IT hardly needed the authority of President Hoover’s inaugural to convince the people of the United States that disregard of law constitutes one of the major problems with which the present generation is confronted, and that any intelligent inquiry as to how our laws may be better enforced necessarily involves a consideration of how the procedure of our criminal courts may be reformed.
That a reformation of this procedure is badly needed seems, indeed, to have been taken for granted not only by President Hoover, but by nearly everyone who has discussed the subject during the course of the last decade. The reforms suggested — or actually adopted in certain states — have been many and various. They include allowance of a conviction without proof of the defendant’s guilt beyond a reasonable doubt, abolition of the rule forbidding comment on his failure to testify in his own behalf, a reduction in the number of the jury, and abolition of the requirement of a unanimous verdict. Some of these innovations are comparatively unimportant, but in the aggregate they express a profound and growing distrust in trial by jury as a means of administering justice in criminal cases.
Now trial by jury is the most characteristic contribution which our race has made to the practical science of jurisprudence. On that account, if for no other reason, it ought not to be lightly discarded. It was, in its origin, essentially a rural instrumentality, and the interesting suggestion has been made on a number of occasions — notably by Dean Pound in addressing the Judicial Section of the American Bar Association in 1926 — that its present disrepute results very largely from the unsuccessful attempt to adapt it to the needs of an increasingly urban civilization. If this is so, it may be worth while to record the comments of a country lawyer on the trial procedure of courts in the large cities. Many of the matters usually included in the term ‘procedure’ are so universal and rigid as to be incapable of being changed except by constitutional amendment. Others, however, are entirely local and flexible, and are governed by rules of court, which may be altered at pleasure, or merely by the customary practices of the courts in which they occur. If trial by jury works better to-day in the country than in the cities, perhaps it does so less in the nature of the case than because, for reasons not in themselves compelling, it is administered in the country more nearly than elsewhere in accordance with its own genius and traditions. Perhaps, in short, there has been too much adaptation instead of too little, and the trouble is not so much with the instrument as with the way in which it has been used.
What most surprises a country lawyer about the trial of cases in large cities may be summed up in a single sentence. In most instances the practice followed seems extraordinarily wasteful of time. This comment is the more surprising because efficiency is, on the whole, preached with more fervor and practised with more consistency in the large cities than anywhere else. Indeed, in every connection except the trial of cases the city lawyer sets a record of promptness which the country lawyer cannot hope to equal.
In the course of a general country practice I have been employed at various times to prepare mortgages intended to secure issues of corporate bonds. A mortgage of this sort is an elaborate legal document whose average length is perhaps thirty thousand words. If I were instructed to-morrow to prepare one, there would be descriptions to secure, forms to consult, and various alternate provisions, both as to the terms of the bonds and as to the remedies of the bondholders in case of default, to consider and pass upon. A large amount of typewriting would have to be done. After the copy had been given to the printer there would be proof to read and corrections to make. At the very least it would take me a week to have such a mortgage ready for execution, though there are law firms in New York which would undertake to do the same work in twenty-four hours. And yet a country judge and two country lawyers can dispose of a murder case in a number of days no greater than the number of weeks which would be required to dispose of it in any one of a dozen metropolitan jurisdictions.
I once made this point in the course of an after-dinner speech in the presence of one of the leading trial lawyers at the New York bar. In the course of his own speech, which followed mine, he said, ‘My friend doesn’t know what practice in the country really is. He ought to move to [the Middle Western state in which the speaker had begun his own practice]. Out there they will try a case for four days for a fee of ten dol-lars.’ The remark struck me as significant because of its unconscious disregard of the point really involved. The speaker instinctively felt that it was a foolish thing to try a case for four days for a fee of ten dollars, though presumably not a foolish thing to try a case for forty days for a fee of, say, a thousand dollars a day. And yet it is to be observed that I had spoken — and that I am now writing — not about money, but about time. Great gifts receive, and deserve to receive, a great reward. The testimony is unanimous, however, that four days is a long time in which to try a case in the country.
