The Room with the Little Door

That the present condition of affairs regarding the administration of justice in New York City is unsatisfactory, will hardly be denied, while such glaring instances of recent incompetency are fresh in the public mind. The many comments and editorials appearing in the best metropolitan newspapers attest that our citizens are conscious of the defects in this department, while the press of other cities throughout the country, and even abroad, reminds us in no uncertain tones how we are regarded by our neighbors. This matter has been recognized of recent years, and attention called to it by investigating committees appointed by our Legislature. But the efforts of these committees have been too widely distributed; they have attempted to investigate too many things in general; and the methods of the District Attorney’s office in particular, although regarded with suspicion by a large majority of those who read and think, and with contempt by those who know, remain—unexposed, despite the fact that they demand immediate attention.

It would seem as if some of the strenuous periodicals with which we are blessed, or otherwise, would find here a fruitful field for sensational effort; but it is precisely to “yellow journalism” that the District Attorney’s office caters; and this branch of the press will be unlikely to turn and bite the hand which feeds it so generously. The better type of journalism will have none of these matters. Those of the legal profession who know—the lawyers practising in criminal law courts—must be careful not to offend so powerful an institution, whose disfavor might mean ruin. And the Bar Association ignores or postpones action. No persons in private life care to take the initiative; and perhaps they are right. It is safest not to interfere. Why then should I undertake the task? Simply because I have suffered unjustly, and have seen others suffer injustice. This is my sole warrant and authority. And in this matter I am very much in earnest.

The present state of affairs is the result of previous conditions, older methods of criminal procedure, which have been developed and expanded until at the present time they have overstepped all decency.

Let us begin at the beginning, for what I am about to describe may happen to any one. When a man is arrested the police proceed as follows: Invariably starting with protestations of sympathy and faith in their prisoner’s innocence, they make offers of help and assistance. The suspect is coaxed into a confession if possible; this is the first degree. Let us further suppose that, on his part, all guilt or knowledge is denied. Then the second degree is “worked.” Here traps will be laid for him—he will be lied to, threatened, frightened, it may be. A lawyer may now appear. He says an agonized mother has retained him to take the case; he guarantees immediate release, and is ready to hear the story. But suppose the “agonized mother” to have been dead many years, naturally his services are declined. It is well. The confidence would have been extended to a policeman. I have heard that a cassock sometimes robes the same individual on a similar errand. This “moral suasion” may be extended over even a day or two, reinforced by such pleasantries as being awakened the moment one drops asleep. Meals are “forgotten,” a drink of water is an impossibility; or liquor is plied if that will open lips. In summer a cheerful fire may burn very near the cell door; the windows are closed, one may perspire a trifle. If the season be winter, no inconvenience is felt by reason of superfluous heat. This is not denied by police officials. I believe Superintendent Byrnes describes all these methods in his book, and tells how a suspect is locked up in a cell with the instruments of the crime he is accused of having committed, or even with the “corpus delicti” itself. Proof of this method is found in that atrociously and hideously managed persecution of a young woman, in which evidence collected in this manner was offered in court—and very properly ruled out by the presiding judge. The case is too recent to be forgotten.

If the prisoner still remains obstinate, the third degree follows in due course. This is not at all the bloody affair which some fancies have painted it. The appearance of those who have just gone through the ordeal indicates nothing unusual—perhaps a little pallor and a slight derangement of the digestive organs; for to be struck in the stomach with a lusty fist enclosed within a boxing glove or beaten across the kidneys with a piece of rubber garden hose leaves no marks, that is, on the outside. No right-minded person who has experienced this will ever complain to the courts; he has no witnesses; “there is more in the closet.” I believe that the “third degree” is very seldom used unless there is almost a moral certainty that the person subjected to it is the proper one to receive this modern torture.

