Courts and Criminals

Mr. Wellman is famous for following this precept himself and, with one eye significantly cast upon the jury, is likely to lead his witness a merry dance until the latter is finally "bogged" in a quagmire of absurdities. Not long ago, shortly after the publication of his book, the lawyer had occasion to cross-examine a modest-looking young woman as to the speed of an electric car. The witness seemed conscious that she was about to undergo a severe ordeal, and Mr. Wellman, feeling himself complete master of the situation, began in his most winsome and deprecating manner:

"And how fast, Miss, would you say the car was going?"

"I really could not tell exactly, Mr. Wellman."

"Would you say that it was going at ten miles an hour?"

"Oh, fully that!"

"Twenty miles an hour?"

"Yes, I should say it was going twenty miles an hour."

"Will you say it was going thirty miles an hour?" inquired Wellman with a glance at the jury.

"Why, yes, I will say that it was."

"Will you say it was going forty?"

"Yes."

"Fifty?"

"Yes, I will say so."

"Seventy?"

"Yes."

"Eighty?"

"Yes," responded the young lady with a countenance absolutely devoid of expression.

"A hundred?" inquired the lawyer with a thrill of eager triumph in his voice.

There was a significant hush in the court-room Then the witness, with a patient smile and a slight lifting of her pretty eyebrows, remarked quietly:

"Mr. Wellman, don't you think we have carried our little joke far enough?"

There is no witness in the world more difficult to cope with than a shrewd old woman who apes stupidity, only to reiterate the gist of her testimony in such incisive fashion as to leave it indelibly imprinted on the minds of the jury. The lawyer is bound by every law of decency, policy and manners to treat the aged dame with the utmost consideration. He must allow her to ramble on discursively in defiance of every rule of law and evidence in answer to the simplest question; must receive imperturbably the opinions and speculations upon every subject of both herself and (through her) of her neighbors; only to find when he thinks she must be exhausted by her own volubility, that she is ready, at the slightest opportunity, to break away again into a tangle of guesswork and hearsay, interwoven with conclusions and ejaculation. Woe be unto him if he has not sense enough to waive her off the stand! He might as well try to harness a Valkyrie as to restrain a pugnacious old Irishwoman who is intent on getting the whole business before the jury in her own way.

In the recent case of Gustav Dinser, convicted of murder, a vigorous old lady took the stand and testified forcibly against the accused. She was as "smart as paint," as the saying goes, and resolutely refused to answer any questions put to her by counsel for the defence. Instead, she would raise her voice and make a savage onslaught upon the prisoner, rehearsing his brutal treatment of the deceased on previous occasions, and getting in the most damaging testimony.

"Do you say, Mrs.—" the lawyer would inquire deferentially, "that you heard the sound of three blows?"

"Oh, thim blows!" the old lady would cry—"thim turrible blows! I could hear the villain as he laid thim on! I could hear the poor, pitiful groans av her, and she so sufferin'! 'Twas awful! Howly Saints,'twould make yer blood run cowld!"

"Stop! stop!" exclaimed the lawyer.

"Ah, stop is it? Ye can't stop me till Oi've had me say to tell the whole truth. I says to me daughter Ellen, says I: 'Th' horrid baste is afther murtherin' the poor thing,' says I; 'run out an' git an officer!'"

"I object to all this!" shouts the lawyer.

"Ah, ye objec', do ye?" retorts the old lady. "Shure an' ye'd have been after objectin' if ye'd heard thim turrible blows that kilt her—the poor, sufferin', swate crayter! I hope he gits all that's comin' to him—bad cess to him for a blood-thirsty divil!"

The lawyer ignominiously abandoned the attack.

The writer recalls a somewhat similar instance, but one even better exhibiting the cleverness of an old woman, which occurred in the year 1901. A man named Orlando J. Hackett, of prepossessing appearance and manners, was on trial, charged with converting to his own use money which had been intrusted to him for investment in realty. The complainant was a shrewd old lady, who together with her daughter, had had a long series of transactions with Hackett which would have entirely confused the issue could the defence have brought them before the jury. The whole contention of the prosecution was that Hackett had received the money for one purpose and used it for another. During preparation for the trial the writer had had both ladies in his office and remembers making the remark:

"Now, Mrs. –, don't forget that the charge here is that you gave Mr. Hackett the money to put into real estate. Nothing else is comparatively of much importance."

