;::Sv;v>iVi?iSs' B4664p 1921. LIBRARY OF CALIFaKSDQS PROSECUTION By ALFRED BETTMAN PART II OFTHE CLEVELAND FOUNDATION SURVEY OF CRIMINAL JUSTICE IN CLEVELAND Price $1.00 PROSECUTION VIIE CLEVELAND FOUNDATION HOi Swotluml Building, Cleveland, Ohio COMMITTEE J. D. Williamson, Chairman Thomas G. Fitzsimons Malcolm L. McBride W. H. Prescott Belle Sherwin Leonard P. Ayres, Secretary James R. Garfield, Counsel Raymond Moley, Director THE SURVEY OF CRIMINAL JUSTICE Roscoe Pound 1 Felix Frankfurter j Amos Burt Thompson, Chairman of the Advisory Committee PROSECUTION BY ALFRED BETTMAN OF THE CINCINNATI BAR ASSISTED BY HOWARD F. BURNS OF THE CLEVELAND BAR PART II OF THE CLEVELAND FOUNDATION SURVEY OF CRIMINAL JUSTICE IN CLEVELAND Hip (^ V Copyright, 1921, by The Cleveland Foundation J FOREWORD THIS is the second section of the reports of the Clevehind Foundation Survey of Criminal Justice in Cleveland. The first was on The Criminal Courts, by Reginald Heber Smith, assisted by Herbert B. Ehrmann. Other reports to be pubhshed are: Police, by Raymond Fosdick The Treatment of the Convicted, by Biirdette G. Lewis Medical Science and Criminal Justice, by Dr. Herman M. Adlcr Newspapers and Criminal Justice, by M. K. Wisehart Legal Education of the Cleveland Bar, by Albert M. Kales Criminal Justice in Cleveland, a Suimnary, by Roscoe Pound The reports are being published first in separate form, each bound in paper. About November 1 they will be available in a single volume, cloth bound. Orders for subsequent separate re- ports or the bound volume may be left with book-stores or with the Cleveland Foundation, 1202 Swetland Building. 7312.2:0 tAVV PREFATORY NOTE IN presenting this report of the Division of Prosecution of this survey, I desire to acknowledge the uniform courtesy accorded to me by Prosecuting Attorney Edward C. Stanton, Chief Municipal Prose- cutor Oscar Bell, and their assistants on the many occasions when I went to them for information. Every request for information or for permission to examine their files was graciously received and granted. We met with the same uniform courtesy and willingness on the part of all the officials of the clerks' offices and the other city and county departments engaged in the administration of justice. I also desire to take this opportunity to thank the members of the Advisory Committee of the Cleveland Foundation, to whom we could always turn for both information and advice. To Mr. Amos Burt Thompson, the Chairman of that Committee, a special expression of gratitude is certainly due, both from ourselves and from the people of Cleveland. He gave unsparingly of his time and thought, and whatever of value there may be in this report would have been impossible without the patient and constant service which he rendered. Mr. Howard F. Burns, Attorney-at-Law of Cleveland, is to be cred- ited with the field work for this report. He explored and gathered most of the data set forth in it. More than that, he gave to the work most val- uable initiative and ingenuity. If this report proves to be useful in im- proving the administration of criminal justice in Cleveland, a very large share of the credit belongs to him. In general, I desire to express appreciation for the uniform patience and courtesy which I received from all judges, lawyers, and other citizens of Cleveland. In almost every paragrai)h of this report where some statement is made critical of some; feature of the enforcement of criminal law in Cleveland there might truthfully be added some such expression as "like other American cities" or "this is equally true of other American cities." This expression was omitted, firstly, because the repetition of it would have become tiresome, and, secondly, because the work assigned to us was not a survey of the administration of justice in the United States, I vii ] but in drvoliiiul. 1 am usiufz; this ])i('fat()ry note to remove any impres- sion wliieli the report miglit create that in respeet to matters wliicli have been eritii'ized C^Ievehiiul forms an exception among American cities. Clevehuul was wiUinp; to be surveyed, to have the faults of its adminis- tration of criminal justice pointed out — which places it in advance of most other American cities. Alfred Bettman (viiil TABLE OF CONTENTS PAGE Foreword v Prefatory Note vii List of Tables xi List of Diagrams xii chapter L The Place of Prosecution in Criminal Justice 1 Some Fundamental Assumptions 1 The Sj-stem in Outline 2 Prime Importance of Municipal Court and Prosecutor 3 n. Case Mortality 5 The Story Told by Statistics 5 The Mortahty Tables 7 WTiat Becomes of the Felony Cases 7 in. The Municipal Court in Operation 13 Large Number of Cases; Unclassified Dockets; Excessive Speed 26 Negative Part Played by Prosecutor 30 No Stenographic Reports — Opportunities for Perjury 32 IV. The Municipal Prosecutor's Office 33 History 33 Office Organization 34 Laxity in Custody of Affidavits 35 Record System 36 Personnel 48 V. Operation of the Municipal Prosecutor's Office 51 The Affidavit 51 Sifting of Cases 52 County Prosecutor Does Not Participate in Early Stages of Case 54 Cases in Appellate Courts 55 Statistics of Results of Cases 56 Di.spositions Without Trial 58 "No Papers" or "No-papering" 59 Nolles 60 Acceptance of Plea-s of Ixjsser (JfTcnse 65 SusiKinsion of Sentences 66 Mitigation of Sentences 69 The Rail Bond 70 llour.s of Work; Private Practice 72 VI. The County Prosecutor's Office 75 History 75 Oiriiin.'il Court in Opcmtioii 76 lixl CHAITER PAOK Oflioo Organization 7S Record System 79 Personnel 79 VII. (^I'KKATIOX »)K TIIK CoUNTY PllOSEClTTOu's OfFICE 83 Preparation of Cases 83 Assignment of Cases 89 The Crand Jury 89 Statistics of Results of Cases 93 "Ncvbilled" Cases 93 Nolles and Acceptances of Pleas of Lesser Offenses 94 Suspension of Sentences 96 The Bail Bond 98 Forfeited Bonds 99 Ctises in the A])pell,ate Court 101 VIII. The Federal Coukt and United States Attorney 102 Comparison is Possible 102 IX. The Lessons and the Remedies 106 General Considerations 106 The Municipal Prosecutors 108 The County Prosecutor 111 Municipal Court Procedure 112 The Segregation of Trials or Calendars 113 Arrest and Summons 116 Stenographic Report of Testimony 117 General Aspect of the Trials 118 Record Systems in Municipal Court and Prosecutor's Office 119 Disposition of Cases by the Prosecutor Himself 119 Conciliation by the Prosecutor 119 "No Papers" 120 Nolles 121 "No Bills" 121 Acceptance of Lesser Pleas 121 Suspension and Mitigation of Sentences 122 The Preparation of Cases 122 The Grand Jury 124 Simplification of the Bail Bond System 126 The Place Where Criminal Justice is Administered 127 Salaries, Terms, and Selection of Personnel 127 X. The Bar and the Community 130 The Bar 130 Criminal Practice and the Bar 132 The Duty and Responsibility of the Bar 133 The Community 136 [X] LIST OF TABLES TABLE PAGE 1. Mortality Table of City Misdemeanor Cases, 1919 -1920 7 2. Mortality Table of State Misdemeanor Cases, 1919-1920 9 3. Mortality Table of Felony Cases, 1919 11 4. Prosecutions for Perjury and Subornation of Perjury 31 5. Comparison of Growth of Population, Number of Arrests, Number and Salaries of "Police Court" Prosecutors, 1863 to 1920 33 6. Outcome of Cases Carried to the Court of Appeals, 1919 and 1920; Classi- fied According to the Filing of Briefs 56 7. City Cases, Municipal Court, 1919-20; Disposition of Cases Classified by Charges 57 8. State Cases, Municipal Court, 1919-20; Disposition of Cases Classified by Charges 57 9. State Examinations, Municipal Court, 1919-20; Disposition of Cases Classi- fied by Charges 58 10. State Cases Classified by Charges and by Dispositions and Degree of Suspen- sion of Sentences 67 11. City Cases Classified by Charges and by Dispositions and Degree of Suspen- sion of Sentences 68 12. Sentences Classified by Types and by Degree of Suspension, State Cases 68 13. Sentences Classified by Types and by Degree of Suspension, City Cases 69 14. Number and Outcome of Suits upon Forfeited Bonds 71 15. Comparison of Growth of the Population and Number of Arrests, with the Number and Salaries of the County Prosecutor's Staff, 1863-1921 75 16. All Indicted Cases, Common Pleas Court, 1919, Classified by the Prosecutor in Charge and by the Disposition 81 17. Average Number of Days Used in Disj)osing of Cases Originating in the Several Courts, Common Pleas Court, 1919 84 18. Cases in the Common Pleas Court, 1919, Classified by Disposition and by the Number of Dajs (A) from Arrest to Disposition, (B) from Indictment to Di.sj)o.sition, and (C) from Arrest to Indictment, Grouped According to the Orii^in of the Cases 85 19. Accumulation of Work in Common Pleas Court During Summer Vacations, 1916-1920 86-87 20. Number of Grand .Jurors .\ppointed by Presiding Judge from Sources Other than the Original Panel 90 21. Numl>er of Original Panel and Judge Selections (25 Men in Panel for Each Term) 91 22. All Cases in the Common Pleas Cn(ler increasingly determined by means of medical, psychologic, or similar ' Prosecutions for violation of State laws arc hroiijiht in tin' n.-mn' nf tlic States of r)liio; those for the violation of niy penal onlinaiiccs in tlic name of llic rily of Cleveland. 2 II] pxaiiiinntions, still, for n lone; time to como, most cases will be treated as iiivolvinji; law rnforciMiuMit and adniiiiistration of justice, and the function of the pros(>cutinfj; attorney will remain substantially as at present. In short, the scope of this report does not include a discus- sion of any question of abolishing; the prosecutor: it seeks to appraise the success with which the prosecutor is performing the task assigned ^0 him. The American political and constitutional system will also be as- sumed. This study does not aim to go beyond practical suggestions for the improvement of the administration of justice which are easily avail- able to Cleveland without any fundamental changes in either the politi- cal or social sj'stem or the treatment of crime. The System in Outline Criminal justice in Cleveland is administered mainly in the Court of Common Pleas of Cuyahoga County and the Municipal Court of Cleveland. Prosecutions before grand juries and county courts are in charge of the prosecuting attorney of Cuyahoga County; those in the Municipal Court are conducted by the prosecuting attorney of the Municipal Court. The records show that about 10 per cent, of the county cases originate in the grand jury and these involve no work of the municipal prosecutor. No record is made of matters which are presented to the grand jury but in which no indictment is found, and these matters involve no official work on the part of the municipal prosecutor. About 4 or 5 per cent, of the cases reaching the county courts, and included in the statistics contained in this report concerning county cases, arise in territory within Cuyahoga County, but outside of the city of Cleveland, and therefore beyond the jurisdic- tion of the Municipal Court or municipal prosecutor of the city of Cleveland. The remaining cases fall within the jurisdiction of the Municipal Court of Cleveland and are in charge of the municipal prose- cutor of that city. The facts and statistics set forth in this report con- cerning that court and prosecutor relate to these cases. Jurisdiction over the accused is obtained bj'- arresting him. The arrest ma}' precede the making of the charge and the warrant of arrest, as, for in.stance, in the case of an arrest made by a police officer who is present at the commission of the offense and makes the arrest upon the basis of that which he himself sees. Or the arrest may follow the affi- davit setting forth the charge and the issuance of the warrant thereon. In either event the case is placed on the docket of the Municipal Court, where the case is either dropped or given a preliminary hearing or tried. Basing the classification upon jurisdiction of the courts, the cases may be divided into three general classes: 1. Charges of violation of a municipal law or ordinance; that is, municipal offenses where the trial of the case itself and the final sentence in the case take place exclusively in the Municipal Court. 2. Cases involving violation of State statutes of a minor degree, that is, state misdemeanors, where the Municipal Court is given the jurisdiction of a minor State court. 3. Violations of State law, where the offense involved is more serious and the sentence of imprisonment in the State penitentiary or other State penal institution is allowed — that is, state felonies. In these cases the Municipal Court acts as the court of preliminary examination to determine whether suf- ficient basis of fact exists for any further proceeding. The case, however, is not tried in the Municipal Court, but is tried by and judgment rendered by the Common Pleas Court. All three classes, therefore, involve a hearing of a more or less final nature by the Municipal Court. In all proceedings in this court the State or city is represented by the prosecuting attorney of the Municipal Court. This official belongs to the department of law of the city of Cleveland, being appointed by the Director of Law, and, theoretically at least, his assistants are also appointed by the Director of Law. Con- sequentl}^, in all cases the work of the municipal prosecutor chrono- logically precedes the work of the county prosecutor, and the hearing in the Municipal Court chronologically precedes the proceeding in any other court. Prime Importance of Municipal Court and Prosecutor In setting down the facts regarding the administration of criminal justice in Cleveland, therefore, the description of the work of the muni- cipal prosecutor and Municipal Court naturally comes first in order. This order of precedence, however, is justified on deeper and more sig- nificant grounds than mere chronological sequence. For, though the public is not always conscious of it, the police court or criminal branch of the Municipal Court and the officials who conduct its work are the most important of all the tribunals and officials engaged in the admin- istratif)n of justice in any community, especiall}^ where, as in Cleveland, the municipal prosecutor has charge of the early stages of State cases. lie has the function of deciding in the very beginning whether any criminal proceeding be brought at all, and in most cases, even where an arrest has been made, it is the municipal prosecutor who lias the responsibility and duty of sifting out at the starl the cases which justify subjecting a person to the pains and penalties of i)r()secution. And when we come to observe tin- mere volume of criininal cases in Cleve- land and the bearing of that volume on the possibihties of efficient administration, we will realize the importance of the municipal prose- cutor as a sifter of the material to go into the mill. More than that, the office of the municipal i)rosecutor and the Municipal Court are the points of contacts with the administration of justice of the overwhelming majority of the inhabitants who come into any contact with courts or court officials. There the great bulk of the population will receive its impressions regarding the speed, certainty, fairness, and incorrui)tibility of justice as administered. For law to be effective there must not only be justice, but also the appearance of justice — that is a truism which requires no elaboration. As a deterrent of crime, with the possible exception of the police force, the Municipal Court is more important than any other of our institutions. The work of the municipal prosecutor may not end with the Muni- cipal Court, for if the case, being a municipal or a state misdemeanor case, is tried by the Municipal Court and results in a judgment or con- viction and sentence, the defendant may carry the case up on error to the Court of Appeals. Proceedings in error of this nature involve the same sort of questions as in civil cases — that is, the appellate court simply hears arguments upon questions of law and decides the case in the light of the arguments and the record of the hearing in the Muni- cipal Court. Some cases may be carried to the Supreme Court of Ohio. The presentation of the city's or State's side of these appellate cases is in charge of the municipal prosecutor. Where, however, the Municipal Court acts simply as a court of preliminary examination, — binding the defendant over to the grand jury, — then from that moment the charge of the State's case falls within the jurisdiction of the county prosecutor. It becomes the province of the latter official to present the case to the grand jury, and if the grand jury finds an indictment, to try the case before the trial court and jury. Cases which do not come up from the Muni- cipal Court but are initiated in the grand jury are in charge of the county prosecutor from the beginning. He has the opportunity, within certain limitations, at any stage previous to the verdict of the trial jury, to drop those cases which he deems insufficiently proven to justify any further proceeding. Consequently, from the binding over of the accused to the grand jury or the initiation of the case there, the obser- vation of facts and data will relate to the grand jury and the county courts and office of the prosecuting attorney of Cuyahoga County (which official, for purpose of abbreviation, we shall henceforth call "county prosecutor"). He is an elected official, and, theoretically at least, ap- points his own assistants. [4] CHAPTER II CASE .MORTALITY The Story Told by Statistics NATURALLY the first questions for the survey are: What is the number of criminal prosecutions in Cleveland? What are the different stages through which they go? What are the different points at which they may be successful or lost or dropped or disappear? What are the different steps at which the capacity or incapacity, the honest}' or corruption of the prosecutor, may play a part? What has actually been the result of the work of the offices of municipal and county prosecutors in Cleveland? The answers to these questions have been sought objectively by means of a representative body of statistics. These tables of statistics will be permitted largely to tell their own story. In reading such sta- tistics and drawing conclusions therefrom, we must necessarily formulate more or less consciously some standard or measure of efficiency and success. The acquittal of an innocent man obviously cannot be treated as a failure in the administration of criminal justice, however disap- pointed the prosecuting attorney may have been about losing the case. If at any stage of a case, and after thorough investigation, the prosecut- ing attorney becomes conscientiously convinced that there is no proof of crime, it is his duty to "nolle" the case. Such a "nolle" is not a failure in the administration of criminal justice. There may have been some inefficiency somewhere along the line which resulted in the necessity of a "nolle," and acquittal may have been due to ineffi- ciency in preparation of the case and not to the innocence of the accused. The more highly efficient the preparatory steps and preliminary stages, the less likely will l;e the necessity of trying cases against innocent men or ill-prepared cases against guilty ones. Consequently, a high per- centage of ca.ses which fail at various .stages is an indication of some- thing wrong in earlier stages. Statistics of the results of cases, there- fore, while perhaps not cai);il)I(' of exact interpretation, do furnish significant indication of the cflicicncy of the system. [6] For tlu> juirposo of ans\v(Miii> a s s i o ^ (4 tences rely ended IS 5 t— 4 ♦^ *> a> s i: ^ p. o d a s to C ' 'f ^ M .H s >» •d o *> *> o *» r-< to r^ a o a 1^ < 1 a - o = U 09 o P. ^1 tS ■t> © r* o o <-* o. H o C o d Q r-l to C Q. V( r-< o o i^ •"• i^ t^ a o ■? 00 r-l lets O '-I o „ 1— I *J Q. "^ '3 o •=! a a ft 3 1> ?> ^ o Q-3 u o c e3 'a c3 O O rHO _ --I O Oi C3-3 -C G 3.S .5 o C C X V to Id 01 a D o r: 0) 9 tJ s -1 C ^ « « .-1 c o g 4J V. 3 4> t5 o d a S to a C a « o< p» r- > TJ o ^ *i « ** «-4 M •-t • o 1 < I a - O r *y «> c O o •-• p. 9 o a o d Q .-H nunilxM- of cases originating in the Municipal Court. For 4 g-oilty of lesasr offgr.co or dl»icl»eej irjKtCirAL COUKT 100 CASKS 12 discharged as not gvdlty 10 nolled and "no paper*" 74 bound over to Grand Jury 74 CASES BOUKD OVER 7 otherwlge dlBpoaei of without ientonce 16 no bill by Graril Jury 9 nolled by prosecutor 5 acquitted by Jurj 37 guilty and sentenced 37 SEKTENCES 6 sentence* suspended 29 sentences •xAcutad 29 SEKTENCES TXECUTED 7 fines 7 ln53rlsonment in workhouse 16 Imprisonment in penitentiary or refomator/ Diagram 3. — What happened to each 100 felony cases beginning in the Municipal Courts, 1919 instance, as an illustration, take the item "nolle prosequi in all courts." As shown in cohiinn 3, 12.33 per cent, of the cases received this disposi- tion. As Part A shows, 73.87 per cent, of the felony cases in the Muni- cipal Court are bound over. If 12.33 per cent, of these are later "nolled," then it follows that the percentage of all felony cases originating in the [10] TABLE 3.— MORTALITY TABLE OF FELONY CASES, 1919 1 2 3 4 Percent. 5 6 Percent. Num- Percent. of cases Percent. of cases Num- ber of cases ber of cases remain- of cases remain- of cases Common ing Muni- ing re- Pleas Common cipal Muni- main- Court Pleas Court cipal ing base Court base biise Court base A. In the Municipal Court Total 3,927 , , . . 100.00 100.00 Discharged 483 3,444 . . 12.30 87.70 "No papers" 70 3,374 1.78 85.92 Nolle prosequi 312 3,062 7.95 77.97 Dismissed for want of prosecution 57 3,005 1.45 76.52 Other dispositions not re- sulting in sentence 24 2,981 0.61 75.91 Charge reduced; total (SO) (2.04) Plead guilty ; sentenced 45 2,936 1.15 74.76 Plead not guilty; sen- tenced IS 2,918 0.46 74.30 Plea unknown 17 2,901 ■ • 0.43 73.87 Bound over 2,901 B. In the Common Pleas Court Total 3,236 100.00 73.87 73.87 No bill 697 2,539 21.54 78.46 15.91 57.96 Nolle prosequi on all counts 399 2,140 12.33 66.13 9.11 48.85 Nolle prosequi after new trial is ordered 13 2,127 0.40 65.73 0.30 48.55 Nolle prosequi after jury disagreed 6 2,121 0.19 65.54 0.14 48.41 Acquitted first trial 223 1,898 6.89 58.65 5.09 43.32 Acquitted second trial 5 1,893 0.15 58.50 0.11 43.21 Nolle prosequi, convicted or in prison on other charges 84 1,809 2.60 55.90 1.92 41.29 Discharged on demurrer 5 1,804 0.15 55.75 0.11 41.18 Discharged on motion to discharge 10 1,794 0.31 55.44 0.23 40.95 Discharged for want of prosecution 16 1,778 0.49 54.95 0.36 40.59 Bail forfeited or never in custody 90 1,688 2.78 52.17 2.05 38.54 Miscellaneous dispositions resulting in no sentence 92 1,596 2.85 49.32 2.10 36.44 Convicted of rni.sd(!rneanor 74 1,522 2.29 47.03 1.69 34.75 Original f)Ioa guilty of les- ser ofTfIIS(! 22 1,500 0.68 46.35 0.50 34.25 Changed plea not guilty to plea of guilty lesser offense 193 1,307 5.96 40.39 4.40 29.85 Original plea guilty of ofTense charged 433 874 13.38 27.01 9.88 19.97 Charigf'd pica not guilty tf) guilty of o(T(!iis(; charged 550 324 17.00 10.(11 12.. 56 7.11 C>)nvict^'d of felony 293 31 9.05 {).<)() 6.6'.) 0.72 Miscellaneous rombina- tioris of {)leas; sentenced 17 14 0.53 0.43 0.39 0.33 Other (liH|)OHition8; sen- tenced 14 0.43 0.35 Sentence execute<^l, 78.11 per cent. Sentence Huspended, 21.89 per cent. II Munii'ipal Court (;?,027) which :iiv uUiinatoly "nollod" l)y the county prosecutor :ift(>r th(\v iuv in liis charge^ is 73.87 per cent, of 12.33 per cent., namely, 9.11 piM- cent. — which is (he figure found in column 5. The item "Misct'llaneous dispositions resulting; in no sentence" includes disposition such as ahat(Mncnt by d(Mth of defendant, conunitment of In the MmUclpal Court MI SDa.lEA)."ORS In the CoTvnon Pleas Court FEL0inE3 58 plaad guilty 42 plead not guilty 1-1 plead guilty of leaoer offonoe 27 mode original plea guilty of offense charged 35 changed plea from not guilty to gul Ity 24 plead not guilty and were convicted Diagram 4. — How each 100 sentenced defendants pleaded defendant to a non-penal institution, dismissal of case on demurrer, etc., in which the case was neither tried nor dropped by the prosecutor. Supplementing these tables and diagrams is Diagram 4. It shows the number of each kind of plea made by those sentenced. All the mis- demeanor cases are lumped in one column, because the difference be- tween city cases and State cases in respect to pleas is very slight. [12] CHAPTER III THE MUNICIPAL COURT IN OPERATION THE Municipal Court forms the stage upon which the municipal prosecutor plays his part. He can play this part well only if the settings permit. The orderliness and dignity or the disorder- liness and slovenliness with which the court itself proceeds necessarily have an effect on the prosecutor's work, and his work, in turn, reacts upon the court. On March 23, 1921, the maker of this report watched one of the rooms of the Municipal Court in operation. There was no malice afore- thought in the choice of room or day. Immediately after the visit the following memorandum of impressions received was made: "I spent the whole morning in this court-room, arriving promptly at 9.^ There was as yet no evidence that any court would be held that day, except the docket book lying open on the table and a few stragglers in the spectators' benches. It was fully 9.30 before the judge appeared and fully 9.45 before he gcjt under way. By that time all the seats and aisles were filled with people — policemen, defendants, lawyers, spectators. The atmosphere of the room was extremely sordid. It was a room about 40 feet square, walls painted in an ugly yellow, made still more ugly by accumulated soot, and no decorations of any kind whatever. Though I sat within 15 feet of the bench and witness-chair and strained my ears, I could seldom catch a word of what was going on. From the beginning to end the whole proceeding seemed to me one calculated to impress the spectator with at least the suspicion that the main influence at work was not ■ The rules of the Municipal Court of Cleveland on the subject of sessions of court provide: "The .sessions in the civil liniiicli of this (ujurt sliull be from S o'clock a. m. until 11 o'clock A. M.. and from 12 o'clock m. until 3 o'clock p. m., central standard time, on each week-day, except Saturday, when the session shall Ik- from S o'clock a. m. until 11 o'clock A. M., ccritnd stiuidard tiino; and the sessions in tlm criminal hr.uich of this court shall he from l.'M o'clock a. m. until 11 o'clock a. .m., and from 12.'.H) o'clock I'. M. until '.i o'clock P. .m., central standard time, on each week-day, except Saturday, when the session shall he from 7.;'.() o'clock a. m. until 11 o'clock a. m., central standard time." I i:n tho ovidtMK'o (M' judicial procoiliiro as wo know it, hut oithor strange influences not auilible in tho ODurt-iDoni or things that wore whispered into the ear of the judge. "The cases are called by number, with only occasionally the name of a defendant also adilod. The witnesses are sworn by a form of oath which identi- fies every case under the expression 'ponding case,' without reference to either tlie number or tho names of the defendants. The prosecutor had no papers whatever. lie lolleil against the bench. For each case he was handed a copy of the affidavit and that is all he ever looked at. He took a glance at the paper to ascertain the nature of the case. He then mumbled something to the judge, whereupon the case was often announced as 'continued' or 'no-papered' or a light line or sentence given. Other times he called the police officer or other chief prosecuting witness and mumbled some question which started the witness off, and generally that was the full extent of the participation of the prosecutor. "In a few cases the attorney for the defense took part in the interrogation. Generally, however, he seemed to simply wander and stand around, mysteriously going in and out, sometimes approaching the bench, sometimes going to the benches and talking to somebody, and every once in a while somebody would go up and whisper something into the judge's ear. Seldom were all the witnesses sworn in any case actually called to the stand. "While this mumbling and whispering were going on in the immediate vicin- ity of the bench, the main aisle leading in from the door into the court-room and to the bench was the scene of constant goings and comings. It was never quiet a second. Walking around, standing around in groups, moving around hither and thither, went on constantly. Not only was it impossible to hear what was going on in the trial, but it was generally impossible to see what was going on. One or two well-tried — that is, by the defense — and well-fought — that is, by the defense — liquor cases were the only exceptions to the above picture." In order that we might get the picture as seen by a more highly trained observer, an experienced newspaper reporter, but one whose work had not previously included a police court, was asked to observe these cruninal rooms of the Municipal Court in action. He reported: "On the morning and afternoon of April 8 and on the morning of April 9, 1 visited the court of Judge A in Room 2 of the Police Headquarters Building, and the court of Judge B in Room 1 of the same building, for the purpose of observing as closely as possible the details of the handling of cases. "Judge A's court was by far the more objectionable. The environment is anything but conducive to respect for the law. The room itself is inexcusably dirty, dark, and noisy. From the four doors there is a constant stream of visitors, witnesses, court attendants, probation officers, and attorneys filing around the edges of the room. "The confusion is enhanced by the way in which cases are conducted. The witness-stand is but a few feet from the seat of the judge, so that whatever [14] questioning is going on is inaudible 10 feet away. Reporters who are 'covering' the court are forced to lean over the back of the witness-chair in order to hear. It is easy to see why newspapers often get court reports mixed up. "At many times during the trying of cases there were as many as 40 persons gathered closely around the witness-stand or within 10 feet of the bench. This gathering was not confined to those persons taking part in the case under con- sideration, but consisted largely of attorneys waiting for their own cases to be called. There was no method of distinguishing prosecutors from witnesses or attorneys from prisoners. "A large part of the day was taken up by conversations which went on in undertones between the judge and attorneys or prosecutors. These conversa- tions had largely to do with pleas for continuance or excuses for the non-appear- ance of clients. If these conversations constitute part of the dispensing of justice, no one except the parties conversing could tell. "The only case in which I was able to get any detail was that of a man named Fred Meyer, who, it seems, should have appeared in court to face a charge of violating the traffic ordinance. Apparently he had been summoned for the day before (Friday) and had not appeared. After questioning the attor- ney who represented Mr. Meyer, Judge A mentioned something about contempt. The attorney left the bench but returned a few minutes later and pleaded for a closing of the case, saying he would take the blame for the non-appearance of his client. The judge smiled and pronounced a sentence; I believe it was $10 and costs. " Non-appearances seemed to be in fashion at this court. In at least a dozen cases neither the accused nor the policemen nor detectives were present at first. The cases were called again and again, some of them being heard with part of the witnesses present, others apparently going by default. I did not hear the judge order a single person brought in or mention 'contempt' once. He may have done so, but if he did, it was in a whisper. "Frequently Judge A was conversing with the clerk or some other person and was not in a position to hear the evidence being brought out. At all times he was conducting ca.ses in a spirit of complete boredom. "Prosecution of cases was conspicuous chiefly by its ab.sence. Nine-tenths of the questioning of witnesses was done by the attorneys for the defense. The prosecutor was present during part of some ca.ses and absent during all of some. In not one case which I observed was he present at a complete trial. Ilis chief function seemed to be to assist the bailiff in rounding up witnesses and in inform- ing the judge of facts regarding the cases which the blotter did not show. This lack of pro.sccution was .so obvious it was almost laughable. "Swearing of witnes.ses was done in most cases, though not in all. I saw no attempt to manhandle or intimidate the foreigners who thronged the court. The treatment accorded tlicuii was courteous on the whole. In fact , a si)irit of levity was reached in s(;Mie of tlu; cases. There was a total lack of dignity in all. "Judge B's court was much niorr di^:;nirn'(|, dcspiU- his liaKil of repeating the quotation — 'how much money has the prisoner Rot?' — before pronouncing sentence. He asked this question mostly in cases where men had been given time in wliich to4)ay large fines and had been brought back for failure to make good. On being informed (correctly or otherwise) of the status of the prisoner's pocket-book, tiie judge then reduced the fine in practically every case. "After one such case, in which the fine had been reduced from $300 to $150, the judge jokingly asked the attorney who had represented the prisoner how much he got out of the man. ' One hundred dollars,' said the attorney, and they both laughed. "On the whole, Judge B's court was somew'hat impressive. The court was more open as to conversation, and the judge attempted to impress on the prisoners the seriousness of their position. Judge A took no pains to say any- thing to the prisoners. "There was less crowding around the bench and less conversation than in A's court. In both there was much delay in getting cases started because of missing witnesses." A description was also requested from a capable Cleveland attorney sufficiently familiar with the Municipal Court to be able to interpret many things which might puzzle the lay spectator. He reported: "To an3'one who has seen the criminal branch of the Municipal Court, commonly called the police court, in operation, it is obvious that an observer can secure only the most superficial information unless he were to spend at least ten daj's continuously in that court. Confusion reigns supreme, and the tramp- ing of witnesses and spectators back and forth across the court-room, together with the frequent rapping of the bailiff for order, are interruptions which are all too frequent, especially in view of the fact that the proceedings are usually con- ducted in very low tones. The usual number of spectators who apparently have no business in police court but who are always there and who are reputed to represent various lawyers appearing there, are to be found in both court- rooms every day. "On Tuesday, April 26, at the morning sessions, the following incidents were noticeable: In Room 2, Judge A presiding, the court opened about 9.05 and immediately proceeded to hear cases, princijially of traffic violations, without the presence of a prosecutor in the room. Most of these cases were disposed of very (}uickly by hearing the brief statement of the traffic officer and the defendant himself — fines usually running $5.00 and costs. About 9.45 Prosecutor Novario entered and, after advising the court that two cases were 'nolled,' proceeded to conduct the prosecution. Throughout the proceedings there was considerable banter exchanged between tiie court and the prosecutor, usually with reference to liquor law violations, with such remarks as, 'What were you drinking, coal oil or ga.soline?' 