Image provided by: University of Oregon Libraries; Eugene, OR
About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (Dec. 10, 1922)
6 THE SUNDAY OREGOXIAX, PORTLAND, DECE3IBER 10, 1923 counts for' something In the world out side. ' But some day his little strutting uni verse receives a jar. He discovers that his supposed reputation Is no reputation at all other than that he Is, or has been, "In the district attorney's office" like so many other young men; that nobody save the people actually interested In them paid any attention to or even heard of his "star cases" and that among his social equals he is regarded as a cross between a truant officer and a headquarters de tective. He perceives that the praise heaped so unstintedly upon him Is but the lip service of time-servers who have seen in him, or his influence, a chance to secure "a raise" or a better job. When that day comes and he realizes that he has been living in a queer tucked-off In the next Installment of this article Mr. Train will take up the Public Prose cutor and the accused. Article No. m. BY ARTHUR TRAIN. IT IS easy to grumble. Yet the office of district attorney has so vital an in fluence upon the respect in which our Institutions are held that we have a right to hold those who occupy it to a high standard of industry, sobriety and self restraint. The district attorney does not need to be a great lawyer. One capable law clerk can furnish most of the "dope" for a staff of assistants who rarely open a book even the penal code. Ninety per cent of the actual work of the office is the exercise of mere common sense. The majority of cases practically "try themselves." The complainant tells his story in more or less his own way, the de fendant denies it or "stands pat." The judge charges the Jury. They usually convict. There is no real legal or trial ability required. And It goes on, day in, day out the mills of the courts grinding cut convictions, with few acquittals, the year round. The Idea that criminal law is peculiarly difficult or complex is unfounded. There have, it is true, been many hair splitting refinements made by the bench, particu larly in the old days when the penalties were so terrible that even Judges sought to mitigate the atrocity of the law by giv ing the defendant another chance when they could. But in our criminal courts today the contest is usually one of fact, not of law. The cases are ol the "knock down and drag out" variety. CourteBy, courage, broadmindedness and scrupulous integrity are needed rather than legal ratiocination. It is merely a question of bringing out the evidence, and it is not inconceivable that a substantial percent age of criminal proceedings would be fa cilitated if the district attorney did not appear at all. One often writhes with mental agony when forced to listen to some youthful deputy blundering well meaningly through a case, interrupting with unnecessary questions Just as the witness gets well started on his story, and fighting to exclude evidence that either is so inconsequential that it is better to let it in instead of wasting time in trying to keep it out, or is in fact beneficial to the people's case. Most criminal prosecu tions I mean the ordinary cut and dried police cases are little more than mat ters of form. Crank the machine and it goes along of itself. If the district at torney isn't at hand to ask the witness: "Well, and what happened next?" the judge does it for him. As a matter of fact, the assistant dis trict attorney who, for nearly a genera tion, was as much a fixture in "Part One" as the jury box itself, was afflicted with a physical ailment that made It almost impossible for him to keep awake except when actually on his feet. He would question a witness and, having done so, sit down while the defense was cross-ex-cmiiiing and peacefully doze off until it was time to call the next. Sometimes he would wake up and sometimes wouldn't. But things went along quite all right Just the same, and because the jury perceived that he had no personal ax to grind and was a good natured person of generous impulses, they usually found the defen dant guilty. Indeed, as I recollect it, the percentage of convictions to cases "tried" by this assistant was the highest in the entire office, yet from a theoretical point of view he was a very bad prosecutor in deed, since a large part of the time he was sojourning in the land of dreams. There is a natural tendency for the dis trict attorney to substitute himself for the jury, and, on the one hand if he thinks that the indictment should not have been found, or perhaps, even that he cannot convict to ask for a dismis sal, or, on the other, if the case appeals to him, to strain the ethics of his office a bit to secure a verdict of guilty. A prosecutor, knowing that his intentions are honorable, may quite unconsciously usurp most of the functions of the en tire court, become an autocrat, and leave others little or nothing to do.. If the Judge allows this, the district attorney is apt to become blinded by his own im portance, and feel that whatever he may do Is justifiable, because he is on the right side. Thus, he may use the author ity of his official position improperly to influence the jury or employ methods to trick or embarrass the derense, which do him little credit and tend to reflect upon his office and the whole administration ot criminal justice. The temptation to play fast and loose with a crook who has taken the stand in his own defense or who has had some dullard ot the criminal bar assigned to protect him, to fight fir? with fire, and to beat the shyster at his own game, Is enough to make a young deputy district attorney forget that to preserve the stand ard of official conduct is more important than to send a burglar to jail. The out rages sometimes committed by youthful (and other) prosecutors in an enthusi astic desire to see that no guilty man shall escape have doubtless