The public defender; a necessary factor in the administration of justice

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The

Public Defender

A Necessary Factor iq the Adminis*

tration of Justice

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By

ayer C Goldman

Of tfM N«w York Umt

With a Foreword by

Justice Wesley O. Howard

Of the Appelkte DiTition, N«w York Sapreme GoarC

Third Deptrtmnit

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t;»c miiUlcrlboclkeripcetf, Hew SMft

FOREWORD

MR. GOLDMAN'S book. The Public
Defender, discusses a subject which
^ seriously affects the rights and the
liberties of the common people. The publi-
cation of this book is opportune. It merits
deep study and careful consideration. Mr.
Goldman's arguments are convincing and
tmanswerable. His learned and compre-
hensive treatment of the subject will
stimulate and arouse a favorable public
sentiment.

My experience as a district attorney and on
the bench of the Supreme Court leads me
to concur fully with Mr. Goldman in his
contention that there should be a Public
Defender to look after the rights of the poor.
The creation of such an office would be not
only justice, but economy.

The poor man cast into prison, no matter
how innocent, is helpless and hopeless. He

cannot cry out to justice, for nobody hears his

•••

m

IV

Foraword

cry. He is the prey of the policeman, the
captive of the jailor, the butt of other prison-
ers, the plaything of young lawyers. He is
immured beyond human reach. His pro-
testations of innocence are drowned by the
ribald jeers of hardened criminals. He walks
to the courthouse fettered to brutes and
degenerates. He is browbeaten and threat-
ened by his captors imtil his heart sinks
in despair. As he is arraigned before the
judge, he stares about the courtroom, but
he sees no friend — ^no hope. Every tech-
nicality and delay and defense and avenue
of escape known to the cunning of lawyers
are available to the rich man indicted for
crime. The poor man tmder indictment
is permitted to go through the forms and
appearances of a trial; but such a trial
is only a mockery. He dares not assert
his innocence for fear of a double sen-
tence at the end of a trial — ^a trial which
he knows will be a travesty. Therefore
he pleads guilty and disappears from
human view. And this is the triumph
of civilization — ^a triumph for those who
have money; ignominy for those who have
not.
The provision for a Public Defender should

i

Foreword v

be imbedded in our statutes. No law could
be more economical — none more humane.

W. O. Howard.

Odob^ i6f IQ16,

SuPKBMB Court Chahbbrs

Apfbllatb Division

Tboy, N. Y.

I

\

PREFACE

AS a result of an address which I had the
ZA opportunity of making in New York
several years ago, advocating the
establishment of the ofiBce of Public Defender
to represent indigent accused persons, the
subject was taken up for serious discussion
by numerous representative bodies including
the Criminal Courts Committee of the New
York County Lawyers' Association, the Law
Reform Committee of the Association of the
Bar of the City of New York, a special com-
mittee of the Brookljm Bar Association, and
committees of the Phi Delta Phi Club, Char-
ity Organization Society, Citizens' Union,
Brooklyn Bureau of Charities, and the Bronx
Cotmty Bar Association.

I had the honor of preparing the Public
Defender bills, which were introduced in
both hotises of the New York Legislature in
February, 1915, as well as the proposed amend-
ment submitted in May, i9i5,to the Constitu-
tional Convention of New York, and it was

••

vu

VUl

Prafaoe

my privilege to appear before its Committee
on County, Town, and Village OflScers, in
support of the amendment.

To the best of my ability and employing
all available mea^s of communication with
the public, I have endeavored to spread the
gospel of this idea, and I have been much
gratified by the response. I can see in this
kindling of the public mind, only a growing
realization of the necessity for this essentially
humane office.

Despite the adverse reports of bar associa-
tion committees and the inability thus far to
secure favorable legislation in New York,
and elsewhere, the movement has been gener-
ally accorded such enthusiastic and cordial
approval from all classes of citizens, and the
practical operation of the office is so uniformly
successful in various commimities, as to
justify the belief that the public defender
theory will be universally recognized through-
out this country in the near future.

Because of the great National interest
which is being shown in the public defender
idea and in response to many requests for
information on the subject, I venture to sub-
mit this little workr— the first book on the
subject — ^in the hope that it may help in some

Prafaoe

iz

small d^;ree to point the way to a broader
understanding of what is in many respects,
one of our most urgent and important popular
needs.

M. C. G.

Nbw Tots, October, 1916.

CONTENTS

- VAGB

Foreword by Justice Wesley O.
Howard • iii

Preface vii

I.— The Pubuc Defender Idea . i

II. — ^The Injustice of the "Assigned

Counsel" System . . 15

III. — Pubuc Prosecution and Prose-

CUTORS 24

IV. — ^Analysis of the Public De-
fender • • • • 35

I

V. — ^The Ancient Conception of

Crime 58

VI. — Specific Objections Considered 65

VII. — Other Remedies Inadequate • . 77

Vin.— The March of the Movement 81

Appendix. — ^The Pubuc Defender

Chronology. . . •87

The Public Defender

CHAPTER I

THE PUBLIC DEFENDER IDEA

SINCE the beginning of time, the world
plea has been for justice. Yet, be-
cause of that strange irony which has
run through all the ages, man has apparently
been forced to struggle for this beneficent
right. More especially have the destitute of
every land been deprived of the privilege of
impartial hearing. Now, after this long and
costly denial of human rights, comes a tangi-
ble antidote in the form of a public defense,
which gives every man, regardless of his race,
creed or purse, an actual '' equality before
the law."

Such is the significance of the office of Pub-
fic Defender to represent indigent accused
persons. It means the democracy of justice.

/

The Public Defender

The tremendous impetus given to^^Ais
movement throughout - the Unitedotates
indicates the well-nigh universal demand for
the elevation and improvement of our stand-
ard of procedure in criminal cases. It is
becoming generally recognized that, in the
administration of justice, an impartial search
for the truth must be the paramount con-
sideration.

Although many persons believe that, under
our p<^nt system, persons accused of crime
are already too carefully protected by various
legal presumptions and technicalities, the
prevailing sentiment undoubtedly is, that the
administration of our criminal law is unsatis-
factory, expensive and inadequate. There is
sound basis for this criticism.

If, however, by the establishment of this
office, criminal jurisprudence and the prin-
ciples of htiman justice can be placed upon
a more solid foundation, the suspicion now
Iturking in the public mind, that a discrimina-
tion exists between different classes of accused
persons, will give way to a realization that
the theory of "equality before the law"
means exactly that.

The idea contemplates giving life and
vitality to this much neglected theory and

The Public Defender Idea 3

actually securing to all the people equal
opportunities to protect their legal rights.
It means the "square deal" in the courts.
It is based on these important principles:

1. That it is as much the function of the
state to shield the innocent as to convict the
guilty.

2. That the "presumption of innocence"
requires the state to defend as well as to prose-
cute accused persons.

If the ascertainment of the truth be the
purpose of a judicial investigation, the con-
duct of a criminal trial necessitates the pro-
duction of all the pertinent law and facts;
the accused and accuser should have the same
opportunity and resources to present their
respective contentions; a trial should be an
impartial judicial inquiry, rather than the
waging of an unequal contest between the
people on the one hand, represented by an
able, experienced and powerful prosecutor,
and the individual defendant, dependent
upon such legal aid or skill as he may be. able
to get. The greatest triimiph of the judicial
system wotild be to secure equal justice to
all persons, the rich and the poor, the strong
and the weak, the accuser and the accused.

4 The Public Defender ^

District Attorney Edward Swann of New
York City (formerly a prominent criminal
judge) said recently :

" The modem criminal trial is not an effort on
both sides to arrive at the truth and the merits
of the controversy, but a contest in which the dis-
trict attorney tries to get the facts in evidence
and the defendants try to keep them out by
every means within the rules."

If this be true, is it not essential to improve
the standard of trials so that they may be-
come impartial investigations?

That there is an inherent weakness in the
criminal law and in our method is evidenced
by the constant criticisms wWch are being
leveled against existing conditions. Leading
newspapers and magazines have frequently
commented on it in vigorous editorials.
Distingmshed lawyers, law reformers and
sociologists have described specific abuses,
and the general public has always had the
impression that the poor man accused of
crime is at a terrific disadvantage.

Have we now the most eflSdent system of
establishing the truth? Is the contest be-
tween the people, with all the power, prestige
and resources that such term implies, and the

The Public Defender Idea 5

person charged with crime, an equal one?
Does the state protect the weak as well as
the strong? If these questions be answered
in the negative — ^and they must be — ^the
need for a change is readily apparent.

The unjust conviction and penalization
of innocence is as much to be avoided as the
escape of guilt, and this is nominally recog-
nized by all civilized law. The theory that
"it is better that ten guilty men escape than
one innocent man be punished," is ancient;
all of us pretend to take it seriously; it is an
axiom of the education of law students;
every judge on the bench will unhesitatingly
subscribe to it; yet it remains a fact that
civilization, as a whole, runs to the prosecu-
tion of an accused man or woman with the
enthusiasm of a pack of hounds in full cry
after a fleeing hare. Mere accusation is |
enough to start the hunt. Society as a whole
does not presume the accused innocent; it
presumes him guilty. He, himself, must
make the fight to prove his innocence. No-
body helps the hare. Everybody cheers the
hotmds.

The law recognizes the necessity for counsel,
that right being a constitutional guarantee to

6 The Public Defender

the accused. The suggestion for a public
defender, means the substitution of a sworn
public counsel, possessing integrity, ability,
experience and power, for the incompetent,
uncompensated, or indifferent lawyer who is
often assigned to a helpless and impecunious
prisoner. Assuming, however, that assigned
counsel are often conscientious and skillful,
it still obtains that, without proper facilities,
they cannot successfully combat the power
and resources of the prosecution. Because
of this, important witnesses and expert testi-
mony may not be available. Is it not a
vicious system which permits a denial of
justice because of one's poverty?

The public defends should be an elected
officer; his compensation should be ample;
he must be a competent, high-class type of
lawyer; he should have necessary assistants
and investigators; he should be as powerful
and have the same official standing as the
district attorney; and in certain cases and
under certain conditions he ought to be per-
mitted to go before the grand jury while a
proceeding is pending before that body; as a
sworn representative of the people, his recom-
mendations to that body should be seriously
considered. There may be valid objections

The Public Defender Idea

to this last suggestion. It is made here, less
because of a mature conviction, than in the
hope it may give rise to profitable or perhaps
conclusive discussion. However, it seems
reasonable that if the public defender, by his
presence and standing before the grand jury,
could prevent the finding of indictments
which are not justified by the evidence sub-
mitted, or upon evidence which a petit jury
would not regard as suflScient to convict, his
usefulness in that respect alone would justify
his existence, both ethically and economically.
An indictment is merely a charge that a
crime has been committed. The mere accusa-
tion, however, of having committed a crime
discredits the accused before the public.
The suggestion that it frequently menaces
and often destroys him financially, physically
and mentally, is wholly reasonable. Indict-
ment has frequently resulted in social ostra-
cism. Subsequent acquittal cannot undo the
wrong. Neither do our laws provide any
compensation to those innocently accused of
crime. We might well profit by the example
of the German law which indemnifies those
who are the victims of legal injustice.

Indictments are too easily and too freely
found. Too often they are procured upon

\

8

The Public Defender

illegal or insufficient evidence; much too
often, on account of public clamor, prejudice,
malice, or perjured testimony.

