- Mayer C. Goldman ^ 
 
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 aUfsra, JJwa fort 
 
 BOUGHT WITH THE INCOME OF THE 
 
 FISKE ENDOWMENT FUND 
 
 THE BEQUEST OF 
 
 WILLARD FISKE 
 
 LIBRARIAN OF THE UNIVERSITY 1868-1883 
 
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Date Due 
 
 Cornell University Library 
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 The public defender; a necessary factor i 
 
 3 1924 018 809 453 
 

The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
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SOME COMMENTS ON 
 
 THE PUBLIC DEFENDER 
 
 " It is a very interesting, cogent and able discussion of a matter 
 of great public interest and no better presentation of 'your side' 
 of the case could be made. " — Almet F. Jenks. 
 Supreme Court — Appellate Division — Second Judicial 
 Department — Chambers of the Presiding Justice 
 
 "I have read it with deep interest and appreciation. It seems 
 to me to be a very convincing argument for the reform which you 
 have so much at heart, and which should appeal to every intel- 
 ligent and unbiased mind." — George W. Kirchwey. 
 Former Dean of Columbia University Law School, 
 and Former Warden of Sing Sing Prison 
 
 "The Public Defender is an admirably written book — quite 
 uncommonly so.'" — Robert Ludlow Fowler. 
 Chambers of the Surrogate's Court, N. Y. 
 
 "Perusal of this clear and concise little volume ought to dispel 
 the misapprehension with which the proposal of a Public De- 
 fender is so largely surrounded and from which nine-tenths of the 
 opposition thereto has arisen. . . . The movement for the 
 creation of such an ofBce seems to be ga inin g strength throughout 
 the coimtry, and it is to be expected that this impressive volume 
 of Mr. Goldman will materially promote its progress." — New 
 York Tribune. 
 
 "The author has approached the subject from many angles 
 and we believe has presented an exceptionally able brief in sup- 
 port of his premise, and has answered in full all criticisms and 
 objections which have been raised." — American Law Review. 
 
 "This book states facts and arguments in a convincing way. " 
 — The Outlook. 
 
 "Mr. Goldman has done much to bring before the people the 
 idea of a Public Defender. . . . The work ably discusses the 
 public defender idea." — Case and Comment. 
 
 "The subject of the Public Defender is admirably presented 
 on the affirmative side by Mr. Goldman. . . . Those interested 
 in this subject can do no better than to secure this little work and 
 give its arguments careful consideration." — New Jersey Law 
 Journal. 
 
 "This well- written little book presents in orderly style and in 
 an interesting way the arguments in favor of a state-paid attor- 
 ney to represent indigent defendants. " — Yale Law Journal. 
 
The 
 
 Public Defender 
 
 A Necessary Factor in the Adminis* 
 tration of Justice 
 
 By 
 Mayer G. Goldman 
 
 Of the New York Bar 
 
 With a Foreword by 
 Justice Wesley O. Howard 
 
 Of the Appellate Division, New York Supreme Court 
 Third Department 
 
 SecooH Edition 
 
 G. P. Putnam's Sons 
 
 New York and London 
 
 Zbc 'KnicRetbocbet pteee 
 
 1919 
 
f\. 
 
 £ ^0 
 
 Copyright, i§ 
 
 .'1 
 
 BY 
 
 MAYER C. GOLDMAN 
 Copyright, 1919 
 
 BY 
 
 MAYER C. GOLDMAN 
 
 t^. 
 
 Ube 'RnicSetbocfter Cress, 'Rew BotR 
 
M" 
 
 FOREWORD 
 
 [R. GOLDMAN'S book, The Public 
 Defender, discusses a subject which 
 seriously affects the rights and the 
 liberties of the common people. The publi- 
 cation of this book is opportune. It merits 
 deep study and careful consideration. Mr. 
 Goldman's arguments are convincing and 
 unanswerable. His learned and compre- 
 hensive treatment of the subject will 
 stimulate and arouse a favorable public 
 sentiment. 
 
 My experience as a district attorney and on 
 the bench of the Supreme Court leads me 
 to concur fully with Mr. Goldman in his 
 contention that there should be a Public 
 Defender to look after the rights of the poor. 
 The creation of such an office would be not 
 only justice, but economy. 
 
 The poor man cast into prison, n9 matter 
 how innocent, is helpless and hopeless. He 
 cannot cry out to justice, for nobody hears his 
 
IV 
 
 Foreword 
 
 cry. He is the prey of the policeman, the 
 captive of the jailor, the butt of other prison- 
 ers, the plaything of young lawyers. He is 
 immured beyond human reach. His pro- 
 testations of innocence are drowned by the 
 ribald jeers of hardened criminals. He walks 
 to the courthouse fettered to brutes and 
 degenerates. He is browbeaten and threat- 
 ened by his captors until his heart sinks 
 in despair. As he is arraigned before the 
 judge, he stares about the courtroom, but 
 he sees no friend — no hope. Every tech- 
 nicality and delay and defense and avenue 
 of escape known to the cunning of lawyers 
 are available to the rich man indicted for 
 crime. The poor man under indictment 
 is permitted to go through the forms and 
 appearances of a trial; but such a trial 
 is only a mockery. He dares not assert 
 his innocence for fear of a double sen- 
 tence at the end of a trial — a trial which 
 he knows will be a travesty. Therefore 
 he pleads guilty and disappears from 
 human view. And this 'is the triumph 
 of civilization — a triumph for those who 
 have money; ignominy for those who have 
 not. 
 
 The provision for a Public Defender should 
 
Foreword v 
 
 be imbedded in our statutes. No law could 
 be more economical — none more humane. 
 
 W. O. Howard. 
 
 October i6, igi6. 
 
 Supreme Court Chambers 
 
 Appellate Division 
 
 Troy, N. Y. 
 
PREFACE TO THE SECOND 
 EDITION 
 
 THE general favor with which this book 
 has been received and the fact that it 
 has invited serious public notice, both 
 here and abroad, to a subject involving ele- 
 mental justice, warrant the publication of a 
 second edition. 
 
 Reference to the continued "March of the 
 Movement" since the first edition was issued 
 is pertinent. 
 
 During 191 7, the office of Public Defender 
 was established by legislative enactment 
 for the cities of Denver, Bridgeport, New 
 Haven, Hartford, Memphis, Minneapolis, and 
 Wihnington (N. C). 
 
 It may be noted that a propaganda photo- 
 play entitled The Public Defender, based 
 upon the theme of this book, which was 
 presented during 191 8 in the United States, 
 Canada, and England, will be exhibited in 
 foreign countries, thus sending its message 
 to the civilized world. 
 
viii Preface 
 
 The American Institute of Criminal Law 
 and Criminology in October, 1918, appointed 
 a ' ' Committee onPublic Defender ' ' to investi- 
 gate and report on the question. 
 
 A public defender movement in England, 
 national in its scope, is receiving considerable 
 attention from members of Parhament, law- 
 yers, and laymen. 
 
 Recent public defender activities are de- 
 tailed in "Appendix B." 
 
 The constant re-introduction of public de- 
 fender bills in numerous State legislatures, 
 the advancement of criminal jurisprudence, 
 the growing realization that society owes a 
 duty to the "under-dog, " the oft-recurring 
 instances of legal injustice — all point inevita- 
 bly to the goal of public defense. 
 
 M. C. G. 
 New York, January, 1919. 
 
PREFACE 
 
 AS a restilt of an address which I had the 
 opportunity of making in New York 
 several years ago, advocating the 
 estabHshment of the office of Public Defender 
 to represent indigent accused persons, the 
 subject was taken up for serious discussion 
 by numerous representative bodies including 
 the Criminal Courts Committee of the New 
 York County Lawyers' Association, the Law 
 Reform Committee of the Association of the 
 Bar of the City of New York, a special com- 
 mittee of the Brooklyn Bar Association, and 
 committees of the Phi Delta Phi Club, Char- 
 ity Organization Society, Citizens' Union, 
 Brooklyn Bureau of Charities, and the Bronx 
 Coimty Bar Association. 
 
 I had the honor of preparing the Public 
 Defender bills, which were introduced in 
 both houses of the New York Legislature in 
 February, 191 5, as well as the proposed amend- 
 ment submitted in May, i9i5,to the Constitu- 
 tional Convention of New York, and it was 
 
X Preface 
 
 my privilege to appear before its Committee 
 on County, Town, and Village Officers, in 
 support of the amendment. 
 
 To the best of my ability and employing 
 all available means of communication with 
 the public, I have endeavored to spread the 
 gospel of this idea, and I have been much 
 gratified by the response. I can see in this 
 kindling of the pubHc mind, only a growing 
 reaHzation of the necessity for this essentially 
 humane office. 
 
 Despite the adverse reports of bar associa- 
 tion committees and the inability thus far to 
 secure favorable legislation in New York, 
 and elsewhere, the movement has been gener- 
 ally accorded such enthusiastic and cordial 
 approval from all classes of citizens, and the 
 practical operation of the office is so uniformly 
 successful in various communities, as to 
 justify the behef that the pubHc defender 
 theory will be universally recognized through- 
 out this country in the near future. 
 
 Because of the great National interest 
 which is being shown in the public defender 
 idea and in response to many requests for 
 information on the subject, I venture to sub- 
 mit this little work — the first book on the 
 subject — in the hope that it may help in some 
 
Preface 
 
 XI 
 
 small degree to point the way to a broader 
 understanding of what is in many respects, 
 one of our most urgent and important popular 
 needs. 
 
 M. C. G. 
 New York, October, 1916. 
 
CONTENTS 
 
 Preface 
 
 PAGE 
 
 Foreword by Justice Wesley O. 
 
 Howard Hi 
 
 Preface to Second Edition . . vii 
 
 IX 
 
 CHAPTER 
 
 I- — The Public Defender Idea . i 
 
 II. — The Injustice of the "Assigned 
 
 Counsel" System . . 15 
 
 III.-^PuBLic Prosecution and Prose- 
 cutors ..... 24 
 
 IV. — ^Analysis of the Public De- 
 fender • • ■ - 35 
 
 v. — The Ancient Conception of 
 
 Crime ..... 58 
 
 VI. — Specific Objections Considered 65 
 
 VII. — Other Remedies Inadequate . 77 
 
 VIII. — The March of the Movement 81 
 
 Appendix "A " — ^The Public Defender 
 
 Chronology ... 87 
 
 Appendix "B" . . . . .97 
 
The Public Defender 
 
 CHAPTER I 
 
 THE PUBLIC DEFENDER IDEA 
 
 SINCE the beginning of time, the world 
 plea has been for justice. Yet, be- 
 cause of that strange irony which has 
 run through all the ages, man has apparently- 
 been forced to struggle for this beneficent 
 right. More especially have the destitute of 
 every land been deprived of the privilege of 
 impartial hearing. Now, after this long and 
 costly denial of human rights, comes a tangi- 
 ble antidote in the form of a public defense, 
 which gives every man, regardless of his race, 
 creed or purse, an actual "equality before 
 the law." 
 
 Such is the significance of the office of Pub- 
 lic Defender to represent indigent accused 
 persons. It means the democracy of justice. 
 
2 The Public Defender 
 
 The tremendous impetus given to this 
 movement throughout the United States 
 indicates the well-nigh universal demand for 
 the elevation and improvement of our stand- 
 ard of procedure in criminal cases. It is 
 becoming generally recognized that, in the 
 administration of justice, an impartial search 
 for the truth must be the paramotmt con- 
 sideration. 
 
 Although many persons believe that, under 
 our present system, persons accused of crime 
 are already too carefully protected by various 
 legal prestunptions and technicaHties, the 
 prevailing sentiment undoubtedly is, that the 
 administration of our criminal law is unsatis- 
 factory, expensive and inadequate. There is 
 sound basis for this criticism. 
 
 If, however, by the establishment of this 
 office, criminal jurisprudence and the prin- 
 ciples of human justice can be placed upon 
 a more solid foundation, the suspicion now 
 liurking in the public mind, that a discrimina- 
 tion exists between different classes of accused 
 persons, will give way to a realization that 
 the theory of "equality before the law" 
 means exactly that. 
 
 The idea contemplates giving life and 
 vitality to this much neglected theory and 
 
The Public Defender Idea 3 
 
 actually securing to aU the people equal 
 opportunities to protect their legal rights. 
 It means the "square deal" in the courts. 
 It is based on these important principles: 
 
 1. That it is as much the function of the 
 state to shield the innocent as to convict the 
 guilty. 
 
 2. That the "presumption of innocence" 
 requires the state to defend as well as to prose- 
 cute accused persons. 
 
 If the ascertainment of the truth be the 
 purpose of a judicial investigation, the con- 
 duct of a criminal trial necessitates the pro- 
 duction of all the pertinent law and facts; 
 the accused and accuser should have the same 
 opportunity and resources to present their 
 respective contentions; a trial should be an 
 impartial judicial inquiry, rather than the 
 waging of an unequal contest between the 
 people on the one hand, represented by an 
 able, experienced and powerful prosecutor, 
 and the individual defendant, dependent 
 upon such legal aid or skill as he may be able 
 to get. The greatest triumph of the judicial 
 system would be to secure equal justice to 
 all persons, the rich and the poor, the strong 
 and the weak, the accuser and the accused. 
 
4 The Public Defender 
 
 District Attorney Edward Swann of New 
 York City (formerly a prominent criminal 
 judge) said recently : 
 
 " The modem criminal trial is not an effort on 
 both sides to arrive at the truth and the merits 
 of the controversy, but a contest in which the dis- 
 trict attorney tries to get the facts in evidence 
 and the defendants try to keep them out by 
 every means within the rules." 
 
 If this be true, is it not essential to improve 
 the standard of trials so that they may be- 
 come impartial investigations? 
 
 That there is an inherent weakness in the 
 criminal law and in our method is evidenced 
 by the constant criticisms which are being 
 leveled against existing conditions. Leading 
 newspapers and magazines have frequently 
 commented on it in vigorous editorials. 
 Distinguished lawyers, law reformers and 
 sociologists have described specific abuses, 
 and the general public has always had the 
 impression that the poor man accused of 
 crime is at a terrific disadvantage. 
 
