Frederic DeWitt Wells - The Man in Court
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Frederic DeWitt Wells >> The Man in Court
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| Transcriber's Note: Some obvious typographical |
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THE MAN IN COURT
by
FREDERIC DEWITT WELLS
Justice, Municipal Court of New York City
G.P. Putnam's Sons
New York and London
The Knickerbocker Press
1917
Copyright, 1917
by
Frederic Dewitt Wells
The Knickerbocker Press, New York
To
MY FRIEND
CHARLES E. GOSTENHOFER
OF THE NEW YORK BAR
IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS
THIS BOOK IS DEDICATED
INTRODUCTION
The author has tried to show the point of view of the ordinary man in
a law court, as the various proceedings of a trial take shape before
him. To the initiated, the whole book may seem too obvious; but it has
not been written for them, but for those to whom these proceedings are
unfamiliar. There are many who have a certain curiosity about the
courts, and at the same time a real respect for justice, mingled with
amusement at the panoplies and antiquated forms of legal procedure.
F. DEW. W.
NEW YORK,
_January, 1917_.
CONTENTS
PAGE
INTRODUCTION iii
I.--A NIGHT COURT 3
II.--THE CIVIL COURT 21
III.--THE JUDGE 39
IV.--THE ANXIOUS JURY 57
V.--THE STRENUOUS LAWYER 75
VI.--THE WORRIED CLIENT 93
VII.--PROGRAMS AND PLEADINGS 111
VIII.--PICKING THE JURY 129
IX.--OPENING THE CASE 149
X.--THE CONFUSED WITNESS 165
XI.--THOSE TECHNICAL OBJECTIONS 183
XII.--THE MOVEMENTS IN COURT 201
XIII.--ELOCUTION 219
XIV.--THE HEAVY CHARGE 235
XV.--THE TRUE VERDICT 251
XVI.--LOOKING BACKWARD 265
I
A Night Court
In the Night Court the drama is vital and throbbing. As the saddest
object to contemplate is a play where the essentials are wrong, so in
this court the fundamentals of the law are the cause of making it an
uncomfortable and pathetic spectacle.
The women who are brought before the Night Court are not heroines, but
the criminal law does not seem better than they. It makes little
attempt to mitigate any of the wretchedness that it judges; in many
cases it moves only to inflict an additional burden of suffering. The
result is tragedy.
The magistrate sits high, between standards of brass lamps. His black
gown, the metal buttons and gleaming shields of the waiting police
officers, the busy court officials behind the long desks on either
hand tell of the majesty of the law.
In front of the desk but at a lower level is a space of ten or twelve
feet running across the court-room in which are patrolmen,
plain-clothes men, detectives, women prisoners, probation officers,
reporters, witnesses, investigators, and lawyers. Beyond in the
court-room a large crowd is on the benches. There are witnesses,
brothers and sisters, friends of the prisoners waiting to see whether
they go out through the street entrance or back through the strong
barred gate seen through the door on the left. Also there are the
"sharks" waiting to follow out the released prisoners, to prey upon
them as the circumstances may favor; and a number of curiosity seekers
watching intently. For them it can be nothing but a morbid dumb show,
for they are so far from the bench that not a word of the proceedings
could be heard. Only once in a while the shrieks and imprecations of a
struggling hysterical woman as she is hurried out of court can
enliven the scene.
Fortified with a letter of introduction to the judge and a disposition
that will not be too easily shocked at seeing conditions of life as
they actually exist, the spectator may find his way past the policeman
at the gate in the rail. It clicks behind him ominously and he wonders
whether he will have difficulty in getting out. Finally through clerks
and officials who become more kindly as they learn he is a friend of
the judge, he is seated in a chair drawn up beside the bench. The
magistrate is a hearty round-faced man who seems almost human in spite
of his gown and the dignity of his surroundings. The court looks
different from this point of view and he may easily watch the judicial
enforcement of the law supreme.
The organization of these courts is simple. There are not many rules
or technicalities. The judges are patient, hard working,
understanding, and efficient. The trouble is with the laws they are
called upon to administer: Laws which are as absurd, as farcical, and
as impracticable as the plot of the lightest musical comedy.
