LAW Mi!) LETERRWRB Dreiser and the Ccurts Thesis 9cm {'Em Deqvca 3*? i351“ D. EMERGAN STA'I‘E UNWEBSE'E‘Y Eda Biacksin 29-59% m :11" "f? LIB 12.4 11;“ . , . N Mzcgmgazt \ 7:333 Univ 91‘s ,s f y THESIS cum-an «hm» «aw-“c This is to certify that the thesis entitled LAW AND LITERATURE Dreiser and the Courts presented by Ida BlaCksin has been accepted towards fulfillment of the requirements for Ph. D. degree in English (Comparative Literature) W 6.713;. Major professor Dam November 14, 1969 0-169 __fi_~_-H m , -. .. ..---o-.‘.‘(v— w A . ABSTRACT LAW AND LITERATURE Dreiser and the Courts BY Ida Blacksin This dissertation presents an analysis of the legal case study as found in Theodore Dreiser's An American Tragedy. The author demonstrates how Dreiser gave meaning to the dry facts gathered from the "Gillette case" by showing all of the social forces leading up to the tragedy that are special to the American scene in such a way as to make it a plea for Clyde Griffiths and an indictment of American society. The author indicates how Dreiser took the dry facts and translated them into living experiences and revealed his conclusions by showing us: 1. A joy ride in a stolen car that ends in a tragedy starts Clyde on the way to crime. Here Dreiser shows us the "criminal negligence" factors connected with automobile accidents. 2. The American culture patterns contributed to Clyde's crime; An American Tragedy is an example of a socioeconomic crime. Here crime is symptomatic of our complex economic life. Ida Blacksin 3. The influence of the press onczime--how news- paper methods of playing up crime news have a morbid effect on many constitutionally weak persons. 4. There is no such entity as a criminal will. Crime is not due to intent "deliberate and premeditated design," as legally defined, but the motive underlying the crime. The criminal act is due to the experience of some kind of inner conflict connected with some development in childhood. 5. The whole legal system is tied up with politics --prosecutors, lawyers, judges, and jury. 6. Shady methods are used in order to obtain a victory. Various loopholes are open to lawyers for the defense. Lawyers use flattering, emotional, and prejud- cial methods to sway the jury. 7. The trial is a public show that arouses the spirit of mob psychology in the spectators. 8. Legal language and numerous technicalities of the law have many disadvantages in retarding justice. 9. There are many weaknesses in the jury system, such as the poor mental caliber of the average jury, the time-consuming methods of selecting a jury, and the local pressures and political aspects involved in a jury deliber- ation. lO. Appeals interfere with a prOper administration of justice because of the many technical errors, delays, Ida Blacksin exorbitant expenses, disadvantages suffered by the family of the convicted man, and the psychological effects on the convicted man himself. 11. Capital punishment is not a deterrent to murder. Finally, this dissertation presents a fifteen—page bibliography for readers of varied taste, consisting of: (l) Dreiser's Books and Articles, (2) Studies and Reviews about Dreiser, (3) Comparative Books Cited, (4) Criminology and Law, (5) Capital Punishment and Penology, and (6) a Table of Cases of all the cases cited in the study. LAW AND LITERATURE Dreiser and the Courts BY Ida Blacksin A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Comparative Literature 1969 (9 Copyright by IDA BLACKSIN 1970 ii My thanks go to Professor Lore Metzger of Emory University, and to the following of Michigan State University: Professors Herbert Josephs, John Murray, Russel Nye, and John Yunck. My final thanks go to my typist, Janet R. James. iii For many centuries, people considered as criminals have been executed--but have they become extinct? No; far from diminishing, their numbers have been increased by the additions of those who have been demoralized by punishments, and also of those other criminals--judges, pros- ecutors, magistrates, and jailers, who judge and punish men. --Leo Tolstoy, Resurrection, Chapter 28 iv TABLE OF CONTENTS INTRODUCTION 1 I. II. III. IV. DREISER AND THE AMERICAN SCENE 3 Dreiser's contact with the law (3); defi- nitions and distinctions of criminal law (5); sources of An American Tra ed (7); psycholog- ical and soEIbIogical fac ors (8); criminal negligence (12); American culture patterns (13); socioeconomic aspects (l4); newspapers (1?); legal elements of crime: intent, free will and motive (22); murder in the first de- gree--deliberate and premeditated (24); com- parative views in foreign literature (26); Dreiser's concept of crime (32). LAWYERS, JUDGES, LEGAL LANGUAGE, AND THE PUBLIC 36 Lawyers generally (37); lawyers in foreign literature (40); the public prosecutor (47); politics (47); investigation, third degree and bargaining (51); rural crime control (57); lawyers for the defense (58); Dreiser's Darrow (60); legal loopholes (61); laws delay (66); personality of judge (67); legal jargon and technicalities (68); the public (72). TRIAL BY JURY 74 Jury--constitutiona1 safeguard (74); jury caliber (75); method of selection (75); delay (78); methods of appeal to jury: emotional, flattering and prejudicial appeals (79); mores of society (83); steps in the trial (88); sur- prise witnesses (89); the law as a game in foreign literature (92). IN RE CLYDE GRIFFITHS 95 Flashback to Volume I of An American Tra ed (96); the law of evidence (98); more witnesses (102); experts (110); methods used--cross- examination and leading questions (114); scientific methods (116). VI. THE END OF A TRIAL. Instructing the jury (119); deliberation of jury (122); criticism of jury (123); arraign- ment (125); appeal (127); technicalities (128); expense (131); time element (134); psychologi- cal effects (135); legal briefs and Dreiser's realism (135); suggestions for improvement (141); pardon (144). PRISON AND THE DEATH PENALTY Prison politics (149); capital punishment (151); prison life (156); death penalty as a deterrent (161); aftermath of a great drama (163); purloining by foreign authors (164). APPENDIX People v. Gillette CHAPTER NOTES BIBLIOGRAPHY TABLE OF CASES vi 119 149 168 168 186 209 222 INTRODUCTION Theodore Dreiser is an author of "sprawling strength" whose writings can not fit into a rigidly con- trolled point of view as outlined by many professors of literature. I therefore have avoided the strictly con- trolled point of view-~especially in the first two chap- ters, where I have tried to synthesize some of the ideas of Volume I of An American Tragedy which takes on form and meaning only after one reads Volume II. My aim is to treat the reader as though he were about to go to the criminal court to observe Dreiser's An American Trggegy_in three acts and an epilogue. It is understood that the observer has read the book-- especially Volume II. This study consists of six chapters. Before the reader enters the court room, the author as guide devotes the first chapter in explaining the culture patterns of the society under observation, i.e., car, money, news- papers and sex with their impact on crime, as well as the definitions, distinctions and motive of crime. The second chapter describes the people who live in that society, i.e., lawyers, judges, the public, and the peculiarities of a foreign language--legal jargon and technicalities. The reader is now prepared to observe the tragedy in three acts (Chapters III, IV, and V). Here the process of the law and its functions is described from the selec- tion of the jury to the sentencing. The sixth chapter con- tains the epilogue--the scene in prison and the execution. Along the way, the author explains what Dreiser as an artist does with the material he is accused of purloin— ing, i.e, the "Gillette case." Comparative views in law and literature are brought in. If we read between the lines, we may find a sugges- tion for a human relations court; the law has refused so far to unite with other bodies of knowledge like psychology, sociology, penology, administration of justice, and science. Dreiser also implies that the psychiatric approach is the scientific answer for the treatment of criminals. He presents this approach by means of the spiritual Reverend Mr. McMillan who tries to suggest the idea that it was not, perhaps, a mere matter of chance that the great Teacher to whom we owe our ideals of Christian citizenship was Himself crucified between two criminals; and to one of them who repented of his sins, He made the promise: "Today shalt thou be with me in Paradise." CHAPTER I DREISER AND THE AMERICAN SCENE It [An American Tra ed J is not only a minutely detaile p cture of one man's life; it is a com- mentary upon human life in general. --H. L. Mencken A flawless piece of circumstantial evidence as the lawyers call it. --Jakob Wassermann, Der Fall Maurizius More than any other modern writer, Dreiser came into constant conflict with the law in his struggle for freedom of expression. In the history of civil liberties, he well deserves a chapter, if for nothing else than be- cause he carved a way for future writers. He stood a lone figure, fighting extra legal controls over the publication of opinion--controls that were a natural outcome of a press organized on the same basis as giant industry. Financial and political pressures not only colored industry, but closed the avenue of expression to undesired ideas. To overcome this complicated pressure, Dreiser was continu- ally involved with the law. However, it is not Dreiser's personal legal struggles that are portrayed here, but rather an analysis of the law and crime as it appears in An American Tragedy. Dreiser touched the law and crime in almost all his writ- ings. Hurstwood commits a theft in Sister Carrie. The law interferes in the crime of embezzlement and grand lar- ceny in The Financier. In The Hand of the Potter, we have rape and murder. Up to the very end, law and crime had a fascination for Dreiser. In The Bulwark, he raises a very nice point of law. Stewart and Bruge take turns in having relations with the latter's girl, whose resistance is over- come by giving her a sleeping medicine that causes her death. From the facts, it would be difficult to prove whether Stewart had relations with the girl while she was alive or after she was dead. If the intercourse took place while she was alive and if the girl, Psyche, is overage (eighteen in New York), then he would be guilty of rape in the first degree. If she was dead, then the case comes under some special and unusual section that deals with in- tercourse with a dead body-~sodomy. It is doubtful as to what the crime is. It seems to be a case of felony and murder. Both men were equally involved since they both gave her the sleeping medicine to weaken her and with intent to rape; therefore, legally we have homicide with intent of felony. However, Stewart's crime involves difficulty of proof and one wonders how the case would be handled legally if Stewart had not committed suicide.3 And, in An American Tra ed , we get a glimpse of "criminal negligence" in the automobile accident for which Clyde Griffiths is legally culpable, and finally the crime for which he is condemned to death. Dreiser's documentation of law and crime cannot be overlooked, and since the law plays such a significant part in his works, it is the purpose of this study to analyze the legal case study as found in An American Tragedy. Law is divided into civil law and criminal law. The civil law is occupied with the exposition and enforce- ment of civil rights. In theory, preserving man's liberty and life is more important than preserving a corporation. Criminal law may be defined as the body of precepts and practices that a community employs to protect itself by the use of force against acts which impair or endanger its internal peace and security.4 Lawyers and law students usually regard the crim- inal law as being narrower in scope than do people gener- ally. This is due to a rather arbitrary limitation of the subject that is common in law school courses and textbooks. ‘These are more concerned with what is known as the substan- tive criminal law, or the problems of burglary, rape, homicide, murder, and so on. Substantive criminal law then relates to the definition and classification of crimes generally, the criminal act, the criminal intent, the ca- pacity to commit crime and exemptions from criminal liabil- ity, the parts to crime, and, finally, a consideration of important elements or characteristics of particular offenses. It is well to understand that in its broader phases criminal law includes a much wider range of subjects. This discussion treats some of these subjects, such as adminis- tration of the courts, criminal procedure, evidence, sen- tencing the convicted, appeal, pardon, reformation, and crime prevention generally. To use Harry Elmer Barnes' words, Dreiser's con- cepts of law and crime were more in harmony with the modern development of the science of criminology which deals particularly with the criminal himself, giving special emphasis to the problem of the causation of crime. Scientific interest of the study of the criminal came late because the criminal was classed with the sinner as a theological problem. Both were considered perverse free moral agents who had de- liberately violated the will of God. The criminal had also defied the law of the land, and savage punishment was therefore believed to be thoroughly deserved. The full responsibility of the criminal for his own conduct was assumed, and the persons who prescribed and exe- cuted punishment were believed to be serving God as well as man. Hence there was little basis for restraint in punishment or little incentive to look into the prob- lem from a naturalistic or human point of view. The rise of scientific criminology had to wait upon the development of a new intellectual perspective and the accumulation of scientific knowledge which would under- mine the ancient tgeological approach to the criminal and his treatment. The latest tendency is fOr the law schools to empha- size the social aspects of crime; that is, the causes that work into the cases considered from the legal viewpoint. The trend is to get away from the idea of the rule of the case and to see the picture or pattern of the law. Dreiser drew the material for An American Tragedy from the unusual circumstances surrounding the death of Grace Brown at Moose Lake, New York. Chester Gillette, a real-life prototype of Dreiser's Clyde Griffiths (the ini- tials are alike), was tried and convicted for murder in the first degree. From the legal point of view, the interest lies in the discussion of "circumstancial evidence" used to con- vict the murderer in the trial proceedings. It also gives us an idea of the mosaic of proof that may be composed from pieces of evidence. From the literary point of view, an opinion of the Court of Appeals6 written by Mr. Justice Hiscock is striking in that it demonstrates how closely Dreiser adhered to the tragic circumstances of the actual case. Clyde Griffiths was taken out of the court records of a murder trial, but Dreiser takes the skeleton of the .story and clothes it with flesh and blood. He shows us that all the social forces leading up to the tragedy are special to the contemporary American scene. Officially, the case is known as People v. Gillette (1908). What does this mean? It means that a public pros- ecution is a proceeding conducted by the people of a state against persons charged with criminal acts. It thus im- plies the existence of a public criminal law that has super- seded private vengeance. In its Operation, it is an inter- acting system of rules of criminal procedure, the substan- tive criminal law, and various administrative factors. According to Dreiser's interpretation of the case, it should be cited officially as In re_the People or Ig_£e the State of New York or In re Society. I$g_£e means in the affair, in the matter of, concerning; £3 is the usual method of entitling a judicial proceeding in which there are not adversa§y_parties. The term ig_£e is prevalent in what is known as the socialized or juvenile courts, where the object is not punishment but definite social investi- gation and reformation as the ideal of treatment. In the specialized or juvenile courts, the usual rules of proce- dure, pleading, and evidence are dispensed with and instead an informal administrative procedure is used. In such courts, Dreiser might get some of his answers for Clyde's crime because the considerations there are: What is he? How has he become what he is? Why has he particular dif- ficulties? What can we do to help him? The famous Gillette murder case not only engaged the interest of Dreiser and set his mind upon the problem of unravelling all the trivial events in a boy's life that might lead up to the boy's death in the electric chair, but also gave him the opportunity to show us what it is like to be a middle-class boy in America who hungers for success and power and is caught in a trap between sexual hunger and economic status. Frederic Wertham, psychiatrist and author of Dark Legend, says that in the treatment of a criminal, "The trivial may represent the essential, the detail may sym- bolize the whole, the background may elucidate the figure." In his book, Dr. Wertham illustrates this statement with a cartoon by the artist Alajalov, which first appeared as a cover for The New Yorker magazine, showing an intent, rather unattractive middle-aged woman copying a picture in a museum. As Dr. Wertham puts it: The picture she is copying is a gigantic portrayal probably entitled The Rape of the Sabines. It shows a ferocious gentleman with a leer on his face carry- ing off a lush and very naked lady, who is pretend- ing, not too successfully, to be terrified out of her wits. The picture is somber, perhaps in part darkened by age, but surely intending to convey by the rich blue and red of its tones the violence of emotion of its characters. But all this is not what our painter is c0pying. She is transferring to her own small canvas only a little bird which appears in a corner of the original picture. 11 However, by making the bird very white, the sky very blue, the clouds very pink, she is making a senti- mental, innocuous, and vapid picture. There is no title given this cartoon. But I doubt if anyone mistook the artist's intention. The c0pyist is obviously that stock character known as the old maid. Her clothes betray the fact that she has no interest in making herself attractive as a woman; that in fact, she is anxious to look as neutral as possible. Her posture, the way in which her head thrusts forward and her eyes stare, shows that she is passionately ab- sorbed in what she is doing. Yet none of that passion has been transferred 0 her own small canvas which is as tepid as cold tea. In relation to Dreiser's An_American Tragegy, the Gillette case was only a murder, the "white bird with the pink clouds and the blue sky." The fact remains that Dreiser's deliberate tenacity in rendering the whole scene honestly, concretely, and comprehensively is the main source of his strength. Dreiser reconstructed and went beyond the limited canvas of the c0pyist from which the little bird or the dry facts of People v. Gillette were taken so as to con— vey the violence of emotions that the original meant to por- tray. He showed us the various complex and sensitive shades lurking in that dark and somber background that gave meaning to the small and limited canvas so as to make it a plea for Clyde Griffiths and an indictment of all of society. But what does Dreiser see that the Gillette case did not report? 12 Dreiser has been accused of piecing his novel to- gether from exerpts of the Court records of the Gillette case. He has also been charged with extreme particulariza- tion as a fault. An answer to Dreiser's accusers and fault-finders is contained in his novel in the episode of the joy ride in a stolen car that terminates in a tragedy. The Gillette case does not record the "criminal negligence" factors, whereas Dreiser describing the wreck of a speeding automobile relates just how the car strikes an unpaved sec- tion of the street, how it caroms off a lumber pile, how it is thrown over on its left side, in just what direction each of the eight occupants is thrown, what positions they occupy in the wrecked car, how six of them get out, why the other two cannot get out, and how each one reacts to the accident.8 Let these fault-finders investigate the cases of "criminal negligence," where years are Spent in the courts on a single accident in order to find out whether it was a left turn or a right turn; study all the complicated dia- grams that are submitted; and attend while various tests of "reasonableness" are argued. A man is minus a foot, an arm, an eye. The interest of the court should be to make some kind of economic adjustment. When those concerned in the case leave, they should be better members of society. Human values are entirely lost. And the irony of it: They sent that fellow Sparser up for a year--did you hear that? Tough, eh? But not so much for the kill- ing of the little girl, but for takin the car [italics mine], and running it without a license and not stgp- ping when signaled. That's what they got him for. 13 Dreiser was fully aware of the holy regard the law has for property. The car was more important than the life of the child. Dreiser called his story An American Tragedy. Why American? Perhaps an interesting answer might be supplied by a story that is told of a case in the Russian courts where two girls had once occupied for a home a certain num- ber of cubic feet of space, the allotted quantity. One of the girls moved out. The city housing committee moved in a young man. After a child was born, the man was haled be- fore the court to determine how much he should pay toward the support of the child. His answer was that he felt no responsibility, that he had not chosen the girl, that he had not even chosen his abode, that the housing committee which had moved him into the lodgings might well have known what the result would be. The so-called judges, encumbered by neither precedent nor training, concluded--and it seems quite properly--that the cost of supporting the child should be imposed upon the housing committee of the city of Moscow. In the individual case, this was no doubt a just decision; in fact, it was poetically just. One is inclined to be- .lieve, however, that the principle underlying the decision would not be a sound guide for social action. And so in Russia what might have been "an American tragedy" was l4 judicially settled by the court. Thus, we find the Russians looking realistically Upon the sexual needs of the young. It seems that the Russians were: Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances. --A1fred Tennyson, Alymer's Field. An American Tragedy is an example of the socio— economic crime. Here crime is symptomatic of our complex economic and social life. Much of it is due to economic causes. Need and greed lie at the foundation of the greater portion of contemporary crime. And greed is responsible for the vast majority of the dangerous crimes committed to- day. These dangerous crimes of greed represent the socially disapproved methods of obtaining something for nothing. Most penologists and penal administrators know that the average murderer is an ordinary citizen without any previous notion of committing a crime until confronted with a situation that seems too much for him to solve in any rational manner. It is this fact that is admirably brought out by Theodore Dreiser in his penetrating novel. We do not know whether the youths of today are bet- ter or worse than those in any other generation. But surely (we are convinced that the wide gamut of temptation is much more attractive and dynamic than it was in the days of our 15 ancestors. The automobile and the nightclub, the tavern and the dine-and-dance, scattered as they are all over the landscape, inviting the boys and girls to frolic and fun, present a situation almost unknown to average parents. James V. Bennett, who was director of the Federal Bureau of Prisons, put it this way: Incidentally and off the record so to speak since I am a parent, it would be a good idea for us old folks to make more of an effort to understand and appraise the difficulties and temptations which our children must meet and face. It has been said that there are two kinds of homes in this country--the good home and the bewildered home.10 Clyde Griffiths comes from such a bewildered home. The one moral discipline he knows, the evangelicism of his religious parents, is linked in his mind with social de- feat, and slips easily from his essentially pagan nature. Society at large teaches him only the specious ambition to "rise," which to him means only to gain entrance to the luxurious circles of the wealthy. In one sense, Clyde's misfortune consists simply in the failure of a weakling to survive, but in a larger sense it consists in the sacrifice of impressionable youth to the pursuit of unworthy standards. Dreiser indicates Clyde's standards thus: Oh, why, why couldn't he have waited and then this other world would have Opened up to him just the same? If only he could have waited! And now unquestionably, unless he could speedily and easily disengage himself from her, all this other splendid recognition would be destined to be with- drawn from him, and this other world from which he sprang might extend its gloomy, poverty-stricken l6 arms to him and envelop him once more, just as the poverty Of his family had enveloped and almost strangled him from the first.11 Then Dreiser explains that the "genii of Clyde's darkest and weakest side was speaking" in the following manner: And do not forget that afterwards there is Sondra--the beautiful-~a home with her in Lycurgus--wealth, a high position such as elsewhere you may never obtain again --never--never. Love and happiness--the equal of any one here--superior even to your cousin Gilbert. And finally . . . The promise of a restricted and difficult life as contrasted with that offered by Sondra . . . The difference between the attitudes of these two girls-- Sondra with everything offering all--asking nothing of him; Roberta, with nothing, asking all. 3 As one reads the various cases presented by Lewis B. Lawes, former warden of Sing Sing, who wrote a revealing book, Meet the Murdere£,14 one asks: Why were these per- sons' lives snuffed out, when so many other more dangerous criminals are permitted to walk the streets free? The an— swer is that the treatment of the murderer should be in terms of psychiatry. If we read between the lines, we find the psychiatric approach at the end of An American Tragedy in the scenes between Clyde and the Reverend Mr. McMillan, his confessor--one of the most dramatic scenes in American literature. 17 A joy ride in a stolen car terminates in a tragedy, and Clyde, already a moral coward, takes to his heels. He then makes his way to Lycurgus, New York, where he is given a place in his rich uncle's factory. Thus, with his first flight, the soil is already fertile for crime. In due time, Clyde becomes a foreman in the collar factory. It is strictly against the rules of the management for any of the foremen to have anything to do outside of hours with the girls who work under them. It was an unnat— ural rule and was meant to be broken. Clyde is lonely. His loneliness is somewhat eased when a new and lovely little country girl, Roberta Alden, has come into the stamping de- partment of the factory where he is now foreman. They have, in fact, become lovers. Roberta tells him that he must help her find a way to prevent their child from being born. Clyde plans the murder of a sweetheart of his own social and eco- nomic station in life when he realizes that her pregnancy means the shouldering of irksome responsibility, and death to his hopes for financial and social advancement just at the moment when his hopes, after a hard struggle, seem about to be realized. In his desire to free himself from Roberta, the newspaper account of a boating accident in another state 18 leads to dark thoughts in the young man's harassed mind. How simple things would be if Roberta should drown on some such excursion and he could escape to happiness with Sondra! Dreiser was aware of the influence of the press on the increase of crime. He was a former newspaperman and was therefore well acquainted with the modern machinery Of news distribution-~gigantic presses, leased wires, special- ist reporters. He certainly knew that the amount of space devoted to crime news had greatly increased in the last quarter-century. Clyde reads the headlines upon the first page of the Times-Union of Albany: ACCIDENTAL DOUBLE KILLING AT PASS LAKE--UPTURNED CANOE AND FLOATING HAT REVEAL PROBABLE LOSS OF TWO LIVES AT RESORT NEAR PITTSFIELD—-UNIDENTIFIED BODY OF GIRL RECOVERED--THAT or COMPANION STILL MISSING15 Although this was only the report Of an accident, Dreiser knew that this item had, through the power of suggestion, served to stimulate Clyde's crime. He writes concerning the young man: In a tremulous state Of dissatisfaction with himself -—that any such grisly thought should have dared to obtrude itself upon him in this way--he got up and lit the lamp--re-read this disconcerting item in as cold and reprobative way as he could achieve, feeling that in so doing he was putting anything at which it hinted far from him once and for all. Then, having done so, he dressed and went out of the house for a walk . . . feeling that he was walking away from the insinuating thouggt of suggestion that had so troubled him up to now. On another Occasion, "Clyde, for some reason, had (thought Of the accident at Pass Lake. He did not realize it, but at the moment his own subconscious need was 19 contemplating the loneliness and usefulness at times of 17 such a lone spot as this." He continues: "And in spite Of himself, his eye once more followed nervously and yet unwaveringly to the last word of all the suggestive and 18 provocative details.” Dreiser indicates further: "And yet at moments the solution suggested by the item in The Times-union again thrusting itself forward, psychologene- tically, born of his own turbulent, eager and disappointed seeking. And hence persisting."19 And, finally: A feeling Of dark and bitter resentment swept over him and he could not help but feel sympathetic toward that unknown man at Pass Lake and secretly wish that he had been successful. Perhaps he, too, had been confronted by a situation just like this. And perhaps he had done right, too, after all, and that was why it had not been found out. His nerves twitched. His eyes were somber, resentful and yet nervous. Could it not happen again successfully in this case?20 Commentators on crime and the news designate crime news as the literature Of the nation. In one notorious and sordid trial, the number of words telegraphed from the scene of the trial at the end of twentyffour days was twelve million. . . WOrds enough if put into one newspaper . . . to fill 960 pages of solid reading matter. Words enough, if put into book form, to make a shelf of novels twenty-two feet long. This is the literature Of the nation . . . because it does not wait for its patrons on bookstore shelves or gather dust in libraries, but is sold out, read and realistically debated within two hours after it comes smoking from the press. 