If the public defender could demonstrate
to the satisfaction of a grand jury that it
ought not to find an indictment, or combat
the desire of a district attorney to procure an
unwarranted indictment, his ftmction would
be highly essential to the liberty of the
individual and result in much economy to
the state.

His function would not be to defeat justice
— ^but to promote it. He should co-operate
with the district attorney, whenever not in-
consistent with his duty to his client, and
wherever possible, in order to bring about
an ideal administration of the law. His duty
should be to protect the innocent — ^not to
acquit the guilty. He should see that the
guilty is fairly pimished — ^not over-punished.
His office should be represented in every
phase of the proceedings wherein the district
attorney appears, commencing at the pre-
liminary hearing before the magistrate.

The public defender idea is neither re-
volutionary, novel, nor impracticable. It
is amply justified by historical precedent,
and by the procedure in foreign countries.

The Public Defender Idea 9

It has stood the test of time and experi-
ence.

An official called "Pauperus Procurator"
appears to have existed under the Roman
Papal Government, (Browning's poem, The
Ring and the Book , vol. iii, p. 279).

There was ^ch an official in Spain in the
15 th century.

"In the cortez of Madrigal (1496) and still
more in the celebrated one of Toledo (1480)
many excellent provisions were made for the
equitable administration of justice, as well as
regulating the tribtmals. The judges were to
ascertain every week, either by personal inspec-
tion* or report, the condition of the prisons, the
number of the prisoners, and the nature of the
offenses for which they were confined. They
were required to bring them to a speedy trial
and afford every facility for their defense. An
attorney was provided at public expense, under
the title of advocate for the poor, whose duty it
was to defend the suits of such as are unable to
maintain them at their own costs. . . . Severe
penalties were enacted against v^igaUty in the
judges, a gross evil under the preceding reigns,
as well as against such cotmsel as took exorbitant
fees, or even maintained actions that were mani-
festly unjust. ' ' (Prescott's History of Ferdinand
and IsdbeUa, vol. i., p. 194.}

lo The Public Defender

The Spanish law now provides for the
employment of counsel to represent indigents
in both civil and criminal cases (''Las Leyes
de Enjuidamiento Civil y Penal ") . In every
district, a lawyer is registered who takes
charge of the cases of indigents in ttim.

The criminal code of Hungary provide
spedfically for a public defender in certain
cases, viz:

" An attorney duly listed or the professor of a
law university may be selected as defenders.
(Sec. 55.)

"Without the public defender there cannot be
had a final hearing or trial if the accused has no
separate attorney. (Sec. 412.)

** The presence of the public defender is always
obligatory except when the defendant has a
separate defender. (Sec. 414.)"

In the Argentine Republic, the defense of
accused persons unable to employ counsel is
entrusted to the "Defensores de Pobres y
Ausents'* (defenders of poor and absents).
These counsel are lawyers appointed by the
Supreme Court of Argentina, for life, at a
monthly salary. There are also public de-
fenders for infants and insane persons.

In France, there exists an organization

The Public Defender Idea ii

called " L* Assistance Judiciare," through^
which persons without sufficient means are^
entitled to avail themselves of the protection
of the courts. The bar in that country is
unified into an order, assignments to the
defense of indigent prisoners are made by the
executive head of the order, from the bar in
general, and accepted as obUgatory. This
insures to the defendant dignified and com-
petent counsel.

In Belgium, in accordance with the law of
July 30, 1889, covering judicial assistance
to the poor, an indigent person has the right
to choose a lawyer, who gives his services
gratuitously. He is called a "Pro Deo'*
lawyer. A petition for such free procedure
must be sent to the judge, who has the right
to dismiss the petition or allow the "Pro Deo"
lawyer's appointment, according to what his
investigation as to the prisoner's circum-
stances develops. The procedure has this
advantage, that the prisoner, by selecting his
own attorney, cannot be heard to complain
that he was dependent upon counsel who is
unsatisfactory to him for any reason.

The Constitution of Mexico provides for
the free public defense of its citizens, through
the "Defensores de Officio," the number of

12 The Public Defender *

whom is stipulated in the "Ley Organica
de Ministerio Publico.'* The constitution of
each one of the Mexican states provides also»
within the jurisdiction of the state, for the.
"Defensores de OflBcio/* whose number is
specified in the "Codigo de Procedimientos
Penales" in some jurisdictions, and in the
"Ley Oi^ganica," in others. The same general
principle is followed, although the various
states have different forms and laws.

The Norwegian act of May 22, 1902, con-
cerning "procedure in criminal cases," pre-
scribes that a lawyer must be assigned by
the court for the defense of any person who is
being tried for crime, the expense thereof to
be borne by the state. This method of
compensation insures a more adequate de-
fense than a system of free counsel.

In England, cotmsel assigned to the de-
fense of an accused person is paid by the
government.

Under the criminal system in Denmark, the
court appoints, in each case, a prosecutor and
a defender for the accused person. Both of
these are selected from a staff of public at-
torneys in the particular city or district, who
have been appointed beforehand by the king
to handle public cases.

The Public Defender Idea 13

The German criminal law marks an im-
portant advance over the criminal systems of
other coimtries, in that it recognizes the right
of an innocent person unjustly punished, to
be compensated by the state. The two laws
bearing upon this subject are worthy of note,
viz.:

" Those defendants who have been acquitted
upon a re-trial, may demand damages or com-
pensation from the state if their punishment
pronotmced at the first trial has been put in
operation, in whole or in part.

** Innocent persons who have been detained in
custody before trial and who have been acquitted
in criminal cases, may demand damages from
the state, if the trial has established their
innocence."

We can learn much from foreign juris-
prudence, with respect to securing to accused
persons the right to a fair trial, despite the so-
called "safeguards" of our personal liberties.

This idea is also abundantly justified as
humane, just and economical by the success-
ful operation of the public defender's oflSce
in various American communities. This
will be more fully shown in a subsequent
chapter.

14 The Public Defender

While the present movement Is based
primarily on the necessity for extending
adequate and proper legal assistance to
''indigent" accused persons, it is a mooted
question as to whether or not aJl accused
persons should not be defended by the state.

It is interesting to note, in this connection,
that according to the "Wetboek von Strafvor-
dering" (Code for Administering Penal Law) of
The Netherlands, any person accused of crime
may have cotmsel assigned to him, and that
the privilege is not restricted to indigent
persons. This coimsel is chosen by the presi-
dent of the court among the lawyers in
his district.

There are many sotmd reasons underlying
the theory of "free justice." A more pro-
gressive civilization may determine the ques-
tion in time. The immediate problem is to
guard against injustice to those unable to
protect themselves.

CHAPTER II

THE INJUSTICE OF THE " ASSIGNED COUNSEL "

SYSTEM

A DEFENDANT in a criminal trial is
granted by the federal and the several
state constitutions, the right to
appear and defend in person or with counsel,
any charge which is brought against him.
He should not only be defended by counsel,
but he should have the right to be defended
by competent, honest and high-class coimsel
who can and will obtain the necessary evi-
dence and witnesses in his favor.

The defendant of financial means usually
employs able counsel and has the weapons
with which to properly present his defense.
He is released on bail, pending trial. The
indigent accused — ^perhaps a foreigner — often
ignorant — ^generally helpless — ^languishes in
jail, utterly incapable of coping with the
great forces of the state arrayed against /
him. .

15

A

i6 The Public Defender

The cotirts do appoint lawyers to defend
such persons — ^but are they really defended?
These attorneys serve without compensation,
except that in some states a fee is paid in
murder cases. In the absence of statute,
counsel assigned are not entitled to compen-
sation and are not at liberty to decline the
appointment. On very rare occasions dis-
tinguished cotmsel is assigned to defend a
prisoner, but, as a general rule, these assign-
ments go to young and inexperienced at-
torneys — very often to the practitioner who
happens to be in court at the time.

The constitutional guarantee to be repre-
sented by counsel does not confer the right
upon the accused to compel the court to
assign him such counsel as he may choose.

At common law in England, coimsel were
not allowed to persons indicted for treason,
unless some point of law arose. The pro-
tection of the legal rights of the prisoner was
thus left to the presiding judge, whose bias
in favor of the crown resulted, in the majority
of cases, in great injustice to the accused.
At the present day in England, the assistance
of cotmsel is always allowed and coimsel will
be assigned if the poverty of the accused
justifies it.

The ** Assigned Counser* System 17

If it be the function of the public purse to
. pay for the defense of persons charged with
murder, why should it not be equally a func-
tion of the public purse to pay for the de-
fense of persons charged with minor crimes?

Although sending an innocent person to
death in penalty for a murder which he did
not commit is a very tragic and terrible
thing, it does not destroy the seriousness of
the fact of sending another man to prison for
even a brief period, on conviction for a minor
crime which he did not commit.

None but the prosperous, or those who are
accused of crimes suflBciently sensational to
induce attorneys to volunteer for their de-
fense because of obviously latent possibilities
of reputation, command, when they stand in
court, an engine of defense at all comparable
in efficiency to the engine of prosecution
existing in the office of the district attorney.

The entire system of assigning coimsel to
accused persons is f tmdamentally wrong from
every standpoint. It is as unfair to coimsel
as it is to the accused, wholly apart from the
question of the character and ability of coun-
sel. A lawyer should not be required to
devote his time and professional skill gratuit-
ously to the defense of a criminal prosecution

i8 The Public Defender

any more than the accused should be depend-
ent upon the services of counsel working
without compensation. If it is a lawyer's
duty as an officer of the court, to render
services to an accused person when required
by the court, why should not the same prin-
ciple hold true with reference to dvil litiga-
tions? There is no authority which can
compel a physician or other professional man to
render services gratuitously, ndr can we con-
jure up the possibility of a merchant being
forced to donate any portion of his stock to
the needy. While the latter procedure would
most likely result in the merchant's claim
that he could not be deprived of his property
"without due process of law," yet lawyers
may be forced to devote their time, energy,
and skill — ^their professional assets — ^to the
service of strangers. ^The fallacy of the
assigned counsel idea is shown by the fact
that it is deemed necessary for the state to
pay coimsel in capital cases. If it is impor-
tant to compensate counsel for defendants
whose lives are at stake, why is it not impor-
tant to compensate those who represent ac-
cused persons whose liberty and good name
are involved?
The classes of lawyers who are usually

The */ Assigned Counsel ** Sjrstem 19

assigned to defend, present a phase of this
question which cannot be regarded as unim-
portant. It is a regrettable fact that in
nearly all communities (particularly in the
larger cities) there is a type of lawyers who
are not truly representative of a great /pro-|
fession. Their regard for the rights and
liberties of their clients is measured solely
from a commercial or financial standpoint.
These are more persistent than any other
lawyers in their search for clients. Too
frequently their services, if rewarded by
small fees, are half-hearted or openly negligi-
ble. This leaves their clients practically or
•wholly unprotected. They are commonly
referred to as "shysters," but also described
by various writers as "snitch lawyers,"
"jail lawyers," "vampires," "legal vermin,"
"harpies" and by other inelegant but ex-
tremely emphatic phraseology. They are
grasping and mercenary — without character,
ability or conscience. They prey upon the
ignorance or fear of the prisoner, or of his
relatives or friends, in their effort to extort a
fee. If it be not forthcoming (or often when
it is) they advise the prisoner to plead guilty,
on the pretext that he will get greater leniency
from the court than by standing trial. He

^

20 The Public Defend

may at times go tlirough the ftfms of atrial,
but the defense is perftmctory on it$. f ace, '
and the dient pays the penalty, perhaps not *
for the crime charged, but often for his.
poverty.

