one of the most efficient, effective, and important criminal courts in the civilized world is that established for the trial of misdemeanors in new york county. three judges, each having an equal voice, act as arbiters of both law and fact. originally this bench was filled by three regular police magistrates sitting in rotation, and in many cases the same judge before whom the prisoner had been arraigned in the first instance assisted in determining the final question of his guilt or innocence. but the old court of special sessions acquired a very unsavory reputation for many reasons, the chief among them being its alleged susceptibility to political influence and the looseness with which its funds were handled, and it was finally legislated out of existence in 1895. then a new court was created composed of three justices who, while they had the powers of police magistrates, did not sit in magistrates' courts, but devoted their entire time to the trial of misdemeanors. in the last eight years this court disposed of 65,579 cases, in which 40,894 persons were convicted of crime, either by trial or by plea of guilty. during the year 1907 alone 13,140 cases were disposed of, in which there were 7,960 convictions. the judges in this huge mill of justice rarely make mistakes, and few appeals are ever taken from their decisions.[pg 63] they have become, by virtue of long experience, experts in fact, and the training thus received has qualified several of them for higher office.[22]
as the reader is already aware, a defendant charged in a magistrate's court with the commission of a misdemeanor, say that of petit larceny, is given an immediate hearing, and, if there be reasonable ground to believe him guilty, is held for trial in the special sessions. the information or affidavit, to which the complaining witness has sworn and which contains a more or less succinct account of the facts alleged against the prisoner, is thereupon forwarded to the clerk of the court and in due course the defendant appears, if he be on bail, or is brought from prison, if he be in confinement, to "plead." this information, which is the basis of the proceedings against him and which is practically the only record in the case, is commonly called the "complaint" and corresponds with the indictment found by the grand jury where the defendant is charged with the commission of a felony.
after the prisoner has entered his plea, if he be in prison, he is given a trial almost immediately; if not, his case will probably come up within a week or two. the offences over which these three judges have jurisdiction are as many and as diversified as human ingenuity and the demands of modern civi[pg 64]lized life, qualified by ineffective legislation, have combined to make them.
as might be expected, petty larcenies and assaults furnish together more than thirty per cent of the cases tried. the following table will show the more numerous and important offences for which defendants were held in 1907 for the special sessions and their relative proportions:
petit larceny 2,890
assault, third degree 2,097
maintaining a disorderly house 674
carry concealed pistol 988
cruelty to animals 887
failure to provide for minor 235
possessing obscene prints 124
malicious mischief 111
indecent exposure 84
unlawful entry 93
adultery 11
adulterated milk 252
impure food 80
possessing burglars' implements 35
offence against trade-marks (364 p.c.) 6
violation liquor tax law 2,109
violation motor vehicle law 2,709
violation sanitary code 321
violation labor law 176
violation medical law 48
violation dental law 16
miscellaneous 1,122
———
total 15,068
a spectator may in the course of a morning hear thirty or forty cases actually tried in which the charges cover almost every conceivable kind of sin, wrong, or prohibition. one prisoner is being prosecuted for assaulting a non-union workman, another for maintaining a public nuisance, another for a[pg 65] violation of the liquor tax law, another for practising medicine without a license; a dozen cases will be rapidly disposed of wherein the defendants are charged with shoplifting or "illegal entry" (a charge frequently lodged against a suspected burglar who has made an entry without a "break" and has been caught before he has accomplished his purpose); others still will be tried for carrying concealed weapons, publishing or possessing indecent literature, violating trade-mark laws, breaking speed ordinances, or "malicious mischief"; while, if the student of institutions be patient, he may be rewarded by the exciting spectacle of one who is defending himself against the charge of selling skimmed milk, holding a mock auction, driving a spavined horse, writing a threatening letter, making a fraudulent assignment, pawning borrowed property, using a false weight, opening another's letter, keeping a cow in an unhealthy place, running a cock-fight, misrepresenting the circulation of a newspaper, divulging the contents of a telegram, impersonating a policeman, adulterating food; or, provided he be exceptionally fortunate, may hear the trial of a celebrated actress for her impersonation of "sappho," or of a manager for producing "mrs. warren's profession."