'Can you tell us where you got that stuff?' 'Must have been drinking a high explosive,' and other remarks of a similar nature. First question addressed to witnesses for either prosecution or defense was usually, 'What [16] happened in this here case? ' No trouble was taken to ask any of the witnesses their names or whether or not they had seen the incident. In other cases, involving traffic violations, the first question asked by the prosecutor was, 'What do you want to do, kill ever>'body in Cleveland?' and in other cases it was, ' What do you mean driving a million miles an hour on the street? ' It was observed in this court-room that several witnesses testified \\-ithout being sworn and to others the oath was administered in such a manner that they probably had not the slightest idea what proceeding was taking place. "In Court-room No. 1, Judge B presiding. Prosecutor Russick was observed not to have asked any of the witnesses any questions until the latter part of the morning, when Case No. 37, Harry Wright, cited for contempt of court, came on and then there was an argument between Prosecutor Russick and Attorney Day on a motion in this case. At no other time during the proceeding did Prosecutor Russick question any of the witnesses, with the single exception of Case No. 59, which was heard about 11.15 a. m., and in this case the prosecutor questioned the first witness, who was an incompetent witness because of the fact that he had not witnessed the act itself. The examination of the other witnesses in this case was conducted by the court, and defendant eventually fined SoO and costs. Prosecutor Russick then sat down at the trial table and proceeded to read a book, when Case No. 57 was called. This was a case in which Joseph Sklarski was arrested at the instance of his landlady, with whom he had boarded for one year, on the charge of assault. Neither the prosecuting wit- ness nor the defendant spoke English, and the defendant was asked by an inter- preter if he plead guilty or not guilty, without having the charge translated for his benefit. The interpreter then addressed the court as follows: 'Judge, he says that he pleads guilty but he wants a continuance to get a la\vj'er.' The court then made some inaudible remark, and in a louder voice told the inter- preter to put the prosecuting witness on the stand. She then gave her testimony and the defendant was called to the stand. He testified, and without further testimony the court sentenced him to six months and $200 fine and costs, and hr; wa.s hurried out of the court-room in spite of the fact that he protested that he wanted a chance to get an attorney. Throughout the proceeding in this case the prosecutor sat at the trial table reading." Tho nnxt observer was an able Cleveland lawyer whose experience enabled him to know "who's who" in the police court, and he wjis asked to ob.serve specially the part played in the drama by the hahitu6s of the court. He reported (except in the case of prosecutors, fictitious names are used) : "To report everything that goes on in the criminal branch of the Municipal Court of Cleveland, generally referred to as the police court, is an impossibility for one man. To do so it would niquire the ability tf) see in all directions at the .same time and to hoar wluit was said in ovory part of the room, and in addition in.sight into the mental wcjrkings of any number of individuals who are present 3 [17] and who operato in such a inaiinor as not to ho discornod oithcr by tho sonso of sij^ht or hearing. This hist typo has in most instances got in its work outside of court h(nirs and is present merely for the purpose of seeing tliat promises are fuUillod or to c(mvince those for wliom they are working that they have had some part in tlio accomplishment or services rendered. "Tho following account is a rough sketch of observations made at the session of i 'lice court on Friday morning, April 22, 1921: •'I arrived at the Central Police Station about 8.45 and found the persons who are in attendance at the court beginning to assemble; a number were gathered around the bulletin board containing the names of about 150 defendants whoso cases wore on for hearing on that day. Some of the attorneys who had considerable practice in police court were busy interviewing witnesses and con- ferring with prosecutors and clerks. I noticed particularly Fred Smith' con- ferring w'ith Frank Brown, the last-named person not being an attorney, and to my knowledge has for six years been a runner for Thomas Jones, an attorney. Frank Brown still seemed to be at his regular business of interviewing witnesses and soliciting business for Thomas Jones. Also I saw present in the hallway lead- ing from the clerk's office to the court-rooms Louis Napier, who is not an attorney and who is a brother of one of the prosecutors. I did not see him in conference with any individual during the whole morning, but during the first hour and a half of the session of the court he passed through the back of court-room No. 1 on his way to court-room No. 2 no less than half-dozen times, and I am advised by one who is in attendance at the court most every day that he is present every day. "Frank Brown was also busy about the court-room practically all morning, either in Room 1 or Room 2, and conferred with Thomas Jones and Fred Smith on numerous occasions, and such conferences were apparently acquiesced in and unnoticed bj'^ the judges, prosecutors, and clerks. Frank Brown was also seen a number of times in the hallway leading to Court-room No. 1, and also in the hallway of Rooms 1 and 2 in conference with persons, but I was unable to hear what was said as the conversation was carried on in a very low tone. "I have gone into details somewhat at length with regard to these two examples of police court hangers-on, and have referred to them merely as an example of a number of such persons who are present morning after morning in police court, but who are not attorneys and who apparently have no business there and who are not engaged in any regular occupation, but who somehow or other make their living out of such attendance. "By 9 o'clock the seats in Room 1 were about two-thirds full of witnesses and defendants and those awaiting hearing, and upon the appearance of Judge B, the bailiff thumped three times on the desk with his gavel and called the court to order. This was followed by the clanging of the door of the bull pen where • A lawyer practising habitually in this court and partner of Thomas Jones, a more prominent habitual practitioner in this court. [18] the prisoners are kept. The court officer then led out into the court-room three defendants who were designated by numbers only, such as Cases 71, 72, and 73. The clerk then read the charge in a monotone voice, and asked the question, 'How do you plead?' There was a nodding of heads by the defendants, all of whom pleaded guilty apparently. The judge then motioned to one of the defendants to take the stand, he asked him a few questions, and then said a few words to the other two parties. Finall}^ he %\Tote something on the docket and the three men were led back into the bull pen. I should have stated that by this time William Gardner and Mr. Chester^ had seated themselves at the trial table, and Smith, Jones, and others had assembled and stood around the witness-chair listening to the testimony, but apparently having no other interest in the cases. Prosecutor Russick stood by the witness-chair up until intermission at 10.30, but only in one of the hearings took any part in the prosecution, the judge mak- ing all inquiry of witnesses and handling the cases without the assistance or interference of the prosecutor. I sat on the front bench in the court-room, where witnesses and spectators are seated, about 10 to 20 feet away from where the trial was going on, but was unable to hear anything that was said. I would have been unable to comprehend what was going on except for the fact that my experi- ence there has enabled me to know by seeing just what is being done. "Tramping was so continuous and so loud that persons seated in Court- room No. 1, not being able to hear any of the proceedings, passed the time away talking with one another. This added to the general hubbub. Policemen wait- ing to testify as witnesses also felt at liberty to keep up a continuous conversa- tion with whoever was sitting next to them, usually another policeman. During the session of the court from 9 to 10. 30 the court, bailiffs, and prosecutors went ahead with their work regardless of the noise that was going on around them. At no time was anything said to bring order or to impress the assembled crowd as to the dignity of the whole proceeding. "To give an example, the conduct of a specific case: Two negro girls were called before the clerk and charged with street soliciting. Jones was representing both of these women, and the two defendants, together with Prosecutor Russick and Attorney Jones, immediately gathered in front of the desk of the judge. A police officer took the stand and imnuidiately about 18 persons gathered around the witness-stand and within a few feet of the witness and the defendants and leaned forward to catch what the police officer was saying. About half of these were attorneys. The prosecutor did not assist in the prosecution, except to ask the police officer to get off the stand. The judge then asked another police officer a.s to his testimony, and upon being advised that it was exactly like the officer who had testified, proceeded no further, and the State's side of the case was considered as complete. Jf)nes apparently was satisfied with the State's side of this ca.se. The juflge then leaning over his desk sjjoke to the larger of the two defendants without having her take tiic witness-chair and iiuiuircd wliat ' Two rolorod hiwyors and j)f)litifi;uis. I I'Jl she was doiiic; ddwii on Hamilton Avonuo, complotod tho cross-oxaniination him- self, and also coiuiuoteci the cross-examination of the other defendant, and the proseeutor apparently not resenting this assumption of his duties by the court, in fact, appearing to feel somewhat relieved that the judge saved Iiim his addi- tional lalx^r. A probation olHcer then volunteered some information to the court regarding bi^th of these defendants, and from a card indicated that one of the women was on parole and had violated her parole. The court gave the smaller of the women a sentence of thirty days, at which Jones protested very vigorously, and leaning over the desk assumed a confidential air with the judge and at- tempted to pour into his ear a story that would procure a lighter sentence for his client. The smaller of the two defendants was committed to jail and the other one given a suspended sentence. "I omitted to mention the fact that City Councilmen Green, Walter, and Temple were present in court a great part of the morning. Councilman Green was seated at the table in Room No. 1 from about 9.30 to 10, and was seen re{)eatedly 'kidding' a police officer who had a package under his arm, which officer I later learned was the prosecuting witness in a case against clients of Councilman Green, who were awaiting trial on the charge of larceny. He ap- peared to be making light of the charge, and repeatedly snatched at the bundle under the officer's arm, which seemed to contain a piece of men's wearing apparel, and at one time snatched the bundle from the officer's arm and threw it under the table, much to the amusement of the councilman's clients, who were sitting on the bench awaiting the calling of their case, which was the next one. This intimacy of the councilman with the policeman was typical of his conduct tow'ard all of the officers of the court. When the case was called a con- tinuance was granted, and the prisoners who were out on bail walked out of the court-room apparently satisfied with the services Councilman Green, who is also an attorney, had rendered them. The police officer who was ready to go ahead with the hearing acquiesced in the continuance. "On Tuesday, April 26, 1 again visited the police court and found practically all of the persons mentioned in my previous report present in one or other of the court-rooms. "There were three prosecutors in Court-room No. 2, namely. Prosecutors Novario, Russick, and Kreisberg, each of them appearing to be interested in the disposition of particular cases. I heard Prosecutor Novario ask for a 'nolle' in two cases — the nature of the offenses in such cases I was not able to find out. "Prosecutors Russick and Kreisberg remained in the room perhaps ten or fifteen minutes, and then Prosecutor Russick returned to Room No. 1, where he was handling cases. "This illustrates the practice of some attorneys in going to a prosecutor and requesting a 'nolle,' even though he is not the prosecutor handhng cases in the court-room in which the 'nolle' is requested, and frequently 'nolles' are granted in a court-room without the knowledge of the prosecutor in charge of cases in that room. 120] "A police sergeant was on duty this day, the same as on the Friday previous, as reported, preventing persons from loitering in the hallway leading from the court-room to the prosecutor's office. On two occasions he strode through this hallway crying in a loud voice to the persons there to move on; there were prob- ably about two dozen standing there, and about half of them obeyed his orders. I have seen him perform this duty on about half a dozen different occasions and have noted that his orders were obe3''ed implicitly by newcomers, who dispersed at once, but were ignored by the regular attendants of the police court, the officer apparently being blind to their presence." Another attorney was sent to observe the court on these same two days. He was not familiar with the "regulars" there, but was instructed to keep his eyes and ears on the trials, take notes and report all details observed by him. His report for April 22, 1921, follows: "I reached the Municipal Court at 8.15 a. m. and found Room 2 entirely empty. In Room 1 there were five colored people waiting for the court to open, including three women, one man, and one child. There were six white women, all of whom looked to be of foreign extraction, and apparently all were engaged upon the same errand. "There was already considerable activity in the clerk's office, and a group of several men and women were examining the docket on the bulletin board in the hall. At this time there were 125 cases on the docket for the day. "Court was called to order at approximately 9 a. m. in both rooms: Judge A and Prosecutor Novario in Room 2, Judge B and Prosecutor Russick in Room 1. "I went to Room 2, sitting about 10 feet from the witness-stand. During most of the time it was practically impossible to hear what was said. "The following cases were called either by number or by name, and some- times in both ways, but in many cases it was impossible for me to tell whether or not the defendant appeared or whether the court went on to some other case or what disposition was made of the particular case: Case No. 29,42 49 Pleaded guilty. 44,45 55 John Molnar. 57 Martin dross and Sam Cunsolo, colored. I could not tell what disposition was made of this case, but the two men were locked up again. 51 PIciidcd not guilty. 50 Arthur Phillips, i)load(Ml jiuilty. 40 Jos<;i)h Tobias, lilciulcd guilty. 36 Pleaded guilty. 32 William Day, plcadcfl guilty. Five days and coats. 40 Aiitlif)ny Paris, pleadiMJ guilty. 49 CJscar Wagner. [■Jl 1 Case No. S A stoiu>>:r;»i>li(T \v;\s (akinp a roconi ii\ fliis caso, and in order (o licar was ohlifjiod to sit on tlio table and write on tlie railing!; surrounding tlie witness-stand. 48 Pleaileii ^juilty. Prosecutor Hosonbcrg hanilled this case, and perhaps the fol- lowing one, and tlu-n retired in favor of John Novario. It was 9.40. 47 John Vilski. John Berry. 38 M. O. Gordon. Joseph Rosen. 33 anil 34 These were apparently two felony charges against the same defendant, anil his lawyer was not there. The judge told the defendant to get a move on and get a lawyer, and the case was apparently continued. 50 Martin Cross. Charles Wo. Max Herman. J. W. Lolabias and John Burrs. 24 The defendant was charged with being a married man and representing himself as unmarried. The prosecuting witness stated that on the basis of his repre- sentation she had broken her engagement with some other man and that he had asked her to marry him. Two other women testified in support of the prosecuting witness. 18 Harry Burney. Councilman Green represented the defendant. A few minutes before this case was called Novario wandered a little way from the witness- stand, although a case was in progress, and held a whispered conversation with Finkel. When the case was called, Novario made some remark to the judge which I heard imperfectly, but I understood him to say, 'I understand that the prosecuting witness does not want to go on with this case.' The case was dismissed for want of prosecution, I think. 23 Sam Ettinger. The charge was manslaughter in two cases arising out of an automobile accident at the corner of East 40th Street and Superior Avenue, N. E. There was a number of witnesses, and Hart sat down at the trial table, as did also Novario, and it looked as though there might be something to suggest a trial. As soon as the witness began to testify, however, the attorney and prosecuting witness crowded around the witness-stand in the customary fashion. Attorney for defendant asked for a separation of the witnesses for the prosecution, which was allowed. The two principal prose- cuting witnesses were a young man and his sister who were driving along Superior Avenue at the time of the accident. They both stated that the man at the filling station at the comer of East 40th Street and Superior Avenue had also seen the accident, but he was not there as a witness. I heard Prose- cutor Novario ask the police officer whether or not the man from the fiUing station was there and he said not. I think that the defendant was not bound over. Prosecutor Novario paid very little attention to the prosecution or the witnesses. He stood around the witness-stand a great deal of the time and participated a little, but from time to time would wander off to talk to his brother or to Councilman Green or some other bystander, although the case was in progress and a witness testifying. "At 10.30 I went into Room 1. The numbers of the cases called in Room 2 [22] given above are, of course, numbers from the cases on the docket in Room 2, and not the numbers of the cases as they appear in the prosecutor's docket in Room 1 or upon the bulletin board in the hall. The following cases were called in Room 1 subsequent to 10.30: Case No. This was a case against two defendants, apparently for stealing a dress or re- ceiving it as stolen property. Councilman Green represented the defendants and they were apparently dismissed. The next case was ruled upon by the judge without anj' audible conversation. The defendant, so far as I could see, did not come on the stand, but his attorney and the prosecutor whispered to the judge and the judge simply waved his hand to the defendant, who was sitting in one of the benches, and the defen- dant and his attorney walked out. There was no way to tell what the name of the defendant, the number of the case, or the charge was. 93 and 95 Pleaded guilty. 77 Joe Bilski. It was a case of assault and battery, a man having struck his wife and she had a beautiful black eye. The defendant was represented by some attorney whom I do not know. The defense was that the defendant was trjing to compel his oldest son to go to work, and in the course of the dis- cussion picked up a shoe and threw it at him and the shoe, very unfortunately ^ struck the wife in the eye. The testimony was that the defendant and his wife had been married over twenty years and that they had three chil- dren, the oldest twenty-three and the youngest four. During the trial of the case Prosecutor Russick was walking around and talking to different people and paying no particular attention to the case. The evidence also showed that the defendant had not been working for the last ten months. The court sentenced the defendant to pay the costs and to serve four months in the workhouse. 49 and 50 These were two cases against the same doctor for failure to record a birth and failure to report diseased eyes. Judge B apparently expressed the opinion that he could fine the defendant $50 and costs, and upon defendant's attorney protesting said, ' I will split the difference and give him $25 and costs.' 1 Michael Mees. 25 James Slater. 31 Sam Schultz. I am not sure whether this case was continued to April 29 or whether it was this case which was tried and the court held that it was simply a civil matter and it was up to the defendant to sue and get the money. The facts in the case which the court decided were that the prosecuting witness had given the defendant certain goods, jipijurciifly dresses fo S(>11, and fhc defendant had sold them on time. The defendant claimed tiuit he had asked the approval of his employer before selling them on time and had tendered whatever he had received to his employer. The employer, the pro.sccuting witncsH, tf.sfififd that lie had not aKrc<'(l fo allow payniciif l)y installrTicnfs und that the defendant had not tendered any payments to him. Tlic court dismi.ssed the case and held that it was simply a matter to be settled in a civil action. 32 Henry Neale. Pa.sHCfl to April 29. This case involved a di.spute as to the owncrshij) alth ordinance for liaving a dirty bakery. The case had been continued from some time in February. The defendant was fined S2 and costs. 7S Prosecution under the health ordinance for keeping a large pool of standing water in an enii)ty lot. The court continued the case until May 0, and told the officer that he would have to have some positive i)roof that the pool of standing water jeopardized the health of the neighborhood before he would convict the defendant. The defendant had been warned several times to have the pool removed. 121 and 122 Case of a.ssault and battery and contempt. At 11.30 the court in Room 1 took a recess. 24 HofTmej-er. Case of assault and battery of a lodger upon his landlady. The story of the prosecuting witness was that the defendant had hit her and knocked her all the way downstairs. It was the defendant's contention that the landlady first struck the defendant, and that she was standing on a very narrow landing at the top of the stairs and in her excitement stepped ofT backward and fell downstairs. Attorney for the defendant tried to prove these facts, including the physical surroundings, size of the landing, and so forth, but Judge B said: 'That hasn't anything to do with the case — I was not even listening.' Prosecutor Russick sat back at the table and merely watched the case as it was being tried. The court in Room 1 adjourned at 11.49 until 1.30. "I went immediately into Room 2. Kreisberg was prosecuting and Russick had come into the room and was hanging around. The case was a felony charge against some one, and the prosecuting witness was a Chinaman named Shang Hai. At the close of the State's case the defendant started to prove an alibi, and Judge A said : ' If you are going to prove an alibi I won't hear it.' The defendant was bound over. Case No. 12 Max Golden. Assault and battery. Defendant was fined $10 and costs. 9 Anton Wrabliski. Fined $100 and costs. I did not hear the court say anything about suspending any of the sentence, but as the defendant was put back into the lock-up the officer yelled after him, 'You have to pay the costs.' 14 Walter Brown. Defendant was chauffeur for Mr. Lyon (?) and Mr. Lyon wiis present in court, standing in front of the judge. As the case was being tried the clerk of the court walked in, shook hands with Mr. Lyon, joked with him a little about the case, and walked out, stopping a minute to tell me what a fine fellow Mr. Lyon is. The defendant was fined $10 and costs. The pro- ceeding was apparently the first skirmish leading up to a civil case growing out of the injury to two automobiles. 60 Richard Weeden. [24] "The following cases were called at the end of the session in Room 2, but the defendants did not appear: Case No. Louis Oblitski, et al. 5 Louis Sapas. 6 Paul Borsick. Morris Collin. Officer remarked that defendant owed $15 and costs. Capias issued. 37 Joseph Rosen. Capias issued. "Court adjourned in Room 2 for the day at 12.10. I returned to Room 1 shortly after 1.30 and found an assault and battery case in progress. There was no prosecutor present. The court, after listening to testimony about half an hour, dismissed the case and said it was a purely civil matter. As the defendant and prosecuting witnesses went out I noticed that they were the same six women who were waiting for the court to open when I arrived at 8.15 in the morning. The court adjourned at 2.15 for the day. One of the court officers, in checking up the entries for the day, inquired of Attorney X to what date the Solomon case had been passed. X said until June 8. The officer seemed to be a little doubtful of this, but concluded to take X's word for it and made the entry." The report for the sessions of April 26 is quite similar. It contains the following notes concerning a prosecutor: "Prosecutor Russick arrived in the room at 9.15 but, so far as I could see, during the entire morning did not participate in a single case to the extent of asking one question. A great deal of time he was talking to other people or sitting back at the table when the cases were going on. Most of the time, how- ever, he was lolling upon the witness-stand and listening to what the witnesses had to say and the court's examination of the witnesses." A fundamental principle of American justice is that it should be publicly administered. According to this theory, the accused is entitled to that impartiality and fairness of treatment which is presumed to be promoted by the fact that the judge and prosecutor perform their func- tions with the eyes and the ears of the public upon tiiem. The above- described conditions in the Municipal Court fail to fulfill this funda- mental requirement. The doors are open, but Argus himself could not see what is going on; and were the man who could hear the blade of grass growing on the mountainside to drop into the court-room, his exceptional aural capacity would only intensify for him the general din which suffocates the g(!ntle imunblirigs and whisperings of the group on and around the bench. The.se pictures .sjiow how llie danger that the iiidivi(hial who conu's into court in one relatiunshij) or another would feel that results are [ 25 1 dopondont upon favor or strange influences rather than upon the dictates of law and justice. Large Number of Cases; Unclassified Dockets; Excessive Speed It is interesting at this place to report what actually did occur in these two rooms of the coin-t on the morning of April 22. The follow- ing is a list of the cases called as shown on the docket, with the nature of tiie charge and the disposition of the case: April 22- -COURT^ROOM No. 1 iVo.» Charge Disposition 1 Liquor law Continued June 1. 2 Liquor law Original sentence. 7 Liquor law $100 and costs, "motion in mitigation" April 29. 12 Liquor law Original sentence. 13 Liquor law Continued April 29. 14 Liquor law Continued June 8. 19 Assault and battery Discharged. 20 Assault and battery Discharged. 23 Assault and battery Discharged for want of prosecution. 24 Assault and battery Costs. 25 Defrauding innkeeper Capias. 31 Conversion Discharged. 34 Suspicious person Costs and 30 days, suspended. 35 Suspicious person Costs and 30 days. 36 Suspicious person Bond forfeited capias. 37 Suspicious person Continued April 23. 38 Suspicious person Continued April 23. 39 Grand larceny Continued May 11. 40 Grand larceny Continued May 11. 42 Conversion $500 and costs and 3 months. 46 Health ordinance Discharged. 47 Destroying property Discharged. 48 Petit larceny Discharged. 49 Fail to report diseased eyes Discharged. 50 Fail to report birth $25 and costs. 51 Assault and battery Discharged for want of prosecution. 52 Health ordinance $2 and costs. 53 Health ordinance Continued April 29. 54 Suspicious person Discharged. 55 Suspicious person Discharged. 56 Pocketpicking Error. ' As all the cases are first put on the docket in Room 1 and the Room 2 cases then transferred, the remaining Room 1 cases will not have consecutive numbers. [26] No. Charge Disposition 62 Petit larceny SoO and costs and 30 days. 71 Intoxication Continued April 29. 72 Intoxication Costs. 73 Intoxication Continued April 29. 74 Intoxication Continued April 29. 75 Intoxication Costs. 76 Assault and battery Discharged. 77 Assault and battery Costs and 4 months. 78 Health ordinance Continued May 6. 79 Petit larceny Costs and 30 days. 80 Common beggar Costs and 15 days. 81 Common beggar Costs and 15 days. 82 Common beggar Discharged. 83 Petit larceny Continued April 29. 84 Disturbance Costs. 85 Disturbance Costs. 86 Disturbance Costs. 87 Disturbance $25 and costs. 88 Vagrancy Discharged. 89 Vagrancy Discharged. 90 Vagrancy Costs and 15 days. 91 Suspicious person $10 and costs. 92 Suspicious person Continued AprU 29. 93 Suspicious person Costs and 30 days, suspended. 94 Suspicious person Continued April 29. 95 Suspicious person Costs and 30 days, suspended. 96 Suspicious person Continued April 29. 119 Liquor law Continued April 30. 120 Contempt Discharged. 121 Contempt Discharged. 122 Assault and battery Discharged. 126 Liquor law Discharged. 127 Liquor law $100 and costs, "motion in mitigation April 30. 128 Liquor law Continued April 29. 129 Liquor law Motion granted, $500 of fine suspended. 130 Licjuor law Continued April 29. 131 Liquor law April 28 continuance. 132 Carrying concealed weapons Bound over. 133 Auto law Continued April 26. April 22. — Court- R(KJ.M No. 2 No. Charge Disixj.silioii 1 Lifjuor law Continued to Ai)ril 29. 2 Liquor law $.')() of fine suHpfinii'd. 3 Licpior law I)i.s(•h!^^^;(•^]. 4 Liquor law DlHcliargcd. (27) No. Charge Disposition 5 Liquor law Motion granted, $50 of fine suspended. t) Liquor law Original sontonco. 7 Liquor law Continuod Ai)ril 29. S Liquor law $300 and costs, "motion in mitigation" April 29. Motion granted, fine suspended. Liquor law 10 Liquor law $200 and costs, "motion in mitigation" ^Lly 0. 11 Assault and battery $25 and costs, "motion in mitigation" May 6. 12 Assault and battery $10 and costs, " motion in mitigation" April 29. 13 Assault and l)attery Continuod .April 29. U Tratfic ordinance SIO and costs. 15 Traffic ordinance $15 and costs. 16 Traffic ordinance Discharged. 17 Traffic ordinance Motion granted, fine suspended. 18 Obtaining money under false pretense Discharged, want of prosecution. 19 Dance-hall ordinance Original sentence. 20 License ordinance Capias ordered. 21 Receiving stolen property Continued April 29. 22 Manslaughter Discharged. 23 Manslaughter Discharged. 24 Misrepresentation by married man $25 and costs, "motion in mitigation" April 30. 25 Burglary Bound over. 26 Liquor law $200 and costs, "motion in mitigation" April 30. $200 and costs, " motion in mitigation" May 6. 27 Liquor law 28 Liquor law Bound over. 29 Liquor law Continued April 29. 30 Traffic ordinance Capias. 31 Auto law $5 and costs. 32 Auto law $5 and costs. 33 Auto law Bound over. 34 Robbery Bound over. 35 Auto law $5 and costs. 36 Auto law $5 and costs. 37 Traffic ordinance Capias. 38 Vehicle ordinance $5 and costs, suspended. 39 Liquor law $100 and costs," motion in mitigation "April 29. 40 Liquor law $100 and costs, "motion in mitigation" May 6. 41 Auto law Nolle. 42 Auto law April 29. 43 Auto law Continued May 5. 44 Auto law $30 and costs, " motion in mitigation " April 25. 45 Auto law $25 and costs. 46 Auto law $5 and costs, "motion in mitigation" April 28. 47 Auto law $5 and costs. 48 Auto law $5 and costs, " motion in mitigation " April 29. [28] No. Charge Disposition 49 Auto law $30 and costs and 10 days. Days suspended, "motion in mitigation" April 29. 50 Auto law S5 and costs. 51 Traffic ordinance $15 and costs. 52 Traffic ordinance S15 and costs. 53 Traffic ordinance So and costs. 54 Traffic ordinance So and costs. 55 Traffic ordinance $15 and costs. 56 Traffic ordinance $10 and costs, " motion in mitigation " April 30. 57 Shoot to wound $25 and costs and 30 days. 58 Contempt Discharged. 59 Liquor law Motion granted, $150 of fine suspended. 60 Assault and battery $25 and costs and 30 days suspended. 61 Liquor law Continued May 6. 