Occasionally, the accused has the good for-,,
tune to have an experienced and capable
attorney assigned to him. Busy lawyers
have neither the time nor the inclination to
n^lect their more lucrative practice for the
privilege of basking in the atmosphere of the
criminal court. Therefore, the court usually
assigns cotmsel from among the attorneys in
attendance at the time, or who are present
for the purpose of being assigned.

Frequently young and inexperienced at-
torneys are assigned. They are usually
honest and painstaking and devote much
time to the preparation of their cases. While
they are glad to take unpaid assignments,
the benefit they get from the experience is
probably greater than that which their clients
J receive. Entrusting one's liberty to the
I tender care of a novice is fraught with danger.
The experience may be most profitable to
the young attorney — ^but extremely costly to
his unfortimate client. The young attorney,
as a rule, bent on achieving a favorable result,

The ** Assigned Counsel ** System 21

is no match for the adroit, able, powerful and
experienced prosecutor.

The judges probably do the best they can
in assigning available counsel who are in
court — ^their calendars are congested, the
presstu-e of business is heavy, they are dis-
inclined to assign busy counsel. Many
judges probably feel, too, that their own con- j
duct of the trial will preserve the fundamental |
rights of the accused, '

The evils of the practice were forcefully
pointed out several years ago, by Mr. Samuel
Untermyer, a distinguished American lawyer,
in an address in which he said:

" Unjust'convictions among the poor and help-
less and especially among our ignorant foreign
population are more frequent than wp care to
admit. . . . The most prolific abuses occur
in what are known as 'assigned' causes in
which the defendants and their families are too
poor to furnish bail or employ counsel. . . .
They come to the bar of justice crushed in spirit,
and if innocent, in mortal terror of the law and
resigned to any fate. Their assigned counsel,
whose retained clients are his chief concern,
easily convinces himself that he has done his
duty to his pauper client if the prosecutor will
accept a plea of guilty to a lesser form of crime

\

22 The Public Defender

or be tontent to recommend a moderate sentence.
And so before the poor fellow knows what has
happened to him and in less time than it requires
to tell the story, he takes the advice hurriedly
given him as he stands quivering at the bar and
so he finds himself on the way to prison. . . .
That such a system results in innocent men being
branded and punished as criminals admits of no
doubt.'*

Presiding Justice Almet F. Jenks, of the
Appellate Division, New York Supremfe
Court, a distinguished jurist, in speaking
of the public defender proposal before the
judiciary conmiittee of the New York Con-
stitutional Convention of 1915, said:

" I believe there is a great deal in the idea of a
public defender. I have seen so many poor,
friendless, homeless wretches have their liberties
put at stake through some inefficient tyro being
named to defend them that I fed very strongly
some change should be made."

Nobody knows better than the judges how
often miscarriages of justice occur through
indifferent or unskillful services rendered by
assigned lawyers. The views expressed by
Judge Jenks and others familiar with con-
ditions must be given due weight. Accused

The ** Assigned Counsel ** Ssrstem 23

persons are entitled to a real defense — ^not a
perfunctory one.

According to the figures pubKshed some
months ago by the Court of General Sessions I
in New York Cotmty, it appears that in 191 5
no less than 1495 persons had free cotmsel '
assigned to them in that cotirt as against but
331 such persons in 1906. This indicates the
need for providing coimsel in New York
alone. One may readily imagine how many
indigent defendants are compelled each year
to rely upon assigned counsel throughout
the United States,

The claim has been frequently made, that
because juries are prone to extend sympathy
to defendants represented by the average
assigned cotmsel, the indigent defendant
really has an advantage. This would seem
to be as strong an indictment against the
character and ability of assigned cotmsel as
possibly could be presented.

CHAPTER III

PUBUC PROSECUTION AND PROSECUTORS

THE pubEc prosecutor (or district at-
torney as he is frequently termed)
is a public servant, representing the
sovereign power of the state, by whose
authority and in whose name, tmder the Con-
stitution in most jurisdictions, all prosecu-
tions must be conducted. He is vested with
the right to determine, whether or not a
criminal prosecution shall be pressed to trial.
His powers are far reaching and his resources
xmlimited. Being the representative of the
whole people, who create his office, he has the
respect and the confidence of the courts.
He is the legal adviser to the grand jury,
attends its sessions, and presents charges
against accused persons for its action. He is
an important part of the public's machinery
of justice.

It is constantly asserted that the district
attorney, being a quasi-judicial officer, is

24

Public Prosecution and Prosecutors 25

required to protect the rights of an accused
person; that it is his duty to establish inno-
cence as well as to prove guilt, and that, there-
fore, there is no need for such an official as a
public defender. However alluring this view
point may be, and however we may be
tempted to embrace it, the cold, sober truth
is, that district attorneys are chosen to
prosecute crime; the public pays and expects
them to prosecute; their work and future
success, political and otherwise, are often
measured by the number of convictions they
obtain. Even with the best intention to
give an impartial and unbiased administra-
tion of their office, district attorneys, being
mere human beings, cannot successftdly play
the double r61e of prosecutor and defender.
If they were so perfectly constituted that they
could properly safeguard the rights of the
accused, there would be no need for private
counsel to tmdertake defense — or for judge
and jury to decide the law and the evidence.
It is important to note that the law makes
no provision for the district attorney to
defend — ^his function is to prosecute — and the
people demand a vigorous prosecution. There
are many who assert that it is absolutely
impossible for an innocent person to be con-

./

y

/

a6 The Public Defender

•

victed, that a miscarriage of justice is quite
inconceivable, that a poor defendant is on
an exact equality before the law with a rich
defendant, that the average assigned counsel
serving without compensation fully protects
and defends the accused, that district at-
torneys are infallible and uniformly impar-
tial — and they seek to convince us, that our
very human agencies in the prosecution and
trial of accused persons are so perfect that to
criticize prevailing conditions lays one open
to the charge of attacking our judicial in-
stitutions, or reflecting upon "constituted
authority. " The tender solicitude shown for
"constituted authority" must give way,
however, to the more important principle of
meting out equal justice to all accused persons.
The numerous reversals by appellate tri-
bunals of convictions based upon tmfair
trials, improper tactics, inflammatory ap-
peals to the jury, or the prejudicial attitude
of the district attorney, or even the trial
judge, completely refute the assertion that
the rights of the accused are always properly
protected. Many prosecuting officers are
men of the finest integrity and moral calibre —
with a keen sense of justice. They would not
consciously violate their oaths or work in-

Public Proaecution and Proaecutora 27

justice. Serious exception, however, is taken
to their claim — so often urged — ^that they
can be both prosecutor and defender. For
example. District Attorney Edward Swann,
of New York County, said recently:

"I believe that the district attorney should
exercise the functions of public defender. He
is the attorney for all the people, including the
prisoner at the bar. He should consider care-
fully the prisoner's rights and if he should
discover any evidence in his favor he should pre-
sent it unhesitatingly to the jury along with the
other evidence. He should not permit the in-
stinct of the advocate to obscure his sense of
justice to the defendant."

Expressions of similar import have eman-
ated from other prosecuting attorneys. While
such sentiments reflect much credit upon
them and indicate their own tendency to be
judicial rather than partisan, it is humanlyl
impossible for one official to adequately axidf
fairly represent both sides of a controversy^
"While a conscientious prosecutor can do
much to safeguard innocence, the true and
logical solution, is not to entrust a defense to
an oflficialwhose primary duty is to prosecute,
but rather to one whose primary function is

28 The Public Defender

to defend. Only by the proper exercise of
the difierent functions of two such officials,
independent of each other in their respective
duties of prosecution and defense — and yet
harmonizing in their desire to establish the
truth — is to be found the correct system of
justice.

While many prosecuting attorneys may
strive for fair verdicts, their zeal for victory
and their methods of trial are very likely to
cause injustice to the accused. The law
reports, in various states throughout the
country, abound with decisions in which
appellate tribunals have reversed convictions
and granted new trials on account of the
improprieties, prejudice, or misconduct of dis-
trict attorneys. The following cases from
among the mass of decisions on the subject,
will serve to illustrate this.

The Court of Appeals of the State of New
York, in the case of The People vs. Cdscone,
185 N. Y. Reports^ at page 334, wrote in
reversing a conviction of a defendant on a
charge of attempted murder, viz :

" We close our review with the remark, made as
a deliberate remonstrance against the necessity
for frequent reversals in criminal cases, that_too

Public Prosecution and Proaecutora 29

many prosecuting officers run dangerous, foolish
and unprofessional risks in order to secure a con-
viction. . '. . Judgment of conviction should
be reversed and a new trial ordered,"

Chief Justice Cullen (although dissenting
from the decision in that case) wrote:

"I join with my brother Qudge Vann) in repre-
hending the manner in which important criminal
prosecutions are so frequently conducted at this
time, often evincing ignorance of the ordin- S'.
ary rules of evidence or disregard for the interest I
of both the People and the defendant, which alike
require that a trial shotdd be had according
to law."

In the case of The People vs. Pisano^ re-
ported in 142 Appellate Division^ p. 324 {N.
y.), the Court, in reversing a conviction
for attempted murder, stated in its opinion:

"A district attorney oftentimes encounters!
difficulties in the performance of his duties. He :
should be commended for zeal in prosecuting -
criminals but he should not allow his zeal to *
outrun his discretion, but if, in the heat of the
contest, he oversteps the bounds of propriety,
it is the duty of the presiding judge, who is pre- \
sumed to occupy a position of cool impartiality, *
to check such outbreaks, advise the jtiry of the '

30 The Public Defender

! impropriety thereof and warn them not to be
affected thereby. Convictions of guilty men are
desirable, but convictions must be had in accord-
ance with established rules of law. From con-
victions otherwise obtained which Appellate
Divisions are constantly compelled to set aside,
no good, but positive injury, results."

In the case of People vs. Wolf, reported in
J83 N. Y. at page 464, the court in reversing
a conviction of defendant for the crime of
abduction, and granting a new trial, severely
arraigned the conduct of the prosecuting
attorney, saying:

'' An unfair trial, especially in a criminal csise,
is a reproach to the administration of justice
and casts grave responsibility not only upon the
prosecuting oflBcer but upon the trial judge.
However strong the evidence may be, if she did
not have a fair trial, as shown by the rulings of
the court subject to proper objections and ex-
ceptions, the judgment of conviction should be
reversed and a new trial ordered. We have
repeatedly laid down the rule governing prose-
cuting officers in addressing the jury and to
govern trial judges also in their duty relating to
the subject. We have repeatedly admonished
both, the former at times with severity and the
latter more mildly, not to depart from that rule.

Public Pmsecution and P ros ec utors 31

but our admonitions have not always been re-
garded, although they were followed by a re-
versal of the judgment involved, fotmded solely
on the improper remarks of the prosecuting
officer and the failure of the trial judge to do his
duty in reference thereto."

As was well stated by a writer on the sub-
ject, "intemperate zeal is the besetting sin
of pubUc prosecutors." The average prose-
cutor scents guilt — ^not innocence. Accusa-
tion is often equivalent to proof,. He
becomes impregnated with the atmosphere of
guilt. It is quite significant of the prevailing
tendency, that invariably, he boasts of his
record for obtaining convictions — ^rather than
to express his satisfaction that he had freed
innocent men unjustly accused. As stated
in a recent editorial :

" He usually gives the number of convictions
secured by him and tells how many were ac-
quitted by direction of the court and jury. No
mention, however, is made of the number against 1
whom proof of guilt either was wholly lacking, 1
or evidence of it insufficient to warrant prosecu- '
tion and who were therefore discharged on the
district attorney's recommendation. The inter-
est of district attorneys does not lie in advertising
this part of the record."

