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Chapter XV.

Defeat of the Commonwealth Club Bills.

Drawn By Committees of the Ablest San Francisco Attorneys Not Under Retainer of Prison-Dodging Captains of Industry - Measures Not Allowed to Reach Senate or Assembly, but Killed in Committees - Grove L. Johnson's Keen Opposition.

The graft prosecution at San Francisco not only brought the fact squarely before the public that large corporations sometimes catch the easiest way to achieve their purposes by bribing public officials, but that it is a deal easier to pass a camel through the eye of a needle than a millionaire offender through the legal cobwebs of technicality to a cell at San Quentin or Folsom[72].

That the technical defense in criminal cases was subject to grave abuses had been generally recognized. But it took the graft cases at San Francisco to fairly rub this unpleasant fact into the law-abiding element. Because for the first time in the practice of criminal law in California, unlimited wealth was available to employ the best legal talent to defend men under indictment.

The defending lawyers took advantage of every technicality. They emphasized the most trivial of them. Gradually it began to dawn upon The People that here were legal refuges, based upon the most absurd of technicalities, the sweeping away of which would in no way injure the substantial rights of a person charged with crime, refuges which were available to the rich man but denied to the poor or moderately well-to-do.

To be sure, any person accused could make his technical defense if he had the means to employ the necessary counsel. But in face of the astonishing performances going on in the courts at San Francisco, it soon became apparent to the thoughtful, that no man, whose fortune was expressed in terms of less than five ciphers could make such a defense.

Thus the unpalatable truth was forced home, that we have in California a technical defense available for the rich man charged with crime, which is in effect denied even those of the so-called middle classes.

With this conviction came demand of reform of the criminal laws to ensure:

(1) A prompt trial of an accused person on the merits of the case.

(2) A prompt judgment in the case of a verdict of guilty.

(3) A prompt hearing of the case in the Court of Appeal.

The machine was, of course, against any such "wicked innovations," as Assemblyman Grove L. Johnson would have called them.

However, at San Francisco, three considerable bodies, the Bar Association, the Commonwealth Club and the Citizens' League of Justice, took the matter up, and for months had the ablest lawyers of the State - at any rate the ablest not retained for the defense of capitalists under indictment - at work wrestling with the problem of simplifying the criminal codes and doing away so far as possible with technical defense, except in such cases as the substantial rights of the defendant might be involved.

A committee consisting of J. C. McKinstry, J. J. Dwyer, Lester H. Jacobs, Oscar Cushing and Warren Olney Jr. was appointed for this purpose by the Citizens' League of Justice. The Commonwealth Club appointed Beverly L. Hodghead, Orrin K. McMurray, Alex. G. Eells, Fairfax H. Wheelan, Sidney V. Smith, Lester H. Jacobs and Joseph Hutchinson. One would go far before finding more representative or more public-spirited bodies of citizens, or more able exponents of the law.

The labors of the several committees resulted in what may in a broad way be regarded as two sets of bills being prepared.

The first, known as the Commonwealth Club bills, were sixty-five in number, and were introduced in the Senate by Campbell, and in the Assembly by Butler. The second set was known as the Bar Association bills. They were introduced in the Senate by Burnett. They were nine in number, and while apparently covering much of the ground of the Commonwealth Club bills, were in no respects so complete as to method or detail. The Bar Association bills pin-pricked an abuse; the Commonwealth Club bills drove the knife in deep.

The sixty-five Commonwealth Club bills were readily divided into three groups, those dealing with Grand Juries and indictments, with trial juries and verdicts, and with appeals to the higher courts.

The general purpose of the measures dealing with Grand Juries was to make those bodies purely accusatory, to make their findings conclusive and not subject to attack. The basis of the proposed amendments and additions to the laws governing Grand Juries was that Grand Juries are primarily required to investigate secret offenses, and should be regarded as purely accusatory bodies. On this theory the Commonwealth Club bills made the indictment of a Grand Jury as binding as the action of a committing magistrate who holds a defendant to answer. Had the Commonwealth Club bills become laws there would have been no more placing of Grand Jurors on trial for having found indictments against persons able to employ crafty criminal lawyers.

