Is the Law an Ass?

I

‘THE law is a ass,’ declared Mr. Bumble, the beadle. But the beadle, though he may have been intimate with lawyers, was ignorant of law.

Why did Chicago suffer the disgrace of Al Capone until relieved by federal authorities, under federal laws? Why did New York fail in twenty-odd attempts to get rid of Legs Diamond by lawful procedure, to be unburdened at last only by his murder? Why were the killer of gambler Arnold Rothstein and the machine-gunners of Chicago’s St. Valentine’s Day massacre never even brought before the courts? Why was Big Jim Morton convicted of burglary and released, convicted of auto theft and released, convicted of robbery and released, half a dozen times? Why was the Snyder-Gray murder trial called a model of expedition because it lasted only three weeks? And why all those other failures, delays, and corruptions which make our enforcement of criminal law a scandal before the face of the world?

The conventional answer is, ‘ Because the law is an ass.’ Even lawyers fall into that habit of belief.

Some years ago the National Crime Commission, called into being because the inefficiency of law enforcement was so shocking, urged that the criminal law be revised. The American Bar Association expressed a similar desire. Thereafter the American Law Institute, composed of practising lawyers, judges, and a few law teachers, from all parts of the country, created a committee to compile a model code of the law of criminal procedure, in the expectation that state legislatures would adopt it. In 1930 such a code was reported by the committee to the Institute. It was studied section by section in open meeting, and was formally approved as the best law that could be formulated for the purpose. The following year a joint committee of the Bar Association and the Institute advocated that the substantive criminal law be ‘restated’ — not improved, nor altered, but ‘restated,’ whatever that may mean.

Yet not the Crime Commission, nor the Bar Association, nor the Institute, nor the joint committee, ever pointed out any serious faults in the enforcement of the law that could possibly be attributed to defects in the law. No one suggested why either the model code or the ‘restatement’ should be expected materially to improve the conditions which perturb us. Enforcement of the law is intolerably unsatisfactory, to be sure; but if anyone supposed that changing the law, or reaffirming it, or clarifying it, would markedly improve its enforcement, his conclusion came from a habit of thought rather than from an analysis of causes. So pervasive is the habit that the Institute’s code had scarcely been approved and promulgated as a model for adoption by the states when the so-called Wickersham Commission recommended that another code be formulated by Congress, also ‘as a model for the states.’

The truth of the matter is that not one, nor two, nor twenty model codes will eliminate the defects in the law’s enforcement. Delay, corruption, neglect, and failure are not faults in the law, but faults in the law’s administrators — in the policemen, clerks, commissioners, jurors, judges, and lawyers on whom the operation of law necessarily depends.

II

Why was Capone not brought to justice under Illinois law? Only three rational explanations are possible: the police failed to get evidence of crime committed by Capone; they did get evidence, but did not turn it over to the prosecuting officials; they got it and turned it over to the prosecutor’s office, but the prosecutor neglected to use it.

Any one of these explanations is a possibility. I once asked a division head of a police force why action was not taken against certain suspected houses of prostitution. He replied that eight warrants to that end had been asked for that morning and immediate action was planned as soon as the papers arrived. But no raids took place. Some time later I asked him why not. In the greatest disgust, he answered, ‘We got orders from the city hall to tear ’em all up.’

Shortly after the death of Chicago’s florist-gangster, Dion O’Banion, Chicago police officers told me explicitly that before his death they had actually secured evidence enough to convict him of various crimes. Once (so they told me, though I have not verified it in court records) they caught him flagrantem in a robbery, but the jury acquitted him ‘because those regular jurors all knew O’Banion.’ If such was the fact, it would have been easy for the prosecutor to permit it to happen, seemingly without fault of his own — thus saving both himself and O’Banion.

At another time, the police declared, they caught O’Banion in the act of hijacking a truck of whiskey, and turned the evidence over to the prosecutor’s office. Here prosecution might have failed because the whiskey was consigned to a West Side druggist who was distinctly loath to appear as a witness. But, at the time, O’Banion had a pistol and a pocketful of cartridges, and he had neglected the easy formality of obtaining a permit to carry the gun. For this crime he could have been punished without the aid of the druggist. Though many months went by before his death, however, no prosecution was begun. If this happened to O’Banion, as it well may have, it may also have happened to Capone.

Whatever may be the explanation, — whether Capone never committed crime, or the police failed to get the evidence, or the prosecutor neglected to use it, — the fact remains paramount that no change in law could have altered the situation.