32 The Public Defender

The fallacy of the prosecutor's position is
that he usually professes to be non-partisan,
and he asserts that no innocent person will
be convicted through his activities. But the
fact is, that his principal claim to distinction
is based upon the number of persons he has
convicted.

There is a great opportunity for some dis-
trict attorney to make a really great record.
It will be that official who will take as
great pride in sajdng that he found one
innocent man and set him free^ as in pro-
claiming the conviction of one himdred guilty
men.

One of the serious evils of the administra-
tion of the criminal law is the practice, which
has been freely indulged in, of suppljdng in-
formation to the newspapers of the secret
proceedings before the grand jury. It has
been openly charged and generally believed,
that district attorneys supply news to the
press in advance of a trial. While they are
not always directly quoted, the fact is, that
matters which should remain inviolate in the
secrecy of the grand jury room are permitted,
in some mysterious manner, to circulate as
public news. This creates an atmosphere of
prejudice against the accused and makes it

Public Prosecution and Proaecuton 33

most diflScult for him to overcome the pre-
judicial eflfect of "trial by newspaper."

Attention may be called to another dis-
tinct advantage which the district attorney
may enjoy over the defendant's counsel.
He can, and frequently does, make applica-
tion for the appointment of a particular
judge to try a specific case, of importance to
the community — in other words, he selects
his own judge. Would it not be considered
most tmusual and improper for an accused
person to ask for the assignment of a particu-
lar judge to try his case? Would such a
request be granted?

But without asking for a special judge, the
district attorney may, in large commtmities,
indirectly select his own judge by moving
cases on for trial at such time as he may de-
sire, and thereby bring them up at a term of
court presided over by a judge of his own
choice.^

He may also compel poor prisoners to re-
main in jail until he finds it convenient to try
their cases — s, punishment that is not visited
upon the defendant able to furnish bail.

. The above instances may sufiice to illus-
trate the proposition that the scales of justice
do not always evenly balance.

34 The Public Defender

The superior advantage which the prose-
cutor has in the matt^ of police assistance,
the means to obtain expert testimony, the
efficient machinery to get witnesses, cannot
be denied. He is all powerful, awe-inspiring,
resourceful and vigilant.

\

CHAPTER IV

ANALYSIS OF THE PUBLIC DEFENDER

T is confidently asserted that the follow-
ing benefits, among others, will accrue
from the oflfice of public defender:

1. The "theoretical safeguards" sur-

rotinding the accused will be ren- \
dered more effective.

2. Cases will be more honestly and ably

presented.

3. Manufactured defenses will be re-

duced.

4. Unfair discrimination will be elimi-

nated.

5. Disreputable attorneys will be imable

to prolong cases.

6. Pleas of "guilty" will be minimized.

7. The truth will be more available. |

8. Expense wiU be decreased.

9. The criminal courts will be improved.
lo, Gmlty persons wiU not receive exces-
sive ptmishment.

35

J

36 ^ The Public Defender

II. Confidence in and respect for the law

will be increased.
Let us consider these various benefits
under their respective classifications.

The "theoreiical safeguards** surrounding- the
accused will be rendered more effective.

It is true that a defendant is surrounded
with certain statutory safeguards; that cer-
tain legal formulae are observed; that the
"presumption of innocence" exists; that a
preliminary hearing before a magistrate is
accorded in almost every case; that there
must be an indictment by a grand jury; that
there must be a unanimous verdict of a petit
jury; that the district attorney is presumed
to possess a quasi- judicial character; that
independent investigations are made by his
office staffy as well as by a probation officer
(in many jurisdictions), and that there are
statutory directions as to proving guilt
" beyond a reasonable doubt. "

But does not the "presumption of inno-
cence" carry with it many hardships up to
the point where it is overcome by the proof
of actual guilt? Doubtless many men pre-

Analysis of the Public Defender 37

sumed to be innocent and thereafter acquitted
have be«i ruined by the cost of defending
themselves. Nor does the state provide any
compensation for the wrong. Despite this
presvmiption, an indigent defendant is lodged
in jail. He frequently must linger there for
weeks or possibly months, without the means
to obtain competent counsel or necessary
witnesses. He must consort with rogues of
all description. He must wage a contest
against the great power of the state, lacking
the weapons which are at the disposal of the
state.

When it is considered, that a grand jury
must have found an indictment before a
defendant is placed on trial for felony, that
fact must inevitably produce an impression
on the mind of a petit juror. When he is
brought into court under guard, without
friends or hope, an adverse impression is
created. Is there not really a prestmiption of
guilt — ^which he must overcome — rather than
a presumption of innocence?

Despite these so-called "safeguards," the
accused is not usually represented by cotmsel
at the preliminary hearing before the magis-
trate; he is frequently held by the magistrate
in bail to answer, where the latta: lacks the

I

38 The Public Defender

courage to dismiss the complaint and prefers
to place the responsibility upon the grand
jury; i)rosecutors usually make a one-sided
examination based upon the information
furnished by the complainant; the grand
jury proceeding is usually ex parte; the dis-
trict attorney is the official adviser of the
grand jury and his recommendations are
usually followed by that body.

Unquestionably, a public defender is better
able to safeguard the rights of the accused
than the magistrate, the district attorney, or
the grand jury.

The comments of judges and other officials
having actual contact with this office prove
authoritatively that, notwithstanding these
elaborate "safeguards, " the proposition urged
under this headnote, is amply justified.

In Los Angeles, where the office of public
defender has been in successftil operation
since January i, 1914, it is quite significant
that the district attorney (to whom the
office did not at first appeal) wrote to Public
Defender Walton J. Wood:

<c

I am thoroughly satisfied that there is a place
in our criminal jurisprudence for such an office
(referring to the office of public defender). . . .

Analysis of the Public Defender 39

You are performing a duty which this oflfice has
attempted to perfonn in safeguarding the rights
of the defendant, but I believe under the circum-
stances your position gives you a better oppor-
tunity to perform that duty than the prosecutor
has/'

Judge Gavin W. Craig, of Los Angeles,
has commended the office as thus far ''satis-
factory"; he believes "that it will be an es-
tablished office," and that "it tends to the
securing of a proper and just administration
of the law. "

Judge Frank R. Willis, of Los Angeles,
stated that " the work of the public defender's
ofl^ce has been of an eminently satisfactory
character," and that it "has usually been
productive of a more fair and impartial
administration of justice than the methods
formerly employed. "

Certainly, the opinions of these officials,
who have been dealing with actualities, can
be regarded as more persuasive than the
prejudices of the opponents of the idea, who
oppose established facts by asserting their
own theories as to the present perfection of
our criminal system. They .cannot be
charged with advocacy of a "Utopian

40^ The Public Defender

scheme*' nor of being "misguided senti-
mentalists. **

It is safe to assert that in communities
which liave adopted, or are about to adopt,
the idea, defendants are likewise surrounded
with statutory safeguards, and human nature,
human experience and the trial of criminal
cases are almost identical. If conditions in
other communities warrant the establishment
of this office, is it not fair to assume that
the same necessity exists throughout the
United States?

2ands

Cases will be more honestly and ably presented,
and manufactured defenses will be reduced.

The law would not require nor expect a
public defender to endeavor to acquit a
guilty person, any more than that the prose-
cutor is expected to convict an innocent
person ; being a public official and a servant of
the people, his sole interest would be to pre-
sent the law and the facts in favor of the
accused; with his experience, skill and re-
sources he would be better able to present a
meritorious defense, and he would not inter-

Analysis of the Public Defender 41

pose what he considered unscrupulous or
perjured defenses.

It has akeady been pointed out in a pre-
ceding chapter, that young and inexperienced
counsel cailnot present defenses as ably as
those who, by years of training and experience
at the criminal bar, have become keen and
alert in the trial of cases.

Various judges have said that 6ther as-
signed counsel are not always conscientious
or diligent in the discharge of their duties,
among them, Judge Charles C. Nott, of the
New York Court of General Sessions, viz:

" It is tmdoubtedly true that, in some cases,
counsel so assigned do not use the same diligence
or spend the same time upon a case that they
would in a case where their services had been,
retained. This is especially true of subpoenaing^
witnesses. If the pubUc defender's office were
well and honestly conducted, I think on the
whole its clients would be better defended than
indigent defendants are now, and that a large
number of perjured defenses would be eliminated
and honest defenses or pleas of guilty substi-
tuted which would not only be conducive to
good public morals but would save much time
and labor in the courts and would reduce the
calendar.''

4a The Public Defender

'Criticisms have been made that a public
defender would not be "endowed with a
mind so enlightened, intelligence so acute,
and judgment so infallible that he would be
able to tell in every instance whether a de-
fendant were innocent or guilty, and whether
or not the defense interposed was founded
on truth or perjury." Doubt has been ex-
pressed, that his conclusions "would be more
profoundly accurate than that of the court,
district attorney, and fury combined."
These comments are quite wide of the mark.
It is a generally recognized fact that per-
jured defenses are continually interposed.

District Attorney Swann recently called
attention to the situation, sayings

** Perjury is on the increase in New York. In
a substantial portion of the civil suits tried here
perjury is committed, and this is even more true
of cases tried in our criminal courts. Yet dur-
ing the whole of the year 19 15 not a single per-
jury case was brought to trial in New York
County."

The public defender may not be any more
accurate in discerning the truth or falsity of
a defense than any other person, but it is
more than likely that by reason of his office

Analysis of the Public Defender 43

and disinterested position, he would refuse
to interpose a defense which he knew to be
unscaiipulous or perjured. Perjtuy strikes
at the very root of our democratic institutions'*
and any plan which tends to decrease this •
evil is worthy of serious consideration. ^

Judge Craig, of Los Angeles, has stated
that the office of public defender tends to, in
some cases at least, "securing for defendants
a more able defense than they would other-
wise have," while on the other hand "pro-V.
tecting the public from the use of methods /
which are sometimes questionable en the/
part of private defenders."

Numerous further authorities might be
quoted, but it may be sufficient to note the
opinion expressed by Judge Otto A. Rosalsky,
erf the New York Court of General Sessions,
viz:

" It is true that a great many lawyers who are
assigned to defend poor persons, other than for
murder in the first degree (in which latter cases
counsel are compensated), willfully neglect the
interests committed to their care."

There is abtmdant authority therefore,
for the statement that the average assigned
counsel is not, as a rule, possessed of the

44 The Public Defender

character and ability which should inure to
the benefit of an accused person.

The questions have been asked "What is
to become of the unfortunate defendant who
refuses to be bound by the judgment of the
pubKc defender? Who would defend him if
he refuses to comply with the demand that
he plead guilty?" He is not botmd "by the
judgment of the public defender"; neither is
it Kkely that the public defender would
"demand" that he plead guilty. It may be
asstmied that, upon hearing the facts bearing
upon the case of the accused, he would
advise him that he should either stand trial
or plead guilty; if the accused declined to
plead guilty, it would be the duty of the
public defender to present such facts as the
situation warranted. He should not be
compelled to do more than this. Private
counsel oft-times advise a client to plead
gtulty. When he refuses to follow such ad-
vice and insists upon going to trial, counsel
frequently acquiesces. Is there any material
difference between private counsel and a
pubKc defender, in this respect? It must be
borne in mind that the accused has the privi-
lege of retaining private counsel if he so pre-
fers, for any reason.