But indeed I do not mean to argue that the jury system is good because it is prompt, though promptness is conceded to be one of its outstanding merits even by those who are opposed to the system as a whole. I mean rather that where the jury system is not administered promptly it is not administered characteristically and therefore is not administered well. Moreover, I am not referring to delay in bringing cases to trial. The problem of the congested court calendar is one peculiar to the big cities, and much good work has been done in recent years in the effort to solve it. I am referring to delay arising in the actual trial of cases from causes which have no necessary connection with the differences between conditions in the country and those in the cities.
Some of these causes were illustrated in the trial of George Remus for murder which took place in Cincinnati during the concluding months of the year 1927. The defendant had killed his wife on October 6 of that year, and his case was called on the fourteenth of the follow ing November. (There can be no denial, therefore, that he was accorded a speedy trial. Not many rural jurisdictions can show an average record of greater promptness, and I doubt whether greater promptness is in general desirable.) In some respects this was an extraordinary case. The defendant had formerly been a member of the bar, and he took an active and at times a very noisy part in his own defense. In other respects it was, however, an entirely ordinary case. The issues were in no way complicated. The killing was admitted, and the only defense was insanity, the defendant contending that he had been insane when he killed his wife but that he was sane at the time of the trial. Hypothetical questions were excluded, seemingly by agreement, and, as I read the newspaper reports of the proceedings, the testimony of all the alienists examined occupied only one day.
As previously stated, the defendant was called for trial on November 14. On December 20 his case was submitted to the jury, which rendered a verdict of not guilty in nineteen minutes. Including the nineteen minutes, the trial occupied thirty actual days, the time not spent in court between the two dates named being represented by Sundays and one additional day on which the presiding judge (no doubt a loyal alumnus) went to see the Ohio State football team in action.
The first five of these thirty days were spent in selecting a jury, and to a country lawyer this seems unreasonably long. Mr. Justice Riddell, Justice of Appeals of Ontario, Canada, in his interesting review of the Sacco-Vanzetti case which appeared in the Journal of the American Bar Association for December 1927, says that he never but once saw it take more than half an hour to obtain a jury in a murder case, and that, on that one occasion, it took forty-eight minutes. I am afraid that justice even in the rural parts of the United States is not quite so rapid as that of the Canadian variety, but it would be hard to convince an American country lawyer that there can be any good reason for spending more than a day, at the most, in the selection of a jury in any sort of case.
It appears that in Ohio the prosecution has four peremptory challenges in a murder case and the defense sixteen, though in a number of other states, my own included, each side has twenty. On the other hand, the practice followed in Ohio necessitates the selection of thirteen jurors — the thirteenth sitting as an emergency juror but taking no part in the decision of the case unless one of the other twelve is disqualified. As a matter of fact, however, the length of time required to obtain a jury does not depend to any great extent upon rules such as these, but upon the number and nature of the questions which counsel are permitted to ask prospective jurors. In my own jurisdiction the clerk of the court asks each juror three general questions: whether he has conscientious scruples against capital punishment; whether he has formed an opinion; and whether he can be impartial. I have occasionally heard counsel ask questions of their own — usually as to a possible relationship or intimacy with the accused or with witnesses who were to be called. I have never heard an examination intended to find out a juror’s state of mind, in the abstract, toward the antecedents of the defendant or toward such a defense as he was likely to interpose. Moreover, I do not know what is meant by seating jurors tentatively. When we seat them we do so for all purposes, and there is no opportunity to revise the decision.
In the Remus case the defendant was permitted to ask prospective jurors whether they would be prejudiced against him because he had (1) served a term in the federal prison at Atlanta, (2) testified before the Wheeler Senate investigating committee at Washington, (3) testified in the Warden Sartain case at Atlanta, and (4) been involved in the Jack Daniels distillery case in Indianapolis and St. Louis. A juror in answer to questions like these said, ‘I do not favor bootleggers.’ One of the defendant’s attorneys thereupon said, ‘You still have that prejudice against bootleggers, have n’t you, Miss Thompson?’ and counsel on the other side objected — it appears, not because of the scope of the examination, but because, as he put it, ‘every law-abiding person is supposed to be prejudiced against crime and criminals.’ A little later on the defendant, acting on his own behalf, asked a juror whether the fact that Mr. Taft, who was one of the counsel for the prosecution, was a son of the Chief Justice of the United States would prejudice the juror in the trial of the case. The juror answered, ‘No,’ and, turning to Mr. Taft, remarked, ‘Kind of funny how that is, that examination.’ A country lawyer thinks it is kind of funny, too, but five days of it is too much.
