The Signs of the Times, vol. 13
February 24, 1887
“The Course of ‘Justice’” The Signs of the Times 13, 8, pp. 119, 120.
ONE of the worst elements in the defeat of justice in the courts nowadays, is the bad practice of continuances, which has grown to such an extent that it may almost be considered as an established system. Cases are continued over and over and again and again, until the chances are altogether against justice ever being done in them. One case in San Francisco has now been continued eighty times, and yet awaits trial. Another has been continued fifty times, and still waits. These are perhaps extreme cases, but they illustrate a practice that is followed in the courts everywhere to such an extent that in a multitude of cases the trial as well as the result at last is only a travesty upon justice. SITI February 24, 1887, page 119.1
By these continuances, so much time is consumed that in the natural order of events the witnesses may die, or move from the place, and even if they remain and are called to the trial, the facts are no longer fresh and clear to their minds, while many important points and circumstances are wholly forgotten. And when testimony, which at the best must be uncertain, falls into the hands of a sharp lawyer, and especially of the criminal lawyer, it is the easiest thing in the world for him to present it to the average jury in such a way that they shall see no real evidence in it, much less such evidence as would place the matter “beyond reasonable doubt.” SITI February 24, 1887, page 119.2
The Constitution of the United States provides that in criminal cases the party accused shall have the right to a speedy trial, which of necessity implies that the accuser, that is “the people,” shall have the right speedily to try him. But this provision of the Constitution, eminently wise and just as it is, is almost a dead letter; and this almost wholly owing to this baneful practice of repeated continuances and postponements. Both the fault and its remedy, lie with the courts. The matter of granting a continuance lies entirely in the option of the judge. There are, to be sure, times when a postponement ought to be made, and when it will serve the ends of justice, but such are the exception. Whereas it is safe to say that nine times out of ten, to grant the continuance asked for is only to play into the hands of the lawyers, and they in most cases directly into the hands of the criminals. Says the San Francisco Chronicle:— SITI February 24, 1887, page 119.3
“Too many judges have to kindly a feeling for the pockets of their brethren at the bar, and will not force a case to trial for fear that the attorney for the defendant should be compelled to sacrifice some other business in attending to the case in hand. They accept the plea of another professional engagement as a good and sufficient excuse for delay, instead of compelling the attorney for defendant to try the case or give it up to someone else. This is all wrong. There is no divinity doth so hedge about any particular member of the bar that the wheels of justice should stop because he cannot superintend their revolutions. An attorney violates the spirit if not the letter of his oath when he accepts an employment with full knowledge that he cannot give his services to his client at the time when they will be required, and it is the clear duty of the court to frown upon such unprofessional conduct by compelling the attorney to conform to the orders of the court or to relinquish the case.” SITI February 24, 1887, page 119.4
And the New York Observer:— SITI February 24, 1887, page 119.5
“In many cases the pleas seem to be nothing more than a legal device for wearying out an opponent or making a trial so expensive to him that he cannot follow it up. The strangest part of the matter is that magistrates seemingly countenance such devices by granting adjournments on the most flimsy pretexts. So great are these abuses in the administration of justice that a court of law is about the last place in which a man seeks for a redress of wrongs or a restitution of rights.” SITI February 24, 1887, page 119.6
But in this delay of the law and defeat of justice, the largest part, by long odds, is played by the lawyers. We know full well that there are honest lawyers—men who are faithful to the public good, and who would do nothing to defend the ends of justice. But at the same time, it is undeniable that there are lawyers, and the number is increasing every day, who are unprincipled men, and have no scruples at all in regard to their conduct of a case—men with whom the question of justice has no place, but the sole question is whether the criminal can be cleared. They are men who, in behalf of the criminal, will enter and maintain any plea or any number of pleas that they think will give them the smallest chance of success—yes; and even pleas that are directly contradictory, each of which destroys the others. Other pleas are entered that it is impossible for a disinterested person to believe that the lawyer himself believes to be true. Yet the pleas, and perhaps contradictory ones, are solemnly entered, and the trial conducted upon them, before a jury perhaps itself in sympathy with crime, and the criminal is cleared. It not so fortunate as to obtain such a decided result, at least a disagreement of the jury is secured, and this repeated two or three times, and then almost certainly an acquittal. But if anywhere in all this procedure the verdict is that the accused is guilty, then a long series of exceptions and technicalities are brought up as the basis of a motion for a new trial. If the motion is denied, then an appeal is taken, and of that the result is almost sure to be that a new trial will be ordered, and then the same long, tedious process is gone through with again unless an acquittal shall have been obtained by the privileges of the new trial. SITI February 24, 1887, page 119.7