62 Traffic ordinance May 24 continuance. There are several interesting phenomena disclosed by this table. There is especially the fact that all sorts of cases are indiscriminately lumped together on one morning's docket and called, heard, and decided without segregation of the trials of state from municipal cases, state felonies from state misdemeanors, crime cases from vice cases, grave cases from lesser ones. They are not called in the order in which they appear on the docket. Under the orders of the presiding judge of the court certain classes of cases are given precedence in the call, as, for instance, those in which the night duty policemen arc witnesses, or ca.ses of defendants who are in jail. Whether this order is fully adhered to is doubtful. Within any class of cases the order of call is largely in the control of the clerk in the room. In the answers to a questionnaire sent to members of the Cleveland bar, many lawyers complained of the delays to which they were subjected in sitting around waiting for the cases to be called, and in many of the answers this was given as the rea.son why lawyers avoid practice in the criminal branch of the Municipal Court. This list of cases shows some disposition or ord(>r in 71 cases in Room 1 in the course of two and three-fourths hours, making about two and one-fourth minutes per case, and 62 cases in Room 2 in about three and one-fouith hours, making about two and one-half minutes per case. These dockets of Ai)ril 22 were by no means abnormally heavy. Almost always on Mondays, and very freciuenlly on otluT days, the number of ca.ses exceeds {ho. number on that day. Of course*, th(^ judges show variations regarding the sfX'cd with wliich they dispose of a case, .some taking more; time than others. The time here noted of two and one-fourth and two and one-half minutes per case docs, how- [29 1 ever, roprosont a fairly habitual and normal rate. Of cour.so, not all of tlio oases involved a trial or hearinj:; of evidence. Continuances in- volved no trial on that date, and in the list of cases disposed of were a number with pleas of guilty. But even these cases with pleas of guilty involved, on the (piestion of the amount of sentence, some in- (juiry into the facts concerning the ofTender and the facts of the otTense. By way of contrast, it is interesting to note the time given by this same ISIunicipal Court to petty civil cases which fall within its juris- diction. For instance, on this same date of April 22, 1921, the docket in Room 5 contained 18 items. Of these 18, 12 involved practically no hearing of evidence or argument on part of the court, being judgments by consent of parties, or other matters summarily disposed of. Four related to motions. That left only six cases in which the court was called upon to determine questions of fact, and in one of these, involv- ing the possession of real estate, the defendant failed to appear. One case was decided for the defendant. In the other five, judgments were rendered in the sums respectively of $76, $99, $400, and $84, sums less in amount, measured in mere dollars and cents, than were involved in many of the cases on the criminal docket. That represented a full daj'^'s work, morning and afternoon, of one of the civil rooms, being that one of the civil rooms which on that day had the largest docket and also the largest number of contested cases. Negative Part Played by Prosecutor The descriptions of the Municipal Court in operation disclose the negative part that the prosecutor plays in both the trial and the dis- position of the cases, and, with rare exception, his part is as negative in the major offenses as in the lesser ones. Even more negative is his role as a source of influence in the general conduct of the proceedings. At no time did he ask that the group surrounding the bench be freed from those who had no business there. At no time did he ask that the aisles be cleared or the noise of moving feet and the chatter be sup- pressed. He seemed the least influential person in the room. A jury trial by its very nature compels an orderliness and openness of procedure. Each side desires that the jury hear its witnesses. In trials before a judge without a jury, this restraining influence is absent, and both court and attorneys are apt, unless they make special effort to guard against it, to let themselves drift into the habits which have been described in this chapter. [30] s o 3 o a 1— ( tn H E tf o o H ca e o t3 Oi O « ji p ^ Pi w Pi o o H U O 9 V J o a c3 D C C 03 V A a o 39 1 i. 2 o o — ' CO lo ••* CO t^ ill .-1 -H CJOON 05->)»> "Oco ■ -wo •CO -co n.S = c mo S_^^ c " i § '^ * ■o o a CO f-H 05 C a 03 O a Q. 03 o o J3 3 a 3 9j (311 No Stenographic Keports — Opportunities for Perjury Except whore the dofonclant dosiros to have a record of the case, tlu> testimony is not taken down stenographically or otherwise. The trials are ground out without attempt on the part of anybody, judge or prosecutor, to bring out all the facts in any case, and seldom is any witness permitted to complete his story. One of the judges of this court, in the course of an interview, stated in a casual manner, as though expressing something of no significance, that, in preliminary hearings of felony cases, as soon as he hears something which, taken by itself, woukl justify passing the case on to the grand jury, he hears no more and binds the case over, and that he treats these hearings as nothing more than stepping-stones to the grand jury. This absence of a stenographic report of the testimony, taken in connection with the whole atmosphere of the court, obviously produces opportunity, if not inducement, for perjury. The people of Cleveland are convinced that perjury has been very prevalent in the trial of crim- inal cases, and the criminal court reporters of the newspapers affirm this bej'ond a shadow of doubt. In view of this general opinion, which surely has considerable basis in fact, it will be interesting to note the exceed- ingly small number of cases of prosecution for perjury and the exceed- ingly smaller number of successful prosecutions for perjury. Table 4 gives the statistics of all prosecutions for perjury and subornation of perjury for the eleven years 1910 to 1920 inclusive, with the results thereof, as reported by the county clerk to the Secretary of State. [32] CHAPTER IV THE MUNICIPAL PROSECUTOR'S OFFICE History IN 1912 the criminal branch of the Municipal Court of Cleveland be- came the successor of the police court, which had been in operation since 1853. It also succeeded to the criminal jurisdiction of the jus- tices of the peace functioning in Cleveland. Justices of the peace, with certain criminal jurisdiction, had existed in Cleveland on the territory which is now Cleveland since 1798. The municipal prosecutor is the successor of the prosecuting attorney of the police court, an office created in 1854. For more than a century this court and its predecessors have been the examining courts for state felonies and for almost seventy years have had general jurisdiction to try city and state misdemeanors. The nature of the jurisdiction has not changed, but with the growth of the community and the consequent growth of the number of arrests and offenses and the development of the criminal law, both State and muni- cipal, the volume of work passing through this court and office has grown enormously. Table 5 gives the gi-owth, as shown by statistics, to the extent obtainable, of the years 1863, 1880, 1890, 1900, 1910, and 1920, of the area and population of Cleveland, the number of arrests, the num- ber and compensation of prosecutors, assistants, and office force. TABLE 5.— COMPARISON OF GROWTH OF POPULATION. NUMBER OF ARRP:8TS, NUMJiER AND SALARIES OF "POLICE COURT" PROSE- CUTORS, 1863 TO 1920 Salary chief prose- cutor Area square Year miles IHiVA ISSO 27.78 1890 :i:j.94 HHK) An.f.Hi 1910 .56.05 1920 Number Population of ar- of Cleve- rest, s in land ("Icvc- huid .^;S,241' 1,687 1<;0,M() 7,4:52 ■2i\] ,:',:,:', 9,616 :isi,7(i,s 19,92;i .".(IO.C.CmJ 7, IS.") 796,841 27,615' Number of police or Mu- nicipal ("ourt [jrosccutor.s uid assistants Size of clerical force Payroll of oflicc exclu- sive i 2 1 4 6 Sl.dOO 5,:iO() ' i2,;ioo\ { I5,:i00/ S2.:ioo :{,()(K) 3,500 4,000 ' Taken from estimates of ('liamIxT of ("oniincrcc ' 79,897 warned and relea.sed. Thr largo drclino in tho mimlxM- of anvsts in tlio yoar 1010 was the result of the so-cnlled "golden-rule policy" of the then C'hief of Police, Fret! Kohler, who instituted a general rdgime of warning, advice, and persua^sion, as distinguished from arrest and prosecution. The facts out- standing from this table are the continued absence of any clerical force despite the enormous increase in the volume of work, and the absence of any substantial increase in the salary of the chief prosecutor. Office Organization Reference has been made to the importance of the aspect of the place wh(M-e the people of a city in general first come into contact with justice in operation. In a large percentage of cases complainants, accused, and witnesses have occasion to come to the prosecutor's office before going into the court-room. Furthermore, thousands of complaints which do not result in arrest are brought to the prosecutor's office and there aired, discussed, and disposed of. In fact, the municipal prosecut,or estimates that he sifts out more cases than he permits to go into the mill. Thus this office is a point of contact for a larger number of individuals than any other spot in the city. The force of the municipal prosecutor's office consists of the chief prosecutor and five assistants.^ The total office space consists of five small rooms, 7 by 9 feet in size — just enough for a desk and a chair, the number of rooms being one less than the number of prosecutors, so that two of the assistants occupy one of these cubby-holes. There are no clerks, no stenographers, and no messengers. The suite also contains a small room used as a combination of general waiting-room and the of- fice of the telephone operator of the Municipal Court clerk and prose- cutors. The telephone desk is rail(!d off" from the remainder of the room, leaving a space of 10 by 15 feet which serves both as a waiting-room and a conference room. There is no office system nor organization whatsoever. Two assist- ants are assigned to the court-rooms for the trial work there, with others assigned specially to court work elsewhere, such as error cases in the Court of Appeals and jury cases. There is no distribution or specializa- tion of work, whether of preparation or trial, according to classes of cases, importance of cases, or any other basis of classification. A visitor, whether he has a complaint or desires a prosecution instituted, a police officer who desires an affidavit made, or any other person on any other mission, chooses the particular member of the force to whom he will • Since this report was written, a sixth assistant has been appointed. [34 1 submit his business. At the busy hours of the day indiscriminate masses of applicants and visitors jam the offices and the adjacent hallways, each person waiting for the particular prosecutor whom he or she has, by de- sign or accident, chosen. There are no regular office rules laid down by the chief prosecutor regarding the submission to him of a particular type of problem. There are no detailed, clearly defined policies regarding continuance of cases, preparation of cases, the position to be taken b}' the office on difficult or doubtful questions of law, or any other recurring problem. Generally speaking, each assistant pursues his own policy or lack of policy, his own interpretation of the law, his own methods. Edward C. Stanton, who, previous to his election as county prosecu- tor, had been chief prosecutor of the Municipal Court, was asked why he had not disciplined one of his assistants in his old office for certain im- proper conduct. His answer was that ho had no authority over the as- sistant prosecutors, that they were appointed just as he was and acted on their own responsibility in all cases. It was not clear whether he meant that the chief prosecutor and all the assistants were appointed by the Director of Law, whom the city charter designates as the appointing officer, or by the Republican "boss," who is popularly credited with the actual appointing power. As a matter of fact, the Director of Law devotes himself almost exclusively to the civil side of the work of the city's law department, and practically finds little time or energy for the adminis- tration of the criminal division. As things are at present, this latter division enjoys only slight executive control or direction. Laxity in Custody op Affidavits There is dangerous laxity in the care of the affidavits. On the basis of the information submitted by complainants or police officers, the prosecutors prepare the affidavits setting forth the charge. The warrant of arrest and all subsequent proceedings are based upon the affidavit. No further step in the prosecution of the case is possil^le without the affidavit. There is no office system vvherel)y these affidavits are placed in charge of any official or attach6 of the prosecutor's office. An affidavit remains in the hands of the particular prosecutor who prepared it until he find.s it convenient to carry or send it to the office of the clerk of the Municipal Court. There it is placed in a box. The affidavits are used by the clerk as a basis for the drafting of warrants, and after liaving served as such they are placed in the files of the eliMk's office. They are not s(!aled, anrl no copy is made f(»r nor kejit in the prosecutor's oflice. Obviously such a system or lack oi system finiiishes opportunities for (35) the niysforious (lis.-ippoarnnco of affidavits, and such disappearances are said to take place occasionally. Kecoud System The reconi system in any office or court with such a volume of work as in the Municipal Court of Cleveland is of vital importance. The records may be said to have two functions: they are instruments for promoting the efficiency of the work itself, and also are the means where- by the department head or the public can appraise the accomplishment of the office. The municipal prosecutor's office has no records or files. There is no docket — no record of cases pending or past. Memoranda made by the individual prosecutor are kept or disposed of by him as he may please. There is no means within the office itself by which the chief prosecutor can ascertain the history or status of any case or check the work of an assistant. For the records of the work of his office and of the status of cases in his charge the prosecutor is dependent upon the records of the Municipal Court itself. Consequently, the study of the efTectiveness of the present system requires a detailed examination of the record system of the Mu- nicipal Court and the office of the Municipal Court clerk. The first entry in any case takes place upon the arrest of the accused person. This is made upon the police blotter in the office of the clerk, a large book about two and one-half feet square. Exhibit A illustrates the nature of this entry.^ From this police blotter and the continuation docket which will be shortly described the court officer in the Division of Police makes up the "prosecutor's docket." This prosecutor's docket contains a full list of all the cases to be called in the two rooms of the court at the following court session, and contains all cases of arrest from 6 a. m. of one day to 6 A. M. of the following day, which is the day of the call in court. Exhibit B is an illustration of the number of columns, the titles of columns, and the nature of the entries. The number in the first column (161, etc.) is the number or order of the case on that day's docket. The entries in the "Disposition of case" column are made after the case has been called and has received that day's disposition by the court. About 7 in the morning this book is sent to Court-room No. 1. At that time it contains all that it will finally contain, except the notation ' The illustrations in this chapter are taken from the actual records, all notations retained as on the originals, with the exception of the names, which are fictitious. [36] w H H s o I— I 2 < H w 5J o c .2 '53 a 5 $10 and costs $25 and costw; 30 days No papers 1 is fl • Is . 1 a mil i^^ii 10 < ; « CO < 00 CO CO c^ c3 : &:' ^ - M fa <5 .-4 ^ ^ o W 1 o -0 c-r o c3 : : : 0) T3 rH •— 4 •— 1 a — -H -H i-3 : : : Na- tivi- ty 3 o m 1 4, S o *T3 CD . *3 • P OJ .-5 • By whom arrested "*" w m" « ^ -0 i i .2 " . a* t 3 9 « 2 5^^ s 3.2 2 g-a > "3 1 0/ u £.2 -< — e>» 3 37 of the room to wliu'h thr case is to be assigned and the disposition of the case. The cohunn marked "Plea" is not used at all. Then the clerk in Room No. 1 has the duty of distributing to Court- rooms Nos. 1 and 2 the cases on the prosecutor's docket. He does this by assigning the traffic cases, the State examination cases, and most of the liquor cases to Room 2, and if there are not enough cases for Room 2, he throws in a few cases of other classes; or if the traffic, liquor, and State examination cases amount to more than one-half of the day's docket, he will assign some of them to Room 1. If the case is assigned to Room No. 1, no notation is made on the docket, since the docket itself is in Room 1. If assigned to Room 2, as appears from Exhibit B, the clerk stamps thereon "Court-room No. 2." EXHIBIT B.— PROSECUTOR'S DOCKET 161 167 168 Person arrested James Brown Jane Doe Same Offense Plea Burglary and larceny Contempt Common prostitute Disposition of case Date of arrest By whom arrested Court-room No.2:B.O. 1 Discharged 7 Error 8 May 23 May 23 Dec. 1 Lynch, 191 Name of complaint and remarks With the prosecutor's docket is sent up from the police department an assignment list of cases. This contains merely the numbers of the cases, the names of the defendants, and the charges. After the cases have been divided between the two rooms, "Room 1" or "Room 2" is rubber-stamped on this list, and the list is posted in the hallway outside the court-rooms. Exhibit C illustrates the set-up of this assignment list after it has been so stamped. EXHIBIT C— ASSIGNMENT OF CASES, TUESDAY, MAY 24, 1921 No. Name Charge Court-room 51 52 53 54 Fred Miller Anna Kinney Mary Smith Frank Butler Neglecting parent Keeping house ill fame Visiting house ill fame * Court-room No. 2 Court-room No. 2 The cases on the prosecutor's docket and on the assignment list are numbered consecutively each day, beginning with 1, in the order in which [38] they appear on the docket, which corresponds roughly to the order of the arrest.^ A docket for Room 2 is then made up from the assignments to that room on the prosecutor's docket, these cases in Room 2 being numbered from 1 up consecutively. Exhibit D is an illustration from a part of this Room 2 docket, the entries in the third column, of course, having been made in accordance with the disposition of the case on the morning indicated. EXHIBIT D.— DOCKET— ROOM 2 Saturday, May 21, 1921 No. Name Offense 30 31 32 33 34 35 36 37 Aaron Rosenberg Pat Gray Dan White Aubrey Greene Mamie Biller Same Harry Kane Leon Schmitt Traffic ordinance Traffic ordinance Traffic ordinance Auto law Common prostitute Contempt Obtaining money by false pretenses Obtaining money by false pretenses Cap. May 26 May 26 Cap. 25 C. S. S. Dis. 25 C. 30 D. S. 25 C. 30 D. S. S. S.« From the prosecutor's docket, a docket or calendar, called the "judge's docket," is made for the judges in each of the rooms. It gives the number of the case, the name of the defendant, and the charge. This docket is before the court during the entire session, and as each case is disposed of the judge writes opposite the defendant's name the particular disposition that has been made. Exhibit E is a copy of portions of the judge's docket in Room 1. The file in each case consists of the affidavit, the warrant of arrest, the subpoenas for witnesses, the cost bill, and the bail bond, if any. The file for each ca.se, with a pencil notation of its numlxn- for the day some- where on the outside, is placed in the hands of the clerk in the particular room to which the ca.se has been assigned. The cases have no numbers except the consecutive numl)ers 1, 2, 3, etc., on the daily dockets as above described. As each case is ruled upon, the clerk notes the disposi- ' A c!i.se docs not rocnivc any numbor which belongs to it throughout its history, and by which it appears on the age 27(3 a case against James Robert with reference to the same folio. Turning to this folio 14675, as shown on Exhibit G, we finil the case of State of Ohio v. James Robert and Henry Johnson, with the following entry: "Arii07i. Affidavit filed, warrant issued and returned. Defendants in court and examination demanded. Case continued to Sept. 30." This same index, page 164, gives folio 14712 as the place where the final entry in the Henry Johnson cases is recorded. A thorough examina- tion of folio 14712, however, disclosed no mention whatever of any Henry Johnson case. The list of names on the prosecutor's docket for Septem- ber 30 was then searched, but without finding any Henry Johnson or any James Robert. The list of arson cases on the docket of that day was then traced, and disclosed a charge against James Johnson, which, as appears from Exhibit G, was recorded on folio 14713 of the journal and execution docket. So a case which, upon the official record of the court, on Septem- ber 23 with two defendants, James Robert and Henry Johnson, terminated on that record with one defendant bearing the combination name of James Johnson. In an effort to solve the mystery, the original files were examined. This affidavit is not quite clear as to whether it charges one or two persons with the ofTense, But the warrant of arrest was made for the arrest of two persons, resulting, however, according to the return of the warrant, in the arrest of one person, James Robert Henry Johnson. While engaged in examining the journal and execution docket (city cases) for a purpose unrelated to this matter of the record system, the following entry under date of January 19, 1921, was noted: "Blanche Jackson, soliciting for immoral act, motion in mitigation granted, sentence suspended, twelve months' probation." We were immediately impressed by the fact that this entry did not dis- close when the case began or what sentence was originally imposed or when the sentence was originally imposed. It occurred to us that this might be a fair case in which to ascertain the time and energy involved in tracing the record history of a case, and it was chosen for that purpose. The first step necessary to trace the case back from the entry of [44] January 19, 1921, was to look back through the pages of the name index under the letter "J," beginning with January 19, 1921. This required looking through all names in sLx columns, each containing about 50 names written in a rather illegible hand. The name Blanche Jackson was finally found under date of August 23, 1920, with reference to folio 8894. The next step necessary was the examination of the citj^ journal and execution dockets, to ascertain the volume in which folio 8894 or the records of August 23, 1920, might be found. After handling several of these volumes. Volume 14 was discovered to be the desired one, and on folio or page 8894, together with another entry and six or eight other cases, was found the following entry: "St^'Ila Brown, Blanche Jackson, soliciting for immoral act, affidavit filed, warrant issued, defendants in court, case continued to date set opposite respective names." After the name of each defendant was the date, " September 14." It was then necessary to turn over about 100 pages of this volume until arriving at the pages dated September 14. The next necessary step was to look carefully through the four large pages devoted to that date, with six to 10 cases on each page, until the names of Stella Brown and Blanche Jackson might be discovered. The entry opposite their names: "de- fendants in court, case continued to September 15." September 15 be- ing the next day, it was comparatively easy to discover the pages devoted to that day, and on the fifth or sixth subsequent page was found the entry: "Defendants in court and plead guilty, hearing is had, and each is sentenced to thirty days and to pay the costs. Days suspended, one year probation, motion in mitigation filed, case continued to September 18." Turning over some 10 or 15 pages, the four pages devoted to Sep- tember 18 were found, on one of which the entry for Stella Brown showed that she had paid the costs, whereas the entry relating to Blanche Jack- son was found on an entirely different page and read: "Case continued to SeptemV^er 24." To find the pages devoted to September 24 required the turning over of 20 to 30 intervening pages. Six pages were given to September 24, and the entry "Blanche Jackson, continued to Sej^tember 30," was found by a careful examination of these six pages. Twenty to 30 pages again intervened between these two dates of September 24 and September 30, and on one of ff)ur "Sepleinber 30" pages was th(^ lilanche Jackson entry: "Affidavit filed, warrant issued, defendant in court, case continued to October 15." This is the form of entry usually u.scd at 145] the very beginninj; of a case, and its use at this stage of the Jackson ease must have been an error. To reach the pages devoted to October 15 required the turniiig over of 50 to 70 intervening pages, and on one of the October 5 pages was found the entry: "Continued to November 12." Turning to the back of Volume 14 in hand, it was disclosed that it did not reach November 12, and therefore Volume 15 had to be found and exaniinetl. On about the fourth page occurred the entry: "Blanche Jackson continued to NovemlxM* 27." Turning over the GO to 75 inter- vening pages and examining the four pages reflating to November 27 was found the entry: "Blanche Jackson, continued to December 17." Simi- larly turning over from 60 to 75 pages intervening and looking through the four pages devoted to December 17 was found the entry: "Blanche Jackson, continued to January 12." Similarly turning over about 100 intervening pages and looking through the five pages given to January 12, the following entry appeared: "Blanche Jackson, continued to January 19." Turning over the 20 to 30 intervening pages and examining the four pages of January 19 was found the entry which had first attracted our attention and which at the time of the examination was the last entry of the case, namely: "Blanche Jackson, motion in mitigation granted, sentence suspended, twelve months' probation, case no. 44672." The time and difficulties involved in searching the history of a case cannot be fully realized from reading a mere statement such as the above. To be understood they need to be experienced. If the offense happens to be a State rather than a city case, there are eight or 10 pages of the journal and execution docket for every date, as compared with four or five pages in city cases. If the case happens to be one of a type of fre- quent occurrence, such as violation of liquor law, traffic ordinance, or being a suspicious person, a particular name which is being traced will often be found in a column containing 8, 10, or 20 names, all grouped under one case involving the same offense. On one page of the journal and execution docket defendant's name will be found in one group, and on another page in the midst of an entirely different group, and on an- other page entirely alone. As has been stated above, the clerk in the court-room notes each disposition or order on the back of the affidavit, and consequently one might think that the history of the case can be most easily discovered from these pencil memoranda on the back of the affidavit. However, those memoranda do not constitute the official or authentic record. [46] They are in pencil, and written upon a document open to access and examination by anyone. In the Blanche Jackson case we did not stop with the journal and execution docket. That docket showed that on September 15, 1920, defendant was sentenced to thirty days and to pay the costs and that the days were suspended. There followed a number of appearances in court and continuances, and it seems strange that so much trouble should have been taken to avoid the paj-ment of $2.80 costs. The file of original papers was, therefore, examined, and the affidavit contained the pencil notation: "Costs and thirty days, m.m. 9/18." This notation did not say that the sentence of imprisonment had been suspended, and therein differed quite vitallj' from the entry on the record. To explain this dis- crepancy, the judge's docket or calendar for September 15 was examined- This involved obtaining and looking through four volumes of calendars for Room 1 to find September 15. This was necessary because there is no indication on the back of anj' volume as to the period covered by it, and the docket or calendar books in Room 1 are used only on alternate days, so that September 14 docket or calendar would be in one volume and September 15 in another. When this calendar for September 15 was found, it disclosed that the case had been assigned to Room 2, and the handling of two volumes of the court calendar for Room 2 was necessary to locate the September 15 entries. These calendar books are not alter- nate in Room No. 2 as in Room No. 1. The entry was finally found, reading: "39 Blanche Jackson, soliciting for immoral act, jury waived, G. C. and 30 days m.m. September 18 — 40 Stella Brown, soliciting for immoral act, G. C. and 30 days, days suspended one year, m.m. Sept. 18": which, being interpreted, means that the sentence of Stella Brown as to days was suspended, whereas the sentence of Blanche Jackson was not. So the record of the case on the record of the court, namely, the journal and execution docket, differs from the actual judgment of the court as disclosed on the judge's docket. Another point to note is that neither the files nor the records give the name of the particular prosecutor who tried the case nor the name of the defendant's attorney. Tlic cliicf prosecutor may remember in a general way the assistant who had charge of cases called in any one of the court-rooms at a designated period. But even these designations are not strictly adhered to, and the files and records theiTiselves give little assistance to the chief prosecutor, the court, or the pui)lic in investi- gating thf efficiency of the work of any nienibr-r of the force or in locating responsibility in individual cases under examination. In contested cas(>s there is great need for conununication with the defendant's attorney, and (47 J in any stmly of (ho administration t)f justice there will arise occasion when it becomes important to know the names of specific defendant's attorneys. In the civil branch of the Municipal Court, 28,4G3 cases were docketed in 1920 — more, therefore, than in the criminal branch. Every one of these civil cases had its space on the records in which every step in the case, includinp; names of attorneys on both sides, was recorded: another indication of the relative solicitude shown for the administration of civil and criminal justice. Personnel The man on the street, in his rough and ready appraisal of any insti- tution, is apt to interpret it exclusively in terms of the ability and character of the persons conducting it. Things go well because A is honest or capable, or go badly because A is corrupt or inefficient. This is a superficial view. The system of organization, the traditions of the office or institution, community factors or forces, need to be analyzed and their effects pointed out. Undoubtedly the character and competence of the men composing the prosecutor's office are important factors in the result of its work. In truth, the competence and honesty of the individuals in the office are at the same time an operating cause of the standards attained and an effect of other conditions and factors in the situation. The inadequacy of the men themselves, if such inadequacy exists, would be a fact of the situation, just as the inadequacy of any other facility engaged in the administration of justice in Cleveland. Able and scrupulous men sometimes produce splendid results with poor facilities, and, more important, they will often improve the facil- ities. The municipal prosecutor's office has been Republican since January 1, 1916, the present being the third successive administration of that political complexion. The table on page 49 gives the names of the members of this office through four city administrations, with political affiliations, the period of service, age at commencement of service, years at the bar at commencement of service. In most human affairs there is no sharp dividing line between fact and opinion; and this matter of the character and ability of an official lies in the twilight zone. The subject is dehcate; dogmatic statements, based on impressions, must be avoided. Conversations were held with many Cleveland lawyers, practically all of whom seemed to agree that, taking the office by and large, the cahber of members of this office is not [48] proportionate to the positions they occupy. In a questionnaire sent to all the members of the bar was the following request: " Kindly state anj-lhing that occurs to you, in as great detail as possible, con- cerning the administration of criminal justice in Cleveland, its merits and defects. Please include your opinion as to the caliber of judges and prosecuting attorney's and defendants' attornevs in criminal cases and methods of trial." Name De.\iocr.