Back in August we included a chapter from The Man In Court by Frederic DeWitt Wells (which I shamefully described as A Man In Court … Bad Librarian!) Wells was a New York City magistrate in the early years of the century. Most of the book is not too interesting today because it is more expository than narrative (i.e. it tells rather than show). But this, the next to last chapter, lightly edited by yours truly, is still good reading. Or you can read the whole book here.

—Rob Lopresti

THE TRUE VERDICT

by Frederic DeWitt Wells

The truth is said. The battle is over and the mighty have prevailed. The decision is made. Justice divine and compelling is about to pronounce its sentence. The truth seeks to burst forth and the jurymen have knocked at the door of the room in which they have been locked for so many hours. The court attendant, who has been standing like a sentinel outside to prevent the approach of eavesdroppers and listeners, turns the key and sticks his head into the room, withdraws, locks the door again, and sends off for the judge.

The judge has been in his chambers taking a rest and enjoying a cigar. The judge always, when he is off the bench, is by courtesy said to be in chambers—other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office room where he sits. It is named in the plural, even if it is only one ordinary room. He throws away his cigar. The lawyers or their assistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities of their clients, who insist upon speculating with them on the probable result, have been summoned to the bar. The judge takes his seat on the bench. The jury, marshalled by the court officer, file in. They are lined up in the jury-box.

“Gentlemen,” says the judge, “have you agreed upon a verdict?”

“We have,” answers the foreman of the jury.

When the jury have first been locked in the jury-room they have probably immediately relaxed after the long strain of the trial. They were entitled to a smoke and to feel at their ease. Besides they know that if they finished their deliberations too early, they will be called on another case. It was nearly two when the judge finished his charge, so they have plenty of time to waste; for if they came back to the court-room before three they would be impaneled in another trial.

They have taken a straw vote to find out how the sentiment stood, not with the hope of arriving at a decision but by way of trying out the matter. The result stands nine for the plaintiff and three for the defendant. They light their cigars, for they came well prepared for the tedious hours in the jury-room.

The nine men look at the other three in disgust, the three look at the nine with contempt and then they begin to argue. The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. There is a certain respect for the inviolate privacy of a jury-room. If trial lawyers could understand the method by which they arrive at their final announcement they would be far better equipped than by a study of the law for many years.

It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way.

“Well, we ought to give that boy something.”

“I don’t like the looks of that last witness.”

“That lawyer for the defendant was too smart.”

“But do you think the driver tried to cut him off?”

“He couldn’t have been in bed six weeks.”

“No man would stay in bed that long with a sore knee.”

“Oh, well, he only meant he was about the house.”

“That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital.”

“Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?”

“Well, let’s take another vote and see if we can’t get together.”

“I can’t stay here all day. I’ve got to close something important at four o’clock.”

“You’ll stay here if you have to; we want to get this settled right.”

Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view.

They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. They had better send out and ask the judge. No.

They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge’s desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision.

The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines.

“Don’t you know that neighborhood; all the cars speed up whenever they get there.”

“Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc.”

“No, I ain’t prejudiced against the railroad; I ain’t got nothing against the railroad.”

“Of course, we ain’t going to decide this case on sympathy or prejudice. But that boy’s Irish and he looks like he come of good honest people.”

“Vy, I don’t see no difference whether he is Irish—or Yiddish; vot ve vant is justice.”

“Now see here, my friend, if you think you’re going to make this a racial matter you’re mistaken. Just because that boy’s Irish you needn’t think he ought not to get nothing. You’re prejudiced, that’s what you are.”

“Oh, let’s get down to the evidence anyway; what we want is to decide.”

“Vel, the motorman vas Irish, vot you talking about?”

“Sure, but he had to say what he did. Didn’t he have to hold down his job with the company?”

The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures.

“The judge told us that the law was—”

He is interrupted.

“Oh, we don’t care so much about the law. What we want to do is to do what is right.”

Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion.

The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected.

The jury has spoken, the lawyer who has lost moves to set aside the verdict. The jury looks startled. Is it possible that after all that trial and all that deliberation the judge is going to upset it again and have the long trouble gone over. The judge denies the motion or takes it under advisement. Only on rare occasions does he set the verdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly against common sense. The theory of the law is that the verdict of a jury is a final judgment on the facts by the best judges of the facts. It will not lightly or for small reasons be interfered with.

The jury represents the opinion of the common or ordinary man—the vox populi. Twelve men picked at random are probably neither all capitalists nor all laborers. They are made up of a few of both, but the majority, if not all, are the small tradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, but their judgment is the judgment of mediocrity and mediocrity is what is wanted. The professional man, the expert, the specialist is needed for the special degree of administration, but for the determination of the actual right and justice, what is needed is the instinct of the ordinary man,—the plain ordinary common sense.

When the criminal says: “I stand a better chance with a jury”; when the civilian says: “If I had the wrong end of the stick give me a jury,” he is appealing not to the wrong side of the jury system, but to a quality which is not always recognized.

Law is an exact, definite statement of principles, absolute and apparently immutable. When a man on the street walks up to another and wantonly insults him, the law is, that the insulted party must turn and walk away. If the matter came before a jury they would never convict him for knocking the other down at once. The jury system is the mitigation of the law.