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Most defendants were arrested, tried, and sentenced (or acquitted) without a lawyer. This was almost always true in the petty courts and for small cases. Felonies were another matter. Many felony defendants, of course, hired attorneys; but many—perhaps most—could not afford this luxury. In many states, in the late nineteenth-century (California, for example, from 1872 on) there was a right to free counsel at a felony trial.bh (In other states, including Florida, there was no such right.) New York had a system of assigned counsel; the attorneys were not entitled to a fee except in murder cases. Assigned lawyers, we are told, always tried to wheedle some cash from the defendant or his friends. “If unsuccessful in this attempt they pay little attention to the case.”39 The modern system of public defenders is, essentially, a product of this century.

At the beginning of the century, trials tended to be quite short. They rarely lasted a day, and most were probably much shorter. Trials probably got longer and more complex over time, as more and more of them were conducted by lawyers. But they still went forward at what would be considered today a very snappy pace. In Alameda County, California, in the decade of the 1880s, the average length of trial was 1.5 days; the median length was 1.2.40 In other parts of the country, trials may have been even shorter. In Leon County, Florida (Tallahassee is the county seat), the Circuit Court sometimes handled up to six complete “trials” per day. The same jury sat for all of them. Most of these “trials” must have taken less than an hour.41

Over the years, there were subtle shifts in the relative powers of judge and jury. At the beginning of the century, jury instructions were really instructions: the judge often wrote them himself, and he tried to set out, as clearly as he could manage, what the law of the case was really all about. The language was often vivid and colloquial; the judge took care to show the jury how the law should or could apply to the concrete facts of the case. This continued to be the practice in some states. In the Lizzie Borden case, the judge’s charge to the jury took about an hour and a half. The judge, who commented freely on the evidence, seems to have written the instructions himself, though undoubtedly the attorneys made suggestions.42

These charges were useful and instructive. They were also dangerous. A judge was tempted to try to sway the jury, to bring in thoughts and ideas which were, to say the least, irrelevant. In the trial of Ann K. Simpson, the judge gave his view that the prosecution was overzealous, and had failed to prove a motive. The state had painted a dark picture of defendant, “but, when we examine its various features, they . . . fade away, one by one, and scarcely any color [is] ... left on canvas.” A few minutes later, the judge delivered this peroration: “The heart of woman is a well-spring of kindness. It sends forth its streams over this parched and withered earth, and causes it to bud and blossom and put forth the fruit of good works. Woman is by far the better portion of our race, and if our sex were only like her, different, far different, would be the condition of the world.” This had nothing to do with the case, of course, except for the fact that the defendant was a member of that “better portion.” 43

In other states, practice changed rather radically, perhaps in response to a sense of abuse and browbeating of juries. The judge lost his right to comment on the evidence. In Mississippi, he could only tell the jury about “principles” of law, and his instructions had to be in writing.44 In states like Mississippi, an upper court could reverse a lower court if the judge even dared to add or change anything orally in these instructions. 45 In California, another state in this camp, instructions became crabbed, gnomic, abstract.46 Plaintiff and defendant each submitted lists of suggested instructions. The judge chose the instructions he found legally most correct