In the District Attorney’s Office
“Like all dramas, that presented at the Criminal Courts Building has also a side transacted behind the scenes which the jury, as audience, never sees.”
The public forms its impressions of the administration of the criminal law in the county of New York—very naturally—from the accounts it reads of important and intricate cases, and therefore—very naturally, again—believes that defendants languish long in prison, awaiting trial; that the majority of them go free, or that, if convicted, the punishment of most of them is either defeated or delayed by technicalities and appeals.
As a matter of fact, these impressions are entirely erroneous, so far as the general enforcement of the criminal law in New York County is concerned. During the year 1903, the average length of time between a defendant’s arrest for felony and his trial—in cases where he was imprisoned awaiting trial—was less than two weeks. There were 2400 convictions by plea or verdict, to 615 acquittals; while out of 11,011 convictions during the five years 1898 to 1902 inclusive, the number of appeals brought to hearing was only ninety-five, and out of that number the ratio of affirmances of conviction to reversals has been nearly four to one.
The purpose of this article is to sketch very briefly some of the conditions attending the trail of average, commonplace felonies which are proceeding day after day, during every month of the year, in the county—the old city—of New York.
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The administration of the criminal law in New York, even in important cases, is far from a spectacular affair. In the Court of General Sessions, or the Criminal Branch of the Supreme Court, where all indictments for felonies are tried, the courtrooms are large and comfortable, flooded by the garish light of day, and, back of the rail reserving a space for the panel of jurors, filled by a motley crowd of witnesses and spectators, — Italians, negroes, long-bearded Polish and Roumanian Jews, poorly clad working women, and handsomely dressed women without visible occupation. At a table within an inner railing close by the jury-box will be sitting a collarless young man, or a much behatted young woman, listening attentively to the proceedings, while in the box will be twelve citizens, among whom it is safe to say that the German and Hebrew elements will predominate. If the trial is an ordinary one, for grand larceny, burglary, assault, etc., it will proceed very swiftly. The complainant takes the stand and tells his story, usually corroborated to a greater or lesser extent by a witness or two, and a police officer. “The people rest,” announces the prosecuting attorney. “Go round there, young man,” directs the counsel assigned to the defense; the defendant rises and passes around to the witness-chair, to the ordeal which will make or mar his chance for freedom, and the most important and interesting phase of the case begins, — the examination and cross-examination of the defendant, — an ordeal, but also a privilege, bestowed by the law within the past fifty years. After a brief charge by the Court, the jury file out; “John Jones to the bar,” calls the Clerk; another young man followed by an officer enters from the pens in the rear of the courtroom, and another jury is being impaneled before the first one is fairly out of the room. As the second trial commences, it will perhaps be interrupted, and a third young man will take his place at the bar, to whom the Clerk will address the somewhat pointed question: “John Smith, do you now desire to withdraw the plea of not guilty heretofore entered by you, and to now plead guilty of grand larceny, second degree?” Mr. Smith signifies by a sulky nod that such is his desire, whereupon further inquiries concerning his age, parentage, habits, etc., are put to him, concluding with one as to his prior convictions. The prisoner whispers to the officer standing by him, who calls to the Clerk, “In 1892, three years, burglary; in 1898, four years, grand larceny;” and the prisoner is remanded for sentence and led away, and the trial resumed. During the day from two to four cases will be disposed of by trial, and anywhere from one to seven or eight by plea of guilty. This is the ordinary, routine spectacle that goes on, day in and day out, in the four parts of the Court of General Sessions.
If the setting and actors in the endless drama are prosaic and commonplace, the drama itself is not, and its variety is endless. The victim of the saloon robbery follows as complainant a degraded little girl, punishment for whose moral perversion is being sought by the Society for the Prevention of Cruelty to Children; and he will be followed by the merchant whose packing cases have been pilfered, or by the woman whose purse has been snatched.