I have never experienced the “third degree.” To me, as to every other good citizen, the term had been a familiar one; but the details never having been made public, my impressions of this ceremony were extremely vague, until a time came when opportunities were frequent to get information regarding this matter at second-hand, decidedly the best way of obtaining it. During the exercise hours in the Tombs prison, I walked with scores of men who have gone through this initiation. For two years I asked questions of those who could not possibly be in collusion to deceive me; and as all their stories agreed, I think I have given a correct description of the three degrees. My little diary, kept all that time, contains my notes and lies before me. There was another place in which I heard about the third degree. On rainy days in the Death-Chamber at Sing Sing prison, when it was too dark to read (and there were many “gloomy” days during those two years), we whispered our experiences to one another. All my companions had been taken to Police Headquarters or to station houses when arrested. I went to the Tombs directly from the Coroner’s Court; across the “Bridge of Sighs,” or, as we call it, “The Suspension of Howls,” and there is no “third degree” practised in the Tombs.

The “third degree” is not a fixed ceremony. It is regulated to suit the individual (I do not mean his taste), and differs with the personality of the grand master. Its object is simply to promote conversation in the hope that something compromising will be said. It is almost always a success; some persons become even garrulous. No excuse or explanation is ever made for the third degree, because its use is vigorously denied by those in authority. But I do make such an excuse; there is much to be said in its favor. Guilt cannot be hunted down by innocence. You must “match cunning with guile,” “you must fight the devil with fire,” and when clubs are trumps—play them.

Take this matter home to yourself; imagine a case in which you are very much interested. Your house has been entered and all your wife’s jewelry stolen; you complain to the police. Of course, having done so, the yellow journals print a full account of the robbery, also more or less flattering fake portraits of yourself and family. Your bath-room, through which the burglar entered, is described in detail; your billiard table, library cuspidor, etc., are photographed and printed life-size in the evening editions. The next day a portrait of the pretty typewriter employed at your office is displayed, whom some lynx-eyed reporter has discovered wearing diamonds. Then everything you never did in your life is disclosed. The “journalists” take possession of your home; an old pair of slippers and a bicycle hat of bygone days are discovered. You stole the jewelry yourself, you know you did! Your hidden sins stand revealed in all their repulsiveness. The finger of sensational journalism has torn the mask of hypocrisy, so long and successfully worn, from your repellant countenance at last. Confess, miserable wretch! Pictures of Judas Iscariot, Captain Kidd, and others of their type appear in the hysterical press. They are all labelled with your name. How you will be roasted! “It is said,” etc., that on dark nights you steal forth to exhume deceased infants from their tombs—and to eat them. Are you ill-advised enough to deny this? Beware! As for the partner of your joys and sorrows, “We have it on undeniable authority,” etc., etc., that she went yachting with that gay club fellow Noah, and has been engaged to each one of his guests in turn. For a penny, “all who run may read” these romances; the only redeeming feature being that those who read do not believe. While this is going on your better half stays in her room and weeps.

The servants leave, and you have to answer the door-bell yourself and be polite(?) to the representatives of the press, who call every few moments for interviews, and who never print a word you say to them. Every tradesman you deal with sends a collector with his bill; your life insurance policies are cancelled.

Then the police captain of the precinct sends for you. You go prepared to be cast into prison. Not so; while the “Journal,” “World,” and “Herald” have been clearing up the mystery of this “inside job,” the police have made an arrest. The prisoner is a well-known burglar. On that night and at the time your house was entered he was seen loitering outside, but just at present he won’t talk. You know that he either robbed you himself, or watched while a confederate did. Do you want your wife’s property? Do you want your character back again? Do you want to get “hunk”? Remember, whoever entered your house came prepared to kill. Perhaps you are a father, and know your conscientious duty towards that eldest son of yours, your own flesh and blood, when he has misbehaved and is sulky. Do you birch him? Do you trounce him, or do you stop to argue? Is it more brutal to inflict corporal punishment upon a man than upon a child?