 Have we now the most efficient system of 
 establishing the truth? Is the contest be- 
 tween the people, with all the power, prestige 
 and resources that such term implies, and the 
 
The Public Defender Idea 5 
 
 person charged with crime, an equal one? 
 Does the state protect the weak as well as 
 the strong? If these questions be answered 
 in the negative — and they must be — the 
 need for a change is readily apparent. 
 
 The unjust conviction and penalization 
 of innocence is as much to be avoided as the 
 escape of guilt, and this is nominally recog- 
 nized by all civiHzed law. The theory that 
 "it is better that ten guilty men escape than 
 one innocent man be punished," is ancient; 
 all of us pretend to take it seriously; it is an 
 axiom of the education of law students; 
 every judge on the bench will unhesitatingly 
 subscribe to it; yet it remains a fact that 
 civiHzation, as a whole, runs to the prosecu- 
 tion of an accused man or woman with the 
 enthusiasm of a pack of hounds in full cry 
 after a fleeing hare. Mere accusation is 
 enough to start the hunt. Society as a whole 
 does not presume the accused innocent; it 
 presumes him guilty. He, himself, must 
 make the fight to prove his innocence. No- 
 body helps the hare. Everybody cheers the 
 hounds. 
 
 The law recognizes the necessity for counsel, 
 that right being a constitutional guarantee to 
 
6 The Public Defender 
 
 the accused. The suggestion for a public 
 defender, means the substitution of a sworn 
 public counsel, possessing integrity, ability, 
 experience and power, for the incompetent, 
 uncompensated, or indifferent lawyer who is 
 often assigned to a helpless and impecunious 
 prisoner. Assimiing, however, that assigned 
 counsel are often conscientious and skillful, 
 it still obtains that, without proper facilities, 
 they cannot successfully combat the power 
 and resources of the prosecution. Because 
 of this, important witnesses and expert testi- 
 mony may not be available. Is it not a 
 vicious system which permits a denial of 
 justice because of one's poverty? 
 
 The public defender should be an elected 
 officer; his compensation should be ample; 
 he must be a competent, high-class type of 
 lawyer; he should have necessary assistants 
 and investigators; he should be as powerful 
 and have the same oflGcial standing as the 
 district attorney; and in certain cases and 
 under certain conditions he ought to be per- 
 mitted to go before the grand jury while a 
 proceeding is pending before that body; as a 
 sworn representative of the people, his recom- 
 mendations to that body should be seriously 
 considered. There may be valid objections 
 
The Public Defender Idea 7 
 
 to this last suggestion. It is made here, less 
 because of a mature conviction, than in the 
 hope it may give rise to profitable or perhaps 
 conclusive discussion. However, it seems 
 reasonable that if the public defender, by his 
 presence and standing before the grand jury, 
 could prevent the finding of indictments 
 which are not justified by the evidence sub- 
 mitted, or upon evidence which a petit jury 
 would not regard as sufficient to convict, his 
 usefulness in that respect alone would justify 
 his existence, both ethically and economically. 
 An indictment is merely a charge that a 
 crime has been committed. The mere accusa- 
 tion, however, of having committed a crime 
 discredits the accused before the public. 
 The suggestion that it frequently menaces 
 and often destroys him financially, physically 
 and mentally, is wholly reasonable. Indict- 
 ment has frequently resiilted in social ostra- 
 cism. Subsequent acquittal cannot undo the 
 wrong. Neither do our laws provide any 
 compensation to those innocently accused of 
 crime. We might well profit by the example 
 of the German law which indemnifies those 
 who are the victims of legal injustice. 
 
 Indictments are too easily and too freely 
 fotmd. Too often they are procured upon 
 
8 The Public Defender 
 
 illegal or instifficient evidence; much too 
 often, on account of public clamor, prejudice, 
 malice, or perjured testimony. 
 
 If the public defender could demonstrate 
 to the satisfaction of a grand jury that it 
 ought not to find an indictment, or combat 
 the desire of a district attorney to procure an 
 imwarranted indictment, his function would 
 be highly essential to the liberty of the 
 individual and result in much economy to 
 the state. 
 
 His fimction would not be to defeat justice 
 ■ — but to promote it. He should co-operate 
 with the district attorney, whenever not in- 
 consistent with his duty to his client, and 
 wherever possible, in order to bring about 
 an ideal administration of the law. His duty 
 should be to protect the innocent — not to 
 acquit the guilty. He should see that the 
 guilty is fairly punished — not over-punished. 
 His office should be represented in every ' 
 phase of the proceedings wherein the district 
 attorney appears, commencing at the pre- 
 liminary hearing before the magistrate. 
 
 The public defender idea is neither re- 
 volutionar^r, novel, nor impracticable. It 
 is amply justified by historical precedent, 
 and by the procedure in foreign countries. 
 
The Public Defender Idea 9 
 
 It has stood the test of time and experi- 
 ence. 
 
 An ofBcial called "Pauperus Procurator" 
 appears to have existed under the Roman 
 Papal Government, (Browning's poem, The 
 Ring and the Book, vol. iii, p. 279). 
 
 There was such an official in Spain in the 
 15th century. 
 
 "In the cortez of Madrigal (1496) and still 
 more in the celebrated one of Toledo (1480) 
 many excellent provisions were made for the 
 equitable administration of justice, as well as 
 regulating the tribunals. The judges were to 
 ascertain every week, either by personal inspec- 
 tion' or report, the condition of the prisons, the 
 number of the prisoners, and the nature of the 
 offenses for which they were confined. They 
 were required to bring them to a speedy trial 
 and afford every facility for their defense. An 
 attorney was provided at public expense, under 
 the title of advocate for the poor, whose duty it 
 was to defend the suits of such as are unable to 
 maintain them at their own costs. . . . Severe 
 penalties were enacted against venality in the 
 judges, a gross evil under the preceding reigns, 
 as well as against such counsel as took exorbitant 
 fees, or even maintained actions that were mani- 
 festly unjust. ' ' (Prescott's History oj Ferdinand 
 and Isabella, vol. i., p. 194.) 
 
lo The Public Defender 
 
 The Spanish law now provides {or the 
 employment of counsel to represent indigents 
 in both civil and criminal cases ("Las Leyes 
 de Enjuiciamiento Civil y Penal ") . In every 
 district, a lawyer is registered who takes 
 charge of the cases of indigents in turn. 
 
 The criminal code of Hungary provide 
 specifically for a public defender in certain 
 cases, viz: 
 
 " An attorney duly listed or the professor of a 
 law university may be selected as defenders. 
 (Sec. 55.) 
 
 "Without the public defender there cannot be 
 had a final hearing or trial if the accused has no 
 separate attorney. (Sec. 412.) 
 
 "The presence of the public defender is always 
 obligatory except when the defendant has a 
 separate defender. (Sec. 414.)" 
 
 In the Argentine RepubUc, the defense of 
 accused persons unable to employ cotmsel is 
 entrusted to the "Defensores de Pobres y 
 Ausents" (defenders of poor and absents). 
 These counsel are lawyers appointed by the 
 Supreme Court of Argentina, for Hfe, at a 
 monthly salary. There are also public de- 
 fenders for infants and insane persons. 
 
 In France, there exists an organization 
 
The Public Defender Idea ii 
 
 called " L' Assistance Judiciare," through 
 which persons without sufficient means are 
 entitled to avail themselves of the protection 
 of the courts. The bar in that country is 
 unified into an order, assignments to the 
 defense of indigent prisoners are made by the 
 executive head of the order, from the bar in 
 general, and accepted as obHgatory. This 
 insures to the defendant dignified and com- 
 petent counsel. 
 
 In Belgium, in accordance with the law of 
 July 30, 1889, covering judicial assistance 
 to the poor, an indigent person has the right 
 to choose a lawyer, who gives his services 
 gratuitously. He is called a "Pro Deo" 
 lawyer. A petition for such free procedure 
 must be sent to the judge, who has the right 
 to dismiss the petition or allow the "Pro Deo" 
 lawyer's appointment, according to what his 
 investigation as to the prisoner's circum- 
 stances develops. The procedure has this 
 advantage, that the prisoner, by selecting his 
 own attorney, cannot be heard to complain 
 that he was dependent upon counsel who is 
 unsatisfactory to him for any reason. 
 
 The Constitution of Mexico provides for 
 the free public defense of its citizens, through 
 the "Defensores de Officio," the number of 
 
12 The Public Defender 
 
 whom is stipulated in the "Ley Organica 
 de Ministerio Publico." The constitution of 
 each one of the Mexican states provides also, 
 within the jurisdiction of the state, for the 
 "Defensores de Officio," whose number is 
 specified in the "Codigo de Procedimientos 
 Penales" in some jurisdictions, and in the 
 "Ley Organica," in others. The same general 
 principle is followed, although the various 
 states have different forms and laws. 
 
 The Norwegian act of May 22, 1902, con- 
 cerning "procedure in criminal cases," pre- 
 scribes that a lawyer must be assigned by 
 the court for the defense of any person who is 
 being tried for crime, the expense thereof to 
 be borne by the state. This method of 
 compensation insures a more adequate de- 
 fense than a system of free counsel. 
 
 In England, counsel assigned to the de- 
 fense of an accused person is paid by the 
 government. 
 
 Under the criminal system in Denmark, the 
 court appoints, in each case, a prosecutor and 
 a defender for the accused person. Both of 
 these are selected from a staff of public at- 
 torneys in the particular city or district, who 
 have been appointed beforehand by the king 
 to handle public cases. 
 
The Public Defender Idea 13 
 
 The German criminal law marks an im- 
 portant advance over the criminal systems of 
 other countries, in that it recognizes the right 
 of an innocent person unjustly punished, to 
 be compensated by the state. The two laws 
 bearing upon this subject are worthy of note, 
 viz.: 
 
 " Those defendants who have been acquitted 
 upon a re-trial, may demand damages or com- 
 pensation from the state if their punishment 
 pronounced at the first trial has been put in 
 operation, in whole or in part. 
 
 "Innocent persons who have been detained in 
 custody before trial and who have been acquitted 
 in criminal cases, may demand damages from 
 the state, if the trial has established their 
 innocence." 
 
 We can learn much from foreign juris- 
 prudence, with respect to securing to accused 
 persons the right to a fair trial, despite the so- 
 called "safeguards" of our personal Hberties. 
 
 This idea is also abundantly justified as 
 humane, just and economical by the success- 
 ful operation of the public defender's office 
 in various American communities. This 
 win be more fully shown in a subsequent 
 chapter. 
 
14 The Public Defender 
 
 While the present movement is based 
 primarily on the necessity for extending 
 adequate and proper legal assistance to 
 "indigent" accused persons, it is a mooted 
 question as to whether or not all accused 
 persons should not be defended by the state. 
 
 It is interesting to note, in this connection, 
 that according to the "Wetboek von Strafvor- 
 dering" (Code for Administering Penal Law) of 
 The Netherlands, any person accused of crime 
 may have counsel assigned to him, and that 
 the privilege is not restricted to indigent 
 persons. This counsel is chosen by the presi- 
 dent of the court among the lawyers in 
 his district. 
 
 There are many sound reasons underlying 
 the theory of "free justice." A more pro- 
 gressive civilization may determine the ques- 
 tion in time. The immediate problem is to 
 guard against injustice to those imable to 
 protect themselves. 
 
CHAPTER II 
 
 THE INJUSTICE OF THE "ASSIGNED COUNSEL" 
 SYSTEM 
 
 A DEFENDANT in a criminal trial is 
 granted by the federal and the several 
 state constitutions, the right to 
 appear and defend in person or with counsel, 
 any charge which is brought against him. 
 He should not only be defended by counsel, 
 but he should have the right to be defended 
 by competent, honest and high-class counsel 
 who can and will obtain the necessary evi- 
 dence and witnesses in his favor. 
 
 The defendant of financial means usually 
 employs able counsel and has the weapons 
 with which to properly present his defense. 
 He is released on bail, pending trial. The 
 indigent accused — ^perhaps a foreigner — often 
 ignorant — generally helpless — languishes in 
 jail, utterly incapable of coping with the 
 great forces of the state arrayed against 
 him. 
 
 15 
 
i6 The Public Defender 
 
 The courts do appoint lawyers to defend 
 such persons — but are they really defended? 
 These attorneys serve without compensation, 
 except that in some states a fee is paid in 
 murder cases. In the absence of statute, 
 counsel assigned are not entitled to compen- 
 sation and are not at liberty to dechne the 
 appointment. On very rare occasions dis- 
 tinguished coimsel is assigned to defend a 
 prisoner, but, as a general rule, these assign- 
 ments go to young and inexperienced at- 
 torneys — very often to the practitioner who 
 happens to be in court at the time. 
 
 The constitutional guarantee to be repre- 
 sented by counsel does not confer the right 
 upon the accused to compel the court to 
 assign him such counsel as he may choose. 
 
 At common law in England, coimsel were 
 not allowed to persons indicted for treason, 
 unless some point of law arose. The pro- 
 tection of the legal rights of the prisoner was 
 thus left to the presiding judge, whose bias 
 in favor of the crown resulted, in the majority 
 of cases, in great injustice to the accused. 
 At the present day in England, the assistance 
 of counsel is always allowed and counsel will 
 be assigned if the poverty of the accused 
 justifies it. . 
 
The "Assigned Counsel" System 17 
 
 If it be the function of the public purse to 
 pay for the defense of persons charged with 
 murder, why should it not be equally a func- 
 tion of the public purse to pay for the de- 
 fense of persons charged with minor crimes? 
 
 Although sending an innocent person to 
 death in penalty for a murder which he did 
 not commit is a very tragic and terrible 
 thing, it does not destroy the seriousness of 
 the fact of sending another man to prison for 
 even a brief period, on conviction for a minor 
 crime which he did not commit. 
 
 None but the prosperous, or those who are 
 accused of crimes sufficiently sensational to 
 induce attorneys to volunteer for their de- 
 fense because of obviously latent possibilities 
 of reputation, command, when they stand in 
 court, an engine of defense at all comparable 
 in efficiency to the engine of prosecution 
 existing in the office of the district attorney. 
 