To take the actual record of an ordinary day: Maria Dzialozindky takes the stand and swears that after a brief acquaintance she married (as she supposed) the defendant before a rabbi of his choosing; a man in charge of an officer is identified by her as the rabbi; he is brought over from the Penitentiary on Blackwell’s Island where he is serving a sentence for larceny, being a thief and not a rabbi; Maria goes on to relate how the defendant than procured from her 4149, and disappeared, leaving her alone in the Suffolk Street tenement which was to have been their connubial bower of bliss; it further appears that the defendant had a wife living at the time that he went through the ceremony of a mock marriage with Maria. Defendant takes the stand, modestly admits that he is possessed of such unusual attractions that Maria persecuted him into this marriage; that she forced the $149 upon him, and that he unfortunately slumbered in a saloon and it was stolen from his person. The jury fails to give credence to his tale, and promptly convict him.
The next defendant is smooth and well dressed, a hanger-on in the region known as “the Tenderloin.” Testimony is given that he and another did take and carry away and sell certain typewriting machines from an office in Thirty-Fourth Street. Defendant with an engaging smile tells how his companion had just been discharged from the office in question, and had enlisted his (defendant’s) aid to remove the machines, which he informed defendant were his own, and how shocked he was later to learn that this wicked companion had no right or title to them. His smile is so engaging, and his looks so respectable, that the jury acquit him, and are somewhat chagrined when the judge, in discharging him, states that in the Court’s opinion he is a smooth and plausible thief and guilty beyond a doubt—which is the fact, as previous to the trial he had offered to plead guilty to a lower degree of the crime charged.
Next comes a stalwart Irishman who describes with much feeling how the defendant (unfortunately a much smaller man), without any provocation whatever, viciously assaulted him in the hallway of the West Side tenement house where they both lived, and cut him in various vital parts with a pocket knife. Defendant (bandaged to no less a degree than complainant) describes how he had “an argiment" (a term embracing any affray ending in anything short of murder in the first degree) with complainant and his brother over a game of cards, whereupon they followed him to the hallway, threw him down and kicked him, and he struck at them with a large key. His tale sounding reasonable and being corroborated by several neighbors, defendant is acquitted.
Lastly, an unsuspecting passenger and an alert trolley-car conductor tell how defendant, a shifty-looking young gentleman, while sitting next to the unsuspecting passenger, kept with one hand a newspaper shoved under the latter’s chin, while with the other he abstracted a fine diamond scarf pin adorning his cravat. When their tale is completed, the defendant and his counsel put their respective heads together, and counsel then announces, that his client, the sole support of a widowed mother, did, in a moment of temptation induced by filial anxiety, endeavor to acquire this pin, and he therefore desires to throw himself upon the mercy of the Court and plead guilty, which he does. It appears, however (of course to counsel’s astonishment), that his portrait has for several years ornamented the Rogues’ Gallery, and that his record as a son is not all that it might be, whereupon he is sentenced upon the spot, and court adjourns. This is the summary of the actual record of a court day presenting no unusual features.
Like all dramas, that presented at the Criminal Courts Building has also a side transacted behind the scenes which the jury, as audience, never sees. Many a jury will be wrestling (more profanely than prayerfully) over the case of some young man who, down in the pen before the trial, has expressed the shrewd opinion that “the judge ain’t going to give me more than Elmira, anyway, so I might as well chance it with them guys.” The philosophy of this intention is due to the fact that a man sent to the Elmira Reformatory is sent under an indeterminate sentence, to be determined by the authorities of the Reformatory, and therefore has nothing to gain by pleading guilty, and a chance to fool the “guys” by a plausible defense. And frequently the same wrestlings in spirit will be gone through in cases where the defendant has offered a plea of guilty of a lower degree of crime and the offer has been rejected. Of course such offers are confidential, and occasionally a defendant will walk out a free man, giving a triumphant grin, in which his attorney joins, at the prosecuting officer who refused the plea, while the jury are congratulating themselves on having vindicated an innocent man. And submerged beneath the facts admitted in evidence is very often another state of facts inadmissible under legal limitations, which would frequently put a very different complexion upon the case.