\tic Frank S. Day James G. Reyant Francis W. Poulson Samuel W. Silbert Republican James L. Lind (chief) Herman E. Kohen Edward Stanton Edward Stanton (chief J E. J. Russick V. A. Marco Fred A. Irvine W. D. Cole Nathan C. Beckerman Joseph Nuccio John J. Sexton John Novario A. L. Kreisbcrg Sam Rosenberg Oscar Hell (chief) Michael L. Sammon Time of service Jan., 1912 to 1916 Jan., 1914, to Dec, 1916 Jan., 1914, to Dec, 1916 Jan., 1914, to Dec, 1916 Jan., 1916, to Dec, 1919] Jan., 1916, to Jan., 1917 .Ian., 1916, to Dec, 1919 Jan., 1920, to Dec, 1920 .Jan., 1916, to May, 1916, to Oct., 1916 Oct., 1916, to Sept., 1917 Sept., 1917, to Feb., 1918 Dec, 1917, to Dec, 1919 Feb., 1918, to Sept., 1919 Apr., 1918, to Dec, 1920 Sept., 1919, to Feb., 1920, to Dec, 1919, to Jan., 1921, to Jan., 1921, to Age at com- mence- ment of service Date ad- mitted to bar 30 1907 34 1903 24 1910 33 1907 27 1912 29 1912 2.5 1914 32 1913 36 1913 28 1913 1912 2.5 1914 31 1912 31 1910 31 1917 42 191.5 24 1917 26 1916 2() 1917 41 1913 4.5 191i) Years admitted to bar at com- mence- ment of service 4^ lOH 3>^ 2^ 4 2 5 7H 'A 2 3H 3 7H There were about 100 .specific responses to that part of this question which related to the pro.secutors, and all of these with only two exceptions declared these offices to be lacking in requisite ability. Neither the question nor the answers differentiated between municipal and county officers. (General opinion was expressed that the men in 1 he prosecutor's (jfficcs are cho.sen for political reasons, and many asserted that in such choices the conmiunity suffers from the practice of deliberately giving the large racial or national groups of the conununity, such as the Poles, other Slavs, Jews, If.'dijins, ;iiui Irish, reprcsciif at ion in llic prcscM-utor's 5 I 49 1 offices. There can be no doubt there exists a lack of public confidence in the freedom of the office from political and otiier iiiHuences operating to bring fear or favor into the administration of the law. In order to ol)tain an estimate which could not be considered as biased by partisan considerations, confidential opinions were obtained from a leading Ijcmocratic lawyer and a leading Republican lawyer, both of whom are active in their party organizations and personally acquainted with all the members of the prosecutor's office. The opinions of these two men were startlingly identical. Each pointed out the same one or at most two members of the office as able and the rest as not sufficiently experienced or capable for the work. With the office and the Municipal Court conducted as at present, except for an occasional jury trial or argument in an appellate court, the prosecutors do not have, or at least do not take, the opportunity to demonstrate their ability either as trial lawyers or prosecuting attorneys. It can be fairly stated as an unquestionable fact that they have not aggressively attempted to improve and reform the administration of justice in Cleveland, but have permitted themselves to drift with the currents, political and otherwise, in which they found themselves. Every- body consulted considered present Chief Prosecutor Bell to be an honest man and an official with the best of intentions. But whether he has the executive talents and driving power necessary to steer the ship in such rapid and swirling waters still remains to be demonstrated. The present salary scale of the office is as follows: Chief prosecutor $4,000 First assistant 3,500 Second assistant 3,100 Three remaining assistants 2,900 [50 CHAPTER V OPERATION OF THE MUNICIPAL PROSECUTOR'S OFFICE The Affidavit PROCEEDINGS looking to a criminal prosecution are instituted either by police or by the injured person. This injured person corresponds to the private prosecutor in the English criminal prac- tice, and is in most cases the chief prosecuting witness if the case comes to a trial. Proceedings instituted by the police officer are of two classes: those in which an arrest has been made prior to issuance of any affidavit or warrant, and those in which no arrest has been made at the time the police officer takes the matter up with the prosecutor. The former class consists generally of cases in which the police officer has caught the offender in the act of the offense, such as an arrest for violation of traffic regulations or the arrest of a drunken man for intoxication. Often when the information at hand does not point to a definite charge, but the police officer has reason to be suspicious of someone he sees lurking about or in following a clue, he suspects the arrested person of being a partici- pant in or having knowledge concerning the commission of the crime under investigation, the suspected person is arrested by the police officer as a "suspicious person." In all cases, whether instituted by the police or by others, policemen or prosecuting witnesses come to the prosecutor's office for an affidavit. This is the first pleading or formal beginning of the criminal prosecution. Where the case is brought into the office by a police officer, an affidavit is almost invariably issued if the facts recounted by the officer show the conunission of a crime, and, with a few exceptions, the only (juestion considered by the prosecutor is the nature of the charge to be made. In most cases there is little doubt about the nature of the charge, and the prosecutor's part at this stage of the case consists of hardly luorc tliaii the mechanical process of picking out from one of the compartments of his desk the form containing the charge of the particular ofTense involved and filling it in with the name of the person chargcMJ and llir date In fact, even thisslitrhf rnerhriin"cal detail is perforinr'd in a lar^e nuniliirof cases by the police officer liiniself, leaving the prosecutor nothing to do hut to affix his name. In fact, by reason of the rush, confusion, and con- gestion in which the work is done, the prosecutor learns or hears the facts only wlien the policeman himself has some doubt as to the nature of the charge or the sufficiency of the facts and, on his own initiative, presents his doubt to the prosecutor. Sifting of Cases Where the moving party is the injured person or prosecuting witness, the case is not a major felony, and there are no reasons pressing for the immediate arrest of the accused, the prosecutor follows the practice of issuing a summons calling upon the defendant to appear at his office at a designated time. This summons has no standing in law. Because of the dignity of the form used and the fact that it is served by a uni- formed policeman, it generally has the effect of bringing in the prospec- tive defendant. The complaining party is told to return at the same time, and the accused is then subjected to an informal examination, the purpose of which is to ascertain whether the facts show an offense suffi- ciently serious to warrant prosecution, and also incidentally to get information about the case. The prosecutor, by this practice, holds a sort of informal court of conciliation wherein he soothes the anger of the prosecuting witness in matters which do not justify a prosecution. Thus a certain amount of "sifting out" of charges takes place before they become cases. The present prosecutor estimates that more cases are thus dis- posed of without prosecution than are placed upon the court dockets. A former member of the office estimates that a case, whether dropped or prosecuted, receives, on the average, three minutes' attention in the office. The estimate is liberal. Complainants frequently desire to use the prosecution or threat of prosecution for purposes of collecting a claim or debt and have little interest in criminal proceedings except as it may serve this purpo.se. A danger arises, therefore, that in this preliminary and unofficial court of conciliation the prosecutor will permit himself to be used to further this purpose, and even a danger that, through inadvertence or favoritism, he will permit himself to use his position to aid in the collection of doubtful or trumped-up claims.^ 'An actual ca.se occurred in 1919 which ilhistratcs this evil: One Knox (the names used are fictitious) was an expressman. One day in July, 1919, a man and a woman came to his place of business and left an order with his colored helper to [52] The extent of this evil is difficult to discover. The present chief prosecutor, feeling that some step toward decreasing the practice was advisable, ordered that these office summons be personally signed in longhand by the assistants issuing them, and not, as theretofore, by means of a stamp. Rehance must, however, be placed upon the caliber and character of the prosecutors themselves as well as the office record or reporting system. Some preliminary sifting out of the cases is neces- sary, and it would be unwise to issue an affidavit in every case in which one is sought and thereby add to the already excessive num- ber of cases. Resuming the description of the work of the prosecutor in the prep- aration of affidavits: When he fails to allay the prosecuting spirit of the prosecuting wit- ness and considers that there is sufficient proof of an offense, he issues the affidavit. It is in this class of cases that the prosecutor actually obtains some information about the case. Generally speaking, how- ever, there is no particular book, paper, or file on which he puts down what he has learned. There is no system whereby he transmits this information to the trial prosecutor — that is, to the one who will move a trunk from a given address to another given address. The next day they again dropped in and changed the destination address. The helper called for the trunk, found the lock broken, both straps broken, and one strap tied with a little cotton string. The trunk was successively taken to the designated destinations, at both of which it was refused, and then returned to Knox's premises, to be kept there until the owner might call for it and claim it. About two weeks later the woman who had left the order originally came to claim the trunk. She acknowledged that the lock and straps had been broken at the time the order was originally given. In order to identify her as the owner, Knox asked her a number of questions concerning the contents of the trunk, which she seemed to answer 'correctly. On examining the contents herself, she exclaimed that two shirt-waists and two pillow-tops were miss- ing, and on being a.sked the value of the missing articles said, "$7.')." She denied that she had ever given Knox or his helper orders to take her trunk. The next event was a telephone call to Knox from an attorney, Henry Frith, who in a very bull- dozing and insulting manner ordered Knox to find and surrender the missing articles. Knox, of course, stated he knew nothing about them. Suit wjus thereupon brought against him in the Municipal Court for $'.i\\. Then, late in November, over three months after tlu^ woinan's alleged discovery that then; were articles mi.ssing from the trunk, a police officer left a summons ordering Knox to call at the prosecutor's office the following day. In the room of one of the assistant jjrosecutors to whom he was directed, and who.sc; name \u' did not know, he found this assistant pro.secutor, the woman, and Attcjrney Frith. He Wius informed that unless he settled immediately h(' would be arrested. Refusing to pay anything, he was arrested on the charge of receiving stolen property. When the- trials w judgment of con- viction was reversed, that is, in whieli lie lost the ease before the appellate court. In judpinp: this reeonl, the fact should be kept in mind that the prosecutor lias had no stenographic assistance. TAHLE 6— OUTCOME OF CASES CARRIIOD TO THE C;OURT OF AP- PKA1.S, 1919 AND 1920; CLASSIFIED ACCORDING TO THE FILING OF BRIEFS Final disposition of ease by Court of Appeals No brief filed by eitiier side l^rief by I)laiiitift- in-error only Brief by both plain- tifT-in-error and prose- cutor Total Judgment affirmed Judgment reversed Dismissed at costs of plaintiff-in- error Dismissed for want of preparation 1 3 1 7 17 10 1 1 2 20 13 2 8 Totals completed cases 12 29 2 43 Cases not Finally Disposed of: Prosecutor in default of brief — Four months or more Three months or more Two and a half months or more Two months or more One month or more Plaintiff-in-error in default of brief- Four and a half months Two and a half months 1 1 1 1 2 1 1 . . 2 Totals incomplete cases 2 (5 8 Total all cases .51 Statistics of Results of Cases These are the methods of preparation and trial. What is the quality of the product, so to speak — what are the results? The mortality tables (Tables 1, 2, and 3) give the percentages of the types of dispositions of the cases — "nolles," dismissals, pleas of guilt, convictions upon trial, and so on. As stated in Chapter II, these tables have been made from every tenth case, being a tabulation of the results of one-tenth of the cases. Tables 7, 8, and 9 give these results or dispositions in accordance with a general classification of offenses. [56] TABLE 7.— CITY CASES, MUNICIPAL COURT, 1910-20; DISPOSITION OF CASES CLASSIFIED BY CHARGES Verdicts of guilty No papers Nolle prossed Other dis- posi- tion Dis- charged Charge Plea un- known Plea of guilty Plea of not guilty Plea not guilty changed to guilty Total TraflBc law violation Disorderly conduct Suspicious person Intoxication Offenses against chastity Gambling Offenaes against public health Offenses against public safety Offenses against property Miscellaneous 6 1 1 i 345 96 22 180 85 8 9 14 2 16 161 126 126 58 74 23 8 3 9 10 11 1 5 8 10 1 10 1 10 3 1 1 1 25 r 72 11 IP 4 2 3 1 2 4 3 1 1 i 48 59 55 IS 28 IS 3 1 608 295 294 276 217 54 23 20 15 30 Total 9 777 598 36 27 141 12 232 1,832 TABLE 8.— STATE CASES, MUNICIPAL COURT, 1919-20; DISPOSI- TION OF CASES CLASSIFIED BY CHARGES Found guilty Dis- charged Plea not guilty changed to Other Charge Plea un- known Plea of guilty Plea of not guilty No papers Nolle prossed want of prose- cution dis- posi- tion Dis- charged Total guilty Offenses against pub- lic safety 9 310 07 16 13 17 6 10 23 471 Offenaes against the person 42 170 1 15 58 7 109 402 Gambling 7 79 124 11 4 58 2H3 (Jffenw-s against prop«*rly 3 99 91 4 2 15 14 2 32 262 \'iolation of liquor laws 5 125 29 20 3 12 , , 30 229 Offenses against chastity 3 55 37 7 31 111 Oni-niv.H against minors 6 23 6 •i i 1() Offi-n.wM against pub- lic ju.ttice (> n 10 1 (l around Cleveland for a while, is a pretty good fellow, and will prol)al)ly never be in trouble again, we simply decide never to go ahead with the case, and the case is marked 'no papers.' " In almost all "no-pajiered " cases it is apparent that the trial prosecu- l 59 1 tor has no information as to the ivasons for dropping the case, and simply accepts the word of tlio police officer. As a matter of fact, there- fore, somebody in the police department, and not the court or prosecutor, makes the decision. Neither in the records or papers of the court nor in the tiles of the prosecutor's office is any statement or notation whatever made as to the reasons for "no-papering" the case. The reason, if ascertainable at all, is to be found only in the memory either of the police officer who gave the tip to the trial prosecutor to "no paper" the case, or in the memory of the office prosecutor who gave the tip to the police officer to give the tip in turn to the trial prosecutor. NOLLES The statutes of Ohio contain no provision regulating practice in enter- ing of nolles in the Municipal Court. Section 2919 of the General Code of Ohio prohibits the county prosecutor from entering a nolle without leave of court and without good cause shown in open court. There is no corre- sponding provision for the municipal prosecutor or Municipal Court. Naturally, the court can exercise some control, but even where the law prescribes consent of the court, the prosecutor is most instrumental in determining the question, for the court is necessarily dependent upon the prosecutor's statement of facts upon which a nolle is based. And in the hurly-burly of the Municipal Court nolles requested or suggested by the prosecutor are granted as a matter of course. The nolle sometimes takes place during the trial of the case, when the developments at the trial suggest to the prosecutor that the provable facts are not sufficient, and sometimes the judge himself suggests a nolle. No record or notation is made, however, as to the reasons for the nolle nor at whose instance it was allowed. In other cases the nolle is announced by the trial prosecutor just as the case is called. If he knows of the reasons, he seldom states them, and generally he acts upon word from the police officer in the case or from one of the office prosecutors. It is quite possible that he might have reasons of his own of which no one else knows and which are com- municated to no one else. Whether the determination to "nolle" the case has its birth with the trial prosecutor, pohce officer, or an office prosecutor, there is no memorandum of such reasons made, with the exception that in cases of death or personal injury arising out of traffic violations there is some sort of a vague requirement that the reason for dropping the case be noted on the so-called "yellow card" in the police department. As we shall soon see, the rule is indefinite and its ob- servance irregular. [601 There is no regulation whereby permission to "nolle" the case is re- quired from the chief prosecutor. For a short time after he came into office present Prosecutor Bell considered the enactment of such a regula- tion, but decided that he did not have the necessary clerical assistance. In addition to the general statistics for 1919 and 1920, an intensive study was made of cases "no-papered" and "noUed" between January 17 to 31, 1921. These were the two weeks which preceded the com- mencement of this survey, and sufficiently recent to test the practice. Following is a list of these cases: "NO PAPERS" City Cases No. Charge 44735 Traffic ordinance 44872 (two defendants) Suspicious person State Misdemeanors 70863 Obtaining goods by false pretenses 71012 Obtaining money by false pretenses 71261 Liquor law 71283 (two charges) Petit larceny 71321 (two defendants) Liquor law State Felonies 708.52 Fugitive from justice 71297 Manslaughter NOLLES City Cases No. Charge 44879 Traffic ordinance 44866 Traffic ordinance 44660 (two defendants) Traffic ordinance 44667 Suspicious person 44697 (three defendants) Suspicious person 44706 Bread ordinance 44725 Suspicious person 44754 Traffic ordinance 44780 (four defendants) Suspicious person 44796 (two defendants) Suspicious person 44815 False i)olice report 44822 Traffic onliuance 44829 Disorderly conduct 448.31 Suspicious person 44871 Su8i)iciou8 person State Misdemeanors 7f)S77 Conversion 7()'.KK) Liciuor law 70970 Assault and battery 709S5H Litjuor law 70089 Liquor l.iw 71021 Assault and battery 710:! t Illegally practising medicine 71():}9 Exhibiting selicnic of cliauce (611 NOLLES — Statk Misdemkanoks — {Continual) No. Charge 71091 Li(lU()r hxw 71212 Conversion 71245 Assault and battery 71229 l,i(;uor law 71247 IVtit larciMiy 71249 ("on version 71254 Adultery 71255 Fornication 7l2Gti Auto law State Felonies 70853 Fugitive from justice 70859 Forgery 708G1 Operating motor vehicle without owner's consent 71235 [three defendants) l^ohbery 71303 Operating motor vehicle, etc. 70911 Obtaining goods under false pretenses 70912 Issuing check to defraud 70917 Carrying concealed weapons 70947 Fugitive from justice 70959 Issuing check to defraud 71101 Issuing check to defraud 71279 Carrying concealed weapons The prosecutor and his assistants were asked to give the reasons for dropping these cases. In practically none of them were they able to remember the reason. This was quite natural in view of the enormous number of cases handled. In none of them, however, did they go to any record for the answer. They described, in an abstract manner, various types of recurring situations which they treat as justifying the entering of a nolle, but did not concretely, by means of their recollection or refer- ence to a record, bring any of these cases within these types. They did state that in manslaughter, personal injury, or property damage cases arising out of traffic accidents, reasons were noted upon the yellow sheet of the case in the police department. This trail was then followed : The policeman making the arrest, making the investigation, or taking the complaint, if the case starts with a complaint to the police depart- ment, makes out a report with an original and three carbon copies. The original is white, two of the carbons are pink, and one carbon is yellow. The white copy goes to the record room at the central station. One of the pink copies is kept as a permanent record in the precinct. The other pink copy goes either to the city law department or to the detective bureau or to any other department which might be particularly inter- ested in the case. The yellow copy is kept at the precinct and posted on a board. These yellow sheets include all sorts of complaints and reports, including petit larceny, theft of automobiles, unlocked doors, etc. If the case be a traffic case, then, when it comes on for hearing in the [62 1 Municipal Court, the officer usualh^ takes this yellow sheet with him. This action is, however, optional and not uniform. In other classes of cases the yellow sheet is seldom taken. When the officer does take the sheet, the prosecutor may make some notation on it as to the disposition of the case, but there is no regular practice of that kind. The sheet is brought back to the precinct station and posted with the others there on file. These yellow sheets are apparently kept so as to allow the reporters or anybody else who is interested easj^ access to the day's grist of acci- dents, crimes, etc. Every month or two most of these yellow sheets are thrown away, so that they do not in any sense constitute a record of the police department. We examined the complete files of the yellow sheets in the second and fourth precincts. In the second precinct some 600 to 800 of these reports were examined, running from March 12 to June 12, 1921. Only two of them contained notations by any prosecutor. These notations were as follows : 6/7 " No papers. No apparent \nolation. M. L. Samman, Assistant Prosecutor." (This was a case involving injury of a person from an automobile accident.) " Insufficient evidence. S. Rosenberg, Prosecutor. 5/17/21." (This was a case involving damage to property arising from an automobile accident.) At the fourth precinct from 200 to 300 of these shee*ts were examined, covering the period from May 25 to June 13, 1921. There were only three entries of any sort by a prosecutor — all three automobile cases. These entries were as follows: "Will send out notice to Rawlin if Chizek wants it. Prosecutor Novario." (Chizek was the complaining witness.) "No papers. Prosecutor Novario." "Papers issued for careless driving and lights. M. L. Samman, Assistant Prosecutor." Those few ca.ses with prosecutor's notations did not constitute all tlio traffic accident causes. The pink sheets, which are a part of the permanent records in the precinct office, never go to the prosecutor. Tiie accident files in both Precincts 2 and 4, covering about two months, were ex- amined without disclosing a single notation by a prosecutor. These y(;lk>w sheets to which the pros(;cutor Ii.hI icfcrrcd cannot serve as the slightest pretense for a record syst(!ni. The pro.secaitor sees them in a very restricted class of ciise.s, and, even in that class, sees them errat- ically and only when th(! polic(; officer happens to bring one along, i'hey arc at best temporary memoranda in the police stations. I 0:j 1 The folUnvinp; cases wore selected from the foresoiiifj; list of two weeks' ''no papcM's" and nolles, and the police station nn'ords or sheets, to wiiich the prosecutor iiad referred, were examined, with the following results: First Precinct No. 70801 William Proskner. Charge, operating motor vehicle without consent of owiicr. Disposition, nolle. The police record room had no record what- ever of this ease. The private iiles in C'liief of Police Smith's office, however, showed that the case was taken directly to the grand jury, the defendant indicted, and later fount! guilty and sentenced to serve one to fifteen years by Judge Powell. There was no notation anywhere as to the reason for the nolle in the Municipal Court, and it was only an acci- dent that, while searching Chief Smith's office on entirely different mat- ters, this notation in this case happened to be seen. No. 70915 Ben Weiger. Operating motor vehicle. Dismissed for want of prosecu- tion. There were no records on this case. No. 71194 Rafel Majeia. Grand larceny. Discharged. No record. No. 71195 Marie Moore. Grand larceny. Discharged. No record. Second Precinct No. 71297 Henry Pack. Manslaughter. "No-papered." The defendant, while operating an auto, struck and killed two persons. On the record at the central office and on the pink sheet in the precinct appeared the follow- ing entry: "Presented the case to Prosecutor Russick, who said there was not sufficient evidence to issue a warrant for the driver, who was arrested, charged with manslaughter." There were no notations on the record either at the central office or the precinct made by the prosecutor, and the yellow sheet of this case had either been destroyed or mislaid before the time of the examination. Arthur Brooks. "No-papered." Arthur Brooks killed Chapman Whippel while driving an auto at East 18th Street and Payne Avenue, N.E. In the report in the record room at the central station and on the pink sheet in the precinct station appears the following: "I presented the facts and statements of the witnesses in the above case to Prosecutor Novario, who issued 'no papers' as there was no violation of city law or State ordinances." The yellow sheet on this case had either been lost or destroyed and was not available at the precinct, and there was no notation anywhere by the prosecutor as to why the case had been "no-papered." Fourth Precinct No. 71062 Joseph Hopkins, Edward Mackin. Robbery. No record. No. 71235 Harvey Hubner. Robbery. Nolle pros. No record. Robert M. Harris. Robert M. Harris was driving :iO or 35 miles per hour, skidded, and ran up on to sidewalk and hit three children, killing two of them, and was arrested, charged with manslaughter. There was no entry showing disposition of this case. 164] Sam Ettinger. Sam Ettinger, on April 4, was going east on Superior Avenue, N.E., about 50 or 60 miles per hour, struck another car, and his car turned three complete somersaults in the air and stopped about 100 feet further down the street and killed two of the passengers in Ettinger's machine. The records at the central oflBce and precinct showed no disposition of this case. As a matter of fact, Ettinger was discharged by the court, as shown by the memorandum of proceedings in Municipal Court on April 22. Acceptance of Pleas of Lesser Offense Section 4583 of the General Code expressly permits the Municipal Court, in a felony case, when the court is of the opinion that the offense is only a misdemeanor, to accept a plea of guilty of the misdemeanor or order the prosecutor to file an information for the misdemeanor and dis- charge the felony case. The statute does not specify any safeguards. Present practice of the prosecutor's office appears to be as loose and haphazard, without record and without regulation and without con- centration of responsibility, as in the case of nolles.^ ' The case of Charles McCormack furnishes an illustration of the possibilities in existing methods and practices. McCormack was arrested on the public square of Cleveland on the night of Saturday, April 23, 1921, for pocketpicking on April 21. On the night of the arrest, about midnight, Assistant Municipal Prosecutor Kreis- bcrg came to Lieutenant C.'s desk at the central police station with two other men for the purpose of inquiring about getting a bond for McCormack. McCormack's attorney was X, closely related to a well-known, influential Republican "politician."' The police blotter contains the words "Pocketpicking" and "Picked the pocket of William Smith." In a different ink, lines were drawn through these words, and, in both different ink and handwriting, there was substituted, "Petit larceny" and "stole $^i'.i." The affidavit charges petit larceny; the bail bond charges pocket- picking. The former is a mi.sdemeanor, the latter a felony. Wlien the ca.se was called before Judge A. on Monday morning, McCormack plead guilty and was fined $.50 and sentenced to thirty days. A motion for mitigation of sentence wjxs over- niled. The records contain no statement of reasons for or justification of this reduc- tion. The ca«e appeared as No. 2.5 on the prosecutor's docket for April 2.'), and a|)peared as No. 24 on the judge's docket in .Judge A.'s room. The docket in Room 1 wa.s written in green ink, and in the colunui for entering the charge appeared the charge "pocketpicking," over which, however, in pencil, wius written "i)etit larcH-ny." ( )n the docket in .Judge A.'s room, in which the case was heard and the entire docket of which was written in pencil, api)ears the word "pocketpicking" in pencil of the .same color as the rest of the docket, and over tliis in red pencil, "petit l:irceny." Petit larceny does not bear to pocket j)icking the relation of le,s.ser degree of I lie .same type of ofTcnsc, as, for instance, manslaughter is a leaser degree of homicide ihan nnirfler, or petit larceny a U'um-.r degn^e of the same offense as grand larceny. The following is McCormack's polire record, aerording to the nu-ords in the Bureau of (riinmal Identific-ition of tlie ( "leveland police deparlment. Lieutenant 6 I <1.5 1 Suspension of Sentences The mortality t:il)los (Tables 1, 2, and 8) give tho perron ta.e;os of cases in wilieh sentences were wholly suspended or nnluced or carried out. Tables 10, 11, 12, and 13 contain a more tietaiied analysis of the suspen- sions of sentences in the IMunicipal Court, classified both as to nature of charge and as to severity of the original sentence. The high percentage of mitigations and suspensions, particularly in certain classes of cases, indicates an abuse or mistaken practice some- where. The question arises as to the part played by the prosecutor. Frequently the court suspends the sentence immediately after rendering judgment at the end of the trial, and, therefore, in the presence of the prosecutor. In other cases the suspension of sentence takes place at an unannounced and unscheduled time, frequently without the presence of Koestle, in charge of the bureau, states that Charles and Nicholas McCormack are the same person. Record of Nicholas McCormack, alias William McKay, alias Harrj' Wilson, alias Frank Martin, alias Thomas Ward. Photo No. 17249, Cleveland, O., gallery. As William McKay arrested at Elmira, N. Y., June 6, 1907. Charge, suspicious person. "P.P." Given hours to leave city. As Nicholas McCormack, No. 788, arrested at Jersey City, N. J., November 10, 1908. Charge, pocketpicking. January IS, 1909, discharged by trial, and was arrested in court and taken to Brooklyn, N. Y., by officers from that city. As Harry Wilson, No. 714, arrested at Syracuse, N. Y., June 9, 1910. Charge, disorderly person. "P.P." June 11, 1910, paroled by Judge Ryan. As Frank Martin, No. 4442, arrested at Kansas City, Mo., November 24, 1910. Charge, "P.P." November 26, 1910, fined $25. Paid. As Thomas Ward, No. 6665, arrested at St. Louis, Mo., August 8, 1912. Charge, pocketpicking. Picking pockets on street cars with George Scott, No. 6664, and August alias Gus Murphy, No. 666, stole a pocketbook containing $80, October 30, 1912. Case of Thomas Ward, convicted of grand larceny, and sentenced to two years, Jefferson City, Mo., penitentiary. Appealed to Supreme Court and released on S3000 bond. As Thomas Ward, No. 5601, arrested at Detroit, Mich., August 4, 1913. Charge, suspicious person, "P.P." As Frank Martin, No. 34367, arrested at Philadelphia, Pa., December 30, 1916. Charge, inmate of gambling house. As Nicholas McCormack, No. 4279, arrested at Pittsburgh, Pa., December 7, 1917. Charge, "P.P." December 8, 1917, fined $100 or thirty days in workhouse. Paid. As Nicholas McCormack, No. 16177, arrested at Los Angeles, Cal., May 1, 1918. Charge, suspected pickpock('t. As Nicholas McCormack, No. 17249, arrested at Cleveland, O., June 17, 1918. Charge, suspicious person. Suspected pickpocket. Taken from railway train at Union Depot, June 17, 1918. June 17, 1918, released to leave city. [66] or consultation with the prosecutor. Even when he is present the prose- cutor rarely protests or participates in any way in deliberation upon the question of suspension. Representing as he does the community, and being that representative presumably most familiar with the facts con- cerning both the offense and the offender, it would seem to be the proper function of the prosecutor to advance the considerations favoring or contradicting the suspensions. Sometimes he does not perform this function because the court has not given him the opportunity. There is, however, no indication that he has protested this exclusion or made any vigorous attempt to do his part. TABLE 10.— -STATE CASES CLASSIFIED BY CHARGES AND BY DISPO- SITIONS AND DEGREE OF SUSPENSION OF SENTENCES Disfmsitions of cases Results of sentences Charge No Im- Fine and Sen- tence Sen- tence Sen- Total sen- Fine prison- im- Total wholly partly tence sen- tence ment prison- cases sus- sus- cuted tences ment pended pended Assault and battery 184 114 26 71 395 72 38 101 211 Auto law violations 43 211 9 28 291 20 92 136 248 Gambling 63 217 1 2 283 115 41 64 220 Liquor law violations 51 173 224 S 38 127 173 Against public safety 31 148 1 180 17 20 112 149 Petit larceny 34 51 26 68 179 44 20 81 145 Against chastity 42 22 19 58 141 47 15 37 99 Against property 32 27 7 17 83 9 14 28 51 Against minors 17 3 20 46 24 1 4 29 Against public justice 11 14 8 o 38 3 24 27 Frauds 8 t 2 9 26 8 3 7 18 Against public health 7 8 1 16 3 5 9 Against person 5 1 i 7 1 2 Desecration of Sabbath 1 4 o 3 4 Intoxication 2 3 5 3 3 Against public peace 3 1 4 1 1 Misconduct in public oflSce •> 2 2 2 Against State i 1 Forgery .Miscellaneous 1 1 9 is 2 26 5 4 8 17 Total 5 J, 5 1,01'J 105 284 1,9.J3 372 293 713 1,J08 'J'hc whole i)i;u;li(;(,' regarding suspension of si-ntcnces is excessively loose. Much of it is of doul)tfuI validit}-. The statutes provitle for sus- pension of sentence pending error proceedings in upper courts. The statutes also provide for suspension of sentence of imprisonment witli a specified period of i)robation, the final carrying out or discharge of tlie sentence to l)e flependent upon the results of the probation period. Statutes furthermore provide for susiMTisiori of a sentence or of a fine for a specified period during which the defendant is given oj)portuni(y to pay the fine. In f)ractice these limitations are l)y ikj means observed. (07] TAHLi; 11— CMTV CASKS CLASSIFIED liV ClIAUCES AND liY DISPO- SITIONS AND DI'X'.RKK OF SUSPENSION OF SENTENCES Dispositions of cases Results of sentences Charge No Im- Fine and Sen- tence Sen- tence Sen- Total sen- Fine prison- im- Total wholly partly tence sen- tence ment prison- cases sus- sus- exe- cuted tences ment pended pended Violation traffic law 'HH 510 1 008 69 104 2S7 520 Disorderly conduct 71 93 08 63 295 92 12 120 224 Suspicious iHTson 142 7 39 100 294 61 12 79 152 Intoxication 31 165 43 37 276 06 27 152 245 ttffenses aRainst chastity 48 75 40 54 217 68 28 73 169 Gambling 22 32 54 13 4 15 32 Offenses against public health / 14 1 1 23 3 5 8 16 Offenses against public safety 2 18 . . 