151 needs no pushing, no advertising, needs no criticism. Criminologists claim that newspaper methods of play- _ing up crime news do have a morbid effect on many constitu- tionally weak persons. SO long as the public wants to read 20 banal and racy news, we can expect little constructive re- form from the news fraternity. There is no statistical method Of arriving at the number Of persons who enter criminal activity through what they read in the newspapers or magazines. No doubt, there are many. The constant repetition of crime stories in the press can affect readers in two different and dangerous ways. It may affect some highly suggestible persons, among whom are many young people, to commit similar crimes; or it may create an indifference to law and order through the constant reiteration and exaggeration of the details of the crimes. Stable people, juvenile and adults alike, will be little affected by what they read. The unstable and many of the socially maladjusted may be somewhat affected, and it is from this suggestible and abnormal group that most of our delinquents come.22 A prominent police consultant stated the case of newspaper responsibility, in so far as crime news is con- cerned: SO far [this great instrument] the press has scarcely done its part. The most carefully formulated editorial policies, through which might be secured able discus- sions of law enforcement problems, are Often Offset by a new policy deliberately designed to appeal to the prejudices Of the unschooled and ignorant.23 The motion picture and the radio also have been at- tacked for their contribution to delinquency and crime. ’Much as one may deplore the cinema's shortcomings as a medium of art and education, nevertheless the motion picture 21 has been made too much of a scapegoat by the clergy and other puritanical forces in our society. Thanks to Eric Johnston and his associates Of the Motion Picture Associa- tion of America, action was taken to amend their regulations and codes and to halt the production of those pictures glorifying the criminal. Criticism of comic books as con- tributors to delinquency and crime has waned since the ar- rival Of television, which now is faced with almost the same charges once hurled at comic books and before that at movies and radio. Dreiser tells us that at intervals diabolic voices seem to whisper the details of the murder in Clyde's shrink- ing ears. Roberta becomesimportunate in her anguish. He takes her on an excursion to Big Bittern and Grass Lake in the Adirondacks. In the solitude of the south shore of lonely Big Bittern, his fiendish plans materialize. Then, when the moment arrives, he shrinks from it and hates the girl the more because he knows himself taaweak to find his freedom this way. A discussion arises and she creeps to- ward him in the boat, which tips dangerously. With his camera in hand, he instinctively strikes to ward her off land she falls back. His sudden movement to save her throws them both into the water, as he had previously planned. Although he is a good swimmer and she is not twenty feet 22 away and unable to swim, his former resolution revives and he swims for the shore, leaving her to drown. There he picks up his suitcase he has hidden, changes into a dry suit, and makes his escape to Sondra and their friends, who are soon off on a gay camping trip to Bear Lake. A crime was committed--a murder. What are the ele- ments of this crime, first from the legal point of view, and then in Dreiser's conception of crime? The first element of any crime is the act. Since this is a necessary element, it excludes those persons who do not act. The criminal act has three distinct parts: first, the act; second, the act with its prohibitory ele- ment. That is, the act must be prohibited by law. This prohibitory element by the law distinguishes a legal crime from a sociological crime. For example, a drunkard commits a sociological crime, the act being prohibited by sociolog- ical law. The act may be prohibited by society but not by law, as many immoral acts are--such as lying. An act may be considered sinful or heretical and still not be a crime. The third part of the act is criminal intent. Criminal law rests on the basis of a premise of presponsibility. This premise of responsibility rests upon the doctrine of free will. As a result, a person is to be 23 punished on the basis of his intention to commit an act. The criminal intent then rests with the offender's free will. That is, he must be free from blemishes Of patholog- ical and physiological restrictions. Legally, this is ideal. The decisions as to whether free will is present and the basis upon which such decisions are made are some- vtimes vague, uncertain and undecided. The legal crime, then, must present a mental element accompanied by a physi- cal act that is prohibited by law. Motive is not an essential element Of crime. A bad motive will not make an act a crime, nor will a good motive prevent an act from becoming a crime. Motive and intent are sometimes difficult to distinguish, especially in situa— tions where two or more motives, or two or more intents, coincide. Motive is the desire or inducement that incites or stimulates a person to do an act; intent is the purpose or resolve to do the act. In one sense, motive may be said to precede and in another sense to accompany intent. The motive may be a desire either to injure or to benefit. How— ever, motive is never an essential element in a crime. Therefore, a person may be convicted of a crime whether his motives appear to be good or bad, or even though no motive at all is proved. A good motive does not prevent an act from being a crime. If a father drowns his child to save _it from starving, he is guilty of criminal homicide, though he was actuated by a good motive--1ove for the child. SO a 24 parent in disobedience Of a statute neglects to provide medical aid for a dependent child cannot excuse himself on the ground that he was actuated in such refusal by religious motives. On the other hand, the law does not punish a bad motive. The motive that prompts an act, however bad it may be, does not make the act a crime if the act in itself is not a crime.24 However, the motive Of an act plays a part in determining the amount of punishment. A good motive tends to lessen the punishment. If it can be established pathologically or psycho— logically that the Offender did not have freedom Of the will, then he is set free. Today the question is whether this theory should be changed. The theory of free will is really a myth. Many criminologists claim that the danger to society is due to motives, and motives should be the principles in establishing crime, but these men are still pioneers in the field. One of the greatest Obligations Of organized gov- ernments is the preservation Of human life. Consequently, killing by individuals is prohibited. The word "homicide” is used to describe all taking of human life by human act -Or agency. Since a New York case is being considered, the New York criminal law alone is in question. In New York, 25 homicide is defined as "the killing Of one human being by the act, procurement or omission of another."25 There are different kinds Of homicide. Homicide is murder or man- slaughter.26 TO distinguish between necessary and unneces- sary taking Of human life, the law classifies some homicides 27 New York distinguishes be- as excusable and justifiable. tween first-and second-degree murder. Clyde was convicted for murder in the first degree, which is defined: "The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed from a deliberate and premeditated design to effect the death of the person killed."28 Murder is the most serious type of homicide. It is the malicious and intentional killing of one person by another. "Blackness Of heart," "criminal intent," "design," ”malice aforethought,” "malicious,” "the guilty mind," ”willful,” are the terms employed to denote an element of this type of homicide. In the New York statute, the word "deliberate" and "premeditated" are the important words, because these words distinguish first-degree murder from any other killing. ”Deliberate and premeditated" implies the capacity to think and reflect--a sufficient volition to make a choice.29 Premeditation means to think of an act beforehand; to con- ‘trive and design; to plot and lay plans for the execution Of a purpose. This may be done in a cool state Of blood 26 or in passion. Deliberation is of the same character as premeditation. It is prolonged premeditation, and the per- petrator weighs the motive for the act and its consequences. The time required to deliberate may be a moment or a much longer period. A deliberate murder is a cold-blooded, planned, and revengeful murder.30 Clyde was convicted of a first-degree murder be- cause Of premeditation with intent to kill a human being. Legally, the minor motive was to avoid the disgrace Of be- ing known as the father of the child, and the major motive was to marry into wealth and society. In Clyde's case, we must distinguish between legal intent, which resides in the mind and consists of knowingly and willfully doing an act forbidden by law, and motive which is the purpose for which the act is done. Clyde's purpose was to gain social posi- tion, and the intent was that he knew it was against the law and yet willfully did it. In passing, it is Of interest to note that authors in other countries were concerned with the various compo- nents of the definition of crime as outlined. In France, Emile Zola who is recognized as having begun the natural- Iistic novel and codified its theory (and after him the great- est naturalist was Theodore Dreiser whose An American Tragedy 27 is considered an archetypical American example), had some- thing pertinent to say about crime which implied the exis- tence Of the myth of free will. In Nana's salon, we find ”the gentlemen were condemning the new theories of criminol- ogy with that wonderful invention of irresponsibility in certain pathological cases, there were no more criminals there were only sick men."31 And Nana, the third-rate ac- tress and courtesan whose lethal sexuality attracts these gentlemen, is in agreement. Francois Mauriac, the Catholic author and Nobel prize winner, was concerned with sinners. One such sinner and unbeliever is the heroine Therese Desqueyroux. She is hidden in the corridors of the law courts and is too small to be anything except a provincial murderess who muffs the job. She never knows what actuates her to poison her hus- band. In her diary, Thérése writes, "It is not intention that makes the crime, but the absence of intention.”32 Thérése's husband who was poisoned unsuccessfully by his wife, tells his daughter towards the end of the novel: "The world recognizes as crime only what the law can take hold of, violence that is tangible and capable of proof."33 Anatole France, another Nobel prize winner, whose first novel, The Crime‘gf Sylvestre Bonnard, in which Bon- nard, a kindhearted Old archeologist, commits the "crime" . of kidnapping the orphaned daughter Of his Old sweetheart. He takes her away from a school where she has been mis- treated. When her legal guardian is discovered to be an 28 embezzler, Bonnard is forgiven for the abduction, and the child is made his ward. This crime gives the urban author--whose irony ap- pears as a piquant condiment with which this book is dis- criminately sprinkled--a chance to say something in his diary about motive. "I reached the conviction at last that I should not be judged in regard to my motives, which were innocent, but only according to my actions, which were pun- ishable.”34 And then Bonnard offers a prayer: My God, Thou who didst make the sky and the dew, as it is said in Tristan, judge me in Thine equity, not indeed according unto my acts, but according tO my motives, which Thou knowest have been upright and pure; and I will say: Glory to Thee in heaven, and peace on earth to men Of good-will.35 Albert Camus, an author very popular with the Ameri- can reader, the Nobel prize winner who became famous with his twentieth century minor masterpiece The Stragger, treats all his novels as cases. In The Stranger, the revolver shot jolts Meursault out of his purely negative state. He is a study in confusion when he thinks about the murder he has committed. What he [the prosecutor] was aiming at, I gathered was to show that my crime was premeditated. I remember his saying at one moment, I can prove this, gentlemen of the jury, to the hilt. First, you have the facts Of the crime; which are as clear as daylight; and then you have what I may call the night side Of this case, the dark workings of a criminal mentality.36 Camus raises the same question raised by Jakob Wassermann 'and Theodore Dreiser in The Maurizius Case and An American 29 Tragedy, respectively. DO courts mete out justice in judg- ing the offense rather than the offender or vice versa? One of Camus' masters was the German author Franz Kafka.37 Both authors were interested in capital punish- ment38 and in the case, and both are Often compared.39 Kafka, a lawyer in his Own right, treats in a symbolic way in his masterpiece The Trial subjects like administration of justice, law books, legal language, politics, lawyers and their charges. Kafka's work is such that it Offers us all interpretations and yet it confirms none. Despite Kafka's symbolism, it is not difficult for the student of literature to understand the concept of justice as in K's discussion with Titorelli, a painter who is in some way at- tached to the court. "'It is Justice,’ said the painter at last. 'Now, I can recognize it,‘ said K. 'There's the bandage over the eyes, and here are the scales. But aren't there wings on the figure's heels, and isn't it flying7' 'Yes,' said the painter, 'my instructions were to paint it like that; actually it is Justice and the goddess of Victory in one.‘ 'Not a very good combination, surely,' said K., smiling. 'Justice must stand still, or else the scales will waver and a just verdict will become impossible.”4O And the complexities of modern man in an alien world are best brought out through the difficult ingredients that . enter into the concept of guilt when K. says, "My innocence doesn't make the matter any simpler, . . . I have to fight 30 against countless subtleties in which the court indulges. And in the end, out of nothing at all, an enormous fabric Of guilt will be conjured up."41 Alfred DOblin, the German author whose Alexander— platz, Berlin, is generally thought to be his masterpiece, practiced medicine with a professional interest in psycho— analysis. This aspect was probably instrumental in his following the technique of free association and the stream- of-consciousness style of James Joyce.42 Franz Biberkopf struggled to make his way after his release from prison. It is a depressing story which conveys the collective forces which crush the distressed and lonely protaganist who Ob- serves: "There is the good Old father State, he rags and irks you soon and late. He pricks and pesters you--you're bled-~with laws and codes: 'Prohibited.'"43 Finally, there are certain motifs incorporated in Jakob Wassermann's The Maurizius Case. Most important of these are the problems Of justice, the treatment of crim- inals in penal institutions and man's indifference of his fellows. Wassermann, like Dreiser, was not the finished artist, yet Wassermann comes nearest to Dreiser in that numerous personages reflect Wassermann's belief in the mys- terious incalculability of human nature. The Maurizius Case is more like a detective story . in which a youth, Etzel Andergast, fights against a blatant miscarriage of justice by making his youthful ardor and 31 idealism the instrument for breaking open the hardened souls of those who hold the key to the truth. The question of justice which bulks so large in Wassermann's writings is approached in the Maurizius case from a variety of angles. What is justice? What is the relation of law to justice? What justice is there in pun- ishment? DO courts mete out justice in judging the Offense rather than the offender? Like Kafka, Wassermann was in— terested in the scales of justice when Etzel, who investi- gates the crime, hears "a whisper to the effect that the State has a right and a left hand, and a twofold measure, one for one hand, one for the other, and several scales and for each scale various weights."44 Then the youthful idealist asks himself: "What about justice? Is there really such a thing as justice? Don't we really imagine it, as pious persons imagine a paradise?"45 Etzel, who is only sixteen, calls upon the poet Ghisels for advice and he informs him: "Justice and love were originally sisters. In our civilization, they are no longer relatives."46 If, with the combined efforts Of the various de- partments of literature, a course in the college curriculum were given in Humanitarian Literature for pre-legal students, , then it surely should include Wassermann's The Maurizius Case, as well as Dreiser's An American Tragedy. 32 Dreiser considered the subject of crime and tried to ascertain the motivation of this murder. He found that the force which compels a person to commit murder is frus- tration in sexual, economic, or social strivings, the mur- der being instigated by rational and irrational motives. He showed Clyde as completely dominated by his inner drives to such an extent that apparently no means were too foul for achieving his goal. He stressed that certain inner conflicts, frustrations, and repeated disappointments were among the inner forces that called forth an abnormal atti- tude or elicited an abnormal drive that tends to steer Clyde in an antisocial direction. He writes concerning Clyde's will: There are moments when in connection with the sensi- tively imaginative or morbidly anachronistic--the mentality assailed and the same not of any great strength, and the problem confronting it of sufficient force and complexity--the reason not actually toppling from its throne, still totters or is warped or shaken --the mind befuddled to the extent that for the time being, at least, unreason or disorder and mistaken or erroneous counsel would appear to hold against all else. In such instances the will and the courage con- fronted by some great difficulty which it can neither master nor endure, appears in some to recede in pre- cipitate flight, leaving oniy panic and temporary unreason in its wake . . . Indeed the center or mentating section of his brain at this time might well have been compared to a sealed and 33 silent hall in which alone and undisturbed, and that in spite Of himself, he now sat thinking on the mystic or evil and terrifying desires or advice Of some darker or primordial and unregenerate nature of his own, and without the power to drive the same forth or himself to decamp, ang yet also without the courage to act upon anything.4 At this cataclysmic moment, and in the face of the ut- most, the most urgent need of action, a sudden palsy of the will—-Of courage--Of hate or rage sufficient; and with Roberta from her seat in the stern of the boat gazing at his troubled and then suddenly distorted and fulgurous, yet weak and even unbalanced face--a face of a sudden, instead of angry, ferocious, demoniac-- confused and all but meaningless in its registration of a balanced combat between fear (a chemic revulsion against death or murderous brutality that would bring death) and a harried—-and restless and yet self-repressed desire to do--to do--tO dO--yet temporarily unbreakable here and now--a statii between a powerful compulsion to do and yet not to do. 9 Readers with a discernment of the protagonist in Feodor Dostoevski's Crime and Punishment will understand that the legal terms ”intent," ”murder in the first degree --deliberate and premeditated" do not apply to the planning of Clyde's murder. Dreiser has Clyde move to and fro like a stormy wave--a human being in agony and pain, whose mind swerves and veers. Concerning Clyde's deliberate and pre- meditated crime, Dreiser writes: And in this instance, the mind of Clyde might well have been compared to a small and routed army in full flight before a major one, yet at various times in its pre- cipitate departure, pausing for a moment to meditate on some way of escaping complete destruction and in the coincident panic Of such a state, resorting to the weirdest and most haphazard of schemes of escaping from an impending and yet wholly unescapable fate. The strained and bedeviled look in his eyes at moments-- the manner in which, from moment to moment and hour to hour, he went over and over his hitherto poorly bal- anced actions and thughts but with no smallest door Of escape anywhere. 34 Dreiser sees "intent" as one who hesitates and os- cillates and then turns and twists into some abnormal form. As indicated by Dreiser, intent is: . . . The very substance of some leering and diabolic wish or wisdom concealed in his own nature, and that now abhorrent and yet compelling, leering and yet in- triguing, friendly and yet cruel, Offered him a choice between an evil which threatened to destroy him (and against his deepest Opposition) and a second evil which, however it might disgust or sear or terrify1 still provided for freedom and success and love. As to Clyde's motives, Dreiser never can make Clyde into an ancient demi-god. Clyde does not have heroic pro- portions. His desire is a very human one—-the disease of our civilization—-money. What were Clyde's motives? Dreiser writes: And Clyde, contemplating, all that had been said, was still unconvinced. Darker fears or better impulses supplanted the counsel Of the voice in the great hall. But presently thinking Of Sondra and all that She represented, and then of Roberta, the dark personality would as suddenly and swifgly return and with ampli- fied suavity and subtlety. It should be mentioned that the French are the un- challenged masters of psychological analysis. Their voca- tion in fiction has been to probe searchingly into the workings of mind and soul so as to bring to light the com- plex feelings and hidden motives that enter into a crime like Clyde's. It is, therefore, befitting that Régis Michaud, the French critic, summed up Dreiser's crime as follows: An American Tra ed is the most original attempt to detect the InstIIlation Of a criminal thought in a man's brain. Did anybody give a more exact, 35 penetrating and dramatic account of how the idea of crime can invade a mind and gradually anesthetize the whole moral system or the criminal? Dreiser shows himself an expert and an explorer of the field of ab- normal psychology by the way he marshalls what may be called instinctive logics, the logic of our blood and flesh, against rational logic, and by the way he de- tects the Obscure sophistications of the inhibited and repressed to find motives which come to their selfish ends . . . The scenes of the book which show us the plan of the crime brewing in Clyde Griffiths' mind are tantamount to magic divination. Those pages on the function of the will must be recommended to profes- sional psychologists. If Dreiser's views on the sub- ject were accepted, our whole system ofsgriminal legislation ought to be amended. . . . His unflinching analysis leaves very little room for fully deliberate intention on the part of the criminal mind, a criminal thought Operates like a microbe and it follows a homopathic process. It never becomes Obvious, clear or exclusive enough to allow the use of the word "responsibility" in its current acceptance. Responsibility for a crime supposes a conception of the human mind and will which bio-chemistry contra- dicts. Such is Theodore Dreiser's attitude in regard to the problem of crime. Dreiser, like Dostoevski in Crime and Punishment, lays bare a man's soul. His attitude may perhaps be ex- pressed in the wise epigram by the Chinese writer Lusin (Chou Shujen) as quoted by Lin Yutang, which states: The great judge of man's soul is at the same time its defendant. The judge on his bench enumerates the crimes the soul has committed while the defen- dant tries his best to paint a picture Of its good points. The judge exposes the dirt in his soul, while the defendant reveals the beauty among its dirt. In this way, the depths Of the human soul can be revealed.5 According to Dreiser, Clyde's crime is an explana- tion rather than a justification. Dreiser's concept of the ‘ crime is something that cannot be indicted because as yet we do not have the legal machinery for such a crime as Clyde's. There is a suggestion for a human relations court. CHAPTER II LAWYERS, JUDGES, LEGAL LANGUAGE, AND THE PUBLIC The legal apprentice he sweats and he strains To memorize every principle; He'd learn a lot more in the end for his pains By studying something sinciple. --Anonymous There are no such things as principles, there are only events; there are no laws, there are only circumstances; the man who is wiser than his fellows accepts events and circumstances in order to turn them to his own ends. --Honoré DeBalzac, Le Pére Goriot Not long after the murder, in spite of the various aliases he had used, Clyde is traced through letters found in Roberta's suitcase, left at Big Bittern, and he is ar- rested. The dramatic and romantic interest of the case arouses widespread interest. His uncle, Samuel Griffiths, more for the sake Of his own good name than out of regard for Clyde, furnishes him with excellent counsel. 36 37 Much has been written about lawyers. In his HenEy the Sixth, Shakespeare has Dick the butcher say: "The first thing we do, let's kill all the lawyers,"2 and in his Utopia, Sir Thomas More conceived a country in which "they have no lawyers among them for they consider them as a sort of people whose profession it is to disguise matters," The Chinese are said to have a repugnance to lawyers as men who prove that right is wrong and wrong is right. Percival E. Jackson, former counsel for the United States Senate for the Investigation of the Administration of Justice in the United States Courts, writes in Look at the Law: In Edward III's reign, the House of Lords voted the lawyers should be excluded from Parliament because of the prevailing feeling that lawyers were knaves and promoters of legislative mischief. Complaints were universal in the seventeenth century regarding the avarice and extortions of lawyers. They were charged with "picking the public pocket," engaging in "knavish tricks," talking unnecessarily in order to protract legislation, injuring their clients by vexa- tions and bootless delays and unnecessarily increasing work so as to increase fees. The American colonists also were notoriously suspi- cious of lawyers. According to James Truslow Adams, in Connecticut, in the seventeenth century, lawyers were legislated against in company with drunkards, keepers of disorderly houses and other people of ill- fame. John Adams wrote that "the mere title Of lawyer is sufficient to deprive a man of public confidence." The early miners Of the Pike's Peak region in Colorado exhibited their aversion in more practical form. They resolved that "no lawyer shall be permitted to practice law in any court in this district, under penalty of not more than fifty, nor less than twenty lashes, and be banished from the district."3 38 In The Growth of American Thought, Merle Curti, in discussing the intellectual life of the American people during the Revolutionary period, says: . . . It was the lawyers, the country's chief literary spokesmen, who were especially disliked by the plain people. Subservient to the creditor class, they could and did foreclose mortgages on the farmers and imprison urban debtors who were unable to meet their Obliga- tions. 