Take, for example, a certain case tried in the Criminal Branch of the Supreme Court in the January term of 1902. The jury saw the defendant, a stalwart, open-faced laboring man of nearly sixty years, on trial for murder in the first degree. They heard a bar-tender and a smooth-shaven, bullet-headed witness describe how the defendant win the saloon became involved in a dispute with the deceased, caused by the defendant’s bad taste in reminding him that he had done time for killing his own father; and they heard him of the bullet head admit on cross-examination that a scar adorning his neck had been inflicted by the deceased some two years before; they heard the two witnesses describe how the deceased left, breathing threatenings and slaughter, and how a few minutes later the defendant, in the room back of the saloon, was approaching the rear door, cutting a plug of tobacco with his knife, which he had providentially drawn for that purpose, when the deceased leaped upon him from the door and tried to stab him, whereupon a fight ensued, in which the defendant was cut, and after which the deceased left, followed a few minutes later by the defendant and the bullet-headed, who saw naught further of him. To mar the symmetry of this tale of self-defense (proved by the prosecution’s own case), but two jarring facts appeared, — first, the saloon proper (not the rear room) was found soaked in blood, and, second, the deceased was found shortly after defendant’s departure at three a. m. lying on the sidewalk in plain sight of the rear door, with his throat cut from ear to ear. No evidence was put in for the defense, the defendant modestly refrained from taking the stand, and of course an acquittal was inevitable.
From behind the scenes, however, the facts assumed a different aspect. The frank-faced defendant was one “Red,” who had served time for robbery and other offenses; the bullet head surmounted shoulders upon which rested a heavy load of crime and violence, their owner having served the State several times and been implicated in numerous crimes, including murder; the bar-tender would have considered it quite as safe, and far more comfortable, to put a bullet through his head than to testify against this choice pair; while it was true that the deceased had killed his own father, the act was performed, while parent and son were in a drunken fight, by striking the old man on the head with a water pitcher, and had occasioned great mortification to eh son when he became sober; and it was true that defendant and the bullet-headed were both bitter enemies of the deceased. On this statement of facts, there is little doubt that the deceased was murdered in the saloon where the blood was found, and his body thrown out on the sidewalk, and the story arranged, the defendant shouldering the quarrel because he had received a cut in the course of the fight. As the defendant did not take the stand, his record and character could not be shown; as the State was compelled to call the bar-tender and the other witness (they being the sole witnesses to the occurrence), it could not impeach their veracity nor attack their character. To the prosecuting officer, therefore, was presented the choice of recommending the “turning out” of a desperate criminal without a trial, or of putting in what facts the law permitted to be shown, and leaving the jury to acquit, while marveling that such a weak case should be presented to them.
One “Hoboken Jack,” when he was questioned confidentially in the district attorney’s office as to the circumstances attending his last conviction, picturesquely remarked, “Well, me an’ another gun was takin’ a flyer on de rattlers down to de dead-line, ringing shiners, an’ de bull made a collar, an’ it framed up for a ten-spot, so I put in a squeal;” which being translated is to say that “I and another thief took a trip on the trolley down to the dead-line, twisting watches off by the ring, and the policeman caught me, whereupon, the situation suggesting that I might get ten years, I deemed it advisable to plead guilty;” — which shows that the children of darkness are wise in their generation, —it being the only one about which they especially concern themselves.
With all their wisdom in evading the worst consequences of their acts, they got for the most part but small wages for their criminal labors. I recall three homicide cases tried during the year 1902, where disputes concerning money led directly to the killing, and the aggregate amount involved was eighty-five cents; and a few dollars received from a pawn-broker is the usual dividend on a state prison sentence. The “good-thing” and “get-rich-quick” men seem to form an exception to this rule, and the rich hauls made by them indicate that there has been no falling off in the birth-rate of “suckers” since the day when a noted confidence man declared that one was born every minute. One gang of these men, five members of which were convicted during the year 1903, took in upwards of $25,000 in little over a month, by a typical device. The victim was introduced to a voluble president of a mining company in his comfortable office, who confirmed the story of the introducer to the effect that eh company, in consequence of recent discoveries of ore, was buying in all of its stock obtainable at from fourteen to twenty dollars a share, and that it was unable to locate one of its former engineers who had left on account of illness before the discovery, owning a large number of shares. After long negotiation, the president would agree to buy at twenty dollars a share as much of the stock as the victim would offer within three days. The introducer, who had succeeded in locating the sick engineer, then led the victim to his bedside in some hotel, and the engineer, between his moans of pain, finally agreed to sell his stock at, say, nine dollars. The victim thereupon exchanged a substantial sum of good and lawful money of the United States for an elegant example of the engraver’s art, and diligently sought the president, who could not be found for three days, and who had during that period changed his mind as to the wisdom of the purchase. During the same period the health of the sick engineer always improved sufficiently to allow of his departure from his hotel, and he never thought it necessary to leave his address.