The murderer of Rothstein and the perpetrators of the Chicago massacre were never brought before the courts for one or another of those same reasons. If McManus, who was acquitted by a jury, did not kill him, the police presumably have never learned who killed Rothstein. The other persons who were in the room when the shot was fired know; and they could enlighten the police if they would. But no reasonable alteration in law — no change that the public would tolerate for a moment — can make them tell if they choose not to do so. The killer’s pistol was found in the street and eventually came into possession of the police. Science can demonstrate that the bullet which caused death came from that weapon. But neither science nor any conceivable provision of law can resurrect upon it the murderer’s finger prints, smeared and obliterated by the fingers of innocent handlers.

III

If ever defect in the law itself caused failure in the law’s enforcement, it was in the Kahahawai case in Honolulu. Kahahawai was accused of rape of Mrs. Massie. He was tried, but the prosecution failed to convict him. Thereafter Lieutenant Massie and Mrs. Fortescue, Mrs. Massie’s mother, took the law into their own hands and killed Kahahawai. Their excuse was the failure of the law itself to bring him to justice.

Of course it was not literally the law which had failed; it was the jury which refused to convict. But, it was said, the jury could not legally convict because of a provision in the law that the accused could not properly be declared guilty, no matter what the jury might think, on the strength of Mrs. Massie’s story alone, without some corroboration of its truth by other evidence. It is possible, though I doubt it, that this provision of the law was all that kept the jury from convicting Kahahawai. If so, this was indeed a case where enforcement failed because of the content of the law itself. Here, then, let us say, is one instance, though of infrequent occurrence, where a change in the law would make enforcement easier.

But would it make justice more certain? Should the law be changed even here, or is the requirement of corroborative evidence a wise provision, designed to promote rather than impede proper enforcement?

If the California law had contained a similar provision in 1925, it would have saved an innocent man from false conviction and imprisonment in the penitentiary. The story is told in Edwin M. Borchard’s book, Convicting the Innocent. James Preston was accused of assault on a Mrs. Parsons with intent to kill her. Mrs. Parsons had undoubtedly been robbed and shot in the back by someone. Preston was arrested on suspicion, and Mrs. Parsons positively identified him as the robber. She admitted that the robber had worn a mask, but she was sure Preston was the man because she recognized his singularly piercing blue eyes and a peculiarity in his speech — somewhat as Mrs. Massie identified Kahahawai’s companion Ahakuelo by his gold tooth. Preston, like Kahahawai, had a bad reputation. He had been dishonorably discharged from the navy, and had been convicted of vagrancy.

On the strength of Mrs. Parsons’s testimony, without such corroboration as the law required in the Kahahawai case, the jury convicted Preston. Months later, after he had been sentenced to the penitentiary for life and had begun his sentence, it came to light that he was innocent beyond the possibility of a doubt. Another man confessed to the crime, and his confession was verified by the discovery that finger prints left by the robber were identical with his. Preston was eventually freed. But a serious miscarriage of justice had occurred because the law did not contain just the provision for which it was criticized in the Kahahawai case.

Such provisions may indeed make it difficult, in some cases, to convict a guilty man. For lack of corroborative evidence, even a robber or a rapist may go unpunished. It is remotely possible that Kahahawai escaped conviction for that reason. Nevertheless, it cannot be said without vigorous dispute that, in the interests of efficiency, the law ought to be changed even here. And if the law does not require change here, it cannot be made materially more efficient by change anywhere.

Legs Diamond evaded conviction twenty-eight times. Each time he was arrested, he ' beat the rap ’ in one way or another. Perhaps the police dropped charges against him because they really had no proof of his guilt; possibly they were moved by political coercion. In cases that got so far as the preliminary hearing, it may be that the evidence produced was insufficient, or that the examining magistrate pretended to think it insufficient. The last time, when the case was carried to a trial, Diamond escaped because the jury believed his witnesses, who swore to an alibi.

Yet on not one of the twenty-eight occasions when he ran afoul of the police could a change in the law have brought about a conviction. If there was, in truth, not enough evidence against him, no law could create evidence. If policeman or magistrate concealed evidence, or let him go when there was enough evidence to warrant trial, the law as already written makes each one liable to punishment. It can do no more. If, as many people believe, Diamond’s witnesses perjured themselves at his last trial, the existing law makes perjury drastically punishable. Ex-Judge McGannon of Cleveland escaped punishment for murder by means of perjury, but Ohio officials sent him to the penitentiary because of that perjury. Under the New York law, Diamond, or his witnesses, or his lawyers, if they were guilty, could have been punished for perjury. No change in the law was necessary for that.