The preparation for this course is diligently and steadily made and kept up from the very first. From the very first step that is ever taken in the case, the criminal lawyer keeps up a volley of irrelevant questions of his own, or of objections to the questions of the prosecution, upon all of which the court must decide, and if the decision is not in his favor, then an exception is marked. This thing continues unabated throughout the trial, which of itself is greatly lengthened by it, so that when the trial is ended he has a volume of exceptions upon which to base his motion for a new trial or his appeal to a higher court. It sometimes appears as though the principal office of the trial judge were only to decide upon objections so that the lawyers can take exception to his decision. So emphatically is this so that there is actually a practice known in the courts as “trying a case for the exceptions,” that is as defined by Judge Learned of the New York Supreme Court, “contriving as many ingenious pitfalls as possible, by offers of evidence and by exceptions to evidence and the like, in the hope, often well fulfilled, that the trial court will fall into some of these dangers, and that thus a client with no real defense might weary out his adversary by the delay consequent on an appeal.” SITI February 24, 1887, page 119.8
Then, when by such trickery the appeal is gained, the appellate court pays more attention and gives more weight to the technicalities involved in the exceptions than it does to the question whether justice has been done. Again says Judge Learned, of this practice: “Instead of being guided by the rules of codes of law, or by a sound judgment as to the merits of the case, appellate courts are constantly searching for precedents in other cases, and are anxiously making a precedent out of the case in hand. When a case is argued, the question is not whether justice was done in the court below; but it may be whether some witness said something which might be considered irrelevant—perhaps no more important to the merits than whether he stood at right angles to the jury when he testified.” SITI February 24, 1887, page 119.9
We do not say that the accused should have no lawyer to plead for him, even though the case be one known to all as deliberate and unmitigated murder. We care not how confirmed a criminal he may be, nor how manifestly guilty, he has a right to a fair trial. He has a right to counsel. This the States assures to everyone. If the accused is unable to hire counsel, the State appoints counsel, and it is only just and right that it should be so. But whether the counsel be hired or appointed, he has no right to try to delay or to defeat justice in the case. Let him fairly present the prisoner’s plea, let him bring into notice all the extenuating circumstances that can be fairly and honestly set up; to all this the accused has a perfect right. But no lawyer has a right to work by tricks and quibbles and technicalities to compass the escape of a criminal from the just penalty that he deserves. SITI February 24, 1887, page 120.1
There are indeed times when a lawyer will not allow his client to plead guilty, or having already plead guilty will try to persuade him to withdraw it and plead not guilty. Such a case which we recall particularly occurred not long ago in New York City. A prisoner had plead guilty, and a lawyer tried to induce him to withdraw it, and allow him to defend him as not guilty. The prisoner persisted that he was guilty. Then the lawyer addressed the court, saying, “He is undoubtedly guilty, but the people can’t prove it.” The rebuke that the judge administered to this man was as richly deserved as it was stern. Not all such lawyers have the frankness to so openly reveal their real sentiments and purposes, but there is an immense number of them who act strictly upon the principle here avowed. The following from the Interior gives the true status of all such men:— SITI February 24, 1887, page 120.2
“The lawyer who helps him to secure an acquittal by unfair and dishonorable means, under the color of law, is as guilty as if he went to the jail at night and helped the prisoner to escape. The practice in our criminal courts has fallen into the hands of smart but unscrupulous men. There were great criminal lawyers in the former generations who were also honorable men. But there has been a great change in this respect. And the men who make it their business to defend thieves and murderers have more sympathy with their clients than with honest and law-abiding citizens. They are really partners in the crimes which those clients are encouraged to commit, because they depend on these unscrupulous practitioners to get them free through loop-holes in the law.” SITI February 24, 1887, page 120.3
Then such is the gauntlet which Justice has to run, how can she come out clear and untarnished? But this is the condition of legal procedure that is most prevalent in this nation to-day, and again we ask, What can the end be? SITI February 24, 1887, page 120.4
J.