CHAPTER XII
CHANGING THE GRAND JURY INTO A BUREAU OF CRIMINAL EXPERTS
There has been a growing feeling on the part of judges, lawyers and others who are directly concerned in the practice of law in our criminal Courts, not only in this county, but in many parts of the land, that the grand jury system has become so antiquated and ineffective in its practical workings, that it should be abolished and a more modern system put in its place.
In this city at various times during the past few years several of our General Sessions judges, notably Judges Foster, Rosalsky and others, when charging grand juries at the opening of terms, have warned that body against finding indictments against individuals unless they are grounded on legal evidence. Such labors simply put the county to a needless expense and the unfortunate defendants to much inconvenience. And even the past year almost every Presiding Judge of General Sessions when charging the grand jury at the beginning of the term has taken pains to inform the body that under no circumstances must they find indictments against persons charged with crime except on legal evidence. Judge Warren W. Foster, one of the best and fairest of our criminal judges, is especially outspoken against this habit of finding indictments against persons charged with crime on illegal evidence. On a recent occasion Judge Foster took occasion to thank the grand jury for the caution they exercised during the month in refusing to indict persons except on sufficient grounds.
In charging another Grand Jury the Judge said in part:
“A friend of mine who has served frequently on the Grand Jury, and who is a prominent business man in this city, said to me: ‘The more I see of grand juries the more I think it is an antiquated humbug. It is but clay in the hands of the District Attorney to indict whomsoever he wants to and to dismiss any charge he wants to dismiss.’”
“A great many people believe that the Grand Jury is a panacea for all the ills of our body politic. If the Police Department is short of men go to the Grand Jury. If we want a new Court House go to the Grand Jury and if we can’t compel them to build one file a presentment on the subject. The Grand Jury’s duty is clearly defined, and you are not to find indictments except on evidence properly presented to you.”
All this shows that there is considerable feeling abroad against the Grand Jury system and some of our best thinkers believe it should be abolished and something more modern put in its place.
More than once I have sat in Part I, General Sessions, and have watched the Grand Jury file into court, and hand to the Judge on an average from ten to thirty indictments, which was the work of a morning sitting, consisting of about two hours.
Sometimes the morning has been spent in finding only five indictments, but as a rule the work is rushed and only a few minutes given to each case. There is no law as to how much time the Grand Jury shall spend on each case. While I have been amazed at the rapidity of their work, I have been more astonished at the superficial character of the work. It will be readily seen that the Grand Jury has not the time in two hours to examine even five complaints and do justice to each defendant, much less thirty, especially when we remember that these indictments are to brand with crime certain ones for life.
We have no complaint against the Grand Jury. They are usually an intelligent and upright body of men. But when they are in consultation with the District Attorney they simply do what he tells them, without knowing whether their acts are just or not.
That this reform of the Code of Criminal Procedure may be productive of much good I would recommend,
1. The abolition of the Grand Jury as an antiquated system.
I admit that the suggestion is somewhat radical, but for that matter all reforms are radical that overthrow old systems, and are as a rule bitterly opposed by conservative people.
The body known as the Grand Jury has come down to us through many generations. But it may be well to know that the Grand Jury system is not an absolute necessity. At the present moment it is nothing less than the appendix vermiformus of the District Attorney’s office. And as it needs heroic treatment, it should be abolished without delay. The remedy is excision.
In some countries, for example, like Scotland, there is no Grand Jury. The work of preparing indictments against lawbreakers is done by a paid official called the Procurator-Fiscal. He and his assistants make a thorough investigation of every person against whom criminal charges are laid, and if found that there is just cause for such action the accused is then proceeded against in the criminal courts. If not, that is the end of it and the county is spared the expense of further litigation.