Livecchi and Pizzino were not convicted of the murder of Jerry Buckley, despite strong evidence of guilt, because a Detroit jury exonerated them. If those jurymen were less competent to evaluate testimony and stick to real issues than they should have been, it was no fault in the law. The statutes call for respectable men of average education and intelligence; if those jurymen failed to measure up to these requirements, it was because the jury commissioners neglected to follow the law. If, on the other hand, the evidence was unfairly and deliberately confused with emotional factors and side issues, the trial judge had power, under the law as written, to prevent the confusion.

Jim Morton was released from jail to commit repeated crimes, not because the law permitting parole under proper circumstances is unwise, but because the parole commissioners were.

IV

Thus one could continue indefinitely, were it necessary, pointing out that in almost every instance of failure to punish guilt the fault has been, not in the law, but in the law’s administrators.

Even the irritating incidentals of enforcement procedure, which make enforcement seem worse than it is, cannot be corrected by legislation. No law requires or authorizes unmannerliness in the police. Police brutality is emphatically forbidden in every state; the third degree is already unlawful and punishable. The shocking delays before trial and during it, the discomforts and financial loss occasioned by jury service, are not approved by the law, although it has discovered no sanction for effectively prohibiting them. It allows to every defendant time enough for proper preparation, the right to investigate the impartiality or bias of prospective jurors, the privilege of testing the truth of evidence by cross-examination. It could not conceivably limit narrowly and precisely the time necessary or permissible for these ends. Prevention of abuse must be left to the sound discretion of the judiciary.

In the Snyder-Gray trial, the whole of the first five days was consumed in the examination and selection of prospective jurors. Four hundred persons were compelled to leave their businesses and come into court for interrogation; one 63-year-old man lost his job as a result, the others lost thousands of dollars in time. Three hundred and ninety were rigorously questioned before a satisfactory twelve could be picked.

At the end of the first day, fifty had been considered and not one chosen. By noon of the second day, one was approved. At the end of three days, only four were in the box. Two hundred and forty-four veniremen had been questioned at great length as to what they had read about the case, whether they knew what the papers were predicting about themselves, whether they had ‘open minds,’ their acquaintances, clubs, experience in other criminal cases, their ideas on sex and punishment, et cetera ad libitum. They had been lectured by the lawyers and the judge upon the nature of ‘scruples,’ ‘confessions,’ ‘physical or mental duress.’

Finally, at the end of the fourth day, with but seven men thus far approved, the judge asserted his authority. ‘With all charity to the lawyers,’ he said, ‘the jury must be selected by to-morrow if we have to sit here until the next day.’ Then the remaining five were quickly chosen.

The point is that not one word in the law necessitated that five-day proceeding. If fairness required it, the law permitted it. But to the extent that it was mere unprofitable delay and extravagance, the law did not even authorize it.

Law cannot say, in precise terms, how many veniremen may be examined in picking a jury, how many questions, or what questions, may be asked of each, how much time may be expended. Such rules would be excessive in one case and insufficient in another. The most that law can conceivably do is to permit so much latitude as is necessary, and no more, for the selection of fair and impartial jurors, and leave it to an intelligent judiciary to see that the privilege is not abused. And that is precisely what the law now does.

Again, the law cannot put an end to those inexcusable delays which sometimes precede the commencement of trial proceedings. In some districts the time interval between arrest and trial runs, not simply into weeks, but into months. The consequence is fiasco, failure, and improper bargaining between the state and the accused. But no wording of law can prevent it. The defense is entitled to enough time in which to prepare for trial. If prosecutor and judge permit more than that, what can law, as law, do to expedite matters ?

It may declare that if more than a maximum period is allowed to elapse the accused shall be freed — which is precisely the end toward which the lawyer for the defense is striving. Without a reversal of our whole theory of justice, it cannot say that an accused person who does not get himself brought to trial within a certain time shall be deemed guilty. It must necessarily leave the problem of proper expedition to the good faith and competence of prosecuting attorney, judge, and clerk of court.

V

To assert that the evils and failures of enforcement cannot be remedied by remaking the law is one thing. To say how they can be corrected is quite another. There is no simple cure. In subsequent articles I shall discuss this question at length. Suffice it to suggest here that the end will eventually be attained only through developing, sometimes by indirection, the character of the law’s agents. The efficiency of the police will be improved by better pay and longer tenure of office. Prosecuting attorneys may be taken out of politics. More important than all else, the judiciary will have to be developed in strength and independence.

But, whatever the means evolved, one thing can be dogmatically asserted now. Able men can make deficient law effective; but the best law cannot make incompetent men efficient. And the enforcement of law will never be greatly improved until the public comes to think of enforcement as a matter of men, rather than as a matter of rules.

(Next month, ‘The Criminal Law in Action,’ in which Professor Waite will deal specifically with the shortcomings of lawyers)