits of evidence, true or false, they have not been able to establish by their witnesses. There is no complete cure for this, for even if the judge rebukes the lawyer and directs the jury to disregard what he has said as "not being in the evidence," the damage has been done, the statement still lingering in the jury's mind without any opportunity on the part of the prosecutor to disprove it. There is no antidote for such jury-poison. 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 district attorney may shout himself hoarse, the judge may pound his gavel in righteous indignation, the lawyer may apologize because in the zeal with which he feels inspired for his client's cause he perhaps (which only makes matters worse) has overstepped the mark—but some juryman may suppose that, after all, the prisoner is a hero or nine times a father.

There is one notorious attorney who poses as a philanthropist and who invariably promises the jury that if they acquit his client he will personally give him employment. If he has kept half of his promises he must by this time have several hundred clerks, gardeners, coachmen, choremen and valets.

In like manner attorneys of this feather will deliberately state to the jury that if the defendant had taken the stand he would have testified thus and so; or that if certain witnesses who have not appeared (and who perhaps in reality do not exist at all) had testified they would have established various facts. Such lawyers should be locked up or disbarred; courts are powerless to negative entirely their dishonesty in individual cases.

Clever counsel, of course, habitually make use of all sorts of appeals to sympathy and prejudice. In one case in New York in which James W. Osborne appeared as prosecutor the defendant wore a G.A.R. button. His lawyer managed to get a veteran on the jury. Mr. Osborne is a native of North Carolina. The defendant's counsel, to use his own words, "worked the war for all it was worth," and the defendant lived, bled and died for his country and over and over again. In summing up the case, the attorney addressed himself particularly to the veteran on the back row, and, after referring to numerous imaginary engagements, exclaimed: "Why, gentlemen, my client was pouring out his life blood upon the field of battle when the ancestors of Mr. Osborne were raising their hands against the flag!" For once Mr. Osborne had no adequate words to reply.