Another class of criminals whose gains reach substantial amounts, while their terms of punishment do not, consists of the well-connected embezzlers and men in good position who steal from their employers in various ways. These men are usually first offenders, of good appearance and address. Their guilt is almost always so mathematically demonstrable that they plead guilty, and then the reputable counsel whom they employ—counsel who consider the usual criminal practitioner far beneath them—deem it their duty to harass the judge with every form of “influence” in order to procure a suspension of sentence. Upon the day of sentence, their argument for clemency invariably amounts, when boiled down, to the statement that the defendant’s position in life was such that he was not impelled by poverty, want, or suffering, to commit this crime, and that by reason of good family influences and associations, he knew better than to commit it, and that therefore he should, on account of that position and those associations, be more leniently dealt with than the common offender. And, as a rule, he is. Crime brings with it other punishments than imprisonment, but as far as the danger of imprisonment in state prison is concerned, the well-connected embezzler’s risk, form a business point of view, is not much greater than that incurred by the ordinary business man in embarking on any ordinary commercial venture.
The question is often asked by laymen, how far an attorney may properly go in the defense of one known by him to be guilty. The answer would seem simple enough. In the first place, it is the right of a defendant to have his guilt proved, and fully proved by competent evidence, and nothing else, and it is his counsel’s duty to force the prosecution to prove its case, and no less his duty to prevent, if he can, the introduction of any improper proof; and this whether his client has privately admitted his guilt or not. When the prosecution rests, if the defendant has throughout protested his innocence, it is his right to take the stand and tell his story, however little belief in it may be placed by his counsel. But if a defendant has admitted his guilt to his counsel, the latter can no more be defended for allowing him to take the stand and perjure himself than he could be for aiding him in the concoction of a defense, or for calling other perjured testimony to his aid.
The duty of the prosecuting officer is even simpler. It is to present the truth and the truth only, to the jury, whether the truth tends to convict the guilty or to acquit the innocent. If he be in possession of any evidence believed by him to be reliable, which is favorable to the defendant, but not in the defendant’s power to produce, certainly he can no more properly suppress it than he can put in evidence believed by him to be false. His duty as a public officer requires from him no less the protection of the innocent than the punishment of the guilty.
It is a somewhat curious fact that the jury has for the most part but little to do with what is commonly meant by the criminal classes, that is, with those who have made a practice of crime. The large majority of the defendants who stand trial—in fact, probably eighty per cent—are first offenders, or at least defendants who have not been previously convicted. More defendants in New York County plead guilty than stand trial, — and among the former number are by far the great majority of those previously convicted. When a man never before “in trouble” can come before a jury with a fairly good address and a tale plausible but not too plausible, the State must present a strong case indeed to secure a conviction. But should the defendant, emboldened by an acquittal, persist in crime, sooner or later the chances are that his tale of woe will hear the fatal word “guilty” pronounced by the foreman. Alas for him then if he is caught again. The situation changes to one desperate indeed, for upon his next trial he has presented to him the choice of taking the stand, thereby allowing the prosecution to prove his criminal record; or of refraining from testifying in his own behalf and denying his guilt. In either case, his chances are small, and that the great majority of second offenders plead guilty proves that they appreciate that fact.
One frequently hears commended the policy of the criminal law, as administered in this country, which allows a defendant to take the stand in his own behalf, while the injustice of the common law in prohibiting a defendant from so doing is generally condemned. Curiously enough the only ground given for this opinion is that the present law tends to the protection of the innocent; while the no less obvious benefit it produces, namely, the withdrawal from the guilty man of a screen of silence behind which he can remain sheltered, seems to be quite unappreciated. The common law exclusion of a party as a witness in his own behalf was abolished in the state of New York, so far as it applied to civil cases, in 1849, and in criminal cases in 1869. The change was not generally approved by the Bench and Bar of the state, as is shown by the opinion of the Court of Appeals in the case of Ruloff v. The People (45 N. Y. 221), one of the first cases that came before it under the new practice. The court there intimate that the change will benefit the quick-witted and hardened criminal, who without embarrassment or hesitation will tell a plausible lie in his own defense; while the man falsely accused will through doubt, stupidity, or timidity, betray what might readily be taken for guilty confusion; and if, fearful of his ability to make a good witness, he should refrain from taking the stand, the jury, in spite of the prohibition of the law, will surely draw an inference of guilt from the failure of the defendant to deny it. This line of criticism was also quite common in England at and after the comparatively recent change there allowing a defendant to testify in his own behalf.
