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THE REFORM OF LEGAL PROCEDURE.

BY MAX B. HARLIN.

UNDER the title of "Imperative Law Reforms" an article appeared in the July, 1911, number of THE EDITORIAL REVIEW from the pen of Mr. Edward J. McDermott, of the Louisville bar. The distinguished writer refers to law reform in England, and suggests that such reform there makes it "plain that we ought to reform and must reform, by radical measures." He refers to the trial of Dr. Crippen as an example of English justice because the defendant was convicted after a trial which lasted only four and one-half days. He calls attention to the Whiteley case where the defendant was convicted after only five hours had been consumed in giving a trial, and that only eight precious minutes of British time had been lost in securing a jury to try the case. He says that, "in England criminals. are neither coddled nor lionized," and calls the reader's attention to the fact that if a convicted person should have the arrogancy to say that the trial court erred, and appealed his case, the Appellate Court is liable not only to affirm the judgment but to increase the penalty.

Conceding, for the sake of argument, that Crippen was guilty and deserved the death penalty, I want to say that if all the accounts of that trial, which I have read are true, I thank God that I neither live in the jurisdiction of that court nor have to practice law before it. May I ever be delivered from appearing as counsel for any man being tried in a court where the malignant hatred and feeling of the mob in the galleries is deflected from the face of the presiding judge so strongly as to blind the jurors in the box. In Kentucky men are not convicted by scowls from the face of the court nor significant remarks of the judge in the presence of the jury. In Kentucky the trial judge does not indicate by the tone of his voice and his manner, when

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the defendant may have peremptorily challenged four or five of the jurors, that he had better stop such dilatory tactics. In our practice the court does not join hands with the prosecuting attorney to secure a conviction, and the reason is, that our judges recognize that a fair and impartial trial of any man charged with crime is the most sacred heritage that can be preserved to the American people.

Speed is not the only thing to be desired in criminal procedure. Under our law this is only one of the three great requirements. The defendant is entitled to a fair, impartial and speedy trial, and when the prosecution or the defendant is deprived of this the trial is a farce and a "hippodrome" which only brings the courts into disrespect and makes the people disregard the law. The Crippen trial is an example of needed law reforms in England only, and in my judgment it is not an example which can be pointed to by her with pride. I maintain that in so far as fairness and impartiality is concerned it was a miserable farce, but in considering its speed, I submit that for rashness and rapid action it can not be excelled, except by the men who conceal their features with masks and burnt cork in order to wreak vengeance upon some person charged with crime, without a trial of any kind by a jury of impartial men.

Mr. McDermott in his article, as an illustration of the court's delays, cites an isolated case of an old woman who died just as she was about to receive an estate valued at $75,000, after her case had been in court for many weary years. To my mind this does not prove that the delay was occasioned by the courts nor on account of faulty procedure. It might have been the fault of her lawyer. It might have been her own fault, and to say the least, if it took several years to get the matter in proper shape for the court of last resort to pass upon it intelligently, and render an opinion justified by the law and under which the old lady was given judgment, it was better than for the matter to have been disposed of without due legal course, for she might have lost her case entirely. To be sure some lawyers give more attention to technical quibbles than to the merits of the case, but this class of lawyers is fast being relegated to the rear in our profession, and in order for technicalities to be considered they must be of a substantial character.

The writer names five "greatest hindrances to justice in our criminal courts." As to the first-unpunished perjury, loss of

witnesses by delay and corrupt dispersal of witnesses-how would he remedy any of these evils? Would he effect one by legislation? I think not, because our statutes cover every phase of perjury. The law is ample in every respect to reach any man who disperses or attempts to disperse witnesses, and as far as delay is concerned we have at least three terms of court during the year in every county of this state for the trial of criminal causes, and my observation from sixteen years' constant practice has proved to me that unnecessary delays are rare exceptions. In so far as any delay by reason of appeals is concerned I beg to call attention to the fact that under our procedure criminal causes stand first for hearing on the docket of the Appellate Court, and if any criminal appeal is filed after the beginning of the term it is taken up at the end of ten days, When the appeal is taken the trial court can only suspend the judgment for sixty days in order for the transcript of the record to be made to present to our Court of Appeals. This does not occur to me as much ground for reform so far as delay is concerned.

Another of the "greatest hindrances" is the refusal of courts to compel a defendant to produce documents or other physical things that may make his guilt clear. How will he remedy this trouble? Would he take away every protection given the accused by virtue of our bill of rights? Will he nullify the plain provisions of our Constitution?

Suppose a man is being tried on a charge of murder and the prosecuting counsel has failed to establish the corpus delicti, but he believes that the accused, after the murder, secreted the body. What is to be done? Bring the accused around and have him disclose to the court and jury where the body might be found? Or, better still, have him go in custody of the sheriff to bring the body into court? But suppose he refuses to be so obliging. Suppose he declines to tell anything that will incriminate himself? What is to be done? There is but one way to proceed if the prisoner should refuse, and that is for the court to lay aside the judicial ermine and convert itself into a second Torquemada; then have the thumb screws and the rack brought in and the Spanish inquisition will again be in full blast! Without that protection given us, whereby we can not be compelled to testify against ourselves, our criminal procedure would be farcical.

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