It is too much, not because time is of more importance than justice, but because, in addition to wasting time, it puts justice in jeopardy. If the questions propounded were not entirely without relevancy, it is fair to assume that those jurors who, like Miss Thompson, did not ‘favor bootleggers’ proved objectionable to the defendant, and that their fellows who lacked that prejudice against crime which, in the philosophy of counsel for the prosecution, every law-abiding person is supposed to have proved equally objectionable to the prosecution. Presumably, therefore, the ideal juror was someone without any views whatever about the enforcement of the Eighteenth Amendment. Such Americans are not easy to find, and when found are not likely to prove desirable jurors. Trial by jury does not presuppose a tribunal composed of twelve persons altogether devoid of ideas, or even of prejudices. It does presuppose a tribunal of sufficient intelligence and courage to arrive, in spite of prejudice, at a just determination of the issues submitted to it.
Both during and after the selection of the jury in the Remus case additional delay arose from extended legal arguments, during at least three of which the jurors were removed from the courtroom. On one of these occasions the defendant had asked a juror whether the fact that he had been disbarred as a practising attorney in the State of Illinois because of his conviction for violating the Volstead Act would be likely to prejudice the juror against him. Counsel for the prosecution said that they objected to the question because they knew other reasons why the defendant had been disbarred, and the jurors were taken from the room while the court was told what the other reasons were. In the course of the altercation that followed the defendant said to one of the opposing counsel, ‘Man, if I had you in the corridor I would wreck you physically,’ and a colleague of the threatened attorney replied, ‘ Get back on your own side of the railing, or I will take a crack at you.’
It would be hard to show that the jury missed anything in being denied this particular piece of repartee, but it nevertheless seems to a country lawyer that the objection of counsel might well have been ruled on promptly and in the presence of the jurors. Indeed, the practice of removing the jury during the discussion of questions of law is, so far as I know, unknown in the country. When such a question has arisen in the course of a trial I have sometimes seen the trial judge engage in a whispered colloquy with counsel for both parties before making his ruling. Less frequently I have seen a judge send out for a law book or adjourn a few minutes in advance of the usual hour in order to consult the authorities. The same legal points must certainly come up in one jurisdiction as in another. Most of them may be disposed of in advance of the trial by judgments entered on demurrers or motions to quash the indictment, or after the trial as the result of motions in arrest of judgment or for a new trial. New trials are unquestionably an evil, but I doubt whether an analysis of the reports of the various appellate courts would show that more convictions are reversed in appeals from rural jurisdictions than in appeals from the trial courts of large cities. I doubt, in short, whether elaborate arguments are more effective than brief ones in reducing errors in the admission and rejection of evidence. alone their verdict ought to depend. The risk of a miscarriage of justice involved in the adoption of the first of these alternatives seems to me in every way less real and menacing than that involved in the adoption of the second. If this is heresy against the traditions of forensic eloquence, I shall have to take the consequences. I am persuaded, however, that it is not heresy, but sound doctrine. When one considers that a lecturer speaking to those who have voluntarily come to listen to him can rarely hold the attention of his audience for more than an hour, it must be obvious that, under ordinary circumstances, a lawyer cannot expect to hold for a longer period what is, in a sense at least, the involuntary attention of a jury.