"Be sure and remember that, mother," the daughter had admonished her.

In the course of a month the case came on for trial before Recorder Goff, in Part II of the General Sessions. Mrs. – gave her testimony with great positiveness. Mr. Lewis Stuyvesant Chanler, now Lieutenant-Governor of the State, arose to cross-examine her.

"Madam," he began courteously, "you say you gave the defendant money?"

"I told him to put it into real estate, and he said he would!" replied Mrs. firmly.

"I did not ask you that, Mrs. –," politely interjected Mr. Chanler. "How much did you give him?"

"I told him to put it into real estate, and he said he would!" repeated the old lady wearily.

"But, madam, you do not answer my question!" exclaimed Chanler. "How much did you give him?"

"I told him to put it into real—" began the old lady again.

"Yes, yes!" cried the lawyer; "we know that! Answer the question."

"estate, and he said he would!" finished the old woman innocently.

"If your Honor please, I will excuse the witness. And I move that her answers be stricken out!" cried Chanler savagely.

The old lady was assisted from the stand, but as she made her way with difficulty towards the door of the court-room she could be heard repeating stubbornly:

"I told him to put it into real estate, and he said he would!"

Almost needless to say, Hackett was convicted and sentenced to seven years in State's prison.

To recapitulate, the quickness and positiveness of women make them ordinarily better witnesses than men; they are vastly more difficult to cross-examine; their sex protects them from many of the most effective weapons of the lawyer, with the result that they are the more ready to yield to prevarication; and, even where the possibility of complete and unrestricted cross-examination is afforded, their tendency to inaccurately inferential reasoning, and their elusiveness in dodging from one conclusion to another, render the opportunity of little value.

In general, however, women's testimony differs little in quality from that of men, all testimony being subject to the same three great limitations irrespective of the sex of the witness, and the conclusions set forth above are merely the result of an effort on the part of the writer to comment somewhat upon those small differences which, under close scrutiny, may fairly be said to exist. These differences are quite as noticeable at the breakfast-table as in the court-room; and are no more patent to the advocate than to the ordinary male animal whose forehead habitually reddens when he hears the unanswerable reason which, in default of all others, explains and glorifies the mental action of his wife, sister or mother: "Just because!"

AS COMPLAINANTS AND DEFENDANTS

The ratio of women to men indicted and tried for crime is, roughly, about one to ten. Could adequate statistics be procured, the proportion of female to male complainants in criminal cases would very likely prove to be about the same: In a very substantial proportion, therefore, of all prosecutions for crime a woman is one of the chief actors. The law of the land compels the female prisoner to submit the question of her guilt or innocence to twelve individuals of the opposite sex; and permits the female complainant to rehearse the story of her wrongs before the same collection of colossal intellects and adamantine hearts.

The first thing the ordinary woman hastens to do if she be summoned to appear in a court of justice is not, as might be expected, to think over her testimony or try to recall facts obliterated or confused by time, but to buy a new hat; and precisely the same thing is true of the female defendant called to the bar of justice, whether it be for stealing a pair of gloves or poisoning her lover.

Yet how far does the element of sex defeat the ends of justice? To answer this question it is necessary to determine how far juries are liable to favor the testimony of a woman plaintiff merely because she is a woman, and how far sympathy for a woman arraigned as a prisoner is likely to warp their judgment.

As to the first, it is fairly safe to say that a woman is much more likely to win a verdict in a civil court or to persuade the jury that the prisoner is guilty in a criminal case than a man would be in precisely similar circumstances. In most criminal prosecutions for the ordinary run of felonies little injustice is likely to result from this. There is one exception, however, where juries should reach conclusions with extreme caution, namely, where certain charges are brought by women against members of the opposite sex.