 The entire system of assigning counsel to 
 accused persons is fundamentally wrong from 
 every standpoint. It is as unfair to counsel 
 as it is to the accused, wholly apart from the 
 question of the character and ability of coun- 
 sel. A lawyer should not be required to 
 devote his time and professional skill gratuit- 
 ously to the defense of a criminal prosecution 
 
i8 The Public Defender 
 
 any more than the accused should be depend- 
 ent upon the services of counsel working 
 without compensation. If it is a lawyer's 
 duty as an officer of the court, to render 
 services to an accused person when required 
 by the court, why should not the same prin- 
 ciple hold true with reference to civil litiga- 
 tions? There is no authority which can 
 compel a physician or other professional man to 
 render services gratuitously, nor can we con- 
 jure up the possibility of a merchant being 
 forced to donate any portion of his stock to 
 the needy. While the latter procedure wotdd 
 most likely result in the merchant's claim 
 that he could not be deprived of his property 
 "without due process of law," yet lawyers 
 may be forced to devote their time, energy, 
 and skill — their professional assets — ^to the 
 service of strangers. The fallacy of the 
 assigned counsel idea is shown by the fact 
 that it is deemed necessary for' the state to 
 pay counsel in capital cases. If it is impor- 
 tant to compensate counsel for defendants 
 whose lives are at stake, why is it not impor- 
 tant to compensate those who represent ac- 
 cused persons whose liberty and good name 
 are involved? 
 The classes of lawyers who are usually 
 
The "Assigned Counsel" System 19 
 
 assigned to defend, present a phase of this 
 question which cannot be regarded as unim- 
 portant. It is a regrettable fact that in 
 nearly all communities (particularly in the 
 larger cities) there is a type of lawyers who 
 are not truly representative of a great pro- 
 fession. Their regard for the rights and 
 liberties of their clients is measured solely 
 from a commercial or financial standpoint. 
 These are more persistent than any other 
 lawyers in their search for clients. Too 
 frequently their services, if rewarded by 
 small fees, are half-hearted or openly negligi- 
 ble. This leaves their clients practically or 
 wholly unprotected. They are commonly 
 referred to as "shysters," but also described 
 by various writers as "snitch lawyers," 
 " jail lawyers, " "vampires," " legal vermin, " 
 "harpies" and by other inelegant but ex- 
 tremely emphatic phraseology. They are 
 grasping and mercenary — ^without character, 
 ability or conscience. They prey upon the 
 ignorance or fear of the prisoner, or of his 
 relatives or friends, in their effort to extort a 
 fee. If it be not forthcoming (or often when 
 it is) they advise the prisoner to plead guilty, 
 on the pretext that he will get greater leniency 
 from the court than by standing trial. He 
 
20 The Public Defender 
 
 may at times go through the forms of a trial, 
 but the defense is perfunctory on its face, 
 and the client pays the penalty, perhaps not 
 for the crime charged, but often for his 
 poverty. 
 
 Occasionally, the accused has the good for- 
 tune to have an experienced and capable 
 attorney assigned to him. Busy lawyers 
 have neither the time nor the inclination to 
 neglect their more lucrative practice for the 
 privilege of basking in the atmosphere of the 
 criminal court. Therefore, the court usually 
 assigns counsel from among the attorneys in 
 attendance at the time, or who are present 
 for the purpose of being assigned. 
 
 Frequently young and inexperienced at- 
 torneys are assigned. They are usually 
 honest and painstaking and devote much 
 time to the preparation of their cases. While 
 they are glad to take unpaid assignments, 
 the benefit they get from the experience is 
 probably greater than that which their clients 
 receive. Entrusting one's liberty to the 
 tender care of a novice is fraught with danger. 
 The experience may be most profitable to 
 the young attorney — but extremely costly to 
 his unfortunate client. The young attorney, 
 as a rule, bent on achieving a favorable result. 
 
The "Assigned Counsel" System 21 
 
 is no match for the adroit, able, powerful and 
 experienced prosecutor. 
 
 The judges probably do the best they can 
 in assigning available counsel who are in 
 court — their calendars are congested, the 
 pressure of business is heavy, they are dis- 
 incKned to assign busy counsel. Many 
 judges probably feel, too, that their own con- 
 duct of the trial will preserve the fundamental 
 rights of the accused. 
 
 The evils of the practice were forcefully 
 pointed out several years ago, by Mr. Samuel 
 Untermyer, a distinguished American lawyer, 
 in an address in which he said : 
 
 " Unjust convictions among the poor and help- 
 less and especially among our ignorant foreign 
 population are more frequent than we care to 
 admit. . . . The most prolific abuses occur 
 in what are known as 'assigned' causes in 
 which the defendants and their families are too 
 poor to furnish bail or employ counsel. . . . 
 They come to the bar of justice crushed in spirit, 
 and if innocent, in mortal terror of the law and 
 resigned to any fate. Their assigned counsel, 
 whose retained clients are his chief concern, 
 easily convinces himself that he has done his 
 duty to his pauper client if the prosecutor will 
 accept a plea of guilty to a lesser form of crime 
 
22 The Public Defender 
 
 or be content to recommend a moderate sentence. 
 And so before the poor fellow knows what has 
 happened to him and in less time than it requires 
 to tell the story, he takes the advice hurriedly 
 given him as he stands quivering at the bar and 
 so he finds himself on the way to prison. . . . 
 That such a system results in innocent men being 
 branded and punished as criminals admits of no 
 doubt." 
 
 Presiding Justice Almet F. Jenks, of the 
 Appellate Division, New York Supreme 
 Court, a distinguished jurist, in speaking 
 of the public defender proposal before the 
 judiciary committee of the New York Con- 
 stitutional Convention of 19 15, said: 
 
 " I believe there is a great deal in the idea of a 
 public defender. I have seen so many poor, 
 friendless, homeless wretches have their liberties 
 put at stake through some inefficient tyro being 
 named to defend them that I feel very strongly 
 some change should be made." 
 
 Nobody knows better than the judges how 
 often miscarriages of justice occur through 
 indifferent or unskillful services rendered by 
 assigned lawyers. The views expressed by 
 Judge Jenks and others familiar with con- 
 ditions must be given due weight. Accused 
 
The "Assigned Counsel" System 23 
 
 persons are entitled to a real defense — ^not a 
 perfunctory one. 
 
 According to the figures published some 
 months ago by the Court of General Sessions 
 in New York County, it appears that in 1915 
 no less than 1495 persons had free counsel 
 assigned to them in that court as against but 
 331 such persons in 1906. This indicates the 
 need for providing counsel in New York 
 alone. One may readily imagine how many 
 indigent defendants are compelled each year 
 to rely upon assigned counsel throughout 
 the United States. 
 
 The claim has been frequently made, that 
 because jtiries are prone to extend sympathy 
 to defendants represented by the average 
 assigned counsel, the indigent defendant 
 really has an advantage. This would seem 
 to be as strong an indictment against the 
 character and abiHty of assigned counsel as 
 possibly could be presented. 
 
CHAPTER III 
 
 PUBLIC PROSECUTION AND PROSECUTORS 
 
 THE public prosecutor (or district at- 
 torney as he is frequently termed) 
 is a public servant, representing the 
 sovereign power of the state, by whose 
 authority and in whose name, under the Con- 
 stitution in most jurisdictions, all prosecu- 
 tions must be conducted. He is vested with 
 the right to determine, whether or not a 
 criminal prosecution shall be pressed to trial. 
 His powers are far reaching and his resources 
 unlimited. Being the representative of the 
 whole people, who create his office, he has the 
 respect and the confidence of the courts. 
 He is the legal adviser to the grand jury, 
 attends its sessions, and presents charges 
 against accused persons for its action. He is 
 an important part of the public's machinery 
 of justice. 
 
 It is constantly asserted that the district 
 attorney, being a quasi-judicial officer, is 
 24 
 
Public Prosecution eoid Prosecutors 25 
 
 required to protect the rights of an accused 
 person; that it is his duty to establish inno- 
 cence as well as to prove guilt, and that, there- 
 fore, there is no need for such an official as a 
 public defender. However alluring this view- 
 point may be, and however we may be 
 tempted to embrace it, the cold, sober truth 
 is, that district attorneys are chosen to 
 prosecute crime; the public pays and expects 
 them to prosecute; their work and future 
 success, political and otherwise, are often 
 measured by the number of convictions they 
 obtain. Even with the best intention to 
 give an impartial and unbiased administra- 
 tion of their office, district attorneys, being 
 mere human beings, cannot successfully play 
 the double r61e of prosecutor and defender. 
 If they were so perfectly constituted that they 
 could properly safeguard the rights of the 
 accused, there would be no need for private 
 cotmsel to undertake defense — or for judge 
 and jury to decide the law and the evidence. 
 It is important to note that the law makes 
 no provision for the district attorney to 
 defend — ^his function is to prosecute — ^and the 
 people demand a vigorous prosecution. There 
 are many who assert that it is absolutely 
 impossible for an innocent person to be con- 
 
26 The Public Defender 
 
 victed, that a miscarriage of justice is quite 
 inconceivable, that a poor defendant is on 
 an exact equality before the law with a rich 
 defendant, that the average assigned counsel 
 serving without compensation fiolly protects 
 and defends the accused, that district at- 
 torneys are infaUible and uniformly impar- 
 tial — and they seek to convince us, that our 
 very human agencies in the prosecution and 
 trial of accused persons are so perfect that to 
 criticize prevailing conditions lays one open 
 to the charge of attacking our judicial in- 
 stitutions, or reflecting upon "constituted 
 authority. " The tender solicitude shown for 
 "constituted authority" must give way, 
 however, to the more important principle of 
 meting out equal justice to all accused persons. 
 The numerous reversals by appellate tri- 
 bunals of convictions based upon unfair 
 trials, improper tactics, inflammatory ap- 
 peals to the jury, or the prejudicial attitude 
 of the district attorney, or even the trial 
 judge, completely refute the assertion that 
 the rights of the accused are always properly 
 protected. Many prosecuting officers are 
 men of the finest integrity and moral caHbre — 
 with a keen sense of justice. They would not 
 consciously violate their oaths or work in- 
 
Public Prosecution and Prosecutors 27 
 
 justice. Serious exception, however, is taken 
 to their . claim — so often urged — that they 
 can be both prosecutor and defender. For 
 example, District Attorney Edward Swann, 
 of New York County, said recently: 
 
 "I believe that the district attorney should 
 exercise the functions of public defender. He 
 is the attorney for all the people, including the 
 prisoner at the bar. He should consider care- 
 fully the prisoner's rights and if he should 
 discover any evidence in his favor he should pre- 
 sent it unhesitatingly to the jury along with the 
 other evidence. He should not permit the in- 
 stinct of the advocate to obscure his sense of 
 justice to the defendant." 
 
 Expressions of similar import have eman- 
 ated from other prosecuting attorneys. While 
 such sentiments reflect much credit upon 
 them and indicate their own tendency to be 
 judicial rather than partisan, it is humanly 
 impossible for one official to adequately and 
 fairly represent both sides of a controversy. 
 While a conscientious prosecutor can do 
 much to safeguard innocence, the true and 
 logical solution, is not to entrust a defense to 
 an official whose primary duty is to prosecute, 
 but rather to one whose primary function is 
 
28 The Public Defender 
 
 to defend. Only by the proper exercise of 
 the different functions of two such officials, 
 independent of each other in their respective 
 duties of prosecution and defense — and yet 
 harmonizing in their desire to establish the 
 truth — ^is to be found the correct system of 
 justice. 
 
 While many prosecuting attorneys may 
 strive for fair verdicts, their zeal for victory 
 and their methods of trial are very likely to 
 cause injustice to the accused. The law 
 reports, in various states throughout the 
 country, abound with decisions in which 
 appellate tribunals have reversed convictions 
 and granted new trials on account of the 
 improprieties, prejudice, or misconduct of dis- 
 trict attorneys. The following cases from 
 among the mass of decisions on the subject, 
 will serve to illustrate this. 
 
 The Court of Appeals of the State of New 
 York, in the case of The People vs. Cascone, 
 185 N. Y. Reports^ at page 334, wrote in 
 reversing a conviction of a defendant on a 
 charge of attempted murder, viz: 
 
 " We close our review with the remark, made as 
 a deliberate remonstrance against the necessity 
 for frequent reversals in criminal cases, that too 
 
Public Prosecution and Prosecutors 29 
 
 many prosecuting officers run dangerous, foolish 
 and unprofessional risks in order to secure a con- 
 viction. . . . Judgment of conviction should 
 be reversed and a new trial ordered." 
 
 Chief Justice Cullen (although dissenting 
 from the decision in that case) wrote: 
 
 "I join with my brother (Judge Vann) in repre- 
 hending the manner in which important criminal 
 prosecutions are so frequently conducted at this 
 time, often evincing ignorance of the ordin- 
 ary rules of evidence or disregard for the interest 
 of both the People and the defendant, which alike 
 require that a trial should be had according 
 to law." 
 
 In the case of The People vs. Pisano, re- 
 ported in 142 Appellate Division, p. 524 {N. 
 Y.), the Court, in reversing a conviction 
 for attempted murder, stated in its opinion: 
 
 "A district attorney oftentimes encounters 
 difficulties in the performance of his duties. He 
 should be commended for zeal in prosecuting 
 criminals but he should not allow his zeal to 
 outrun his discretion, but if, in the heat of the 
 contest, he oversteps the bounds of propriety, 
 it is the duty of the presiding judge, who is pre- 
 sumed to occupy a position of cool impartiality, 
 to check such outbreaks, advise the jury of the 
 
30 The Public Defender 
 
 impropriety thereof and warn them not to be 
 affected thereby. Convictions of guilty men are 
 desirable, but convictions must be had in accord- 
 ance with established rules of law. From con- 
 victions otherwise obtained which Appellate 
 DiA^isions are constantly compelled to set aside, 
 no good, but positive injury, results." 
 
 In the case of People vs. Wolf, reported in 
 183 N. Y. at page 464, the court in reversing 
 a conviction of defendant for the crime of 
 abduction, and granting a new trial, severely 
 arraigned the conduct of the prosecuting 
 attorney, saying: 
 
 "An unfair trial, especially in a criminal case, 
 is a reproach to the administration of justice 
 and casts grave responsibility not only upon the 
 prosecuting officer but upon the trial judge. 
 However strong the evidence may be, if she did 
 not have a fair trial, as shown by the rulings of 
 the court subject to proper objections and ex- 
 ceptions, the judgment of conviction should be 
 reversed and a new trial ordered. We have 
 repeatedly laid down the rule governing prose- 
 cuting officers in addressing the jviry and to 
 govern trial judges also in their duty relating to 
 the subject. We have repeatedly admonished 
 both, the former at times with severity and the 
 latter more mildly, not to depart from that rule. 
 