50 great was the hostility to the law that its practitioners were sometimes asked by irate citizens Of humble status to leave town. In 1786 the citizens Of Braintree, a town near Boston, requested in town meeting that "there may be such laws compiled as may crush or at least put a prOper check or restraint on that order of Gentlemen denominated Lawyers, the com- pletion of whose modern conduct appears to us to tend rather to the destruction than to the preservation of the town." The conviction was widespread that, as one man writing in 1783 put it, the courts might be purged and ”voluminous laws curtailed into a plain command, which the common people of plain sense, may understand.” In view of such prejudice it is probable that many of the plain folk paid little or no atten- tion to the demands for universal participation in the higher intellectual interests Of the favored classes. Jackson, in the book already cited, talking of law- yers in recent times, says: The execration of lawyers continues, unabated, in modern tempo: the President Of the United States charges law- yers with encouraging and abetting law evasions; a prominent inventor charges patent lawyers with prac- tices "close to fraud;" a governor of Pennsylvania brands lawyers as "hairsplitters" guilty of toryism; an assistant United States Attorney taxes lawyers with "frustrating democracy;" while the annual Congress of the American Prison Association holds lawyers to be accessories to criminals. Professor Fred Rodell discusses the institution of law and lawyers in his admirable book, Woe Unto You; Law- yeggié where he sets out to demonstrate that the law as an institution is of the utmost importance to every one of us. He tells us that in tribal times we had medicine men, in 39 the Middle Ages priests, but today it is the law that domi- nates us. He claims that it is the law which runs our civilization, our government, our business, and our private lives. He says that "most presidents, governors, commis- sioners, along with their brain-trusters are lawyers; they administer our laws. All judges are lawyers; they interpret and enforce our laws . . . As the school boy put it, ours is a 'government of lawyers, not of men.'”7 Vincent Keogh, a justice Of the third highest court of New York State, was convicted of taking a bribe in an ef- fort tO go easy on several men convicted in a bankruptcy swindle. Max Lerner, newspaperman and professor of Ameri- can Civilization at Brandeis University, in commenting on the tragic aspects Of the Keogh case, suspects that there is some relation between the climate which produced this situation "and what is happening on college campuses--even in the Ivy League--where books are being stolen from the libraries and supplies are disappearing from the co-op stores. Not that the boys need the stuff badly, but they are exploring what they can get away with. When you have a climate of cheating, you must expect the tender plants will get little nourishment.”8 The most tragic case was the resignation of Associ- ate Justice Fortas from the Supreme Court of the United States because of his extrajudiciary relations with jailed financier Louis E. Wolfson and his acceptance of $20,000 40 from the Wolfson Foundation after he went on the bench and after Wolfson got in trouble with the law. It was tragic for Fortas, tragic for the Supreme Court, and tragic for the country. An apt statement is the compassionate one made by the New York Post: "To deride his [Fortas'] or- deal Or exult in the outcome would be pitiless and primi- tive. But in the serious circumstances, his action was inevitable; the evidence is clear and overwhelming."9 It is interesting to note the various concepts Of lawyers that appear in the literature of other countries. In French literature, Baron De Montesquieu, the first of the great philOSOphers of the eighteenth century (who recom- mends a separation of powers in his The Spirit of the Laws10 that was later to be embodied in the American Constitution) also wrote an epistolary novel, The Persian Letters, in which one Of the Persian characters discusses the lawyers on the continent, and asks: "'And aren't they [the lawyers] sometimes also responsible for deceiving you?‘ . . . 'You would do well to protect yourself against their snares. They have arms with which they attack your justice. It would be a good thing for you tO have some defend it, a good thing not to go lightly dressed to battle peOple armed to the teeth."'11 41 Gustave Flaubert, whose Madame Bovary_remains his most widely read work, also wrote Sentimental Education which has never enjoyed the general esteem of Madame Bovary, yet there are many who consider this work the author's su- preme accomplishment. It is in this book that Flaubert describes the political and social implications Of the Revolution of 1848 in the last years Of Louis-Phillippe. As for the concept of lawyers during the revolution, Flau- bert states: "To obtain a reputation for common sense, it was necessary to criticize the lawyers all the time, and to use the following expressions as Often as possible: 'con- tribute one's stone to the building . . . social problem . . . workshop.'"12 Guy De Maupassant, the incomparable master of the short story, was also a novelist who learned from Flaubert, who taught him the value of "le mot juste" and of accurate detail. His first novel, A Woman's Life, is the sad story of a suffering mother who seeks consolation from the fana- tic priest Tolbiac. Jeanne, like Emma Bovary, "would loose herself in cloudy poetic arguments, while he [Abbé Tolbiac], being more exact, would reason like a lawyer possessed with the mania for proving the possibility of squaring the circle."13 Emile Zola, the head of the Naturalistic School, but-a romantic by temperament whose best novel probably is Germinal, a study of miners and the mine. Etienne Lantier 42 is the awakened proletariat who advocates the strike. At one point, he doubts his mission and thinks, "Perhaps that man ought to be a lawyer, a learned man able to speak and act without compromising his fellow workers? But then a reaction soon restored his self-esteem. NO, no, they didn't want lawyers! All lawyers were rogues using their knowledge to enrich themselves at the people's expense. Come what may, the workers must manage their own affairs."14 Louis-Ferdinand Celine, the author Of Journey to the End of the Night, the book which narrowly missed the Goncourt prize, writes a sort Of picaresque novel of adven- ture in which there are incidents similar to those in Cervantes' Don Quixote. In this book, we find the crimes of criminal conspiracy, attempted murder, and murder. Throughout the voyage, Bardamu has been accompanied by a mysterious fellow wanderer, Robinson. When Bardamu arrives in his solitary outpost in the jungles of Africa, Robinson is already there and preparing to absoond with the company's funds. Bardamu has to take inventory. In a state of hal- lucination, he ponders about the law. As soon as I felt the least bit better, slightly less bewildered and battered, the damnable fear took hold of all Of me again-—the fear Of having to account to the Porduriere Company. What should I say to these hard-hearted creatures? How should they believe me? They'd certainly have me arrested. Then who should I be judged by? A special group of men armed with frightful laws deriving their authority from Heaven -knows where, like a court-martial, laws whose real intentions are always kept from you, judges whose sport it is to urge you bleeding along a narrow 43 track skirting the pit Of hell, a road which leads the poor to their destruction. The law is misery's great Luna Park-—when an underdog gets Egught in it, you can hear him screaming forever after. In Céline's second novel Death on the Installment 2133, which some critics consider his best, the hero Ferdinand is apprenticed to a lovable character, the cheer- ful fraud and mythomaniac Courtial des Perieres. Living by his wits, Cortial is a jack—of—all trades. Editor, writer of manuals, hawker and inventor, he has surrounded his ego with evident achievements. With all his accome plishments, "He was damn sick of lawsuits and claims . . . in connection with the 'multiple' and 'reversible' patents . . . He was fed up . . . He didn't gO for lawyers and ."16 This is the novel Of the three dots-- headaches . the punctuated stutter of progressive rage and hysteria. Albert Camus' last novel, The Fall, a rather am- biguous work in which a seedy lawyer Jean-Batiste Clamence confesses in monologue form the symbolism of self-flagella— tion--a defeated generation, repenting of its morals and politics, wishes to have a new start. Clamence discovers his former good deeds have been done only for popular ap- proval--always where there were witnesses to applaud his actions and his language. Thus: "The reference, purely verbal, that I often made to God in my speeches before the court awakened mistrust in my clients. They probably feared that heaven could not represent their interests as well as a lawyer invincible when it came to the code Of 44 law."17 And on the last page, Clamence tells his silent interlocutor: " . . . You practice the noble profession of lawyer! I sensed that we were Of the same species. Are we not all alike, constantly talking and to no one, for- ever up against the same question although we know the answers in advance?"18 In Russian literature, there are numerous examples. In Leo Tolstoy's final novel, ResurrectiggJ Nekhludov is serving on the jury of Katusha, a prostitute charged with murder. He is her first lover who now must judge her. He tries to understand his fellow jurors. He [Nekhludov] walked away and approached a group gathered around a tall, handsome, cleanshaven man who was talking with great animation about a trial now going on in the civil court, where he seemed to be familiar with the judges and fashionable lawyers whom he referred to by their Christian names. He was describing the remarkable way in which a famous lawyer had handled his case: he had succeeded in compelling an old lady who had the right on her side to pay his client, her adversary, a large sum of money. "That man is a genius!" he exclaimed.19 Dostoevsky in Memoirs from the House Of the Dead, in which the author described his four years in prison at Omsk in Siberia where he reflects: "These advocates of the application of the law definitely do not understand, and are incapable of understanding, that the mere fulfillment of the law, without reason or comprehension of its spirit, leads straight to disorder and has never led to anything else. 'The law says so; what more do you want?' they say, and are sincerely astonished that anybody should demand of 45 them, in addition to the letter of the law, sound judgement and sober heads."20 Dostoevsky's story, thinly disguised as a novel, is remarkable for its detachment and freedom from bitter- ness and its sympathetic understanding for his unfortunate fellow prisoners. The same thought, but in a more humorous light (since the author was never imprisoned for a political crime), is expressed by Harper Lee, winner Of the Pulitzer Prize novel, To Kill a Mockingbird. The lawyer, Atticus, hears the complaints Of his daughter concerning the ad- vanced Dewey method of education, one which crippled the educational system of New York City and many other cities and towns for twenty years, and may well be the reason for the present student discontent and frustration. She al- ready knows how to read and write, but does not want to go to school because of the new way they are teaching in the first grade--a method not to read but to learn through experience. Her father wisely instructs her: "Sometimes it's better to bend the law a little in special cases. In your case the law remains rigid. SO to school you must go."21 In contrast to the lawyer Atticus, the German author Jakob Wassermann describes Andergast in The Maurizius Case as a lawyer who typifies ossified belief in the letter of the law, faith in abstract legal codes, rigid systems, soul- less machinery and punishment. His divorced wife reproaches 46 her husband and is quite justified: "In your eyes, right and the law are institutions which are proof against human criticism. I dreamed once that a tremendous crowd Of people grovelled on their knees before you, begging you to revoke a decree, but you stood like a pillar Of stone . . . Not to have been able to make mistakes, what a curse!"22 His son Etzel describes his background to one Of the characters: "Perhaps you will understand better if I tell you that I grew up in a house in which a verdict is what a sacrament is in a church."23 Finally, in the Japanese novel No Longer Human, the hero YOzO is taken to a mental hospital where once a record is established, then "Even if released I would be forever branded on the forehead with the word 'madman,‘ or 'reject.'"24 He describes himself as "Disqualified as a human being."25 Yon is a sensitive, lonely, loving individual whose situation is not of his own making. This young man who thought himself ”disqualified from being human" is a literal translation Of the Japanese title of the novel. Earlier in the book he describes his experience with the law. Here is his story: But among my otherwise nostalgic memories there is one harrowing disaster which I shall never be able to forget and which even now causes me to break out into a cold sweat. I was given a brief examination by the district attorney in his dimly lit Office. He was a man about forty, with an intelligent calm about him ,which I am tempted to call "honest good looks" (in contrast to my own alleged good looks which, even if true, certainly are tainted with lewdness). He seemed so simple and straightforward that I let down my guard 47 completely. I was listlessly recounting my story when suddenly I was seized with another fit of coughing. I took out my handkerchief. The blood stains caught my eye, and with ignoble Opportunism I thought that this cough might also prove useful. I added a couple of extra, exaggerated for good measure and, my mouth still covered by the handkerchief, I glanced at the district attorney's face. The next instant he asked with his quiet smile, "Was that real?" Even now the recollection makes me feel so embarrassed I can't sit still . . . Sometimes I have even thought that I should have preferred to be sentenced to ten years imprisonment rather than meet yéth such gentle contempt from the district attorney. It is the prosecutor, even more than the judge, whose task it is to rid society Of the individuals who violate the law. The prosecution in a criminal case is handled by a public prosecutor, who in New York is called a district attorney: He is a public servant representing the sover- eign power of the state. . The political nature of the district attorney's office has led generally to an overemphasis on convictions, a fact that often enables the defendant to plead guilty to a lesser crime; furthermore, it Often leads the district attorney to seek publicity value Of cases. In theory, the district attorney is required to protect the rights Of an accused person. It is his duty to establish innocence as well as to prevent guilt, but the truth is that the chief Object of the district attorney is to prosecute crime. Mr. 48 Mayer C. Goldman, who has done much to bring before the people the idea Of a state-paid attorney or other public defender to represent the indigent defender, states in The Public Defender: If they [public prosecutors] were so perfectly con- stituted that they could prOperly safeguard the rights of the accused, there would be no need for private counsel to undertake defense--or for judge and jury to decide the law and the evidence. It is important to note that the law makes no provision for the district attorney to defend--his function is to progecute--and the people demand a vigorous prosecution.2 Dreiser emphasizes the element of guilt in the pros- ecution Of Clyde when the district attorney, Mason, in his Opening speech to the jury is described: . . . Turning dramatically toward Clyde, and with his right index finger toward him at times, [he] continued: "The peoplecf the State of New York char e" [italics Dreiser's] (and he hung upon this one word as though he desired to give it the value Of rolling thunder), "that the crime of murder in the first degree has been committed by the prisoner at bar--Clyde Griffiths. They char e [italics Dreiser's] that he willfully, and with ma ce and cruelty and deception, murdered and then sought to conceal forever from the knowledge and the justice of the world, the body of Roberta Alden. . . . They char e [italics Dreiser's] .V. . that this same Cly e riffiths plotted for weeks the plan and commission of it, and then with maligg, afore- thought and in cold blood, executed it." Dreiser was well acquainted with the whole system Of political favoritism. He knew that the prosecutor was a practical politician who looked upon his office as a stepping stone to a mere lucrative position. Thus, we find the district attorney thinking: I A quadrennial county election was impending, the vot- ing to take place the following November, at which were to be chosen for three years more the entire roster of 49 county Offices, his own included, and in addition this year a county_jud e whose term was for six years [italics mine]. n August, some st weeks further on, were to be held the county Republican and Democratic conventions at which were to be chosen the regular party nominees for these respective offices. Yet for nO one of these places, thus far, other than that of the county judgeship, could the present incumbent of the Office Of district attorney possibly look forward with any hope, since already he had held the position of district attorney for two consecutive terms, a length of Office due to the fact that not only was he a good orator of the inland political stripe but also, as the chief legal official Of the county, he was in a position to do one and another of his friends a favor [italics mine]. But now, unless he was as fortunate as to be nominated and subsequently elected to this county judgeship, defeat and political doldrums loomed ahead. For during all his term Of office thus far, there had been no really important case in court in connection with which he had been able to distinguish himself and so rightfully and hopefully demang further recognition from the peOple. But this . . .2 And Mason exclaims: "This may turn out better than we think. It looks to be the biggest and most important case in all Of my term of office, and if we can only clean it up satisfactor- ily and quickly, before things break here this fall, it may do us all some good, eh?"30 The prosecutor's position is such that he usually professes to be nonpartisan, and he asserts that no inno- cent person will be convicted through his activities, yet the Coroner Heit tells Mason: You know what the political situation here is just now, and how the proper handling of a case like this is likely to affect public Opinion this fall. And while I certainly don't think we ought to mix poli— _tics in with crime there certainly is no reason why we shouldn't handle this in such a way as to make it count in our favor [italics mine]. 50 Mr. Goldman, in the book already quoted, points out an advantage the district attorney may enjoy over the de- fendant's counsel: He can, and frequently does make application for the appointment of a particular judge to try a specific case, Of importance to the community--in other words, he selects his own judge. Would it not be considered most unusual and improper for an accused person to ask for the assignment of a particular judge to try his case? Would such a request be granted? But without asking for a special judge, the district attorney may, in large communities, indirectly select his Own judge by moving cases onffor trial at such time, as he may desire, and thereby bring them up at a term of court presided over by a judge of his own choice.32 Thus, we find that Mason, the district attorney: . . . Decided to communicate with the governor of the state for the purpose of obtaining a special term of the Supreme Court for this district, with its accom- panying special session of the local grand jury, which would then be subject to his call at any time. For with this granted, he would be able to impanel a grand jury and in the event Of a true bill being returned against Clyde, then within a month or six weeks, pro- ceed to trial. Strictly to himself, however, he kept that fact in view of his own approaching nomination in the ensuing November election this should all prove most Opportune, since in the absence of any such spe- cial term the case could not possibly be tried before the succeeding regular January term of the Supreme Court, by which time he would be out of Office and although possibly elected to the local judgeship still not able to try the case in person. And in view of the state of public Opinion, which was most bitterly and vigorously anti-Clyde, a quick trial would seem fair and logical to every one in this local world. For why delay? Why permit such a criminal to sit about and speculate on some plan Of escape? And especially when his trial by him, Mason, was certain to rebound to hi legal and political and social fame the country over. In the Gillette case, the defense attorneys raised this very issue in the appeal. They claimed the court which 51 held the trial was not organized according to the Constitu- 34 of the state, and therefore had no jurisdiction of tion power to try Gillette or to pronounce the judgment of death against him. However, the Court of Appeals declared that the power Of the Governor to call an extraordinary term of the court and the jurisdiction of the court was not ques— tionable.35 Dreiser shows us the political aspects of the situa- tion. The Governor who calls an extraordinary term of the court is a Republican who works hand in hand for a speedy victory with the Republican prosecutor. This information we get indirectly when Dreiser tells us that Judge Oberwaltze is aFDemocrat, who owed his appointment to a previous governor."36 And then we get Clyde's attorney "intimating that the undue haste of the district attorney in seeking a special term of the Supreme Court might possibly have a political rather than a purely legal meaning. Else why hurry, especially in the face of an approaching county elec— tion? Could there be any plan to use the results of such a trial as this to further any particular person's or group of persons', political ambitions?"37 As the mainspring Of law enforcement, the district attorney takes the initiative in crime detection and in- vestigation. Surveys have demonstrated the prosecutor's 52 dictatorial control over criminal proceedings. His broad investigatory and discretionary powers have minimized the importance of the preliminary examination, in which small effort is made to conduct an adequate judicial inquiry into the circumstances of the crime. In Criminal Justice in America, Roscoe Pound states that the duties Of the district attorney in this respect are not clearly defined and "responsibility as between sher- iff or police and prosecutor is, as usual, divided or dif— fused. When a sensational crime has been committed, coroner, police and district attorney may each go out for glory or publicity in their own way. Politics require taking advan- tage of possibilities of publicity. Thus, these possibilities become a determining factor in criminal investigation."38 In this connection, it is interesting to note the zeal displayed by young Swenk, one of the deputies appointed 39 to arrest Clyde. As Dreiser sees it, he was "blazing with a desire to arrest and handcuff someone. . . . And with great dreams of being the one to capture the murderer"40. . . and use those magic words--"I arrest you, Clyde Griffiths in the name of the law."41 We also find that Burton Burleigh, the assistant to the district attorney, resorts to unscrupulous practices. Dreiser describes him thus: .In Burton Burleigh there existed as sly a person as might have been found in a score of such backwoods countries as this, and soon he found himself meditat- ing on how easy it would be supposing irrefragable 53 evidence was necessary, for him or any one to cut a finger and let it bleed on the rug or the side of the boat or the edge of the camera. Also, how easy to take from the head Of Roberta two or three hairs and thread them between the sides of the camera, or about the rowlock to which her veil had been attached. And after due and secret meditation, he actually deciding to visit the Lutz Brothers morgue and secure a few threads of Roberta's hair. For he himself was con- vinced that Clyde had murdered the girl in cold blood. As for want Of a bit of incriminating proof, was such a young, silent, vain crook as this to be allowed to escape? Not if he himself had to twine the hairs about the rowlock or inside the lid Of the camera, and then 42 call Mason's attention to them as something overlooked! It is important to note here that in the Gillette case the defense attorney declared that it was error to submit the two specimens Of hair to the jury and let them 43 The district attorney in speculate as to their identity. that case claimed that no error was committed in exhibiting to the jury the entangled hair collected from the braces of the boat, together with some hair cut from the dead woman's head.44 However, Dreiser uses this information to show us what goes on behind the scenes so that we may understand methods used by the district attorney's office in order to obtain evidence for a conviction. Harry Elmer Barnes and Negley K. Teeters declare: We know that ambitious district attorneys want to be successful in their profession and often resort to questionable practices. The real go-getting prosecutor is adept in all the tricks Of the trade. . . . If he cannot get his evidence through normal channels, he may feel obliged to resort to high-handed methods. It is the confiction that measures his success; the mefigods he employs are overlooked by the general public. Thus, we find Mason taking a hand in the criminal investigation in a manner not recognized by the law. He gets an inspiration: ) 54 He would take Clyde and, although the law specifi- cally guaranteed accused persons against compulsions, compel him to retrace the scenes Of his crime. And although he might not be able to make him commit him— self in any way, still, once on the ground and facing the exact scene Of his crime, his actions might reveal something of the whereabout of the suit, perhaps, or 46 possibly some instrument with which he had struck her. Roscoe Pound says that "under our legal system the way of the prosecutor is hard, and the need of 'getting results' puts pressure upon prosecutors to use the 'third degree,‘ tO suppress evidence, to bull-doze witnesses, and generally to indulge in that lawless enforcement of law which produces a vicious circle of disrespect for law."47 The same author discusses the much-condemned power Of the district attorney to compromise his cases: "Ninety per cent of the 'convictions' are upon pleas of guilty, made on 'bargain days,’ in the assured expectations of nominal 48 punishment, as the cheapest way out.” And so we find Mason with the same bag of tricks and bargaining methods. He tries to compromise Clyde. 