he will see every conceivable type of man, woman, and child, either as defendant or witness, and he may also study every variety of human failing or weakness. no mock defence or prepared lie can deceive these argus-eyed judges; short shrift is made of the guilty, while the "reasonable doubt" is recognized the instant it puts in the most furtive appearance. in fact defendants are often found guilty[pg 66] or acquitted almost before they are aware they are on trial,—and this with no detriment to them or to their cause.
the advocates of the abandonment of the jury system point to this court as their strongest argument. no time is lost in the selection of a jury,—a matter often of hours in the general sessions in cases of no greater importance. there is no opening address on the part of the district attorney or counsel for the defendant,—the written statement or information sworn to by the complainant being entirely sufficient for the court. cross-examination is cut down to its essentials and tests of "credibility" are almost unnecessary. at the conclusion of the case there are no harangues from either side, and the judges almost immediately announce their decision and generally impose sentence on the spot.
of course in nine cases out of ten the evidence is conclusive and the merest glance at the complainant and his or her witnesses is enough to satisfy the onlooker that their claim is honest and the charge substantial. in such cases the trials proceed with lightning-like celerity. the owner of the stolen property is sworn while the defendant and his lawyer are pushing their way through the crowd to the bar.
"mr. blickendecker, are you a grocer, fifty-five years of age, residing at 1000-a-rear, first avenue, and having a store at 666? catharine street?" rapidly articulates the deputy assistant district attorney.
"ya; i vas," answers blickendecker heavily, trying helplessly to catch up.
[pg 67]
"did you, about 4:49 p.m., on tuesday, the 17th of april, observe the defendant near your place of business?"
"ya; i vas—i mean, ya, i did."
"what did you see him do?"
blickendecker wipes his forehead and turns towards the court:
"your honors, gentlemens, i see dot feller dere——"
"the defendant?" interrupts the presiding judge, patiently.
"ya—the defender, i see dot defender mit a leetle vagon on two wheels, py mein store mit anoder feller, unt dey catch up ein crate of eggs unt put him in de vagon unt skip mit him, unt i hollers 'tief!' unt runs, unt de officer——"
"that's enough. any cross-examination? no? call the officer."
the officer is sworn.
"are you a member of the municipal police force of the city and county of new york, attached to the —— precinct, and were you so attached on the 17th of april last, and did you see the defendant on that day near the premises 666? catharine street?"
"shure i seen him. him and another feller. they were makin' off wid old 'delicatessen's' eggs. i catched this young feller——"
"that's enough. any cross-examination? no? leave the stand."
"the people rest," announces the assistant.
"take the stand," directs the lawyer, and his client shambles into the chair.
"did you steal mr. blickendecker's eggs?"
[pg 68]
"no, your honor; cully fagan asked me to go round and help him deliver some eggs. he said he'd gimme a drink. so i went along wid him. all of a sudden out comes this old guy and yells 'thief.' i gets scared and runs. i didn't mean no harm."
"that is our case," says the lawyer.
"no cross-examination," says the assistant.
the judges consult for a moment.
"we find the defendant guilty," announces the presiding judge, dipping his pen into the ink.
"now, young man, have you ever been convicted?"
"no, your honor."