Public Prosecution and Prosecutors 31 
 
 but our admonitions have not always been re- 
 garded, although they were followed by a re- 
 versal of the judgment involved, founded solely 
 on the improper remarks of the prosecuting 
 officer and the failure of the trial judge to do his 
 duty in reference thereto." 
 
 As was well stated by a writer on the sub- 
 ject, "intemperate zeal is the besetting sin 
 of public prosecutors." The average prose- 
 cutor scents guilt — ^not innocence. Accusa- 
 tion is often equivalent to proof. He 
 becomes impregnated with the atmosphere of 
 guilt. It is quite significant of the prevailing 
 tendency, that invariably, he boasts of his 
 record for obtaining convictions — ^rather than 
 to express his satisfaction that he had freed 
 innocent men unjustly accused. As stated 
 in a recent editorial : 
 
 " He usually gives the number of convictions 
 secured by him and tells how many were ac- 
 qiiitted by direction of the court and jury. No 
 mention, however, is made of the ntunber against 
 whom proof of guilt either was wholly lacking, 
 or evidence of it insufficient to warrant prosecu- 
 tion and who were therefore discharged on the 
 district attorney's recommendation. The inter*- 
 est of district attorneys does not lie in advertising 
 this part of the record." 
 
32 The Public Defender 
 
 The fallacy of the prosecutor's position Is 
 that he usually professes to be non-partisan, 
 and he asserts that no innocent person will 
 be convicted through his activities. But the 
 fact is, that his principal claim to distinction 
 is based upon the number of persons he has 
 convicted. 
 
 There is a great opportunity for some dis- 
 trict attorney to make a really great record. 
 It will be that official who will take as 
 great pride in saying that he found one 
 innocent man and set him free, as in pro- 
 claiming the conviction of one htmdred guilty 
 men. 
 
 One of the serious evils of the administra- 
 tion of the criminal law is the practice, which 
 has been freely indulged in, of supplying in- 
 formation to the newspapers of the secret 
 proceedings before the grand jury. It has 
 been openly charged and generally believed, 
 that district attorneys supply news to the 
 press in advance of a trial. While they are 
 not always directly quoted, the fact is, that 
 matters which should remain inviolate in the 
 secrecy of the grand jury room are permitted, 
 In some mysterious manner, to circulate as 
 public news. This creates an atmosphere of 
 prejudice against the accused and makes it 
 
Public Prosecution and Prosecutors 33 
 
 most difficult for him to overcome the pre- 
 judicial effect of "trial by newspaper." 
 
 Attention may be called to another dis- 
 tinct advantage which the district attorney 
 may enjoy oVer the defendant's counsel. 
 He can, and frequently does, make applica- 
 tion for the appointment of a particular 
 judge to try a specific case, of importance to 
 the community — ^in other words, he selects 
 his own judge. Would it not be considered 
 most unusual and improper for an accused 
 person to ask for the assignment of a particu- 
 lar judge to try his case? Would such a 
 request be granted? 
 
 But without asking for a special judge, the 
 district attorney may, in large communities, 
 indirectly select his own judge by moving 
 cases on for trial at such time as he may de- 
 sire, and thereby bring them up at a term of 
 court presided over by a judge of his own 
 choice. 
 
 He may also compel poor prisoners to re- 
 main in jail until he finds it convenient to try 
 their cases — a punishment that is not visited 
 upon the defendant able to furnish bail. 
 
 The above instances may suffice to illus- 
 trate the proposition that the scales of justice 
 do not always evenly balance. 
 
34 The Public Defender 
 
 The superior advantage which the prose- 
 cutor has in the matter of police assistance, 
 the means to obtain expert testimony, the 
 efficient machinery to get witnesses, cannot 
 be denied. He is all powerful, awe-inspiring, 
 resourceful and vigilant. 
 
CHAPTER IV 
 
 ANALYSIS OF THE PUBLIC DEFENDER 
 
 IT is confidently asserted that the follow- 
 ing benefits, among others, will accrue 
 from the office of public defender: 
 
 1. The "theoretical safeguards" sur- 
 
 rounding the accused will be ren- 
 dered more effective. 
 
 2. Cases will be more honestly and ably 
 
 presented. 
 
 3. Manufactured defenses will be re- 
 
 duced. 
 
 4. Unfair discrimination will be elimi- 
 
 nated. 
 
 5. Disreputable attorneys wiU be unable 
 
 to prolong cases. 
 
 6. Pleas of "guilty" will be minimized. 
 
 7. The truth will be more available. 
 
 8. Expense wiU be decreased. 
 
 9. The criminal courts wiU be improved. 
 10. Guilty persons will not receive exces- 
 sive punishment. •• 
 
 35 
 
36 The Public Defender 
 
 II. Confidence in and respect for the law 
 
 will be increased. 
 Let us consider these various benefits 
 under their respective classifications. 
 
 The "theoretical safeguards" surrounding the 
 accused will be rendered more effective. 
 
 It is true that a defendant is surrounded 
 with certain statutory safeguards; that cer- 
 tain legal formulae are observed; that the 
 "presumption of innocence" exists; that a 
 preliminary hearing before a magistrate is 
 accorded in almost every case; that there 
 must be an indictment by a grand jury ; that 
 there must be a unanimous verdict of a petit 
 jury; that the district attorney is presumed 
 to possess a quasi- judicial character; that 
 independent investigations are made by his 
 ofiice staff, as well as by a probation officer 
 (in many jurisdictions), and that there are 
 statutory directions as to proving guilt 
 "beyond a reasonable doubt. " 
 
 But does not the "presumption of inno- 
 cence" carry with it many hardships up to 
 the point where it is overcome by the proof 
 of actual guilt? Doubtless many men pre- 
 
Analysis of the Public Defender 37 
 
 sumed to be innocent and thereafter acquitted 
 have been ruined by the cost of defending 
 themselves. Nor does the state provide any 
 compensation for the wrong. Despite this 
 presumption, an indigent defendant is lodged 
 in jail. He frequently must linger there for 
 weeks or possibly months, without the means 
 to obtain competent counsel or necessary 
 witnesses. He must consort with rogues of 
 all description. He must wage a contest 
 against the great power of the state, lacking 
 the weapons which are at the disposal of the 
 state. 
 
 When it is considered, that a grand jury 
 must have found an indictment before a 
 defendant is placed on trial for felony, that 
 fact must inevitably produce an impression 
 on the mind of a petit juror. When he is 
 brought into court under guard, without 
 friends or hope, an adverse impression is 
 created. Is there not reaUy a presumption of 
 guilt — which he must overcome — ^rather than 
 a presumption of innocence? 
 
 Despite these so-called "safeguards," the 
 accused is not usually represented by counsel 
 at the preliminary hearing before the magis- 
 trate; he is frequently held by the magistrate 
 in bail to answer, where the latter lacks the 
 
38 The Public Defender 
 
 courage to dismiss the complaint and prefers 
 to place the responsibility upon the grand 
 jury; prosecutors usually make a one-sided 
 examination based upon the information 
 furnished by the complainant; the grand 
 jviry proceeding is usually ex parte; the dis- 
 trict attorney is the official adviser of the 
 grand jury and his recommendations are 
 usually followed by that body. 
 
 Unquestionably, a public defender is better 
 able to safeguard the rights of the accused 
 than the magistrate, the district attorney, or 
 the grand jury. 
 
 The comments of judges and other officials 
 having actual contact with this office prove 
 authoritatively that, notwithstanding these 
 elaborate "safeguards, " the proposition tirged 
 under this headnote, is amply justified. 
 
 In Los Angeles, where the office of public 
 defender has been in successful operation 
 since January i, 1914, it is quite significant 
 that the district attorney (to whom the 
 office did not at first appeal) wrote to Public 
 Defender Walton J. Wood: 
 
 " I am thoroughly satisfied that there is a place 
 in our criminal jurisprudence for such an office 
 (referring to the office of public defender). . . . 
 
Analysis of the Public Defender 39 
 
 You are performing a duty which this office has 
 attempted to perform in safeguarding the rights 
 of the defendant, but I believe under the circum- 
 stances your position gives you a better oppor- 
 tunity to perform that duty than the prosecutor 
 has." 
 
 Judge Gavin W. Craig, of Los Angeles, 
 has commended the office as thus far "satis- 
 factory"; he believes "that it will be an es- 
 tablished office," and that "it tends to the 
 securing of a proper and just administration 
 of the law." 
 
 Judge Frank R. Willis, of Los Angeles, 
 stated that "the work of the public defender's 
 office has been of an eminently satisfactory 
 character," and that it "has usually been 
 productive of a more fair and impartial 
 administration of justice than the methods 
 formerly employed. " 
 
 Certainly, the opinions of these officials, 
 who have been dealing with actualities, can 
 be regarded as more persuasive than the 
 prejudices of the opponents of the idea, who 
 oppose established facts by asserting their 
 own theories as to the present perfection of 
 our criminal system. They' cannot be 
 charged with advocacy of a "Utopian 
 
40 The Public Defender 
 
 scheme" nor of being "misguided senti- 
 mentalists. " 
 
 It is safe to assert that in communities 
 which have adopted, or are about to adopt, 
 the idea, defendants are Hkewise surrounded 
 with statutory safeguards, and human nature, 
 human experience and the trial of criminal 
 cases are almost identical. If conditions in 
 other commtmities warrant the establishment 
 of this office, is it not fair to assume that 
 the same necessity exists throughout the 
 United States? 
 
 2 and 3 
 
 Cases will be more honestly and ably presented, 
 and manufactured defenses will be reduced. 
 
 The law would not require nor expect a 
 public defender to endeavor to acquit a 
 guilty person, any more than that the prose- 
 cutor is expected to convict an innocent 
 person ; being a public official and a servant of 
 the people, his sole interest would be to pre- 
 sent the law and the facts in favor of the 
 accused; with his experience, skill and re- 
 sources he would be better able to present a 
 meritorious defense, and he would not inter- 
 
Analysis of the Public Defender 41 
 
 pose what he considered unscrupulous or 
 perjured defenses. 
 
 It has aheady been pointed out in a pre- 
 ceding chapter, that young and inexperienced 
 counsel cannot present defenses as ably as 
 those who, by years of training and experience 
 at the criminal bar, have become keen and 
 alert in the trial of cases. 
 
 Various judges have said that other as- 
 signed counsel are not always conscientious 
 or diligent in the discharge of their duties, 
 among them. Judge Charles C. Nott, of the 
 New York Court of General Sessions, viz: 
 
 " It is undoubtedly true that, in some cases, 
 counsel so assigned do not use the same diligence 
 or spend the same time upon a case that they 
 would in a case where their services had been 
 retained. This is especially true of subpoenaing 
 witnesses. If the public defender's office were 
 well and honestly conducted, I think on the 
 whole its clients would be better defended than 
 indigent defendants are now, and that a large 
 number of perjured defenses would be eliminated 
 and honest defenses or pleas of guilty substi- 
 tuted which would not only be conducive to 
 good public morals but would save much time 
 and labor in the courts and would reduce the 
 calendar." 
 
42 The Public Defender 
 
 Criticisms have been made that a public 
 defender would not be "endowed with a 
 mind so enlightened, intelligence so acute, 
 and judgment so infallible that he would be 
 able to tell in every instance whether a de- 
 fendant were innocent or guilty, and whether 
 or not the defense interposed was founded 
 on truth or perjury." Doubt has been ex- 
 pressed, that his conclusions "would be more 
 profoundly accurate than that of the court, 
 district attorney, and jury combined." 
 These comments are quite wide of the mark. 
 It is a generally recognized fact that per- 
 jiired defenses are continually interposed. 
 
 District Attorney Swann recently called 
 attention to the situation, saying : 
 
 " Perjury is on the increase in New York. In 
 a substantial portion of the civil suits tried here 
 perjury is committed, and this is even more true 
 of cases tried in our criminal courts. Yet dur- 
 ing the whole of the year 1915 not a single per- 
 jury case was brought to trial in New York 
 County." 
 
 The public defender may not be any more 
 accurate in discerning the truth or falsity of 
 a defense than any other person, but it is 
 more than likely that by reason of his office 
 
Analysis of the Public Defender 43 
 
 and disinterested position, he would refuse 
 to interpose a defense which he knew to be 
 unscruptilous or perjured. Perjury strikes 
 at the very root of otir democratic institutions 
 and any plan which tends to decrease this 
 evil is worthy of serious consideration. 
 
 Judge Craig, of Los Angeles, has stated 
 that the office of public defender tends to, in 
 some cases at least, "securing for defendants 
 a more able defense than they would other- 
 wise have," whUe on the other hand "pro- 
 tecting the public from the use of methods 
 which are sometimes questionable en the 
 part of private defenders." 
 
 Numerous further authorities might be 
 quoted, but it may be sufficient to note the 
 opinion expressed by Judge Otto A. Rosalsky, 
 of the New York Court of General Sessions, 
 viz: 
 
 " It is true that a great many lawyers who are 
 assigned to defend poor persons, other than for 
 murder in the first degree (in which latter cases 
 counsel are compensated), willfully neglect the 
 interests committed to their care." 
 
 There is abundant authority therefore, 
 for the statement that the average assigned 
 counsel is not, as a rule, possessed of the 
 
44 The Public Defender 
 
 character and ability which should inure to 
 the benefit of an accused person. 
 
 The questions have been asked "What is 
 to become of the unfortunate defendant who 
 refuses to be bound by the judgment of the 
 public defender? Who would defend him if 
 he refuses to comply with the demand that 
 he plead guilty?" He is not botmd "by the 
 judgment of the public defender"; neither is 
 it likely that the public defender would 
 "demand" that he plead guilty. It may be 
 assumed that, upon hearing the facts bearing 
 upon the case of the accused, he would 
 advise him that he should either stand trial 
 or plead guilty; if the accused declined to 
 plead guilty, it would be the duty of the 
 public defender to present such facts as the 
 situation warranted. He should not be 
 compelled to do more than this. Private 
 counsel oft-times advise a client to plead 
 guilty. When he refuses to follow such ad- 
 vice and insists upon going to trial, counsel 
 frequently acquiesces. Is there any material 
 difference between private counsel and a 
 public defender, in this respect? It must be 
 borne in mind that the accused has the privi- 
 lege of retaining private counsel if he so pre- 
 fers, for any reason. 
 