'Why not come clean here and now as to those facts, anyhow, before it's too late to take advantage of any mitigating circumstances in connection with all this --if there are any? And if you do now [italics Dreiser's], and I can help you in any way, I prOmISe you here and now that I'll be only too glad to do so. For, after all, I'm not out here just to hound a man to death or make him confess to something that he hasn't done, but merely to get the truth in the case. But if you're going to deny that you ever knew the girl when I tell you that I have all the evidence and can prove it, why then--" and here the district attorney lifted his hands aloft most wearily and disgustedly.4 Three days after the arrest, the murder trip is re- traced with Clyde by the district attorney with his 55 assistant Burton Burleigh, the coroner Heit and his assis- tant Earl Newcomb, Sheriff Slack, and First Deputy Kraut. Kraut is to follow the instructions of Mason to play up to Clyde in order to ingratiate himself into his good graces, and probably cause him to make a clean breast Of it. For Kraut was to argue that the evidence, so far, was SO convincing that you "never would get a jury to be- lieve that you didn't do it," but that, "if you would talk right out to Mason, he could do more for you with the judge and the governor than any one could-—get you Off, maybe, with life or twenty years, while this way you're likely to get the chair, sure." The third-degree methods used by the arresting Of- ficers to Obtain a confession from Clyde are more of a psychological than of a physical nature. Some policemen contend that it is impossible to get along without some mild form of third-degree methods, yet many students Of criminal procedure maintain that any questioning of a sus- pect to be legal must be in the presence of responsible persons who will safeguard the interests of the accused. One Of these persons should be the accused's own attorney or some other person who can see that his legal rights are not placed in jeopardy. Third-degree tactics are without doubt a violation of the law. The Constitution of the United States makes elaborate provision for the protection Of the individual against any invasion of his person and property in securing evidence Of his wrongdoing. The Fifth Amendment says: "NO person . . . shall be compelled to be a witness against 56 himself." There is a similar provision in the New York Constitution.51 Thus, the rights of the accused are pro- tected by both constitutions. In an article in the Atlantic Monthly, Zachariah Chafee declares: ". . . the third degree is unnecessary for putting down crime. It ought to be abolished, not merely because it is illegal, but because of the serious evils it causes. It involves the danger of wholly or par- tially false confessions. It impairs the efficiency of the police by accustoming them to trying to prove most cases by extorted confessions instead of looking for witnesses and facts."52 The methods used by the district attorney have frequently come before the New York courts. Thus, in one New York Court Of Appeals case53 reversing a conviction of the defendant on a charge of attempted murder, the Court declared: We close our review with the remark made as a delib- erate remonstrance against the necessity for frequent reversals in criminal cases, that too many prosecuting Officers run dangerous, foolish and unprofessional risks in order to secure a conviction. . . . Judgment of conyiction should be reversed and a new trial or- dered. And Chief Justice Cullen (who dissented from the Opinion on other grounds) wrote: I join my brother [Judge Vann] in reprehending the manner in which important criminal prosecutions are so frequently conducted at this time, often evincing ignorance of the ordinary rules of evidence or dis- regard for the interest Of both the People and the 57 defendant, which alike reguire that a trial should be had according to law.5 The murder by Clyde took place in Cataraqui County,56 a rural area Of New York state. The traditional organiza- tion of the law enforcement agencies found in rural areas is quite different from that in the cities. The sheriff is the legally constituted law enforcement agent in those sub- divisions Of the state called counties. The sheriff's assistants, the deputy sheriffs, assist him in his duty, whether it be the care and custody of the inmates of the county jail or the investigation of the crime. In many places, the sheriff has divested himself of his statutory duties to apprehend criminals, except in the rural West and South, where the county continues to be the focal point of local government. Occasionally, for the purpose Of a pub- licity stunt as portrayed in An American Tragegy, or in case of disturbance of the public peace, the sheriff will exercise his powers by appointing deputies and engaging in a manhunt or police duty. 1 There is one other county Officer of some impor- tance in law enforcement--the coroner. He is required by law to determine the cause of death and fix responsibility in suspicious cases or where no physician's certificate is available. His responsibility is great, since he must 58 differentiate between natural causes of death and death at the hands of some person, which constitutes homicide. Usu- ally, he is poorly qualified for his Office. In some states, he must be a physician or have some medical information or even be "learned in the law.”57 As to lawyers for the defense--a significant story is told about a criminal lawyer of the West. One day a well-dressed high-bred old Chinese entered his office. He wanted to know how much the lawyer would charge to defend him for murder. He was informed. He sat down, began pull— ing little bags out of his voluminous garments, and finally counted out the money in gold. Then he rose and with a deep bow, started out. "Hey," said the lawyer, "come back here. What's all this? Where are you going?" "I go kill the man now," said the Chinese, "then I be back." The at— titude Of this Chinese serves as an illustration of the layman's concept of a criminal lawyer--one who will defend any crime at a price. The criminal lawyer sometimes fabricates defenses he knows to be manufactured and false. The layman does not realize that the criminal lawyer who gets his guilty client acquitted by a defense that is fabricated, with or without the aid or suggestion of the client, is to be considered dishonest, although he may plead that "every lawyer is 59 entitled to present the best defense his client has." Dreiser knew that there were many unscrUpulous criminal lawyers who could be bought by the rich at a price. He tells us about the firm of Canavan & Canavan, "most able if dubious individuals." Clyde's uncle and his cousin Gilbert knew there . . . were criminal lawyers deeply versed in the abstrusities and tricks of the criminal law. And many of them--no doubt--for a sufficient retainer, and irrespective of the primary look of a situation of this kind, might be induced to undertake such a defense. And, no doubt, via change Of venue, motions, appeals, etc., they might and no doubt would be able to delay and eventually effect an ultimate verdict Of something less than death, if such were the wish of the head of this very important family.5 We must remember that in a complicated society there must be men trained in the legal profession-~men who devote their lives to studying the constitutional guarantees that are necessary in order to protect the in- dividual. No matter how depraved, the prisOner is entitled to all the privileges guaranteed to any citizen by the Constitution. Whatever the public thinks, there are many criminal lawyers who are known for their honesty and human- ity. The late Clarence Darrow was such a lawyer. He de— fended many notorious criminals who, although they were doubtless guilty Of serious crimes, escaped severe penal— ties merely because Darrow saw to it that their legal rights were not encroached upon by the prosecution. Darrow was once charged with trying to prejudice the jury.59 "Surely I am,” he said. "That's what I'm here for." In theory, 60 if both sides of an issue are fully presented, an impar- tial tribunal is likely to reach a just decision. Clyde's uncle employed the law firm of Belknap & Jephson to defend Clyde. Belknap is Dreiser's humanitarian Darrow, who considers the criminal an ordinary human being confronted with a problem he finds it difficult to solve. Through this attorney, Dreiser presents the idea that the nature Of the crime is not important, but that the nature of the criminal is important because he is the victim of a peculiar set of circumstances. When Belknap is asked by his law partner whether he thinks Clyde is guilty, he replies: "Well, now as astonishing as it may seem to you, no. At least, I'm not positive that I do. To tell you the truth, this is one Of the most puzzling cases I have ever run against. This fellow is by no means as hard as you think, or as cold--quite a simple, affec— tionate chap, in a way, as you'll see for yourself-- his manner, I mean. He's only twenty-one or two. And for all his connections with the Griffiths, he's very poor—~just a clerk, really. And he tells me that his parents are poor, too. . . ."60 "That's just the point, I'm trying to make. He could plot to kill one girl and maybe even did kill her, for all I know, after seducing her, but because he was being so sculled around by his grand ideas of this other girl, he didn't quite know what he was doing, really. Don't you see? You know how it is with some of these young fellows of his age, and es- pecially when they've never had anything much to do 61 with girls or money, and want to be something grand. The other lawyer is Jephson, who is described as a criminal lawyer "with a mental and legal equipment which 61 for shrewdness and self-interest was not unlike that of a 62 Through his picture of Jephson, Dreiser lynx or ferrett." indicates all the loopholes and fabricated defenses that are Open to the lawyer for the defense. Jephson turned to Belknap "and began to inquire as to what he thought of suicide as a theory, since Roberta's letters themselves showed a melancholy trend which mightt easily have led to thoughts of suicide. And could they not say that once out on the lake with Clyde and pleading with him to marry her, and he refusing to do so, she had jumped overboard. And he was too astounded and mentally upset to 63 But that defense was out because Of the false save her." registrations at the hotel, the two hats, Clyde's suit and bag. The blackening of Roberta's character is also sug- gested by Jephson, so that the jury may be more sympathetic with Clyde. This type of argument is used to affect her credibility-~perhaps another man was guilty who blamed Clyde. Thus, Jephson asks: "'In all of that time that you were with her, or before, was she ever friendly, or maybe intimate, with any other young man anywhere-—that is, that you know of?'"64 Clyde was shocked and thought: ”What a shameful thing in connection with Roberta and her character it would be to introduce any such lie as this. He could not and would not hint any such falsehood."65 — — H—o—q- 62 The defense of insanity is one of the most common and troublesome defenses appearing in the courts. There is probably nothing more confusing in the whole realm of criminal jurisprudence than the moral responsibility of an offender, especially when the crime is murder. The "right- and-wrong" test is the law in New York and in the majority of the states. In order to punish the defendant legally, he must have freedom of will, and if pathologically he does not have freedom of the will and cannot distinguish between right and wrong, he should not be punished for the crime. The contention of "irresistible impulse" is not a defense in New York. It never was a defense in New York, and as of the date of this study (1969) still is not a de- fense. In some states, a person is not criminally respon— sible even though he knows the act is wrong, if it is proved to have been the result of an "irresistible impulse." While the terms "irrestible impulse" and "insane delusion" have a meaning in the law, they are not recognized by psychia- trists as having any definite medical connotation. The law refuses to recognize moral insanity, while the mind is sound. And, whatever they may mean psychologically, "un- governable passion" and "emotional insanity" may not be used in justification Of a criminal act. r..— 63 The plea of insanity is used for the purpose of mitigating the punishment. If legal insanity cannot be established, very Often the jury takes a more practical view of the case and acquits the defendant, and in many cases the jury is right in the social function it performs. In discussing the plea of insanity, Belknap says: ”I'm not so sure that we want to mention that cata- leptic business yet--at least not unless we want to enter a plea of insanity or emotional insanity, or something like ghat—-about like that Harry Thaw case, for instance."6 And then Jephson asks Clyde: "NO uncle or cousin or grandfather who had fits or strange ideas or anything like that?"67 And Jephson declares: "Well, whatever theory we advance, those things will have to be accounted for in some way. . . . We can't admit the true story of his plotting without an insan- ity plea, not as I see it--at any rate. And unless we use that, we've got that evidence to deal with what- ever we do.“ But Belknap persisted that the insanity plea would have to be omitted because of Clyde's refusal to marry Roberta "after his promises referred to in her letters—- why it would only react against him so that public Opinion would be more prejudiced against him than ever. No, that won't do . . . We'll have to think Of something which will create some sort of sympathy for him."69 Finally, Jephson concocted a defense that might work in view Of all the evidence gathered by the district attorney. The last minute, Clyde experiences a change Of 64 heart. He wants to marry Roberta; the drowning was an ac- cident. And so Jephson instructs Clyde: "You're not guilty! You're not guilty, Clyde, see? You understand that fully by now, and you must always believe and remember that, because it's true. You didn't intend to strike her, do you hear? You swear to that. You have sworn it to me and Belknap here, and we believe you. Now, it doesn't make the least bit of difference that because of the circumstances surrounding all this we are not going to be able to make the average jury see this or believe it just as you tell it. That's neither here nor there. I've told you that before, you know what the truth is--and so do we. ‘Bgt [italics Dreiser's], in order to get justice for you, we've had to get up something else-- a dummy or substitute for the real fact, which is that you didn't strike her intentionally, but which we can- not hOpe to make them see without disguising it in some way. You get that, don't you?" "Yes, sir," replied Clyde, always over-awed and in- trigued by this man. "And for that reason, as I've so often told you, we've invented the other story about a change Of heart. It's not quite true as to time, but it is true that you did experience a change of heart there in the boat. And that's our justification. But they'd never believe that under all of the peculiar circumstances, so we're merely going to move that change of heart up a little, see? Make it before you ever went into that boat at all. And while we know it isn't true that way, still neither is the charge that you intentionally struck her true, and they're not going to electrocute you for some— thing that isn't true--not with my consent, at least." He looked into Clyde's eyes for a moment more, and then added: "It's this way, Clyde. It's like having to pay for potatoes, or for suits of clothes, with corn or beans instead of money, when you have money to pay with but when, because Of the crazy notions on the part of some one, they won't believe that the money you have is genuine. SO you've got to use the potatoes or beans. And beans is what we're going to give 'em. But the justification is that you're not guilty. You've sworn to me that you didn't intend to strike her there at the last, whatever you might have been provoked to do at first. And that's enough for me. You're not guilty."70 65 In the Gillette case, suicide was used as a defense, but in An American Tragedy other defenses are shown to be opened to the accused. The reader attends all the confer- ences in jail and listens to all the discussions concerning the merits and demerits of the various defenses prOposed. And the clowns in Shakespeare's Hamlet, likewise, have their say when they discuss the moral elements in- volved in Ophelia's drowning and suicide: lst Clown: Is she to be buried in Christian Burial that wilffiIly seek her Own salvation? 2nd Clown: I tell thee she is, and therefore make her grave straight. The crowner hath sat on her, and finds it Christian burial. lst Clown: How can that be, unless she drown'd herSEIf in her own defence? 2nd Clown: It must be Age offendendo," it cannot be else. [Fer here lies the point: ‘If I drown myself wittingly, it argues an act, and an act hath three branches; it is [to] act, to do, and to perform; argal; she drown'd herself wittingly. 22d Clown: Nay, but hear you, goodman delver,—- lst Clown: Give me leave. Here lies the water; good. Here stands the man; good. If the man gO to this water and drown himself, it is, will he, nill he, he goes,--mark you that? But if the water come to him and drown him, he drowns not himself; argal, he that is not guilty Of his own death shortens not his own life. 2nd Clown: But is this law? lst Clown: Ay, marry, is 't; crowner's quest law. -—Shakespeare, Hamlet, Act V, Scene 1. 66 Belknap, like the district attorney, is also in- volved in politics. He had twice been state senator, three times Democratic assemblyman, and more recently looked upon by various Democratic politicians as one who would be favored with highert honors . . . . In fact only three years before, in a contest with Mason for the district attorneyship, this same Belknap had run closer to victory than any other candidate on the Democratic ticket. Indeed, so rounded a man was he politically that this year he had been slated for the very county judgeship nomination which Mason had in view. And but for this sudden and most amazing development in connection with Clyde, it had been quite generally assumed thft Belknap, once nominated, would be elected . . . [He] had even been thinking that . . . the local situa- tion being what it was might advantageously to himself --and perhaps most disruptingly to the dream Of Mr. Mason be able to construct a defense--or at least a series of legal contentions and delays which might make it not so easy for Mr. Mason to walk away with the county judgeship as he imagined. Might it not, by brisk, legal moves now—-and even in the face of this rising public sentiment, or because of it,--be possible to ask for a change Of venue [italics mine]--or time to develop new evIdence in which case a trial Sight not occur before Mr. Mason was out of office.7 The venue is the neighborhood, place, or county in which an injury is declared to have happened. It is also defined as the county (or geographical division) in which an action or prosecution is brought for trial, and which is to furnish the panel of jurors. To "change the venue" is to transfer the cause for trial to another county or dis- trict.73 The prosecutor and the defense attorneys take ad- vantage Of every political influence. Thus, Mason persuades U?) 67 the Republican governor to grant an extraordinary term of court for a speedy victory, and the defense attorneys try to use their political connections with the Democratic judge to delay the action and thus obstruct Mason. They "argue for a change of venue, on the ground that by no pos- sible stretch of the imagination could any twelve men re- siding in Cataraqui County be found who, owing to the pub- lic and private statements Of Mason, were not already vitally Opposed to Clyde and so convinced of his guilt that before ever such a jury could be addressed by a defense, he would be convicted."74 When one considers the infinity of political con- siderations possible in a case, one realizes they cannot be arranged by resorting to simple formulas. Another ele- ment enters into the legal process—-the personality of the judge. When Belknap tries to convince the Democratic judge concerning a change of venue because "the district attorney has been so busy in magnifying" this crime and "you can't get twelve men now who will try this man fairly," the judge replies "that this same material has been published every- 75 SO, after five days the judge decides to deny where." the motion for a change of venue because of "Justice Oberwaltzer, who was Of a sober and moral turn, a slow 68 and meticulous man inclined to favor conservative procedure in all things. . . . If he were wrong, there was the Ap- pellate Division to which the defense could report."76 Professor John Barker Waite points out in Crimin§l_ Law in Action that the authority of the trial judge is re- viewable by the higher courts, which do not hesitate to reprimand a judge if he has erred in his conduct of a trial. But, if the judge has been technically correct with respect to the law, the higher courts take little cognizance of any obvious bids on his part.77 Other factors that enter the process are technical- ities and legal jargon. Charles Macklin, an eighteenth century dramatist, said in Love a la Mode that "the law is a sort Of hocus—pocus science."78 The mother in The Winslow Egy_(a play by the English author Terrence Rattigan) attends the proceedings instituted to clear her son of a charge Of petty thievery. She explains to the members of her family that for four days she has gone to court without understand— ing a word and she wonders what "petitions" and ”demurrers" have to do with her poor little boy. James Joyce, the most misunderstood writer of our day, whose works are so esoteric that most readers can take him only in small doses, nevertheless is more successful in realizing a near-infinitude of experiences in an 69 instantaneous flash of language than the law is with its legal jargon and technicalities. Thus, in Ulysses, Joyce describes the manner in which Mr. Bloom appeases his sense of sin as to the problem of sex relationship by comparing the act with other little sins like the law: As natural as any and every natural act of a nature expressed or understood executed in natured nature by natural creatures in accordance with his, her, and their natured natures, of dissimilar similarity . . . As less reprehensible than theft, highway rObbery, cruelty to children and animals, Obtaining money under false pretences, forgery, embezzlements, misappropri- ation of public money, betrayal of public trust, ma- lingering, mayhem, corruption of minors, criminal libel, blackmail, contempt of court, arson, treason, felony, mutiny on the high seas, trespass, burglary, jailbreaking, practice Of unnatural vice, desertion from armed forces in the field, perjury, poaching, usury, intelligence with the king's enemies, imperso- nation, criminal assault, manslaughter, wilful and premeditated murder. As not more abnormal than all other altered processes of adaptation to altered con- dition of existence, resulting in a reciprocal equi- librium between the bodily organism and its attendant circumstances, foods, beverages, acquired habits, in- dulged inclinations, significagt disease. As more than inevitable, irreparable. Professor Rodell,in his attack on legal jargon, says: . . . No matter which way you slice it, the result remains the same. Legal language, wherever it happens to be used, is a hodgepodge of outlandish words and phrases because those words and phrases are what the principles of The Law are made of. The principles of The Law are made of those outlandish words and phrases because they are not really reasons for decisions but Obscure and thoroughly unconvincing rationalizations of decisions--and if they were written in ordinary English, everybody would see how silly, how irrelevant and inconclusive, they are. If everybody could see how silly legal principles are, The Law would lose its dignity and then its power--and so would the lawyers. SO legal language, by obstructing instead of assisting the communication Of ideas, is very useful--to the 70 lawyers. It enables them to keep on saying nothing with an air Ofagreat importance-—and getting away With it o o a Every once in a while, however, a lawyer comes along who has the stubborn skepticism necessary to see through the whole solemn sleight-of—mind that is The Law and who has the temerity to say so. The greatest Of these was the late Justice Holmes, especially where Consti- tutional Law was concerned. Time and again he would demolish a fifty-page Court Opinion--written in sonor- ous legal sentences that piled abstract principle upon abstract principle~~with a few words of dissent, spoken in plain English. "The Law as you lay it down," he would say in effect, "sounds impressive and impeccable. But of course it really has nothing to do with the facts of the case.” And the lawyers, though they had come to regard Holmes as the grand Old man of their profession and though they respected the legal writing he had done in his youth, were always bothered and be- wildered when he dismissed a finespun skein of legal logic with a snap Of his fingers.8 Percival Jackson remarks: "The ubiquity Of tech— nicalities in the administration of our criminal law has held it up to public scorn. Applications for mistrials in criminal cases, motions in arrest Of judgment, reversals of convictions of notorious criminals because of technical errors in the conduct of the prosecution, are of common 82 occurrence . . ." With all the wealth Of material and precedent, appel- late courts are daily reversing civil and criminal verdicts and judgments because the trial court erred in admitting or excluding evidence. The rules are fine, and the refinements and exceptions numerous. Evidence may be "incompetent" or "irrelevant” or "im— material." It may not be the "best" evidence. It may be hearsay. NO proper formation may have been "laid" for it. The distinctions are Often unknown to the lawyer who makes the Objections to the testimony that he usually rattles Off all the objections he can think of, so as to cover every contingency. 71 The attorneys in An American Tragegy_resort to the 85 and "immaterial"86 ques- usual "irrelevant,"84 incompetent, tions and answers, and in addition take about twenty objec- tions and exceptions. During one objection by Belknap, "Mason promises to 'connect it up,‘ which however, he was unable to do and the evidence was accordingly ordered 'struck out.' But its pathetic significance by that time was deeply impressed on the minds and hearts of the . "87 jurymen. Professor Rodell says that "a bit Of evidence at a trial does not fall into the famous 'irrelevant, incompe- tent, and immaterial' classification any more automatically than a killing falls into 'second degree murder'"88 and thus "a killing may be, without so much as a legal doubt, a punishable murder, and still the murderer may go free, for a time or even for good, just because a bit of evidence used in the trial is labeled 'irrelevant, incompetent, and immateria1.'"89 Charles T. McCormick on "Evidence" declares: The American trial lawyer might well imitate the English barrister, who rarely makes an objection ex— cept where evidence vital to the merits is seriously questionable. It is not unusual for contested mur- der trials in England to be completed without a single objection from the defense to the evidence. A corresponding change in the attitude Of trial and appellate judges toward evidential techgficalities is equally essential in the United States. Mr. Justice Frank asks in Law and the Modern Mind: But why are lawyers peculiarly infected with what has been called "verbomania"? . . . Legal thinking, it 72 is said, is affected by "belated scholasticism," by "a blighting medieval prepossession." . . . In no other field of human thought is that prepossession 91 to be found in a more exaggerated and persistent form. The public too has a share in the legal process. As Roscoe Pound sees it, the criminal trial has become a public spectacle. In its origin this tendency was in part a response to the exigencies of rural life. In the "Mill on the Floss" we have a picture of how litigation could be a relief from the monotony of rural existence. Before the days of the automobile, the movie and the radio, before urban amusements were available to every farmer every day along with politics, the criminal trials at the court house were the staple diversions. During "court week" the wagons of the farmers were tied up about the court house square and an appreciative audi— ence watches the fine points of the trial-~game as an urban audience might watch the fine points of a profes- sional baseball game. Later this feature Of criminal trials was develOped further by the press. American newspaper accounts of trials gave a bad impression of criminal justice in action beyond the actual situation. They emphasize the wranglings, the abuse Of witnesses, the spectacular features at the expense Of the evidence and the merits of the case, and this exaggeration of the spectacular features has tended to aggravate them because Of the value of publicity to the actors in the spectacle. Thus, Dreiser describes the public: .And with cries outside of "Peanuts!" "Popcorn!" "Hot dogs!" "Get the story of Clyde Griffiths, with all the letters Of Roberta Alden. Only twenty-five cents!" (This being a set of duplicate copies of Roberta's letters which had been stolen from Mason's Office by {an intimate of Burton Burleigh's and by him sold to a LOenny-dreadful publisher of Binghamton who immediately -issued them in pamphlet form together with an outline 3 C>f "the great plot” and Roberta's and Clyde's pictures.) 73 [Clyde] noting at once that several reporters and ar- tists were studying and then sketching or writing of him . . . for he could feel their eager eyes and their eager words as Slearly as he could hear their scratch- ing pens . . . 