Here again the loss of time involved is to be regarded as symptomatic of an ailment rather than as the ailment itself. A trial by jury is a drama which ought to move with as few interruptions as possible to its appointed close. A jury is an entirely casual body, called together for a single purpose and dismissed as soon as that purpose has been accomplished. It passes chiefly upon human veracity, which is at once one of the simplest and one of the most complicated matters imaginable, and it does so without that formalism which is inherent in every professional class. A just verdict depends much less upon the learning and ability of the jurors than upon their maintenance of a certain emotional detachment in which the contentions of both parties as presented in the testimony may be considered and compared. Other things being equal, the shortest trial is always the best.
Moreover, the removal of a jury from the courtroom for hours, and indeed sometimes for days, at a time makes a very bad impression on the jurors themselves. A number of years ago I took part in a written debate on the question of the abolition of the jury system. Among the letters which came to me was one from a civil engineer, seemingly a highly intelligent man, in Los Angeles. He complained that he had belonged to a peripatetic jury which had been led in and out of court half a dozen times without having been permitted to find out what the case in which it was sitting was about. His point was not so much that this procedure wasted his time and that of his fellows, while the lawyers argued questions which would probably be reargued in any event, as that the law treated jurors as if they were only quasi-competent, — that is, incompetent to hear the whole story, whether of fact or law, — and he resented what he thought was an unfair reflection on his intelligence.
I am not sure that his attitude in this respect was entirely justifiable, but it serves to demonstrate that if a jury is to do its work well there must be a limit to the number of confusing interruptions to which its members are subjected. There must likewise be a limit to the amount of eloquence to which they are subjected. In the Remus case this eloquence lasted for almost three days. Cases differ so greatly in complexity that it is hazardous to say how much time ought to have been allowed for summations in a given instance, but I think, nevertheless, that most country lawyers would agree with the general statement that no case can be closed more effectively than in speeches limited to an hour for each side. If the facts of a particular case make an hour inadequate, the alternatives presented are to leave something unsaid or to submit to jaded jurors instead of to fresh ones the evidence upon which
But it may be said with truth that if we deduct the time spent in the Remus trial in the selection of a jury and in the closing addresses of counsel there remain upwards of twenty days which were occupied with the taking of testimony. I have not said that the Remus case was badly tried, but only that it illustrated some of the practices which make justice less rapid, and, as I view the matter, less certain, in the courts of big cities than elsewhere. Perhaps, indeed, within certain standards of trial procedure, it was excellently tried, but I venture to think, nevertheless, that the examinat ion of the witnesses would have been completed in the country in less than the time which was actually required. This is so because the standard of trial procedure to which the average country judge conforms requires him to rule out as irrelevant much evidence which the average metropolitan judge would admit without question.
In order to test these conclusions, it is not without interest to compare the Remus trial with the so-called ‘witchcraft cases’ which were tried a little more than a year later in the small city of York, Pennsylvania. The murdered man was one Nelson Rehmeyer, who lived alone in the country about fifteen miles from York. He was what is known as a ‘powwow doctor’ and possessed, among other treasures, a book called The Long Lost Friend, which is a treatise on witchcraft and other occult practices. (I may say in passing that I am the owner of a copy of this book and that, if it confers upon its possessor a tithe of the virtues and powers which it professes to confer, Rehmeyer must be regarded as having been a happy man.) During the latter part of the year 1928 a family named Hess, who also lived in York County, had lost numerous chickens from disease and theft. They concluded that someone had put a ‘spell’ on them, and employed another powwow doctor, whose name was Blymyer, to ‘lift’ the spell. Blymyer stated that in order to do so he would have to have a lock of Rehmeyer’s hair and the latter’s copy of The Long Lost Friend. On the evening of November 27, 1928, Blymyer, Wilbert Hess (a son of the owner of the bewitched chickens), and a boy named Curry went to Rehmeyer’s house in order to get the lock of hair and the book, and in the course of a struggle killed him.
Blymyer, Hess, and Curry were indicted for murder, and demanded separate trials, which, under the laws of Pennsylvania, they had a right to do. The right in question is purely statutory, and I doubt whether it is wisely accorded. At all events three successive trials were required, the first of which began on Monday, January 7, 1929. The time which elapsed between the murder and the trials was therefore a clay or two longer than that which elapsed between the killing of Mrs. Remus and the arraignment of her husband. In two of the three cases the defense, as in the Remus case, was insanity. In the third case, the defendant denied having struck the deceased, and contended, at least by implication, that he had acted throughout under the domination of his two associates.