"i advise you not to steal any more eggs. one month in the penitentiary. next case!"
now here is a defendant given a perfectly fair, if not a very full, trial in less than three minutes. of course it is in such a case practically a mere formality. two witnesses who have had no previous acquaintance with the prisoner, whose eyesight is perfect, and who have no motive to swear falsely, identify him as caught in flagrante delicto. the defendant has merely put in his defence "on the chance." his sentence would be about the same in either case. the only disadvantage of so active a court is the fact that the multitude of the defendants render it almost impossible to make any very exhaustive study of the majority of them before sentence. however, as the sentences are all light, the defendant always gets the benefit of the doubt, and the court resolves all doubts in his favor.
sometimes in such a case a criminal conspiracy between the complainant and the officer is disclosed to "do" a mischievous, but not criminal, youth who[pg 69] has fallen into their disfavor. then the witnesses are subjected to such a fire of questions that they wilt and wither in the blast, the defendant is acquitted and the prosecution's witnesses sometimes held for the action of the grand jury on a charge of perjury. many a cause célèbre has originated in the special sessions through the perspicacity of some member of that bench during a petty trial, and defendants there convicted often divulge in their confessions evidence which for a time sets the newspaper world by the ears. this is especially true of cases where some civil officer is accused of taking a bribe to influence his action or to make an appointment. he may be convicted, confess, and for a day or two the papers are full of the unearthing of a far-reaching conspiracy to debauch the city government, barter offices at wholesale, and deliver the city to a coterie of criminals. the next step in the proceeding is the unfortunate discovery that the defendant's confession, since it cannot be corroborated, is entirely worthless. yet, as he has apparently done all he could to atone for his offence, he receives a mitigated sentence, while the uproar occasioned by his sensational disclosures subsides as suddenly as it began.
the bane of the court of special sessions in new york county and very likely the bane of all similar courts, are the so-called "liquor tax cases." as one of the officers of this court recently said: "in this class of cases the court knows that it is being 'flim-flammed,' and, in addition, that it is helpless. we convict in about sixty per cent of the cases, but the judges know perfectly well that a considerable number of those convicted are men who, while not[pg 70] honest enough not to violate the law, are too honest to pay corruption money."
the possibilities for blackmail and the arbitrary and unequal way in which the law is enforced in different parts of the city (one section being allowed to be "wide open" while an adjacent district is "dry") render the judges loath to convict even in "straight" cases. when liquor tax cases are transferred, by order of the judge presiding in part i, for trial in the general sessions, the juries before which they are prosecuted will not convict at all.[23]
in the same way the court looks with grave suspicion on most cases where a defendant is arraigned charged with "assault" on an officer. they expect to see arraigned at the bar (and are usually not disappointed) a small man covered with bandages, while a burly officer without a scratch upon his rosy countenance takes the stand and swears that the defendant assaulted him. the policeman always has plenty of corroboration—the defendant none at all. the chances are that the relative sizes of the two men are such that if the officer coughed the defendant would drop dead. the proper charge in such a case would be, not attempted assault on an officer, but attempted suicide. the truth of the matter probably is that the small man, having done or said something to irritate the officer, has been pounded to a pulp and then ignominiously haled away to the station house, while his terrified companions, knowing full well that if they interfered theirs would be a similar fate, have retired to their homes privately to execrate a state of civilization where humble citizens can be subjected to such persecution.
[pg 71]
practically the special sessions is the final court of disposition for most misdemeanors. except in automobile, theatrical, health, copyright, and trade-mark cases and a few others, a majority of the defendants do not have enough money even to hire a lawyer, to say nothing of taking an appeal. they are disposed of then and there just as in certain cases they are disposed of in the magistrates' courts. for them a sentence once imposed is final.
occasionally the special sessions is the scene of a great trial, as celebrated as those fought out in the "parts" upstairs or in the criminal trial term of the supreme court across the hall. a prominent druggist may have been accused of refilling bottles with spurious or diluted contents. he is being prosecuted by the owners of the trade-mark or label. they retain distinguished counsel to prepare the case for the prosecution. the accused engages equally able lawyers to defend him. the crime is highly technical and the evidence almost entirely a matter of chemical analysis and expert opinion. the battle goes on for weeks or even months. a jury would have become hopelessly confused and the issue successfully obscured, but the three judges are expert jurymen, and in due course, if he be guilty, the defendant is inevitably convicted. such a trial may cost the parties tens of thousands of dollars for expert testimony alone, while the sentence of the defendant will very likely be not more than a two-hundred-and-fifty-dollar fine. even so, the integrity of the trade-mark has been sustained and the swindler stamped as a criminal.