In various States, grand juries are usually made up of rich men—owners of real estate and persons of large means and business interests. Whatever else the Grand Jury is, it certainly is not a representative body. The poor man, no matter how good or intelligent he may be, is not allowed to sit with them, nor has he any say in their deliberations. They are composed of active or retired but wealthy business men, and apparently have no real sympathy with the common people. Some Grand Juries were ready to indict labor leaders, no doubt at the request of the District Attorney, but when the case against the ice grafters came up, Judge Rosalsky had to call special attention before anything was done. But this should not be. Independent of the action of the District Attorney, they might have indicted many of the rich thieves that stole millions from the street railroads of New York, and without the aid of the District Attorney they might have indicted several rich Insurance grafters and took pains to see that they were sent to jail for stealing the people’s money. Such action would have commended the Grand Jury to the people. During the McClellan administration some of his own probers have shown that many Tammany office holders have stolen thousands, if not millions of dollars from the city. But neither Mr. McClellan nor Mr. Jerome have taken sweet counsel together to send the grafters to jail. The Grand Jury could have made an original investigation without the aid of the District Attorney and indicted them one and all for grand larceny. It would have looked better if Mr. Jerome had refused to allow any of his assistants to be made Magistrates by the Mayor. In all this the people have wondered why the Public Prosecutor did not send the grafters to jail.
That in the interest of justice the Grand Jury should be abolished and the work it does at present given to a Board of Criminal Experts with enlarged powers. I also affirm that the Grand Jury is no more necessary to the administration of the criminal law in our day than the feudal barons of ten centuries ago or that a canal boat should take the place of our Hudson River steamboats.
At the present moment the District Attorney stands at the door of the Grand Jury room. He holds the key and practically controls it. The Grand Jury spends about two hours a day attending to whatever public business the District Attorney lays before them.
In some states any one suspected of a crime may go before the Grand Jury and present his side of the case. In this state it is not the practice. In a large number of cases men have been indicted without their knowledge, and were compelled to fight for their rights in the Courts, so as to be free from the stain that rested on them. In New York County if the District Attorney sees fit he may permit a single Policeman or other person, to go before the Grand Jury and give a one-sided opinion as to the guilt of some person charged with crime, although he may not possess one particle of legal evidence. If the Grand Jury were abolished, a Board of criminal experts could make a thorough investigation of all charges brought against people, and in all likelihood would give them an opportunity to be heard in their own behalf before they were branded as felons. And this is only right.
Only a few years ago the editor of a small monthly paper in this city was promptly indicted by the Grand Jury for libel for exposing the rascality of Insurance grafters, a work which Governor Hughes has since done legally before the Assembly Investigating Committee. At the time we mention when the insurance grafters were cut to the heart by the trenchant articles that exposed their conduct to public scorn, they went before the Grand Jury and charged this Insurance man with libel. They were permitted to tell a one-sided story to the Grand Jury, so as to silence this critic. Of course he was not allowed to make any reply till after he was brought into Court and branded as a felon. The indictment was afterwards quashed and he received some damages.
And this is but a fair sample of how hundreds of men have been ruined by such unjust methods. In this case the Grand Jury simply did what they were told to do by the District Attorney, he having been wrongly informed by the insurance grafters.
Board of Criminal Experts
Under a paid Board of Criminal Experts, sitting daily from 10 a. m. till 5 p. m., and who are there to investigate, sift and go to the bottom of things generally, the rich and the poor would have a better chance of receiving justice meted out to them.
A very common opinion, which is gaining ground every day, and which is in some respects true, is that big criminals go unpunished, while others who are lawfully convicted of crime command such influence with the courts or high political powers that they are able to obtain their freedom by parole or pardon or get off with a very light sentence.
Others, after being lawfully convicted, are able to cheat the prison, provided they have money to fight their case in the higher courts and thus obtain a new trial which in the end means an acquittal. All this tends to bring contempt on our courts and occasionally invites the people to take the law into their own hands. We have too many indictments to-day and too few convictions. Millions of dollars of the people’s money are often wasted on cases where there is no chance of conviction. The courts are cumbered with hundreds of cases of men and women that should never have been indicted.
A study of the statistics of convictions in proportion to the number of arrests and of convictions in proportion to defective indictments which have to be set aside, and, finally, the proportion of the convicted that finally go to prison, would prove most interesting.