The three trials lasted exactly six days. In the case against Blymyer, which was tried first, three hours were required to select a jury. There were two closing speeches, each fifty minutes in length. The jury deliberated for two hours and rendered a verdict of guilty of murder in the first degree, with a penalty of imprisonment for life, at 7.30 o’clock on the evening of Wednesday, January 9. The trial of Curry began on the following morning at 9.30 o’clock, and a jury was obtained in one hour and ten minutes. At the conclusion of the testimony, counsel for the defendant addressed the jury for thirty minutes and counsel for the Commonwealth for forty minutes. The jury was out for two hours and fifty minutes, and brought in a verdict of guilty of murder in the first degree, with a penalty of imprisonment for life, at 1.42 P.M. on Friday, January 11. Hess was immediately called for trial. In this case the selection of a jury consumed twTo hours, the final speech of the defendant’s attorney lasted for one hour and ten minutes, and the final speech of the district attorney lasted for forty minutes. At 7.25 P.M. on Saturday, January 12, the jury, after a deliberation of two hours and fifteen minutes, rendered a verdict of guilty of murder in the second degree, the maximum penalty for which is imprisonment for twenty years.
The ‘witchcraft cases’ would have proved a nine days’ wonder to the press and public except for two important circumstances. In the first place — and as already pointed out — they did not last for nine days. In the second place the manner in which they were tried made it impossible for the press to convert them into a w onder of any sort. When the first trial began, at least a hundred representatives of metropolitan newspapers were in court, and the public had been informed that a ‘witchcraft trial’ without a precedent in a century was about to be held. The truth was, of course, that the subject of witchcraft was involved only to the extent that it had a bearing on the question of the sanity of the defendants and that the cases were not a whit more interesting or important than rural murder trials ordinarily are. The presiding judge refused to permit telegraphic instruments to be installed in the courthouse, refused to be photographed, and excluded photographers from the courtroom. The defendants were represented by experienced trial lawyers. Their cases were presented to the jury in due course, but before the week was out most of the reporters had gone home. One of them afterward wrote a magazine article commenting bitterly on the reception which he had received and contrasting it with his reception at a historical pageant which had been held in the same city a few months previously.
I have not read all the testimony in either the Remus case or the York witchcraft cases, and on that account my opinion as to the merits of the verdicts rendered is entitled to little weight. If I were pressed for an opinion I should have to say that the verdict in the Remus case seems to me to have been without justification and that the verdicts in two of the three witchcraft cases seem to me to have been abundantly justified. In the instance of Curry, who was only fourteen years of age, I think a conviction of murder in the first degree was probably too severe. With these questions I am, however, not primarily concerned. I am comparing general practices, not particular results. The guilt or innocence of all of the defendants was, in accordance with our system of jurisprudence, for the juries which tried them to determine, and the verdicts speak for themselves. Under any system of jurisprudence innocent men will sometimes be done to death and guilty men will sometimes go free. Moreover, no lawyer can be unmindful of the fact that, though all of the verdicts were in accordance with the evidence, they were perhaps quite different from those larger determinations of guilt or innocence in which the law has no part and which, being founded upon knowledge, are without the need of evidence.
So much may be taken for granted. It may likewise be taken for granted that a question exists as to whether or not trial by jury in criminal cases ought to be retained. If, however, as seems likely, this question is to be answered in the affirmative, the reforms which are most needed are not to be accomplished by constitutional or statutory changes in the rights of accused persons or in the rules of evidence. They are procedural rather than structural. They depend upon lawyers and judges rather than upon laws and amendments, and upon customs rather than upon formal rules. The country lawyer and the country judge have much to learn from the city lawyer and the city judge, but they have something to teach in return. They speak and act in the authentic tradition of the methods and practices which caused our ancestors to write into the constitutions of the original states their conviction that trial by jury ought to remain as theretofore.