20 3 1 14 18 Offenses against property 4 4 i 15 1 4 11 Miscellaneous i> 24 i 30 5 4 10 25 Total 420 942 193 277 1,832 380 258 768 1,412 Sentences of imprisonment are suspended without probation for a definite period, and sentences of fines are suspended without a condition concern- ing the payment of a fine. Whatever the duties of the judges, it is un- questionably the duty of the prosecutor to watch the execution of the sentences so as to call to the attention of the court, or the appropriate official, instances in which the law is not being obeyed. As attorney for the public he can hardly conceive his work as completed without some attempt to ascertain whether the judgments he obtains correspond to the law and are carried out. TABLE 12.— SENTENCES CLASSIFIED BY TYPES AND BY DEGREE OF SUSPENSION, STATE CASES Disposition Fines Impris- onment Fines and impris- onment Total Wholly suspended Partly suspended Executed 184 209 549 80 10 103 122 39 111) 386 25s 7GS Total 942 193 277 1,412 The suspension of a sentence is often justified as a sword hanging over the defendant. The old sentence is made a hostage for future good con- duct. There is obvious merit in this. The trouble is that the theory is [68] not carried out. With rare exception the suspended sentence is promptly- forgotten by everybody, and if the defendant comes back into the court upon a new or even the same charge, seldom if ever is the old sentence remembered. TABLE 13.— SENTENCES CLASSIFIED BY TYPES AND BY DEGREE OF SUSPENSION, CITY CASES Disposition Fines Impris- onment Fine and impris- onment Total Wholly suspended Partly suspended E.xecuted 213 207 599 41 17 47 118 69 97 372 293 743 Total 1,019 105 284 1,408 Mitigation of Sentences Mitigation of sentences is made upon motion regularly set for hearing. This gives the prosecutor full notice of the time when the motion will be considered; he is generally present in the court and has opportunity to advance arguments in favor of or against the mitigation. As with total suspensions, however, in practice he rarely takes any but a passive or negative part. Section 13696 of the General Code of Ohio provides: "Testimony After Verdict or Confession, to Mitigate Penalty. — When a person is convicted of an offense, punishable, either in whole or in part, by a fine, the court, by motion, may hear testimony in mitigation of the sentence. The court shall hear such testimony at the term at which the motion is made, or may continue the case to the next term or like terms as the case might have been continued before verdict or confession. The prosecuting attorney shall attentl such proceedings on behalf of the State, and offer testimony necessary to give the court a true understanding of such case." (R. S. No. 7320.) This careful treatment of motions in mitigation of sentence, including presentation of evidence by the prosecutor, is seldom observed. In prac- tice the pro.secutor conceives that his duty has been donc^ when lli(> trial of the case is finished and sentence has been pronounced. One of the judges of the Municipal Court described with considerable detail the procedure followed by him. The description made it apparent tiiat cases before him receive morf trial after sentence than before; that the facts are more carefully looked into after trial and verdict than before; that, in short, with very slight and casual information coucerniug the facts, I 119 I juiltiiiKMit is roiulcivd aiul si'nl(>iu'(» imposed, and then a more careful invest ifi:at ion of facts is made in passinji; upon a request for mitigation or suspension of the sentence. TIumc is much to inchcate that the practice is not hmited to this judge. This shows a tendency to view the problem as one of treatment of the defendant as an individual rather than one of law enforcement. Such mingling of distinct purposes or theories regard- ing crime and the criminal intensify the difficulties of the prosecutor. Ilis iK)sition is today solely that of a law enforcement officer, and his pro- fessional training is a training for law enforcement. The law which he enforces, however, applies to the execution of the sentence as well as to the commission of the crime, and this portion of his duties is almost completely neglected. The Bail Bond Immediatel}^ upon his arrest the defendant is confined in the police station or city jail, unless he gives bond to secure his appearance at the hearing of the case, generallj^ set for the following morning. In all cases except felonies the amount of this first l)ond is fixed by the clerk of the court. In felony cases the amount of the bond is fixed by one of the judges of the court, who, if not sitting at the time, is reached over the telephone. There is no regular rule or practice for consultation with the prosecutor. The judge may ask the prosecutor's advice, or the prosecutor may himself initiate a conference with the judge. If, on the hearing, the defendant is convicted and sentenced and desires to carry the case to an appellate court, or if, in a felony case, he is bound over to the grand jury, he is required to give a second bond to secure the prompt filing of his case in the upper court or his appearance when arraigned, the amount of which is fixed by a judge of the court. Bonds to be given thereafter will be fixed by the Common Pleas or other higher court. The sufficiency of the surety is passed upon by the bond commissioners under a statute recently enacted. The prosecutor, therefore, does not receive from the law the responsi- bility for determining either the amount of the bail bond nor the suffi- ciency of the surety. It can, without injustice, be said, however, that amid all the abuses regarding bail bonds, such as the illogical variability in amounts demanded, the inadequacy of the sureties, or the use of the professional bondsman, the prosecutor has been quiescent, though he is in position to know most of the evils. He should be best fitted by posi- tion and experience to be the public's crusader against these abuses. There is, however, in relation to bail bonds in municipal cases, a definite statutory duty imposed upon the municipal prosecutor, namely, [70] that of enforcing the bond after forfeiture. Bail bond collection cases are treated as civil, not criminal, and therefore placed in charge of the civil branch of the Director of Law's office. This work, however, constitutes an exceedingly important part of the administration of criminal justice, and an examination of the way in which it has been performed is properly included in a survey of the prosecution. The importance of the work can- not be overstated, since the bail bond fails to perform its part in the administration of criminal justice if there be a habitual and known failure to enforce the forfeited bond. Table 14 gives the statistics of number and amount of forfeited bonds in municipal cases, with the judgments obtained and amount collected thereon covering the period January 1, 1916, to May 20, 1919. These are the latest data collected by the office of the auditor of the State of Ohio. T.\BLE 14.— NUMBER AND OUTCOME OF SUITS UPON FORFEITED BONDS Number of bonds Amount Bonds forfeited and delivered to Department of Law for col- lection 143 Stll, 200.00 Suits filed 107 40, 900. 00 .Judgments rendered tiS 30,000.00 Ca.ses pending 39 lt),900.00 Amount judgments obtained 54 20,315.00 .Judgments for ro.sts only 14 32. .')5 .Judgments collected 14 965.10 f "ost judgments collected 8 1().35 Judgments — no execution issued 22 10,450.00 Costs — no execution issued () 1G.45 Executions returned "no property" 22 8,075.00 Executions not returned "3 855.00 Ri;rAi'iTrL.\TioN: Total bonds received by Department of I^aw 143 (11,200.00 Suits brought 107 4(),900.00 .Judgments rendered 20,315.00 .Judgments collected 905. 10 .Judgments costs only 14 .32.55 Judgments costs only collected S l(i.20 The court had tJK^ power to reduce the amount of judgment below the amount of the bond, and, in fact, to rendiM- judgment for any sum — even for court costs only. The function of collecting the judgment is in the sheriff, not the prosecutor; consecjuently the pro.secutor camiot be held entirely responsil)le for the results. Sfill, he camiot be absolved from all responsibility for a situation in which only 1.5 per cent, of (he l)orids liavc been (•ollcctcd, for a policy and practice of vigorous enforce- ment would certainly be more proihiclive. 171] TIoius OF \\'()kk; PuiVATio Practice Ouv excuse eoiustantly lulvaueed for the inadequaeies of the i)rosecu- tor's porforniance is that, with the current vokimc of work, there is insvilheient time to do thinoi-s tlu> olork refused to accept from Smitti jiMyMUMit of (he fine and costs. In this critical situation Dissette was tclt'ijhoned for and came over to tlie Muni- cipal C\)urt huilding. Lavine repeated his threat tliat unh>ss tlie $S()() be innnechately given him Smith would have to go to jail. Dissette requested Lavine to give the pajiers to the clerk, which was not done. The next day Smith retendered the fine and costs, which the clerk again refused to accept. Smith had jilanned a trij) Kasi, and Dissette advised him that, as he had twice tendered line and costs, he could safely go. He returned early in January and was promptly rearrested. He brought habeas corpus proceedings in the Common Pleas Court. Now, we have seen that, on the day of the hearing, Juilge XX entered on his docket or calendar the order "motion for mitigation granted, original sentence changed, days suspended, fine and costs to be paid." At some later time this entry was erased and in its place inserted, " Motion for mitigation overruled, original sentence ordered executed." Strangely enough, the official record of the court, namely, the journal and execution docket for Decem- ber 23, contained the entry: " Defendant not in court, bond forfeited, capias issued." That was a false entry; for Smith was in court on that day and the bond had not been forfeited. The Common Pleas Court held, however, that it was bound by the record, and could not entertain proof of the falsity thereof, and therefore refused to grant a writ of habeas corpus, and Smith was returned to the jurisdiction of the Municipal Court, where a further hearing occurred on January 13. Kreisberg did not represent the municipal prosecutor's office at the original trial on December 3, nor at the strange happenings of December 23, but he did appear for the public in the habeas corpus case and at this later inning on January 13. Judge XX ordered the restoration of the original sentence, and, for some reason which is not quite clear from the records, added a fine of $200 for contempt of court and Smith was sent to the workhouse on the original sentence. A few days later Judge XX suspended the fine in the contempt hearing and the original sentence of thirty days, leaving the original fine of $100 and costs, which were paid. Before this Dissette had presented the matter to the Cleveland Bar Association. 74] CHAPTER VI THE COUNTY PROSECUTOR'S OFFICE History THE office of Prosecuting Attorney of Cuyahoga County was created contemporaneously with the creation of the county and is more than a century old. The statutes defining the general powers and duties of the office have undergone little change. In this century and more, however, the ciiminal law has grown enormous!}', and Cuyahoga County has developed from a community of isolated farmers to the most populous county in Ohio. To the extent of available statistics. Table 15 states for the years 1863, 1880, 1890, 1900, 1910, 1920, and 1921 the population of Cuyahoga County, the number of indictments, the nimiber of arrests in Cleveland, the number of prosecutors, assistants, and clerical force in the county prosecutor's office, and the total payroll of the office. TABLE 15.— COMPARISON OF GROWTH OF THE POPULATION AND NUMBER OF ARRESTS, WITH THE NUMBER AND SALARIES OF THE COUNTY PROSECUTOR'S STAFF, 1863-1921 Popula- tion of Number of in- dict- ments Number of arrests Number of county Size of clerical Payroll' of office Salary of chief prose- cutor Year Cuya- hoga County for city of Cleve- land prosecu- tors on criminal side force, criminal side isg;j 60 1,687 1 1880 19f),94.3 187 7,432 2 SI, .577. 50 S2, 000.00 1S90 309,970 9,616 2 2,6X9.60- l,9y9.92-' 19(X) 439,120 512 19,923 3 1 12,2t)0.00» 3,.500.00» 1910 637,42.5 595 7,18.5^ 5 • { 19,.5()0.00 1S,()()3.93 5,499.97 1920 943,495 2,762 27,61.5' 6 •^ 1 37,.5()().()0 35,572.76 5,.')(M).00 1921 2, .549 8 2 48,400.00 5,500.00 ' This is whole payroll of office, including both civil and criminal branches. * Figures for 1887, as 1890 were not available. ' Figures for 1902, as 19(K) were not available. S900 for Hlonograplier, and S6,:J()0 for county .solicitor and his juHsistHnf and sh-nographcr in addition to the above. ♦ Dcrciine due to toiriporary "golden rule" i)olicy. ' 79,897 warned and released. Criminal Court in Operation Anu)n^ j>ossil)lo classifications, the cases in tho criminal division of the Conunon Picas Court may be divided into those in which public excitement pushes the prosecutor to unusual efTort, and those where no extra lime-light has been turned on. It is these ordinary cases which best illustrate the administration of criminal justice.' The trial of two cases a day by the same prosecutor before the same court is habitual, the trial of three cases a day very frequent, of four cases not exceptional. In addition to the trials, there are generally each day several arraignments of accused "for receipt of the plea," and also the pleas of guilty with sentence thereon. The course of most trials is interrupted by these miscellaneous matters and by the receipt of the jury verdict in a previously tried case. Just before entering upon the trial of the first case of the day the trial prosecutor receives from the assignment commissioner a package of papers consisting of the indictment and other pleadings, the names of witnesses, and notes of the testimony of the witnesses before the grand jury in cases which might be reached that day. It is quite apparent that he proceeds to try the case with little or no knowledge of its details al- most up to the moment of trial, and that his only information consists of the names of witnesses and scribbled or scattered notes of their testi- mony before the grand jury. At these he has to glance continually to keep the case going. For questions to ask the witnesses he must rely largely on the promptings of the police officer, who sits at his side, or on inspiration from the answers to other questions given by the witness on the stand. One is reminded of the Italian commedia deWarte, in which the players, not having learned their parts beforehand, take each line 1 The success of criminal law enforcement is best judged by results in the gen- eral run of habitual offenses, and not by its sporadic triumphs in occasional sensa- tional murder cases. The young man who, by reason of mental and moral make-up or environment, has in him the potentialities of a professional criminal, does not begin his career with a murder or large-scale robbery. His first offense is more liable to be petit larceny, porch-climbing, or small hold-up. If the administration of justice can be effective in discouraging the development of his criminal career, this is the time and point for it to operate. Furthermore, most of us have a very large chance of going through life without being the victims or intended victims of the murder of passion or revenge. But we and our families and our homes are in daily danger of attracting the cupidity of the second-story man or "stick-up." The general peace and security are more dependent on society's treatment of the regular flow of ordinary crimes than on the results of the few great murder cases which attract public attention and create public excitement. The efficiency of the prevailing system must be judged by methods and results in the regular run of the cases. [76] from the prompter and improvise the performance as they go along. Both these Itahan actors and these trial prosecutors develop a speed and a skill of improvisation which are truly remarkable. But the latter have this disadvantage — that they are engaged in a combat for which the adversary is carefully prepared. The prosecutor does not, hke the English barrister, have at his elbow a junior counsel who has carefully studied all the law and the facts, and a solicitor who has interviewed the witnesses and who supplies the trial lawyer with thorouglily prepared material. The trial prosecutor does not receive, either at or before the trial, a comprehensive brief of the facts, setting forth the testimony which may be expected from the witnesses. Where the case involves no special diffi- culties of investigation or preparation, and especially where the case has been thoroughly developed by the police department, things may go well enough. It is obvious, however, that the State takes more chances than the defense and assumes the handicaps of unpreparedness. The trial prosecutor does not seem to exercise particular care in selection of the jury. There is no preliminary effort to learn who the jurors might be and their social and political affiliations. The prosecutor contents himself with two or three general questions, such as: Do you know the defendant? Do you know the defendant's attorney? Do you know anything about the case? Do you know of any reason why you should not make an impartial juror, etc.? He does not always wait for the answers. In the course of the term he learns from experience in previous cases the names of the jurors who seem habitually and obsti- nately to hold out for the defendant. These he gets rid of. As every lawyer knows, the opening statements to the jury (made before the in- troduction of any evidence) furnish an opportunity for skilful advocacy, and many a ca.se is won or lost in the opening statement ; but here again one of the trump cards is dealt to the defendant's attorney. The pro.se- cutor, knowing so little about the case at this early stage, is able to t(>ll the jury only a vcay scanty, vague, and uninteresting story. According to the statement of a prominent member of the force of former Pro.secuting Attorney Samuel Doerfler, the system of keeping the trial prosecutor ignorant about the case until within a few minutes before trial was established by Mr. l^oerfler because of his distrust of his own assistants. It was designed, it was said, to allow the assistants as little ofjportunity as possible to l)lock or drop the prosecution. This certainly indicates that the former prosecuting attorney liad little control over his a.s.sistants, and is a startling illustrution of f lie distrust theory of govern- ment. The present county prosecutor, Mr. Stanton, would i)robably deny lack (if control over his assistants. Tho statutes cjave him the power of select injz; his assistants; but there can he little douht that, followinji; cus- tom, he permitted a political or{j;anization or leader to have powerful in- lluence in the selection. A recent incident certainly tends to indicate that he does not have or does not exercise the appropriate amount of control over his orp;aniza- tioi\. One Joseph IMazzeo was indicted for receiving a stolen automobile. There was a preliminary examination in the Municipal Court, Mazzeo had been indicteil, failed to a])])ear for arraignment, his })ond was for- feited, and capias was issued. He was recaptured and pleaded not guilty. The trial was in progi'ess on May 4, 1921, the prosecutor's office being represented by Assistant Prosecutor Frank E. Boldiszar. In the midst of the trial Assistant Prosecutor Blase A, Buonpane walked into the court-room and requested a nolle. Boldiszar said nothing, and the request coming from a member of the prosecutor's office, was granted bj' the court and a nolle entered in the case. Previous to his incumbency in the prosecutor's office Buonpane had represented Mazzeo in this same matter of the stolon automobile at earlier stages of the case. For this reason James T. Cassidy, the first assistant prosecutor, had expressly instructed that there should be no nolle of this case. Buonpane con- tinues in his position as assistant prosecutor.* Office Organization The office force of the county prosecuting attorney consists, in addi- tion to himself, of the seven assistant prosecuting attorneys, two stenog- raphers, and a county detective. This county detective, so called, though an experienced police officer, is used as a sort of general utility man and grown-up messenger boy. Until June, 1921, there was no managing clerk. There is a degree of specialization of the work of the assistants, one having charge of the presentation of cases to the grand jury, two or more are assigned regularly to the trial of cases, and others are reserved for special assignment in the more important cases. The prosecutor himself takes part in the more important cases and exercises some executive direction and control. Visitors can select the particular assistant with whom they will choose to talk, the stenographers attempting to do some sifting out so as to reduce the waste of time of the office. ' The trial judge states that the merits of the case justified a nolle. We intend to express no opinion on the merits of the nolle. [78] The physical conditions of the offices, while not impressive nor ade- quate, compare most favorably with the conditions in the municipal prosecutor's office. The prosecuting attorney himself has a good-sized room in the suite devoted to the civil branch of the work. There is a fair-sized waiting-room. The suite used by the criminal assistants con- sists of a fair-sized waiting-room, part of which is railed off for the stenographers. There are five private offices, running from 150 to 225 square feet, the smallest occupied by the county detective and the other four by the assistants, two of whom occupy one of the rooms and three, another. Record System The record system in use in both the county courts and county prose- cutor's office is in favorable contrast with that of the municipal offices. The county clerk maintains a well-indexed criminal docket, using the same system and the same thoroughness as in civil cases. An office docket of all cases is kept, containing the name of defen- dant, the charge, the plea, and the final disposition. It contains the name of the assistant prosecutor who has charge of the case, but does not contain the name of the defendant's attorney. Nor do the dockets or records of the court clerk contain the name of the defendant's attor- ney. Each docket-book has an index attached. There is also the file of the cases, containing the original papers, on which are noted the steps taken in the ca-se, with the notes from the grand jury rooms and any special information which may be of use in the trial of the case. Mr. Stanton has recently instituted a card system or docket in which pond- ing but not completed cases are alphabetically arranged. With some slight improvements the record system, in both the clerk's and prosecutor's offices, would enable both the prosecutor and public to ascertain the status of a case, past and present, and enable members of 1 he prosecutor's staff to find without delay whatever information is in the office. Personnel The present prosecutor is Republican and has bc(>ii in office since January, 1021. Ilis i)redecessor, »Samuel Doerfler, was a Democrat.' The following is a list of flic personnel of this office dming these two ad- ministrations, with the peiiod of service, age at conunencement of ser- vice, arul number of years at the bar pTvvious to service. ' During a fow monflis in 1020 H. A. Hitskin was prosprufiiiK attnrnoy, succeed- ing .Mr. Doerfler, wlio resigned before the end of his term. 179) Age at Years ad- com- Dale mitted to Name Term mi'iice- admitted bar on com- ineiit of to l)ar mencement service of service Di;m(h UATU- SauuK'l Doerllor, Prosecutor 19 10-1920 41 1897 19 Assistants Fred W. Ciroon 191()-1920 45 1890 20 C'lcorfjo llowolls 1918-19ir) :i.) 1900 12M John J. Jiabka 1912-1919 28 1908 4 Stephen M. Young 1917-1920 29 1910 6 Wilham J. Corrigan 1917-1920 31 1915 IH Fehx T. Matia 1910-1920 1914 2 D. R. Kothkopf 1917-1920 27 1914 3 Tim J. Long 1918-1920 33 1915 23^ Florent'o Allen 1919-1920 35 1914 5 A. W. Chaloupka 1919-1920 33 1917 2 R. A. Baskin 1918-1920 35 1910 7y2 Albert Lawrence 1919-1920 01 1880 39 Frank Merrick 1920 20 1910 4 Joseph Dembe 1920 3() 1914 6 Myles Frazier 1920 31 1914 6 Thomas Dunlap 1910-1918 48 1890 25 Republican Edward C. Stanton, Prosecutor 1921- 32 1913 7^ Assistants Geo. C. Hansen, civil 1921- 40 1899 20 H E. J. Thobaden, civil 1921- 50 1887 33 Henry Williams, civil 1921- 22 1920 Yi James T. Cassidy 1921- 34 1913 IVz John J. Sexton 1921- 42 1915 03^ Harry E. Parsons 1921- 40 1900 21 Frank E. Boldiszar 1921- 25 1917 3H Eva L. Jaffa 1921- 28 1915 0^ Blase A. Buonpane 1921- 29 1910 5 W. I. Krewson 1921- 20 1919 1 On the delicate subject of the abiHty of the members of the office, the same two prominent Democratic and Repubhcan lawyers who had given their judgment upon the ability of the municipal prosecutors were con- sulted, and again their opinions were surprisingly similar. According to their judgment of the eight members of the force, one has exceptional trial ability, another is an able lawyer, a third has only fair ability as a lawyer, a fourth is a poor lawyer, while the remaining four have not had sufficient experience or standing at the bar to enable their professional brothers to know or judge of their ability. Of the lawyers who answered the questionnaire, 92 expressed the [80] P-H Other prose- cutors nzA ■ ■ ■ ...... t^ t- o £ 3 s "o X o E a Z s 3 >> 3D l-t oco r~ro ■*-<.--«--M CO a a X c q IN a 1 Is " "^ • • •' • • '.'.'■'.'. '.'.'.'. '.•i^ '. '. '. : : ! . ; ^ . O — I 1 s 0-? ~ a ;£ s OCX •«-<•* CI "H -O -O • • -M-* ••<>• -H • IN • TOCO- O-^ CJ- •■•« -"H CI N c — * Prose- cutor known oc5u^^^^^■♦C5lO«cc>^L'5N-^5XP^«^5e>5e^■-^>o toco O— M— -rx « — X — 1>- Cl -« W X CO cT 2h ca "'J of a a b r^ /^ \ •6 a Prose- cutor un- known OiC5 • • •O'O" Oi-H • lO .11 • -f ■ -O ■-*»\ ■ ■ • • • • • • -hO 2 -oc5c>ireci« — c •-'t^o o — n xc^ 4. A s « 5 No trial, but defendant sentenced Original plea of guilty offense charged Plea guilty offense charged changed to guilty of lesser offense Original plea guilty lesser offense First plea not guilt>-. second unknown Plea not guilty changed to guilty of offense charged Plea not guilty changed to guilty of lesser offense Abated by death Apparently unfinished Bail forfeited, capias issued Committed to institution for insane Committed to institution for insane then ndU prosequi entered Dismissed for want of prosecution Dismissed on ''8 death-bed statement, and permitted the statement to be obtained by two brothers of Kag>', who failed to obtain the necessary proof of Kagy's knowl- edge of his critical cfnidition, with the result that the death-bed statement was ex- cluded from the evidence. 'J'his failure might have been avoidetl if the pnisecuting attorney's office had been called into the .situation in time to take charge of the obtaining of the death-bed statement. .Memlu-rs of the j)olice (l(>parttnent visited tlie hos|)itaI from rl.ay to day, and were actually just outside the room at the time Kagy's two brothers took the statement. Though the case was the sensation of the day, there is no indication that during these thirteen days the pro.secuting attorney took any .step whatever to get in touch with or iiistru<-t the police dejiail iiicnl , Hotii Joyce anrl McCiaiuion wenr ac(|uilte(l. [H:n Tho pcM-iod olap.sing botwoon the arrost and tlio prosontation to the grand jury varies from a t'(>\v days to 500 days, during which there is time for the (hsappearancc^ of witness(\s, the destruction or eUmination of daiiiiiMous documents, and the coaching of possible witnesses, in adthtion to the effects uj^on the memories of witnesses made by the pubhc dis- cussion of the case in the press and elsewhere. No member of the county prosecutor's office is present in the office of the municipal prosecutor wiiile the aflidavit is prepared, nor in the Municipal Court during the preliminary examination. Owing to the constancy of the stream of work, practically no attention is given to the case, its proof or lack of proof, until the moment of presenting it to the grand jury. The assistant who has charge of the presentation of the cases to the grand jury has generally, up to the very moment of presenting a case, no familiarity whatever with the case, its facts or proof. He simply calls in the witnesses whose names are noted on the papers which have come up from the municipal prosecutor. Sometimes, if this rather casual testimony before the grand jury proves inadequate or there are indica- tions of the possibility of improving the proof of the case, an attempt is made to find additional testimony before the grand jury passes on the ease. TABLE 17.— AVERAGE NUMBER OF DAYS USED IN DISPOSING OF CASES ORIGINATING IN THE SEVERAL COURTS, COMMON PLEAS COURT, 1919 Number of cases Average number of days Court of origin From arrest to indictment From indict- ment to dis- position From arrest to disposition Municipal Magistrates Grand jury^ L'n known 2,033 89 198 20.8 26.2 14.4 25.4 46.6 40.2 99.6 36.4 67.4 76.4 a5.2 61.8 Total 2,325 18.0 51.3 69.3 With exceptions, so rare as to be negligible, the testimony before the grand jury is not taken down stenographically or otherwise and no *In cases originating in the grand jury arrest follows indictment, hence the first of the three averages is the reverse of the others in its column, being the time from indictment to arrest, rather than, as otherwise, from arrest to indictment. This is shown also by the fact that the third average is less than the second, contrary to all the other groups of cases. [84] o g c.S •* ic o Tj' -^ :c '-^ M ro • o ■ t^ Lt O ■ X lO ■*' i-t "-I (N OCl ^5 • lO CO ^, q • q ■o ■ CO •o cc a i.-t q -^ . q 05 -^ ^ ■ c; M o ■ -rf ?■?■ O ' GC lo rc ■ »C o CO • CO o • o • o c o -co ' ci -H ' T^ ■ Tt< CO 00 ■ ic O ■* C^ 00 -.C ^ 1:^ (N •<*< CO r-^lOTt* •o •iMt^O iC LO o OC(N ^ CO ■ :c r^ LO (M CO >-o ■ CO lo q ' >-< CO •^' ■o CO • CO ■ oo • o ■ ooo ■<* ■ ■ iC o t^ ■ CT CO t^ ■* (N LO-* f-H CC CC »"H Tt< i-H (M Tf* CO CD c o fe c3 o .-H en ^ tf c C5 »i^ r" ^, ■c d o •a 03 G C c3 t^ tn c ^H O <^U o •OOCD "3'*eoqrj<(NiO'«i— ' 'M'^'^do ■^coM'i~~-ic»— 'CO (MLor-o)"— iiC"— I •--H CO !M occ^ji-ioc5'^»oqc<>qqqqq^t-^q^_qq'<*oq>-*i>qoio^ooq -oqqq ^Jcicd-H^^;c!^^LO^cOLOXLOLOcd-^o6oc^^~ocio30cooi'-Hoico-Hci '»C'*c oj J3 u (h OJ -C o c o 3 £5 O •2 o, I ° » "**' fT r' ^ <« ~ **^ **-! !2so c o "" '" .2 ; V— 3 3 3 KSOOQ a< &< o 3'>'>'> >T3-T3 4, (D 3 3 OOO OOO ii -O T3 ^ ~- ^.-3 .-^ "V O . , <;; «j ^ 3 3 2 8 a t; cj O- ^S > a 3 O) ^ to O <= i; 3 I- 4* CO T C3 3 t- O HO T3 3 CJ c3 CO a bC > 3 O -a t- 3 0^ c3 c3 3 -a .-3 -3 -a c3 03 ^ 3 f- 3 -t3 O S -i ^ O o 'I' *^ (o 0_-- 3 O'a C3 CO o ^ 1 P agi bp-o'o - O O -T- ^/ W ^J tv* 4; « O bC O • - ■^ .— *■' *- *- -t; CJ-3 cj 03 a. »3 O^^OQ^Q I 85 ] TABLE 19.— ACCUMULATION OF WORK i IN COMN' 1916 1917 Num- ber Totals Num- ber Totals 1. Total cases requiring action at end of .\pril term 2. Indictments pending at eiul of April term 3. Cases bound over not acted on at end of April term 16 3(i6 Per cent, accumu- lated cases to indict- ments re- turned fol- lowing and preceding years 14.78 21.02 ■J 26 31 4,'-)7 Per c. Ul'<"UIl latcd (■ to iiul mciitH turned lowing preced year TT7 14.0 Gr.\nd JruY Work 4. Total cases for grand jury, July term 5. Cn.ses bound over and not acted on at end of April term (line 3 above) (■>. Cases bound over during Jul.\- term 7. Total ca.ses acted on by grand jury, July term 8. Cases — true-billed by grand jury, July term 9. Cases — ni>-billed by grand jury, Julj' term 10. Cases remaining before grand jur\-, end of July term 11. Indictments returned during following year 12. Indictments returned during preceding year 16 332 74 19 348 93 2.55 1,725 1,213 .•ji 369 105 43 400 148 2,52 2.1.50 1,725 Petit Jury Work 13. Total indictments ready for trial during July term 14. Indictments pending beginning July term (line 2 above) 15. Indictments returned during July term (line S above) 16. Total cases disposed of during July term 17. Cases disposed of by trial during .July term 18. Cases disposed of by plea during July term 19. Total cases undisposed of at end of .July term 20. Embn,-onic indictments in cases still to be acted on by grand jury computed by taking 76 per cent, of figure appearing on line 10 above 21. Accumulation of cases for petit jury, beginning of September term 22. Total cases disposed of during following year 23. Total cases disposed of during preceding year 3,50 74 37 424 37 387 194 581 1,657 1,090 Per cent, accumu- lated cases to cases disposed of preceding and fol- lowitig years 426 105 ie 50 531 66 465 192 657 1,7.5() 1,657 Per ce accun latcd to cat dispose preced and fi lowir year 37.4 39.6 35.06 53.30 transcript of the testimony is made. The prosecutor in the granci jury room sometimes finds time to scribble on the papers a few rough notes of the testimony. We have seen that these rough notes offer all the trial prosecutor learns about most cases before jumping into the trial of them. It is a system of serial unpreparedness. This lapse of time between the various stages of the cases was investi- gated statistically, with the results as shown in tables herewith. Table 17 shows, in all of the 1919 cases, the average number of days between arrest and di.sposition of the case, between the indictment and the dis- position and between arrest and indictment. The averages are of all cases, including those in which there is a plea of guilty and in which, therefore, no further preparation for trial was required. Naturally, if contested cases only were included, the average time intervals would be greater than disclosed in this table. The classification is according to place where the case originated, namely. Municipal Court of Cleve- land, magistrates' courts outside of Cleveland proper, and the grand 186] ■LEAS COURT DURING SUMMER VACATIONS, 1916-1920 1918 Totals 832 425 86 339 1,940 2,150 901 28 873 258 ,131 .948 ,756 Per cent, accumu- lated cases to indict- ments re- turned pre- ceding and following years 17.47 15.77 Per cent, accumu- lated cases to cases disposed of preceding and fol- lowing years 58.06 64.41 1919 Num- ber 814 22 22 282 814 Totals 836 304 304 1,735 1,940 814 814 231 1.045 2,027 1,948 Per cent, accumu- lated cases to indict- ments re- turned pre- ceding and following years 17.52 15.67 Per cent, accumu- lated cases to cases disposed of preceding and fol- lowing years 51.55 53.64 1920 Num- ber 521 16 IG 461 521 Totals 537 477 477 1,735 521 521 363 884 2,027 Per cent, accumu- lated cases to indict- ments re- turned pre- ceding and following years 27.49 Per cent, accumu- lated cases to cases disposed of preceding and follow- ing years 43.61 Totals, average, and per cent. accumulation for five years. 