Here the jury is apt to leap to a conclusion, rendered easy by the attractiveness of the witness and the feeling that the defendant is a "cur anyway," and ought to be "sent up."

The difficulty of determining, even in one's office, the true character of a plausible woman is enhanced tenfold in the court-room, where the lawyer is generally compelled to proceed upon the assumption that the witness is a person of irreproachable life and antecedents. Almost any young woman may create a favorable impression, provided her taste in dress be not too crude, and, even when it is so, the jury are not apt to distinguish carefully between that which cries to Heaven and that which is merely "elegant."

When the complaining witness is a woman who has merely lost money through the acts of the defendant, the jury are not so readily moved to accept her story in toto as when the crime charged is of a different character. They realize that the complainant, feeling that she has been injured, may be inclined to color her testimony, perhaps unconsciously, until the wrong becomes a crime.

An ordinary example of this variety of prosecution is where the witness is a young woman from the East Side, usually a Polish or Russian Jewess, who charges the defendant, a youth of about her own age, with stealing her money by means of false pretences. They have been engaged to be married, and she has turned over her small savings to him to purchase the diamond ring and perhaps set him up in a modest business of his own. He has then fallen in love with some other girl, has broken the engagement, and the ring now adorns the fourth finger of her rival. Her money is gone. She is without a dot. She hurries with her parents and loudly vociferating friends to the Essex Market Police Court, and secures a warrant for the defendant on the theory that he defrauded her by "trick and device" or "false representations." Usually the only "representation" has been a promise to marry her. Her real motive is revenge upon her faithless fiance. In nine cases out of ten the fellow is a cad, who has deliberately deserted her after getting her money, but it is doubtful whether any real crime is involved.

If the judge lets the case go to the jury it is a pure gamble as to what the result will be, and it may largely turn on the girl's physical attractiveness. If she be pretty and demure a mixture of emotions is aroused in the jury. "He probably did love her," say the twelve, "because any one would be likely to do so. If he did love her, of course he didn't falsely pretend to do so; but if he deserted a woman like that he ought to be in jail anyway." Thus the argument that ought to acquit in fact may convict the defendant. If the rival also is pretty, hopeless confusion results; while if the complainant be a homely girl the jury feels that he must have intended to swindle her anyway, as he could never have honestly intended to marry her. Thus in any case the Lothario is apt to pay a severe penalty for his faithlessness.

The man prosecuted by a woman, provided she cannot be persuaded to withdraw the charge against him, is likely to get but cold consideration for his side of the story and short shrift in the jury-room. Turn about, if he can get a young and attractive woman to swear to his alibi or good reputation the honest masculine citizen whom he has defrauded may very likely have to whistle for his revenge. Many a scamp has gone free by producing some sweetly demure maiden who faithfully swears that she knows him to be an honest man. A blush at the psychological moment and a wink from the lawyer is quite enough to lead the jury to believe that, if they acquit the defendant, they will "make the young lady happy," whereas if he is convicted she will remain for aye a heart-broken spinster. Like enough she may be only the merest acquaintance.

The writer is not likely to forget a distinguished lawyer's instructions to his client who happened also to be a childhood acquaintance—as she was about to go into court as the plaintiff in a suit for damages:

"I would fold my hands in my lap, Gwendolyn—yes, like that—and be calm, very calm. And, Gwendolyn, above all things, be demure, Gwendolyn! Be demure!"

Gwendolyn was the demurest of the demure, letting her eyes fall beneath their pendant black lashes at the conclusion of each answer, and won her case without the slightest difficulty.

The unconscious or conscious influence of women upon the intellects of jurymen has given rise to a very prevalent impression that it is difficult if not impossible successfully to prosecute a woman for crime. This feeling expresses itself in general statements to the effect that as things stand to-day a woman may commit murder with impunity. Experience, supplemented by the official records, demonstrates, however, that, curious as it must seem, the same sentiment aroused by a woman supposed to have been wronged is not inspired in a jury by a woman accused of crime. It is, indeed, true that juries are apt to be more lenient with women than with men, but this leniency shows itself not in acquitting them of the crimes charged against them, but of finding them guilty in lower degrees.