But lest the defendant under investigation might be wronged, the Commonwealth Club measures so amended the codes that a Grand Juror in any way biased against the defendant was required to absent himself from the Grand Jury room when the defendant's case was under consideration. Under the proposed laws each Grand Juror was required to take oath "not to participate in the inquiry as to any matter or affecting any person as to which or whom he is biased or could not vote freely either way that the evidence presented would in justice require him to vote."

The Commonwealth Club amendments regarding trial juries dealt with the problem in the same broad spirit. The chief object sought was to avoid the trying of citizens called for jury service[73]. The proposed laws obviated this by leaving it with the Judge to determine the qualifications of the juror, that is to say, the examination of jurors in criminal cases was to have been taken out of the hands of the lawyers and required of the Judge. To compensate the defendant for whatever substantial disadvantage he might suffer, the number of his peremptory challenges was materially increased.

To prevent the setting aside of judgments on trifling technicalities, the proposed amendments provided that the Judge should fix the legality of the jury panel by general order, after which challenges could not apply to the whole panel, although they still held as to individual jurors.

One of the most important of the provisions regarding trial jurors was that the reading of mere newspaper reports of a case should not disqualify a trial juror, unless it were shown that the newspaper article purported to be a true copy of the official testimony.

The fact that under the present law the term "reasonable doubt" is not given legal definition paves the way for frequent miscarriages of justice. The Judge is required to define the term for the jury. The defendant may take exception to the definition, thus paving the way for technical defense in the upper Courts. The Commonwealth Club bills defined "reasonable doubt" to be, "that state of the case which, after the entire comparison and consideration of all the evidence in the cause, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."

Amendments were also proposed to the law governing instructions to juries. Under the present rule, each side presents a long list of instructions for the Judge to give to the jury. If the Judge refuse to give the instructions as requested, objections to his refusal can be taken and made basis for a technical defense[73a]. Under the proposed amendments objection could be made only to such instructions as were given, not to those which were not presented to the jury.

In none of those proposed amendments could the substantial rights of the defendant be said to be encroached upon. But the proposed laws did clear away a mass of technicalities which has kept many a scamp out of jail.

The proposed amendments dealing with appeals in criminal cases aimed at prompt judgment and sentence after conviction, prompt appeal and conclusion of the case.

To this end, the measures provided that upon conviction the defendant must be sentenced forthwith, and if appeals were taken, taken on the judgment. Instead of the cumbersome bill of exceptions, which required weeks and sometimes months to prepare, it was provided that the entire testimony given at the trial, together with the complete minutes of the proceedings, should be sent to the higher tribunal. This would place before the Appellate and Supreme Courts all the facts and testimony which the Lower Court had considered. This feature of the Commonwealth Club bills was also covered by the measures which had been prepared by the Bar Association.

Under the proposed Commonwealth Club amendments, the defendant was not permitted to appeal on questions referring to the trial jury panels or the Grand jury, nor on any error not affecting his substantial rights. Error in an immaterial issue, or of not sufficient importance to affect the substantial rights of the defendant, was not, under the provisions of the Commonwealth Club bills, to be held ground for reversal.

"We believe," said the Committee which drew up the Commonwealth Club bills, "that what we have proposed is in no way revolutionary and deprives the accused person of no substantial right. The amendments proposed are merely designed to make the present law more effective, to relieve the Courts from the necessity of considering trivial matters and to aid in determining more promptly whether a person accused of crime is innocent or guilty."

The bills as introduced in the Assembly were referred to the Assembly Judiciary Committee. In the Senate, the bills went to the Senate Judiciary Committee.

The promoters of the Commonwealth Club bills made the mistake of treating the machine Senators and Assemblymen as men who could be won over with reason and plain statement. Instead of fighting for their bills and demanding their passage, the agents of the club were willing to listen courteously to suggestions from tricksters intent upon the defeat of the measures, who were only playing for time.

Carroll Cook was at Sacramento lobbying against the bills, as were others of that gentleman's view of affairs. Cook actually appeared before the Assembly Judiciary Committee on invitation of one of its members. The courtesy shown him by Grove L. Johnson, chairman of the Committee, was touching or nauseating, as one might view it. Johnson, who was in effect the Committee, took occasion on the day of Cook's appearance to denounce the measures as revolutionary, unconstitutional, vicious.