But you don’t stop now to debate that question. You fling yourself upon your knees, and with tears implore that you be allowed to assist at—“the third degree.” You even offer all the worldly goods you have left for the privilege of plying that garden hose yourself—just once, where it will do the most good. Stop, sir, the law forbids! After a couple of howls the peevishness of your new acquaintance vanishes. He speaks. In a few hours your property is restored, and you are distributing cigars and buying wine for the reporters, in the hope that they will stop lying about you. Your wife condescends to speak to you for the first time in days. If upon his trial the rogue should plead that an illegal confession had been wrung from him, and the police should deny it, would you go to court and corroborate the thief, or would you “lie like a gentleman”?

The question is, Is the “third degree” ever used to compel a confession from an innocent person, or to satisfy a grudge? In either case the abuse, not the use, is to be condemned. Are theories made up without evidence, and some poor victim made to fit the case by means of torture? Was “Frenchy” really innocent and in prison all those years? If not, why was he pardoned a few months ago? Was McAuliffe beaten to death to satisfy a grudge, or for fear of future revelations? It is not my business to find out. I have been informed that at the last election the people selected some one else to do that; and if in theorizing upon these subjects to myself I have come to no conclusion which I care to give here, I am sure I do the “Finest” no injustice, for they have theorized on my case for nearly four years, and have come to no conclusion at all.

The first and second degrees are efforts to outwit a criminal. They would seldom entrap an innocent person. Moreover, the accused need not answer questions, and this should be the course pursued by any one accused of crime, no matter how innocent. The first and second degrees are admitted to exist; the third degree has been described, and, on the whole, I am inclined to approve of it, although unlawful. It has brought many criminals to justice; but I do not defend the fourth degree, which is the name I use, for the lack of a better one, to describe the present state of affairs existing in the office of the public prosecutor. It is a continuation of the others, after the affair reaches the hands of an Assistant District Attorney with an ambition for a record for securing convictions—one looking for a reputation. It is made possible by twin evils of recent birth: yellow journalism and expert testimony. Summed up, it is the use of slander and perjury. In the “fourth degree” the pen is mightier than the night stick—the victim is not pounded with the “locust,” but in the press. Like the fourth dimension of space, if there is one, this state of affairs is invisible; but invisible only because we will not observe.

Permit me to prove the existence of this fourth degree. Time was, when trials in the criminal courts of this county were intended to determine the guilt or the innocence of the accused. All this is changed now; convictions must be obtained by every and any means, when money and reputations are to be made; and the secret methods of convicting innocent men constitute the fourth degree. Immediately upon arrest, or even before, public opinion is aroused against the suspect by inflammatory newspaper statements in which the victim is accused of crime; the presumption of innocence is no longer allowed him. His family is branded by the most contemptible calumnies; and the public is assured in every edition that the authorities have ample proof of the accused’s guilt, that new evidence is constantly pouring in, and that conviction is a certainty. During this trial in the newspapers, fake evidence is published; opinions of previous officials not noted for their over-blameless public lives are printed, experts are turned loose—all of them, of course, on one side—and this is kept up until it is believed that public opinion has been swayed against the victim. Eulogies on the generosity and fairness of the assistant prosecutor in charge are printed editorially (making certain the source from whence these articles emanate, for in our day, the District Attorney’s office has become a news agency for sensational journalism). In the manner affected by all savages, this red fire is burnt, tum-tums are beaten, stink-balls thrown to distract public attention from what is about to happen.

Now comes an all important part of the fourth degree. The public prosecutor declares that he has never known a plainer case of guilt; and deprives the accused of the examination before a magistrate, which the law guarantees him, by “railroading” the case before the Grand Jury, which has been prepared and prejudiced by poisoning the wells of information—the press. These proceedings being secret, evidence favorable to the defendant is suppressed; and lies can be manufactured if needed, for no cross-examination of witnesses is permitted. It is the golden opportunity of any secret foe. Of course an indictment can always be secured under such circumstances, the accused branded and thrown into prison, and need never know one word of the evidence against him. Great is the political and legal capital of the Assistant District Attorney who manages a case in this way, especially if the victim be a big fish. He is called a “Fearless Prosecutor”—an “Able Assistant.”