4 Because Of the enormous interest aroused by the pitiable death of Roberta, as well as the evidence Of her rich and beautiful rival, Clyde was being visited by every type of shallow crime-or-sex-curious country bumpkin lawyer, doctor, merchant, yokel, evangelist or minister, all friends or acquaintances of one or another of the officials of the city, and who, standing before his cell door betimes, and at the most unexpected moments, and after surveying him with curious or resentful, or horrified eyes, asked such questions as: "DO you pray, brother? DO you get right down on your knees and pray?"95 We get the mob psychology when "Clyde himself felt the strong public contempt and rage that the majority Of those present had for him from the start--now surging and shaking all. It filled the room."96 Then came a "venge- ful voice of an irate woodsman: 'Why don't they kill the Goddamned bastard and be done with him.'"97 And after the judge's instruction to the jury, Clyde was immediately "removed to his cell before the audience prOper was allowed to leave the building. There was a constant fear on the part Of the sheriff that he might be attacked."98 CHAPTER III TRIAL BY JURY "What do you know about this business?" the King said to Alice. "Nothing," said Alice. "Nothing whatever?" persisted the King. "Nothing whatever," said Alice. "That's very important," the King said, turning to the jury.1 --Lewis Carrol, Alice's Adventures in Wonderland The attempts of the judge and the leading counsel to bring this succession Of events home to the jury in the terms Of an ordinary crime, seemed to him [Garine] so completely a parody that he could hardly help laughing. -—André Malraux, Les Conquerants Under the Constitution of the United States, every- one accused Of crime has a right to trial by jury.3 Some states permit a trial by judge for all crimes except those carrying the death penalty, provided the state and the de- fendant are both willing. An accused person cannot be com- pelled to waive his right to jury. The merits and demerits of the jury trial are constantly subject to debate. The 74 75 value of the jury trial lies in the fact that a group of twelve men or women of similar status to the accused must be unanimously convinced that the facts presented warrant a verdict Of guilty or not guilty. The trial is considered a safeguard against unwarranted convictions. Harry Elmer Barnes and Negley K. Teeters declare: . . . The jury is far from the admirable bulwark of human liberty that it has been fashionable to con— sider it. It originated in a nonjuridical field and was clumsily adapted to its present purpose simply because nothing better was at hand. Far from being a rampart Of human freedom or safeguard of democracy, it was in its origins one of the most potent and highly prized instruments of royal absolutism and monarchical Oppression. Compared to other instru- ments of the time, trial by jury probably made a fairly respectable showing in the sixteenth century, when there were relatively few highly trained lawyers, and the men summoned for jury service represented the intelligent and cultured upper classes. But the progress of medical knowledge, sociology, jurispru- dence, and democracy since that time has made it preposterous and out of date as the sun-dial Of James II or the coach of Charles II. Moreover, the average jury is today chosen from an altogether less intelligent class than that which furnished the jurymen in the sixteenth century.4 The selection of the panel is determined by lot, the names of citizens being drawn from a collection of slips or cards bearing the names of all the qualified voters of the county, except those excused from jury duty. It is charged that in New York the long list of classes exempt from jury service results in a selection of the relatively 76 unintelligent and uneducated from this important service. In Our Criminal Courts, Raymond Moley contends that selec- tion from among the educated and privileged classes would weaken the value Of the jury as an indication of the popu— lar will.S However, Harry Elmer Barnes and Negley K. Teeters state that at best "any such panel can only in rare instances include a better than average group of citizens. It cannot be limited to those possessing unusual intelligence or special knowledge of legal matters. In the usual case, the panel is made up of an average collection Of farmers, shoemakers, barbers, plumbers, salesmen, hod- carriers, and day laborers, with a few professional or businessmen sprinkled among them."6 As Dreiser sees the jury, they were Odd and grizzled, or tanned and wrinkled, farmers and country storekeepers, with here and there a Ford agent, a keeper Of an inn at Tom Dixon's Lake, a salesman in Hamburger's dry goods store at Bridgeburg, and a peri- patetic insurance agent residing in Purday just north Of Grass Lake. And with but one exception, all mar— ried. And with but one exception, all religious, if not moral and all convinced of Clyde's guilt before ever they sat down, but still because of their almost unanimous conception of themselves as fair and Open- minded men, and because they were so interested to sit as jurors in that exciting case, convinced that they could pass fairly and impartially on the facts pre- sented to them. Thus, Dreiser shows us that the public is Often biased in types Of cases where pOpular sympathies or fears are aroused. At any rate, the typical jury is just such a collection of average citizens as the trained spellbinder can manipulate through knowledge of local prejudices. 77 The process of selection is described by Clarence Darrow as follows: I try to get a jury with little education but with much human emotion. The Irish are always the best jurymen for the defense. I don't want a Scotchman, for he has too little human feeling; I don't want a Scandinavian, for he has too strong a respect for law as law. In general I don't want a religious person, for he believes in sin and punishment. The defendant should avoid rich men who have a regard for the law, as they make and use it. The smug and ultra respec- table think they are the guardians of society, and they believe the law is for them. The man who is down on his luck, who has trouble, who is more or less a failure, is much kinder to the poor and unfortunate than are the rich and selfish. Professor Sutherland states in his Principles Of Criminology: According to legal theory the business Of the jury is to determine, on the basis of evidence, a question Of fact: Did the accused person commit the crime? It is supposed to be a problem in logic similar to the prob- lem which confronts a scientist in a laboratory. In practice, however, the prosecutor tries to select jury- men who will be antagonistic tO the accused, and the attorney for the defense tries to select jurymen who will be sympathetic. One tries to exclude all persons not of same race, religion, politics or Occupation as the accused, and the other tries to exclude all persons who are Of the same race, religion, politics, or occu- pation. That these methods are used is conveyed by Dreiser when he says that the clerk of the court reached into a square box that was before him, and drawing forth a piece of paper, called "Simeon Dinsmore," whereupon a little, hunched and brown- suited man, with claw-like hands, and a ferret-like face, immediately scuttled to the jury box and was seated. And once there he was approached by Mason, who in a brisk manner--his flat-nosed face looking most aggressive and his strong voice reaching to the uttermost corners of the court, began to inquire as to his age, his business, whether he was single or married, how many children he had, whether he 78 believed or did not believe in capital punishment . . . for at once and with emphasis, he answered, "I most certainly do--for some peOple--" a reply which caused Mason to smile slightly and Jephson to turn and look toward Belknap who mumbled sarcastically: "And th8y talk about the possibility Of a fair trial here."l Whenever Mason approved Of a juror he would announce it by exclaiming: "Acceptable to the People!" But, invariably, whenever he had done so, Jephson had merely turned slightly, but without looking, and had said: "Nothing in him for us, Alvin. As set as a bone." And then Belknap, courteous and bland, had challenged for cause and 11 usually succeeded in having his challenge sustained. The selection of the jury Often involves a long de- lay. Morris Ernst, as quoted by Harry Elmer Barnes and Negley K. Teeters, states: "If every person called for duty were put onto a case immediately, without the dreary coming in at ten, leaving at eleven-thirty, reporting back at two, and being excused at two—thirty with no accomplishment to his credit, many Of the shirkers would relieve the district leaders of their present burden of procuring excuses."12 Although only five days were "consumed by Mason and Belknap in selecting the jury,"13 the situation was similar to that described by Ernst, "the clerk Of the court announc- ing . . . a recess until two P.M. And Jephson . . . turning to Clyde with 'Well, Clyde, that's the first round. . . . Better 90 over there and get a good meal, though. It'll be jUSt as long and dull this afternoon."'14 79' Severe criticisms have been leveled against the jury because they are influenced by the emotional and bi- ased appeals made by attorneys, and they lack understand— ing of law and evidence because of the restrictions against judges in instructing jurors and the practice of juries in reaching a verdict in the light of possible penalties inflicted. Harry Elmer Barnes and Negley K. Teeters point out that the "most amazing feature of the modern jury trial is that neither the district attorney nor the counsel for the defense is vitally concerned with the hard facts. The ex- planation is that the jury is not trained to weigh facts and is susceptible to emotional appeals."15 Examples of emotional appeal to the jury used by Mason are numerous: Roberhawas "'so cruelly blotted out beneath the waters of Big Bittern,"'l6 and "Roberta Alden loved this defendant with all the strength of her soul. She loved him with that love which is the crowning mystery of the human brain and the human heart, that transcends in its strength and it weakens all fear of shame or punishment from even the immortal throne above. She was a true and human and decent and kindly girl--a passionate and loving girl. And she loved as only a generous and trusting and self-sacrificing soul can love. And loving so, in the end she gave to him all that any woman can give the man she loves."1 Then Clyde "'was seeking not to marry but to find a wilderness to snuff out the life of this girl of whom he 80 had tired,18 [and] that you deliberately and with cold— hearted cunning allowed that poor, tortured girl to die when you might have rescued her.'"19 And, in connection with Roberta's letters, Dreiser writes: At this psychological moment, as the afternoon sun was already beginning to wane in the tall, narrow court room, and as carefully planned by him beforehand, Mason's reading all Of Roberta's letters, one by one, in a most simple and nondeclamatory fashion, yet with all the sympathy and emotion which their first perusal had stirred in him. They had made him cry. . . . 2 "Remember her writing you this? . . . 'Clyde,--I shall certainly die, if you don't come. I am so much alone. I am nearly crazy now. I wish I could go away and never return or trouble you any more. But if you would only telephone me, even so much as once every other day, since you won't write. And when I need you and a word Of encouragement so.'" Mason's voice was mellow. It was sad. One could feel, as he spoke, the wave Of passing pity that was moving as sound and color not only through him but through every spectator in the high narrow courtroom.21 In the Gillette case, the most important issue raised in the briefs submitted to the Court of Appeals was that it was error to receive in evidence and to read the letters Grace Brown had written to Gillette.22 The prose- cutor declared that it was not error to receive in evidence the complete correspondence between the dead woman and her 23 It is important to note lover during their relationship. that in the Gillette case the issue concerning the letters was raised on a technicality connected with the law of evidence, whereas Dreiser only shows the use made of these letters by the district attorney in his emotional appeal in order to sway the jury. 81 In Dreiser and the Land of the Free, Dorothy Dudley says that Dreiser had copied nothing verbatim from either newspapers or courts in An American Tragegy because "to have done so would only have impeded the progress Of the drama."24 However, from the point of view of the adminis- tration of justice, it is unimportant whether Dreiser COpied them or not, because Dreiser's purpose was not to use the letters as letters but to show how carefully Mason planned the reading Of them at just the right psychological moment for emotional effect. Here are some examples Of the flattery used by the district attorney: ". . . by the exceeding care with which the lawyers in this case have passed upon the panels from which you twelve men have been chosen. It has been no light matter to find twelve men to whom all the marshalled facts in this astonishing case could be submitted and by them weighed with all the fairness and understanding which the law commands. For my part, the care which I have exercised, gentlemen, has been directed by but one motive--that the state shall have justice done. NO malice, nO pre-conceived notions of any kind3925 And: "'you expect any fair-minded, decent, intelligent person to believe that explanation, do you?'"26 Examples of prejudice used by Mason: "'He has been called by his counsel and others in the newspapers a boy, over and over again. He is not a boy. He is a bearded 27 man.'" And again: "'You talked about that change of heart that you experienced after you encountered Roberta Alden once more at Fonda and Utica back there in July-- just as you were starting on this death trip.'"28 82 In the Gillette case, the defense attorneys raised the issue in the Court of Appeals concerning the way the trial was conducted by the prosecutor. They claimed that it was oppressive and unfair to Gillette. In the briefs submitted to the Court of Appeals, a case was cited to up- hold their contention. It is interesting to note that in this case the court reversed a conviction of the defendant for the crime of abduction, and granted a new trial. The court severely arraigned the prosecuting attorney, saying: "An unfair trial, especially in a criminal case, is a reproach to the administration of justice and casts grave responsibility not only upon the prosecuting officer but Upon the trial judge. However strong the evidence may be, if she did not have a fair trial, as shown, by the rulings of the court subject to proper Objections and exceptions, the judgment of conviction should be reversed and a new trial ordered. We have repeatedly laid down the rule governing prosecuting Officers in addressing the jury and to govern trial judges also in their duty relating to the subject. We have repeatedly admonished both, the former at times with severity and the latter more mildly, not to de- part from that rule, but our admonitions have not al- ways been regarded, although they were followed by a reversal of the judgment involved, founded solely on the improper remarks of the prosecuting Officer and the failure of the trial judge to do his duty in ref- erence thereto."29 Similarly, in An American Tragedy, Jephson informed Clyde that the trial from start to finish had been unfair. Prejudice and bias had governed its every step. Such bullying and browbeating and inuendo as Mason had indulged in before the jury would never pass as fair or adequate in any higher court. And a new trial--on appeal-- would certainly be granted. However, in the Gillette case, it was held that the fact in summing up the case after a long and bitterly 83 contested trial, the district attorney made some statements not fully justified by the evidence as not to be a suffi- cient ground for reversal.31 In addition, the acceptance Of and adherence to the existing mores of society play an important part in Mason's appeal to the jury. Here we have a rural area where the standards and Objectives of church, home, and family are for the most part in harmony with one another, and the group is bound together by common economic circumstances and by similar moral traditions into a consistent culture pattern. Thus, Mason appeals to the jury by declaring: ". . . the name of Griffiths in Lycurgus was one that would open the doors of Lycurgus exclusive circles . . . and . . . would bring him in contact with girls of education and means, girls who moved far from the sphere to which Roberta Alden belonged. Not only that, but he had found one girl to whom, because of her beauty, wealth, position, he had become enormously attached and beside her the little farm and factory girl in the pathetically shabby and secret room to which he had assigned her, looked poor indeed-~good enough to betray but not good enough to marry. And he would not . . . and after she was cold and dead . . . dances, lawn fetes, automobile parties, dinners, gay trips to Twelfth Lake and Bear Lake, and without a thought seemingly, that his great moral and social need should modify his conduct in any way. . . . "There he sits! Is he the son of wastrel parents--a product of the slums--one who had been denied every opportunity for a proper or honorable conception of the values and duties of a decent and respectable life? Is he? On the contrary. His father is Of the same strain that has given Lycurgus one of its largest and most constructive industries--the Griffiths Collar & Shirt Company. He was poor--yes--no doubt of that. But not more so than Roberta Alden--and her character appears not to have affected by her poverty. His parents . . . appear to have been unordained ministers of the proselytizing and mission-conducting type-- people who . . . are really, sincerely religious and 84 right-principles in every sense. But this, their Old- est son, and the one who might have been expected to be deeply influenced by them, early turned from their world and took to a more garish life. . . . 33 ". . . He allowed her to brood in that little lonely farmhouse on the outskirts of Blitz . . . With the neighbors coming to watch and help her make some clothes which even then she did not dare announce as her bridal trousseau."34 Adherence to the mores of morality are illustrated in the following manner: "There was a rule Of the Griffiths Company . . . and that was that no superior Officer or head of any de- partment was permitted to have anything to do with any girls working under him, or for the factory, in or out of the factory. It was not conducive to either the morals or the honor of those working for this great company, and they would not allow it. And shortly af- ter coming there, this man had been instructed as to that rule. But did that deter him? Did the so recent and favorable consideration of his uncle in any way deter him? Not in the least. Secrecy! Secrecy! From the very beginning! Seduction! Seduction! The secret and intended and immoral and illegal and socially un- warranted and condemned use of her body outside the3S regenerative and enobling pale of matrimony! . . . "The poor little thing imagined that she was going for a brief outing before that marriage of which he talked and which was to seal and sanctify it. To seal and sanctify it! To seal and sanctify, as closing waters seal and sanctify, but in no other way--no other way. And with him walking, whole and sly—-as a wolf from its kill——tO freedom, to marriage, to social and mate- rial and affectionate bliss and superiority and ease, while she slept still and nameless in her watery grave."36 We also find an appeal to religion when Mason declares: ". . . It was not more than two months after that be- fore he had induced her to move from the regpectable and religious [italics mine] home which she had chosen ‘ifi Lycurgus, to one concerning which she knew nothing and the principal advantage of which . . . was that it 85 offered secrecy and freedom from Observation for the vile purpose which already he entertained in regard to her." 7 In connection with the oath, Mason says to Clyde: "'And under oath, too. Don't forget that! That sacred oath that you respect so much. Isn't that true?”38 Then Dreiser tries to demonstrate through Clyde's attorneys the conflict between the accepted mores of moral- ity and a changing world. They try to present tO the jury the hypocrisy Of the puritanical forces existing in rural areas. Thus, Belknap describes the relationship between Clyde and Roberta: ”. . . Some of the testimony that has been Offered here, that perhaps the sly and lecherous overtures with which this defendant is supposed to have lured the lovely soul now so sadly and yet so purely acci- dently blotted out . . . from the straight and narrow path Of morality, were perhaps no more sly nor lecher- ous than the proceedings of any youth who finds the girl of his choice surrounded by those who see life only in‘the terms Oggthe strictest and narrowest moral regime . . . ”I know that as you gentlemen view such things, such conduct has no excuse for being. One may be the victim of an internal conflict between two illicit moods, yet nevertheless, as the law and the church see it, guilty of sin and crime. But the truth, none-the-less, is that they do exist in the human heart, law or no law, religion or no religion, and in scores of cases they motivate the notions Of the victims. And we admit that they motivated the actions of Clyde Griffiths."4o And then Jephson says to Clyde: "Well, then, just roughly now, without going into de- tail, do you suppose you could explain to yourself and this jury how and why and where and when those changes came about which led to that relationship which we all of us” (and here he looked boldly and wisely out over the audience and then afterwards upon the jurors) ”deplore. How was it, if you thought so highly of her at first that you could so soon afterwards descend to 86 this evil relationship? Didn't you know that all men, and all women also, view it as wrong, and outside of marriage unforgivable——a statutory crime?" The boldness and ironic sting of this was sufficient to cause at first a hush, later a slight nervous tremor on the part of the audience which, Mason as well as Justice Oberwaltzer noting, caused both to frown apprehensively. Why this brazen young cynic! How dared he, via innuendo and in the guise Of a serious questioning, intrude such a thought as this, which by implication at least picked at the very foundation of society--religious and moral.41 And Clyde recalled Jephson's coaching: ”Educational effect. The quicker and harder we can shock 'em with some of the real facts of life around here, the easier it is going to be for you to get a littlizmore sane consideration of what your problem was.” Then Clyde's reaction to Mason's cross-examination: "Yet continuing relations with Miss Alden when your other interests left you any time." "Well . . . yes, sir,” once more hesitated Clyde, enor- mously troubled by the shady picture of his character which these disclosures seemed to conjure, yet somehow feeling that he was not as bad, or at least had not in- tended to be, as all this made him appear. Other people did things like that too, didn't they--those young men 43 in Lycurgus society--or they talked as though they did. In connection with the religious mores, Belknap says to the jury: "You may think, perhaps, that we ourselves must be believing in his guilt. But you are wrong. The pe- culiarity, the strangeness of life, is such that Oft- times a man may be accused of something that he did not do and yet every circumstance surrounding him at the time seems to indicate that he did it. There may have been many very pathetic and very terrible instances of miscarriages of justice through circumstantial evi- dence alone. Be sure! 0h, be very sure thatlgglsuch mistaken judgment based on any local or religious or mora eory O conduc or as a lcs mine , ecause o presumed—IrrefutabIe evidence, is permitted to prejudice you, so that without meaning to, and with the best and highest-minded intentions, you yourselves see a crime, or the intention to commit a crime, when 87 no such crime or any such intention ever truly or legally existed or lodged in the mind or acts of this defendant.44 ”. . . In the eyes and words Of the district attorney, an en agement, and not only that but a sacred engegee ment italics mine], which no one but a scoundreI‘and a Efiief and a murderer would attempt to sever . . . many engagements, more Open and sacred in the eyes of the law and of religion, have been broken. Thousands of men and thousands Of women have seen their hearts change, their vows and faith and trust flouted, and have even carried their wounds into the secret places of their souls, or gone forth, and gladly, to death at their own hands because of them. As the district attorney said in his address, it is not new and it will never be Old!"45 And then Jephson: ”'Well now, Clyde, from there on, ‘just what happened? Tell us now, as near as you can recall. Don't shade it or try to make yourself look any better or any worse. She is dead, and you may be, eventually, if these twelve gentlemen here finally so decide. . . . But the truth for the_peace of your own soul [italics mine] is the best' -- and here Jephson thought of Mason--let him counteract that if he can."46 In the final summation by Mason, we get a combina- tion of every conceivable method known to the legal profes- sion. And then Mason, blazing with the conviction that Clyde was a murderer of the coldest and blackest type, and spending an entire day in riddling the "spider's tis- sue Of lies and unsupported statements" with which the defense was hoping to divert the minds of the jury from the unbroken and unbreakable chain of amply substan- tiated evidence wherewith the prosecution had proved this ”bearded man" to be the "red-handed murderer" that he was. And with hours spent in retracing the state- ments of the various witnesses. And other hours in denouncing Clyde, or re-telling the bitter miseries of Roberta--so much so that the jury, as well as the 88 audience, was once more on the verge of tears. And with Clyde deciding in his own mind . . . that no jury such as this was likely to acquit him in the face of evidence so artfully and movingly recapitulated. 7 In connection with methods used by lawyers, Mr. Jackson has this to say: The favorite channel for lawyer seduction Of the jury is through the summation. Here the lawyer plays upon the jurors' passions and prejudices. From the ancient Grecian orators to our modern Choates and Darrows, juries have been victimized by gifted orators and jury-swayers. Some advocates swear by the ancient forensic school. Ignoring facts, they orate in the grand manner about ”desolate homes, lovely chil- dren, weeping widows and heartbroken mothers.” Others affect a quiet, confidential attitude and, flattering the jury, appear to reason with them. One school in- dulges in false sentiments; another in false reasoning. Some lawyers affect kindness; others abuse their Oppo- nents, following the Saconian injunction to "slander boldly; something always sticks." None of this is new but every age has its successful proponents 8f a system, who come to be known as great Jury lawyers.4 Since it is the Obligation of the state to prove the defendants' guilt or innocence, it is incumbent on the prosecutor to submit his evidence to the judge and the jury. He calls his witnesses in one by one and asks them to tell the jury what they know about the crime and the accused's participation in it. Since the burden of proof rests with the prosecutor, it is his responsibility to Open the trial. This he does by stating to the jury the charges against the accused as they are contained in the bill Of indictment, and outlining the evidence he expects to introduce during 89 the trial. At the completion of his Opening statement, he calls his witnesses one by one. After he examines each directly, the defense attorney has the privilege of cross- examination, his purpose being to discredit the prosecutor's witnesses or to minimize their testimony. Defense witnesses are then introduced, and they are cross-examined by the prosecutor. After this, both sides may produce additional witnesses. Upon the completion Of the state's testimony against the accused, the prosecutor advises the court that he rests his case. In a very dramatic opening speech, using every form Of oratorical appeal, Mason charged Clyde with the murder of Roberta Alden. However, Mason had no eyewitnesses, so in his concluding statement he informed the court that as Roberta's "'last death cry rang out over the water of Big Bittern, there was a witness [italics mine], and before the prosecution has closed its case, that witness [italics mine] will be here to tell you the story.”49 Dreiser explains that Mason could not resist this Opportunity to throw so dis- rupting a thought into the Opposition camp. And decidedly, the result was all that he expected, and more. For Clyde, who up to this time and particu- larly since the thunderbolt Of the letter, had been seeking to face it all with an imperturbable look of patient innocence, now stiffened and then wilted. A witness! And here to testify! God! Then he, whoever 90 he was, lurking on the lone shore of the lake, had seen the unintended blow, and heard her cries--had seen that he had not sought to aid her! Had seen him swim to shore and steal away--maybe had watched him in the woods as he changed his clothes. God! His hands now gripped the sides of the chair, and his head went back with a jerk as if from a powerful blow, for that meant death-~his sure execution. God! NO hope now! His head drooped and he looked as though he might lapse into a state of coma. As to Belknap, Mason's revelation at first caused him to drop the pencil with which he was making notes, then next to share in a puzzled and dumb-founded way, since they had no evidence wherewith to forefend against such a smash as this -- But as instantly recalling how com- pletely Off his guard he must look, recovering. Could it be that Clyde might have been lying to them, after all-~that he had killed her intentionally, and before this unseen witness? If so, it might be necessary for them to withdraw from such a hopeless and unpopular case, after all. ‘ As for Jephson, he was for the moment stunned. And through his stern and not easily shakable brain raced such thoughts as--was there really a witness?--has Clyde lied?