fifty per cent or more of the work of the special sessions is practically amplified police-court busi[pg 72]ness, but it is accomplished with an exactitude and efficiency that makes much of that done in the magistrates' courts appear crude indeed. the lesson of this particular court is that police business can be done speedily, effectively, and justly, provided the right men are selected to do it.
fully seventy-five per cent of the criminals begin with petty infractions of the law. a driver for an iceman may "swipe" his comrade's horse blanket. if he be convicted and sent to the penitentiary he may learn to commit crimes of which he had never dreamed in his driver days, when his highest ambition was to get a ticket to a "chowder" or to a "grand ball." his next appearance may be in the general sessions charged with burglary, and his last in the supreme court under indictment for murder. if, on the other hand, having been found guilty, he be merely reprimanded and paroled under a suspended sentence, he will in all likelihood never appear in court as a defendant again. hence an opportunity, greater even than that of the police justice, for the exercise of a wise and humane discretion.
the multitude of prisoners who are unable to employ counsel have created a bevy of lawyers, abundantly able to look out for the interests of petty offenders, who stand or sit near the bar and are assigned by the court to the various defendants. a whispered fifteen seconds' conversation with their unfortunate client and they are enabled to take charge of the case. long experience has made them almost as expert in estimating human nature as the judges themselves, and they are familiar with every trick of the trade which may raise a "reasonable doubt." the leaders among them have skilful[pg 73] "runners" who haunt the police courts and the corridors of the building, heralding the virtues and successes of their masters, handing cards to prospective clients, and currying business in every conceivable manner. observing a forlorn person, who timidly responds when his case is called, the runner instantly offers him the services of the "biggest" lawyer in the court for a five-, three-, or two-dollar retainer. if the client escapes conviction he is supposed to pay twenty-five dollars more and is dunned until he does. this may seem petty business and small pickings, but when one considers that thirteen thousand odd cases are disposed of each year, one sees that at even the modest fee of ten dollars per case there is over a hundred thousand dollars a year in the special sessions waiting for somebody.
the best of these lawyers earn as much as five thousand dollars per year, including their outside and police-court business. the runner usually gets nearly as much. sometimes there will be a one-hundred-dollar, a two-hundred-and-fifty-dollar, or even a five-hundred-dollar fee. in reality there is more money to be made in the police court than in the special sessions, for it is when the offender has just been caught and is in his first spasm of terror that he is most ready to "give up." police-court fees are sometimes very high.
the most notable figure of this bar was tom cherry, otherwise known as "the attorney-general of the special sessions." when sober he was a most capable, rough-and-ready, catch-as-catch-can, police-court lawyer. his fame extended to every magistrate's court, and his business was so constant that he never sat down, but stood at the bar from[pg 74] the opening of court to its adjournment, defending almost every prisoner who had money to pay a fee, and being assigned to practically all those who had not. his success was his undoing. without any knowledge of law, although he presumably had passed the bar examinations (heaven knows how!), his judgment of character, his ready wit, and his quick tongue made him no unworthy antagonist for a well-trained youngster. but cherry never took an unfair advantage, and his statement as to his client's past, and sometimes as to his innocence, was received without question by the court. it was a boon to a new assistant to gain cherry's confidence; and it was a reproach to many that they did not do so.
cherry finally succumbed to his closest friend and worst enemy—drink. his periodic absences became more and more frequent, and finally the word was sadly whispered through the building that cherry had "passed." his memory is still green and his smiling face will never be forgotten by those who knew him. a rival attorney almost immediately succeeded to his practice and his particular place beside the bar, but the court of special sessions is not the same.