If the accused has money he can appeal to a higher court and have such an illegal indictment set aside, but the prosecuting attorney will make this process long and expensive. The more money the accused spends now, the less he will have for the necessities of the trial, and his wily opponent knows this well. The Able Assistant is not troubled with matters financial. There are fresh bond issues for him, if necessary. Should the Grand Jury refuse to indict and discharge the accused, the “Fearless One” simply arrests him again, and repeats his efforts before another Grand Jury; all the time assuring the public that the prisoner’s millions will not save him, and that the prosecutor can be trusted to drag him to the bar of justice. He does it, too, sooner or later. That is, it is called the “bar of justice.” During this time the people’s counsel makes his grand stand play. He challenges the accused under enormous headlines—“Are you innocent of the crime?” Then produce the culprit, prove his guilt; and this learned and generous gentleman of legal attainments will release you.

Finally, the accused is cast into prison, and kept there. He must rely on his friends and his lawyers. This is all very well presuming he has them, but hard indeed for the poor fellow who has none. In other words, a man is put in a position where he cannot defend himself. Perhaps the offence is a bailable one, let bail be offered; it is immediately increased. The unfortunate victim cannot get out on bail. The Able Assistant will see to that. In the meantime, any persons who it seems probable are to be witnesses for the defence are subpœnaed and terrorized, if possible, threatened with arrest, insulted, bullied. The yellow newspapers, hungry for sensation, have put the defendant at the mercy of every blackmailer and crank. Their offers of reward invite all men without principle, but with a price, to make fake identifications which will implicate him. Does the prosecution desire any particular person for a witness? Such persons are simply kidnapped and put in the House of Detention.

Time elapses, perhaps years; all is now ready for the trial in court. No! I have forgotten to mention that the county of New York will give a lawyer five hundred dollars to defend a penniless man accused of murder. This is American, this is fair play, it is a helping hand to the under dog. Under, because the fearless prosecutor can spend, and has often spent, hundreds of thousands of dollars to obtain a conviction. His limit is the sky, for it costs his pocket nothing, and when the prosecution makes the issue on expert testimony, the odds on conviction will be two hundred and fifty thousand dollars, which the State may perhaps spend, to this five hundred dollars granted to the defendant.

At the trial, everything the law forbids the police to do, is permitted to the District Attorney. In his opening and closing addresses, he exaggerates shamelessly, and tries to prejudice the jurymen with poison distilled from his own imagination. For three months he will be allowed to pour expert testimony into the jury box. And by the way, if a man is guilty, does it take a matter of a quarter of a million and a quarter of a year to show it? At this trial proper—or rather improper—the caricaturist with drawing-board, the jackal reporters—all the cannibals of Park Row, join in the man hunt. Nothing is sacred. Old age, grief, womanhood, innocence are but so much material for the “story.” The official stenographer’s report is a prosaic thing—away with it. The defendant’s appearance, his conduct—will be indeed a problem for the readers of the penny dreadfuls—for while the “Journal” describes his eyes gleaming in their sockets like an infuriated bull’s, the “World” chronicles the tears which course down his pitiable countenance, and the “Herald” comments on his indifferent and callous demeanor.

But if the State has not proved me guilty? the prisoner may ask. A fallacy, my friend; in these days you must prove your innocence. Of course the accused is convicted. No man, however innocent, can successfully combat the fourth degree. Everything has worked like a charm; but at last, after two years, perhaps, or more, the case reaches the Court of Appeals. Then the master stroke is given, the finesse of which is startling even to old criminal lawyers. That the conviction has been obtained illegally is universally admitted. How will the attorney for the people induce the Court of Appeals to sustain it? Of course, the method will be in the nature of an innovation; for the fourth degree is a new thing, and just as certainly will it be something unjust.

