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

by Arthur Cheney Train

Your shopkeeper in England makes a less intelligent, but a far more satisfactory juror. There they will empanel a jury in a few moments in a capital case, and so deeply implanted in the bosom of each juryman is a respect for the law as such and an inherited reverence for the judiciary, which its uniformly high character has done so much to foster, that, provided the facts are sufficiently established, the sex of the defendant, the condition of his or her family, the character of the motive for the act, will not be the subject of discussion or even of consideration in determining the verdict. It is enough that they are sworn to decide the facts and the facts alone. They are told by the judge what evidence they may consider, and what facts they may not consider, and did they not obey his instructions they would receive the severe censure of the public and the press.

There is an historical reason for this. In 1666, when a jury found a verdict of manslaughter after having been instructed that the evidence showed that it was murder, Kelyng, C.J., promptly fined them five pounds apiece. On petition, he reduced it to forty shillings, "which they all paid." In 1667 he fined eleven of the grand jury twenty pounds apiece for refusing to indict for murder. The judges of the King's Bench said he was quite right, adding, "and where a petty juror, contrary to directions of the court, will find a murder manslaughter, ... yet the court will fine them" (King vs. Windham, 2 Keble, 180). For centuries it was the common practice to punish severely by imprisonment, fine, and attainder juries who refused to convict on what appeared to the court to be sufficient evidence. Perhaps Throckmorton's case in 1554, when the jury acquitted the defendant of treason, is the most famous illustration of this. The court committed the jury to prison, eight being confined from April 17 to December 12, and on their discharge fined them, some sixty and some two hundred and twenty pounds apiece. The reasoning under the circumstances was obvious. If a jury found a man guilty improperly, he could be pardoned, but "if, having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime ... the prisoner escapeth...." It is refreshing to observe that even English juries "will do [this] sometime." All this naturally created, as it was designed to create, a tremendous regard for the judge and his instructions.

There is at the present time little of this wholesome regard for law in America. The jury realize that the judge's elevation to the bench is often a matter of politics alone, and sometimes have comparatively little respect for his character, learning, or ability. They frequently feel by no means confident that the punishment will fit the crime, and are anxious, so far as they can, to dispose of the case for themselves. For example, in one case where three defendants were found guilty of stealing in company a single article of value, the jury rendered a verdict of grand larceny in the first degree against one, grand larceny in the second degree against another, and petty larceny against the third. They did this because of the varying ages of the defendants, but in so doing obviously violated their oaths and usurped the functions of the judge. Very likely "substantial justice" was accomplished.

There are hundreds of jurors who, having in all honesty taken the oath to "a true verdict find," will, once in the jury-room, frankly turn to their fellows and exclaim: "Oh, let him go! He's only a kid. Give him another chance!" "Substantial justice," again at the expense of our regard for law.

As an example of what may occur, the case of Rosa di Pietro, tried for murder before the Recorder, in December, 1904, is illuminating. The defendant was a young Italian woman of good repute charged with shooting and killing her brother-in-law, who, the evidence clearly showed, had endeavored to persuade her to yield to his desires. She claimed to have shot him in self-defence. Her story was so obviously a fabrication that no jury could have believed her, and must have found (if they had considered the matter at all) that she pursued her would-be seducer down the stairs and shot him in a dark hallway, as he was leaving the building. A "special" jury of perfectly intelligent men promptly acquitted her. The writer presumes that after this all the Italian residents will get their wives to do their killing for them.

In a well-known case the jury found the defendant guilty of manslaughter, instead of murder, because one of their number had read that the prisoner had been a "Rough Rider" in the Cuban campaign. After they had returned their verdict they learned that he had been nothing of the kind.

The action of the New York County jury in a criminal case is right as to the defendant's guilt or innocence about four times out of five, but less frequently as to the appropriate degree of crime.[36] The percentage of proper verdicts differs, of course, in different varieties of crime. In cases of common felony, such as larceny, burglary, rape, robbery, arson, forgery, etc., it is usually high; in homicides and gambling much lower; and in commercial frauds and liquor-tax cases smaller still, the number of convictions being inconsiderable. Making due allowance for the unconscious prejudices, sympathies, and idiosyncrasies of mankind, we have still, as citizens, a right to demand a far higher degree of accuracy in the verdicts of our juries—to expect the murderer to be found guilty of murder and the thief to be stigmatized as a thief. What is the explanation for this?

The fundamental reason for the arbitrary character of the verdicts of our juries lies not in our lack of intelligence as a nation, but in our small regard for human life, our low standard of commercial honesty, our hypocrisy in legislation, our consequent lack of respect for law, and the general misapprehension that the function of the jury is to render "substantial justice"—a misapprehension fostered by public sentiment, the press, and even in some cases by the bench itself, to the complete abandonment of the literal interpretation of the juror's oath of office.

The writer has heard judges from the bench congratulate juries upon having rendered a "merciful verdict"! They are popularly expected "to temper justice with mercy," "exercise a wise discretion," and "to be moved to magnanimity." But the jurors who satisfy their emotions at the expense of their honesty, and the judge who countenances the performance, are worse law-breakers than the defendant himself.

We carry upon our statute books laws which we have no intention of enforcing, and which, in our present state of development, are actually unenforceable. Even law-abiding, law-loving, and (ordinarily) conscientious jurors will become lawless when compelled to sit in a case of this character. Thus while the three judges of Special Sessions find guilty some sixty per cent of those brought before them for violations of various phases of the liquor-tax law, a conviction by a jury in the General Sessions is practically unheard of. The grand jury have now reached the point where they practically refuse to indict at all in liquor-tax cases.[37] Just as long as we have hypocrisy in religion, in business, and in legislation, so long shall we have hypocrisy in our courts of justice.