In trying to determine the justice of these criticisms, it is necessary to consider how the present law works in four cases, — that is, in the case of the innocent man who takes the stand; of the guilty man who takes the stand; of the guilty man who takes the stand; of the innocent man who does not do so; and of the guilty man who does not do so.
Taking the first case, it must be kept in mind that the jury is almost invariably desirous of acquitting rather than convicting; that it will be strongly charged that the defendant is presumed innocent, and that his guilt must be proved beyond a reasonable doubt, before he can be convicted; that the average city jury is an excellent judge of character and human nature. keeping these facts in mind, if an innocent defendant (especially one of previous good character) cannot, even in spite of strongly incriminating circumstances, infuse a reasonable doubt into the mind of the jury, he almost deserves a conviction.
To illustrate by taking almost at random a short and commonplace larceny case. The complainant, A, a well-dressed bar-tender, testified that he had known the defendant, B, for some time; that on the night in question B came to A’s rooms, and shortly after B’s departure, A found that his watch was missing; the watch had been in the pocket of A’s vest which A had left hanging on a chair, and A had stepped out of the room for ten minutes, leaving B alone there. B afterwards admitted to A that he had “hocked” the watch. Of course, this testimony, if believed, made a case against B, and it is difficult now to realize how any one could ever have believed that the chance of explaining or contradicting it could be more dangerous to B than the certainty of having A’s testimony go to the jury uncontradicted. B took the stand and testified that he was getting a good salary as manager of an “intelligence office;” had never been even arrested before; that A had obtained a loan of $15 from him and had left the watch with him on the understanding that B was to pawn it for $15 and give A the ticket; B did pawn it in his own name and was shortly thereafter arrested. This case is a fair illustration of a puzzling class. On the one hand, no motive or reason was shown why A should cause the arrest of his friend on a false charge (unless that of getting the watch back from the pawn-broker without payment of the $15, on the ground that it had been stolen, is an adequate one). Upon the other hand, B’s character and position in life seemed to make it unlikely that he would commit such a theft, and his act in pawning the watch under his true name gave color to his story. The jury acquitted, and who can say that there was not at least a reasonable doubt?
When the guilty man takes the stand, he enters into a mental duel with the prosecuting officer, the result of which will, of course, vary according to the abilities of the contending parties and the inherent strength of the case against the defendant. While doubtless many guilty men escape because of the privilege thus accorded them, there can be but little doubt that that number is less than would be the case if the privilege were withheld, and the defendant’s attorney, fully cognizant of his client’s guilt, could arise and shout, “Gentlemen of the jury, the law has gagged my innocent client! Here he must sit mute, when a moment’s explanation from him would clear this matter up and reveal the motives prompting this prosecution! Will you convict a man who has a perfect defense, which he is not allowed to utter in his own behalf?” This line of defense (as available to the guilty as to the innocent) would be a thousand-fold more difficult to overcome than all the ingenuities of perjured testimony. These considerations also apply to the fourth case mentioned above, that is, that of the guilty man who does not take the stand, — for they show how the privilege of taking the stand really deprives him of what would be his chief argument, were he prevented from doing so.