When Mr. Jerome became District Attorney of New York County on the first of January, 1902, there were 640 untried indictments awaiting action at his hands. During his first four years in office he laid before the Grand Jury 20,228 complaints, but they granted only 15,937 indictments. As a result 4,291 complaints were thrown out of Court without any trial. Then of the 15,937 cases that went to trial, 6,150 were acquitted for lack of evidence and other technical reasons, making a grand total of 10,641 cases that were nullified by the Courts for want of legal evidence to convict.
Of the 9,787 so-called convictions, only about a third were convicted after a trial, the other defendants accepted pleas to lower offences, and given that alternative simply because the District Attorney feared that if they went to trial he would be unable to convict them.
In the Report of the Chief Clerk of the District Attorney’s Office, which is brought down to the close of 1908, there is no mention of the number of indictments secured by the Grand Jury last year, but it must have been three times the number of the convictions, which was 7,877 and then we must remember that by far the larger number of convictions were secured by giving the prisoner a plea to a lesser offence. As a rule when the Public Prosecutor permits a man to take a lower plea it shows that the case against him is poor.
There is no way to ascertain the number of innocent persons indicted, but if my judgment is correct the total is not small. How could it be otherwise, when the Grand Jury goes through its business in such a hurry. It should be observed also that the Grand Jurors themselves are not competent authorities in criminal law, and when efficiency in the work of prosecution is measured rather by the total number of persons indicted than by the percentage of those sent to prison, the weakness of the system becomes apparent.
The fault does not lie with the Grand Jury or with the District Attorney; it is with the system. The Grand Jury simply does as did other grand juries and the District Attorney does as did his predecessors.
To show that the Grand Jury as now constituted is unqualified to find indictments in a large number of crimes, I need only mention three cases which must have cost the County of New York in the neighborhood of millions of dollars, which if they had come originally before a Board of Criminal Experts, certainly never would have gone to trial on the weak indictments that sent all of the three defendants to the Death House.
The first was that of Maria Barberi, who was convicted of the murder of her sweetheart, Dominico Catalonica, July, 1895.
Catalonica had greatly wronged this woman, and then refused to marry her. While suffering under great mental excitement, after she found herself ruined and disgraced, and forever cast aside, she killed him. Although insane when she committed the deed, she nevertheless was tried and convicted and sentenced to the Electric Chair, but the Court of Appeals gave her a new trial. When all the facts came out at the second trial, she was justly acquitted.
The second case was that of Roland B. Molineux. He was indicted for the murder of Mrs. Adams in 1899. A board of trained experts, having two lawyers and physicians never would have convicted him, as there was no legal evidence to convict him of such a crime. He was convicted mainly on the evidence of paid handwriting experts. Doubtless, a hundred other persons might have been indicted for the same offense. At the second trial he was acquitted.
The third case was that of Albert T. Patrick, who was jointly indicted with Jones for the murder of William M. Rice. This is said to have been one of the strangest criminal cases that ever was tried in a Court of Justice. Nothing was done until Jones turned State’s evidence; then he said that he killed Millionaire Rice at the suggestion of Patrick, with chloroform. Patrick was convicted of murder in the first degree, and Jones allowed to go scot free. Since then, nine hundred reputable physicians have come forward and said in a petition to Governor Higgins for a pardon that Rice could not have been killed with chloroform. After being four years in the Death House, the Governor commuted Patrick’s sentence to life imprisonment.
If Patrick’s case had been carefully examined by a Board of Criminal Experts, he never would have been indicted, and the county would have been saved a vast amount of money, and needless trouble.
My plan is that a Board of Criminal Experts be organized and assume all the present powers of the Grand Jury, and in addition, classify all criminals; this board to consist of five persons—two experienced lawyers, two physicians or alienists and one business man. These five men should pass upon criminal matters, and when they find an indictment, give the proper classification to the accused.