1916-1920 Total of num- bers 2,933 95 95 1,859 258 69 2,933 258 ie 115 Total of totals 3,028 1,954 327 1,627 8,763 3,191 13i 3.060 1.238 4,298 8,478 Aver- ages 606 587 19 391 19 372 65 51 14 326 1.753 638 587 51 26 3 23 612 248 859 1.696 Average per cent, accumu- lated cases to indict- ments re- turned preceding years 18.57 Average per cent, cases ac- cumulated to cases disposed of preced- ing years 50.70 jury. "Unknown" represents cases whose place of origin could not be located. Table 18 is an anal3'sis of time intervals between arrest and in- dictment (presentation to grand jury) and between arrest and dis- position, classified in accordance with the disposition — that is, these time intervals in the cases which resulted in plea of guilty or in those which were nollod, and .so on. These figures, it should be remembered, are averages. A case, for instance, in which the accu.sed pleaded guilty in the Municipal Court would be a factor in making up the average. A more inten.sive study was made of the time interval between cases bound over in Juh', 1919. This interval ranged from a minimum of 00 days to a maximum of 164 days, averaging 80 days in the 55 cases. These cases aro.so in the summer, probably while no grand jury was in .session. But intervals such as these are by no means un- common in cases arising at other seasons, and suniincr is pioljubly [87] as favonihlo as any other pcMiod for disappoaranco of witnossos, im- pairniont of rocolloction, and other daniajfos to the effective achninis- tration of tlie criminal law. The summer accuniiilation of castas, due to the absence of a grand jury and the vacation of some oi' all of the criminal court judges, pro- duces a congestion at the beginning of what may be called the trial year, from which the administration of justice does not recover during the year and which is a fruitful cause of hurried, careless methods of pre- paration and trial. Table 19 is a study of the amount of this accumula- tion anil its inevitably haimful effect. The accunudation is kept down by a feverish spell of trials toward the end of the April term of court, so that justice's summer vacation works backward and forward to impair efficiency. An exi)lanation may make Table 19 more intelligible. The April term of the court begins on the first Monday in April and ends on the first Monday in July, when the July term starts. The figures on line 10, namel}', the cases remaining before the grand jury at the end of July term, represent the difference between the figures on lines 4 and 7. The figures on line 13, namel}^ the total indictments ready for trial during the July term, represent the total of the figures of the next two lines, 14 and 15. During the summer of ]916 and 1918 court was held for a short time to allow pleas of guilty and thus eliminate some of the cases. Dur- ing the summer of 1917 a special session was held to receive pleas of guilty and also to hold a few jury trials. The figures on line 19, namely, total cases undisposed of at end of July term, represent the difference between the figures on lines 13 and 16. The records show that about 76 per cent, of the cases are "true-billed" by the grand jury and 24 per cent, "no-billed." Therefore, in line 20 it is assumed that 76 per cent, of the cases pending before the grand jury (line 10) will result in indictments. One of the judges sitting in the criminal branch in January, 1921, was struck by the fact that 12 out of the first 16 cases before him in that month resulted in acquittals. He looked into the cause and came to the conclusion the fault lay in the serial or cumulative unpreparedness, to which we have called attention, accentuated just at this season by a change of administration in the prosecutor's office.' With careful and thorough prepai'atory work in the earlier stages of a case, together with systematic filing of the information and good office organization, this harmful effect of change of administration could be minimized. ' County prosecutors are elected in November of even numbered years, and take office the following January. [88 1 Assignment of Cases Consideration of the opportunity of the trial prosecutor for prepara- tion is necessarily connected with the system of the assignment of cases. The assignment of cases is in charge of the assignment commissioner of the criminal branch of the court. Cases are assigned for trial in the fol- lowing order: first, all known criminals; second, defendants in jail; and third, bail cases. Within each one of these classes the cases are taken in numerical order. The rules of the Common Pleas Court provide that the prosecuting attorney shall furnish the presiding judge a list of known criminals against whom cases are pending, which the presiding judge cer- tifies to the assignment commissioner. Like so many other rules, this is seldom observed. Three or four days before the date set for trials of a group of cases the prosecutor receives from the assignment commissioner the list of the cases set for that day. When the day arrives, the cases go into one room or another in their numerical order, so that the prosecutor in any par- ticular room cannot know in advance which of the cases will be assigned to the room in which he is acting. The assignment commissioner is able and willing to adopt and has urged the adoption of a system whereby each trial prosecutor will know several days in advance which cases will be assigned to the court-room in which he works. The Grand Jury No case is tried nor is any sentence imposed unless there is an indict- ment by the grand jury. This is true of those cases in which a pre- liminary examination has been held by the Municipal Court, as well as those which are first instituted in the grand jury. The latter class of cases forms between 9 and 10 per cent, of the whole. In over 90 per cent, of the cases, therefore, two preliminary examinations are held — one in the Municipal Court in the presence of the accused, and the second in the grand jury room without the presence of the accused. As a matter of fact, the grand jury does little more than register in formal shape the opinion of the prosecuting attorney that there is suffi- cient proof to warrant a trial. Very rarely does the grand jury indict when the opinion of the prosecuting attorney is to the contrary, and vice versa. The prosecuting attorney plays practically no part in the selection of the personnel of the grand jury. The process of selection is as follows: A number of names are drawn from the jury wheel, and those so drawn [ wi aiv iiotitioil Ic) apprar at a dosif^natcd time ami place.' A coiisichM-ahh^ portion of those who appear ask, for one reason or another, to be excused, and the excusing of tlieni is a responsihihty of the court. As the session of the sraml jury proceeds others ask to be excused. The vacancies created by these excuses are filled by the court from names selected l)y the court, th(> judsie being free to select whom he please. Naturally, the selection is made from social or political acquaintances of the judge. Tables 20 and 21 show the number and percentages of grand jurors in the six terms of the court from April, 1919, to January, 1921, wlujse names were drawn for the grand jury, who failed to appear and who served diu'ing part of the term, and of those who were selected by the court, with the growth of the percentage of the jurymen selected by the court as the sessions progressed. TABLE 20.— NUMBER OF GRAND JURORS APPOINTED BY PRESIDING JUDGE FROM SOURCES OTHER THAN THE ORIGINAL PANEL Aver- Term 1st week 2d 3d 4th 5th (ith 7th 8th 9th 10th nth 12th 13th 14th 15th age for whole term April. 1919 9 10 13 14 14 14 14 14 14 14 14 13.1 September, 1919 1 4 7 10 10 11 12 12 12 13 13 ii 13 i3 i3 10.5 January, 1920 1 2 11 13 13 13 13 13 13 13 13 10.7 April, 1920 12 12 13 13 13 13 13 13 13 13 13 13 12.8 September, 1920 4 10 13 13 13 13 13 13 13 13 13 13 13 i3 13 12.2 Januarj-, 1921 8 35 8 12 12 75 12 75 12 76 12 77 12 77 12 77 12 78 12 26 26 26 11.3 Total number 46 69 78 39 70.6 Average per week 5.8 7.7 11.5 12.5 12.5 12.7 12.8 12.8 12.8 13.0 13.0 13.0 13.0 13.0 13.0 11.8 Average per cent. 39 51 77 83 83 84 86 86 86 87 87 87 87 87 87 78.0 A grand jury is composed of 15 members. Table 20 gives the number of persons on the grand jury selected by the judge himself entirely from outside of the regular panel in the successive weeks of the session. In the last column is given the average number on the grand jury through- out the term who were thus personally selected. For instance, as shown by the table, in the April, 1919, term, during the first week nine out of 15 were thus selected from outside of the regular panel; and in the fourth week this grew to 14, where it remained throughout the rest of the term, making an average for the term of 13.1 out of 15 thus per- * If they fail to appear, nothing is done about it. No instance was discovered in which the prosecuting attorney followed up the failure of the summoned juror to appear. [90] sonally selected. As shown by the lower lines of the table, taking the whole period covered by this stud}^, namely, two years, an average of 11.8, or 78 per cent., out of 15 were thus selected. Table 21 gives the number of those whose names were drawn and who were not found at all, or who were notified and failed to appear, or who, having appeared, were excused at the beginning or during the term. Twentj'-five names are drawn for each grand jury. The table shows, for example, for the September, 1919, term, of the 25 names, four were not found, one failed to respond to the summons and six were excused. The table also gives in terms of "man-weeks" the relative percentages of time given to this service by those drawn from the panel and those selected by the judge. Thus, in the September, 1919, term, 68 aggregate weeks of service were given by those drawn from the panel, and 157 weeks by the others, being 30 and 70 per cent, respectively of the total time of the grand jury. TABLE 21.— NUMBER OF ORIGINAL PANEL AND JUDGE SELECTIONS (25 -MEN IN PANEL FOR EACH TERM) Term Persons in original panel not found Notified but failed to appear Number excused from those actually appearing Total man- weeks of grand jury Man- weeks from panel Man- weeks appointed by judge April, 1919 September, 1919 Januarj', 1920 April, 1920 September, 1920 Januarj-, 1921 4 3 3 6 8 11 1 4 3 8 6 8 13 4 7 165 225 165 ISO 225 165 No. 21 68 47 26 42 41 Per cent. 13 30 28 14 19 25 No. 144 157 118 154 183 124 Per cent. 87 70 72 86 81 75 Whole totals Average per week Per cent. 24 4 16 25 4 20 4G 8 46 1,125 188 245 41 22 880 147 78 There is no way of telling, with anything approaching statistical accuracy, which class of selections makes the better jurors. The evil of the present practice is that it does not correspond with the system con- templated by the law. Tiiat system provides, through the jury com- missioners, a machinery for placing in the jury wheel an adequate number of names of qualified persons, and permits the judge to fill vacancies which the law contemplates will be few and occasional. Whenever the methods provided by law arc departed from, there follow a confusion and dissipation of responsibility which open the door to carelessness and subtle forms of corruption. In all this tho prosecutor has not violated any express provisions of [111 I -3 S„2 oj )' CO •S-SiJ t~co •O) •IN « t; " j; t; — " ;; fe "- t' «- s •00 "-IM -^ •« •OI QD C c s o < «• »H00 (N OS 00 00 - in ^ fH • lO 'H (N r^ CO •si c:iN lO I- CO CO lO >o t-i o .-■ •-< -Oi •o ■*IN OJ 0>IN'-<^ rtCO C-lt>. CO 5 Co n ^^ CO o ■Sfc M »- c *- a ~ -r M' a. Oic c s o — CM t. o -^ © CJ o •- OJ X CJ t . >. c o ■'•^ a >. '3 CIS c ■= 9 OQ In •S-S _, O O 3 C C m o o « 7) ~ 3 -c a.-s.t; 3 en G^ 3 3 o a a =*■ — c "■ 5 X a a X ei^ a 3 '^ ^ '' . '.». -S -a Tj 5. o 2 S'-'S =i i -a o 4) I- <- a^^ c<= J: ■sSg CP^d, PL, =" a a.-3 c S -T3-3 *-2 O <» s c •^ a ^ o £ o = bcS Q r:' a-a ° §'E.2 •^ 0/ ^ C **- \^ IT *•- o a •;3 CD a-» •a§ I a Ok T3"-; o C.E fc at '■ «c c o2^ > c »> o . . CT3-T3 ti o « 3 t- k- tJO M M_, _ « =>1? S-o-a 0- 3 3 3 3 O O goEo ^ a -S §°°'3 3 m J3 >- b 3 3 I, o o oUO 9i-3 c Ss 2 o o a;.x e a c •^' c^ > ^ 3 2 a< 3 g ^ i> a 5> tj § § I, § t. £ V. 4) g « 6. tj CJ a, ^ c-3 X "3 fl : CT3 3 3 ' ' ~ o o O O-O'B 2 I -o 0) a -3 a a ^1:3 ■"•_- c aj a 2t3 a fe o = — a "o S 0; O k. L^ XI a a o o QQ a a o o •^ k- t^ 3 3 3 I— iT-s 3 3 a a CT c a a o o k- k« ^ a) 0) a o ~ > > . t» o o "^ a o o « •>^ k> o a a Ma.a -So t- .a-o-o o ■- o . a '.a a £ a a o o, s a k. o. o P •g^.-?§ i o [92] the law relating to him. But as he has a general function of law enforce- ment and responsibility for the prosecution of crimes, a responsibility which includes grand jury proceedings, he may fairly be blamed for his silence and drifting while this extra-legal system has developed. Statistics of Results of Cases Table 3 in Chapter II discloses the number of cases in Common Pleas Court in 1919, together with the number and percentages of the cases which, for one reason or another, were not tried, those which were tried and resulted in convictions or acquittals, and the percentages in which the sentences were carried out or suspended or mitigated. Table 22 gives the data concerning these cases in greater detail, classified both according to the type of offense (offenses against chastity, frauds, offenses against persons, etc.) and according to the disposition or result (plea of guilt, plea of guilt of a lesser offense, nolled, conviction, acquittal, etc.). These figures relate to the cases in which the grand jury found indict- ments and do not include cases which, though bound over by the Muni- cipal Court to the grand jury, were ignored or "no-billed" by the latter body and therefore ceased at that point to have further history. "No-billed" Cases Brief special attention should be given those types of disposition of ca.ses which constitute dropping or dismissing the prosecution without trial. In the regular order of events following the transmission of the ca.se from the municipal to the county authorities, the earliest of these dispositions is the ignoring of the case, as it is sometimes called, by the grand jury; that is, the determination of the grand jury to find "no bill" or indictment. As appears from Table 3, this cause of extinction occurs in 21.54 per cent, of the cases — a high percentage, indicating that many ca.ses which the Municipal Court should have discharged reach the grand jury or that many "good" cases reach the grand jury in an ill-pre- pared condition. A former assistant prosecutor, who had had charge of the work in the grand jury room for s(!veral t(!rms, states that it was usually the jMactice to "no-bill" ca,ses if the witness failed to appear upon being subpciMiaed, without any further investigation of the case; that about 25 or 30 cases were presented to the; grand jury in the course of a inorning, so that, when the case reached its turn to go before the grand jury, if the proof was not sufficient and the case had no sensational attributes or special I '.»■■'. 1 piil>lic attention, the prosecution was dropped then and there by means of the pi)\ver of the s had been on llie dockets since 1900. There were two 1909 cases, one 1910 case, four 191 1 cjises, five 1912, seventeen 1913, twenty-seven 1914, thirty-four 1915. In 99 of the cases special reasons for the nolles were stated, such as con- viction and sentence in other cases, war record, absence of sufficient proof. In all the remaining 311 cases the reason given was either that the defendant had never been apprehended or that the bail bond had been forfeited and the defendant had never been reapprehended. Some dead timber will accumulate in police departments and criminal courts, as elsewhere. Nor does the duty of capturing accused persons fall on the prosecutor. At the same time, as attorney for the State, the prosecutor might well be asked to check up pending cases from time to time, and thereby stir action by the police department in neglected cases. Such an accumulation as disclosed by the blanket nolle of 1920 indicates an inefficient administration of justice. The fact that a defendant has "skipped" his bond and not been recaptured would seem to be doubtful ground for a dismissal of the prosecution. As a blanket nolle of this kind affords an opportunity to an unscrupulous or careless prosecutor to drop a case which should be tried or kept alive, the statutory rule that nolles require a leave of the court in open court cannot well be followed unless nolles be considered one at a time. TABLE 23A.— COMMON PLEAS COURT, 1919; SENTENCES CLASSIFIED BY TYPE AND BY EXECUTION AND SUSPENSION Fine and costs Im- prison- ment Fine and im- prison- ment Total misde- meanor sen- tences Felony sen- tences All sen- tences Sentenced — total Sentence executed Sentence suspended 297 27.5 22 249 193 56 152 120 32 698 5S8 110 904 663 241 1,602 1,251 351 Suspension of Sentences The statutes do not expressly authorize or regulate the suspension of a sentence, except during error proceedings in an appellate court or where the accused is placed on probation. As a matter of practice, suspensions are not so limited and the practice is exceedingly loose. The term " bench parole" is popularly given to suspension of sentences made by the trial court. They are sometimes given without consultation with the prose- cutor, who, even when informed of the request for a suspension, does not, [90] as a rule, protest or offer any argument on the question. Apparently he conceives his responsibility terminates with the original sentence except where the court specially requests information or action by him. TABLE 23B.— COMMON PLEAS COURT, 1919; SENTENCES CLASSIFIED BY TYPE AND BY EXECUTION AND SUSPENSION; PERCENTAGES Fine Total Fine Im- and misde- Felony All and prison- im- meanor sen- sen- costs ment prison- ment sen- tences tences tences Sentenced — total 100.0 100.0 100.0 100.0 100.0 100.0 Sentence executed 92.6 77.5 78.9 84.2 73.4 78.2 Sentence suspended 7.4 22.5 21.1 15.8 26.6 21.8 Tables 23A and 23B give the statistics as to the relative execution and suspension of sentences in the 1919 cases, classified according to de- TABLE 24A.— COMMON PLEAS COURT, 1921; SENTENCES CLASSIFIED BY TYPE AND BY EXECUTION AND SUSPENSION Fine Total Fine Im- and misde- Felony All and prison- im- meanor sen- sen- costs ment prison- ment sen- tences tences tences Sentenced — total 18 45 12 75 155 230 Sentence executed 12 42 8 62 126 188 Sentence suspended 6 3 4 13 29 42 gree of sentence. Tables 24A and 24B give similar information relative to the sentences imposed in the first three months of 1921. TAIiLE 24B.— COMMON PLEAS COURT, 1921; SENTENCES CLASSIFIED BY TYPE AND BY EXECUTION AND SUSPENSION; PERCENTAGES Fine Total Fine Im- and misflc- Felony All and prison- im- mcanor sen- sen- costs ment prison- ment sen- tences tences tences Sentenced — total 100.0 100.0 100.0 100.0 100.0 100.0 Sentenff oxccutr'd 66.7 93.3 6(5.7 S2.7 81.3 SI. 7 Sentence siiHpcndcd 33.3 6.7 33.3 17.3 1S.7 18.3 [97] Tm paroles jiroporly so oallocl, — that is, the parole of prisoners by the authorities entrusted by law with parole powers, — the practice is for the parolinji; board or officer to ask for an opinion from the prosecuting; attorney. This opinion is jiiven without furtluM- effort on the i)art of the prosecutor to promote or obstruct tiie parole. The Bail Bond When a case is initiated by an indictment by the grand jury, followed by arrest, the accused is confined in jail unless he gives a bail bond to secure his appearance at trial. When a case comes through the Muni- cipal Court, the bond given there remains in eiTect until an indictment has been found and the defendant arraigned for plea, and, if he pleads not guilt}', another bond must be given to secure his appearance at the trial. If, in either class of case, the trial results in conviction and the de- fendant appeals, another bond must be given to secure his surrender if the judgment of conviction be affirmed. Neither the amount of the bond nor the quahfication of the surety is determined by the prosecutor, though he has or can take the power to influence the decisions on these points. It is his duty to watch the proceedings, have the defendant promptly arrested if the bond is not given, and have the bond promptly forfeited if the conditions thereof are broken. Until the passage of the recent statute regulating the procedure, it was also his duty to enforce forfeited bonds in all State cases, whether the bond was given and forfeited in the municipal or county court. The records show a woeful laxity in the performance of these duties.' ' A recent illustration of the prevalent laxity in this matter is furnished by the bond enforcement case of State of Ohio v. George Poulley and M. L. Bernstein (No. 1S0756 of the Common Pleas Civil Docket). The petition was filed July 1, 1920. The petition sets forth that an affidavit was filed in the Municipal Court on July 26, 1915, charging the defendant, George Poulley, with violating the liquor law; that on August 10, 191.5, the defendant was found guilty, and on September 15, 1915, a bond was given by George Poulley, with M. L. Bernstein as surety, conditioned upon Poulley's prosecuting his petition in error in the Court of Appeals without unneces- sary- delay; that, as a matter of fact. Poulley never filed a petition in error in the Court of Appeals; that on June 12, 1920, Bernstein was called upon to bring the defendant into court, and upon failing to do so, the bond was forfeited. Bernstein was served with summons on this jjetition, the return of the summons made July 10, 1920. Poulley was not found. On October 27, 1920, the defendant was given leave to plead instanter and he filed his answer on the same date. The bond was permitted to sleep four years and nine months before being forfeited. For over two months the prosecutor overlooked the opportunity to take a default judgment on the bond. On March 26, 1921, the case came before Judge Y., and the following entry [98] The following is taken from pages 61 and 62 of the report of the Cuya- hoga County Examiner of the Department of Auditor of State, Bureau of Inspection and Supervision of Public Offices: The examination discloses that practically all services in connection with the taking of recognizances for appearance in criminal cases during the period covered by this examination have been conducted as matters of mere formality, and so far as the records and files disclose the fact that the object of such a recognizance is to safely insure the appearance of the accused for trial, has received little if any consideration. What has been said of the taking of the recognizances also applies to all ser- \ices performed in connection with the forfeitures and collection of same, as if readily verified by the following data taken from the records of the Common Pleas Court, to wat: P. 61 Case No. 11272. Frank Hebole. Robbery. January 16, 1919, bond for- feited; no record of bond ever having been given. Case No. 13902. John W. Brown. Pocketpicking. Bond forfeited Jan- uary 16, 1919. No bond ever given in Common Pleas Court and none included in transcript. Case No. 11465. Arthur Purnell. Burglary and larcen3\ Bond forfeited January 16, 1919, but there is no record of bond ever having been given. Case No. 13498. Z. Barker. Issuing check to defraud. Bond forfeited February 12, 1919. No bond ever given in this case and the defendant was never apprehended. Case No. 13820. John Soheat. Carrying concealed weapons. Bond for- feited January 16, 1919. Entry in docket of June 11, 1918, shows bondsman relieved of further responsibilit}^ That in several instances over two years had elapsed from the time a recog- nizance was taken until the same was forfeited. That recognizances had been forfeited for a period of two years prior to hav- ing been reported to the county auditor or delivered to the prosecu ing attorney. That suit on forfeited recognizances had been entered for a period of two years prior to judgment being rendered. That from one to .seven continuances had been granted in many suits brought to recover judgment on forfeited recognizances. P. 62 Forfeited Bonds The following is a recapitulation of the results obtained in making an c.xami- nati(nj of the bonds given as security for the appearance in court of persons appears upon the dorkct of the court: "JuflRmcnt for plaintiff for costs. Forfeiture, delayed five years, (iej)rive(l defendant of opjxirtiniity to make cITort to have Cleorge Poullcy apprehended." (99) c'harcrd with llio violntuMis of tlio criminal statutes, aiul forfoitod in cases of tlioir failure to make such appearance: Total amount of bonds forfeited from Aupust 2(5, 1910, to May 27, 1919 $203,400.00 Total judgment rendered on forfeited bonds from August 20, 1910, to May 27, 1919 59,202.28 Total amount of bonds sued upon cases pending 10l),.'i00.00 Total amount of judgment on forfeited bonds collected from August 20, 1910, to ISIay 27, 1919 2,701.53 (S1,KX).00 of this amount was collected on judgment rendered prior to the period covered by this examina- tion) Total costs incurred in suits brought on forfeited bonds from August 20, 1910, to May 27, 1919 1,680.65 Total costs in suits on forfeited bonds collected from August 26, 1916, to May 27, 1919 439.10 Total amount of judgments on forfeited bonds upon which no executions have been issued from August 26, 1916, to May 27, 1919 13,885.00 The preceding statement disclosed that the amount of judgments collected on forfeited bonds during the period covered by this examination, as compared with the amount of bonds forfeited, shows that but three-fifths of a cent is col- lected for every dollar forfeited ; that the cost of collection is equal to the amount collected, not taking into consideration the salaries of the officials performing services in connection therewith, and that there is little if any effort made to issue executions on judgments rendered. The statutes provide ample means for the elimination of the condition dis- closed in connection with this subject, and the public officials who are by statutes vested with such power owe it to the community and themselves to use the authority .so granted to make immediate correction of same. While this survey was in progress the Ohio legislature passed a new statute regulating bail-bond procedure in Cuyahoga County. It has just gone into effect (July, 1921). It creates the position of bond com- missioner appointed by the presiding judge of the Court of Common Pleas. This official succeeds to the function of the municipal and county court clerks in passing on the qualification of sureties. The statute prescribes in some detail regulations concerning the records of defendants in criminal cases and qualifications of sureties; such regulations could, however, have been put into effect in the past by rules of court or by the actual practice of the court clerks. The statute transfers to the bond commissioner the duty to enforce forfeited bonds. This means a more divided responsibiHty than hereto- [100] fore, and is in line with customarj'- American practice of creating a new office to take over the duties which existing officials have habitually neg- lected, instead of providing existing offices with the type of men and office organization adequate for the work which logically belongs to those offices. In the last analysis it will be the duty of the prosecuting attorney to enforce the faithful performance of the bond commissioner's duties. The new statute contains, however, at least two very valuable re- forms. It makes the obligation of the bail bond a lien on the real estate of the surety from the date of the bond, and provides for the recording of these liens; and in actions on forfeited bonds it prohibits the court from giving judgment for any sum less than the full amount of the bond, except in cases in which the original defendant has surrendered or been recaptured. Cases in the Appellate Court About 13 per cent, of the contested cases which result in convictions are taken to the Court of Appeals on questions of law. The decisions of this court have an important bearing on the interpretation of the criminal laws and the validity of effective methods of law enforcement. In the interests of justice the man who carries his case to an upper court should not receive any undeserved and avoidable advantages from delays or technicalities. The protection of the pubhc's side of these cases in the appellate courts forms, therefore, an important duty of the prosecutor. One of the judges of the Court of Appeals complained that the prose- cuting attorney failed habitually to file briefs in these cases. An investi- gation of the basis for this charge was made, with the following results: In the 76 cases filed and concluded in the years 1919 and 1920, briefs had been filed by the prosecutor in only 20. The plaintiff-in-error failed to file a brief in 22 cases. Eliminating these, on the principle that the prosecutor is not called upon to file a brief until his opponent's brief is filed, these records show that the prosecutor filed a brief in only 20 out of the 54 cases. Of the 76 cases, eight were dismissed for lack of prepara- tion and eight for other reasons. Of the remaining 60, the conviction was affirmed in 44 and reversed in 16. In the 16 reversed cases no briefs were filed by (uther side in one case, while in the remaining 15 the prose- cutor had filed bri(!fs in four and failed to file briefs in 11. Taking the 60 cases in which the convictions were affirmed or reversed, the prose- cutor lost 6.()6 per cent, of them when he filed briefs, and three times as many, or 20 per cent., when he failed to file briefs. ( 101 CUAl'TKU Vlll THE FEDERAL COURT AND UNITED STATES ATTORNEY Comparison is Possible THE administration of justice in the federal courts does not fall within the scope of this survey. For purposes of comparison, how- ever, some inquiry has been made into the actual workings of the enforcement of the federal penal laws. By reason of the relatively small scope of federal penal law as compared with the State and municipal criminal law, and the relatively specialized nature of the offenses which come into the charge of the federal authoriti(>s, the task of the federal judge, when he sits in the criminal branch of the court, or of the federal jirosecuting attorney, does not present all the complexities and diffi- culties faced by the county and municipal officials. If, however, within its field, the administration of the federal criminal law in the same city presents a picture of relative orderliness, efficiency, the accomplishment of its ends, and the enlistment of public confidence, surely there are les- sons implicit in these results which must not be neglected. The following summary gives the results of the federal criminal cases in the Northern District of Ohio (the federal judicial cUstrict, which in- cludes Cleveland) for the year ending June 30, 1920, as reported to the Attorney General of the United States and included in his 1920 report. The fiscal year for which these reports are made runs from June 30 to June 30, and the year July 1, 1919, to June 30, 1920, furnished the offi- cial statistics nearest to the year of the county court tabulations in this report. The population of this district according to the census of 1920 was 3,195,651. ^ , , Pending at close of June .30, 1919 277 Commenced during fiscal year 1,140 Terminated during same period 967 Convictions 794 Acquittals 11 Nolle prosequi or discontinued 156 Quashed, dismissed, demurrer, etc 6 Pleas of guilty 761 Trials by jury 44 Pending at close of June 30, 1920 450 Fines, etc., imposed during year $131,327.06 Realized on fines, forfeitures, etc $106,977.62 [102] Comparing these results with those in the county courts, the dif- ferences are striking. For instance, the percentage of pleas of guilt in the federal cases terminated during the year is 78.7 per cent. In the felony cases in the county courts (Table 3) pleas of guilt were obtained in 37.02 per cent, of all the cases; or, if cases of acceptance of plea of a lesser offense be eliminated, pleas of guilt of original charge were ob- tained in 30.38 per cent. ; or, eliminating cases bound over to the grand jury but in which no indictment was found, there the percentages were 47.1 per cent, for all pleas of guilt and 38.7 per cent, for pleas of guilt of original charge. Of the 9G7 cases terminated dming the year, the federal authorities found it necessary to try only 44 cases, or 4.55 per cent., of which 75 per cent, resulted in convictions; whereas the 590 trials in the county cases represented 23.2 per cent, of all cases terminated during the year, with convictions in 62.2 per cent. 16.7 per cent, of federal cases disposed of during the year were nolled or otherwise dismissed without trial, whereas 41.01 per cent, of all State cases were dropped and 24.8 per cent, of the indicted cases were nolled or otherwise dropped. These figures indicate a relatively high efficiency in the federal ad- ministration in the preliminary stages of sifting out of the cases and preparing them. The Southern District of New York (composed chiefly of the original city of New York — Manhattan) is the busiest of the federal judicial districts and has nearly as many penal cases as the Cuyahoga County courts. As reported in the 1920 report of the Attorney General, in the year ending June 30, 1920, there were 1,879 criminal cases terminated in that district, of which 1,160, or 61.7 per cent., resulted in pleas of guilty, and 1,221, or 65 per cent., resulted in convictions. Federal cases, like State cases, can be begun in the grand jury or in a court of preliminary examination, namely, before a United States Com- missioner. The United States Commissioners undoubtedly keep some dockets or records of their own, but no dockets or records of the pendency of cases before commissioners or of the dispositions there are kej^t in the Clevolanrl district in the offices of the United States Clerk, and there arc no official statistics of the history of cases in stages preceding the action thereon by the grand jury. The United States Attorney's office in Cleveland keeps a ])0()k en- titled "Comi)lainf Docket," in which is recorded or ])resum(>(l to be recorded the disposition pnsvious to or by the grand jury of all cases which reach the stages of presentation to a commissioner. This book covers the Eastctti Division of th(>, NoiIIktii DistiicI of Ohio, wliidi I io:i ] division iiu-ludcs Clovelnnd. Tho results of ilio tabulation of the cases for the year ending June 'M), 1020, as disclosed by tills book, are stated in Table '25. TARLE -20.