At first the visitor can hardly understand what is going on. A
pale-faced man is in the witness chair, on his left a bedraggled
little woman is standing before and below the judge, her eyes just
level with the top of the desk. Clerks are coming with papers to be
signed: "commitments," "adjournments," "bail bonds"; others are trying
to engage his attention. In the meanwhile the case proceeds.
"I inform you," says the judge to the woman, "of your legal rights,
you may retain counsel if you desire to do so and your case will be
adjourned so that you may advise with him and secure witnesses, or you
may now proceed to trial. Which will you do?"
She murmurs something. She is pale-faced with sullen eyes, drooping
mouth, an over-hanging lip. A sad red feather droops in her hat.
"Proceed," says the judge; and to the policeman who is called as a
witness, "You swear to tell the truth, the whole truth mm-mm-mm--you
are a plain-clothes man attached to the 16th Precinct detailed by the
central office, what about this woman?"
"At the corner of Fifteenth Street and Irving Place," says the
witness, "between the hours of 10:05 and 10:15 this evening I watched
this woman stop and speak to three different men. I know her, she has
been here before your Honor."
"What do you say?" the judge asks the woman. She is silent.
"What do you work at?"
"Housework, your Honor."
"Always housework; it is surprising how many houseworkers come before
me." She smiles a sickly smile.
"Take her record. Next case," says the judge. Outside it is a cold
sleeting night in early March.
"Witnesses in case of Nellie Farrel," calls the clerk.
Nellie Farrel stands before the desk beside a policeman; she is tall
with fair waving hair. She must have been pretty once; even now there
is a delicate line of throat and chin. But her eyes are hard and on
her cheeks there are traces of paint that has been hastily rubbed off.
She looks thirty; she is probably not more than twenty.
A callow youth, who seems preternaturally keen, swears that on
Thirteenth Street between Fifth Avenue and University Place the woman
stopped and spoke to him; and he tells his story as though it were
learned by rote.
"Do you know the officer who made the arrest?" the judge asks him.
"I do." A suspicion arises that there may be an interest between the
witness and the policeman.
A dark-haired, smooth-faced woman who is standing by the prisoner
says: "Your Honor, she's my sister. I'm a respectable woman, my
husband is a driver. I have three children. It's disgrace enough to
have the likes of her in the family. If you'll give her another
chance I'll take her home with me; my husband is here and he's
willing." The accused looks down piteously.
"Discharged on probation," says the judge, and the family go out.
"That's the third time that's happened to her," whispers a clerk.
"Every time the sister comes up like a good one."
A horrible old woman with straggling gray hair, shrivelled neck, and
claw-like hands grasps a black shawl about her flat chest. "Mary,"
says the judge, "thirty days on the island for you."
"Oh, your Honor, your Honor, not the workhouse. Oh, God, not the
workhouse," and she is borne out screaming and fighting and invoking
Christ to her aid. The judge turns and says in explanation, "an old
case, an example of what they all may come to."
A dark-haired little French woman is brought in with crimson lips,
bold black eyes, and expressive hands. A detective testifies that he
went with her into a tenement house on Seventeenth Street west of
Sixth Avenue. Charge: Violation of the Tenement House Law.
"Qu'importe," says the woman. "I go in ze street. I am arrested. I
stay in ze house. I am arrested. I take ze room. I am arrested.
Chantage--Blackmail. C'est pour rire."
Who are these women who are brought in a crowd together? One of them
older than the rest is a foreigner plainly dressed in black silk with
a gold chain. She does not seem particularly evil, but rather
respectable. The others are in long cloaks or waterproofs hastily
donned and through which are glimpses of pink stockings. They have
hair of that disagreeable butter color which speaks of peroxide. There
has been a raid on a west-side street of a house of ill repute. Some
testimony is given and the older woman, the "Madam" is held in bail
for the action of the Grand Jury while the rest are held for further
evidence. The judge tells us there will probably not be enough
testimony and they will be released in the morning. But unless bail
is found they will spend the night in cells.