caused many a chuckle to Judge Jeffreys and Torque rnada on the further side of the Styx. For the district attorney can do in court with comparative immunity things which in a defendant's Counsel would bring the judge down upon him like a ton of brick. If he is caught offending it is easy for him to explain that he simply "forgot" or was "honestly mistaken." Certainly the young assistant district attorney has every advantage not the least among them being that he can speak his own language and so convey his ideas to the jury something not always the case with his opponent. And, then, do not the jury already know that the de fendant id guilty, because this Innocent looking youth, whom the court addresses as "Mr. District Attorney," has told them so? Of course, they do! And they know it they don't convict when they ought the judge will probably read them the riot act and hold them up to public contume ly. They are also aware that the grand jury has indicted the defendant, and that presumably he was caught by the police "with the goods" in the first place. The judge can talk until he is black In the face about "presumption of innocence" and "reasonable doubt," but they wili take it all in the Pickwickian sense. They continue to be reasonable men even after becoming jurors. They cannot seriously imagine that after the evidence has been sifted from three to six times by different judicial and semi-Judicial officials the chances are anything but overwhelmingly against the defendant's innocence. In the general run of cases, with the ordinary metropolitan Jury, the tide is running rapidly against the defendant from the moment he appears at the bar. All the "D. A." has to do is to stand on the bank and see him drawn over the rapids. So great is the prosecutor's In fluence with most members of a jury panel, who after several weeks of service have come to trust and respect him, that not infrequently the mere expression on his face is enough to lead them to con vict The district attorney and the jury come to feel that they are a sort of "happy family," whose mutual confidence and esteem engenders a sense of "team play," leaving the stranger defendant at a hopeless disadvantage. All the more, under these circum stances, doeB good sportsmanship demand that, no matter what tactics the defense ZK ' f : ' J . Ah jf 4 A vV;fFII 5l W -Ah - J pursues, the prosecutor must keep his own armor unsullied and play absolute ly fair. Frequently this Is hard work. When some artificial rule excludes a piece of vital and conclusive hearsay evi dence that the defendant was seen Im mediately after the homicide carrying a smoking pistol, for example it may well seem at the moment justifiable to get the fact before the jury by hook or by crook. And there are a thousand ways of doing this in the opening address, which the court says is "not evidence," but which the jury is apt either to accept in lieu of K or to confuse with it; by innuendo in the asking of question "proper" or "im proper"; through the mouth of an im pulsive but disingenuous "cop" who Just can't help blurting it forth, although it be immediately "stricken out" by the Judge; or, if the devil has been busy, by sim ply saying it yourself so that the Jury can hear yon. But there are even more subtle ways to carve the entrails of a defendant, particu- . larly If he takes the stand as a witness in his own behalf. One ot these Is by ques tioning him as to his "record." You may ask him almost anything you like. Any how, you are permitted under the guise of "testing his credibility" to accuse him of every crime on the calendar merely by having him deny each ene ot them seriatim. You are "bound by these answers," of course. That is just an other of the law's little ironies. - For, if jou look and talk like a gentleman, the jury assume that youv wouldn't have asked the question if the charge were not true. Whatever he says, they believe he did it. His "No" is worth nothing against your presumptive honesty. Thus, if you - ask a defendant questions which are not based on known and provable tact you may be, in effect, bearing false witness against him in a most dastardly way.. Nine times out of ten perhaps 9.9 times out of a hundred no harm re sults, but the hundredth time somebody is knifed Jn the back that unfair and unjust question is what turns the scale in the jury's mind against him. They are probably going to think him a good deal worse than he really is, anyway. Do not increase the presumption, heavy enough agalnBt him already, by smearing him with mud that Is not his. When all is said and done, unless the young attorney sets an example of Just dealing, high integrity and sincerity, his years of service his best years will be thrown away. For in that example the good deed shining "in a naughty world" amid the sordid surroundings of crime and poverty, of coarse brutality and cynicism lies his greatest opportunity for public service. At first he is exhila rated by the consciousness of his own supposed intellectual and social superior ity. Court officers, policemen, detectives and office hirelings pat him on the back, flatter him and try to induce him to be lieve that he is the cleverest trial lawyer, the most astute prosecutor, the most elo quent orator of the decade. He is, in fact, a big fish in a pool of not inconsid erable size. Hu dreams of a political career, or, at the least, ot an office crowded with wealthy and influential clients drawn there by his reputation as a prosecutor. He is blinded by blarney, stultified by sycophancy. He eagerly searches the columns of the papers for his name, and feeds out "storieB" to the boys in the press room. He really be lieves that because be is a more or less important figure in the tiny world of turnkeys, cops and cheap politicians he corner, devoting aimself to much that really has little connection with the prac tice of his profession, and really offers more of advantage to