How I Would Classify Criminals
As far as we know, there is no systematic classification of criminals in any State. For the sake of facilitating the work of the courts and saving much time, we would recommend the following classification, which is entirely original, never having seen anything like it before:
It is under four general heads, viz.:
(1) The insane, (2) the mental and industrial illiterate, (3) the born criminal, and (4) the victim of circumstances. I have not used the word dependent in this classification, as it is too indefinite. An insane person or a pauper or a cripple may be dependent according to some classifiers. I prefer to use my own division under the four heads into which all criminals may readily be placed.
If this Board of Experts finds that the accused is or was really insane or mentally unbalanced when the crime was committed, it should recommend to the Court without delay, so as to save time and expense, that the person be sent to an asylum or sanitarium for treatment, and kept there until entirely cured.
In case the prisoner recovers his sanity, he should be returned and re-examined by the Board. They have all the records before them, and all the facts in his case, and after considering them carefully, could recommend his discharge, or, if they think best, put him on trial.
Second: If the Board finds that the wrongdoer belongs to the second class; that he is illiterate and has no trade, or that he is a lazy and good for nothing idler, preying upon his fellow men for a living, or that he is tainted with some physical malady, or is suffering from tubercular trouble, epilepsy, dipsomania, or indeed, any progressive disorder, then the Board can recommend to the Court that such a one is a fit subject for Elmira Reformatory, or some other institution of a similar character, where he will receive mental, moral and industrial training, besides medical treatment, and be discharged only when cured of his delusions, and fit afterward to live as an honest and law-abiding citizen. There are hundreds of industrial and mental illiterates that pass through our courts every year—young men who never learned a trade, and can hardly write their own names. The only way to save them from criminal lives is to educate them, and turn them out of prison when cured. It is a waste of time and money to send such persons to State prison or penitentiary, as more than 50 per cent. return again, after a brief season of liberty, confirmed criminals. Many of our prisons receive yearly as high as 82 per cent. of first offenders who have no trade.
Third: It is a well known fact that more than half our criminal population are recidivists or backsliders in crime. A great wrong is committed on the community when we send a criminal away for a definite period, and afterward turn him loose upon the community. If the offender is known as a rounder, or habitual criminal, by all means send him to a prison colony and keep him there for the remainder of his life, or till cured. Our criminal population grows yearly, and we are compelled to build new prisons and reformatories, simply because our penalogical ideas are impracticable, if not archaic. Not only are we making no progress, but some kinds of crime are alarmingly on the increase.
I do not regard the habitual criminal as beyond the hope of reformation. I believe there is a tender chord in his heart that can be touched, if we go about it in the right way.
But it is an outrage to turn such a man out of prison or penitentiary, after a limited term of confinement, without a home to go to, or a place to work. If they know him, they will not receive him, nor give him employment. And the police will arrest him on sight as a suspicious character, and railroad him back to prison. The State should provide employment, and a home for such a person until he gets on his feet again, or keep him in jail.
The fourth and last mentioned in this classification is the criminal of circumstances. This man may have snatched a pocketbook from the hand of a lady, or stolen a loaf of bread when his wife was sick at home, and his children crying for food. Such a person should not be branded as a criminal. He should be paroled on his good behavior. To send such a person to prison is simply to make a criminal of him.
Our State has been in the business of punishing criminals for more than a hundred years, during which time millions of dollars have been wasted. Let us try classification, then endeavor to cure criminals or restrain them till they are fit to associate with the law-abiding people of the Nation. This is real prison reform.
I think that such a Board of Criminal Experts as suggested here would have fewer indictments, but more convictions. And we would need fewer jails and Courts of Justice. We would save the taxpayers millions of dollars yearly, but immeasurably more important than all these, we would come nearer to doing justice to all men, and the rights of the people would be more justly safeguarded than they are to-day.
(Since I first recommended the abolition of the Grand Jury in an article of mine that appeared in the New York Press of March, 1906, and later in Van Norden’s Magazine, to whom I give due credit, other reformers have spoken on the same subject, but have made no mention of the one who first called attention to the matter, which is manifestly unfair.)