August 8, 1893 — Hall of Columbus, Memorial Art Palace, General Committee of The World’s Congress Auxiliary on Jurisprudence and Law Reform, The Woman’s Branch of the World’s Congress Auxiliary of the World’s Columbian Exposition, Chicago IL

If we were to inquire of wisdom through her sages and statesmen; of morality through her poets and preachers, and of sympathy through her orators and actors, what were the duty of the State toward those accused of crime, they would unite with a common voice in declaring that the citizens of a State are far more vitally interested in saving an innocent man from unmerited punishment than in the conviction of a guilty one. The common conscience of men, the great heart of the people, the law itself in its presumption of innocence and requiring twelve men to convict, all join in the fundamental idea that the protection of the innocent is far more important to the State than the prosecution of the guilty. Not only is the defense of the innocent important to the State, but it is an act that appeals to the better feelings and nobler impulses of men. It is the act that makes heroes, whom patriots praise and of whom poets sing.

It would naturally seem that an act so important as the defense of the innocent, and at the same time so consonant with the noblest impulses of the heart, would find a prominent and exalted place in our law and practice.

The innocent are, and of right ought to be, the special care of the law, and let it be remembered that in the eyes of the law every man is innocent until proven guilty, and the presumption of innocence goes with him and follows him through every step of the trial till the verdict is rendered. Every man brought to trial in a criminal court being presumed to be innocent, is entitled to be treated as an innocent man, and becomes of necessity the special object of the court’s care.

On the court rests a double duty in every criminal cause, to punish the guilty and protect the innocent. But up to the finding of the verdict the court is bound to regard the accused as innocent. And this is not only consistent with a legal maxim, but it is a legitimate inference from established facts; for in over one-half the criminal cases the accused is actually found not guilty.

With a deeper motive and a higher duty to protect than to convict, we would expect to find in the criminal court a machinery for defense quite equal to that of the prosecution.

But how is it in fact? Connected with the court is a public prosecutor, selected for his skill in securing convictions, strong of physique, alert of mind, learned in the law, experienced in practice and ready of speech. Around and behind him is an army of police officers and detectives ready to do his bidding, and before him sits a plastic judge with a large discretion often affected by newspapers and police officers to the injury of the prisoner.

Not only is machinery for prosecution provided, but it is most effectively operated. The prosecuting attorney is usually imbued with the idea that he must convict at all hazards, and this idea takes deeper root because, in many instances, the State pays him a money bonus for each conviction. He misrepresents the facts he expects to prove, attempts to get improper testimony before the jury, garbles and misstates what is allowed, slanders the prisoner and browbeats the witnesses, all from the mistaken notion that it is the duty of the State to convict whoever is arrested.

A police, impelled by vanity to justify its arrests, and inoculated with the error that it is the State‘s desire and duty to convict in any event, aids in the prosecution by colored testimony and overawing presence.

To the manifest prejudice of the prisoner in some States he has been manacled in court, and a few years ago in California the officers constructed cages in court-rooms and confined the accused in them like wild beasts, till an outraged public sentiment demanded and secured their removal.

Frequently hired counsel are joined in the prosecution, counsel in no sense representing the majesty of a great State, but rather the malice of a great prosecuting witness whose pride and vanity urge him to pay for a conviction to which he may point as a justification of his charge, and over which he may gloat in the unholy pleasure of his revenge.

When this mesalliance of the justice of the State and the revenge of little minds is made, then no pack of bloodhounds ever pursued a fleeing fugitive with more relentless vigor than do these officers and allies prosecute their victims. Trials which should be calm and solemn, investigations unmarked by prejudice and untainted by rancor, degenerate into a legal battle in which the highest personal rights are subordinated and trampled under foot in the reckless desire to win.

For the conviction of the accused every weapon is provided and used, even those poisoned by wrong and injustice. But what machinery is provided for the defense of the innocent? None. Absolutely none. For its lesser duty of convicting the guilty it has equipped and maintains an array and gives access to the public funds; for the higher one of defense of the innocent there is neither counsel nor officer nor money.

It was not always so. A hundred and fifty years ago, when the death penalty for one hundred offenses disgraced the Penal Code, when the Circuit judge in his rigorous enforcement of a cruel law was the herald of a hundred hangings, even then the accused was not without a defender, at least in name, for the law made it the duty of the State’s’ attorney to produce all the facts both for and against him, and of the judge to see that his rights were preserved to the uttermost; so that the judge announced himself as the counsel for the prisoner.