Analysis of the Public Defender 45

The assumption that indigent defendants
are given to the practice of manufacturing
defenses is warranted by the experience of
judges and lawyers. It may be said that
such practice is not necessarily confined to
*' indigent" defendants.

It has been contended, that the creation
of this oflBce would "provide an additional
instrumentality for defeating justice." On
what theory this conclusion is based does not
appear. Defendants are now entitled to
counsel, and it is certainly fair to assume
that a sworn public o£Scial would be less
likely to attempt to defeat justice than the
average tjrpe of assigned cotmsel would.

The suggestion so often made, that the pro-
fessional criminal would be quick to see the
advantage which representation by a disin-
terested pubKc defender would give him
before a jury, is without merit. The "pro-
fessional criminal" would not be likely to call
for the services of this oflBcial for obvious
reasons. Most likely he would give the
public defender a wide berth. He would
probably assume that a public defender
would not be a party to a defense which is
not legitimate. The indigent defendant, who
is innocent, would be the only one really

\

46 The Public Defender

benefited by the services of the public de-
fender — except that the guilty would be
saved from over-punishment.

Because the public defender of Los Angeles
said that "nearly every person accused of
crime in the Superior Court, upon being
arraigned, has called for the services of the
public defender," and that such situation
"speaks eloquently of the need of such an
official, " it is feared by many that a like situ-
ation would become universal.

The opponents of the plan have urged that
the popularity of a public defender in
"criminal circles" would be beyond meas-
ure; they assert that "he has already won
the imanimous support of those accused of
crime." They overlook, however, the fact
that he has also won the imanimous sup-
port of the officials charged with the duty
of punishing crime — ^and the further fact,
that persons accused may be innocent^
and that the law presumes them to be
innocent.

r

Curiously enough, an editorial published
in The Mutual Welfare League Bulletin of
Sing Sing Prison, New York, on Jime 26,
191 6, opposes the establishment of a public
defender for several reasons — ^thus refuting

Analjrsis of the Public Defender 47

the claim that such office will be welcomed in
^'criminal circles. "

If it should be necessary for all persons to
have the aid and advice of a public defender
in order to establish their innocence, the
state should provide such relief, regardless
of the question of expense, in order to main^
tain the presumption of iimocence. Even
the "crook" is entitled to a fair trial — despite
a criminal record.

It is urged that, if this official were assigned
to every case of an indigent defendant, "the
administration of justice would speedily de-
generate into a howling farce." The Los
Angeles situation completely refutes this
contention.

Unfair discrimination will be eliminated.

Despite the doubts of bar association com-
xnittees and others, there is a solid basis for
the conclusion that our coiirts (not only the
criminal but the civil courts) are for the rich
and not for the poor; that the wealthy de-
fendant who can employ competent counsel
and resort to technicalities and obtain the
delays which the law permits to those having

!

48 The Public Defender

the ability to take advantage of them, and
who can pay for the attendance of witnesses,
;i experts and favors, has a pronounced superi-
j ority over the poor, ignorant or helpless
prisoner, who must take what is thrust upon
him. It is scarcely necessary to support this
proposition by argument — the history of man-
kind amply sustains it.

So distinguished an authority as ex-
President Taf t called attention to this dis*
\ crimination when he said :

**0f all the questions which are before the
American people, I regard no one as more im«
portant than this, to wit: the improvement of
the administration of justice. We must make it
so that the poor man will have as nearly as
possible an equal opporttmity in litigating as the
rich man, and under present conditions, ashamed
as we may be of it, this is not the fact/'

The "Committee on Criminal Courts" of
the Charity Organization Society of New
York City, in a pamphlet entitled Justice
for the PooTf made the statement:

"This confinement of so many men for such
long periods is not inflicted upon them because
of any fact connected with the alleged violation
of the laws but just because they are too poor to

Analysis of the Public Defender 49

get bail. It is escaped by the men who have
money or friends. It is not imposed upon the
prisoners because they are guilty. It is what
they get for being poor."

It must be admitted that no human sys-
tem of administering justice can be devised
which will not bear more severely upon the
poor man than upon the rich. The public
defender, however, would aflEord the innocent
a proper defense, would secure for him a
speedier trial, and would stand as his cham-
pion: — canned with sufficient resources and
power to prevent unfair discrimination.

5 and 6

Disreputable attorneys will be unable to
prolong cases, and pleas of ** guilty** will be
minimized.

It may be asstmied as a matter of common
knowledge, that there are disreputable at-
torneys — (some are uncharitable enough to
believe that aU attorneys are). Experience
has shown that many lawyers seek delays and
postpone trials while endeavoring to extract
fees from the relatives of the accused.

Such conditions exist in most large cities.
Jurors and those coming in contact with the

50 The Public Defender

criminal courts are familiar with them. Pub-
lic Defender Wood has called attention to
this class of lawyers, saying that one of the
benefits obtained by him is ''that the coterie
of 'jail lawyers' who hang about jails has
been almost eliminated in Los Angeles. "

The general opinion among members of the
bar is that it is an tmpleasant duty for counsel
to receive assignments to defend persons,
other than in capital cases. Defendants
frequently plead "guilty" because assigned
counsel urge them that such plea will secure
them a lighter penalty than if they were to
stand trial and be convicted. The matter
of obtaining compensation from a particular
defendant would not influence the public
defender in advising his chent, nor need he
seek delay in order to obtain fees; the state
provides his salary — he has no interest in
prolonging litigation. He has a duty to the
state — ^as well as to the accused.

The truth will be more available.

This proposition does not "presuppose
that the public defender would possess that
quality of an imerring intuition which would

Analysis of tfas Public Defender 51

enable him to determine at once where the
truth lies." It simply means that the truth
could be gotten at, because the public de-
fender will not only be more skillful, com-
petent and conscientious than the average
assigned cotmsel in bringing out all the facts
and the law, but that through his power and
resources he will be able to obtain the evi-
dence of the facts. It is also quite likely
that the accused will speak more freely and
with more confidence to a sworn public
official, having a definite standing and char-
acter, than to the assigned counsel, of the
tjrpe referred to. The experiment in various
cities, particularly in Los Angeles and Omaha,
has demonstrated the truth of this assertion.

8

Expense will be decreased

The most persistent objection to the public
defender idea is that it will result in an
increased expense to the public. This phase
of the subject has been regarded as of supreme
importance by most opponents of the plan.

Assuming, for the sake of argument, that
additional expense would result, would the
cost not be amply justified : ■

5a The Public Defender

(a) If a real equality would be secured to
all classes?

(i) If a higher standard of human justice
is reached?

(c) If the criminal law is improved?

In order, however, to demonstrate that
economy would, result rather than added
expense, it is interesting again to note the
Los Angeles viewpoint.

The comment of Judge Frank R, Willis
is most significant, viz:

"It (the public defender's office) has been a
great saving to the cotmty in the matter of ex-
pense and has usually been productive of a more
fair and impartial administration of justice
than the method formerly employed of appoint-
ing attorneys tmfamiliar with criminal law to
represent the defendant's interest. I am well
satisfied with the efficiency of the office and of
the necessity for its continuance, as matter of
economy and justice.**

Public Defender Wood, in an article pub-
lished in the Southwestern Law Review in Jime,
1916, stated:

"Another unexpected result from the estab-
lishment of the office of public defender is the
reduction of expense to taxpayers"

Analysis of the Public Defender 53

The comment of the Omaha public de-
fender is also illuminating on this question.
He said: ^

" The examination by the county attorney and
public defender in all alleged crimes, results in
many judgments by the court satisfactory to
both the state and the accused, thus saving
Douglas County considerable stmis that would
otherwise be expended in useless trials."

It must be apparent that the expense of the
office would be more than offset by the re-
duced cost of prison maintenance and prose-
cution, by the saving of the court's time in
passing upon frivolous demurrers, motions
for new trials and such matters; by the elimi-
nation of baseless appeals, by avoiding the
trial of spurious defenses and the saving of
cost of counsel fees in capital trials (in states
which compensate counsel in such cases) 4

The criminal courts will be improved

While the majority report of the Criminal
Courts Committee of the New York County
Lawyers' Association conceded that, "as an
abstract proposition," a public defender of

54 The Public Defender

the type and character suggested might be
helpful, and that he ''would undoubtedly
eliminate the fact of occasional n^lect of
duty by assigned counsel," it opposes the
assertion that the public defender would be
likely to otherwise improve upon existing
conditions. The report expresses doubt as
to how the tone of the criminal courts wiU be
uplifted by the "spectacle of daily forensic
combat between the district attorney and the
public defender." There is now daily com-
bat (not necessarily "forensic") between the
powerful prosecutor and assigned counsel.
It is not apparent how the spectacle of a more
equal combat would be tmwelcome. Is not
the whole theory of "combat" in the courts
fundamentally wrong? Is not the sole function
of a judicial inquiry to ascertain the truth?

Poptilar respect for the 'courts would be
increased, if both sides of a controversy were
fairly and ably presented.

It does not follow that these two public
ofiScials would in all instances exert their
efforts in opposite directions to secure a
favorable result for his side of the controversy.
Both officials, would realize that it is the duty
of each to try to bring about exact justice,
without fear or favor.

Analysis of the Public Defender 55

The solution of this problem must neces*
sarily depend upon the individuals, who oc-
cupy the respective oflBces. Assuming that
both officials are of the proper type and
character, there is every reason to believe
that they would co-operate to protect both
society and the accused and to bring about
a fair administration of the law.

10 and II

Guilty persons will not receive excessive pun-
ishment, and confidence in and respect
for the law will be increased.

The public defender would be of great
assistance to the court, to the accused, and to
society. He would present to the court
important facts bearing upon the case, the
necessities of the accused or other mitigating
circumstances which perhaps forced him to
the commission of crime.

The probation system, now in vogue in
many jurisdictions, is no doubt helpful in
ameUorating conditions to a large extent.
Yet, the legal mind, the prestige and responsi-
bility of a defender to see that justice is
done, would be infinitely more valuable. His
duty, as well as his responsibility, would

56 The Public Defender

necessarily be greater than that of a mere
probation officer.

The question of inflicting ptinishment or
of extending probation is tremendously
important. It should be determined only
after a most diligent and comprehensive
inquiry into the previous history, environ-
ment, physical and mental status of the
accused.

If the state, by a proper corrective system
and an extension of the probation plan, could
restore the prisoner to society and his family,
he might work out his own salvation, tmder
proper auspices. Incidentally, the cost of
his maintenance in a penal institution would
be saved. Society and the accused would
both benefit.

Those serving prison terms, impressed
with the idea that society is discriminating
against them in the matter of ptmishment,
must necessarily nurse a grievance against
society and the judicial system, of which they
believe themselves to be the victims. This
produces in them a spirit of revenge and
hatred — ^both inimical to the state. The
harm done to society by discharged convicts
cherishing resentment because of excessive
punishment, is incalculable.

Analysis of the Public Defender 57

Would it not awaken confidence, were we
to make the poor malefactor feel that he had
the same privileges which the law extends to
the rich ? Should we not convey to the guilty
a sense of fair punishment?

In line with modem theories of penology,
a legal system which inspires confidence and
respect would seem to be vastly superior.