A nervous, excited woman comes in--two policemen are with her. She has
been arrested for disorderly conduct on Sixth Avenue near Thirty-first
Street. She has been fighting with a man who has also been arrested
and taken to the men's Night Court. Hers is a hard, tough face of the
lowest type.
"Why should you try to scratch the man's face? What did he do?" the
judge asks. "Is he your husband?"
"My husband, your Honor? Yes, I guess you can call Al that. We lives
up town and when I went out he says to me, 'Hustle, kid, you got to
hustle, the rent's due and if you don't get the money I'll break your
neck.' The slob won't work. Well, a night like this you couldn't make
a cent and I only had half a dollar and I wanted to get a bite to eat.
I hadn't had a thing since four o'clock, and then I met Al going down
Sixt' Avenue an' he tries to swipe me fifty cents off me and I was
that wild I wanted to tear him. I'm sorry; I guess it was my fault. I
don't want to see him jugged, so please let me off, your Honor, and I
won't make no trouble."
"Take her record," said the judge, "and hold her as a witness against
the man."
A string of women are brought in for sentence who have been having
finger prints taken in the adjoining room. The judge proceeds to
impose sentences according to the previous records which are shown.
Some of the women are those who have passed in front before. The
little bedraggled woman with the red feather has been arrested seven
times in sixteen months. Another has spent eight weeks in the
workhouse out of a period of seven months; another has been sent
already to the Bedford Reformatory; another has been twice to houses
of reform. Before the judge gives his sentence he refers the prisoners
to the probation officer, who talks with them in a motherly way.
After talking with the little prisoner she addresses the judge. "She
says its no use, your Honor, she does not want to reform--it will not
be worth while to put her on probation."
"Committed to the Mary Magdalene Home," says the judge, and the name
brings a startling surmise as to what He of Galilee would have said.
The foregoing is only a typical session of the court. Night after
night, from eight o'clock until one in the morning, the scene is
repeated. The moral effect and its reaction upon those who conduct the
proceedings--the judges, officers, and the police, cannot but be
deplorable; the evil done to those forcibly brought there could not be
over-estimated.
Substantially the law is that the women may not loiter in the streets
nor solicit in the streets, or in any building open to the public.
They may live neither in a tenement house nor in a disreputable house.
The law makes it a crime for the women to walk abroad or stay at home.
Their existence is not a crime, but only in an indirect way the law
makes them outlaws. Anyone wishing to prosecute or persecute finds it
easy to do so. The worst enemies of these unhappy women are to be
found, curiously enough, among both the best and the most evil people
in the community. The unspeakably depraved are the men who, either as
procurers, blackmailers, or the miserable men who live on a share of
their earnings. The excellent people who oppose any remedial
legislation which might relieve the situation, seem equally
responsible for the present condition, however well-intentioned they
may be.
One effect of the present system is the practically unchecked
transmission of disease. A reform in this direction would not solve
the basic problem, for there would remain full opportunities of
blackmail and extortion, but it might still remove a menace to the
health of the community which is probably more serious than
tuberculosis.
A statute to this end was enacted in New York State a few years ago:
an act for the medical examination of the women. It was declared
unconstitutional because of one word. It should have read, "the judge
may"; instead, it read, "the judge _must_." Far more difficult to deal
with is the opposition of the people who believe that the moral sense
of the community would be jeopardized by any laws suggesting that
prostitution is unavoidable.
In ironic contrast to the failure of legislation to prevent the spread
of disease, is the success of an ill-advised statute making adultery a
crime. Under it, a married man having relations with a prostitute and
the woman herself, are subject to criminal prosecution. It affords a
fresh field for extortion, how largely used it is impossible to say.
The history of the passage of the adultery act presents one of the
most ghastly jokes ever perpetrated by a State Legislature.
For years such a bill had been introduced in the New York Legislature
and had been passed by either the Assembly or the Senate without
comment and then quietly killed in the other house. It was obvious
that such a law could not be properly enforced and its blackmailing
possibilities were manifest, yet no one, not even Governor Hughes, who
was then in office, could be openly opposed to its passage.
The tender morality of the community would not allow a public
discussion.