the practices of the shysters are the curse of the lower courts, and their enormities are such that a special cycle in hades should be reserved for their particular retribution. preying upon ignorance and vice, they become hardened to every appeal of human sympathy and often deserve punishment a thousand times more heavy than the miserable wretches whom they make a pretence of defending. they pervert justice and prostitute a sacred calling,[pg 75] extorting from their clients the uttermost farthing by fear and false pretence. to show that this charge is not ill-founded, the reader may take as an example the practice of the shyster in dealing with those unfortunate women who are the common prey of the corrupt plain-clothes man and his conscienceless ally—the police-court lawyer.
let us suppose that a certain section of the town is, as the saying goes, "wide open," and the police are regularly collecting protection money according to the approved method of "the system." the houses which pay up are left undisturbed—and all do pay up. so does the little street walker who plies her trade in the open. some citizen or newspaper makes a complaint that the police are not doing their duty. there is a bare chance that political capital will be made of it and word is sent to the captain of the precinct to "get busy." he sends for the plain-clothes man, and tells him "there are not arrests enough." the officer answers that "everything is quiet." "get busy," says the captain. a scapegoat is necessary and so the officer goes out and, leaving the bawdy-houses untroubled, tracks some miserable creature to her lonely room and there arrests her under the pretence that she is violating the "tenement house law." now the worst that would happen to such an unfortunate would be, having "waived examination" before the magistrate, and pleaded guilty in special sessions, to be fined twenty-five or fifty dollars. the girl usually does not know this. when she is brought in under arrest the keeper "tips off" the runner for some lawyer, who first frightens her into believing that a long term of imprisonment confronts[pg 76] her, and then introduces his master. the latter in turn offers to get her out on bail, meantime determining by an expert cross-examination, at which he is a past master, exactly how much money she has in the world. he then proceeds to acquire this by every means at his command. an actual case will illustrate what follows.
a young girl who had fallen from virtue, but who had never been arrested before, was brought into the jefferson market prison. she had saved five hundred dollars with which she intended the following week to return to her native town in new hampshire and start life anew. the keeper led her to believe that she would be imprisoned in the penitentiary for nearly a year unless she could "beat the case." one of these buzzards learned of her distress and offered to procure bail for her for the sum of fifty dollars. a straw bondsman was produced, and she paid him the money and was liberated. meanwhile the lawyer had learned of the existence of her five hundred dollars. by terrifying her with all sorts of stories as to what would possibly happen to her, he succeeded in inducing her to pay him three hundred as a retainer to appear for her at the hearing in the magistrate's court. he had guaranteed to get her off then and there, but when her case was called he happened to be engaged in reading a newspaper and, looking up from where he was sitting, merely remarked, "waives examination, your honor." the girl had only one hundred and fifty dollars left, and as yet had had no defence, but the shyster now demanded and received one hundred dollars more for representing her in the special sessions. she now had[pg 77] but fifty dollars. immediately after the hearing in the police court the bondsman "surrendered" her and she was locked up in the tombs pending her trial, for she had not money enough to secure another bail bond. here she languished three or four days. when at last her case appeared upon the calendar the shyster did not even take the trouble to come to court himself, but telephoned to another buzzard that she still had fifty dollars, telling him to "take her on." abandoned by her counsel, alone and in prison, she gave up the last cent she had, hoping thus still to escape the dreadful fate predicted for her. when she was called to the bar the second lawyer informed her she had no defence and the best thing she could do was to plead guilty. this she did and was fined twenty-five dollars, but, having now no money, was compelled to serve out her time, a day for each dollar, in the city prison, at the end of which time she was cast penniless upon the streets.