—-then the die was cast, for had he not already admitted to them that he had struck Roberta, and the witness must have seen that. And so the end of any plea of a change of heart. Who would believe that, after such testimony as this? But because of the sheer contentiousness and determi- nation Of his nature, he would not permit himself to be comp1etely baffled by this smashing announcement. Instead he turned, and after surveying the flustered and yet self-chastizing Belknap and Clyde, commented: "I don't believe it. He's lying, I think, or bluffing. At any rate, we'll wait and see. It's a long time be- tween now and our side of the story. Look at all those witnesses there. And we can cross-question them by the week, if we want to--until he's out of Office. Plenty of time to do a lot Of things--find out about this witness in the meantime. And besides there's suicide, or there's the actual thing that happened. We can let Clyde swear to what did happen--a cataleptic trance--no courage to do it. It's not likely anybody can see that at five hundred feet! And he smiled grimly. At almost the same time he added, but not for Clyde's ears: "We might be able to get him Off Bith twenty years at the worst, don't you think so?"5 91 In connection with surprise witnesses, Professor Sutherland says that "each side tries to win the case and take advantage of every possible trick, surprise and tech- nical device. It is not at all unusual for as many as fifteen formal motions to be introduced in a case, each Of which involves debate, possible continuances and deci- sions by the court."51 Robert W. Millar has suggested that each side should be required to submit a list of witnesses who are to be called, with an abstract of the evidence to be pre- sented. This would make it possible to reach a decision without the surprises, which are not a part of real justice.52 And Belknap, as defense attorney, uses similar tactics: ”But, gentlemen,” and here [he] suddenly paused as though a new or overlooked thought had just come to him, perhaps you would be better satisfied with my argument and the final judgment you are to render if you were to have the testimony Of one e ewitness [italics mine] at least of Roberta AIaen's death-- one who, instead of just hearing a voice, was ac- tually present, end who saw and hence knows how she met her death.”5 Professor Sutherland declares that the "essential business Of a trial should be to determine a question of fact: Did the accused commit the crime? In the performance of that duty, tricks and surprises are no more justifiable than in determining a fact in the laboratory. In practice, however, the criminal trial is regarded as a game between the two lawyers. Large audiences were attracted in the 92 past and in some sections of the country the criminal trials still are the principal amusement."54 Thus, we have the audience in An American Tragegy_ hearing that an actual eyewitness was to be produced, and not by the prosecution but the defense, was at once upon its feet, craning and stirring. And Justice Oberwaltzer, irritated to an exceptional degree by the informality characteristic of the trial, was now rap- ping with his gavel while his clerk cried loudly: "Order, order! Unless everybody is seated, all spec- tators will be dismissed! The deputies will please see that all are seated.” And then a strained silence falling as Belkngp called: ”Clyde Griffiths, take the witness chair.”S Mr. Jackson says that a trial is a contest akin to the old "trial by battel” except that it is played under rules which substitute for physical force the intellectual skill and agility of lawyers and witnesses. As in days of old, such con- testant is still permitted to select his champion, but now instead of a burly butcher, he picks a wily lawyer. These champions still use the methods of ”battel,” they advance and retreat, they use force and bluster, they employ concealment and surprise. Fundamentally the purpose is the same-~50 win, by hook or by crook, by stealth or by wealth.5 That the literary artist discerns the problems of his time-~even if in symbolic form--is evidenced by Roger ‘Vailland, French author of the Goncourt prize-winning cyni- cal novel The Law. Oddly enough, the novel is not about France, but about Monacore, a small port in southern Italy ~ethe Italy of Lolabrigida, Sophia Loren, and racing cars, and, of course, love and sex--the Italian way. It was dur- ing the author's sojourn in Italy, in a small village where 93 they played the game Of.léul22229 that the idea for The Law came to him--which he zestfully portrays in his book La Loi. In Monacore, as throughout the region, the male citizens amuse themselves by playing a traditional game called The Law, and it is this game that gives the book its title and its deeper meaning. The Law is played thus: A "Chief” is chosen by lot, and he picks a ”Deputy.” The other players pay for the wine. The two winners, but espe- cially the Chief, are privileged to insult, abuse, and sub- ject to emotional torture one or more of the losers. When this exercise in sadism has reached a culminating point-- that is, when the wine is exhausted or the victim has be- trayed himself by some sign of emotion, whether fear, rage, or frustration--the game stOps. As the author puts it: The winner, the Chief, who dictates the law, has the right to speak, to interrogate and to reply in place of the interrogated, to praise and to blame, to insult, to insinuate, to revile, tO slander, and to cast a slur on people's honor; the losers who have to bow to the law, are bound to submit without sound or movement such is the fundamental rule of the game of The Law. 57 In the novel Resurrection, Tolstoy relates the game motif Of a French Renaissance writer in the following epi- sode: "Rabelais tells of a judge who was trying a case and who, after quoting all sorts of laws and reading some twenty pages of unintelligent Latin proposed that the contending parties should throw dice, odds or even; if the number turned up even the plaintiff would be right; if odd--the defendant."58 94 Another angle Of the game is brought in when Jakob Wassermann has the honest lawyer Laudin describe another lawyer in the novel Wedlock (Laudin und die Seinen), in the following manner: . . . And it was of this colleague that he wanted to speak now. He had met him before. He was one of those talented men without conscience, who had brought their calling and its service down tO the level of a dicer's game. Their stakes are the vary— ing interpretations of doubtful or equivocal legal enactments which are possible under their astute scrutiny. They are past masters Of all the arts of delay and procrastination and they are capable of defending obvious injustice and trickery with more emphasis and passion than their Oppggents can bring to the support Of the purest cause. CHAPTER IV IN RE CLYDE GRIFFITHS Lawyers, I suppose, were children once. --Charles Lamb There was a child went forth every day, And the first Object he look'd upon, that object he became, And that object became part Of him for the day or a certain part Of the day, Or for many years or stretching cycles of years. --Walt Whitman, "There Was a Child Went Forth" Dreiser, through the lawyers for the defense, tries to use Darrow's tactics--"jurymen seldom convict a person they like, or acquit one they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least to feel sympathy for him, facts regarding the crime are relatively unimportant."2 The defense attorneys set about doing this by show- ing what the basic facts were, as distinguished from the legal facts. Clyde was the victim of circumstances in com- mitting a crime for the first time. It was necessary to 95 96 destroy the illusion that criminals are not like other men. It must be recognized that the average criminal is a human being who has been impelled to a crime by personal handi— caps and unfortunate surroundings. They tried to show the motive underlying Clyde's crime. A man may be a gross ”moral coward" but still may be driven into crime by an unconscious urge. Although he may have a conscious motive in mind, unconscious motivation may also be present, and it was this that in Clyde's case was the driving force. The reason Clyde fails to convince the jury is that the legal machinery was an artificial means of show— ing his whole background and the extent of the influences of an inadequate home on his delinquency. The painful cross-examination by Mason in order to reconstruct the event was hardly the answer. It is necessary to get a flashback to the first volume Of An American Tragedy for the explanation of all the fears, emotional instabilities, and insecurities that led up to the fatal killing. The fact that murder seemed the only solution to his trouble indicated a basic inadequacy in his personality. Emotional insecurity, frustration, and inadequacy played an important part in his delinquency. Clyde was dragged out of normal life, to be made a show and jest of. The handsome automobiles that sped by, the loi- tering pedestrians moving Off to what interests and comforts he could only surmise . . . and the "kids" staring, all troubled him with a sense of something different, betteg, more beautiful than his, or rather than their life. 97 . . . He never had any real friends, and could not have any, as he saw it, because Of the work and con- nection of his parents, was now tending more and more to induce a kind of mental depression or melancholia which promised not so well for his future. It served to maki him rebellious and hence lethargic at times . . . If only he had a better collar, a nicer shirt, finer shoes, a good suit, a swell overcoat like some boys had. Oh, the fine clothes, the handsome homes, the watches, rings, pins that some boys sported; the dandies many youths of his years already were. Some parents of boys of his years actually gave them cars of their own to ride in . . . And yet the world was so full of so many things to do--so many people were so happy and so successful. What was he to do? Which way to turn? What one thing to take up and master--something that would get him somewhere. He could not say. He did not know exactly. And these peculiar parents were in no way sufficiently equipped to advise him.5 When the Wickersham Commission reported on the cause of crime in 1931, one of its members, Mr. Henry W. Anderson of Virginia, made a minority report. He says: They [the American people] have created the widest spread between the extremes Of wealth and poverty existing in the western world. They have developed degrading slums in the cities, and ignorant under- privileged areas in the rural districts which stand as menaces t8 social health and dangers to social order . . . ‘ They have created the largest body of laws and the most complex system of government now in existence as restraints and controls upon individual and social conduct, and every stage in their develOpment has been characterized by a large and increasing degree of lawlessness and crime. . . . NO candid investi a— tion can i nore these f cts or the conclusions wfiich EHey naEurally sugges’E.i IItaIics Hr. Anderson’s] In Crime and the Human Mind, Dr. David Abrahamsen declares "since a tendency toward crime is present in all humans, criminals are not very different from many law- 98 abiding citizens. If this is true, we may say they are more like normal individuals than different from them. In one sense, therefore, crime is an artificial thing created by law."8 It is interesting to note that as to the crime of murder in the article on ”Homicide" in the Engyclopaedie of the Social Sciences, William Seagle makes the following statements: The most complete break with the western civilization is represented by the penal code of Soviet Russia, in which homicide has ceased to be the major crime. The normal penalty for intentional homicide is eight years of solitary confinement. The aggravating circumstances which will increase the period Of incarceration to ten years are the presence of dishonorable motives, such as greed and jealousy; recidivism; and the existence of a special duty to care for the victim. Patricide is not specially mentioned. Among extenuating circumstances are mentioned provocation and the overstepping of the bounds of necessary self-defense. The law of evidence is a large and important divi- sion of law in itself, which usually is treated as a sepa- rate course in law schools and as a separate subject in textbooks, digests, and encyclopedias. Much of it is of particular importance in criminal cases, and some is im- portant only in criminal cases. Crimes are rarely committed in front of a person who can see and hearb-which would be direct evidence. Therefore, circumstantial evidence must be proved by making 99 certain inferences. Thus, when the existence Of any fact is attested by witnesses as having come under the cognizance of their senses, or is stated in documents the genuineness and veracity of which there seems no reason to question, the evidence of the fact is said tO be direct or positive. When on the contrary the existence of the principal fact is only inferred from one or more circumstances that have been directly established, the evidence is said to be circum- stantial. In homicide cases, circumstantial evidence must be very strong, and is a question Of fact for the jury to decide. Nothing must be done to influence the jury, and it is within the discretion Of the court to rule out any- thing that would inflame its members. In You Be the Judge, Ernest Mortenson says that cir- cumstantial evidence is synonymous with weak evidence: A set of inferential circumstances is superior, as a type of proof, to a weak case resting upon question- able testimony. There have been convictions of inno- cent persons by direct evidence as well as by circum- stantial evidence. The senses are indeed fallible and cases of mistaken identity are possible, as well as wrong inferences from indirect evidence. Where con- clusions must be drawn from evidence which is not positive, there should be indepandent lines of fact pointing clearly toward guilt. The piling up of circumstantial evidence in 53 American Tragedy is almost identical with that Of the Gillette case. In both cases, we have concealed compan- ionship, registration under assumed names, social engage- ments with ladies at pleasure resorts, a hired boat, wearing apparel of the dead woman left at the hotel, letters, and 80 on. 11 100 Percival Jackson says: In matters Of giving evidence upon a trial an apothe- 0515 Of technique is reached. What is to be admitted in evidence upon a trial and what is to be rejected,. is a subject Of such abstruseness that volumes Of law- books are constantly being written on the subject. Greenleaf on Evidence, a standard work written in 1899, consists of tfiree vqumes of 2,167 pages citing perhaps almost 16,000 precedents. Wigmore, a more recent ex- pert on the subject, has a text consisting of five vol- umes aggregating 5,500 pages with 42,000 precedents.1 Charles T. McCormick on "Evidence" in the Encyclopaedia Of the Social Sciences, thinks that the responsibilities of the trial judges for the en- forcement of evidential rules and standards are heavy and unremitting. The law Offers no all embracing formula for determining-whether a given item of proof is rele- vant to the issue, and logic and experience must be the only guides. ,Even when evidence is logically probative, the trial judge must still exclude it if he finds that its probative value is slight and is overborne by the danger that it may arouse undue prejudice in the jury, may confuse the issue or lead to undue consumption of time. Ernest Mortenson declares that "matters which deal with trial practice and the rules of evidence have refer- ence to those devices which experience has developed for bringing into review events which are causally connected with a party to the action. Here must be applied a process of inclusion and exclusion. The proof must be adopted to the purpose, and events which are relevant to the issues to be tried must be re-enacted as far as practicable."14 In this connection, the identical boat in which Clyde and Roberta had sat is put before the jury in order to re-enact the entire scene with Miss Newcomb. But the conditions are not the same. Belknap's Objection culminates 101 in "a long and wearisome legal argument, finally terminating in the judge allowing this type Of evidence to be continued 15 And there followed for a while at least.” a long wrangle between Belknap and Mason as to the com- petency of such testimony since Clyde declared that he could not remember clearly--but Oberwaltzer finally al- lowing the testimony on the ground that it would show, relatively, whether a light or heavy push or blow was required in order to upset any 8ne who might be "lightly” or "loosely" poised.l . . . The jury, in spite of Belknap's thought that his contentions would have counteracted all this, gathering the impression that Clyde, on account of his guilt and fear of death, was probably attempting to conjure some- thing that had been much more viciously executed, to be sure. For had not the doctors sworn to the probable force Of this and another blow on the tOp of the head? And had not Burton Burleigh testified to having dis- covered a hair in the camera? And how about the cry that woman had heard? How about that?1 As Harry Elmer Barnes and Negley K. Teeters see it: The technical rulings on law are Often as ineffective upon the jury as the testimony. The average jury is Objectly ignorant of even the most elementary law, and almost invariably misses the significance Of the judge's interpretation of it. Even in those cases where the rules are simple, explicit and direct, the jury on occasions goes counter to them. If a juryman has really been impressed by testimony, in not one case out of ten will he be influenced by a subsequent ruling that is grrelevant and must be excluded from consideration.1 The judge rules on the admission of evidence; but the jury alone decides on its weight in the case. On the subject of circumstantial evidence, Edwin M. Borchard, Professor of Law at Yale University, states in Convicting_ the Innocent: "No one will suggest that circumstantial evidence should be excluded as a form of evidence. On the contrary, it is often convincing and conclusive."19 However, 102 it is often misleading and unreliable, and tends itself to exploitation by a clever prosecutor or lawyer. Professor Borchard quotes Chief Justice Shaw of the Massachusetts Supreme Court in connection with circumstantial evidence: The advantages [of circumstantial evidence] are that as the evidence comes from several witnesses and dif- ferent sources, a chain of circumstances is less likely to be falsely prepared and arranged, and false- hood and perjury are more likely to be detected and fail of their purpose. The disadvantages are, that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them; in doing which, they may be led by prejudice, or by want Of due de- liberation and sobriety Of judgment, to make hasty and false deductions; a source of error not existing in the consideration of positive evidence. Professor Borchard gives some interesting statistics concerning convictions of innocent people due to misleading circumstantial evidence: Cases Of circumstantial evidence in which entered a mistaken identification are fifteen in number. Cases of circumstantial evidence in which perjury was an ingredient are eleven in number. Cases in which the perjury of prosecuting or other witnesses, taking ad- vantage of circumstantial evidence, natural or manu- factured, was the main factor in the conviction are not inconsiderable--fifteen. Among them are four for murder in which the alleged "murdered" person later turned up alive and well. In fourteen cases the vic- tim was ”framed" by hostile witnesses. . . . Witnesses play a very important role in a criminal case» It is the nature of the long array of witnesses in a trial and what they say on the stand that mainly influ- ence the jury in its final verdict. 103 In An American Tragegy, Dreiser shows us: . . . Witnesses, witnesses, witnesses-—to the number of one hundred and twenty-seven. And their testimony, particularly that of the doctors, three guides, the woman who heard Roberta's last cry, all repeatedly objected to by Jephson and Belknap, for upon such weakness and demonstrable error as they could poin out depended the plausibility Of Clyde's defense. Arthur Garfield Hays declares in the introduction to Percival E. Jackson's book Look at the Law: . . . In most cases witnesses color their stories. . . . This is a human failing which is difficult to avoid. No two persons see anything alike; no one can tell the effect of the power of suggestion. It is easy to dis- tinguish red from green, but the colors merge, the distinction becomes increasingly difficult. The best one can do is to reconstruct what has happened in the past, . . . An interested party, however honest he may be, is bound to reconstruct the story in the color of his own predispositions, he is bound to be influenced by his predilections. My own experience in law suits arise through honest differences of opinion where people see things from a different point of view.23 ”Heresay evidence" is a term applied to that species of testimony given by a witness who relates not what he knows personally, but what others have told him, or what ~he has heard said by others. In the law of evidence, Opinion is an inference or conclusion drawn by a witness from facts some of which are known to him and others are assumed, or drawn from the facts which, though lending prob- amxility to the inference, do not evolve it by a process of absolutely necessary reasoning. Not only in murders, but in most criminal cases there are few eyewitnesses. Hearsay evidence is not per- mitted in court; neither can an ordinary witness express an opinion. This is necessary to protect the accused from 104 hearsay and the kind Of evidence that affects men's emotions instead of their judgment. An American Tragedy has an example of this, where Mason calls in a Mrs. Rutger Donahue who proceeded, in the calmest and most placid fashion to tell how on the evening of Ju1y eighth last, be- tween five-thirty and six, she and her husband imme- diately after setting up a tent above Moon Cove, had started out to row and fish, when being about a half- mile off shore and perhaps a quarter of a mile above the woods or northern fringe Of land which enclosed Moon Cove, she had heard a cry. ”Between half past five and six in the afternoon, you say?” ”Yes, sir." "And on what date again?” "July eighth.” ”And where were you exactly at that time?" "We were --" "Not 'we.' Where were you personally?" "I was crossing what I have since learned was South Bay in a row boat with my husband." ”Yes. Now tell what happened next." ”When we reached the middle Of the boy I heard a cry." ”What was it like?” "It was penetrating-~like the cry of some one in pain-- or in danger. It was sharp--a haunting cry." [Opinion] (Here a motion to ”strike out” with the result that the last phrase was so ordered stricken out.) ”Where did it come from?" "From a distance. From within or beyond the woods.” "Did you know at the time there was another bay or cove there--below that strip of wood?” 105 "NO, sir." "Well, what did you think then--that it might have come from within the woods where you were?” [Leading ques- tion] (Objected tO--and Objection sustained.) ”And now tell us, was it a man's or a woman's cry? What kind Of a cry was it?” "It was a woman's cry and something like 'Oh, Oh! or 'Oh, my!'--very piercing and clear, but distant, of course. A double scream such as one might make when in pain.” "YOu are sure you could not be mistaken as to the kind of cry it was--male or female." "No, sir. I am positive. It was a woman's. It was pitched too high for a man's voice or a boy's. It could not have been anything but a woman's." "I see. And now tell us, Mrs. Donahue--You see this dot on the map showing where the body of Roberta Alden was found?” "Yes, sir." ”DO you think that voice came from where this dot in Moon Cove is?" [Leading question] (Objected to. Sustained.) ”And was the cry repeated?" "NO, sir, I waited and I called my husband's attention to it, too, and we waited, but didn't hear it again." Then Belknap, eager to prove that it might have been a terrified [italics mine] and yet not a pained or in- jured cry, taking her and going all over the ground again, and finding that neither she nor her husband, who was also put on the stand, could be shaken in any way. Neither, they insisted, could the deep and sad effect of this woman's voice be eradicated from their minds. It had haunted both, ang once in their camp again they had talked about it. 4 Here we get an illustration of the difficulties connected with the testimony of witnesses. Generally, 106 witnesses cannot give Opinions unless they are experts in particular fields. Nevertheless, by means of leading ques- tions, Mason tried to induce Mrs. Donahue to make statements as to whether the voice she heard was that of a male or a female and where the voice came from; and the defense law- yers tried to show the difference between a terrified voice and a pained or injured one. As to the testimony of the witnesses, there is an apt summation by Mr. Jackson, in which he declares that a trial proceeds as though it were a mere game. The object of the game is to ascertain who has most suc- cessfully complied with the rules. He is thereupon declared the winner. Each contestant is allowed a lawyer and witnesses. The umpires are the judges and the jury. The judge announces the rules, the jury (or sometimes the judge) decides the identity of the win- ner, presumably according to the rules. . . . None of the witnesses may tell all he knows, nor may he tell it in his own way to the best advantage. The lawyer on his side tries to suggest by his questions what the witness should say; the lawyer on the other side tries to make him say something else. Each lawyer tries to induce the jury to disregard everything the other lawyer or his witnesses say.2 In the Gillette case, the lawyers for the defense raised this issue on the appeal. They claimed it was error to permit the witness Marjorie Carey to express an Opinion that a certain sound she heard was uttered by a woman.26 The prosecutor stated that the description by the witness Of the cry heard by her about six o'clock P.M. of July 11 was competent.27 Each side in the Gillette case upheld its conten- tions with a long list of citations concerning the compe- tency of Marjorie Carey's testimony. Competent evidence is 107 the kind of evidence that renders it proper to be given on the trial of a cause. In evidence, an Opinion is an infer- ence or conclusion drawn by a witness as distinguished from facts known to him as facts. It is the province of the jury to draw inferences and conclusions; and if the witnesses were in general allowed to testify what they believed as well as what they know, the verdict would sometimes prove to be not the decision of the jury, but that of the witnesses. Hence, the rule that, in general, the witness cannot be asked his opinion upon a practical question. On the subject of witnesses, Mr. Jackson makes this Observation: An otherwise honest witness is often mistaken in his testimony for a variety of psychological reasons. For one thing, human sensory organs have physical limita- tions and the nerves are often inadequate to transmit even simple concrete facts to the mind. It is a prac- tical impossibility to absorb a complicated set of occurrences in a moment. When an accident happens,. it is usually over before one knows it has occurred. Afterthought reconstructs it. This has been demon- strated time and again by tests made by psycholggists and psychiatrists, as well as in the courtroom. Professor Sutherland declares that a problem in regard to evidence is the honest mistakes which witnesses make. Memory is a fickle thing. One remembers what he wants to remember in many cases. Also his memory is a combina- tion Of what was actually witnessed and of other things that have been heard or imagined subsequent to the occurrence. Delusions Of perception occur, also. Tests given to students regarding accuracy in reporting occurrences show very decided differences on many points, with a very high error under the best conditions. The only checks on mistakes in testimony in court are the testimony of other witnesses. The 108 psychologists have been working for some time, however, on tests of comparative accuracy of different groups of persons, of rep§ies to leading questions and of narra- tive accounts. In Crime, Criminals and Criminal Justice, Nathaniel Cantor states that as to memory: "Psychologists have shown that there is a curve Of forgetting which starts with a sharp rise and flattens out at the end of several days. The testimony in a courtroom, given months . . . after the events, Oftimes tells more about the 'coaching' Of wit- nesses than the clarity of their memory. The minute de- tails reported months after their happening are psycholog- ically impossible."30 Thus, in the case Of Clyde, the killing of Roberta occurred on July 8. Dreiser informs us that the case was carried "well into November."31 Hence, after a lapse of about five months, Mason in cross-examination asks Clyde: "When you left Lycurgus to start on the trip, how much did you have?" "About fifty dollars." "About fifty? Don't you know exactly how much you had?" "I had fifty dollars--yes, sir." "And while you were in Utica and Grass Lake and getting down to Sharon afterwards, how much did you spend?" ”I spent about twenty dollars on the trip, I think." ”Don't you know?” "Not exactly--no, sir--somewhere around twenty dollars, though." "Well, let's see about that exactly if we can," went on Mason, and here, once more, Clyde began tO sense a trap 109 and grew nervous--for there was all that money given him by Sondra and some of which he had spent, tOO. ”How much was your fare from Fonda to Utica for your- self?" "A dollar and a quarter." ”And what did you have to pay for your room at the hotel at Utica for you and Roberta?" "That was four dollars." ”And of course you had dinner that night and breakfast the next morning, which cost you how much?" ”It was three dollars for both meals." ”Was that all you spent in Utica?" Mason was taking side glances occasionally at a slip of paper on which he had figures and notes, but which Clyde had not noticed. "Yes, sir." "How about the straw hat that it has been proved you purchased while there?" ”Oh, yes sir, I forgot about that," said Clyde, nera vously. ”That was two dollars--yes, sir." He realized that he must be more careful. ”And your fares to Grass Lake were, of course, five dol- lars. Is that right?" ”Yes, sir.