Helen Gardener - Facts and Fictions of Life

These questions came forcibly to my mind as I listened to the prosecutor in the trial for homicide. He not only presented the facts as they were, but he drew inferences, twisted meanings, asserted that the case had but one side; that the defendant was a dangerous animal to be at large; that his witnesses had all lied; that his lawyer was a notorious special pleader and had wilfully distorted every fact in the case. He waxed wroth and shook his fist in the face of his antagonist and appealed to every prejudice and sentiment of the jury which might be played upon to the disadvantage of the accused. He sat down mopping his face and flashing his eyes. The Judge gave his charge, which, to my mind, was clearly indicative of the fact that he, at least, felt that there were two very serious sides to the case. The audience which had so relished the two preceding speeches, found the Judge tame, and when the jury filed out, half of the audience went also. Most of them were laughing, highly amused by "the way the prosecutor gave it to him" as I heard one lad of seventeen say. The moment the Judge left the stand there was great chaffing amongst the lawyers, and much merry-making. The prisoner and his friends sat still. The prosecutor smilingly poked his late legal adversary under the ribs and asked in a tone perfectly audible to the prisoner, "Lied, did I? Well, I rather think I singed your bird a little, didn't I?" When he reached the door, he called back over his shoulder – making a motion of a pendant body – "Down goes McGinty!" Everyone laughed. That is to say, everyone except the white-faced prisoner and his mother. He turned a shade paler and she raised a handkerchief to her eyes. Several boys walked past him and stopped to examine him closely. One of them said, so that the prisoner could not fail to hear, "He done just right. I'd 'adone it long before, just like his lawyer said."

"Me too. You bet," came from several other lads – all under twenty years of age.

And still we waited for the jury to return. The prisoner grew restless and was taken away by an officer to the pen. There was great laughter and joking going on in the room. Several were eating luncheons abstracted from convenient pockets. I turned to an officer, and asked:

"Do you not think all this is bad training for boys? It must show them very clearly that it is a mere game of chance between the lawyers with a life for stakes. The best player wins. They must lose all sense of the seriousness of crime to see it treated in this way."

"Upon the other hand," said he, "they learn, if they stay about criminal courts much, that not one in ten who is brought here escapes conviction, and not one in ten who is once convicted, fails to be convicted and sent up over and over again. Once a criminal, always a criminal. If they get fetched here once they might as well throw up the sponge."

"Is it so bad as that?" I asked. He nodded. "Is there not something wrong with the penal institutions then?" I queried.

"How?"

"You told me a while ago," I explained, "that almost all first crimes or convictions were of boys under seventeen years of age. Now you say that not one in ten brought here, accused, escapes conviction, and not one in ten of these fails to be convicted over and over again. Now it seems to me that a boy of that age ought not to be a hopeless case even if he has been guilty of one crime; yet practically he is convicted for life if found guilty of larceny, we will say. Is there not food for reflection in that?"

"I do' know," he responded, "mebby. If anybody wanted to reflect. I guess most boys that hang around here don't spend none too much time reflectin' though – till after they get sent up. They get more time for it then," he added, dryly.

"Another thing that impresses me as strange," I went on, "is the apparent determination of the prosecutor to convict even where there is a very wide question as to the degree of guilt."

"I don't see anything queer in that. He's human. He likes to beat the other lawyer. Why, did you know that the prosecutor you heard just now is cousin to a lord? His first cousin married Lord – ."

This was said with a good deal of pride and a sort of proprietary interest in both the lord and the fortunate prosecutor. I failed to grasp just its connection with the question in point to which I returned.

"But the public prosecutor is not, as I understand it, hired to convict but to represent the 'people,' one of whom is the accused. Now, is the State interested in convictions only – does it employ a man to see that its citizens are found guilty of crime, or is it to see that justice is done and the facts arrived at in the interest of all the people, including the accused?"

"I guess that is about the theory of the State," he replied, laughing as he started for the door, "but the practice of the prosecuting attorney is to convict every time if he can, and don't you forget it."

I have not forgotten that nor several other things, more or less important to the public, since my day in a Criminal Court.

It may be interesting to the reader to know that the jury in the case cited, disagreed. At a new trial the accused was acquitted on the grounds of self defense and the prosecutor no doubt felt that he was in very poor luck, indeed: "For," as I was told by a court officer, "he has lost his three last homicide cases and he's bound to convict the next time in spite of everything, or he won't be elected again. I wouldn't like to be the next fellow indicted for murder if he prosecutes the case, even if I was as innocent as a spring lamb," said he succinctly.

Nor should I.

But aside from this thought of the strangely anomalous attitude of the State's attorney; aside from the thought of the possible influence of such court room scenes upon the boys who flock there – who are largely of the class easily led into, and surrounded by, temptation; aside from the suggestions contained in the officer's statement – which I cannot but feel to be somewhat too sweeping, but none the less illustrative, that only one in ten brought before the Criminal Court escapes conviction, and only one in that ten fails to be reconvicted until it becomes practically a conviction for life to be once sent to a penal institution; aside from all this, there is much food for thought furnished by a day in a Criminal Court room. A study of the jury, and of the judge, is perhaps as productive of mental questions that reach far and mean much, as are those which I have briefly mentioned; for I am assured by those who are old in criminal court practice, that my day in court might be duplicated by a thousand days in a thousand courts and that in this day there were, alas, no unusual features. One suggestive feature was this. When the jury – an unusually intelligent looking body of men – was sworn for the next case, seven took the oath on the Bible and five refused to do so, simply affirming. This impressed me as a large proportion who declined to go through the ordinary form; but since it created no comment in the court room, I inferred that it was not sufficiently rare to attract attention, while only a few years ago, so I was told, it would have created a sensation. There appeared to be a growing feeling, too, against capital punishment. Quite a number of the talesmen were excused from serving on the jury on the ground of unalterable objection to this method of dealing with murderers. They would not hang a man, they said, no matter what his crime.

"Do you see any relation between the refusal to take the old form of oath, and the growth of a sentiment or conscientious scruple against hanging as a method of punishment"? I inquired of the officer.

"I do' know. Never thought of that. They're both a growin'; but I don't see as they've got anything to do with each other."

But I thought possibly they had.