Judging others by himself, the Able Assistant will rely on the use of money. Special counsel is obtained to try to have the illegal conviction sustained in the higher courts. A man of national reputation, the leader of his party, and noted for his political influence and his willingness to use it; who, strangely enough, when high in office appointed some of the judges who are to listen to his argument, may be retained to argue before the Court of Appeals, and beg that it allow the conviction to stand. The honorable special counsel receives a great many thousands of dollars for doing this, and in one case had at last the opportunity of gratifying a little personal grudge of nearly twenty years’ standing. As the epitaph of the Western man read, “He did his damnedest; angels could do no more.”

In one case I have in mind nothing could equal this person’s eloquence when arguing in the higher courts against a new trial for the defendant, unless it was his effort when, a few weeks later, he insisted in a lower court that the defendant must be tried again; thus proving that there are two sides to a case—the inside and outside. Consistency is a jewel, a rare one in the Criminal Court Building, County of New York, for after all this fuss and expenditure, the “good lady” who held the office of District Attorney dared not try the case, but left it to his successor. All this is not an imaginary case; it is my own. I know whereof I speak.

Just consider for a moment another case recently tried. Does it not furnish further proof of the fourth degree?

Two men were involved—one was to be killed in earnest, because he had inherited money; the other was nearly killed with kindness to make the former killing possible. The office had no case against the first man. But they arrested him; nor against the second man, so they arrested him, also. The Assistant District Attorney who prosecuted them had a private practice while holding public office. The charge against these men was, that they had killed a third man, who really died a natural death—an old man who had money. Now began the offers to each prisoner, separately, to inform on the other. This always happens. The result in this case was nil. Both protested their innocence, but the fearless prosecutor found the weaker-natured of the two during these interviews. It was the second man. To him was offered absolute freedom—and what else?—if he would say the other did the murder. He did so. The examination took place. There the other proved the informer’s story a lie; he proved a perfect alibi, which could not be shaken. The legal adviser of the people had employed—perjury. That was the one thing proved. Circumstances were now changed; that story would not work. Remember there were millions at stake, and the Able Assistant had a private practice. So quite a different lie was invented and sworn to by the second man. This was also proved to be a perjury, something for which no prosecutor’s witness is ever prosecuted. Still the first man, the legatee, was held for trial.

But during the long wait of years in the Tombs for him, how did the second man, the Assistant’s tool, fare? I said he was killed with kindness. Of course that is not literal; but the Fearless Prosecutor took good care of him; he was supplied with every comfort—no key was ever turned on him.

In return he subscribed to any and all statements which were required to kill number one. At the trial he made still a different confession from the two previous ones; the third one was that he himself had committed the murder at the instigation of the defendant. A self-confessed murderer, a triple perjurer, he is now scot-free, and an innocent man is in the Death-Chamber.

These are the methods of the fourth degree. The Court of Appeals does not approve of them; one District Attorney has been removed from office by the Governor; but another, he of the ever-ready biography, has handed them down to his sons as an heritage of fame.

The public has no idea of the enormous number of cases which are reversed by the Court of Appeals. Here is a recent one. A young man was sentenced to imprisonment for twenty-five years by a General Session’s judge. But the Appellate Division of the Supreme Court, when reviewing the case, said: “The defendant’s guilt has not been proven. It is not even proven by the evidence that any crime was committed.” This is a fact, and any one who will take the trouble to read the published decisions will find it and many more such instances.

Of the convictions obtained by the District Attorney in the Court of General Sessions, a small proportion of the convicted men have money to appeal to the higher courts, and the percentage of new trials granted is high. How much higher would it be if all cases were appealed? In other words, think of the poor devils who are in State prison unjustly because of their lack of money.

There is a remedy for this state of affairs. We have a legislature, a bar association, and a legal aid society. Among all these could not some arrangement be made for inspectors, to whom a man unjustly convicted could complain and receive assistance? Is there no relief or redress for the sufferers from the fourth degree, when even the third degree is forbidden by law?

If the third degree is brutal, the fourth is hellish. Call the third illegal assault, and you must name the fourth murder illegally designed. By means of the fourth a gentleman can be hounded to death by his enemies. In the third degree a criminal has his ears boxed.