Analysis of the Public Defender 45 
 
 The assumption that indigent defendants 
 are given to the practice of manufacturing 
 defenses is warranted by the experience of 
 judges and lawyers. It may be said that 
 such practice is not necessarily confined to 
 ' ' indigent ' ' defendants. 
 
 It has been contended, that the creation 
 of this oflSce would "provide an additional 
 instrumentality for defeating justice." On 
 what theory this conclusion is based does not 
 appear. Defendants are now entitled to 
 counsel, and it is certainly fair to assume 
 that a sworn public official would be less 
 likely to attempt to defeat justice than the 
 average type of assigned counsel would. 
 
 The suggestion so often made, that the pro- 
 fessional criminal would be quick to see the 
 advantage which representation by a disin- 
 terested pubHc defender would give him 
 before a jtuy, is without merit. The "pro- 
 fessional criminal" would not be likely to call 
 for the services of this official for obvious 
 reasons. Most Ukely he would give the 
 public defender a wide berth. He would 
 probably assume that a public defender 
 would not be a party to a defense which is 
 not legitimate. The indigent defendant, who 
 is innocent, wotdd be the only one really 
 
46 The Public Defender 
 
 benefited by the services of the public de- 
 fender — except that the guilty would be 
 saved from over-punishment. 
 
 Because the public defender of Los Angeles 
 said that "nearly every person accused of 
 crime in the Superior Court, upon being 
 arraigned, has called for the services of the 
 public defender," and that such situation 
 "speaks eloquently of the need of such an 
 official, " it is feared by many that a Hke situ- 
 ation would become universal. 
 
 The opponents of the plan have urged that 
 the popularity of a public defender in 
 "criminal circles" would be beyond meas- 
 xire; they assert that "he has already won 
 the unanimous support of those accused of 
 crime." They overlook, however, the fact 
 that he has also won the unanimous sup- 
 port of the officials charged with the duty 
 of punishing crime — and the further fact, 
 that persons accused may be innocent, 
 and that the law presumes them to be 
 innocent. 
 
 Curiously enough, an editorial published 
 in The Mutual Welfare League Bulletin of 
 Sing Sing Prison, New York, on June 26, 
 1 91 6, opposes the establishment of a pubHc 
 defender for several reasons — thus refuting 
 
Analysis of the Public Defender 47 
 
 the claim that such oflSce will be welcomed in 
 "criminal circles." 
 
 If it should be necessary for all persons to 
 have the aid and advice of a public defender 
 in order to establish 'their innocence, the 
 state should provide such relief, regardless 
 of the question of expense, in order to main- 
 tain the presumption of innocence. Even 
 the "crook" is entitled to a fair trial — despite 
 a criminal record. 
 
 It is vurged that, if this official were assigned 
 to every case of an indigent defendant, "the 
 administration of justice would speedily de- 
 generate into a howling farce." The Los 
 Angeles situation completely refutes this 
 contention. 
 
 Unfair discrimination will be eliminated. 
 
 Despite the doubts of bar association com- 
 mittees and others, there is a solid basis for 
 the conclusion that our courts (not only the 
 criminal but the civil courts) are for the rich 
 and not for the poor; that the wealthy de- 
 fendant who can employ competent counsel 
 and resort to technicalities and obtain the 
 delays which the law permits to those having 
 
48 The Public Defender 
 
 the ability to take advantage of them, and 
 who can pay for the attendance of witnesses, 
 experts and favors, has a pronounced superi- 
 ority over the poor, ignorant or helpless 
 prisoner, who must take what is thrust upon 
 him. It is scarcely necessary to support this 
 proposition by argument — the history of man- 
 kind amply sustains it. 
 
 So distinguished an authority as ex- 
 President Taft called attention to this dis- 
 crimination when he said: 
 
 "Of all the questions which are before the 
 American people, I regard no one as more im- 
 portant than this, to wit: the improvement of 
 the administration of justice. We must make it 
 so that the poor man will have as nearly as 
 possible an equal opportunity in litigating as the 
 rich man, and under present conditions, ashamed 
 as we may be of it, this is not the fact." 
 
 The "Committee on Criminal Courts" of 
 the Charity Organization Society of New 
 York City, in a pamphlet entitled Justice 
 Jor the Poor, made the statement: 
 
 "This confinement of so many men for such 
 long periods is not inflicted upon them because 
 of any fact connected with the alleged violation 
 of the laws but just because they are too poor to 
 
Analysis of the Public Defender 49 
 
 get bail. It is escaped by the men who have 
 money or friends. It is not imposed upon the 
 prisoners because they are guilty. It is what 
 they get for being poor." 
 
 It must be admitted that no human sys- 
 tem of administering justice can be devised 
 which will not bear more severely upon the 
 poor man than upon the rich. The public 
 defender, however, would afford the innocent 
 a proper defense, would secure for him a 
 speedier trial, and would stand as his cham- 
 pion — armed with sufficient resources and 
 power to prevent unfair discrimination. 
 
 5 and 6 
 
 Disreputable attorneys will be unable to 
 prolong cases, and pleas oj "guilty" will be 
 minimized. 
 
 It may be assumed as a matter of common 
 knowledge, that there are disreputable at- 
 torneys — (some are uncharitable enough to 
 beHeve that all attorneys are). Experience 
 has shown that many lawyers seek delays and 
 postpone trials while endeavoring to extract 
 fees from the relatives of the accused. 
 
 Such conditions exist in most large cities. 
 Jurors and those coming in contact with the 
 
50 The Public Defender 
 
 criminal cotirts are familiar with them. Pub- 
 lic Defender Wood has called attention to 
 this class of lawyers, saying that one of the 
 benefits obtained by him is "that the coterie 
 of 'jaU lawyers' who hang about jails has 
 been almost eUminated in Los Angeles. " 
 
 The general opinion among members of the 
 bar is that it is an unpleasant duty for counsel 
 to receive assignments to defend persons, 
 other than in capital cases. Defendants 
 frequently plead "guilty" because assigned 
 counsel urge them that such plea will secure 
 them a lighter penalty than if they were to 
 stand trial and be convicted. The matter 
 of obtaining compensation from a particular 
 defendant would not influence the public 
 defender in advising his client, nor need he 
 seek delay in order to obtain fees; the state 
 provides his salary — ^he has no interest in 
 prolonging litigation. He has a duty to the 
 state — as well as to the accused. 
 
 The truth will be more available. 
 
 This proposition does not "presuppose 
 that the public defender would possess that 
 quality of an unerring intuition which would 
 
Analysis of the Public Defender 51 
 
 enable him to determine at once where the 
 truth lies." It simply means that the truth 
 could be gotten at, because the pubHc de- 
 fender wiU not only be more skiUful, com- 
 petent and conscientious than the average 
 assigned counsel in bringing out all the facts 
 and the law, but that through his power and 
 resources he will be able to obtain the evi- 
 dence of the facts. It is also quite likely 
 that the accused wiU speak more freely and 
 with more confidence to a sworn public 
 official, having a definite standing and char- 
 acter, than to the assigned counsel, of the 
 type referred to. The experiment in various 
 cities, particularly in Los Angeles and Omaha, 
 has demonstrated the truth of this assertion. 
 
 8 
 
 Expense will be decreased 
 
 The most persistent objection to the public 
 defender idea is that it will result in an 
 increased expense to the pubHc. This phase 
 of the subject has been regarded as of supreme 
 importance by most opponents of the plan. 
 
 Assuming,, for the sake of argument, that 
 additional expense would result, would the 
 cost not be amply justified: 
 
53 The Public Defender 
 
 (a) If a real equality would be secured to 
 aU classes? 
 
 (6) If a higher standard of human justice 
 is reached? 
 
 (c) If the criminal law is improved? 
 
 In order, however, to demonstrate that 
 economy would result rather than added 
 expense, it is interesting again to note the 
 Los Angeles viewpoint. 
 
 The comment of Judge Frank R. Willis 
 is most significant, viz: 
 
 "It (the public defender's office) has been a 
 great saving to the county in the matter of ex- 
 pense and has usually been productive of a more 
 fair and impartial administration of justice 
 than the method formerly employed of appoint- 
 ing attorneys unfamiliar with criminal law to 
 represent the defendant's interest. I am well 
 satisfied with the efficiency of the office and of 
 the necessity for its continuance as matter of 
 economy and justice." 
 
 Public Defender Wood, in an article pub- 
 lished in the Southwestern Law Review in June, 
 1916, stated: 
 
 "Another unexpected result from the estab- 
 lishment of the office of public defender is the 
 reduction of expense to taxpayers." 
 
Analysis of the Public Defender 53 
 
 The comment of the Omaha public de- 
 fender is also illuminating on this question. 
 He said: 
 
 " The examination by the county attorney and 
 public defender in all alleged crimes, results in 
 many judgments by the court satisfactory to 
 both the state and the accused, thus saving 
 Douglas County considerable sums that would 
 otherwise be expended in useless trials." 
 
 It must be apparent that the expense of the 
 office would be more than offset by the re- 
 duced cost of prison maintenance and prose- 
 cution, by the saving of the court's time in 
 passing upon frivolous demurrers, motions 
 for new trials and such matters ; by the elimi- 
 nation of baseless appeals, by avoiding the 
 trial of spurious defenses and the saving of 
 cost of counsel fees in capital trials (in states 
 which compensate cotmsel in such cases). 
 
 9 
 
 The criminal courts will be improved 
 
 While the majority report of the Criminal 
 Courts Committee of the New York County 
 Lawyers' Association conceded that, "as an 
 abstract proposition," a pubhc defender of 
 
54 The Public Defender 
 
 the type and character suggested might be 
 helpful, and that he "would undoubtedly 
 eliminate the fact of occasional neglect of 
 duty by assigned counsel," it opposes the 
 assertion that the public defender would be 
 likely to otherwise improve upon existing 
 conditions. The report expresses doubt as 
 to how the tone of the criminal courts will be 
 uplifted by the "spectacle of daily forensic 
 combat between the district attorney and the 
 public defender." There is now daily com- 
 bat (not necessarily "forensic") between the 
 powerftil prosecutor and assigned counsel. 
 It is not apparent how the spectacle of a more 
 equal combat would be unwelcome. Is not 
 the whole theory of "combat" in the courts 
 fundamentally wrong ? Is not the sole function 
 of a judicial inqtiiry to ascertain the truth? 
 
 Popular respect for the courts would be 
 increased, if both sides of a controversy were 
 fairly and ably presented. 
 
 It does not follow that these two public 
 officials would in all instances exert their 
 efforts in opposite directions to secure a 
 favorable result for his side of the controversy. 
 Both officials, would realize that it is the duty 
 of each to try to bring about exact justice, 
 without fear or favor. 
 
Analysis of the Public Defender 55 
 
 The solution of this problem must neces- 
 sarily depend upon the individuals, who oc- 
 cupy the respective offices. Assuming that 
 both officials are of the proper type and 
 character, there is every reason to believe 
 that they would co-operate to protect both 
 society and the accused and to bring about 
 a fair administration of the law. 
 
 10 and II 
 
 Guilty persons will not receive excessive pun- 
 ishment, and confidence in and respect 
 for the law will be increased. 
 
 The public defender would be of great 
 assistance to the court, to the accused, and to 
 society. He would present to the court 
 important facts bearing upon the case, the 
 necessities of the accused or other mitigating 
 circumstances which perhaps forced him to 
 the commission of crime. 
 
 The probation system, now in vogue in 
 many jurisdictions, is no doubt helpful in 
 ameliorating conditions to a large extent. 
 Yet, the legal mind, the prestige and responsi- 
 bility of a defender to see that justice is 
 done, would be infinitely more valuable. His 
 duty, as well as his responsibility, would 
 
56 The Public Defender 
 
 necessarily be greater than that of a mere 
 probation officer. 
 
 The question of inflicting punishment or 
 of extending probation is tremendously- 
 important. It should be determined only 
 after a most diligent and comprehensive 
 inquiry into the previous history, environ- 
 ment, physical and mental status of the 
 accused. 
 
 If the state, by a proper corrective system 
 and an extension of the probation plan, could 
 restore the prisoner tq society and his family, 
 he might work out his own salvation, tmder 
 proper auspices. Incidentally, the cost of 
 his maintenance in a penal institution would 
 be saved. Society and the accused would 
 both benefit. 
 
 Those serving prison terms, impressed 
 with the idea that society is discriminating 
 against them in the matter of punishment, 
 must necessarily nurse a grievance against 
 society and the judicial system, of which they 
 believe themselves to be the victims. This 
 produces in them a spirit of revenge and 
 hatred — both inimical to the state. The 
 harm done to society by discharged convicts 
 cherishing resentment because of excessive 
 punishment, is incalculable. 
 
Analysis of the Public Defender 57 
 
 Would it not awaken confidence, were we 
 to make the poor malefactor feel that he had 
 the same privileges which the law extends to 
 the rich? Should we not convey to the guilty 
 a sense of fair punishment? 
 
 In line with modem theories of penology, 
 a legal system which inspires confidence and 
 respect would seem to be vastly superior. 
 
CHAPTER V 
 
 THE ANCIENT CONCEPTION OF CRIME 
 
 THE suggestion has been frequently 
 made, that the state, or the commu- 
 nity, should not protect an individual 
 who commits an offense against society. The 
 reason assigned is, that inasmuch as the 
 people prosecute, they shotdd not also defend. 
 It is not true, however, in the ordinary crimi- 
 nal prosecution, that society as a whole is 
 interested in punishing the alleged malefac- 
 tor, or has the slightest concern regarding 
 his case. In numerous instances, John Doe 
 has a personal grievance against Richard 
 Roe. In order to gratify a personal enmity 
 or grievance, he sets in motion the machinery 
 of the criminal law. The proceeding is en- 
 titled "The People versus Richard Roe" — 
 the indictment sets forth an offense against 
 "The People" — and the generally accepted 
 theory is, that the whole community has been 
 assailed, by reason of the act charged against 
 58 
 
The Ancient Conception of Crime 59 
 
 the defendant. In truth, the community is 
 generally indifferent to, or ignorant of, the 
 personal quarrels or animosity existing be- 
 tween the two individuals, giving rise to the 
 criminal proceeding. 
 