— SUMMARY OK CASKS ON THK "COMPLAINT DOCKET" OK THE UNITED STATES DISTRK'T ATTORNEY KOR YEAR ENDING JUNE ;U), 19J0 Total cases in complaint docket 1,717 Cases whicli did not reach grand jury 263 Dismissed by commissioner 65 Transferretl to other district 19 No entry ' 175 Miscellaneous 4 Presentod to grand jury 1,454 Presented dinn-t 84 True bills 47 No bills 10 Not presented 2 No entry 25 Presented after binding over by commissioner 1,370 True bills 1,166 No bills 104 No entry 100 A case heard by a United States Commissioner cannot be finally tried and sentence imposed unless an indictment be found by a grand jury. Where, therefore, a case is first presented to the commissioner, there is the same sort of double preliminary hearings as in State cases. The accumulation of detail and drain upon facilities, human and otherwise, which this entails has caused the United States Attorney for the Southern District of New York, where the volume of work has increased rapidly, to use predominantly the process known as information, as distinguished from indictment, and thereby avoid the preliminary hearings before the commissioner. By means of this process of information a prosecutor can, within certain statutory restrictions and in cases that do not involve "infamous crimes," take a case directly to the trial court and jury. Francis G. Caffey, until recently United States Attorney for that district, states that most of the prosecutions are on information and that, except for the issuance of warrants, arraignments, fixing bail, and like formal- ities, comparatively little use is made of the commissioners, and that only occasionally is there a preliminary hearing before a commissioner. ' "No entry" signifies that the docket failed to specify the disposition. It may not be amiss to venture a warning that, with the growth of the quantity of federal penal cases due to federal liquor legislation and the other extensions of federal criminal law, the quality of the administration of federal criminal justice will de- teriorate unless care be taken to keep the record and statistical system and other instrumentalities abreast of this growth. [104] As appears from Table 25, this development has not yet taken place in Cleveland, where the two hearings are held in a large majority of the eases. But even where this is true there is a striking contrast between the State and federal administration, in that a federal case is handled from beginning to end by the same prosecuting attorney's office, the United States Attorney and his assistants having charge of the case before the commissioner, the grand jurj^, and the trial jury; and, furthermore, the investigating and detecting machinery is a branch of the same depart- ment as that to which the United States Attorney belongs, namely, the Department of Justice. The Bureau of Investigation (corresponding in its functions to the detective branch of the police department) proceeds in its investigations under the direction of the United States Attorney. There is thus brought about a unity and continuity of method and responsibihty which are absent from State cases. The procedure and atmosphere of the federal criminal courts are orderly and dignified, show- ing there is nothing intrinsic in the nature of criminal trials which makes disorder and lack of dignity unavoidable. [105] CHAPTER IX THE LESSONS AND THE REMEDIES General Considerations THE facts of the situation suggest the remedies for the evils and inadequacies that have been revealed. In order, however, to propose changes, there must be some standard assumed toward which we are working. The proper road cannot be pointed out with- out some information as to whore the traveler desires to go. What may we ask of the administration of criminal justice in any community? The answer is obvious. The administration of justice should be free from corruption of any kind and be certain and expeditious. Its organization and operation should be such that, without any avoidable delay, the innocent are cleared of the charge of crime and the guilty discovered and punished. In so far as current methods and practices tend to avoidable delays, give avoidable opportunities for favoritism and other forms of corruption, unnecessarily increase the elements of chance or luck, produce indiscriminate results instead of, in the ordinary course of the day's work, a fair degree of justice, as and in accordance with the methods provided by law, to that extent the administration of justice falls below the most elementary and acknowledged standards. As tersely stated by Victor Cousin and quoted by Burdette G. Lewis in his book, "The Offender," "Punishment is not just because it deters, but it deters because it is felt to be just." This "felt to be just" brings out another aspect of the problem, the importance of that which may be called the appearance of the admin- istration of justice. Not only must justice be done in the ordinary course of the daj^'s functioning, but the work of the criminal courts and prosecutors should have the appearance of doing justice. The aspect of things should be such as to cause the community to feel con- fident that the guilty will be discovered and punished and the innocent will be freed. Men whose situation might tempt them to commit crime may be deterred by the feeling that the chances of discovery and punish- ment are relatively certain. Men who feel criminally inclined, whose tendency is to enter a career of crime as a source of livelihood, would [106] be more likely to go ahead in this career if the administration of justice in the community is a game of chance in which the odds are in their favor. Not that the administration of justice is to be conceived as a machine, a Frankenstein, operating without heart, sympathy, discretion, or dis- crimination. But the fundamental American principle of justice accord- ing to the law is based on the conviction that men should be governed by general rules applied to the particular facts of each man's situation and not by the surmises, caprices, or prejudices of other men. The rules, whether legal or scientific and no matter how thoroughly and carefully developed, will always leave plenty of room for the play of the judge's common sense and sympathies. Many people have a sort of vague feeling that a helter-skelter admin- istration of justice, without careful ascertainment of facts or careful application of the laws, somehow produces a more desirable mixture of justice and humanity than is produced by the more orderly and careful trial methods. This is a complete fallacy. The whirligig too often snatches up the innocent or those who merit leniency and hurls them into punishment without giving them the time or opportunity to demon- strate their innocence or grounds for dealing leniently with them. Therefore the organization, methods, and practices of the criminal courts and prosecutors and other agencies engaged in the administration of criminal justice should be such as to function with as great an exacti- tude as is possible in an apparatus of this nature and with a reduction to a minimum of the opportunities for favoritism, corruption, prejudice, luck, and carelessness. The procedure needs to be simplified so as to reduce as far as possible the number of steps or stages in which cor- ruption, carelessness, or incompetence can play a part or which unneces- sarily strain the resources, human and inanimate, devoted to the enforce- ment of the criminal law. The present situation is to a considerable extent the result of the fact that in its prosecutors' offices Cleveland, like most American cities, is furnishing and supplying an apparatus disi)r()portionate to the job on hand. Our pul)Hc law offices have failed to institute modernized methods of office organization characteristic of the larger private law offices. As the ability and character of prosecutors, judges, clerks and other officials, and of defendant's attorneys necessarily constitute so important a factor in the results, criminal practice needs to be given such a ])restigc as to attract and hold men of ability and character, and the prestige? of the administration of criminal justice must be consciously promoted. Our pnjljlem is, therefore, to sugg(!st changes, easily obtainal)l(; and I 107 1 available, which will iMTocl sucii organization, methods, practices, and presti}:;e. Many of the reforms .sugj^ested reciuire merely (he will to ehungo — they can be effected by chanjj;(> in habits, manners, and customs; others will require amendments of court rules; others, amendments of city ordinances or the city charter; still others, amendments of Ohio statutes; an amendment of the Constitution of Ohio will be requisite to carry out at least one of the recommendations. Cleveland lawyers will know which of these modes of amendment will be necessary in each case, and whatever groups or agencies seek to ]iroduce any of these changes will easily ascertain the necessary type of legislation. This report will not, therefore, be burdened by pointing out, as each recommendation is discussed, either the particular class of legislation or the detailed pro- visions of such legislation. The Municipal Prosecutors The chief municipal prosecutor should be primarily an executive official, qualified by the kind of capacity and experience which makes an efficient executive of a large and important organization. It should be his province to assign the various subdivisions of the work of his office among his subordinates and to formulate and enforce the meth- ods, practices, and regulations governing the work. He should map out, establish, and maintain the proper coordination between his office and that of the county prosecutor, between his office and the courts, between his office and the police department. The establishment and maintenance of standards in the methods of handling cases and inter- pretations of the law also fall within his province. As the head of the office, he should establish and maintain regular, systematic, and effec- tive check upon the work of his subordinates and upon the work of the clerical and the other divisions of the Municipal Court. Moreover, he ought to make himself a leader for the community in matters relating to the administration of criminal justice in the Municipal Court. As long as he has his present jurisdiction, including the preliminary exami- nation in all State cases, he is one of the two or three most important officials in the city of Cleveland; and even if, as recommended later in this report, the charge of State cases from the beginning be transferred to the county prosecutor, the chief municipal prosecutor will remain one of the most vital city officials and second only to the county pros- ecutor in the domain of law enforcement. Probably the second most important position, and one which should be established without delay, is that of managing clerk, whose functions [108] would correspond to those of a managing clerk in a large modern law office. The duty of this official would be to keep the office working smoothly, in accordance with rules, regulations, and standards fixed by the chief prosecutor. He and his assistants would sift out the visitors and apphcants at the office, so as to turn away those who have no busi- ness there and assign the others to the chief prosecutor, the assistant prosecutors, and the other officials in accordance with the specialization of work determined by the chief prosecutor. Furthermore, the manag- ing clerk should act as the custodian and clearing-house of records, papers, and files of the office. The fixing of responsibility for the care and transmission of affidavits and other papers will help remove the danger of the loss of papers. Under the direction of the managing clerk should be the clerical department, with such clerks, stenographers, and messengers as may be needed to carry out the organization here outlined. The subdivision of work among the assistants follows logically from the different types of activity involved and different classes or grades of offenses. For example, there is the distinction between cases brought to the office b}- persons other than the poHce and involving the informal conciliation which has been described, and cases brought in by the police. This could form the basis of one subdivision of the work. Some cases involve work of preparation outside of the office, which should be as- signed to special assistants. The trial of the cases, also conducted out- side of the office, forms a logical subdivision of the activities of the assistants. Cases differ in grade and kind — municipal cases, which repre- sent violation of order, safety, and health regulations and involve neither vice nor criminal motive; municipal vice cases, as gambUng and prosti- tution; state misdemeanors and state felonies. By means of specializa- tion of this kind, office congestion will be reduced, just as street conges- tion is reduced by the speciaHzation of the uses of the different streets as between pleasure, commercial, and industrial uses or heavy and light traffic. Each assistant will become expert in his work. The present system, or lack of system, whereby each visitor picks out his own as- sistant, produces congestion and avoidable opportunities for favoritism. In so far as it has any design at all, it may contemplate that the Italian visitor will seek out the ItaHan assistant, the Polish visitor the Polish assistant, and so on. This is, however, one of the things which Cleve- land must eliminate. This tribalization of law enforcement is a species of corruption. The great immigrant population of Cleveland should be made to realize, and will probably be quite happy to realize, that justice in Cleveland is an American justice, and that no special favors are obtainable and no special punishment will l)e administered because the I lO'.t 1 coini^lainant or the dofondant or the prosecutor lielonj^s to one trilic or raco or another.' Witl\ so jj;roat a number of cases, the municipal prosecutor cannot ket>p pace with his thities and avoid the inelhciencies and wastes of con- gestion unless the operation of the office be fairly continuous. The present method of progress resembles the system in use for carrying logs down a wilderness stream, namely, an alternation t)f jams and drifts. This primitive method may have some justification in the transporta- tion of logs through a wilderness, but is hardly appropriate to the prose- cutor's office in a large American city. Even in the case of the logs some of the good ones get stranded along the shore. The lumber in- dustry has evolved the log-picker, who goes back along the route and picks up and delivers these strays. The administration of justice has not evolved an analogous official. Within the limits of reasonable practicability, the output of the office, so to speak, should be continuous, meaning thereby that the various types of work involved — investigation of facts, preparation of affidavit, preparation for trial and trial — should be continuous, each assistant or set of assistants assigned to these divisions of the work working throughout the working hours of the day. As arrests are made during the night and some of these night arrest cases will be on the Municipal Court docket the following morning, the investigation of facts and preparation of affidavits should, to some extent, proceed during the night, special assistant or assistants being assigned for that purpose. The notations and memoranda incident both to the sifting out of the cases and the preparation of those which are to be tried ought to be thorough and "routed" within the office, and filed so as to be at hand when and where needed. Not that the work should become purely mechanical — in fact, too much of it is mechanical now, in the sense of being without the exercise of human judgment and discretion. The system in a modernized business organization does not render the work of the chief executive and his assistants more mechanical. On the con- trary, it frees them for more thought, originality, judgment, and effici- enc}'. The question immediately arises as to how many additional assis- tants may be needed to carry out a program such as here outlined. That number cannot be prophesied nor calculated in advance. The appropriate number will be a development of experience. The intro- duction of an improved system in any office always opens up the pos- ' Language difficulties can be easily cared for by a proper system of interpreters. [110] sibility of handling a greater volume of business without added force, and the chief prosecutor will be surprised how much more efficient work he will obtain from his present force with a good office system. Further- more, the present agitation on the subject of crime and the making of this survey are based to some extent upon the feeling that the orderly, honest, and capable administration of criminal justice will itself reduce the amount of crime; and there is scientific justification for that feeling. If the recommendation discussed in a subsequent chapter, namely, that the count}^ prosecutor be put in charge of all State cases, be carried out, the volume of the work of the municipal prosecutor's office will mate- rially decrease. Until that is done, some increase of the number of assistants will, no doubt, be necessary. Just a few days before the writing of this report an additional assistant was authorized and ap- pointed. Without, however, a supply of increased, adequate, and well- arranged office space, and the establishment of an adequate clerical force and office and record system, the mere increase in the number of assistants will not increase the efficiency of the work and will probably tend to intensify many of the defects which have been described. The new assistant will add at least one more person to the office jam; and six officials whose information and whose activities are unfiled, unre- corded, unwritten, and unknown are probably better for the community than seven. The County Prosecutor In the county prosecutor's office, the filing and clerical work and the disposition of visitors should, under the newly created managing clerk, Ijc managed as befitting a large modern law office. IJut, above all, the prosecuting attorne}^ himself should be the executive of his department. It is his function to systematize activities of the office, assign the distribution of work among his assistants and subordinates, formulate and enforce the rules, regulations, practices, and methods of the office, and exercise a supervision and control over all the persons and facilities of his office so as to produce standards of officifncy in harmony with his policies. His activities and power as an executive ought to extend l)eyon(l the precincts of his immediate office. Through his duty to enforce, in his county, the criniinal law of the State he is best fitted to be the chief executiv(^ of the administration of criminal justice. He should bear to the administration of criminal justice in Cuyahoga ('ounty the same relation which the Attorney (icneral of the United States bears to the administration of the federal penal law. It is his function to coordinate the woik of his office with [ 111 1 that of tho police dopartniont, tlio municipal prosocntor, the clerks of the courts, ami the courts thems(>lves. Hy n^asou of his responsibility for the presentation ami trial of cases, and his right to investigate into and prosecute the malfeasance or non-f(Misance of other public officials, it is his function to watch the work of (h(> i>()lice department, county and Municipal Court clerks, and all other persons with duties connected with the enforcement of the criminal law, and thereby guard against the failures of law enforcement due to official neglect or corruption. The law enforcement department of the public service, possibly the most vital of all activities of government, with its tremendous quantity of detail, its spcciahzation and subdivision of labor, its adjustments be- tween these subdivisions, its adjustments with the public — requires con- centrated executive direction and responsibility. This direction and responsibility rest with the prosecuting attorney. More than that, the prosecuting attorney should be the leader in this field, the man who thinks through and originates policies and methods. Today it is too often the case that the prosecutor permits himself to be carried hither or thither by alternating currents of public cruelty or public senti- mentality or blown about by gusts of popular or press excitement. He should be the captain who steadies the boat and at the same time dis- covers new or improved routes to the havens of public order, security, and morals. Municipal Court Procedure The arrangement and subdivision of work in the municipal prose- cutor's office must necessarily dovetail into the procedure of the Muni- cipal Court. The full benefit, for instance, of assigning specific classes of cases, such as city misdemeanors and state felonies, to specific trial assistants could not be obtained if these various classes of cases be thrown indiscriminately into the same morning's court docket. Careful preparation of a case would become partly wasted effort if the court procedure be so hurried as to give no opportunity for presenting the case well. These examples illustrate the necessity of some reforms in the court procedure if the prosecutor's office is to be made an efficient instrument, and the justification for some discussion of these reforms here, though the subject of the courts forms a separate division of this survey. The court calendar is now based upon the jam and drift method. There is an overcongested calendar for a short period of the day, and then drift the remainder of the time. The time given to trial of cases should be sufficient to enable them to be heard in a manner befitting I 112 1 cases which involve the hves, Hberties, and reputations of human beings. Each case should be as thoroughly presented and in as orderly a manner as the proof requires and the legal and factual issues justify. The Segregation of Trials or Calendars We have seen that most of the time the trial prosecutor stands around with nothing useful to do. His single routine question to the prosecuting witness, "What do you know about this case?" could easily be propounded by the judge. The time and ability of the prosecutor are wasted by this sort of procedure; and with a situation which cries for so much useful activity, this waste is inexcusable. If, therefore, there are classes of cases which normally can be as efTectuallj'^ tried without the presence of the prosecutor, those cases should be segre- gated upon the court calendar so as to release the prosecutor for service elsewhere. On every indiscriminate calendar, composed of cases of every degree of importance and difficulty, there are many cases sufficiently clear and simple to warrant speedy and summary trial. The trouble is that these cases set the pace, and by a process of contagion affect the conduct of cases which merit a more patient inquiry into the facts and law, and the whole calendar tends to be given this hurried, inadequate, slipshod treatment. Arthur C. Train, with long and varied experience as prosecutor in New York city, in his book, "The Prisoner at the Bar," describes the harmful effects of this hurly-burly method of calling and disposing of cases in police court. Speaking of the New York Police Court previous to its reorganization, he gives an analysis largely applicable to present- day Cleveland: "The inordinate number of cases which the magistrates have to dispose of results oftentimes in an inconchisive method of hearing charges of misdemeanors or of felonies, which, if the defendant be held at all, must of necessity be tried in a higher court or, as the magistrates say, 'go downtown.' If the defendant be a man of some influence, with money to retain a boisterous and bully-ragging lawyer, the line of least resistance may lead the judge almost unconsciously to regard the case as having 'nothing in it.' If, on the other hand, the ('omphiinant be a man of independence and insistence, without perhaps a l)it of pull, it is much ea.sier to 'hold' a defendant than to assume the responsibility of 'turning him out.' In point of fact some magistrates are prone to shift the responsibility off their own shoulders and to 'hold' anywaj\ Thus there can be 'no kick com- ing' so far as they are concerned. There are also cases where, rather than take the time for a carciful examination of the case, the magistrate will 'hold,' wlien, 9 1 1 i;n if ho had really oxaniiiHul into it with the necessary care, he would find tliat there was no reasonable jj;round for his action. Now the prand jury is apt to find an indictment almost as a nmtter of course, and the defendant must then he placed on trial before a petit jury. In large measure this is the reason why the cal(Mulars of the criminal courts are crowded with cases which should never have /">ne beyond the police court, and why prisoners charged with homicide often lie for months in the Tombs before the petty business of the general ses- sions cm be cleaneil up sufficiently to allow time for their trial. In this way much of the work which should be done by the police judge is cast upon the already overburdened petit jury. Tlie evil, however, does not stop there. When a petit jury finds tliat a majority of the cases brought before it have little or no merit, it frequently gets the idea tliat all criminal business is of the same char- acter and that it is impanelled for the purpose of a general jail delivery. After a jury has 'turned out' 20 men in succession it can hardly be blamed for think- ing that the twenty-first, who may be a real sinner, ought likewise to be sent home with the others to join his family. Respc^ct for law cannot be maintained unless each part of the machine of justice does its full duty and assumes its own burdens and responsibilities" (p. 56). There is slight practical difficulty in classifying the cases according to gravity and according to normal or habitual difficulty of proof. The statutory classification of city and state misdemeanors and state felonies is one basis, and the prosecutor can more successfully distribute these classes among his assistants if the court calendars followed a similar segregation, so that hearings of state felonies, for example, be set in a designated court-room at a designated time, and similarly for the other classes. Within these general classes, particularly state and city mid- demeanors, there are types of cases, as, for instance, violations of local traffic ordinances, which normally present simple issues of fact or law and require Httle time, and others, such as larceny and fraud, which, being generally committed in a secretive or concealed manner, usually involve difficulties of proof and require more time for trial. A segregated docket, separating the times or places of trial of cases which do not require the presence of the prosecutor from those which should be conducted by him, of city from state cases, state felonies from state misdemeanors, and, w^ithin these classes, cases normally triable in a summary or speedy fashion from those where justice demands less speed, would enable the prosecutor to obtain the most efficient results from the work and the ability of his assistants and make thorough preparatory work useful and effective. The appropriate importance of each case would stand out better if the case be upon a calendar devoted to cases of a certain degree of gravity than is possible in the present indiscriminate commingling. The disadvantages of keeping lawyers for the defense and [114] witnesses waiting around would be reduced. There would be brought about an atmosphere of orderly and open administration of justice. Not the least important consequence would be to enhance the attractiveness of criminal practice and to encourage the better equipped and finer grained type of lawyer to accept service in criminal cases. The changed tone would react upon the accused, witnesses, and spectators; they could hear, see, and understand what is going on in the court-room. The result would be greater public confidence in the administration of justice. The preparation of a segregated calendar as above outlined is, of course, a task of some difficulty, especially as certain complicating con- siderations have to be taken into account, such as the rest-hours of police officers who are on night service, the reduction of the time of con- finement of defendants who cannot give bail, and other illustrations which will occur to those familiar with police courts. But the difii- culties are not great and can be easily overcome by the willing cooper- ative action of a chief justice, prosecutor, and clerk of fair ability. The general principles and considerations are clear and simple, and there is no necessity for setting out here a detailed schedule of all the types of offenses, classifying each according to its appropriate place on such a calendar. A few illustrations will suffice. There are municipal cases, such as intoxication, street soliciting, suspicious person, ordinary traffic cases, in which the police officer makes the arrest on the spot on the basis of what he sees and in which there is rarely any issue of law or any issue of fact requiring investigation outside the police records. In such cases the whole prosecution consists of the testimony of the police officer, and there is nothing for the prosecutor to do. These cases should occupy a special part of the calendar. If, in any of them, there develops a situation or issue which the court believes to warrant the prosecutor's attention, the court could place the case on that part of the calendar for which the prosecutor will be needed. Then there are cases of violations of both city and State regulations, such as smoke abatement, tenement house and other building regula- tions, in which the proof is prepared by the health or factory or building department or inspector and he is quite capabl(> of presenting it. If the department has a case which requires the establishment of an important point of law, or an aggressive campaign against an hal)itual or arch offender, it could take the matter up specially with the prosecutor, who could have the case put upon a calendar for which the appropriate trial assistant will ix; in court. Keeping houses of ill fame, gambling offenses, pocketpicking, arc examples of municipal misdemeanors which generally involve either an 1 iir. 1 issue (if law or some ilifficultios of inoof and which, thoroforo, normuUy ivciuirc preparation on (ho part of the prosc^t-utor and lu^lonf^ on tliat part of tho calendar devoted to municipal cases with i)rosecutor present. lOach of these may be expected to use considerable time. Larceny, a^^ault, receivinj!; stolen projierty, carrying concealed weapons, and liquor ofTenses are examples of state misdemeanors requiring similar treatment. In fact, most state misdemeanors, exceptinfj; violations of some State license and inspection regulations, automobile speed cases, and others in which the whole case is the report of a police officer or pub- lic inspector, fall within this same class. Arrest and Summons Under the present practice the process of arrest is the form of process by virtue of which jurisdiction is obtained in every case of every nature and the accused is brought into court. This is partly responsible for the present conglomerate calendar. As the arrested person must be con- fined in jail or give bail, it is only fair that he have, as his day in court, the next nearest court session, namely, the following morning. Almost ever}' arrest involves the labor of bringing the accused to a police station and confining him or arranging for bail, all of which adds to the clerical labor incident to the keeping of police and court records. A large per- centage of the new cases each morning are not ready for trial and con- tinuance is allowed, involving the clerical details of entering the con- tinuance on each of the records and reentering the case on the later docket. With the enormous work thrown upon the administration of justice, every labor-saving device which docs not harmfully affect the administration should be adopted. Obviously, the summary process of arrest is designed to prevent escapes. It is a process appropriate to those classes of offenses, such as felonies or misdemeanors, with a motive which may strictly be looked upon as criminal (larceny, pocketpicking, suspicious person, carrying concealed weapons, etc.), or misdemeanors of the nature of habitual or commercial vice (keeping house of ill fame, gambling, etc.), which are usually committed by those professionally engaged in these ofTenses, or by persons who are transient sojournei-s in the city and migrate from town to town, or persons of erratic occupation or low and uncertain social status, and