Courts, Criminals and the Camorra

by Arthur Cheney Train

Then, to the false and exaggerated cable of the correspondent the “write-up man” lends his imagination; significant and important facts are omitted altogether, and the public is led to believe that an Italian criminal trial consists of a yelling bandit in a straitjacket, with a hysterical judge and frenzied lawyer abusing each other’s character and ancestry.

Let the writer state, at the outset, that he has never in his legal experience seen a judge presiding with greater courtesy, patience, fairness, or ability, or keeping, as a general rule, under all the circumstances, so perfect a control over his court, as the president of the assize in which the prosecution of the Camorra is being conducted; nor is he familiar with any legal procedure better fitted to ascertain the truth of the charges being tried.

In studying the Camorra trial at Viterbo, or any other Italian or French criminal proceeding, the reader must bear in mind that there is a fundamental distinction between them and our own, and that there are two great and theoretically entirely different systems of criminal procedure, one of which is the offspring of the Imperial Roman law and the other entirely Anglo-Saxon. One is the Roman or inquisitorial system, and the other the English or controversial. Under the former the officers of the state are charged with the duty of ferreting out and punishing crime wherever found, and the means placed at their disposal are those likely to be most effective for the purpose. The theory of the latter is that, to some extent at least, a criminal trial is the result of a dispute between two persons, one the accuser and the other the accused, and that the proceeding savors of a private law-suit. Now, it is obvious that, in principle at least, the two systems differ materially. In the one, the only thing originally considered was the best way to find out whether a criminal were guilty and to lock him up, irrespective of whether or not any private individual had brought an accusation against him. In the other, somebody had to make a complaint and “get his law” by going after it himself to a very considerable extent.

The history of the development of these diverse theories of criminal procedure is too involved to be discussed here at any length, but inasmuch as the most natural way of ascertaining whether or not a person has been guilty of a crime is to question him about it, the leading feature of the Continental system is the “question,” or inquisitorial nature of the proceedings, whereby the police authorities, who are burdened with the discovery and prosecution of crime, initiate the whole matter and bring the defendant and their witnesses before an examining magistrate in the first instance. The procureur (district attorney) in France and the procuratore del re in Italy represent the government and are part of the magistracy. They are actually quasi-judicial in their character, and their powers are infinitely greater than those of our own prosecutors, who occupy a rather anomalous position, akin in some ways to that of a procureur, and at the same time, under our controversial practice, acting as partisan attorneys for the people or the complainant.

The fundamental proposition under the inquisitorial system is that the proceeding is the government’s business, to be conducted by its officers by means of such investigations and interrogations as will most likely get at the truth. Obviously, the quickest and surest means of determining the guilt of a defendant is to put him through an exhaustive examination as soon as possible after the crime, under such surroundings that, while his rights will be safeguarded, the information at his disposal will be elicited for the benefit of the public. The fact that in the past the Spanish Inquisition made use of the rack and wheel, or that to-day the “third degree” is freely availed of by the American police, argues nothing against the desirability of a public oral examination of a defendant in a criminal case. If he be given, under our law, the right to testify, why should he be privileged to remain silent?

The Anglo-Saxon procedure, growing up at a time when death was the punishment for almost every sort of offence, and when torture was freely used to extort confessions of guilt, developed an extraordinary tenderness for accused persons, which has to-day been so refined and extended by legislation in America that there is a strong feeling among lawyers (including President Taft) that there is much in our practice which has outlived its usefulness, and that some elements of Latin procedure, including the compulsory interrogation of defendants in criminal cases, have a good deal to recommend them.

A French or Italian criminal trial, therefore, must be approached with the full understanding that it is a governmental investigation, free from many of the rules of evidence which Bentham said made the English procedure “admirably adapted to the exclusion of the truth.” The judge is charged with the duty of conducting the case. He does all the questioning. There is no such thing as cross-examination at all in our sense, that is to say, a partisan examination to show that the witness is a liar. The judge is there for the purpose of determining that question so far as he can, and the jury are not compelled to listen to days of monotonous interrogation during which the witness is obliged to repeat the same evidence over and over again, and testify as to the most minute details, under the dawdling of lawyers paid by the day, who not only “take time, but trespass upon eternity.”

Such a trial is conducted very much as if the judge were a private individual who had discovered that one of his employees had been guilty of a theft and was trying to ascertain the identity of the guilty party. Practically anything tending to shed light upon the matter is acceptable as evidence, and the suspected person is regarded as the most important witness that can be procured. Finally, and in natural course, comes the confronting of accuser and accused.

Then fellow-servant on the one hand, or formal accuser upon the other, steps forward, and they go at it “hammer and tongs,” revealing to their master, the public, or the jury, the very bottom of their souls; for no man, least of all an Italian, can engage an antagonist in debate over the question of his own guilt without disclosing exactly what manner of man he is.

With these preliminary considerations upon the fundamental distinction between the Latin and the Anglo-Saxon criminal procedure, and without discussing which theory, on general principles, is best calculated to arrive at a definite and effective conclusion as to the guilt of an accused, let us enter the ancient Church of San Francesco at Viterbo, and listen for a moment to the trial of the thirty-six members of the Neapolitan Camorra.