“It is exceedingly unfortunate that the present trial should have been interrupted in this unforeseen fashion. A judicial declaration upon the issues involved would have been of very decided value to all classes of society. As the evidence has been detailed day after day in the very full reports in the columns of the Times, the people have been able to gain a clearer and more exact idea of the incidents of the great strike than was possible in the moments of heated controversy last summer. It does not seem like over-statement to say that there was every indication that the defense would be successful. The charge of conspiracy had not, at the time of the abrupt termination of the case, been at all forcefully substantiated. Interviews with the released jurors establish the fact that they would have acquitted the defendants had the case been carried to its regular conclusion. It is credibly asserted that the prosecution has for some time apprehended such an outcome of the trial, and it was probably for this reason that the attorneys for the Government exercised their undoubted right to protest against continuing with an incomplete jury.
“In this situation the question arises whether the Government shall proceed further with this prosecution. Heavy expense is involved in it and it will consume much of the time of a court already overcrowded with business. It is just, too, to call attention to the fact that the defendants are poor men. The expenses of the defense thus far have been met by voluntary contributions from other poor men, who are in sympathy with the men on trial. There is obvious injustice in enlarging this financial burden by bringing these men again to trial.
“In the opinion of the Times enough has been done to maintain the dignity of the State in this matter. Further prosecution of Debs and his associates would look like persecution. The Government would better abandon the case forthwith.”—Editorial, Chicago Times, February 13, 1895.
“WANT A TWELFTH JUROR.”
“Then there was a consultation between Court and counsel as to what to do. To discharge this jury and commence all over again would occasion a waste of time and delay which neither Court nor counsel wanted to permit, if there was any possible way of avoiding it. However, counsel for the Government seemed more easily able to reconcile themselves to it than anybody else. There was a very strong impression in the courtroom that the Government counsel had conceived the opinion that the jury would not convict, and were not altogether sorry something had arisen to give them a chance for a new jury.
“General Black at first thought that they could proceed with a jury of eleven, if the defendants would agree. The defendants were ready to agree, but took the view, and Judge Grosscup shared it with them that such a stipulation would be a fatal error. Finally, General Black came to this conclusion himself. Then the defense made a proposition itself. This was in effect that the present jury be discharged and a new one at once impaneled, consisting of the eleven of the present jurors and a twelfth man; that for the benefit of this twelfth man the evidence already taken might be read over. In support of this proposition Mr. Gregory read a lot of authorities, some of them interesting in themselves, aside from any aid they might be in the present case.
“The proposition was talked about informally between the Court and counsel, and the more they talked about it the more feasible it seemed. But before it was finally decided on Judge Grosscup wanted to sleep over it. So he adjourned court until 10 o’clock this morning.”
DARROW MAKES A MOTION.
“‘In this case, your Honor,’ said Mr. Darrow, when the court resumed at the afternoon session, ‘we wish to make a motion in the event that the Court should decide that it is not competent to proceed with the eleven jurors, that the place of the sick juror should be filled and the case proceeded with after the evidence has been read over to the new juror, we think we have authorities on that point and we will present them to your Honor. The evidence could be read over and that would save the whole time that would be occupied in representing the case to the Court. If General Black admits this to be right, we would like to present these authorities to the Court.’
“‘When the court adjourned after the conference in your Honor’s chambers this morning,’ said General Black, ‘I made an investigation of the points involved and I found one authority upon the point which, it seems to me, settles the question. It is the case of Callan against Wilson, decided by Justice Harlan. In that decision the judge discusses the question as to the rights of trial by jury under similar circumstances to this case, touching particularly the right of trial in conspiracy cases, and holds that it is an inalienable right that there should be a trial by jury, which means a jury of twelve men. The authority is so conclusive that I must abandon my position.’”—Chicago Times, February 12, 1895.