 It is well known that the criminal courts 
 are often resorted to for the purpose of en- 
 forcing what are purely "civH claims." An 
 indictment proclaiming that "The People" 
 are prosecuting "Richard Roe" is apt to be 
 misleading, when the facts of a particular 
 prosecution are carefully investigated. 
 
 It is interesting to note, in this connection, 
 the ancient conception of crime. What we 
 now regard as "crimes" were not classified 
 as such, in primitive jurisprudence. Only 
 extraordinary offenses were punished as 
 crimes — ^private compensation was usually 
 awarded for the offense charged. 
 
 Sir Henry Sumner Maine, in his celebrated 
 treatise {Ancient Law, p. 271), makes this 
 statement: 
 
 " The penal law of ancient communities is not 
 the law of Crimes ; it is the law of Wrongs, or, to 
 use the English technical word, of Torts. The 
 person injured proceeds against the wrongdoer 
 by an ordinary civil action and recovers com- 
 
6o The Public Defender 
 
 pensation in the shape of money damages if he 
 succeeds. If the Commentaries of Gaius be 
 opened at the place where the writer treats of the 
 penal jurisprudence founded on the Twelve 
 Tables, it will be seen that at the head of the 
 civil wrongs recognized by the Roman Law stood 
 Furtum or Theft. Offenses which we are accus- 
 tomed to regard exclusively as crimes are ex- 
 clusively treated as torts, and not theft only, but 
 assault and violent robbery, are associated by the 
 jurisconsults with trespass, libel and slander. 
 All alike gave rise to an Obligation or vinculum 
 juris, and were all requited by a payment oj 
 money. This peculiarity, however, is most 
 strongly brought out in the consolidated laws of 
 the Germanic tribes. Without an exception 
 they describe an immense system of money 
 compensations for homicide, and, with few ex- 
 ceptions, as large a scheme or compensation for 
 minor injuries. 'Under Anglo-Saxon Law' 
 writes Mr. Kemble {Anglo-Saxons, {., 177), 'a 
 sum was placed on the life of every free man 
 according to his rank, and a corresponding sum 
 on every wound that could be inflicted on his 
 person, for nearly every injury that could be 
 done to his civil rights, honor, or peace; the sum 
 being aggravated according to adventitious cir- 
 cumstances. ' These compositions are evident- 
 ly regarded as a valuable source of income; 
 highly complex rules regulate the title to them 
 
The Ancient Conception of Crime 6i 
 
 and the responsibility for them. ... If, 
 therefore, the criterion of a delict, wrong or tort 
 be that the person who suffers it, and not the 
 state, is conceived to be wronged, it may be 
 asserted that, in the infancy of jurisprudence, the 
 citizen depended for protection against violence 
 or fraud not on the Law of Crime hnt on the 
 Law of Tort." 
 
 According to this author, "the idea of 
 offense against the state or aggregate com- 
 munity did not at first produce a true crimi- 
 nal jurisprudence. " 
 
 The same author points out: 
 
 " When the Roman community conceived itself 
 to be injured, the analogy of a personal wrong 
 received was carried out to its consequences with 
 absolute literalness, and the state avenged itself 
 by a single act on the individual wrongdoer. 
 The result was that, in the infancy of the com- 
 monwealth, every offense vitally touching its 
 security or its interests was punished by a sepa- 
 rate enactment of the legislature. And this is 
 the earliest conception of a crimen or Crime — an 
 act involving such high issues that the state, 
 instead of' leaving its cognizance to the civil 
 tribunal or the religious court, directed a special 
 law or privilegium against the perpetrator. 
 Every indictment therefore took the form of a 
 
62 The Public Defender 
 
 bill of pains and penalties, and the trial of a 
 criminal was a proceeding wholly extraordinary, 
 wholly irregular, wholly independent of settled 
 rules and fixed conditions. Consequently, both 
 for the reason that the tribunal dispensing jus- 
 tice was the sovereign state itself, and also for 
 the reason that no classification of the acts pre- 
 scribed or forbidden was possible, there was not 
 at this epoch any Law of crimes, any criminal 
 jurisprudence." 
 
 Our modern systems of jurisprudence dif- 
 ferentiate more strongly between offenses 
 against the state and those against the in- 
 dividual. The two classes of injuries are 
 now more clearly defined. Nevertheless, 
 it is still true that what we are accustomed to 
 regard in the present day as "crimes" or 
 "public wrongs" — and bear the stamp of 
 public prosecution — are in reality but "pri- 
 vate wrongs," seeking a remedy through 
 public sources. 
 
 John Austin in his celebrated Lectures on 
 Jurisprudence (p. 195) writes: 
 
 "The terms 'public' and 'private' may be 
 applied indifferently to all law. ... All 
 offenses affect the community and all offenses 
 affect individuals. . . . Only in the differ- 
 
The Ancient Conception of Crime 63 
 
 ence of procedure, and not in any distinction 
 between the tendencies of the acts, lies the dis- 
 tinction between crimes and civil injuries. An 
 offense which is pursued at the discretion of the 
 injured party or his representative, is a civil 
 injury. An offense which is pursued by the 
 Sovereign or by the subordinates of the Sover- 
 eign, is a crime. In many cases (as in cases of 
 libels and assaults) the same offense belongs to 
 both classes. That is to say, the injured has a 
 remedy which he applies or not as he likes; the 
 Sovereign reserves the power of visiting the 
 offender with punishment." 
 
 Mr. Austin explains further (p. 370) the 
 origin of the term "public wrongs" as ap- 
 plied to crimes, and observed that they ac- 
 quired this name from a mere accident, from 
 the fact that crimes were originally tried by 
 the sovereign Roman people. He shows 
 that: 
 
 "The original reason ceased when the jurisdic- 
 tion in criminal causes was removed from the 
 people and vested in subordinate judges. But 
 the iiame remaining, it was supposed afterward, 
 by the Roman jurists, that crimes were called 
 public wrongs, because they affected more 
 immediately the interests of the whole commu- 
 nity. . . . The distinction between civil in- 
 
64 The Public Defender 
 
 juries and crimes rests not upon any difference, 
 in their consequences and effects, but upon the 
 different way in which they are pursued. The 
 distinction, although grounded on expediency, 
 is arbitrary in its scope: that is a civil injury in 
 one system of law which is a crime in another." 
 
 When we consider the subject of "public 
 wrongs" and "private wrongs" from an 
 historical viewpoint, it is apparent that the 
 distinction between them is more fanciful 
 than real. The assumption that the people 
 must prosecute but may not defend is not 
 warranted from either the standpoint of 
 justice or expediency. The state owes an 
 equal duty to all its citizens. 
 
CHAPTER VI 
 
 SPECIFIC OBJECTIONS CONSIDERED 
 
 a 
 
 A SOMEWHAT amazing contention has 
 been urged, to the effect that "crimes 
 and criminals would be increased" by 
 the establishment of this ofKce, because of the 
 proposed championship at public expense of 
 every ' ' professional criminal. ' ' Such conten- 
 tion must necessarily fall of its own weakness. 
 Crime is the result of poverty or of physical 
 and mental disease. A public defender will 
 no more increase crime than capital punish- 
 ment will decrease murder. Certainly a 
 sworn public official, having a definite duty 
 both to the state and to his client, would not 
 contribute to any such extraordinary result. 
 
 Another objection asserted, is that there 
 would be no one to defend the indigent prison- 
 s 65 
 
66 The Public Defender 
 
 er who refused to plead guilty on the advice 
 of the public defender. This objection loses 
 its point, when it is recalled that under the 
 present system the accused is not entitled 
 to successive lawyers until he can find one 
 who advises him to stand trial. With pri- 
 vate counsel assigned to him, he must either 
 follow the advice of counsel or rely upon his 
 own resources. In what manner the substi- 
 tution of oflGcial, reputable and able counsel 
 will more seriously jeopardize his position 
 is not apparent. It is interesting to note, 
 however, the published statement by the 
 public defender of Omaha, viz: "that, with- 
 out exception, I have found the prisoners 
 willing to discuss their cases freely and ftilly, 
 and to follow the advice given." 
 
 Much criticism has been leveled because of 
 the claim that a public defender woiild de- 
 fend only those whom he believed to be in- 
 nocent. He would also properly advise the 
 guilty. A wide range of discussion has been 
 had for many years as to whether or not a 
 lawyer is justified, from an ethical standpoint, 
 in defending a man whom he knows or be- 
 
specific Objections Considered 67 
 
 lieves to be guilty. It has been often said 
 that Abraham Lincoln refused to undertake 
 the defense of any person whom he believed 
 to be guilty of the crime charged against him. 
 Judge Peter W. Meldrim, a former President 
 of the American Bar Association, in a recent 
 article concerning Cicero, the great Roman 
 advocate, said: 
 
 "He has been severely assailed because of his 
 defense of persons charged with crime and gener- 
 ally supposed to be guilty." 
 
 The consensus of opinion among lawyers 
 is that every accused person is entitled to 
 a defense. But the law does not require an 
 attorney, in return for pay, to use his skill 
 and ability to defeat the law and save the 
 criminal from the consequences of his crime. 
 
 Private counsel is not open to criticism 
 because he refuses to defend a guilty person. 
 A district attorney is not expected to, nor 
 should he, prosecute a person whom he knows 
 or beHeves to be innocent. Why, therefore, 
 should a public defender be criticized for a 
 failure to defend one whom he beHeves to be 
 gmlty? "It's a poor rule which won't work 
 both ways." 
 
 It is well to remember that we have not as 
 
68 The Public Defender 
 
 yet reached a state of ideal perfection. 
 Society is composed of very human elements. 
 Public defenders may not be perfect — ^neither 
 are district attorneys, judges, or ministers — 
 nor mankind in general. 
 
 Did not Lincoln really sum up the true 
 function of a lawyer when he said: 
 
 "I aia not bound to win, but I am bound to 
 be true. 
 
 "I am not bound to succeed, but I am bound 
 to live up to what light I have. 
 
 " I must stand with anybody that stands right ; 
 stand with him while he is right, and part with 
 him when he goes wrong." 
 
 d 
 
 Perhaps the most ingenious argument 
 advanced in favor of the present system is 
 that which urges the soundness of our judicial 
 structure by the assertion that although 
 an indictment be unfounded, or a convic- 
 tion grossly improper, the appellate courts 
 are available for the purpose of righting the 
 wrong and seeing that justice is done. Ergo, 
 no innocent person need suffer. Quite true, 
 if the innocent person rejoices in the posses- 
 sion of sufficient means to indulge in the 
 
Specific Objections Considered 69 
 
 luxury of an appeal. But what becomes of 
 the unfortunate who languishes in jail, with- 
 out money to pay counsel or to prosecute his 
 appeal? He is precluded from testing the 
 majesty of the law — because of the crime of 
 poverty. A magnificent theory — ^but hope- 
 lessly impracticable. 
 
 Considerable stress has been laid by bar 
 association committees, in opposing the pub- 
 lic defender movement, upon the fact that 
 specific instances of innocent men being sent 
 to prison have not been shown. It is some- 
 what difficult, for many reasons, to furnish 
 specific proof of cases where innocent men 
 have been imprisoned after conviction for 
 crime. Nevertheless many convicted per- 
 sons have constantly asserted their innocence 
 or have been inadequately defended by un- 
 compensated assigned counsel, and there 
 have been many instances reported of unfair 
 trials, of numerous reversals by appellate 
 courts, of innocent men ruined by baseless 
 indictments. The public defender theory 
 does not necessarily rest upon the number of 
 innocent men convicted after a trial. Miss 
 
70 The Public Defender 
 
 Kate Barnard, a distinguished sociologist, 
 expressed the opinion that : 
 
 "Ten per cent or thereabouts of all the prisoners 
 in the American prisons to-day are there because 
 they pleaded guilty in order to secure the mini- 
 mum sentence, simply through their personal 
 poverty or personal fear — a poverty that would 
 not permit them to secure legal advice competent 
 to maintain their plea of innocence against the 
 splendid ability of the paid prosecutors of mod- 
 ern civilization." 
 
 It is manifestly impossible to correctly 
 estimate the number of those who are the 
 victims of our system of "assigned counsel." 
 How many innocent men have pleaded 
 "guilty " at the suggestion of assigned cotmsel, 
 because of the latter's indifference or de- 
 sire to escape the burden of trial, it is im- 
 possible to state; their number must be 
 legion. 
 
 But, whether the figm-es be ten per cent. 
 or one per cent., if we can prevent or minimize 
 miscarriages of justice by better protecting 
 the rights of the accused, by protecting the 
 reputations of innocent men against illegal 
 or improper indictments, by sparing them 
 confinement in jail for unreasonable periods 
 
specific Objections Ck>nsidered 71 
 
 pending their trials, by impressing the in- 
 nocent with confidence in, and the guilty with 
 respect for, the law, the necessity for the 
 change proposed must be apparent to the 
 unprejudiced mind. 
 
 Attention may be called, however, to the 
 following cases, wherein convictions were 
 had after trial. 
 
 In a book entitled Twenty Years in State 
 Prison, the case of Alfred Schwitofsky is 
 reviewed with great detail. It shows the 
 conviction of an innocent man and a grave 
 miscarriage of justice. The author, a chap- 
 lain of the New York City Prison and of 
 the Sing Sing Prison in New York, states that 
 he "can recall a number of such cases as hav- 
 ing come under his notice. " The case was 
 also discussed in the Outlook of January 
 24, 1914. 
 