“ "Then you hired a boat at Grass Lake. How much was that?” "That was thirty-five cents an hour." "And you had it how long?" "Three hours." ”Making one dollar and five cents." "Yes, sir.” "And then that night at the hotel, they charged you how much? Five dollars, wasn't it?" 110 "Yes, sir." ”And then didn't you buy that lunch that you carried out in that lake with you up there?" "Yes, sir. I think it was about sixty cents." ”And how much did it cost you to get to Big Bittern?" "It was a dollar on the train to Gun Lodge and a dol- lar on the bus for the two of us to Big Bittern." ”You know these figures pretty well, I see. Naturally, you would. You didn't have much money and it was im- portant. And how much was your fare from Three Mile Bay to Sharon afterwards?" "My fare was seventy-five cents." "Did you ever stOp to figure this all up exactly?" "No, sir." ”Well, will you?" ”Well, you know how much it is, don't you?" "Yes, sir, I do. It is twenty-four dollars and sixty- five cents. You said you spent twenty dollars. But here is a discrepancy Of four dollars and sixty-five cents. How do you account for it?" ”Well, I suppose I didn't figure just exactly right," said Clydeé irritated by the accuracy of figures such as these. As has been noted, it is a rule of evidence that the ordinary witness cannot express an Opinion. An exception is the expert witness who testifies in regard to some profes- sional or technical matter arising in the case, and who is permitted to give his opinion as to such matters on account 111 of his special training, skill, or familiarity with it. In An American Tragedy: the guest page Of the Renfrew House of Utica, for July sixth last, identified by Jerry K. Kernocian, general manager of said hotel, which showed an entry--"Clifford Golden and wife." And the same then and there compared by handwriting experts with two other registration pages from the Grass Lake and Big Bittern Inns and sworn to as being identically the same handwriting. And these compared with the card in Roberta's suit-case, and all received in evidence and carefully examined by each juror in turn and by Belknap and Jephson, who, however, had seen all but the card before. And once more a pro- test On the part of Belknap as to the unwarranted and illegal and shameful withholding of evidence on the part of the district attorney. And a long and bitter wrangle as to that, serving, in fact to bring to a close the tenth day Of the trial.33 It is not unusual to find both the defense and the prosecution calling in experts in the same field who pre- sent conflicting views. Thus, in An Amegican Tragedy: The testimony of the five doctors whom Mason had called in at the time Roberta's body was first brought to Bridgeburg, and who in turn swore that the wounds, both on the face and head, were sufficient, considering Roberta's physical condition, to stun her. And because of the condition of the dead girl's lungs, which had been tested by attempting to float them in water, she must have been still alive, although not necessarily conscious. But as to the nature of the instrument used to make these wounds, they would not venture togguess, other than to say it must have been blunt. And nO grilling on the part Of either Belknap or Jephson could bring them to admit that the blows could have been of such a light character as not to stun or render uncon- scious. The chief injury appeared to be on the tOp of the skull, deep enough to have caused a blood clog.a photographs of all of which were put in evidence. The expert for the defense was a Dr. A. K. Sword, of Rehobeth—-chancing to be at Big Bittern on the day that Roberta's body was returned to the boat-house, now declared that he had seen and exam- ined it there and that the wounds, as they appeared 112 then, did not seem to him as other than such as might have been delivered by such a blow as Clyde admitted to have struck accidentally, and that unquestionably Miss Alden had been drowned while conscious--and not unconscious, as the state would have the jury believe --a result which led Mason into an inquiry concerning the gentleman's medical history, which, alas, was not as impressive as it might have been. He had been grad- uated from a second-rate medical school in Oklahoma and had practised in a small town ever since. Ernest Mortenson declares: Doctors probably appear more frequently in the trial court than any other type Of witness. While the evi- dence of most doctors may be invaluable in helping a jury in arriving at a correct verdict, there are unfor— tunately some "semi-professionals" testifying in the courts. Some time ago, in a damage suit against a city, the plaintiff, said to be suffering from serious head injury, called a doctor to testify as to the extent of her injuries. The doctor, being a loquacious gentleman with considerable presence, greatly impressed the jury, and even the judge. In an oracular and sensational man- ner he lectured them on ”vaSO-motor nerves" and "re- flexes" and expressed himself almost entirely in medical terms impressively unfamiliar to both judge and jury. Finally, he terminated his testimony glibly with the statement that the plaintiff could never recover and, if she lived at all, it would have to be in an insane asylum. When the counsel for the defendant city got up to cross- examine, he saw that he had a difficult task ahead. The doctor was undoubtedly a sham and yet astute enough to slip through the examination with alert answers wrapped in a veil of medicalpterminology.3 On the subject of the alienist as an expert, Dr. William A. White states in his article "Alienist" in the Encyclopaedia of the Social Sciences: The function of the alienist, which is essentially that of the expert witness, is in theory to give the results of his scientific experience with mental disease in general, and in particular with reference to the case in hand, for the assistance of the court and the in- struction of the jury. As an expert he is not confined totestimony as to facts. His testimony is essentially opinion evidence, and on the witness stand he is called 113 upon to give his Opinion of the bearing of certain symptoms upon legal issues involved, such as respon- sibility in criminal actions. . . . The testimony of alienists has in recent years fallen somewhat into disrepute because they have been pitted against one another in equal numbers; and because of the technical character of their evidence and the fact that they contradict each other, juries have tended to disregard it. Many efforts have been made to correct this state of affairs. The most outstanding suggestion is to employ state alienists who occupy a neutral posi— tion in the cause at issue and who may therefore be cross-examined by both defense and the prosecution. Such a course does not limit either the defense or the prosecution from employing additional alienists, but it is felt that the neutral position Of the state alien- ists would materially increase the weight of their tes— timony. In practice, however, the problem of the ex- pert testimony gf alienists remain in a very unsatis- factory state.3 Each side claims to be telling the truth and wants the jury to find that what its witnesses say is the truth. Each witness tells what he claims is the truth, though his story is usually directly at variance with what a witness on the other side says is the truth. Thus, in addition to the experts there was Samuel Yearsley, one of the farmers from around Green Lodge, who, driving over the road which Roberta's body had traveled in being removed from Big Bittern to Gun Lodge, now earnestly swore that the road as he had noticed in driving over it that same morning, was quite rough-~making it possible for Belknap, who was examining him, to indicate that this was at least an approximate cause Of the extra-severity of the wounds upon Roberta's head and face. This bit of evi- dence was later contradicted, however, by a rival wit— ness for Mason--the driver for Lutz Brothers, no less, who as earnestly swore that 38 found no ruts or rough places whatever in the road. - On the subject Of experts, Percival Jackson says: "It has become the custom to call expert witnesses to give 114 'expert' testimony on almost every conceivable subject, and many such 'experts' make it a practice to sell any believe— it-or—not opinion for which a litigant will pay. Often, even an honest expert indulges in wishful thinking and stretches the probabilities to favor the side that calls him. Inczonsequence, it is never very difficult to get an expert to testify 'con' to combat the testimony of an ex- pert who has testified 'pro.'"39 Ernest Mortenson quotes one legal authority as say- ing: "'The methods of an advocate should not shock the conscious, they should merely deceive the head of the enemy.’ But in his eagerness to quash his victim, the cross-examiner sometimes employs methods that do not seem quite above- board. Of course, the attorney for the other side may Object and the judge may order that part Of the examina— tion be stricken from the record but it is not always pos- sible to strike from the mind Of a juror the impression he has received.”40 Cross-examination is the examination of a witness by the party opposed to the party who called him, and who examined or was entitled to examine him in chief. The purpose of the cross-examination is to test the truthful- ruess, intelligence, memory, bias, or interest Of the wit- ness, and any question to that end within reason is usually 115 allowed. Mr. Mortenson says 'Of all the courtroom proce- dure and the lawyer technique, cross-examination has most thoroughly captivated the public fancy. The annihilation of another human being on the witness stand is as thrilling a spectacle to many people as a tenth-round knockout in a boxing ring. It is not alone the dramatic flourishes of a cross-examination which touch the imagination. Man is so- cially righteous and he delights almost mercilessly in the detection of another's untruths."41 An example of a leading question found in fig American Tragedy is provided when Stella, the daughter of Mrs. Gilpin, testifies that shortly after Roberta had taken the room, she had passed her and a man, whom she was not able to iden- tify as Clyde, standing less than a hundred feet from the house and noticing that they were evidently quar- reling, she had paused to listen. She was not able to distinguish every word of the conversation, but upon leadin [italics added] questions from Mason was able 0 recall that Roberta had protested that she could not let him come into her room--"it would not look right." . . . And decidedly this confirmed much of what Mason had charged in his Opening address--that he had willfully and with full knowledge of the nature Of the Offense, persuaded Roberta to do what plainly she had not wanted to dO--a form of testimony that was likely to prejudice the judge as well as the jury and all these conventional peOple Of this rural county. Another example already illustrated is found in the leading questions used by Mason with Mrs. Donahue. 116 In scientific methods, the "lie detector" at present has the best standing Of all the methods tO get at the truth. This instrument measures the respiration, the heartbeat, and the blood pressure as the subject answers questions, on the theory that when a person lies, internal changes will Occur. The courts will not accept evidence Obtained by this method at the present time. In one case,43 the de- fendant was convicted of murder in the second degree. He appealed to a higher court because he had not been allowed to use the lie detector as evidence in his trial. The court stated: . . . While courts will go a long way in admitting expert testimony deduced from a well-recognized prin- ciple or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. We think the systolic blood pressure deception has not gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony de— duced from the discovery, develOpment and experiments thus far made. Another "lie detector” is a drug known as sc0polamin. It is reported that this drug induces a state of semi-subconsciousness in which a person will answer every question asked Of him. This method is still in its experimental stage, and there is evidence that it is not wholly reliable.45 On the subject of scientific methods in the courts, Charles T. McCormick states in his article "Evidence” in 117 the Engyclopaedia Of the Social Sciences: A fertile possibility for the future improvement of the law Of evidence lies in the contribution which psychol— ogists may Offer to the science Of proof. The psychol- ogists have already by controlled experimentation ac- cumulated much statistical data about the accuracy Of witnesses in perceiving, remembering and reporting. Thus errors in Observing colors in different lights, in identifying sounds and in fixing the direction from which they come, in estimating time periods and in de- termining the number of persons in a group have all been measured. Again, the degree of improvement of perception where the attention of the witness is espe- cially directed to the Object and degree Of distortion resulting from shock have both been shown to be of controlling significance in evaluating testimony. Ex- periments with group reporting upon short moving pic- ture scenes show clearly the fallibility Of memory. Apparently, the curve of forgetting starts with a sharp rise but flattens out after two or three days and er- rors double after an interval Of forty-five days. Here again, whether the Observation was attentive or casual plays a great part in the accuracy and completeness Of the recall the extent of which has been measured. Like- wise memory Of word heard has been especially measured with results that . . . confirm the lawyer's hostility to hearsay . . . . Among the interesting findings as to reliability Of reporting are those which indicate that the taking Of an oath reduces the completeness of the report but substantially increases the accuracy. Comparisons of results as between free narration, giv— ing greater accuracy, and answers to questions, giving greater completeness, and as between leading and non- leading questions bears directly upon the soundness Of methods of examining witnesses in the court. . . . 5 . . . Eventually, perhaps, Anglo American procedures may find itself gradually but increasingly free from emphasis on jury trial with its contentious theory Of proof. With responsibility for the ascertainment Of facts vested in professional judges, the stress will be shifted free from the crude technique of admitting or rejecting evidence to the more realistic problems of appraising its credibility. Psychologists meantime will have built upon their knowledge of the statistical reliability of witnesses in groups a technique of test- ing the veracity of individual witnesses and assessing the reliability Of particular items of testimony. Judges and advocates will then become students and practitioners of an applied science of judicial proof.47 118 Percival Jackson advises that "less formality and greater flexibility, less technicality and more liberality in the courtroom would help make the truth plausible and lies ineffectual. A trial would then seem less like a game, and truth more its end."48 "It couldn't be worse, . . . The evidence boils down to you-did—--I-didn't. . . ."49 -—Harper Lee, To Kill a Mockingbird CHAPTER V THE END OF A TRIAL For twelve honest men have decided the cause, Who are judges alike Of the facts and the laws. --Sir William Pulteney Warfare in the courts is as expensive as it is on the battlefield.1 --Honoré de Balzac, Illusions Perdues III, "Les Soufrances de L'inventeur” After the evidence has been submitted to the jury and the Opposing attorneys have examined and cross—examined the various witnesses on both sides and have presented the final arguments, the judge makes the charge to the jury. The purpose Of the charge is to give the jury the legal as- pects of the case and to instruct them how to analyze the evidence in arriving at their verdict. And then Judge Oberwaltzer from his high seat finally instructing the jury: "Gentlemen--all evidence is, in a strict sense, more or less circumstantial, whether consisting of facts which permit the inference of guilt or whether given by an eyewitness. The testi- mony of an eyewitness is, Of course, based upon cir- cumstances. 119 120 "If any of the material facts of the case are at vari- ance with the grobability of guilt [italics mine], it will be the du y 0 you gefizlemen to give the defen- dant the benefit of the doubt raised. "And it must be remembered that evidence is not dis- credited or decried, because it is circumstantial. It may Often be more reliable evidence than direct evi- dence. Much has been said here concerning motive and its importance in this case, but you are to remember that proof of motive is by no means indispensable or essential to conviction. While a motive may be shown as a circumstance [italics Dreiser's] to aid it in fixing a crime, yet the peOple are not required to prove a motive. "If the jury finds that Roberta Alden accidentally or involuntarily fell out of the boat and that the defen- dant made no attempt to rescue her, that does not make the defendant guilty and the jury must find the defen- dant 'not guilty.‘ On the other hand, if the jury finds that the defendant in any way, intentionally, there and then brought about or contributed to that fatal accident, either by blow or otherwise, it must find the defendant guilty. "While I do not say that you must agree upon your ver- dict, I would suggest that you ought not, any of you, place your minds in a position which will not yield if after careful deliberation you find you are wrong.” The judge must be most cautious in making the charge because he knows that the attorneys are hanging on his words, so that if he goes beyond his privilege, reversible error may be charged against him. The phrase "probability of guilt" in the quotation above is emphasized because in regard to this Clarence N. Callendar gives a criticism of the judge's charge in his American Courts. He substitutes the phrase "reasonable doubt" for the ”probability of guilt” used by Judge Ober— iwaltzer and declares that in 121 criminal cases a verdict of guilty should not be based on a mere preponderance of proof. The jury should be convinced that, upon all the evidence, there can be no reasonable doubt that the accused is guilty . . What constitutes reasonable doubt is difficult to de- fine, and the probabilities are that few jurors under- stand the definition which the judge gives them. . . . Assuming that the jury understands what he means, it is not unlikely that they will have some difficulty in applying the doctrine. It is important to note the fourth paragraph of Judge Oberwaltzer's charge to the jury. "Much has been said here concerning motive and its importance in this case, but you are to remember that proof of motive is by no means indispensable or es- sential to conviction. While a motive may be shown as a circumstance [italics Dreiser's] to aid it in fixing IItaIIcs Dreiser's] a crime, yet the people are not required to prove a motive.” Clyde's lawyers tried to Show that motive or the impelling power that causes a person to commit an act, but as has been stated, legally it is never essential to show motive in order to get a conviction. For example, mercy killing is a crime of murder that might be cloaked with a good motive, but motive is not necessary for the convic- tion. Evidence of motive is generally admissible on behalf of the state and of the defendant, especially where the evidence bearing upon intent with which the crime was committed is circumstantial, and also by way Of extenuation or aggravation, to establish the degree of the offense or the proper punishment. Thus the law is more interested in the nature Of the crime for purposes of punishment and less [in the criminal, who may have been a victim of circumstances and who commits a crime for the first time. 122 After the judge completes the charge, the jury is excused and ordered into a room especially set aside for them to weigh the facts in the case. Very Often, the jury ignores the evidence presented and the instructions of the judge and bases its decision upon the prejudices Of the members. Thus, in An American Tragegy we have Out of the whole twelve but one man--Samuel Upham, a druggist--(politically opposed to Mason and taken with the personality of Jephson)--sympathizing with Belknap and Jephson. And so pretending that he had doubts as to the completeness of Mason's proof until at last after five ballots were taken he was threatened with exposure and the public rage and obloquy which was sure to follow in case the jury was hung. ”We'll fix you. You won't get by with this without the public knowing exactly where you stand.” Whereupon, having a satisfactory drug business in North Mansfield, he at once decided that it wai best to pocket this Opposition to Mason and agree. Harry Elmer Barnes and Negley K. Teeters declare: Eventually when a jury is reasonably alert in following the testimony, the desirable results that might come are likely to be offset by the presence upon the panel Of a powerful and impressive personality or an unusually stubborn moron. There have been innumerable miscar- riages Of justice because the jury was converted to the point of view of a prejudiced but convincing orator, or because a juror was present who, through bias, bribery or stupidity, held out against the judgment of his seven colleagues. And even the most elementary psy- chology makes it clear that though we had twelve able men on the jury they could rarely come to a concise, definite and well-reasoned agreemegt upon the basis Of a study Of the same body Of facts. 123 And in connection with Clyde's jury, we hear four hollow knocks on the door leading from the jury room to the court room. It was the foreman of the jury, Foster Lund, a dealer in cement, line and stone. His great fist was knocking . . . the jury room being opened and the twelve men filing solemnly in. . . . And as they did so, seating themselves in the jury box, only to rise again, at the command of the clerk, who began: ”Gentlemen of the jury, have you agreed on a verdict?" And then Lund announcing: "We have. We find the defendant guilty of murder in the first degree."6 Harry Elmer Barnes and Negley K. Teeters say that often ”any criticism of the jury system is not by the al- legation that most verdicts are sound. But how does one know even that one particular verdict is correct? The ma- jority of our convicted murderers go to the chair vehe- mently protesting their innocence, and many who seem Ob— viously guilty are freed."7 These authors present the thesis ”that the modern jury trial is one of the many anachronisms that clutter up our system Of criminal juris- prudence and penal philOSOphy."8 They contend that "there are many advantages and practically no disadvantages in waiving jury trials. It saves the state much expense. It reduces the number of appeals and retrials, and it re- lieves the work of the prosecutor's office, for more time (can be placed on careful preparation of cases. The trend away from jury trials is healthy and is being encouraged by many whose professions are closely linked with criminal justice."9 124 The same authors agree with Raymond Moley, who claims such a "positive drift toward the decline of the use of the jury that there is little point in either wast- ing our efforts arguing about the abolition of a thing which is actually abolishing itself, or in prOposing sub- stitutes or remedies for an agency which is stricken with a fatal illness. The criminal jury may already lie in the twilight Of doomed institutions."10 However, Roscoe Pound thinks there are compelling reasons for believing that the jury in criminal cases will endure . . . the jury of the vi- cinage is a truly representative institution, and a representative local judgment upon conduct has a value which stones for many shortcomings. . . . On the other hand, the jury system in criminal cases stands in need of much improvement. The rapid growth of enforcement of laws against vice by injunction rather than prosecution is due largely to the inef- fectiveness Of the jury trial for such cases. Indeed with the rise of the problem of enforcing law in the urban, industrial society Of today a more efficient criminal trial system is imperative.11 In the Opinion of the author of this discussion, the abolition of the jury would be a loss to society. A judge, unless he is considered a radical, will make every effort to tell others how to behave. In political crimes, the judge is influenced by politics; the members of a jury of anonymous persons do not as a rule have political aspira- tions, and therefore it is better for the purpose of admin- istration of justice to relieve the judge and put some 'pressure on the jury. There is less danger where there are twelve men and one strong man may hold out—-which 125 helps. Juries serve the administration of justice by serving as a buffer for the courts. Harry Elmer Barnes and Negley K. Teeters point out that in "some cases where jury trial is waived there are many other abuses, notably trial by huddle, a situation in which prosecutor, defense attorney, and judge work out a compromise disposition of the case, which is just as repre- 12 They say that hensible as a verdict of a corrupt jury." the "jury is a man-made device full Of flaws but with a kernel worth preserving. If it is kept, we must continue to watch it, checking from time to time until we have some chance Of creating an efficient, honest and intelligent body of citizens who take their responsibility as no light task in citizenship."13 In criminal practice, the arraignment Of a defen- ciant consists Of calling upon him by name, reading the in- ciictment to him, and demanding of him whether he is guilty Cir not guilty. Where the Offense carries the death penalty, ist is customary for the defense attorney to bring into the (nourt room members of the family. This is usually done in an atrtempt to sway the judge toward an attitude of leniency. "'Better wire her [Clyde's mother] to come on,' sug- gested Jephson practically. 'We can get Oberwaltzer to set 126 the sentence over until the tenth if we say she is trying to come on here.'"14 And then Clyde "was arraigned for sentence, with Mrs. Griffiths given a seat near him."15 And in his darkest hour, standing up before Justice Ober— waltzer and listening first to a brief recital Of his charge and trial (which was pronounced by Oberwaltzer to have been fair and impartial), then to the customary: "Have you any cause which shows why the judgment of death should not now be pronounced against you accord- ing to law?"-—to which and to the astonishment Of his mother and the auditors (if not Jephson, who had ad— vised and urged him to do so), Clyde now in a clear and firm voice replied: "I am innocent of the crime as charged in the indict— ment. I never killed Roberta Alden and therefore I think this sentence should not be passed." However, Oberwaltzer, without the faintest sign Of surprise or perturbation, now continued: "Is there anything else you care to say?" ' "NO," replied Clyde after a moment's hesitation. "Clyde Griffiths," then concluded Oberwaltzer, "the judgment of the court is that you, Clyde Griffiths, for the murder in the first degree of one, Roberta Alden, whereof you are convicted, be, and you are hereby sentenced to the punishment of death; and it is ordered that after this day's session of court, the Sheriff of this county of Cataraqui deliver you, together with the warrant of this court, to the Agent and Warden of the State Prison Of the State of New York at Auburn, where you shall be kept in solitary confinement until the week beginning the 20th day of January, l9—-, and, upon some day within the week so appointed, the said Agent and Warden of the State Prison of the State of New York is commended to do execution upon you, Clyde Griffiths, in the mode and manner prescribed by the laws of the State of New York."1 127 Even after they are sentenced to death, most Of the condemned continue to fight for life and liberty. To afford the convicted person every Opportunity of avoiding the stigma of guilt, provision is made by the state statutes for taking appeals in criminal cases from the courts of original jurisdiction to a higher court for review. Ap- peals are very common, but many are not granted. In New York, an appeal stays the execution even if eventually the appeal is denied. The New York statute reads: When the judgment is Of death, an appeal to the Court of Appeals stays the execution, of course, until the determination Of the appeal. When the judgment is death the Court of Appeals may order a new trial, if it be satisfied that the verdict was against the weight Of evidence or against law, or that justice requires a new trial, whether any exception should have been taken or not in the court below. Within a short time after conviction, the defense Imust file the application for appeal, with reasons. In .preparing for an appeal, the attorneys do not need to find twitnesses or other evidence. The rules of most of the ap- lpellate courts require the filing of briefs for the use of ‘the court and Opposing counsel at a time designated for eeach side before the hearing. These briefs are backed by izhe citations Of former cases that support the particular c:ontentions of the litigating parties. The appellate court differs from the trial court 1J1 that there is no jury but several judges, usually from tdlree to nine in number. The New York Court of Appeals C<>nsists Of the chief judge and six associate judges. 