Crime and Punishment in American History - Lawrence M. Friedman [156]
To the layman, voir dire often seemed a pointless ordeal, a ritual of ridiculous questions. The Oakland Tribune mocked the process in 1875: “How long since your youngest child had the whooping-cough?” or “How would you prefer to die—with the jaundice, or to fall off a church?”33 It was, nonetheless, a serious business, especially in hotly contested and sensational cases. A person’s life could depend on who served and who did not. In the famous trial of eight radicals in Chicago, for (allegedly) throwing a bomb and killing policemen in Haymarket Square, it took twenty-one days to pick a jury; and 981 men were processed before a jury of twelve was finally seated. At that, the court had to use heroic measures. The first eight days yielded not a single juror. A special bailiff was appointed to get potential jurors by hook or by crook; and he did his job, though in a fairly high-handed way. The problem was that, in the atmosphere of frenzy and hysteria over the “anarchists,” it was almost impossible to find anyone without some opinion. In the event, the “unbiased” jury did not seem that unbiased; seven out of eight defendants were sentenced to death.34
As we have said, the dramatic shape of a trial, in broad outline, remained much the same during the century. The role of the lawyers, if there were lawyers, was to produce evidence, to cross-examine, and, at the end of the case, to sum up their case to the jury. Their speeches, especially in the great cases, were often flamboyant flights of purple prose. Some lawyers pulled out all the stops. The prosecution hoped to rouse the jury to rage and indignation, with tears of pity for the victim; the defender, calling loudly for sympathy and mercy, heaped scorn on the prosecution’s case.
There are countless examples. To take just one—the trial of Ann K. Simpson, a young woman of Fayetteville, North Carolina, on trial for murdering her rich old husband. She was accused of slipping arsenic into his coffee and his “syllabub.” The evidence was strong, but circumstantial, and her lawyers rose to heights of purple eloquence: she was a young innocent, “almost a child, fair and beautiful,” “shivering amidst the pitiless peltings of the storm of adversity,” a “poor simple-hearted girl,” with a “guileless heart,” a “lamb in its innocent gambols.” They spoke of Ann’s “devoted mother,” who “pillows her head upon her bosom as she lies almost lifeless in the prisoner’s box.” The very idea of the crime was a slander, too, on North Carolina: a “crime so monstrous, so revolting, so unnatural” seemed almost impossible in that fair state. “Instances ... may have occurred in other lands, doubtless they have ... but, thank God, hitherto in North Carolina . . . the land of morality, whose whole scope of country is dotted with the temples of a pure religion . . . hitherto in North Carolina it has been accused against no one.” The prosecution had its own rhetorical turns; but in this case at least, it was hopelessly outemoted. The jury acquitted.35
In the course of the century, there were important changes in trial procedure that affected the balance of power between state and defendant, judge and jury. For one thing, the defendant became, for the first time, a courtroom player at his own trial. In England, a defendant could neither act as a witness nor take the stand in his own defense. This was doctrine in the United States as well. No defendant was permitted to testify under oath, bg although he could give an unsworn statement to the jury without cross-examination. In the latter part of the century, the law was “revolutionized.”36 Beginning with Maine, in 1864, the federal government and every state