CHAPTER V

THE ANCIENT CONCEPTION OF CRIME

THE suggestion has been frequently
made, that the state, or the commu-
nity, should not protect an individual
who commits an offense against society. The
reason assigned is, that inasmuch as the
people prosecute, they should not also defend.
It is not^true, however, in the ordinary crimi-
nal prosecution, that society as a whole is
interested in punishing the alleged malefac-
tor, or has the slightest concern regarding
his case. In ntunerous instances, John Doe
has a personal grievance against Richard
Roe. In order to gratify a personal enmity
or grievance, he sets in motion the machinery
of the criminal law. The proceeding is en-
titled "TTie People versus Richard Roe" —
the indictment sets forth an offense against
**TTie People'* — ^and the generally accepted
theory is, that the whole community has been
assailed, by reason of the act charged against

58

The Ancient Conception of Crime 59

the defendant. In truth, the commtinity is
generally indifferent to, or ignorant of, the
personal quarrels or animosity existing be-
tween the two individuals, giving rise to the
criminal proceeding.

It is well known that the criminal courts
are often resorted to for the purpose of en-
forcing what are purely "dvil claims." An
indictment proclaiming that **The People'^
are prosecuting "Richard Roe" is apt to be
misleading, when the facts of a particular
prosecution are carefully investigated.

It is interesting to note, in this coimection,
the ancient conception of crime. What we
now regard as ** crimes** were not classified
as such, in primitive jurisprudence. Only
extraordinary offenses were pimished as
crimes — ^private compensation was usually
awarded for the offense charged.

Sir Henry Stunner Maine, in his celebrated
treatise (Ancient Law^ p. 271), makes this
statement:

'* The penal law of ancient commimities is not
the law of Crimes; it is the law of Wrongs, or, to
use the English technical word, of Torts. The
person injured proceeds against the wrongdoer
by an ordinary civil action and recovers com-

6o The Public Defender

pensation in the shape of money damages if he
succeeds. If the Commentaries of Gaius be
opened at the place where the writer treats of the
penal jurisprudence founded on the Twelve
Tables, it will be seen that at the head of the
civil wrongs recognized by the Roman Law stood
Furtum or Theft, Offenses which we are accus*
tomed to regard exclusively as crimes are ex-
clusively treated as torts, and not theft only, but
assault and violent robbery, are associated by the
jurisconsults with trespass, libel and slander.
All alike gave rise to an Obligation or vinculum
juris, and were all requited by a payment of
money. This peculiarity, however, is most
strongly brought out in the consolidated laws of
the Germanic tribes. Without an exception
they describe an immense system of money
compensations for homicide, and, with few ex-
ceptions, as large a scheme or compensation for'
minor injuries. 'Under Anglo-Saxon Law'
writes Mr. Kemble {Anglo-Saocons, i., 177), *a
stmi was placed on the life of every free man
according to his rank, and a corresponding sum
on every wound that could be inflicted on his
person, for nearly every injury that could be
done to his civil rights, honor, or peace; the sum
being aggravated according to adventitious cir-
cumstances. ' These compositions are evident-
ly regarded as a valuable source of income;
highly complex rules regulate the title to them

The Ancient Conception of Crime 6i

and the responsibility for them. . . . K,
therefore, the criterion of a delict, wrong or tort
be that the person who sufiEers it, and not the
state, is conceived to be wronged, it may be
asserted that, in the infancy of jurisprudence, the
citizen depended for protection against violence
or fraud not on the Law of Crime but on the
Law of Tort**

According to this author, "the idea of
offense against the state or aggregate com-
munity did not at first produce a true crimi-
nal jurisprudence. "

The same author points out:

" When the Roman community conceived itself
to be injured, the analogy of a personal wrong
receive^ was carried out to its consequences with
absolute literalness, and the state avenged itself
by a single act on the individual wrongdoer.
The result was that, in the infancy of the com-^
monwealth, every offense vitally touching its
security or its interests was pxmished by a sepa-
rate enactment of the legislattire. And this is
the earliest conception of a crimen or Crime — an
act involving such high issues that the state,
instead of leaving its cognizance to the civil
tribunal or the religious court, directed a special
law or privUegium against the perpetrator.
Every indictment therefore took the form of a

62 The Public Defender

bill of pains and penalties, and the trial of a
criminal was a proceeding wholly extraordinary,
wholly irregular, wholly independent of settled
rules and fixed conditions. Consequently, both
for the reason that the tribunal dispensing jus-
tice was the sovereign state itself, and also for
the reason that no classification of the acts pre-
scribed or forbidden was possible, there was not
at this epoch any Law of crimes, any criminal
jurisprudence."

Our modem systems of jurisprudence dif-
ferentiate more strongly between offenses
against the state and those against the in-
dividual. The two classes of injuries are
now more clearly defined. Nevertheless,
it is still true that what we are accustomed to
regard in the present day as "crimes" or
"public wrongs" — and bear the stamp of
public prosecution — are in reality but "pri-
vate wrongs," seeking a remedy through
public sources.

John Austin in his celebrated Lectures on
Jurisprudence (p. 195) writes:

"The terms 'public' and * private* may be
applied indifferently to all law. ... All
offenses affect the community and all offenses
affect -individuals. . . . Only in the differ-

The Ancient Conception of Crime 63

ence of procedure, and not in any distinction
between the tendencies of the acts, lies the dis-
tinction between crimes and dvil injtiries. An
offense which is pursued at the discretion of the
injured party or his representative, is a civil
injury. An offense which is pursued by the
Sovereign or by the subordinates of the Sover-
eign, is a crime. In many cases (as in cases of
Hbels and assaults) the same offense belongs to
both classes. That is to say, the injured has a
remedy which he applies or not as he likes; the
Sovereign reserves the power of visiting the
offender with punishment."

Mr. Austin explains further (p. 370) the
origin of the term "public wrongs" as ap-
plied to crimes, and observed that they ac-
quired this name from a mere accident, from
the fact that crimes were originaUy tried by
the sovereign Roman people. He shows
that:

"The original reason ceased when the jurisdic-
tion in criminal causes was removed from the
people and vested in subordinate judges. But
the name remaining, it was supposed afterward,
by the Roman jurists, that crimes were called
public wrongs, because they affected more
immediately the interests of the whole commu-
nity. . . . The distinction between civil in-

64 The Public Defender

juries and crimes rests not upon any difference,
in their consequences and effects, but upon the
different way in which they are pursued. The
distinction, although grounded on expediency,
is arbitrary in its scope: that is a civil injury in
one system of law which is a crime in another/'

When we consider the subject of "public
wrongs" and "private wrongs" from an
historical viewpoint, it is apparent that the
distinction between them is more fanciful
than real. The asstunption that the people
must prosecute but may not defend is not
warranted from either the standpoint of
justice or expediency. The state owes an
equal duty to all its citizens.

CHAPTER VI

SPEaFIC OBJECTIONS CXDNSIDERBD

A SOMEWHAT' amazing contention has
been urged, to the eflEect that "crimes
and criminals would be increased " by
the establishment of this office, because of the
proposed championship at jpublic expense of
every * * professional criminal. ' * Such conten-
tion must necessarily fall of its own weakness.
Crime is the result of poverty or of physical f'
and mental disease. A public defender will
no more increase crime than capital pimish-
ment will decrease murder. Certainly a
sworn public official, having a definite duty
both to the state and to his client, would not
contribute to any such extraordinary result.

Another objection asserted, is that there
would be no one to defend the indigent prison-
s 65

it

66 The Public Defender

er who refused to plead gmlty on the advice
of the public defender. This objection loses
its point, when it is recalled that under the
present system the accused is not entitled
to successive lawyers until he can find one
who advises him to stand trial. With pri-
vate counsel assigned to him, he must either
follow the advice of counsel or rely upon his
own resources. In what manner the substi-
tution of official, reputable and able counsel
will more seriously jeopardize his position
is not apparent. It is interesting to note,
however, the published statement by the
public defender of Omaha, viz: "that, with-
out exception, I have fotmd the prisoners
willing to discuss their cases freely and fully,
and to follow the advice given.'*

Much criticism has been leveled because of
the claim that a public defender would de-
fend only those whoni he believed to be in-
nocent. He would also properly advise the
guilty. A wide range of discussion has been
had for many years as to whether or not a
lawyer is justified, from an ethical standpoint,
in defending a man whom he knows or be-

specific Objections Considered 67

lieves to be guilty. It has been often said
that Abraham Lincohi refused to undertake
the defense of any person whom he believed
to be guilty of the crime charged against him.
Judge Peter W. Meldrim, a former President
of the American Bar Association, in a recent
article concerning Cicero, the great Roman
advocate, said:

" He has been severely assailed because of his
defense of persons charged With crime and gener-
ally supposed to be guilty."

The consensus of opinion among lawyers
is that every accused person is entitled to
a defense. But the law does not require an
attorney, in return for pay, to use his skill
and ability to defeat the law and save the
criminal from the consequences of his crime.

Private counsel is not open to criticism
because he refuses to defend a guilty person.
A district attorney is not expected to, nor
should he, prosecute a person whom he knows
or believes to be innocent. Why, therefore,
should a public defender be criticized for a
failure to defend one whom he believes to be
guilty? "It's a poor rule which won't work
both ways."

It is well to remember that we have not as

I

68 The Public Defender

yet reached a state of ideal perfection.
Society is composed of very human elements.
Public defenders may not be perfect — ^neither
are district attorneys, judges, or ministers —
nor mankind in general.

Did not Lincoln really stun up the true
ftmction of a lawyer when he said:

" I am not bound to win, but I am bound to
be true.

"I am not bound to succeed, but I am bound
to live up to what light I have.

* * I must stand with anybody that stands right ;
stand with him while he is right, and part with
him when he goes wrong."

d

Perhaps the most ingenious argument
advanced in favor of the present system is
that which urges the sotmdness of our judicial
structure by the assertion that although
an indictment be unfotmded, or a convic-
tion grossly improper, the appellate cotirts
are available for the purpose of righting the
wrong and seeing that justice is done. Ergo,
no innocent person need suffer. Quite true,
if the innocent person rejoices in the posses-
sion of sufficient means to indulge in the

specific Objections Considered 69

luxtiry of an appeal. But what becomes erf
the unfortiinate who languishes in jail, with-
out money to pay cotmsel or to prosecute his
appeal? He is precluded from testing the
majesty of the law — ^because of the crime of
poverty, A magnificent theory — ^but hope-
lessly impracticable.

e .

Considerable stress has been laid by bar
association committees, in opposing the pub-
lic defender movement, upon the fact that
specific instances of innocent men being sent
to prison have not been shown. It is some-
what diflScult, for many reasons, to furnish
specific proof of cases where innocent men
have been imprisoned after conviction for
crime. Nevertheless many convicted per-
sons have constantly asserted their innocence
or have been inadequately defended by un-
compensated assigned counsel, and there
have been many ins^tances reported of unfair
trials, of ntimerous reversals by appellate
courts, of innocent men ruined by baseless
indictments. The public defender theory
does not necessarily rest upon the ntimber of
innocent men convicted after a trial. Miss

70 ■ The Public Defender

Kate Barnard, a distinguished sociologist,
expressed the opinion that:

''Ten per cent or thereabouts of all the prisoners
in the American prisons to-day are there because
they pleaded guilty in order to secure the mini-
mum sentence, simply through their personal
poverty or personal fear — ^a poverty that would
not permit them to secure legal advice competent
to maintain their plea of innocence against the
splendid ability of the paid prosecutors of mod-
em civilization.'*

It is manifestly impossible to correctly
estimate the number of those who are the
victims of our system of "assigned counsel. "
How many innocent men have pleaded
" guilty" at the suggestion of assigned counsel,
because of the latter's indifference or de-
sire to escape the burden of trial, it is im-
possible to state; their number must be
legion.