Of course flagrant miscarriages of justice frequently occur, which, by reason of their widespread publicity in the press, would seem to justify the almost universal opinion that women are immune from the penalities for homicide. It is also true that such miscarriages of justice are more likely when the defendant is a woman than if he be a man.

One of these hysterical acquittals which give color to popular impression, but which the writer believes to be an exception, was the case of a young mother tried and acquitted for murder in the first degree, December 22, 1904. This young woman, whose history was pathetic in the extreme, was shown clearly by the evidence to have deliberately taken the life of her child by giving it carbolic acid. The story was a shocking one, yet the jury apparently never considered at all the possibility of convicting her, but on retiring to the jury-room spent their time in discussing how much money they should present her on her acquittal.

No better actor ever played a part upon the court-room stage than old "Bill" Howe. His every move and gesture was considered with reference to its effect upon the jury, and the climax of his summing-up was always accompanied by some dramatic exhibition calculated to arouse sympathy for his client. Himself an adept at shedding tears at will, he seemed able to induce them when needed in the lachrymal glands of the most hardened culprit whom he happened to be defending.

Mr. Wellman tells the story of how he was once prosecuting a woman for the murder of her lover, whom she had shot rather than allow him to desert her. She was a parson's daughter who had gone wrong and there seemed little to be said in her behalf. She sat at the bar the picture of injured innocence, with a look of spirituality which she must have conjured up from the storehouse of her memories of her father. Howe was rather an exquisite so far as his personal habits were concerned, and allowed his finger-nails to grow to an extraordinary length. He had arranged that at the climax of his address to the jury he would turn and, tearing away the slender hands of his client from her tear-stained face, challenge the jury to find guilt written there. Wellman was totally unprepared for this and a shiver ran down his spine when he saw Howe, his face apparently surcharged with emotion, turn suddenly towards his client and roughly thrust away her hands. As he did so he embedded his finger-nails in her cheeks, and the girl uttered an involuntary scream of nervous terror and pain that made the jury turn cold.

"Look, gentlemen! Look in this poor creature's face! Does she look like a guilty woman? No! A thousand times no! Those are the tears of innocence and shame! Send her back to her aged father to comfort his old age! Let him clasp her in his arms and press his trembling lips to her hollow eyes! Let him wipe away her tears and bid her sin no more!"

The jury acquitted, and Wellman, aghast, followed them downstairs to inquire how such a thing were possible. The jurors said that they had agreed to disclose nothing of their deliberations.

"But," explained Wellman, "you see, in a way I am your attorney, and I want to know how to do better next time. She had offered to plead guilty if she could get off with twenty years!"

The abashed jury slunk downstairs in silence and the secret of their deliberations remains as yet untold.

In spite of such cases, where guilty women have been acquitted through maudlin sentiment or in response to popular clamor, nothing could be more erroneous than the idea that few women who are brought to the bar of justice are made to suffer for their offences. Thus, although no woman has suffered the death penalty in New York County in twenty years, the average number of convictions for crime is practically the same for women as for men in proportion to the number indicted. The last unreversed conviction of a woman for murder in the first degree was that of Chiara Cignarale, in May, 1887. Her sentence was commuted to life imprisonment. Since then thirty women have been actually tried before juries for homicide with the following results:

The percentage of convictions to acquittals is as follows:

It is distinctly interesting to compare this with the table showing the results of all the homicide trials for the past eight years irrespective of the sex of the defendants:

The reader will observe that the percentage of convictions to acquittals of women defendants averages twenty-two per cent greater than the percentage for both sexes. A more elaborate table would show that where the defendants are men there are a greater proportionate number of acquittals, but more verdicts in higher degrees. A verdict of manslaughter in the second degree in the case of a man charged with murder is infrequent, but convictions of murder in the second degree are exceedingly common.

The reason for the higher percentage of convictions of women is that fewer women who commit crime are prosecuted than men, and that they are rarely indicted unless they are clearly guilty of the degree of crime charged against them; while practically every man who is charged with homicide and who, it seems, may be found guilty is indicted for murder in the first degree.