It was said, at the time, that when the representative of a society
for the suppression of vice called on one member asking him to
introduce the bill, he declined to do so on the ground that he
represented a Fifth Avenue District and it would make him too
unpopular among his constituents. When the bill had been introduced by
another member and came up for final passage, it was decided, since
Governor Hughes had vetoed many political bills of members of both
houses, to put him in a dilemma. If the bill were presented to him he
would have to sign an absurd statute or declare himself the friend of
unrighteousness. He signed it and the bill became a law. Since its
enactment there have been ridiculously few convictions under it.
The successive carelessness, timidity, and levity of the Legislature
is depressing, but there is an encouraging increase of interest on the
part of the public. The average man is not merely interested in the
problem; he appears to take the sensible view that the "social evil"
is not so much a moral question as a condition, a problem to be met
like other problems. We have become less concerned with the private
morals of our fellow citizens than with their health, safety, and the
prevention of unnecessary suffering. We perceive that the courts are
only our agents and are not directly responsible for what they do;
they are following instructions given by our ancestors and which we
have neglected to abolish or modify.
The visitor leaves the Night Court with a strange sense of having his
social values overthrown. He feels almost sympathetic with the women
whom he has seen. They may be offenders against morals and the social
order, but they are human beings over whom the waters of civilization
seem to sweep with relentless flood. The frightful waste of life and
energy seems inexcusable. And it is as though some mill dam had burst
and was flowing in a terrific torrent down a river bed along which a
few are drawn white and drowned.
The ordinary man knows that the women who go under are such a small
proportion of those who escape, that it seems either a ghastly joke or
a terrible tragedy. The whole paraphernalia of the court-room merely
accents the contrast between those who are caught and those who go
free.
But all criminal courts are always unpleasant. And humanity if seen
only in the setting of a criminal trial would be a discouraging
object. Turning to the more civil court, we find an almost equal
unfitness between the courts and modern conditions.
II
THE CIVIL COURT
In a twenty-four-story office building, on a smooth gliding elevator,
up seventeen stories, down a low-ceilinged corridor, past fireproof
doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room,"
we find the typical modern court. The old idea of a very
pseudo-classic courthouse on a placid village green to which the
neighboring county squires have ridden, and where the jail is in the
cellar and the town recorder in the attic, is fast disappearing. The
old courthouse in the city, of red sandstone with battlements and
turrets, minarets, and a clock tower, seems out of date.
The white marble palaces of the higher courts wherein broad stairways,
paneled mahogany, stained glass, and soft noiseless carpets giving an
air of repose and refined culture, are not altogether consistent with
the modern spirit. The man on the street does not understand whether
the marble statues on the roof are symbols of justice or late
presidents of the United States. The usual courthouse of twenty years
ago was a mixture of armory and Gothic church.
In the larger courthouses where there are many terms or parts in one
building, there is an air of confusion. Rotundas, corridors,
stairways, and elevators are constantly filled with a moving crowd of
lawyers waiting for their cases to be tried, clients who have had
appointments, witnesses who have been subpoenaed to come to court
and when they get there find it is not one court, but thirty. The
latter are found wandering dazedly about asking anyone who will stop
to listen if they know in which part the case of Martin _vs._ Martin
is being tried. Lunch counters, telephone booths, and a feeling of awe
are in the building.
What that terror of a court of law comes from is difficult to analyze.
There is the impressive majesty of the law; always about a court is
the inspiring sense of something more than human. Even an empty
court-room is not as other rooms. Like an empty theater there remains
an atmosphere of glamour, of mystery, and yet equally true there
remains a substantial, strong odor of crowds.
It is said that every theater retains its own peculiar smell. The
scientific investigation of the psychology of odors is too subtle to
be understandable. The question of analyzing the exudations of a
nervous crowd seems interesting, but the remembrance of an anxious
humanity is always present. In former times the attendant placed a
small bunch of herbs and aromatic flowers on the judge's desk, and
glasses of the dried bouquets remained in a row for long periods.
Hygienically considered the courts are unsanitary. If the windows are
opened the cold air is apt to draw directly on the heads of the jury
and the stenographer. In summer the noise of city streets, the cars,
the elevated, the cries of children, the hand-organs, the flies, are
not at all conformable to the supposed dignity of the court. It is
well-known that the crowded and unhealthy conditions of the courts are
conducive to disease as well as discomfort to the inhabitants.