But times have changed. The State’s attorney, once equally interested in the State and the accused, has so become a prosecutor that his very name is changed in common legal parlance to that of public prosecutor. The judge declines in every instance to interfere on behalf of the prisoner unless specially requested and urged to do so. The old defensive machinery is gone. There has been none supplied to take its place and the accused is thrown back on his original, natural right — the great right of self defense.

In his hour of need and peril — an hour when before him stands all the menacing machinery of the criminal law, when he is deserted by friends and assailed by foes; when, if ever the State should lend him its protection, the law relegates him to his savage state, and tells him, as if conferring a mighty boon, that he may have the pitiful privilege of defending himself if he can.

In criminal trials as at present conducted, particularly under the vicious notions that prevail among the public officers with regard to the State’s duty toward the accused, counsel for the defense is an absolute essential to the just examination of a case. A trial without it would be little less than a farce and would be regarded as an invitation to the jury to convict. So true is this, so clearly did justice demand counsel for the defense, that the right to it is secured by Federal and State constitutional guaranty. It being necessary to justice in the trial of a cause, we would naturally look for it as one of the essentials provided by and in a court of justice, but we do not find it.

The unfortunate prisoner is not denied counsel, however; he is merely told that he may supply this essential to justice if he will but pay for it. If he is able to hire counsel he must do so or go without, and thereby go without justice.

While he has means to procure counsel the law compels him to procure his own. No matter what financial hardship or disaster may follow he must pay for his defense. It may ruin his business, impoverish his family and make his wife and children objects of charity merely to escape the malice of an enemy in the form of a prosecuting witness. Every criminal lawyer knows of scores of instances and illustrations of this fact.

If he is not able to hire counsel, if he pleads his poverty and announces himself a pauper, then generally it becomes the duty of the court to appoint counsel for him. Do not imagine however that this counsel is free. It is not. The accused is under actual legal obligations to pay for it, and if he ever gets any property the lawyer can enforce the payment for his services. The most that can be said for this system of furnishing counsel is that it is a system of compulsory credit by which the legal profession is compelled to give credit to the pauper.

Without detracting from the able men who sometimes do offer their services in behalf of a poor prisoner, the rule is that court appointees are wholly unequal to the public officers with whom they are to cope. Those whose ability commands a law business are seldom chosen. The appointees come from failures in the profession, who hang about courts hoping a stray dollar or two from the unfortunate, or from the kindergartens of the profession just let loose from college and anxious to learn the practice. They have no money to spend in an investigation of the case, and come to trial wholly unequipped either in ability, skill or preparation to cope with the man hired by the State who marshals the evidence for the prosecution. The defense is at most a sort of perfunctory one. It is wholly inadequate to the requirements of the case. It is but a shadow of the substance sought for. The prisoner has asked for bread and has received a stone. He is usually relieved of paying bread prices however for stone, for he is generally convicted, and the statute of limitations has run against his lawyer’s claim by the time he gets out of prison.

Let me say again that a large percentage of those arrested for crime are actually proven not guilty, and all are presumed to be during the trial, and are entitled to be treated as innocent men. The only justification for any other treatment is the doctrine of necessity. We may detain, using so much force as is necessary, but only where it is necessary to secure the presence of the accused. Out of the presumption of innocence grows the right to bail, and necessity is the only justification for even a bail bond. So that at the trial every person accused of crime is rightfully regarded as innocent, and rightfully entitled to treatment as such. This system of compelling innocent (for they are innocent) to pay for their own counsel works untold evil. It places in the hands of the malicious and designing a weapon by which they can work injury and ruin upon the victims of their spite. Every lawyer knows that hundreds of arrests are made for no other purpose than to worry, harass, annoy, disgrace socially and bring financial disaster upon the accused. Under this system trials cease to be judicial inquiries with a view to justice and become acrimonious contests of men striving for verdicts. The forum degenerates into an arena and loses its dignity and sanctity.

Where defense for the poor is made it places the burden of a public duty on a single profession often to the injury of the business of the attorney. It operates a miscarriage of justice, for, in the wrangle of attorneys, the brow-beating of witnesses and the intrusion of irrelevant matters juries are bewildered and often take sides with attorneys, the innocent are convicted and the vicious and criminal are turned loose upon a helpless public by virtue of a vicious judicial system. The power of the court to appoint counsel for the defense places in the hands of the judge the power to enforce from any of the officers of his court a compulsory credit in favor of whomsoever he chooses — a power of doubtful constitutionality and one that would only be tolerated by a profession either the most servile or the most generous.

It affords to the poor man an inadequate and imperfect defense, for his counsel usually lacks skill and experience in criminal law and is without the aid of either personal aid or money in the discovery of evidence.

