Fickert stated in the discussion which followed that he wanted his motion to apply to all the other graft cases of the same class as Calhoun’s, with the exception of the defendants Ruef and Schmitz. But here again did the Judge deny the District Attorney’s request.
After Judge Lawlor’s ruling, Calhoun’s attorneys announced themselves ready to proceed with the trial of the case. Fickert stated that he would be ready in a week. Judge Lawlor thereupon questioned Fickert very closely about the absent witness, Gallagher. Fickert gave assurance that diligent hunt was being made for the witness.
The questioning of the District Attorney was continued ten days later when the case again came up. Judge Lawlor asked Fickert to tell definitely whether he proposed to put the issue before a jury in the absence of his material witness.
Fickert replied that Gallagher’s absence greatly weakened the State’s case, and that in his belief certain facts could not be proved without Gallagher being present. But as for that, Fickert insisted that even with Gallagher present he did not believe that the State could make out a case.[460] Nevertheless, he continued to insist that he was ready to proceed to try the action even in the absence of the witness Gallagher.
But Judge Lawlor announced that he did not propose to proceed with the trial of the action:
(1) If a material witness were without the jurisdiction of the court.
(2) If the court did not believe that the cause were to be prosecuted with the vigor and fidelity that the law contemplates.[461]
Fickert also stated his position. He insisted that he did not believe that any evidence had ever existed against the trolley-graft defendants Abbott and Mullally, and did not believe it to be his duty as District Attorney to prosecute men against whom there was no evidence. Fickert even attempted to commit Judge Lawlor to this proposition, by stating that the Judge in chambers had confessed as much. This Judge Lawlor denied. Mr. Fickert’s assistant, Mr. Berry, had been present during the discussion in chambers between Mr. Fickert and Judge Lawlor, but Mr. Berry failed to sustain his chief’s contention.[462] “In these cases, the cases against Mr. Abbott and Mr. Mullally,” said Fickert, “I shall never proceed in them because there is absolutely no evidence which at all gives even a suspicion.”
In respect to the other cases, Mr. Fickert announced that he intended to take the same course that he had in those under discussion, and stated that if the Judge so desired he would advise him before hand as to which of the cases he intended to make a motion for dismissal.
“In view of the statement you made on February 7,”[463] replied Judge Lawlor, “the Court will not feel called upon to grant any application looking to a dismissal of any of those cases. The Court will finally deal with them in the manner prescribed by the law. And if that situation is not reached so that the Court can proceed with the trial, the Court will be under the solemn obligation of setting down in its minutes the reason why a trial has not been had in any particular instance, and why cases are dismissed or disposed of without the trial of the general issue. The Court cannot escape its responsibilities. I have pointed out that under the law it is for the Court to say finally what shall become of cases that are not pressed to conclusion, and when the Court does that it must give its reasons—the law says so. In this State, since the formation of the government therein, the power has not for any considerable length of time lodged in the District Attorney to dispose of actions; that matter is confided to the Court. Counsel will be doing injustice to his own position if he assumes that the Court has any other attitude than to finally dispose of these matters according to the law without doing injustice to any person, either to the District Attorney or any person who is unfortunate enough to be involved. But when the Court comes to write down its action it will be based upon what it believes to be the fact and upon nothing else.”