The Prisoner at the Bar: Sidelights on the Administration of Criminal Justice

by Arthur Cheney Train

Now, nothing on its face would seem to be fairer. What the jury actually heard was:

"If [scornfully] you believe the defendant's testimony you will of course acquit him. He is presumed [with a shrug of the shoulders] to be innocent until the contrary is proved. If you have [another shrug] any reasonable doubt as to his guilt you must give him the benefit of it. On the other hand, if you accept the testimony offered in behalf of the People you may and will convict him!" [The last few words in tones of thunder.]

Sometimes a judge becomes known as a "convicting" judge, although, perhaps, at the same time as a learned one. This usually occurs where a man of pronounced opinions with the advocate's temperament is elevated to the bench. Very likely by inclination he is a "prosecutor," with strong prejudices against law-breakers and bitterly intolerant of technicalities. The powers that prey may cower inert in their dens of darkness knowing full well that if one of them be haled before this Jeffries he will pay the uttermost penalty. Yet the spectacle of such a judge does not increase the public respect for law, and juries sometimes revolt and acquit out of sheer resentment at such dictation. But happily these men are of the past, and the more enlightened sentiment of to-day would frown as much upon a "hanging" judge as upon a jelly-backed wearer of the gown who was afraid of the displeasure of some politician if a "heeler" were convicted and who ruled systematically against the people because they had no appeal and could take no exceptions to his conduct.

Nothing strikes so sharply at our conception of liberty as the failure of criminal justice, and the conviction of a defendant not legally proven guilty or the acquittal of an influential criminal has a more disastrous effect upon the body politic than ten thousand bales of anarchistic propaganda. The partisan judge, who makes up his mind to convict or acquit if he can, may be right nine times out of ten, but the other time he commits an outrage. The judicial temperament is a jewel above all price. The writer recalls a certain case of a variety subject at the time to great public condemnation, where the judge before the indictment was moved for trial, inquired casually of the clerk what the defendant was charged with. When he learned the nature of the accusation he exclaimed audibly:

"Ha! He's one of those ——s, is he? Well, I'll try this case." And he did. Unfortunately judges often "try" cases, either for the defendant or against him.

Nothing is more unfortunate for the judicial equilibrium than the fact that the prosecution has no right of appeal in the event of a verdict of acquittal. The judge may persistently prevent the district attorney from putting questions which are both competent and proper and rule flatly against him on the most obvious points of law without any redress on the part of the people. A weak judge will take no chances on being reversed and will pursue this course, while at the same time he is allowing every latitude to defendant's counsel and is ruling in his favor in defiance of the established doctrines of law.

A criminal lawyer of great adroitness, learning and probity, after he had concluded an argument of the most utter absurdity to which the presiding judge had listened with much attention and apparent consideration, frankly stated to the writer:

"You think my argument was nonsense? Well, you are quite right, it was. But no proposition of law is too far-fetched or ridiculous to be advanced in behalf of a defendant without some prospect of success in our criminal courts." The lawyer in question will undoubtedly recognize his dictum in these pages.

The attitude and disposition of the various judges becomes speedily known among the members of what is popularly known as the "criminal bar," and heroic efforts (often successful) are made to bring certain cases before the "right" judge.