many an originally honest young fellow who, in a sincere attempt to build up a small practice, has haunted the magistrate's court and secured petty police business has been gradually drawn into the vortex of crime until he is even more tainted than those whom he defends. the legal aid society, which, so far as the writer is aware, is the only bona fide charitable organization existing in new york for the purpose of assisting impoverished persons to secure legal counsel, does not undertake any criminal business. no greater service could be rendered to the community than by some society organized to protect helpless defendants who have fallen victims to the vultures who prey upon the[pg 78] prison pens. at the present time the official prosecutor himself is the only person to whom one charged with a criminal offence can turn with any hope of relief from his own lawyer, and if the number of cases were known where the prosecutor has befriended the prosecuted the eyes of jurors and of the public would be opened to the real spirit which animates a fair-minded district attorney.
a favorite trick of shysters if they have an imprisoned client who still refuses to "give up," is to plead "not guilty and not ready" and thus have the case adjourned until they squeeze their victim dry. a defendant who has any money is never permitted to go to trial or even to plead guilty before his money is entirely exhausted.
this is not romance, it is practice. the men who do these things can be seen any day in every police court in new york—heartless, cynical, merciless. lying and deceit are their stock in trade, corruption their daily food. within three months one of these gentry not only compelled an eighteen-year-old girl to give him a fine etruscan ring which she had inherited, and which he pawned for five dollars, but stripped her of a new silk petticoat which he carried away in a newspaper as a fee. this woman served ten days because she could not pay her fine. another woman who had stolen an umbrella gave a shyster her watch. he pawned it and then abandoned her, when she came up for trial. each of these men has a special line of clients which he serves, either because he is supposed to be particularly expert in such cases or because he is regularly retained by the "trust" which they compose. thus the east side pickpockets have one attorney, the[pg 79] "green-goods" men another, the opium sellers a third, the abortionists a fourth, while every "short changing," "thimble rigging," or "flim-flam" case sees the same lawyer for the defence.
it is a fact of considerable significance that most retailers charged with selling adulterated milk are defended by the same lawyers. the large milk companies apparently invite the trade of the small dealer by offering him cheap milk, and a guarantee that if he is caught selling their product they will not only defend him but, if he be found guilty, will pay his fine. who does the adulterating? the company or the retailer? it is almost impossible to say. nevertheless, if lack of evidence prevents proceedings against the companies themselves, the next best thing is to punish the dealers who act as their agents, under the guise of doing an independent business. if prison sentences were invariably inflicted in such cases the dealers would soon find their miserable business as unhealthy as do the consumers who buy from them.
some very disreputable, but, nevertheless, highly amusing tricks are invoked by wily practitioners in the special sessions to secure the release of their clients. one of the most adroit is to secure adjournments from day to day on various pretexts until the patience of the complaining witness is nearly exhausted. when the case is at last about to be called for trial the lawyer tells his runner to go into the corridor outside the court-room and send in word that some one desires to see the complainant. the complainant goes out to see what is wanted. in the meantime the case is moved for trial, and when his name is called he naturally fails to respond. the[pg 80] shyster, in a most aggrieved tone, then informs the court that the defendant "is a hard-working man who has already been dragged down to court four or five times," on each occasion being compelled to lose an entire day's pay; that he is the only support of an invalid wife, an aged mother, six children, and an imbecile brother; that the defence is and always has been ready to proceed with the case; that simply in the interests of justice he requests that the defendant be discharged on his own recognizance or acquitted. in many cases this motion is granted and the complainant hurries back into the court-room just in time to meet the defendant making a triumphal exit.
the tears and laughter of the police courts are the tears and laughter of the sessions. the miserables of hugo are the miserables of to-day. jean valjean, fantine, and cosette haunt the corridors of our courts. as well try to paint the sufferings and experiences of mankind in a single picture as the ten thousand yearly tragedies of the special sessions in a single chapter.
footnotes:
[22] misdemeanors disposed of during the year 1907.
convicted 1,853
acquitted 1,045
plead guilty 6,107
discharged 502
demurrers allowed 1
forfeited 457
actions dismissed 3,175
———
total 13,140
[23] see note, infra, p. 210.