It is interesting to note that sixty-three of the sixty-five bills as introduced in the Assembly never got beyond Johnson's Committee. They died right there. The two exceptions got out of the Committee in the closing days of the session, one on March 10th, the other on March 20th. They were reported out with the recommendation that they do pass. It was then too late to take any action on them. They died on the Assembly file.

Those who were making a fight for the measures were kept running between the Judiciary Committee of the Assembly and that of the Senate. The Senate Committee, while a majority of its members were against the machine, was led by men who were not at all in sympathy with any plan that was calculated to clear away legal cobwebs. On the pretext that the reforms proposed were covered by the Bar Association bills, or that the measures were duplicated by other bills, or that they were loosely drawn, on any pretext, in fact, the Senate Committee recommended that fifty-two of the sixty-five measures be withdrawn. And they were withdrawn. Of the thirteen remaining, seven stuck in the Committee, died there; five, just before the session closed, were referred back to the Senate with the recommendation that they do not pass. They didn't. Ofthe sixty-five bills, the Senate Committee gave only one favorable recommendation. This lone recipient of Committee approval got back to the Senate on March 5th. It died on the files.

Such was the fate of the measures prepared under the direction of the Commonwealth Club for reform of the methods of indictment, trial and appeal in criminal cases. The Bar Association bills received somewhat better treatment.

Of the nine so-called Bar Association bills, eight passed the Senate; the other died in the Senate Judiciary Committee. Of the eight which got through the Senate, two were defeated in the Assembly, while six passed that body and went to the Governor.

Four of the six Bar Association bills which passed dealt with the repeal of those sections of the code which provide for bills of exceptions in criminal cases and substituted the plan, described in considering the Commonwealth Club bills, of providing the higher Court with complete record of the testimony and the proceedings in the trial Court.

One of the two remaining measures requires sentence to be imposed upon a convicted felon in not less than two nor more than five days after the verdict or plea of guilty, with the right reserved for the Court of extending the time to ten days. The sixth measure defines "a motion in arrest of judgment."

Such was the outcome of the effort made by reputable lawyers and public spirited laymen to eliminate quackery from the practice of the criminal law. But measures calculated to make the practice of the criminal law even more involved and technical than it is were granted more consideration. Many of them passed both houses. How they were passed and what they are will be considered in another chapter.

[72] No sooner had the indictments been returned in the San Francisco cases than the validity of the indicting Grand Jury was attacked. For months that issue occupied the attention of the Courts. One by one the members of the Grand Jury were dragged into Court, and in effect place on trial that technical disqualification if such existed might be established. The greater part of a day was, for example, consumed in thrashing over the question whether one or three motions had been made in nominating the stenographer to the Grand Jury.

Then came appeals to the higher Courts which occupied more months and all but endless labor and expense.

When the attacks on the Grand Jury had been met and disposed of, and the defendants brought to the trial Court, the Prosecution found its labors scarcely begun. Every trial juror was placed on trial. Weeks and even months were required, because of technical objections, to secure a trial jury.

Just before the Legislature convened, Abe Ruef, had, as example, been convicted by a jury in the securing of which the metropolis of the State had been raked as with a fine-tooth comb for talesmen who were not technically disqualified to serve. Thousands were available who would have given the defendant a fair trial, but in all San Francisco very few could be found who were not because of one technical reason or another disqualified.

After conviction came the defendant's appeal, in which the Most trivial reasons were accepted for freeing the defendant whose technical defense had failed him in the lower Courts. Former Mayor Schmitz of San Francisco, after conviction of extortion, and Abe Ruef, after having pleaded guilty to the charge, were given their freedom under circumstances which, to put it mildly, shocked the whole State.

[73] A prominent San Francisco attorney told the writer recently that "the criminal lawyer too often questions a talesman needlessly, not so much to disqualify him, as to get technical error into the record."

[73a] It was on a technicality of this kind that the District Court of Appeals found excuse for reversal of the judgment in the case of Louis Glass, convicted of bribing a member of the San Francisco Board of Supervisors. E. J. Zimmer, the auditor of the Pacific States Telephone Company, of which Glass was an official, refused to testify at Glass' trial. The trial court refused to instruct the jury to disregard the refusal. The Appellate Court held this to be a fatal error.

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