128 These judges hear only the necessary facts of the case that were found in the trial court and then decide what law should be applied to those facts. After Clyde was convicted and the prOper commit- ment papers were prepared, he was moved to the Auburn State Prison, where "he was to be restrained until ordered re- 18 tried or executed." There he becomes acquainted with another convict, "Miller Nicholson, a lawyer . . . a re- fined intellectual type,"19 who discusses the appeal and advises him concerning one important point in connection with his own case-- an appeal-~or in the event of any second trial, i.e., --that the admission of Roberta's letters as evidence as they stood, at least be desperately fought on the ground that the emotional force of them was detrimen- tal in the case of any jury anywhere, to a calm un- biased consideration of the material facts presented by them--and that instead Of the letters being ad- mitted as they stood they should be digested--and that only Offered to the jury. "If your lawyers can get the Court Of Appeals to agree to EBe soundness of that you will win your case sure." This is the only point stressed by Dreiser in the aactual appeal, and it is similar to the one raised in the lariefs to the Court of Appeals by the defense attorneys lin.the Gillette case; but Dreiser uses this contention to idllustrate the technicalities involved in the admission fo written evidence. The separation of the emotional con- tents from the factual contents Of Roberta's letters 129 called for the wisdom Of a Solomon. Even Clyde's lawyers did not think of it, and so Dreiser supplies the intellec- tual lawyer to discern these fine points. We learn that after the advice received by Clyde from the intellectual lawyer, he ”at once, after inducing a personal visit on the part Of Jephson, laying this suggestion before him and hearing him say that it was sound and that he and Belknap would assuredly incorporate it in their appeal."21 In this connection, Mr. Jackson says: How the judges can magnify or minimize the inevitable difficulties Of technical procedure is readily illus- trated. After a long and arduous trial, a notorious criminal . had been convicted Of murder. The case was a cause ce- lebre. There was no doubt of the defendant's guilt. But as is invariably done in capital cases, the defen- dant appealed to the highest court of the State. The appeal was argued and the appellate judges retired in consternation. They would have to reverse the judg- ment of conviction, though they were convinced of the defendant's guilt, because the judge who had tried the case had committed undeniable error in refusing to admit in evidence a letter which had been offered by counsel for the convicted defendant. The law was clear; the judge should have received the letter and should have permitted it to be read to the jury; his failure to do so, under a long line of established precedents, was error that required the conviction to be set aside and a new trial was ordered. The appellate judges were about to order a reversal of the judgment of conviction when an appellate judge with common-sense tendencies asked to see the letter. To the amazement Of the judges, it was not available. Due to an oversight, it had not been marked for identifica- tion and included in the record, as is customary in such cases. The skeptical judge insisted on seeing the letter before he would vote for reversal. Others of the judges remonstrated; it was highly irregular; the appeal judges, under the law, were bound by what was 130 in the record; they had no legal right to consider any- thing else; the cases and precedents were clear on the subject. The dissenter stood his ground. Finally, the chief justice sent for the district attorney who had prosecuted the case. He came to the state capital from the distant city where the case had been tried and brought with him the letter that was causing all the difficulty. The letter was Opened and read. It was utterly innocuous; there was nothing in it which, by any stretch Of the imagination, could have caused the jury to have changed its conclusion respecting the de- fendant's guilt. The lawless judge then insisted that the judgment of conviction be affirmed; he argued that there was no point in reversing the judgment on a use- less techgicality and thereby hold up the law to public reproach. Professor Harry Best writes in Crime and Criminal Law about the technicalities connected with evidence in an appeal case. He says: A case is carried to a higher court on appeal. . . . by means of a bill of exceptions (or Objections) taken to the rulings Of the trial court . . . as to the character of the evidence admitted. Objections may be Offered on the ground that the judgment in a given case is con- trary to the weight Of evidence, or is against the law or justice; that new evidence has been discovered; that certain improper evidence was introduced in the trial; that certain prOper evidence was denied; that the evi- dence failed to show some important detail; that the indictment was incorrect or defective in some particu- lar; that there was misdirection of faulty charges to the jury on the part of the court; that the jury was improperly drawn; that there was some misconduct or im— propriety On part of the judge or jury at the trial; or some similar ground. An appeal may be taken from final judgment of conviction; from an order deny- ing a motion for a new trial; from an order made after judgmen§ affecting substantial rights; or some like reason. 3 . But Dreiser was not concerned with any useless tech- Imicality involved in an appeal, but was essentially inter- eSted in all the circumstances surrounding an appeal that are recognized by authorities in the field of administration 131 of justice. He is more concerned with the enormous expense Of the appeal, the sufferings of Clyde's family, the delay, and its psychological effects on Clyde. As to the expense of the appeal, Harry Elmer Barnes and Negley K. Teeters declare that the "item Of stenographic help is large. The record Of a long trial will often cost thousands of dollars. To appeal a case to a higher court, the defense must submit from ten to twenty COpies of the transcript of the trial. This expense is often more than a defendant can afford.”24 Before Clyde's trial was over, his uncle decided to move the business to South Boston where they might decently submerge themselves until the misery and shame of this had in part at least been forgotten. And because Of this further aid to Clyde absolutely refused. And Belknap and Jephson then sitting down together to consider . . . they were by no means per- suaded that either their practical self-interest or their charity permitted or demanded their assisting Clyde without further recompense. In fact, the ex— pense of appealing this case was going to be consid- erable as they saw it. The record was enormous. The briefs would be large and expensive. . . . At the same time, as Jephson pointed out, it was folly to assume that the western Griffiths might not be able to do anything at all. Had they not been identified with religious and charitable work this long while? And was it not possible, the tragedy of Clyde's pres- ent predicament pointed out to them, that they might through appeals of various kinds raise at least suf- ficient money to defray the actual costs of such an appeal.25 ' 132 As to the cost of appeals, Mr. Jackson states: Judicial errors that result in appeals are costly. Appeals are unjustifiably complicated and expensive, because the stenographer's record of what occurred at a trial must be ordered and its cost paid. The record Of a long trial will frequently cost many thou- sands of dollars; for a short trial its cost is invari- ably in the hundreds. Moreover, the stenographer pro- duces only one or two typewritten COpies and the appeal court, for its judges, its clerks and its records re- quires twelve, fifteen or twenty copies. The result is that the litigant who would appeal must have the stenog- grapher's record printed (unless he gets special per- mission from the court for good cause Shown), and these printing bills are sometimes staggering in amount. For not only must the stenographer's record Of the trial testimony be printed, but every document Offered in evidence that bears on the question before the court must be included in "record on appeal"--contracts, photographs, maps, diagrams, the thousand and one papers that lawyers, negessarily or needlessly, sub- mit to court and jury. He tells Of one case that ”involved a record of about 7,000 pages, and cost $10,000 to print. Another case had a record of about 4,000 pages which cost about $6,000. And such 27 He gives us the sta- records are by no means unusual.” tistics Of Thaw's legal fights in the Stanford White kill- ing, which were said to have cost him about $900,000. Items listed are:28 Expenses of first trial, 1907 $200,000 Expenses of second trial, 1908 150,000 Expenses Of first insanity hearing, 1908 65,000 Expenses of second insanity hearing, 1908 50,000 Expenses of third insanity hearing, 1912 75,000 Incidentals 100,000 C. W. Hartridge, attorney of record, who called in many others of counsel (disbursements) 103,000 Paid detectives 50,000 Mr. Jackson declares that the "inordinate cost of 133 appeal frequently means that the losing side is denied the opportunity to appeal since the cost of such proceedings, if taken, may readily consume all Of its substance."29 SO, Clyde's mother was troubled as to the source of any further funds, . . . And an appeal sure to cost not less than two thousand. And Mrs. Griffiths, after an hour in their [Belknap's and Jephson's] presence, in which they made clear to her the basic cost Of an appeal--covering briefs to be prepared, arguments, trips to be made--asserting re- 30 peatedly that she did not quite see how she was to do. She endeavors by addressing public meetings in her son's behalf to raise the money for an appeal. In Clyde's family, most hard hit were his parents. His mother soon discovered there were other factors to be con- sidered--carfare, her own personal expenses in Utica and elsewhere, to say nothing of certain very neces- sary sums to be sent to Denver to her husband, who had little or nothing to go on at present, and who, because of this very great tragedy in the family, had been made ill--so ill indeed that the letters from Frank and Julia were becoming very disturbing. It was possible that he might not get well at all. Some help was necessary there. And in consequence, in addition to paying her own ex- penses here, Mrs. Griffiths was literally compelled to deduct other reducing sums from this, her present and only source of income. It was terrible--consider- ing Clyde's predicament--but nevertheless must she not sustain herself in every way in order to win to vic- tory? She could not reasonably abandon her husband in order to aid Clyde alone. Yet in the face of this--as time went on, the audience growing smaller and smaller until at last they consti— tuted little more than a handful--and barely paying her expenses--although through this process none-the-less she finally managed to put aSide--over and above all her expenses--eleven hundred dollars. Yet, also, just at this time, and in a moment of ex- treme anxiety, Frank and Julia wiring her that if she decided to see Asa again she had better come home at once. He was exceedingly low and not expected to live. 134 Whereupon, played upon by these several difficulties . . . she now hastily conferred with Belknap and Jeph- son, setting forth her extreme difficulties. And these, seeing that eleven hundred dollars Of all she had thus far collected was to be turned over to them, now in a burst3gf humanity, advised her to re- turn to her husband. Harry Elmer Barnes and Negley K. Teeters say that the "practice of safeguarding even the convicted man against shoddy or inefficient 'justice' is admirable, but the cumbersome machinery by which he is protected is ex- pensive, inefficient, absurd, and time'consuming.n32 Dreiser shows us the time element when Belknap and Jephson advise Mrs. Griffiths to return to her sick hus- band because Clyde would do well enough for the present seeing there was an entire year--or at least ten months before it was necessary to file the record and the briefs in the case. In addition another year assuredly must elapse before a decision should be readhed. And no doubt before that time the additional part Of the appeal fee could be raised. Or, if not-—well, then--anyhow (see- ing how worn and distrait she was at this time) she need not worry. Messrs. Belknap and Jephson would see to it that her son's interests were properly protected. They would file an appeal and make an argument--and do whatever else was necessary go insure her son a fair hearing at the proper time.3 135 Then there are the psychological effects of the ap- peal which Dreiser describes in the following manner: No thought in either the planning or the practice of all this of the unnecessary and unfair torture for those who were brought here, not to be promptly exe- cuted, by any means, but rather to be held until the higher courts should have passeg Upon the merits of their cases--an appeal. . . . What followed then was what invariably followed in the wake of every tortured consciousness. From what it dreads or hates, yet knows or feels to be unescapable, it takes refuge in that which may be hoped for--or at least imagined. But what was to be hOped for or imagined? Because of this new suggestion Offered by Nicholson, a new trial was all that he had to look forward to, in which case, and assuming himself to be acquited thereafter, he could go far, far away-- to Australia-—or Africa-~or Mexico--or some such place as that, where, under a different name--his Old con- nections and ambitions relating to that superior so- cial life that had so recently intrigued him, laid aside, he might recover himself in some small way. But directly in the path of that hopeful imagining, of course, stood the death's head figure of a refusal on the part of the Court Of Appeals to grant him a new trial. Why not—-after that grand jury at Bridge— burg?3S Throughout this discussion there have been noted the issues raised in the briefs submitted to the Court of Appeals in the Gillette case in their relation to points made by Dreiser in his novel. To summarize these issues and give the citations to uphold the contentions: l. The defense attorneys in the Gillette case (held that the trial was not organized according to the COnstitution of the state, and that the court had no 136 jurisdiction or power to try the defendant or pronounce the 36 judgment Of death against him. The prosecutor's briefs stated that the power Of the Governor to call an extraordi- nary term of the court is not questionable.37 2. It was error to submit the two specimen of hair to the jury in order to let them speculate as to their identity.38 The prosecutor declared that no error was com- mitted in exhibiting to the jury the tangled hair collected from the braces of the boat, together with some hair cut from the dead woman's head.39 3. The defense attorneys claimed that the methods by which this trial was conducted by the prosecution were oppressive and unfiar to the defendant.40 There was no statement made in the briefs concerning this point, but the court explained that the fact that the district attorney, in summing up the case after a long and bitterly contested trial, made some statements not fully justified by the evi- dence was held not to be sufficient ground for reversal. The court declared that where the district attorney, upon objection, immediately withdrew, and the trial judge ex- plicitly and clearly instructed the jury to disregard any unwarranted statements, and where it did not appear that such statements produced any substantial or lasting effect ‘Upon the jury outside Of and in addition to that caused by - the evidence itself, there was no ground for reversing the decision Of the trial court.“ 137 4. The defense attorneys claimed it was error to permit the witness Marjorie Carey to express an opinion that a certain sound she had heard was uttered by a woman.42 The prosecutor stated that the description by the witness of the cry heard by her about six o'clock P.M. of July 11 was competent.43 The only point the court went into at great length in the Gillette case was the one connected with the letters. The defense attorneys stated: 5. It was error to receive in evidence and to read to the jury letters Grace Brown had written to the defen- dant.44 The prosecutor cited cases to show that it was not error to receive in evidence the complete correspondence between the dead woman and the defendant during the rela- tionship.45 The Court of Appeals in the Gillette case explained that the letters written by the dead woman to her lover and by the defendant to the dead woman were admitted by the trial court not only under the ruling that the dead woman's letters should not be received as evidence Of the facts therein stated, but were received as evidence under the further and too narrow ruling, and that they were admitted "only for the purpose of showing how the decedent regarded her relations with the defendant.” The court declared that aside from the admitted purpose of showing the relations and the thoughts of the 138 dead woman as to Gillette, the only effect the letters would have been apt to have with the jury, so far as the letters could be controlled by any ruling of the court, would have been to tend to establish a motive for the commission by Gillette of the crime charged against him; and therefore the letters might have been admitted with entire propriety for that very purpose. If the jury considered the letters as affecting that feature of the PeOple's case, it did no more than the court should have directed and authorized them to do. Therefore, the court held that the judgment should not be reversed on the ground that the letters might have more significance in the minds of the jury than that which was authorized by the trial judge.46 The following issue was the only one not raised in An Amegican Tragegy: 6. It was error to produce the uterus Of the de- ceased and the foetus of the unborn child and receive them in evidence.47 NO statement was made by the prosecutor concerning this point. The court declared that the foetus taken from the dead woman's body at the time of the autopsy was produced in court at the trial in order to establish that the dead woman was pregnant. The court explained that this did not constitute error where such exhibit was care- fully covered up and kept from the jury so that it could .not by any possibility have served to inflame their feel- ings to the prejudice of Gillette; and especially where no 139 fact was established by such exhibition that was not, in the end, fully admitted by him.48 The Court Of Appeals in the Gillette case stated that their Opinion was not based on any one particular point raised by the attorneys in their briefs, but it found on examination the evidence that, although circumstantial, yet all taken together and considered as a connected whole, constituted such convincing proof of Gillette's guilt that the court was not able to escape from its force by any justifiable process Of reasoning. The court declared that not only was the verdict of the jury convicting the defen- dant Of the crime Of murder in the first degree not opposed to the weight of evidence and to the proper inferences to be drawn from it, but that such verdict was abundantly justified by the evidence.49 The holding of the Court of Appeals in Clyde's case reads: "We are mindful that this is a case of circumstantial evidence and that the only eyewitness denies that death was the result of crime. But in Obedience to the most exacting requirements Of that manner Of proof, the Counsel for the people, with very unusual thorough— ness and ability has investigated and presented evi- dence Of a great number of circumstances for the pur- pose of truly solving the question of the defendant's guilt or innocence. ”We might think that the proof of some of these facts standing by themselves was subject tO doubt by reason of unsatisfactory or contradictory evidence, and that other occurrences might be so explained or interpreted to be reconcilable with innocence. The defense--and very ably--sought to enforce this view. 140 "But taken all together and considered as a connected whole they make such convincing proof of guilt that we are not able to escape from its force by any justifi- able process of reasoning and we are compelled to say that not only is the verdict not opposed to the weight of the evidence, and to the proper inference to be drawn from it, but that it is abundantly justified thereby. DeSiSion of the lower court unanimously confirmed."5 The conclusion reached by the Court of Appeals in Clyde's case is very similar to one paragraph in the Opin- 51 but Dreiser uses this conclu— ion of the Gillette case, sion as illustrative material. He insists that the deci— sion of the Court of Appeals rested not on the proof of one particular issue, but upon some vague concept of a "connected whole.” For Dreiser, this "connected whole" must be broken up into separate issues and translated into living experiences. These issues have no meaning as dry and lifeless contentions with a string Of citations to up- hold them. They require a "bath of realism." In connection with the issues raised in the briefs of the Gillette case, Dreiser shows us (1) the political favoritism connected with the Governor's calling an extra- ordinary term of the court for Clyde's trial; (2) the shady practices carried on by the district attorney in order to Obtain a victory; (3) all the flattering, emotional, and prejudicial appeals to the jury known to the legal profes- sion; (4) that the truth of a witness's story depends upon -the questions suggested by the lawyers; (5) that letters are used to sway the jury by appealing to their passions 141 for the purpose of raising fine technical points of evi- dence in the appeal. Dreiser does not discuss the issue raised by the defense attorneys in the Gillette case that it was error tO produce the uterus of the deceased and the foetus of the unborn child and receive them in evidence. The term "uterus" and "foetus" could be used in medical books and legal records, but the moral and legal 52 at that time prohibited their use in litera- 53 censorship ture. After the "Comstockian" attack upon The "Genius;” Dreiser was probably not too anxious for a criminal prose- cution based on the Obscenity statute or the so—called Comstock LawS4 passed by Congress on March 3, 1873. In view Of all the obscenity then found in The "Genius,” it was hardly worthwhile for Dreiser to arouse the animosity of the Society for Suppression Of Vice be- cause of the two little words like "uterus” and “foetus" especially since he had so many vital issues to present to his readers. Various suggestions have been made for the improve- 55 Short ment of methods used by the Court of Appeals. yrecords would save time and expense. Very little has been done about this. Only the necessary parts Of the record 142 should be used. More time should be allowed for oral argu- ment. All the judges should decide independently. The one-man method makes the other judges lazy. It was not for nothing that Dreiser wrote the "Court Of Appeals finding (Fulham, J., reviewing the evi- dence as Offered by Belknap and Jephson)--with Kincaid, Briggs, Truman and Dobshuter concurring."56 It should be noted that when a case is decided in a higher court, one of the judges generally gives the rea- soning by which the court has arrived at its decision, expounding the law as applied to the case and detailing the reasons on which the judgment is based. This is known as "Opinion." A "concurring opinion" is an Opinion separate from that which embodies the views and decision Of the majority of the court, prepared and filed by the judge who agrees in the general result of the decision, and which either rein- forces the majority Opinion by the expression of the par— ticular judge's Own view or reasoning, or (more commonly) voice his disapproval of the grounds Of the decision or the arguments on which it was based, though approving the final decision. A ”dissenting Opinion" is a separate Opinion in which a particular judge announces his dissent from the conclusion held by the majority of the court, and expounds his Own views. 143 In the Gillette case, Mr. Justice Hiscock wrote the Opinion of the Court of Appeals. All of the judges 57 concurred without writing concurring Opinions. Similarly, in An American Tragegy_only Judge Fulham reviewed the evi- dence submitted by Belknap and Jephson, and none of the other judges wrote separate concurring or dissenting opin- ions and ”in January, l9--, the Court Of Appeals finding . . . that Clyde was guilty as decided by Cataraqui County jury and sentencing him to die at some time beginning February 28th or six weeks later.”58 And Shakespeare, too, has something to say about sentencing. Angelo: The law hath not been dead, though it hath slept. Those many had not dar'd to do that evil, If [but] the first that did th' edict in fringe Had answer'd for his deed. Now 'tis awake, Takes note of what is done, and, like a prophet, Looks in a glass that shows what future evils, Either [new], or by remissness new conceived, And so in progress to be hatch'd and born, Are now to have no successive degrees, But, [ere] they live, to end. Isabella: Yet show some pity. Angelo: I show it most of all when I show justice, For then I pity those I do not know, Which a dismiss'd Offence would after gall; And do him right that, answering one foul wrong, Lives not to act another. Be satisfied Your brother dies tomorrow. Be content. Isabella: SO you must be the first that gives this sentence, And he that suffers 0, it is excellent To have a giant's strength; but it is tyrannous To use it like a giant. --Shakespeare, Measure for Measure, Act II, Scene 2 144 The power to punish has always carried with it the power to pardon. Under the common law, the king had power to pardon a person who had been convicted of crime. His act of pardoning was one Of grace, fOr which he was ac- countable tO no one. In the American colonies, the par- doning powers were generally vested in the executive, but in some cases in the Assembly or Council. After the Revo- lution, because of the fear of executives, the pardoning power was generally retained by the legislative assembly. A tendency soon appeared to increase the power of the governor in this field, generally as an expression Of the doctrine of separation of powers. Thus, in New York, the statute reads: The governor has power to grant reprieves, commuta- tions and pardons, after conviction of all Offenses, except treason and cases of impeachment, upon such conditions, and with such restrictions and limita- tions, as he may think proper, suggect to the regu- lations provided in this Chapter. And in another section: He must annually communicate to the legislature each case of reprieve, communication or pardon; stating the name of the convict, the crime of which he was convicted, the sentence and its date, agg the date of the commutation, pardon or reprieve. When an appeal fails, a new date is set for the execution. Lewis E. Lawes, former warden of Sing Sing, 145 says in Life and Death in Sing_Sigg: . . . But there is still hope of life by commutation to "natural life" by the governor, the chances being one out of three. . . . In some instances, commuta- tions have been granted only an hour or two before the execution was to take place. Hence, most of the con- demned continue to hOpe for life in face of the denial of their appeal. In the event Of a commutation to natural life, the chances of being eventually relgesed from prison are only about five out Of a hundred. In his Criminology, Donald R. Taft declares that "the possibility Of pardon is indispensable because author- ities, being human, make mistakes and sometimes misuse power. Moreover, when mores and laws change, pardon can bring treatment in line with such changes. It is easy to exaggerate the frequency Of unjust imprisonment. Men are sometimes innocent of particular Offenses, but rarely are guiltless of any crime. Yet prisoners found to be innocent need to be pardoned."62 The law in New York provides for the time of exe- cution. It reads: ”The week so appointed must begin not less than four weeks and not more than eight weeks after the sentence.”63 When Clyde is informed that his conviction has been affirmed, and "that--even though McMillan talked of an ap- peal to the Governor which he-—and some others whom he was sure to be able to influence would make--unless the Governor chose to act within six weeks, as Clyde knew, he would be _ compelled to die."64 Professor Sutherland says that the "pardoning sys- tem has been assailed by many people and many have demanded 146 that it be completely abolished. The arguments most fre- quently advanced for abolishing it are as follows: "It is a device by which criminals who have political influence or other influence escape a penalty. It produces an un- favorable effect on prisoners in that they try to secure a'pardon rather than reform. It makes the court careless in imposing sentences to enable judges to impose,very heavy penalties at a time Of public frenzy and later recommend clemency."65 McMillan consoles Clyde by informing him: "But you see we haven't reached the end Of this yet. There is a new Governor coming into Office in January. He is a very sensible and kindly man, I hear. In fact I know several people who know him--and it is my plan to see him personally--as well as to have some other people whom I knog6write him on the strength of what I will tell them." Professor Sutherland says that becauSe "the Governor does not have reliable information on which to base a deci- sion, he is susceptible to pressure or clamor. Consequently, xnany pardons are granted for reasons that are entirely in— adequate. One governor gave as his reason for pardoning criminals that 'he could deny Carrie [his wife] nothing and she could refuse nothing to anyone else.' Another gov- ernor, when a friend sought the pardon of two criminals,