The connotations of the name court are generally impressive. There is
the suggestion of jail, of punishment, of something final, of absolute
judgment. Also it suggests the courtyard of a tenement house, an
alleyway or something shut in and confined. The philology is from the
old French cort or curt. It is curious that it means something narrow.
There are the suggestions of the lists, of heralds, of trumpets, of
banners and knights in armor, of prancing steeds, of fair ladies
watching, of joust, tournaments, and trials by battle. There is
something royal about the word. We think of pomp and magnificence and
purple robes, of kings on their thrones, with courtiers standing
about. The conception of Diety to the simple man who visualizes,
immediately takes on the form of a court. We speak of the Courts of
Heaven. The pictures of Godhead represent him as sitting in the center
on his raised throne with the surrounding tiers of attendant angels.
The modern court-room is only an adapted continuation of a medieval
idea. On the raised dais under an unsanitary and dusty canopy of green
plush sits the judge; instead of a sceptre he holds the gavel. This
gavel, by the way, is falling more and more into disuse. As a symbol
of authority, a little wooden hammer has become a trifle ludicrous. If
a judge were to shake it too violently there might be a fear on the
part of those watching that he was about to throw it at the spectators
or at one of the arguing lawyers.
The judge sits at an imposing high-railed desk with standard lights at
either corner. The top of the desk is usually above the level of the
eyes even of the lawyer standing. This is an arrangement which is
conventional and convenient; it would not be consistent with the
majesty of the law if the judge should be discovered writing a
personal note or taking a glance at the stock market reports in the
evening paper.
The judge's chair is ordinarily a revolving one with a dip backward.
Stationary chairs are trying, for those who have to remain quiet for
so many hours at a time, and the swinging back and forth and twisting
about gives a little relaxation.
In front of the judge's dais are the counselors' or lawyers' tables,
and at one side in front and below usually another table for
reporters. It is somewhat like the arrangement in baronial halls where
there was an upper and lower table and some sat below the salt and
others above.
On one side, opposite, but not as high, is the jury-box. This is a pen
with twelve seats within a high-sided inclosure like an old-fashioned
pew. What the object of the inclosure may be is uncertain, unless it
is a relic of a time when it was necessary to imprison the jurors.
Jury duty has doubtless always been arduous and disagreeable, and in
earlier days men were probably as anxious to escape serving on the
jury as they are to-day. In one of the courts, which was not supposed
to be for jury trials, twelve men once sat on a case without any
jury-box in plain chairs and at the side of the room. They were
extremely uncomfortable themselves; their legs were exposed and they
seemed shockingly unconventional.
Between the judge's desk and the jury-box is the witness chair, an
ordinary chair placed not quite so high, but beside the judge's and
where he can look down on the witness. The position of the witness
chair may be accountable for the feeling of protecting the witness
that exists in the minds of the judge and jury. There is a natural
sympathy for him, as though he were being attacked by the examining
counsel. The witness in former times stood in a little enclosed box
and in Italy, where court scenes are more intense, the prisoners to
this day in criminal trials testify from behind iron bars.
Below the witness chair is the stenographer. The former idea of the
aged scrivener or court clerk with white hair and green eye shade has
vanished. The modern stenographer, who keeps the record of a trial, is
probably an energetic young man, who has passed high on the civil
service list, knows something about law, is studying for a better
position, or is connected with a very profitable stenographers'
business on the outside.
The court proper is divided from the rest of the room by an iron or
wooden rail guarded by a jealous court attendant, who is always a
strong advocate of court etiquette and very properly maintains the
dignity of the court. He is in uniform with a shield or badge of
office conspicuously displayed and being taken from the civil service
list whereon war veterans and retired firemen or policemen have a
preference, is generally of a certain age. Naturally, being old and
having to stand so much, he has tender feet, and with the customary
effects of all secure and salaried positions, acquires both a slow and
shuffling gait and the ordinary characteristics of his class. He is
subject to many petty annoyances, foolish questions, repeated
inquiries, people talking or arguing, little disorders pursue him on
every hand.
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