But, whether the figures be ten per cent.
or one per cent., if we can prevent or minimize
miscarriages of justice by better protecting
the rights of the accused, by protecting the
reputations of innocent men against illegal
or improper indictments, by sparing them
confinement in jail for unreasonable periods

specific CMbiectiMis C o ntl d cw d 71

pending their trials, by impresang the in-
nocent with confidence in, and the gmlty with
respect for, the law, the necessity for the
change proposed must be apparent to the
unprejudiced mind.

Attention may be called, however, to the
following cases, wherein convictions were
had after trial.

In a book entitled Twenty Years in State
Prison^ the case of Alfred Schwitofsky is
reviewed with great detail. It shows the
conviction of an innocent man and a grave
miscarriage of justice. The author, a chap-
lain of the New York City Prison and of
the Sing Sing Prison in New York, states that
he ''can recall a number of such cases as hav-
ing come under his notice. " The case was
also discussed in the Outlook of January

24, 1914-

Schwitofsky was sent to State Prison for a

term of twenty years for burglary and feloni-
ous assault. In Jtme, 1914, the State Board
of Parole held a hearing which was brought
about by the prison chaplain, the secretary
of the Prison Society of New York, a well-
known editorial writer and two prominent
lawyers. At such hearing the prisoner told
a remarkable tale of police hotmding, declared

72 The Public Defender

his innocence of the charge and produced
witnesses to corroborate his story. He told
(according to the New York Times of June
9, 1914) :

* * how three lawyers had been assigned to his case
who had practically ignored him, of how he had
been identified by persons under duress, of how
he had not been able on account of his lack of
means to produce a single witness in his defense,
of how he had not been allowed to explain many
things that counted against him at his trial, of

how important witnesses had been ignored."

I

It was also reported that the most eflFec-
tive incident in Schwitofsky's interest was
an admission of the Assistant District At-
torney, who represented the state, "that
the District Attorney had become convinced
by reason of newly discovered evidence, that
Schwitofsky was not guilty of felonious as-
sault, upon which charge ten years of his
twenty years' sentence was based, and that
the District Attorney was willing to recom-
mend to the Governor that this ten years*
sentence be revoked by a parole or pardon."
On September 18, 1916, Governor Whitman
commuted Schwitofsky's sentence.

Nothing in the legal history of recent years

specific Objections Considered 73

could perhaps more clearly demonstrate the
great necessity for the general establishment
of a public defender than the conviction of
murder rendered against Leo M. Frank in
Atlanta, a case which is still fresh in the
public mind. The whole atmosphere of his
trial reeked with class hatred, prejudice, and
bigotry; nearly the entire local press, public
and clergy clamored for conviction from the
outset ; the militia was called out to preserve
order during the trial, and feeling ran so high
that the jury was practically forced to find
him guilty, although this was done princi-
pally upon slender threads of evidence sup-
plied mainly by an easily discredited witness,
whose criminal record was established and
who confessed to being an accessory after the
fact. It was openly charged in the press,
and elsewhere, that the prosecution in the
case was tmduly prejudiced against the pris-
oner, that evidence favorable to him was
suppressed, that the prosecutor's closing
address to the jury was calculated to and
did inflame their passions and arouse their
prejudices. The trial has frequently been
mentioned as an example of the effort not to
bring out the truth, but to secure conviction^
After the verdict had been rendered, the trial

74 The Public Defender

judge openly annotinced that he had been
unable to form a definite opinion as to the
prisoner's guilt or innocence from the evi*
dence. Subsequent events and investiga-
tions have added to the original doubts as to
Frank's guilt. Justice Holmes, of the United
States Supreme Cotirt, declared in certain
proceedings pending in that court, that he
"seriously doubts if Frank had due process
of law." Outside of the local atmosphere,
the public sentiment was generally favor-
able to Frank. Here was an instance where
the technicalities of the law were permitted to
supersede justice. Whether Frank was in-
nocent or guilty, however, is not the question ;
he certainly did not receive that fair trial
to which he was entitled tmder the law. It
is true that he was defended by distinguished
cotmsel — ^and in that respect, he was no doubt
defended as well as he could have been by
private counsel. Had there been, however, a
public official representing him, with the
prestige of the state behind him, insisting
upon the production by the people of all
available evidence favorable to the prisoner,
with the right and power to use the detective
and police force, if necessary, in pursuing his
investigations, with the courage to combat

specific Objections Considered 75

pubKc prejudice, a very diflferent complexion
might have been placed upon the case and the
nation might have been spared what will
doubtless go into history as one of its great-
est legal scandals. There can be no question
but that, throughout this coimtry, a large
number of impartial persons will retain a
lasting impression that an innocent man was
put to death.

The contention of the opponents of the
public defender idea, that it is impossible
for an innocent man to be convicted of crime
because of the "safeguards" offered by our
laws, has been weakened by the facts devel-
oped in the case of Charles F. Stielow, which
has recently occupied the attention of the
New York courts. Stielow, the victim of a
"third degree" confession, convicted of
murder, four times in the shadow of the elec-
tric chair and snatched from the jaws of
death at the last moment, affords a striking
illustration of the possibilities of judicial
murder. Stielow owes his life solely to the
persistent dnd imselfish efforts of a group of
private individuals who volunteered to cham-
pion his cause. While the result achieved
is a triumph of innocence over manufactured
guilt, it is a sad commentary on our system of

76 The Public Defender

jurisprudence that the state was so powerless
and inefficient to prevent the wrong com-
mitted by it. This case strikingly illustrates
the need for a public defender.

CHAPTER VII

OTHER REMEDIES INADEQUATE

THREE plans have been enthusiastically
urged by various opponents of the
public defender idea (among them
various bar association committees) which
it is claimed will be an effective "cure-all"
for the present diflSculties,
They are:

I« That the local bar associations should
furnish a corps of reputable attorneys to
volunteer their services as cotmsel for in-
digents.

II. That legal aid societies or other volun-
tary charitable organizations should under-
take the defense of such persons.

III. That the trial judge should be em-
powered to fix compensation to counsel in
each case, such compensation to be paid by
the county.

Not one of these proposed remedies affords
an adequate solution of the question. The

77

78 The Public Defender

mere suggestions, however, indicate that
existing conditions require some remedy, even
though those who offer them have persistently
denied that any change of system was needed.

I.

If the situation could be materially im-
proved by the co-operation of the bar associa-
tions in suppljdng a list of volunteer attorneys
to the court, is it not singular that they have
not heretofore adopted such a course? Cer-
tainly, they cannot plead ignorance of crimi-
nal court conditions. Why have not the
judges, who know the need for competent
cotmsel in assigned cases and who have the
power to designate proper counsel, requested
the assistance of the bar associations, in an
endeavor to promote the administration of
justice? The answer is very simple — ^repu-
table and busy lawyers do not care to volun-
teer their services for this tmproductive work,
and the judges are not inclined to assign
them — except in rare instances and in
capital cases. And, as has been pointed out
in a preceding chapter, it is luifair to expect
a lawyer to devote his time and skill to such
gratuitous service.

Other Remedies Inadequate 79

. 11.

While legal aid societies have done splen-
did work and should be encx)tiraged, the
argumait that they will afford a sufficient
substitute for, and render unnecessary
the establishment of public defenders is
wholly without merit. First, such associa-
tions are generally handicapped by lack
of sufficient funds, as has been evidenced
by their frequent and urgent appeals to
the public for financial support. Aside
from this, however, there is a more potent
and fundamental objection to the plan. An
accused person should not be dependent
upon any form of charity^ individual or
organized, for the resources or opportu-
nity to present a merited defense. He
should be entitled as a matter of abstract
right to be defended by a sworn pubUc
official, who would have a positive duty,
as well as the power and standing, to pro-
tect properly his interests. Neither pri-
vate nor public charity, no matter how
meritorious, will avail as a sufficient sub-
stitute for the denial of a legal require-
ment. Justice — not charity — ^is the universal
need.

So The Public Defender

III.

The third plan proposed, that of com-
pensating assigned counseli is also open to
serious objection, by ma.king it possible for
the judges to show favoritism to certain
lawyers, and thus lead to abuses — of which
the "referee system" in civil cases is a
conspicuous example. The compensation
awarded would be hardly sufficient to induce
experienced trial counsel to accept the cases.
Furthermore, the aggregate of fees paid to
counsel under such form of assignment
would most likely result in a greater expense
to the commimity than the creation of a
public defender — ^without ' the benefits ac-
cruing from such defender.

CHAPTER VIII

THE MARCH OF THE MOVEMENT

IN March, 1912, the first pubKc oflScial
designated as a "Public Defender" was

established in the United States. Miss
Kate Barnard, then Commissioner of Chari-
ties and Corrections in the state of Okla-
homa, designated Dr. John H. Stolper as
''General Attorney for the Commissioner of
Charities and Corrections and as Public
Defender of the state of Oklahoma." Al-
though he rendered conspicuously valuable
services to the people, his functions and duties
were widely different from the type of public
defender now being generally urged by the
leading exponents of the movement. There-
fore, the experience gained from his oflBce
is not important in the discussion of the
present plan.

During the year 1913, the people of Los
Angeles County adopted a charter (subse-
quently ratified by the State Legislature)

6 8x

82 The Public Defender

providing for the appointment of a public
defender. It provides among other things :

" Upon request by the defendant or upon order
of the court, the public defender shall defend,
without expense to them, all persons who are
charged in the Superior Court with the com-
mission of any contempt, misdemeanor, felony,
or other offense."

On January 6, 1914, Hon. Walton J.
Wood became the first public defender in the
United States of the tjrpe generally advocated,
and he has served in such office with great
distinction and ability. His conduct of the
office has amply justified the necessity and
reasons for its existence. In June, 1915, a
separate public defender was appointed for
the police courts of Los Angeles.

A voluntary public defender was appointed
for Houston, Texas, in June, 1914.

In May, 1914, a voluntary public defender
was appointed at Portland, Oregon, through
the co-operation of one of the judges and the
bar associations.

During March, 1915, Mr. David Robinson
was appointed the first official public defender
for Portland, ptirsuant to a resolution of the
City Council, which created the office.

The March of the Movement 83

In November, 1914, a voluntaxy pubKc
defender was appoint«i at Evansville, Ind.,
by the Mayor.

In September, 1914, a voluntary public
defender was established at the city of Temple,
Texas.

Mr. Richard S. Horton, of Omaha, became
public defender for Douglas County (Omaha),
Nebraska, pursuant to an act of the State
Legislature, in July, 1915.

On December i, 1915, Mr. Rollo H. Mc-
Bride, was appointed public defender of
Pittsburg, Pa., by the Mayor of that city.

In February, 1915, the Municipal Council
of the city of Columbus, Ohio, appointed
Mr. Cecil J. Randall as public defender of the
dty of Columbus.

It is sigmficant that all of these o£Scials
gave their unqualified endorsement to the
practical and succeslsful operation of the
oflBce and have expressed the hope that
the office will become universal in scope.

Many distinguished lawyers, judges, soci-
ologists and others, familiar with criminal
court conditions, have cordially approved the
plan ; religious, labor, welfare and other civic
organizations have passed resolutions favor-
ing the public defender idea.

84 The Public Defender

During the year 1915, there were 12 public
defender bills introduced in various state
legislattuies.