It works irreparable injury to the State by the wrong inflicted upon the individual. The accused, even if acquitted, comes from the court-house a changed man. He remembers a malicious arrest, an unjust incarceration, an expense that has impoverished him, a trial in which every court officer seemed doing his utmost for his conviction, the abuse of his witnesses and the slander of himself and possibly of his family. He remembers all this, and then he thinks of the heavy taxes he has paid, the heavy burdens he has borne for the support of the State, and the dangers he dared in order to protect the flag of his country when it was assailed, he thinks of all this, and is it any wonder that his love of country turns to bitterness and his soul is filled with hatred at the thought that the men whom he lifted to position and the government he fought to defend had only persecution for him when he needed a defender?

Henceforth his hand is against government and against men. Disgrace has crushed his manhood and injustice has murdered his patriotism.

The remedy for many of the evils of the present criminal court practice lies in the election or appointment of a public defender. For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund. Police and sheriffs should be equally at his command and the public treasury should be equally open to meet the legitimate expenses of the defense and the prosecution. With public defenders the injuries we have mentioned would be avoided, malicious prosecution would cease, the accused would have an adequate defense, trials would be judicial inquiries, courts would be freed from the squabbles that now disgrace them, the profession would be relieved from the burden of compulsory services and the expense would fall on the State at large, where it legitimately belongs. Higher ideals of courts and government would be created, a deeper patriotism would be engendered and a deeper feeling of security would pervade the community, by reason of the comforting knowledge that a court of justice was not so merely in name, and a chamber of torture in fact, but a court to which rich and poor might freely go and equally expect the justice to which the law entitled them. But above and over all, the inauguration of the office of public defender would enable the State to do its duty to its citizens. 

The Federal Constitution re-enacted in almost every State, guarantees to the accused certain rights. He may have a speedy trial; he may have a trial by jury; he may meet the witnesses; he may have witnesses in his behalf; and he may have counsel for defense. These are great constitutional rights guaranteed to each citizen. They are unconditional, and it is a grave question whether Congress or Legislature may add to them a condition that, in any instance, renders the guaranty inoperative. Suppose the legislative power should add to the guaranty of a speedy trial the proviso, or condition, provided he pays for it; suppose it should add, to the guaranty of a trial by jury, the condition, provided he pays for their services; suppose it should add to the guaranty of confronting the witnesses against him, the condition that he pay the witness fees and mileage; would we tolerate such a clear violation of the constitutional rights of the accused? So abhorrent is such a course to the sentiment of justice prevailing in this country that the courts have resolutely set their faces against it.

In view of this, with what force can it be claimed that an equal right, the right of counsel for defense, guaranteed by the same Constitution, in the same section, couched in the same language and subject to the same rules of interpretation, shall be so construed that the accused may only enjoy it by paying therefor, either in money or credit? If the Constitution has been rightly construed with reference to the other rights mentioned, then when it guarantees to the accused the right to counsel, it means that he is entitled to defense, and that that defense shall be full, adequate and free.

The chief and highest function of government is to secure the lives and liberties of its people. For this purpose taxes are levied, imposts laid and internal revenues collected. To this end the police is organized, courts are established, armies mustered and navies manned. To support them each citizen surrenders his natural right to defend himself and pays his share for the support of the State, under the implied contract that for such surrender of right and such contribution, the government will defend his life and liberty from unlawful invasion.

When therefore the rights of a person are assailed it is the duty of the government under its implied contract to provide him defense. This is not merely a privilege or latent function of government. It is a duty inseparably connected with its very existence — a duty it could not shirk if it were sufficiently ignoble to attempt it; an obligation it could not evade if it were base enough to wish it. And that duty exists at all times and in all cases, whether the invasion be under the form of law or under the more savage form of personal revenge.

Let the criminal courts be re-organized upon a basis of exact, equal and free justice; let our country be broad and generous enough to make the law a shield as well as a sword; let the citizen understand that his flag is his protection in his own home as well as when his foot is on foreign soil, and there will come to the State, as a natural sequence, all those blessings which flow from constitutional obligations conscientiously kept and government duties sacredly performed.

Source: Chicago Legal News: A Journal of Legal Intelligence, ed. Myra Bradwell, Volume XXV. — September, 1892 to September, 1893. (Chicago: Chicago Legal News Company) 1893, pp. 431-432.

Also: The Albany Law Journal: A Weekly Record of the Law and the Lawyers, Vol. XLVIII From July to December 1893 (Albany: Albany Law Journal Company) 1893, pp. 248-250.