In the following case, taking into consideration the general bad character of the defendants, which could not be shown on the trial, and the respectability of the complaining witness, who was persona non grata to all her co-tenants (since she collected the rent for the landlord), and against whom they all united to shield the defendants, there is but little doubt that two guilty young ruffians escaped through the vividness of their imagination and the glibness of their tongues. The complainant, Mrs. S, who lived in a section of the city where life is strenuous, testified that on the night in question, R, one of the defendants, knocked at her door and asked for a pint of beer, which she refused to give. Some time later, at about midnight, she answered another knock, whereupon the defendants and two other young men entered, put out the light, smashed the furniture, threw Mrs. S upon the floor, and extracted a five-dollar bill from her stocking, and hearing somebody coming in answer to her screams, fled. Upon cross-examination, Mrs. S admitted that she had had a difficulty earlier in the evening with Mrs. D, wherein Mrs. D used a club, and she (Mrs. S) endeavored to defend herself with a hatchet; she denied trying to break in Mrs. D’s door with this instrument. The defendants then testified that, hearing Mrs. D alarming the neighborhood from her window with horrid cries for help, they went into the hallway and met Mrs. S descending with the hatchet. Refusing her reasonable request that they should go out and throw stones through Mrs. D’s windows, they were then invited by Mrs. S into her rooms, whither they went with two friends, and sat there for an hour or more, partaking of much beer and making much noise. Mrs. S apparently became violently infatuated with R, and many pleasantries, not to be here set down, ensued, in the midst of which a knock was heard, Mrs. S exclaimed, “My husband!” someone put out the lamp, and a wild rush was made for the door, during which Mrs. S was knocked down. Neighbors testified to the noise continuing in Mrs. S’s rooms for some time, and the jury acquitted.
This takes us to the case of the innocent man who does not take the stand, — and there is no such man, except in cases where the defendant has a criminal record. When a defendant takes the stand, he may be asked if he has ever before been convicted, and if he denies it falsely, his convictions may be proved. These weigh heavily against him with a jury, and consequently, where a man with a criminal record is on trial for an offense which he has not committed, it may well be that he will refuse to testify, knowing that the jury will not believe him when his bad character is brought to light. Whatever his choice, he is likely to be convicted, and the only consolation is that, while he may not have committed the crime in question, he undoubtedly has committed others for which he has gone unpunished. But where an innocent man of good character is on trial, he always takes the stand, and it is almost impossible to conceive of a case where it would be unwise for him to do so.
Doubtless all juries feel this, and it is well-nigh impossible for them to follow implicitly the instructions of the Court forbidding them to draw any inference unfavorable to the accused by reason of his failure to take the stand. Out of nearly three hundred defendants tried by me between January 1, 1902, and February 1, 1904, twenty-three failed to take the stand in cases submitted to the jury, twenty-one were convicted, one was acquitted, and as to one the jury disagreed. Had they been prevented by law from testifying in their own behalf, the ratio would have been very different.
The wisdom of the law in allowing all witnesses, interested and disinterested, of good character or of bad character, to be sworn, and testify to all facts concerning the crime that are relevant, competent, and material, is justified by the manner in which the jury disposes of the ordinary criminal case, — at least in the county of New York. In the county circuits where the parties and the counsel are likely to be known to the panel, this statement may hardly be accurate; but it certainly is true of the average New York jury. They will sit for an hour or so, listening attentively to the evidence, “sizing up” the witnesses, and particularly the defendant, bringing to bear their knowledge of the conditions prevailing among the class and in the part of the city in which the crime was committed, and will then file out to the jury room, through the closed doors of which can be heard loud and often heated and profane wranglings, — which will suddenly cease, and the jury will come filing back, with a self-satisfied air, and deliver a verdict which, in ninety-five per cent of the cases, is just about right, when looked at from the broad point of view of doing a substantial justice. Bearing in mind that the defendant’s guilt must be proved beyond a reasonable doubt, it is but seldom that a fair-minded prosecuting officer can quarrel with the verdicts of acquittal rendered in the county of New York. Frequently, juries will disagree in the most exasperating manner, owing to the presence of “the eleven obstinate men;” but when a verdict is rendered, it is safe to say that it is a vindication of the wisdom of the fathers in leaving the question of the guilt or innocence of a citizen to the judgment of twelve of his fellow citizens. Before that body the innocent man may gladly come, assured that his fellow citizens composing it desire to acquit rather than convict, and that their combined intelligence and knowledge of men will appreciate and sympathize with his embarrassment or slowness of wit; while the guilty man dreads the scrutiny of those twelve stolid common-sense faces, for whose composite he knows he is no match, and with reluctance does he break the silence which was formerly imposed upon him by the law.