 Schwitofsky was sent to State Prison for a 
 term of twenty years for burglary and feloni- 
 ous assatdt. In June, 1914, the State Board 
 of Parole held a hearing which was brought 
 about by the prison chaplain, the secretary 
 of the Prison Society of New York, a well- 
 known editorial writer and two prominent 
 lawyers. At such hearing the prisoner told 
 a remarkable tale of police hotmding, declared 
 
72 The Public Defender 
 
 his innocence of the charge and produced 
 witnesses to corroborate his story. He told 
 (according to the New York Times of June 
 9, 1914) : 
 
 "how three lawyers had been assigned to his case 
 who had practically ignored him, of how he had 
 been identified by persons under duress, of how 
 he had not been able on account of his lack of 
 means to produce a single witness in his defense, 
 of how he had not been allowed to explain many 
 things that counted against him at his trial, of 
 
 how important witnesses had been ignored." 
 
 I 
 
 It was also reported that the most eflEec- 
 tive incident in Schwitofsky's interest was 
 an admission of the Assistant District At- 
 torney, who represented the state, "that 
 the District Attorney had become convinced 
 by reason of newly discovered evidence, that 
 Schwitofsky was not guilty of felonious as- 
 sault, upon which charge ten years of his 
 twenty years' sentence was based, and that 
 the District Attorney was wiUing to recom- 
 mend to the Governor that this ten years' 
 sentence be revoked by a parole or pardon." 
 On September 18, 19 16, Governor Whitman 
 commuted Schwitofsky's sentence. 
 
 Nothing in the legal history of recent years 
 
specific Objections Considered 73 
 
 could perhaps more clearly demonstrate the 
 great necessity for the general establishment 
 of a public defender than the conviction of 
 murder rendered against Leo M. Frank in 
 Atlanta, a case which is still fresh in the 
 public mind. The whole atmosphere of his 
 trial reeked with class hatred, prejudice, and 
 bigotry; nearly the entire local press, public 
 and clergy clamored for conviction from the 
 outset; the militia was called out to preserve 
 order during the trial, and feeling ran so high 
 that the jury was practically forced to find 
 him guilty, although this was done princi- 
 pally upon slender threads of evidence sup- 
 plied mainly by an easily discredited witness, 
 whose criminal record was established and 
 who confessed to being an accessory after the 
 fact. It was openly charged in the press, 
 and elsewhere, that the prosecution in the 
 case was unduly prejudiced against the pris- 
 oner, that evidence favorable to him was 
 suppressed, that the prosecutor's closing 
 address to the jury was calculated to and 
 did inflame their passions and arouse their 
 prejudices. The trial has frequently been 
 mentioned as an example of the effort not to 
 bring out the truth, but to secure conviction. 
 After the verdict had been rendered, the trial 
 
74 The Public Defender 
 
 judge openly announced that he had been 
 unable to form a definite opinion as to the 
 prisoner's guilt or innocence from the evi- 
 dence. Subsequent events and investiga- 
 tions have added to the original doubts as to 
 Frank's guilt. Justice Holmes, of the United 
 States Supreme Court, declared in certain 
 proceedings pending in that court, that he 
 "seriously doubts if Frank had due process 
 of law." Outside of the local atmosphere, 
 the public sentiment was generally favor- 
 able to Frank. Here was an instance where 
 the technicalities of the law were permitted to 
 supersede justice. Whether Frank was in- 
 nocent or guilty, however, is not the question; 
 he certainly did not receive that fair trial 
 to which he was entitled under the law. It 
 is true that he was defended by distinguished 
 counsel — and in that respect, he was no doubt 
 defended as well as he could have been by 
 private counsel. Had there been, however, a 
 public official representing him, with the 
 prestige of the state behind him, insisting 
 upon the production by the people of all 
 available evidence favorable to the prisoner, 
 with the right and power to use the detective 
 and police force, if necessary, in pursuing his 
 investigations, with the courage to combat 
 
Specific Objections Considered 75 
 
 public prejudice, a very different complexion 
 might have been placed upon the case and the 
 nation might have been spared what will 
 doubtless go into history as one of its great- 
 est legal scandals. There can be no question 
 but that, throughout this country, a large 
 number of impartial persons will retain a 
 lasting impression that an innocent man was 
 put to death. 
 
 The contention of the opponents of the 
 public defender idea, that it is impossible 
 for an innocent man to be convicted of crime 
 because of the "safeguards" offered by our 
 laws, has been weakened by the facts devel- 
 oped in the case of Charles F. Stielow, which 
 has recently occupied the attention of the 
 New York courts. Stielow, the victim of a 
 "third degree" confession, convicted of 
 murder, four times in the shadow of the elec- 
 tric chair and snatched from the jaws of 
 death at the last moment, affords a striking 
 illustration of the possibilities of judicial 
 mttrder. Stielow owes his life solely to the 
 persistent and unselfish efforts of a group of 
 private individuals who volunteered to cham- 
 pion his cause. While the result achieved 
 is a triumph of innocence over manufactured 
 gmlt, it is a sad commentary on our system of 
 
76 The Public Defender 
 
 iurisprudence that the state was so powerless 
 and inefficient to prevent the wrong com- 
 mitted by it. This case strikingly illustrates 
 the need for a public defender. 
 
CHAPTER VII 
 
 OTHER REMEDIES INADEQUATE 
 
 THREE plans have been enthusiastically 
 urged by various opponents of the 
 public defender idea (among them 
 various bar association committees) which 
 it is claimed wiU be an effective "cure-all" 
 for the present difficulties. 
 They are : 
 
 I. That the local bar associations should 
 furnish a corps of reputable attorneys to 
 volunteer their services as coimsel for in- 
 digents. 
 
 II. That legal aid societies or other volun- 
 tary charitable organizations should under- 
 take the defense of such persons. 
 
 III. That the trial judge should be em- 
 powered to fix compensation to counsel in 
 each case, such compensation to be paid by 
 the county. 
 
 Not one of these proposed remedies affords 
 an adequate solution of the question. The 
 77 
 
78 The Public Defender 
 
 mere suggestions, however, indicate that 
 existing conditions require some remedy, even 
 though those who offer them have persistently- 
 denied that any change of system was needed. 
 
 If the situation could be materially im- 
 proved by the co-operation of the bar associa- 
 tions in supplying a Hst of volunteer attorneys 
 to the court, is it not singular that they have 
 not heretofore adopted such a course? Cer- 
 tainly, they cannot plead ignorance of crimi- 
 nal court conditions. Why have not the 
 judges, who know the need for competent 
 counsel in assigned cases and who have the 
 power to designate proper counsel, requested 
 the assistance of the bar associations, in an 
 endeavor to promote the admimstration of 
 justice? The answer is very simple — repu- 
 table and busy lawyers do not care to volun- 
 teer their services for this unproductive work, 
 and the judges are not inclined to assign 
 them — except in rare instances and in 
 capital cases. And, as has been pointed out 
 in a preceding chapter, it is unfair to expect 
 a lawyer to devote his time and skill to such 
 gratuitous service. 
 
Other Remedies Inadequate 79 
 
 II. 
 
 While legal aid societies have done splen- 
 did work and shotdd be encouraged, the 
 argument that they will afford a sufficient 
 substitute for, and render unnecessary 
 the establishment of pubUc defenders is 
 wholly without merit. First, such associa- 
 tions are generally handicapped by lack 
 of sufficient funds, as has been evidenced 
 by their frequent and urgent appeals to 
 the public for financial support. Aside 
 from this, however, there is a more potent 
 and fundamental objection to the plan. An 
 accused, person should not be dependent 
 upon any form of charity, individual or 
 organized, for the resources or opportu- 
 nity to present a merited defense. He 
 shoiild be entitled as a matter of abstract 
 right to be defended by a sworn public 
 official, who would have a positive duty, 
 as well as the power and standing, to pro- 
 tect properly his interests. Neither pri- 
 vate nor public charity, no matter how 
 meritorious, wiU avail as a sufficient sub- 
 stitute for the denial of a legal require- 
 ment. Justice — not charity — ^is the universal 
 need. 
 
8o The Public Defender 
 
 III. 
 
 The third plan proposed, that of com- 
 pensating assigned counsel, is also open to 
 serious objection, by making it possible for 
 the judges to show favoritism to certain 
 lawyers, and thus lead to abuses — of which 
 the "referee system" in civil cases is a 
 conspicuous example. The compensation 
 awarded would be hardly sufficient to induce 
 experienced trial cotmsel to accept the cases. 
 Furthermore, the aggregate of fees paid to 
 counsel under such form of assignment 
 would most likely result in a greater expense 
 to the community than the creation of a 
 public defender — without the benefits ac- 
 cruing from such defender. 
 
CHAPTER VIII 
 
 THE MARCH OF THE MOVEMENT 
 
 IN March, 1912, the first public oflScial 
 designated as a "Public Defender" was 
 
 established in the United States. Miss 
 Kate Barnard, then Commissioner of Chari- 
 ties and Corrections in the state of Okla- 
 homa, designated Dr. John H. Stolper as 
 "General Attorney for the Commissioner of 
 Charities and Corrections and as Public 
 Defender of the state of Oklahoma." Al- 
 though he rendered conspicuously valuable 
 services to the people, his functions and duties 
 were widely different from the type of public 
 defender now being generally urged by the 
 leading exponents of the movement. There- 
 fore, the experience gained from his office 
 is not important in the discussion of the 
 present plan. 
 
 During the year 1913, the people of Los 
 Angeles County adopted a charter (subse- 
 quently ratified by the State Legislature) 
 
 6 81 
 
82 The Public Defender 
 
 providing for the appointment of a public 
 defender. It provides among other things: 
 
 " Upon request by the defendant or upon order 
 of the court, the public defender shall defend, 
 without expense. to them, all persons who are 
 charged in the Superior Court with the com- 
 mission of any contempt, misdemeanor, felony, 
 or other offense." 
 
 On January 6, 1914, Hon. Walton J. 
 Wood became the first public defender in the 
 United States of the tj^e generally advocated, 
 and he has served in such office with great 
 distinction and ability. His conduct of the 
 office has amply justified the necessity and 
 reasons for its existence. In June, 1915, a 
 separate pubHc defender was appointed for 
 the police courts of Los Angeles. 
 
 A voluntary public defender was appointed 
 for Houston, Texas, in June, 1914. 
 
 In May, 1914, a voluntary public defender 
 was appointed at Portland, Oregon, through 
 the co-operation of one of the judges and the 
 bar associations. 
 
 During March, 1915, Mr. David Robinson 
 was appointed the first official public defender 
 for Portland, pursuant to a resolution of the 
 City Council, which created the office. 
 
The March of the Movement 83 
 
 In November, 1914, a voluntary public 
 defender was appointed at Evansville, Ind., 
 by the Mayor. 
 
 In September, 1914, a voluntary public 
 defender was established at the city of Temple, 
 Texas. 
 
 Mr. Richard S. Horton, of Omaha, became 
 public defender for Douglas County (Omaha), 
 Nebraska, pursuant to an act of the State 
 Legislature, in July, 1915. 
 
 On December i, 1915, Mr. RoUo H. Mc- 
 Bride, was appointed public . defender of 
 Pittsburg, Pa., by the Mayor of that city. 
 
 In February, 191 5, the Municipal Council 
 of the city of Columbus, Ohio, appointed 
 Mr. Cecil J. Randall as public defender of the 
 city of Columbus. 
 
 It is significant that aU of these officials 
 gave their unqualified endorsement to the 
 practical and successful operation of the 
 office and have expressed the hope that 
 the office will become universal in scope. 
 
 Many distinguished lawyers, judges, soci- 
 ologists and others, familiar with criminal 
 court conditions, have cordially approved the 
 plan; religious, labor, welfare and other civic 
 organizations have passed resolutions favor- 
 ing the public defender idea. 
 
84 The Public Defender 
 
 During the year 1915, there were 12 pubKc 
 defender bills introduced in various state 
 legislatures. 
 
 The idea has won the vigorous support of 
 leading newspapers and magazines, from 
 Maine to CaHfomia, The public defender 
 proposal is no "passing fancy." It is being 
 generally recognized as vital, fundamental 
 and humane. The American sense of "fair 
 play" is the dominant note underlying the 
 force and development of the movement to 
 remedy inherent defects in the criminal sys- 
 tem. The advantages of the proposed plan 
 so greatly outweigh the objections thereto 
 as to justify giving it a fair test. 
 
 It requires merely the awakening of the 
 public conscience to bring about ivurther pro- 
 gressive legislation. Our people are fully 
 alive to the economic, social and financial 
 needs of the country. "Preparedness" is 
 the national slogan of the day. In the 
 general desire to obtain adequate protection 
 from all manner of foes, within or without, we 
 must not overlook the importance of safe- 
 guarding the lives and liberties of our citizens 
 so that no injustice be done them. We 
 should make our judicial system safe from 
 attack. It should be emblematic of the 
 
The March of the Movement 85 
 
 highest ethical principles. May we not 
 reasonably expect, when serious thought is 
 directed toward the consideration of a higher 
 ideal in the administration of justice, that 
 the people will, with all the force and power 
 of an aroused public opinion, demand the 
 establishment of a public defender? 
 It is a National Necessity. 
 
APPENDIX "A" 
 Chronology of the Public Defender 
 
 1913 
 
 1914 
 
 January 
 
 July 
 
 September 
 
 November 
 December 
 
 1915 
 January 
 
 February 
 
 June 
 
 CALIFORNIA 
 
 First public defender's office established by 
 Los Angeles County charter; labor unions 
 active in advocating of&ce. 
 
 Walton J. Wood became public defender of 
 
 Los Angeles County. 
 San Diego County "Federation of Trades and 
 
 Labor Council" advocated public defender 
 
 for City Justice's Court. 
 United States Commission on Industrial 
 
 Relations, took testimony as to advisability 
 
 of public defender, at Los Angeles. 
 Address by Hon. Walton J. Wood before 
 
 California Bar Association at Oakland, Cal. 
 Legislative and executive committees of 
 
 California "State Federation of Churches" 
 
 endorsed public defender movement. 
 
 Public defender bill introduced in State 
 
 Legislature. 
 Public defender bill endorsed by Orange 
 
 County Bar Association by vote 24 to 2. 
 Public defender bill passed in both houses, 
 
 by vote of 120 to 9. 
 
 87 
 
88 
 
 Appendix 
 
 June 
 
 1914 
 
 April 
 
 June 
 July 
 
 August 
 September 
 November 
 December 
 
 191S 
 
 January 
 
 February 
 
 Resolution passed by City Council of Los 
 Angeles, providing for appointment of 
 public defender in Police Courts. 
 
