“I think your Honor well knows,” Fickert had said, “that certain defendants in this particular class of cases, that there have not been produced here in Court, and I do not think ever existed, any evidence against them. I allude to Mr. Abbott and Mr. Mullally. And I so informed you in your chambers, and you in words confessed that proposition.”
Judge Lawlor took this statement up. The following is from the transcript:
“The Court: Now, before you pass to those other cases, in regard to these two cases do you make the statement that I made any statement to you, in the presence of Mr. Berry, that I said there was not sufficient evidence?
“Mr. Fickert: I so informed you, and you, in effect, so stated.
“The Court: Did you so understand it, Mr. Berry?
“Mr. Fickert: That there was no evidence against those men?
“Mr. Berry: I remember Mr. Fickert saying he did not consider there was any evidence against those men, but I do not remember the Court’s reply: I do not remember that the Court did reply.
“The Court: I did not. It is not the province of the Court to pass upon the facts in a criminal case. The facts are placed before a jury, and the jury pass on the facts.
“Mr. Fickert: I am certainly not mistaken in that matter.
“The Court: You are certainly mistaken in that matter; I was careful not to make any such statement.”