the novelist than to the lawyer, in a circle whose standard of refinement is that of a Harlem River park, and whose ideal of social life is a Coney island picnic given by an east side benevolent association when, in a word, he sees his job as really it is, and his burst bubble pf pride turns in his hands ea dead sea fruit then, if he has not the satisfaction of knowing that he has lived up to his own standard of what a gentle man should be, his time has been worse than lost. The district attorney has a variety of duties connected with the administration of justice ot most of which the publisc is unaware, or, at any rate, unmindful. Be sides being the grand jury's adviser, he Is obliged to report in writing to the gov ernor on all cases In which applications for pardon have been made, looks after' extradition matters, is charged with passing on the financial responsibility of bondsmen and has to taxe part in the inquiries conducted into the sanity of de fendants before and after conviction. Most of these thing3 are done for him by trained and qualified assistants. His chief task, however, is to hear and determine the merits of the complaints made to him by aggrieved citizens. If these are of the routine variety the complaints are relegated to the magis trates' courts and are looked after by the deputies. If they are unusual, either in the importance of the offence to the com munity, the standing or influence of the accused, or in the fact that the offense is one ontside the scope of the criminal law as commonly construed or applied, the district attorney goes over the matter himself In the first Instance, then refers it to an assistant for further examination, and finally decides what is to be done in conference with the latter. But he cannot simply sit In his office and wait tor complaints to be brought to him there; he must act, no matter in what way the knowledge of crime be brought to his attention. If a Budden seik building falls, or a snbway caves in, or a gas tank blows up, he must take steps to locate the responsibility for criminal negligence, if any there has been. There are over 200 felonies and over 400 misdemeanors on the New York statute books, offenses against which he is charged with prosecuting. There are an unlimited number ot possible con spiracies to commit acts "injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice, or ot the due administration ot the laws." There are, in fact, so many statutes and ordinances that there Is hardly anybody who does not violate some one ot them every day of his life. There are laws governing the conduct ot places ot public amusement, factory labor, Sunday observance, fancy dress balls, ice cutting, funerals, every conceiv able trade and occupation, every aspect of human activity, from pulling teeth to planting oysters, for whose enforcement he may be held responsible. Law making has become a national in door sport, and it is one of the worst things we do. Our legislative harvest is upward ot 15,000 statutes per annum. During a recent period ot only five years there were passed over 62,000 laws, state and federal, which required for their in terpretation 65,000 decisions of courts of last resort, filling 630 volumes. Each state contributed its share. We seem to have a curious idea that we can make ourselves good by making i a crime to be bad. But we do not really intend that the laws shall be enforced. They are only in the nature of moral window dressing. We hire a man to en force them, but we expect him to use a wide discretion about how he does it, and if we do not like what he does we are annoyed and feel that he is taking advan tage of us. Added to the multiplicity of criminal statutes is the fact that human nature is not only fallible but that a large percent age Ot political office holders and their hired subordinates are morons. No one can administer an office with a hundred employes Without all sorts of mistakes being made without his knowledge, tor which he technically is responsible and for which the district attorney - might, with some color of propriety, initiate a prosecution. There Is no public office so well run that some basis ot tact could not be found apparently to justify an official in vestigation, even including that of the district attorney himself, who usually does the Investigating. There are abuses in high office and low; bribery and cor ruption in officialdom and' in business, and sharp practice everywhere. Prob ably there will be for a long time to come. Besides there are thousands of acts which in their nature are morally jnst as reprehensible as those which the law stigmatizes as crimes, but which are out side the statutes. Crimes are those acts only which have been regarded by our lawmakers as suf ficiently dangerous or harmful to society to be forbidden under penalty. An act may be highly immoral or wrong, may, in fact, be a grievous sin, and yet not a crime. A misdemeanor .may be much more heinous than a felony. Crimes are not crimes merely because they are wrong, but because the state has enjoined them. You can allow a baby to be run over by a motor when you could have ' saved it by stretching out your hand, and be guilty of no crime whatever; or you can let your neighbor die in agony with out telephoning for a doctor or going to his assistance. You can be the meanest sort of a mean swindler, and yet be be yond the reach of the law, which is highly inadequate to punish commercial or financial fraud. And the poor are for ever with ns, always being taken advan tage of by reason of their inability to protect themselves. "So I returned and considered all the oppressions that are done under the sun . and behold the tears of such as were oppressed, and they had no comforters; and on the side of the oppressors there was power; but they had no comforter." (In the final Installment of this article Mr. Train will discuss "The Public Prose cutor and His Difficulties.")