 James H. Pope appointed public defender for 
 Los Angeles Police Courts. 
 
 NEW YORK 
 
 Public defender movement initiated in New 
 York by the author. 
 
 Interview on public defender published in 
 New York Times. 
 
 Criminal Courts Committee of New York 
 County Lawyers' Association appointed 
 sub-committee to investigate subject. 
 
 County Judge F. H. Hazard, of Utica, en- 
 dorsed public defender proposal. 
 
 Phi Delta Phi Club "Committee of Seven" 
 made report. 
 
 Criminal Courts Committee of New York 
 County Lawyers' Association filed report. 
 
 Supreme Court Justice Wesley O. Howard 
 endorsed public defender proposal in public 
 address at Troy, N. Y. 
 
 Law Reform Committee of the Association 
 of the Bar of the City of New York filed 
 report. 
 
 Public defender bill introduced in State 
 Legislature by Senator George W. Simpson 
 and Assembljrman Daniel C. Oliver. 
 
 Public defender bill endorsed by various mem- 
 bers of "Courts Committee" of Brookl}^ 
 Bureau of Charities. 
 
 Public defender debate before Association of 
 Grand Jurors, New York City. 
 
Appendix 
 
 89 
 
 February 
 March 
 
 April 
 (( 
 
 May 
 
 June 
 
 November 
 December 
 
 I0i6 
 
 January 
 
 Public defender proposal endorsed by Actors' 
 International Union of America (Local No. 
 I, New York City). 
 
 Public defender address at Hebrew Taber- 
 nacle, New York City. 
 
 Women Lawyers' Association endorsed Pub- 
 lic Defender Bill. 
 
 Public defender debate before People's 
 Institute, New York City. 
 
 Brooklyn Bar Association committee filed 
 report. 
 
 Public defender amendment to State Con- 
 stitution introduced in Constitutional 
 Convention. 
 
 Public defender amendment to State Con- 
 stitution endorsed by Labor Temple 
 Forum, New York City. 
 
 Public defender address at Church of the 
 Ascension, New York City, and proposal 
 favored by "Public Forum" of the church. 
 
 Public defender amendment discussed before 
 "Committee on Coimty, Town & Village 
 Officers" of the Constitutional Convention. 
 
 Public defender proposal favored by Supreme 
 Court Justice Ahnet F. Jenks, before 
 "Judiciary Committee" of Constitutional 
 Convention. 
 
 Public defender lecture before Social Guild 
 of Williamsburg. 
 
 Public defender lecture before Labor Temple, 
 New York City. 
 
 Public defender lecture before Fortnightly 
 
 Library Club, Brooklyn. 
 Public defender lecture before Isaiah Temple, 
 
 New York City. 
 
90 
 
 Appendix 
 
 1Q16 
 April 
 
 Public defender lecture before Workers' 
 Amusement Club, New York City. 
 
 Public defender lecture before New Era Club, 
 New York City. 
 
 January 
 February 
 
 1915 
 Januaiy 
 
 February 
 March 
 
 1914 
 
 September 
 
 191S 
 July 
 
 Public defender movement started in Cincin- 
 nati by Attorney Louis Tyroler. 
 
 Public defender established in Columbus, O. 
 — Cecil J. Randall made pubEc defender. 
 
 OREGON 
 
 PubUc defender bill introduced in State Legis- 
 lature for Multonomah County by Repre- 
 sentative Lewis, of St. John's, O. 
 
 Public defender estabhshed by City Council 
 of Portland, for Municipal Court. 
 
 David Robinson appointed public defender 
 for Portland. 
 
 NEBRASKA 
 
 State Legislature passed Public [defender bill 
 
 for Douglas County. 
 Pubhc defender plank inserted in Progressive 
 
 Party Platform. 
 
 Richard S. Horton became official public 
 defender of Omaha. 
 
 1914 
 June 
 
 Public defender established in Houston, Texas, 
 by Attorney James Snowball on an unof- 
 ficial basis and office subsequently financed 
 by citizens. 
 
Appendix 
 
 91 
 
 1914 
 September 
 
 191S 
 January- 
 
 March 
 
 1914 
 
 1915 
 March 
 
 December 
 
 1916 
 May 
 
 June 
 
 Public defender established in Temple, Texas. 
 
 Public defender of Houston endorsed by 
 Peter Alexander Speek, of U. S. Commis- 
 sion on Industrial Relations. 
 
 Public defender bill introduced in State 
 Legislature by Representative Beard, of 
 Houston. 
 
 Public defender's office endorsed at public 
 meeting at Houston. 
 
 PENNSYLVANIA 
 
 Congressman James H. Mayrer, of Reading, 
 President of Pennsylvania State Federation 
 of Labor, actively advocated proposed 
 public defender legislation. 
 
 Public defender proposal advocated by Prof. 
 A. J. Todd, Warden John Francis, and 
 Rollo H. McBride, of Pittsburg. 
 
 Rollo H. McBride, Supt. of "Parting of the 
 Ways Home," appointed first pubhc de- 
 fender of Pittsburg by the Mayor. 
 
 Public defender movement started in Phila- 
 delphia by Attorney Samuel F. Wheeler. 
 
 United States Judge J. Walter Thompson, of 
 Philadelphia, appointed Attorney Samuel 
 F. Wheeler voluntary public defender at 
 request of district attorney. 
 
 1914 
 November 
 
 Attorney Frank C. Gore, of Evansville, ap- 
 pointed public defender by Judge Duncan 
 C. Givens, of the Circuit Court, until the 
 office could be tested. 
 
92 
 
 Appendix 
 
 191S 
 
 August 
 
 1916 
 
 July 
 
 1Q14 
 July 
 
 191S 
 January 
 
 1916 
 
 January 
 
 1914 
 October 
 
 November 
 
 December 
 
 June 
 
 Public defender bill for Pulton County (At- 
 lanta) passed both houses. 
 
 Nine-tenths of the Atlanta bar expressed 
 approval of the public defender bill after 
 canvass made by Attorney William R. 
 Hammond, of Atlanta. 
 
 NEW JERSEY 
 
 Public defender proposal advocated by 
 Charles A. Wolverton, of Camden County, 
 formerly assistant district attorney. 
 
 Public defender bill introduced in State Legis- 
 lature by Assemblyman A. M. Henry, of 
 Jersey City. 
 
 Public defender bill re-introduced in State 
 Legislature. 
 
 IOWA 
 
 Public defender proposal advocated by Frank 
 
 D. Wasson, of Cedar Rapids. 
 Public defender proposal advocated by Wes 
 
 Piala, member-elect of Legislature. 
 Public defender proposal advocated by 
 
 Cedar Rapids Gazette. 
 Public defender bill prepared by Senator 
 
 Francis A. Heald and County Attorney 
 
 Guy P. Linville, of Cedar Rapids. 
 
 Public defender proposal advocated at meet- 
 ing of county attorneys. 
 
Appendix 
 
 93 
 
 1914 
 
 November 
 
 December 
 
 191S 
 JaoQuary 
 
 1916 
 
 July 
 
 IQI4 
 
 September 
 
 1915 
 
 January 
 
 1914 
 March 
 
 September 
 
 Public defender proposal advocated by Ed- 
 ward J. Fleming, in charge of "free legal 
 department" of Board of Public Welfare. 
 
 Public defender proposal advocated by 
 Charles E. Waters, Secretary of "Missouri 
 Prison Rescue League," before City Club, 
 Kansas City. 
 
 Public defender bill introduced in State Legis- 
 lature. 
 
 Rev. B. A. Predenhagen and a Kansas City 
 delegation attended State Capitol in sup- 
 port of public defender bill. 
 
 Public defender law recommended by the 
 "Federation of Improvement Associa- 
 tions" of Kansas City. 
 
 KANSAS 
 
 Public defender proposal advocated by Prof. 
 C. H. Talbot, of University of Kansas. 
 
 Public defender bUl introduced ia State 
 Legislature by Representative E. E. 
 StaufEer. 
 
 MASSACHUSETTS 
 
 Massachusetts Commission on Immigration 
 reported to the Commonwealth that public 
 defenders be provided in Massachusetts. 
 
 Public defender proposal advocated by At- 
 torney W. H. Barter, of Boston. 
 
94 
 
 Appendix 
 
 1915 
 
 February 
 
 IQ14 
 November 
 
 1915 
 February 
 
 March 
 
 April 
 
 May 
 
 191S 
 
 May 
 
 Public defender bill introduced in State 
 
 Legislature. 
 Public defender bill endorsed before joint 
 
 "Committee on Judiciary" by W. H. 
 
 Barter. 
 
 ILLINOIS 
 
 Public defender proposal advocated by Chief 
 Justice Harry Olsen, of the Municipal 
 Court, Chicago, before "Legal Aid So- 
 cieties of America." 
 
 Report favoring public defender proposal 
 made to the Chicago City Council "Crime 
 Commission" by Prof. Robert H. Gault 
 (of Northwestern University and Editor 
 of Journal of Criminal Law and Crimi- 
 nology), Chief Justice Kersten, of the 
 Criminal Court and Chief Justice Olsen, 
 of the Municipal Court. 
 
 Public Defender's Association organized in 
 Chicago, consisting of forty lawyers volun- 
 teering legal services to indigents; attorney 
 John F. Tyrell, of Chicago, appointed first 
 public defender by association. 
 
 Public defender bill introduced in State Legis- 
 lature by Representative G. N. McCormick, 
 
 Public defender bill for Chicago advocated be- 
 fore "Legislative Anti-Crime Committee" 
 by Alderman Charles E. Merriam, of 
 Chicago. 
 
 TENNESSEE 
 
 Public defender bill passed by lower house of 
 State Legislature. 
 
Appendix 
 
 95 
 
 WASHINGTON 
 
 IQI4 
 
 September 
 
 1915 
 
 January 
 
 IQ16 
 March 
 
 Public defender proposal supported by Legis- 
 lative Federation of Women's Clubs of 
 King County. 
 
 Public defender proposal advocated by Alfred 
 H. Lundin, candidate for district attorney. 
 
 Public defender proposal discussed at Cham- 
 ber of Commerce, Seattle, by various can- 
 didates for district attorney. 
 
 Public defender advocated before King 
 County Legislative Federation at Seattle, 
 by Mrs. Mary E. Howe. 
 
 Public defender proposal advocated editori- 
 ally by Tacoma Labor Advocate as of par- 
 ticular interest to working classes. 
 
 MINNESOTA 
 
 I9I5 
 
 January 
 
 March 
 
 igi6 
 May 
 
 Public defender bill introduced in State Legis- 
 lature by A. L. Lennon. 
 
 Public defender bill endorsed by Hennepin 
 County delegation. 
 
 Public defender plank inserted in Socialist 
 Platform Qackson County). 
 
 IQ14 
 November 
 
 lOZS 
 March 
 
 Public defender movement started. 
 
 Public defender bill passed the State Senate 
 (introduced by Senator Prank Evans, of 
 Salt Lake City). 
 
96 
 
 Appendix 
 
 1916 
 
 February 
 March 
 
 1915 
 January 
 
 1916 
 
 May 
 
 1914 
 December 
 
 VIRGINIA 
 
 Public defender bill introduced in State 
 
 Legislature. 
 Public defender bill for Norfolk passed by 
 
 legislature. 
 
 ARIZONA 
 
 Public defender proposal advocated by Gov- 
 ernor Hunt, in message to State Legislature. 
 
 Public defender movement started by leading 
 citizens to secure passage of bill by 1917 
 legislature. 
 
 NORTH DAKOTA 
 
 Public defender proposal advocated by At- 
 torney George A. Bangs, of North Forks. 
 
 1914 
 
 November 
 
 1914 
 
 November 
 
 1916 
 July 
 
 1Q14 
 October 
 
 Public defender proposal advocated by at- 
 torney M. H. Eustace, of Caldwell. 
 
 CONNECTICUT 
 
 Public defender proposal advocated by 
 Senator James A. Peasley, of Waterbury, 
 Conn. 
 
 Office of public defender advocated by Hart- 
 ford Post. 
 
 NORTH CAROLINA 
 
 Public defender proposal advocated by 
 Charles H. West, of Wilmington. 
 
APPENDIX "B" 
 
 1917 
 
 March 
 
 CONNECTICUT 
 
 Public defenders appointed for New Haven, 
 Hartford, and Bridgeport, vinder state law. 
 
 1917 
 
 March 
 
 COLORADO 
 
 State legislature passed public defender bill 
 for Denver. 
 
 igi7 
 March 
 
 TENNESSEE 
 
 Public defender bill for Memphis (Shelby- 
 County) signed and appointment made by 
 County Commission. 
 
 1917 
 April 
 
 PENNSYLVANIA 
 
 Public defender appointed by Mayor of 
 Pittsburg to represent negroes. 
 
 1917 
 June 
 
 NORTH CAROLINA 
 
 Public defender appointed for Wilmington 
 (New Hanover County). 
 
 97 
 
98 
 
 Appendix 
 
 1917 
 
 December 
 
 MINNESOTA 
 
 Public defender appointed for Minneapolis 
 (Hennepin County) by district 
 pursuant to act of legislature. 
 
 1917 
 
 April 
 
 December 
 
 1918 
 January 
 
 NEW YORK 
 
 "Voluntary Defenders' Committee" or- 
 ganized in New York County, with paid 
 counsel to represent indigent defendants. 
 
 Public defender proposal recommended by 
 "Legal Aid Bureau" of Buffalo in annual 
 report. 
 
 New York World published series of special 
 articles urging Public Defender. 
 
 IQ18 
 June 
 
 Public defender idea favored at meeting of 
 the Illinois State Society of the American 
 Institute of Criminal Law and Criminology. 
 
 Public defender proposal favored by The Big 
 Brother magazine (Chicago). 
 
 1918 
 November 
 
 Public defender idea favored in London by 
 J. A. Seddon, ex-President of Trade 
 Union Congress, Sir Edward Marshall 
 Hall, Sir Arthur Conan Doyle, E. J. Pur- 
 chase, and George R. Sims. 
 
KF 38^ g62 1919 
 
 Author 
 
 Goldman, Mayer C 
 
 Vol. 
 
 Title 
 
 Public defender 
 
 Copy 
 
 
 
 Date 
 
 Borrower's Name