who, therefore, are under greater inducement to escape than to appear and stand trial. The field of criminal justice in the modern American State and city has come to include, however, a large number of misdemeanors com- mitted by persons who are permanent residents, engage regularly and [116] habitually in a lawful occupation, have respectable friends in the city and a social status worth preserving, and for whom departure from the city would be a greater punishment than that provided by law for the offense. Sunday ordinances, violation of health, smoke, building, and nuisance ordinances, traffic cases not involving injury to persons, hcense ordi- nances, are examples of municipal misdemeanors of this type; automo- bile offenses not involving injury to persons or theft, labor, health, build- ing and factory regulations, laws regarding minors, license laws, election laws, are examples of state misdemeanors. The use of the process of arrest in such cases is a waste of effort and an unnecessary drain on over- burdened resources. The process of summons, such as is used in civil cases, would be just as effective. A summons is served on the defendant notifying him to appear in court at a designated time and place. The designation of time and place could be made to fit in with the system of segregated calendars above described. The process of arrest should be abolished and that of summons substituted in the appropriate types of cases. Stenographic Report of Testimony The testimony of the witnesses should be taken stenographically in the preliminary hearings of all felony cases in the Municipal Court, and also in the trials of all those misdemeanor cases, both city and state, which involve criminal motive, using "criminal" in its stronger implications, or habitual or commercial vice. The illustrations given above in other connections indicate these types of misdemeanors. One object of this would be to increase the orderliness and thoroughness of procedure, giving each case the importance that it deserves in the mind of judge and trial prosecutor and witnesses. The accused would have a better chance of hearing what the witnesses are saying about him, a fundamental privilege of which he is often deprived under present methods. A second object would be to reduce perjury. The witness who knows his testimony is being taken down in black and white will be more careful. A third object would be to effect improvement in the preparation of state felony cases. The county prosecutor's office is now dependent upon the random notes which may have been made at some stages of th(! matter by the police or municipal prosecutor's office, and in most cases today receives little more than the names of witnesses. In all cases which are bound over, therefore, the transcript of the testi- mony should be made and transmitted through the managing clerk of the iiiuiiicip.il prosecutor's office to the managing clerk of the county prosecutor's office. In fact, it would be well to follow t he English system and that in vogue in several of our StaU^s, namely, h:iv(> (he witnesses [117] sign the transcM'ibod testimony, wliicli tluMvby bocomos a deposition. In otlier cases, unless a ]K>rjurv iirosocution be deemed advisable, the stcno- graphie notes shouKl be kejit in the tiles of the munieij^al prosecutor, the notes of each case being carefully filed with the papers of that case. The segregation or arrangement of the court calendars follows logic- ally from these classifications of the cases; and as the classes of cases in which the prosecutor's service is needed and for wliich he needs care- ful jireparation and those which should receive considerable time for trial and those in which the evidence should be stenographically taken down, are, by and large and with easily cared-for exceptions, identical, the corresponding segregation of the calendars would result in affording the prosecution and the accused proper opportunity to prepare and present their cases, reduce to a minimum the waste of time spent idly in the court-room by attorneys on both sides, and give each case its appropriate setting. General Aspect of the Trials What we have just considered may seem to be somewhat mechan- ical and clerical details. But they are all of the utmost importance and in cumulative effect would enormously increase the effectiveness of the administration of criminal justice and the prestige of the Municipal Court, the municipal prosecutor's office, and criminal law practice. There remains to point out the possibilities open to the municipal prose- cutor, if he will realize and exercise the leadership and constructive statesmanship which are his by virtue of his office. After all, the judge is dependent for his information upon the attorneys, and he needs the assistance of the attorneys to maintain the orderliness and dignity of procedure appropriate to the administration of justice. The prosecutor is not only the attorney for the plaintiff and a court officer, but also the representative of the public, with the peculiarly difficult and complex duty of presenting the public's side of the controversy while avoiding anything which savors of persecution or of deprivation of the defendants' fundamental civil rights. His position gives him the opportunity to bring about a procedure which fulfills universally recognized standards. Let him insist that every case be tried, so that the trial be really public — that is, in a physical environment which is not only quiet and dignified, but which makes it possible for court and defendant and witnesses and court officers and spectators and reporters and the public to know what is going on. Probably the judges are quite willing that their court- rooms have the aspect of habitations of justice, and if there be a judge who does not harbor such a desire, he surely would not dare to resist [118] the leadership of the prosecutor, supported as he undoubtedly would be by public opinion. Record Systems in Municipal Court and Prosecutor's Office The minimum requirement for the record or docket of a case is that it disclose all steps or stages thereof, and all orders and disposi- tions issued or made by the court; so that the attorneys or other per- sons interested can at any moment ascertain the status of any case, and the chief prosecutor or pubUc can, from the records, tabulate the statistics of the administration of justice and appraise the work of those engaged in that administration. The system of record-keeping should be such as to minimize errors and reduce to a practicable minimum the time and trouble involved in finding and tracing the history of a case. Obviously, the full record or docket of any case ought to be con- tained at a single place or part of the records and the system of index- ing such that this place or part may be easily and swiftly located. We have seen how far short of these minimum standards the record system of the criminal branch of the Municipal Court of Cleveland falls. Immediate overhauling and modernizing are imperative. The excellent system developed b}^ the clerk of the Municipal Court of Chicago will serve as a model from which to work.^ Disposition of Cases by the Prosecutor Himself Special attention should be given to the regulations governing those actions of the prosecutor, both city and county, in which the final result and disposition of the case are determined by him or on the basis of in- formation supplied by him, as distinguished from cases in which the disposition is made by the court or jury on the basis of sworn testimony. These situations include the initial decision of the municipal prosecutor to issue no affidavit, the "no-papering" of cases, the entering of noUes, the "no bill" by a grand jury at the instance of the prosecutor, the acceptance of pleas of guilty of a lesser charge than the offense originally charged, and mitigations and suspensions of sentences. Conciliation by the Prosecutor The unofficial court of conciUation conducted by the municipal prosecutor, in which he sends for the accused and confers with com- ' Editor'h Notk: A fornplctc (l('s(ri|)f ion of the rcfonl systoin in use in tho Municipal Court of Chicago was attaclicd to Mr. licttuian's rc'|)ort, but Ix-causo of lack of space haa not been included in this publication. It is on file at the office of the Cleveland Foundation, and is accessible to anyone interested. [110 1 plainants and accused and attempts to adjust (licii- dilTerences and then determines whether ;in afiiiUivit sludl or sliall not issue, has been de- scribed. This all takes place in the privacy of the office of the prose- cutor or assistant. There is not even the restraint which comes from the necessity of announciufj; the decision in o])en court. Absolutely no record is kept, and all that occurs and all the motives or reasons for the decision are recordetl, if at all, only in the mind or private papers of the assistant. Tliis is too loose and danfj;erous a system. This kind of treat- ment is quite appropriate to some cases. There are controversies or acts of too petty a nature or too free from criminal motive or danger to justify arrest and prosecution, and it would be unwise to l)urden the overburdened court dockets with them. And, unless this concilia- tion work be taken over by the courts, it naturally falls within the prosecutor's field. But it offers both opportunity and temptation to permit the administration of criminal justice to be used for the collec- tion of civil claims and for the assistant prosecutor to share in the benefits, financial or otherwise, therefrom. This opportunity and temp- tation should be reduced, so far as office system or practice and the chief prosecutor's executive control can reduce them. Therefore each assistant who engages in any such conciliation or decision not to prose- cute should be required to make a daily written report to the chief prosecutor, on a form devised for the purpose, giving such matter as the names of the parties concerned, the nature of the charge, the terms of the conciliation or adjustment, and the reasons for non-prosecution. These reasons, moreover, should not be allowed to degenerate into formulas, such as "insufficient evidence," which disclose nothing, but should be sufficiently comprehensive to enable the chief prosecutor to pass upon their adequacy. I3y examining these daily reports, the chief prosecutor will be able to discover whether his office is lending itself too freely to the settlement of civil claims or dropping cases too lightly. "No Papers" As the practice known as "no papers" has no statutory basis or restraints, it opens another avenue for favoritism or corruption which needs to be narrowed by office regulations. Where there has been an arrest without adequate basis for further prosecution, the practice is justifiaV>le as a means for avoiding the clerical lal)or of drawing and filing an affidavit. But otherwise the procedure ought be as formal, open, and safeguarded as in the case of the statutory nolle. The regulation should provide that, in every case of "no-papering," the reasons for that action [120] be set forth in full in writing by the assistant who makes the recommen- dation, and submitted for approval to the chief prosecutor or to his first assistant, if the chief delegates this authority to him, whose approval will also be wTitten, and that then, when the case is called, the statement be read to the court. Nolles In state felony cases the approval of the court is required by law before a nolle may be entered by the prosecutor. The statutes contain no clear-cut provisions regulating nolles in the Municipal Court; but the authority of the court may undoubtedl}' be exercised to control the allowance of the motion to nolle. Where the nolle is at the prosecutor's instance, regulations similar to those described for "no-papering" should require the written statement of the assistant recommending the nolle of his reasons thereof, submitted to and approved by the chief prosecutor or delegated first assistant, the statement to be read in open court. Where the justification for a nolle first transpires during the trial of a case, that fact and tlie approval of the court ought to be noted in the court entrj^ and record and a written report thereon made by the trial prosecutor to his chief. "No Bills" Where the grand jury itself decides the evidence to be insufficient to warrant an indictment, the prosecutor is not necessarily responsible for that form of dropping the case. As a matter of fact, however, many "no bills" are returned by the grand jury on the strength of the prose- cutor's own statement that he has no evidence to present or his own opinion of the inadequacy of the evidence presented. In these cases the "no bill" is then a procedure whereby the prosecutor dismisses prose- cutions. It furnishes temptation and opportunity for hurried, careless, shpshod work. Regulations similar to those recommended for "no papers" and nolles, namely, a full written report l)y the assistant who recommends or Ijrings about the "no bill," setting forth his reasons, would help to reduce this opportunity and temptation. Acceptance of Lesser Pleas Obviously the acc(;ptance by the prosecutor of i)lea of guilt of a lesser offense than that charged should, for similar reasons, be govcM'ned by the same sort of regulation as has been described — written statement of rea- sons, submi.s.si(jn to and approval l)y the chief prosecutor, presentation of the statement in open court. I I'Ji 1 Siispensio7i and Milintalities, nor have they taken the lead in either prevention or fundamental reform. In this respect, the Cleveland association does not differ from the bar associations of other cities. Indeed, its aggressiveness in a situation even as scandalous as the McGannon affair is perhaps exceptional among bar associations in general. The outstanding characteristic of this action, however, is that it occurred after matters reached the stage of a public scandal and sensation and that it was directed at an individual case I i:n 1 and not at tlic liabits, practices, standards, antl atinosphore of which that imhvidual case was hut an a}2;fj;ravatcd symptom or product. Criminal Practice and the Bar For purposes of this survey the following questionnaire was sent to all of the 1,418 members of the Cleveland Rar: 1. Kindly state anything that occurs to you, in as great detail as possible, concerning the administration of criminal justice in Cleveland, its merits and defects. Please include your opinion as to caliber of judges and prosecuting attorneys and defendants' attorneys in criminal cases and methods of trial. 2. What, if anything, ought to be done to improve the administration of criminal justice in Cleveland? 3. Did you ever hold a position in the office of Cuj'^ahoga prosecuting at- torney, and if so, when and what position? 4. Did you ever hold a position in the office of police or Municipal Court prosecutor, and if so, when and what position? 5. While in private practice, what has been your policy and the policy of your law office regarding taking criminal cases? 6. To particularize, what class of criminal cases has it been your practice to accept or refuse, or what classes of clients in criminal cases has it been your practice to take or refuse? 7. State your reasons for said practice. 8. What is your practice with respect to obtaining release of clients and friends from jury service? Feeling that the first questionnaire might have been overlooked by- many lawyers who received it, a follow-up was sent by the chairman of the advisory committee of the survey, himself a member of the local bar. About 30 per cent, of the Cleveland bar had sufficient interest in the subject to send response. Of the 386 responses received, a considerable percentage contained no specific answers to any of the questions; the reason given was that the recipient had no occasion to go into the crim- inal courts and did not feel competent to answer the questions. To questions 5, 6, and 7, those relating to their policy of accepting criminal practice, the answers may be summarized as follows: 148 answered that they accept no criminal cases whatever. 52 answered that they accept them occasionally. 82 answered that they accept no such cases from regular clients in other matters. 20 answered that they occasionally accept cases where convinced of the inno- cence of the defendant or are impressed by some mitigating circumstances in the case. 12 answered that they take criminal practice regularly. ( 132 1 The reasons given for refusing to accept criminal cases may be smn- marized : The reasons of 28 were financiah 17 were ethicah 22 were aesthetic — a matter of taste. 19 were a feehng of incompetence in that class of work, 52 were a mere expression of preference for civil work. As everybody knew before this sm-vey was attempted, and as nearly everj'body knows in every American city, except when regular clients are involved or an exceptionally large fee is in sight, most of the better grade of lawyers deliberately stay away from the criminal courts. As a result, with some notable and praiseworthy exceptions, the practice in those courts is left to the lawyers of lesser sensitiveness regarding pro- fessional practices.^ The answers to the questionnaire formed an inter- esting verification of this fact. The criminal branch of the administra- tion of justice, dealing as it does with the protection of the community against crime, the promotion of the peace, safety, and morals of the inhabitants, the lives and the liberties of men, and, therefore, from any inteUigent point of view, the more important branch of the administra- tion of the law, has become a sort of outlaw field which many a lawyer avoids as he avoids the slums of the city. The Duty and Responsibility of the Bar The American bar has an exceedingly difficult problem. The Amer- ican lawyer attempts to combine in a single individual the somewhat contradictory talents and different, though not contradictory, profes- sional ethics of the English barrister and solicitor. There enter into much that he does not merely the motives of the advocate, but motives which may fairly be designated as commercial. In fact, by reason of this combination of barrister and solicitor, with many other character- istics of American life, a considerable percentage of the more able mem- bers of the bar largely withdraw from the field of advocacy. They get to look upon the courts as a place from which the successful man, by reason of his success, is able to stay away. They cease to care deeply about improving the caliber of the courts and practice, and become possessed of a fear of offending judges or prosecutors or political leaders, lest their displeasure have a harmful effect upon the amount of "busi- • Even those who, in the early stages of thrir careers, hold positions in (lie prose- cutors' offices, U'.nd later to withdraw from tliis (Icid. 11 ( IM ] noss" which flows into thoir officos. This destroys tlioir wiHingnoss or ability to combat ag<2;r(\ssivoly tlio al)uscs in courts and pubhc ofHcc^s. The judges ami lawyers of tiie criminal courts are members of this bar and reflect its standaids more than appears on the surface and more than most lawyers are willing to admit. Basically, there is no ethical distinction or very little distinction between the prosecutor's entering of a nolle in a case against a friend of a political "boss" in order that he might gain or retain the favor of that "boss," and the refusal of the counsel of a leading bank to attack that prosecutor's entering of that nolle for fear that such an attack may enable that "boss" directly or indirectly to harm the bank. The element of trusteeship may be more obvious in the one case than in the other. But the principle that the lawyer is an officer of the law, a trustee of the administration of justice, is one voiced by writers on legal ethics and speakers at bar meetings amid the approving applause of the lawyers. These sentiments become meaningless gestures or hypocrisies, if they be not lived up to in prac- tice. It behooves the bar of Cleveland, as the bars of all other American cities, to make an effort to reduce the commercialism of the practice of law and to intensify in American law practice the motives and standards which we look upon as characteristic of the English barrister. At the very least, the lawyers of Cleveland can make an effort to increase the prestige of criminal law practice. More than they realize, the men whom they choose to honor by offices in their professional associations are men whose distinction comes from financial successes in private practice. Lot them choose as the occasional recipient of honors a man who, whether on the public or the defendant's side of the table, has devoted himself, without stain or a lowering of professional standards, to the field of practice which is concerned with the lives and hberties of men and women and the peace and order of the community. Surely there has been and will be in Cleveland men who fulfill this specifi- cation, and, if they be honored, their kind will increase in number. The office of prosecuting attorney is the highest office in Cleveland in which the duties are the practice of law; and when a man receives and accepts that office, let his brother lawyers show their appreciation of the distinc- tion. They will thereby acquire a better right to hold him to the highest ethical and professional standards. This is not the place into which to enter into an extended discussion of the question so attractive to the layman, whether it be ethically right to represent a defendant whom the lawyer feels to be guilty. Lawyers must surely by this time have agreed upon the principle that, as every man is entitled to a trial according to law, every man is entitled to a lawyer and [ 134 1 every lawyer is entitled to present the man's case regardless of the law- yer's opinion concerning his guilt or innocence. The lawyer, of course, should refuse to conduct the case in a manner not consistent with the finest ethical standards. Criminal practice must be made a field in which the lawyer and the gentleman (in the American sense of that word) can feel at home. And one of the courses which might promote this is for the la^vJ^ers who are both lawyers and gentlemen to return to the first principles regarding the position of the lawyer as an officer of the law and accept criminal practice. If the man accused of crime knows that he can obtain first- class talent at a reasonable compensation, he will have no excuse for taking his case to the shyster or police court hanger-on, and both the courts and prosecutors will then have some justification for feeling par- ticularly suspicious and cautious in cases in which the defendants retain unscrupulous or disreputable lawyers. In this class of work, as in the civil practice, fees will vary according to the importance of the case and financial means of the client. The mere matter of office organiza- tion, so that the classes of work do not interfere with each other, is easily solved. When we stop to think about it, it is somewhat absurd to expect the administration of criminal justice to be in the best hands while best hands avoid it. As long as the criminal law is administered by la\v>'ers, they, whether chosen and paid by the public or by the private client, will reflect the standards and attitude of the profession to which they belong. The bar is the pool from which they all flow. The com- position of the waters of the pool determines the character of the water in the stream. If we delve somewhat deeper into the causes of the relative failure of criminal practice to attract lawyers, we will discover that neither the greater lucrativeness of civil practice nor the physical conditions and general atmosphere of the criminal courts tell the whole story. Com- paratively speaking, criminal cases do not present issues or problems of law which arc as novel and varied as those in civil cases; and criminal practice; consetjucntly presents less opportunity for the stimulating in- tellectual processes used in working out (juestions of law which consti- tute one of the allurements of law practice. On the other hand, {\m cjuestions or issues of fact are more complex and fascinating in criminal than in civil cases. The problems and mys- teries of human motive play a larg(!r part, as well as questions relating to the mental and the moral characteristics or deficiencies of the parties to the case. Lawyers, however, receive no special training or education in these fields of human behavior and mental and moral (IcficifMicics. To some (>.\t(Mi( a proft'ssiDii i)r hiniu'li of a profession ac(iuir('s its prestige and its conseciuent attractiveness by reason of the special etlucation and knowltHlue whicli its members require and possess. If some degree of education in criminal iint^stigation, in psychology JHhI kindred sciences of liunian behavior, and in psychiatry and sciences which deal with mental and moral dis(>as(^s would come to be recognized as part of the requisite training of the criminal lawyer, the criminal field of law prac- tice would gain a prestige which it does not now possess; not to speak of the greater competence which this special knowledge would bring. This problem of increasing the prestige and attractiveness of crim- inal practice is difficult. We must strive and experiment for a solution. It is as important as any problem which a bar association can under- take to master. The Community The lawyers, however, are not all-powerful in the administration of justice. Judges and prosecutors are chosen by the electorate or the politi- cal organizations, and the lawyers constitute only a small fraction of these bodies. They are a portion of the Cleveland community influenc- ing but in turn influenced by its standards. From the community the lawyers receive their temptations and their opportunities. The allure- ment of those temptations is furnished and the limitations of those oppor- tunities are fixed by the community. The whole comnumity must share praise or blame for the moral and intellectual standards of its administra- tion of the law as of its other institutions. The community forces are, therefore, relevant factors in determining the quality of the administration of criminal justice. Cleveland has grown with tremendous rapidity. This means that there have flowed into it, in the past twenty years, great portions of the recent immigrant streams from Europe. This naturally has intensified the problems of assimilation and adjustment incident to large immi- grant populations. 1 The strength of the two main political parties does not differ greatly, with the usual result that the leaders do some con- federating in the distribution of positions and favors. The leader or organization of the successful party is sufficiently powerful to select those who are to fill the available positions. But neither of the two "machines," however, has developed to that degree of efficiency and close-knit organization where it, by its own means of control, enforces an organic unity and cohesiveness in the conduct of the public offices. Because of the rapid growth of the city financially and industrially, ^ 239,538 are foreign-bom, out of a total population of 796,836. [ 130 ] the opportunities for money making have been great and talk of money making is much in the air. The opportunities for a lucrative law prac- tice are great, and young practitioners with ability and talent can easily obtain greater professional incomes than the salaries in the prosecutors' offices. The theory of the American form of government and political organ- ization is that the public applies its intelligence to the selection of its officials, trusting to those officials for the efficiency of their accomplish- ments. But, at least in the highly complex life of the rapidly growing American city, the theory does not completely succeed in practice. Experience tends to demonstrate that, in addition to and outside of our governmental and political institutions, we need non-official agencies with the function of surveying, measuring, appraising the work of the governmental and political agencies and keeping the public informed about that work in a way which the public can understand. Hence an institution such as the Cleveland Bureau of Municipal Research, whose interest is in the operation of the municipal government of Cleveland, particularly in its fiscal departments, and, by advice to and cooperation with the officials and by reports to the public, to improve methods and results. As is the case with other American cities, Cleveland has developed no such civic agency in relation to the administration of justice. There are a number of organizations or groups which, from civic or commercial motives, watch special classes of cases, cither with the object of promot- ing more efficient prosecution or of protecting persons from official perse- cution or injustice. Many of these do good work and the combined effect of their activities is valuable. For instance, the Cleveland Safety Council of the National Safety Council and the Cleveland Chamber of Commerce reports traffic violations and, through a permanent executive and a large corps of volunteers, carefully watches all traffic cases and calls attention to all failures of aggressive and intelligent prosecution. Similarly, the Advertising Club promotes the prosecution of "fake" advertisements; the Cleveland Animal Protective League looks after cruelty to animal cases; the Consumers League, violations of factory and employment laws; Dry Maintenance League, administration of the liquor laws; the Cleveland Humane Society, cases involving children and animals. The Retail Merchants Board of Ihe Chamber of Commerce employs an attorney to nuider the same sort of service in cases of fraud, shoi)lifting, and other offenses harmful to retail merchants. The Women's Associa- tion for Justice; und the Women's Prot(K;tive Association aim j)arlicuhuly to protect ignorant persons and women involved in vice cases from injus- [ 137 ] tico. There are others. Each of these, however, concentrates upon the conduct of some special type of case in wliich it lias a special interest; none of them attempts to dig into fundamentals, or to study and inii)rove the administration of criminal justice as an organic whole. For this the city has relied on the press, and on spasmodic special grand juries and special prosecutors and special "graft" investigations in times of clamor. In this basic field of law enforcement neither the Bar Association nor any other group has as yet created an agency for constant, thorough, and expert research into justice as it is administered. Like the courts and the prosecutors' offices, the community itself has been using the jam and drift method. Every once in a while the accumu- lation of miscarriages of justice, scandals, and unpunished crimes arouses the community and it institutes a special grand jury investigation or a specially aggressive newspaper campaign or a survey, and then, for- getting that the accumulation was the inevitable result of the habitual defects in the machinery, it turns to something new, whereupon the old ways go on toward the next inevitable accumulation. Unfortunately, since royalty and autocracy have gone out of fashion, there is no device yet invented whereby the public can leave public matters entirely to pubhc officials and at the same time get the results which it desires. Continuous public check, scrutiny, reform, praise, condemnation, elec- tion, discharge, are necessary. Cleveland should establish a special agency to perform this checking and reforming function. This bureau should have the funds necessary to enable it to perform its functions thoroughly. Of existing organiza- tions, the Cleveland Bar Association is the one which, for many obvious reasons, might well organize and maintain or, at least, supply profes- sional talent to this Bureau. The formulation in detail and the carrying out of those recommen- dations of this survey which are deemed worthy of adoption can be made the initial program of this bureau. Thereafter it would have the function of keeping a fairly continuous check upon the work of the ci'iminal courts and of all officials and other persons engaged in any phase of the administration of criminal justice; in other words, not a survey of the past or of the accumulated driftwood of the past, but a continuous discovery of symptoms and of diseases in their incipiencies and continuous effort to prevent the diseases from gaining headway. But, we hear the skeptic say, will not the same forces, political or otherwise, which cause a decline in standards in the administration of justice, proceed to starve or crush your bureau when it becomes an effective agency of reform? Then will you establish a second bureau to I 138 J keep tab on the first? The answer is that if the community' permits, that is just what will occur. A community cannot escape from itself. Powerful political organizations are bound to exist in American cities. They have necessary and useful functions to perform. But no political organization will ever be so powerful that it can resist the genuine de- sires or standards of the community. If the community be willing that its officials be controlled to the detriment of the administration of justice or any other public institution, no mere piece of machinery, official or non-official, will long succeed in standing in the way. Each intelligent step taken to remove an existing defect or institute an improvement leaves a permanent residuum of progress. In the end, however, the community must impose the standard. There is no possible method of escape from its indifference to a high standard of ethics and efficiency. If Cleveland cares not merely for the results in an occasional sensational or scandalous case, but for a high standard, applied hourly, daily, weekly, year in and year out, in the administration of criminal justice, it will attain that standard. It is in the course of actually participating in a survey of the nature of this one, and in the process of developing suggestions for remedies, that one becomes conscious as never before of the unescapable influence of the atmosphere, the traditions, the ideals, the ambitions, and the standards of the community itself. [ i:'.'.»