The trial of women for crime invariably arouses keen public interest, and the dethronement of a Czar, or the assassination of an Emperor, pales to insignificance before the prosecution of a woman for murder. Some of this interest is fictitious and stimulated merely by the yellow press, but a great deal of it is genuine. The writer remembers attending a dinner of gray-headed judges and counsellors during the trial of Anna Eliza, alias "Nan," Patterson, where one would have supposed that the lightest subject of conversation would be not less weighty than the constitutionality of an income tax, and finding to his astonishment that the only topic for which they showed any zest was whether "Nan" would be found guilty.

One of the earliest, if not the earliest, record of a woman being held for murder is that of Agnes Archer, indicted by twelve men on April 4, 1435, sworn before the mayor and coroner to inquire as to the death of Alice Colynbourgh. The quaint old report begins in Latin, but "the pleadings" are set forth in the language of the day, as follows:

"Agnes Archer, is that thy name? which answered, yes.... Thou art endyted that thou.... feloney moderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed.... I am not guilty of thoo dedys, ne noon of hem, God help me so.... How wylte thou acquite the?… By God and by my neighbours of this town."

The subsequent history of Agnes is lost in obscurity, but since she had to procure but thirty-six compurgators who were prepared to swear that they believed her innocent, and as she was at liberty to choose these herself from her native village of Winchelsea, it is probable that she escaped.4

Fortunately the sight of a woman, save of the very lowest class, at the bar of justice is rare. The number of cases where women of good environment appear as defendants in the criminal courts in the course of a year may be numbered upon the fingers of a single hand, and, although the number of female defendants may equal ten per cent of the total number of males, not one-tenth of the women brought to the bar of justice have had the benefit of an honest bringing up and good surroundings.

CHAPTER VIII. Tricks of the Trade

"Tricks and treachery," said Benjamin Franklin, "are the practice of fools that have not wit enough to be honest." Had the kindly philosopher been familiar with all the exigencies of the criminal law he might have added a qualification to this somewhat general, if indisputably moral, maxim. Though it doubtless remains true as a guiding principle of life that "Honesty is the best policy," it would be an unwarrantable aspersion upon the intellectual qualities of the members of the criminal bar to say that the tricks by virtue of which they often get their clients off are "the practice of fools." On the contrary, observation would seem to indicate that in many instances the wiser, or at least the more successful, the practitioner of criminal law becomes, the more numerous and ingenious become the "tricks" which are his stock in trade. This must not be taken to mean that there are not high-minded and conscientious practitioners of criminal law, many of them financially successful, some filled with a noble humanitarian purpose, and some drawn to their calling by a sincere enthusiasm for the vocation of the advocate which, in these days of "business" law and commercial methods, reaches perhaps its highest form in the criminal courts.

There are no more "tricks" practised in these tribunals than in the civil, but they are more ingenious in conception, more lawless in character, bolder in execution and less shamefaced in detection.

Let us not be too hard upon our brethren of the criminal branch. Truly, their business is to "get their clients off." It is unquestionably a generally accepted principle that it is better that ninety-nine guilty men should escape than that one innocent man should be convicted. However much persons of argumentative or philosophic disposition may care to quarrel with this doctrine, they must at least admit that it would doubtless appear to them of vital truth were they defending some trembling client concerning whose guilt or innocence they were themselves somewhat in doubt. "Charity believeth all things," and the prisoner is entitled to every reasonable doubt, even from his own lawyer. It is the lawyer's business to create such a doubt if he can, and we must not be too censorious if, in his eagerness to raise this in the minds of the jury, he sometimes oversteps the bounds of propriety, appeals to popular prejudices and emotions, makes illogical deductions from the evidence, and impugns the motives of the prosecution. The district attorney should be able to take care of himself, handle the evidence in logical fashion, and tear away the flimsy curtain of sentimentality hoisted by the defence. These are hardly "tricks" at all, but sometimes under the name of advocacy a trick is "turned" which deserves a much harsher name.