The idea has won the vigorous support of
leading newspapers and magazines, from
Maine to California. The public defender
proposal is no "passing fancy."' It is being
generally recognized as vital, ftmdamental
and humane. The American sense of ''fair
play" is the dominant note underlying the
force and development of the movement to
remedy inherent defects in the criminal sys-
tem. The advantages of the proposed plan
so greatly outweigh the objections thereto
as to justify giving it a fair test.

It requires merely the awakening of the
public conscience to bring about further pro-
gressive legislation. Our people are fully
alive to the economic, social and financial
needs of the country. "Preparedness" is
the national slogan of the day. In the
general desire to obtain adequate protection
from all manner of foes, within or without, we
must not overlook the importance of safe-
guarding the lives and liberties of our citizens
so that no injustice be done them. We
should make our judicial system safe from
attack. It should be emblematic of the

The March of the Movement 85

highest ethical principles. May we not
reasonably expect, when serious thought is
directed toward the consideration of a higher
ideal in the administration of justice, that
the people will, with all the force and power
of an aroused public opinion, demand the
establishment of a public defender?
It is a National Necessity,

APPENDIX

Chkonologt of thb Public Dbfbmdbs

CALIFORNIA

i9l3

I9I4

Januaxy

July

September

November
December

1915
January

February

June

First public defender's office established by
Los Angel^ County charter; labor unions
active in advocating office.

Walton J. Wood became public defender of

Los Angeles County.
San Diego County '' Federation of Trades and

Labor Cotmcil" advocated public defender

for City Justice's Court.
United States Commission on Industrial

Relations, took testimony as to advisability

of public defender, at Los Angeles.
Address by Hon. Walton J. Wood before

California Bar Association at Oakland, Cal.
Legislative and executive committees of

California "State Federation of Churches"

endorsed public defender movement.

Public defender bill introduced in State

Legislature.
Public defender bill endorsed by Orange

Cotmty Bar Association by vote 24 to 2.
Public defender biU passed in both houses,

by vote of 120 to 9.

87

_. /

88 Appendix

June Resolution passed by City Council of Los

Angeles, providing for appointment of
public defender in Police Courts.
** James H. Pope appointed public defender for

Los Angeles Police Courts.

NBW YORK '

April Public defender movement initiated in New

York by the author.

June Interview on public defender published in

New York Times.

July Criminal Courts Committee of New York

County Lawyers' Association appointed
sub-committee to investigate subject.

August County Judge F. H. Hazard, of Utica, en-
dorsed public defender proposals

September Phi Delta Phi Club "Committee of Seven"

made report.

November Criminal Courts Committee of New York

County Lawyers' Association filed report.

December Supreme Court Justice Wesley O. Howard

endorsed public defender proposal in public
address at Troy, N. Y.

igiS

January Law Reform Committee of the Association

of the Bar of the City of New York filed
report.

February Public defender bill introduced in State

Legislature by Senator George W. Simpson
and Assemblyman Daniel C. Oliver.
" Public defender bill endorsed by various mem-

bers of "Courts Committee" of Brooklyn
Bureau of Charities.
" Public defender debate before Association of

Grand Jurors, New York City.

Appendix

89

February

March

II

April

If

May

M

June

M

November
December

IQ16

January

II

PubUc defender proposal endorsed by Actors'
International Union of America (Local No.
I, New York City).

Public defender address at Hebrew Taber-
nacle, New York City,

Women Lawyers' Association endorsed Pub-
lic Defender Bill.

Public defender debate before People's
Institute, New York City.

Brooklyn Bar Association committee filed
report.

Public defender amendment to State Con-
stitution introduced in Constitutional
Convention.

Public defender amendment to State Con-
stitution endorsed by Labor Temple
Forum, New York City.

Public defender address at Church of the
Ascension, New York City, and proposal
favored by "Public Forum" of the church.

Public defender amendment discussed before
"Committee on County, Town & Village
Officers" of the Constitutional Convention.

Public defender proposal favored by Supreme
Court Justice Almet F. Jenks, before
"Judiciary Committee" of Constitutional
Convention.

Public defender lecture before Social Guild
of Williamsburg.

Public defender lecture before Labor Temple,
New York City.

Public defender lecture before Fortnightly

Library Club, Brooklyn.
Public defender lecture before Isaiah Temple,

New York City.

^480

Ol

90

Appendix

April

II

igiS
January

February

IQIS

January

February
March

IQ14

Public defender lecture before Workers^
Amusement Club, New York City.

Public defender lecture before New Era Club,
New York Qty.

OHIO

Public defender movement started in Cincin-
nati by Attorney Louis Tyroler.

Public defender established in Columbus, O.
— Cecil J. Randall made public defender.

OREGON

Public defender bill introduced in State L^s-
lature for Mtdtonomah County by Repre-
sentative Lewis, of St. John's, O.

Public defender established by City Council
of Portland, for Municipal Court.

David Robinson appointed public defender
for Portland.

NEBRASKA

State Legislature passed Public [defender bill
for Douglas County.
September Public defender plank inserted in Progressive

Party Platform.

IQIS

July Richard S. Horton became official public

defender of Omaha.

TEXAS

June

Public defender established in Houston, Texas,
by Attorney James Snowball on an unof-
ficial basis and office subsequently financed
by citizens.

Appendix

91

igi4

u

September Public defender established in Temple, Texas.
Public defender of Houston endorsed by
Peter Alexander Speek, of U. S. Commis-
sion on Industrial Relations.

igiS
January

March

igi4

March

December

IQ16
May

June

igi4

Public defender bill introduced in State
L^slature by Representative Beard, of
Houston.

Public defender's office endorsed at public
meeting at Houston.

PENNSYLVANIA

Congressman James H. Mayrer, of Reading,
President of Pennsylvania State Federation
of Labor, actively advocated proposed
public defender legislation.

Public defender proposal advocated by Prof.
A. J. Todd, Warden John Francis, and
Rollo H. McBride, of Pittsburg.

RoUo H. McBride, Supt. of "Parting of the
Ways liome," appointed first public de-
fender of Pittsbuig by the Mayor.

PubliQ defender movement started in Phila-
delphia by Attorney Samuel F. Wheeler.

United States Judge J. Walter Thompson, of
Philadelphia, appointed Attorney Samuel
F. Wheeler voluntary public defender at
request of district attorney.

INDIANA

November Attorney Frank C. Gore, of Evansville, ap-
pointed public defender by Judge Duncan
C. Givens, of the Circuit Court, until the
office could be tested.

92

Appendix

1915

August

1916
July

July

IQIS

January

zgi6
January

1914
October

14

GBORCaA

Public defender bill for Fulton County (At-
lanta) passed both houses.

Nine-tenths of the Atlanta bar expressed
approval of the public defender bill after
canvass made by Attorney William R«
Hammond, of Atlanta.

NBW JBESBT

Public defender proposal advocated by
Charles A. Wolverton, of Camden County,
formerly assistant district attorney.

Public defender bill introduced in State Legis-
lature by Assemblyman A. M. Henry, of
Jersey City.

Public defender bill re-introduced in State
L^;islature.

IOWA

Public defender proposal advocated by Frank
D. Wasson, of Cedar Rapids.

Public defender proposal advocated by Wes
Fiala, member-elect of Legislature.
November Public defender proposal advocated by

Cedar Rapids Gazette.

Public defender bill prepared by Senator
Francis A. Heald and County Attorney
Guy P. Linville, of Cedar Rapids.

191S
June

Public defender proposal advocated at meet-
ing of coimty attorneys.

Appendix

93

November

December

January

<i

igi6
July

1914

lassouxi

Public defender proposal advocated by Ed-
ward J. Fleming, in chaise of "free legal
department" of Board of Public Welfare.

Public defender proposal advocated by
Charles E. Waters, Secretary of "Missouri
Prison Rescue League," before City Club»
Kansas City.

Public defender biU introduced in State L^s-
lature.

Rev. E. A. Fredenbagen and a Elansas City
delegation attended State Capitol in sup-
port of public defender bill.

Public defender law recommended by the
"Federation of Improvement Associa-
tions" of Kansas City.

KANSAS

September Public defender proposal advocated by Prof.

C. H. Talbot, of University of Kansas.

1915
January Public defender biH introduced in State

Legislature by Representative E. E.

Stauffer.

I9H

March

MASSACHUSETTS

Massachusetts Commission on Immigration
reported to the Commonwealth that public
defenders be provided in Massachusetts.
September Public defender proposal advocated by At-
torney W. H. Barter, of Boston.

94

Appendix

IQZS

Februaiy

li

igi4

November

IQIS

Pebruaxy

March

April
May

IQZS

May

Public defender bill introduced in State

Legislature.
Public defender bill endorsed before jcnnt

"Committee on Judiciary" by W* H.

Barter*

ILLINOIS

Public defender proposal advocated by Chief
Justice Harry Olsen, of the Municipal
Court, Chicago, before "Legal Aid So-
cieties of America. "

Report favoring public defender proposal
made to the Chicago City Council "Crime
Commission" by Prof. Robert H. Gault
(of Northwestern University and Editor
of Journal of Criminal Law and Crtmi'
nology), Chief Justice Kersten, of the
Crindnal Court and Chief Justice 01sen»
of the Munidpal Court.

Public Defender's Association oi^ganized in
Chicago, consisting of forty lawyers volun«
teering legal services to indigents; attorney
John P. Tyrell, of Chicago, appdnted first
public defender by association.

Public defender bill introduced in State Legis-
lature by Representative G. N. McCormick.

Public defender bill for Chicago advocated be-
fore "Legislative Anti*Crime Committee"
by Alderman Charles £• Merriam, of
Chicago.

TBNNBSSBB

Public defender bUl passed by lower house of
State Legislature.

i

Appendix

95

WASHINGTON

1914

September Public defender proposal supported by Legis-
lative Federation of Women's Clubs of
King County.

Public defender proposal advocated by Alfred
H. Lundin, candidate for district attorney.

Public defender proposal discussed at Cham-
ber of Commerce, Seattle, by various can-
didates for district attorney.

II

II

igiS
January

> igi6
March

January
March

May

Public defender advocated before King
County Legislative Federation at Seattle,
by Mrs. Mary £. Howe.

Public defender proposal advocated editori-
ally by Taooma Labor Advocate as of par-
ticular interest to working classes.

MINNESOTA

Public defender bill introduced in State L^;is-

lature by A. L. Lennon,
Public defender bill endorsed by Hennepin

County del^ation.

Public defender plank inserted in Socialist
Platform (Jackson County).

UTAH

zpi4

November Public defender movement started.

1915

March

Public defender bill passed the State Senate
(introduced by Senator Frank Bvana, of
Salt Lake Qty).

96

Appendix

• 1916

February
March

VIRGINIA

1915
January

1916
May

1914
December

I9H

November

1914
November

1916

July

19x4

October

Public defender bill introduced in State

L^slature.
Public defender bOl for Norfolk passed by

legislature.

ARIZONA

Public defender proposal advocated by Gov-
ernor Hunt, in message to State L^;islature.

Public defender movement started by leading
citizens to secure passage of bill by 1017
legislature.

NORTH DAKOTA

PubHc defender proposal advocated by At-
torney Geoige A. Bangs, of North Forks.

IDAHO

Public defender proposal advocated by at-
torney M. H. Eustace, of Caldwell.

CONNBCTICUT

Public defender proposal advocated by
Senator James A. Peasley, of Waterbury,
Conn.

Office of public defender advocated by Hart-
ford Post.

NORTH CAROLINA

Public defender proposal advocated by
Charles H. West, of Wilmington.

tX

1.

Jan y - iy;ju

S

*t

*x