Crime and Punishment in American History - Lawrence M. Friedman [161]
But, in fact, in the nineteenth century trial by jury was in process of slow decline. What tended to replace it, more and more, was the guilty plea. This trend began fairly early in the century, and snowballed. By 1900, in New York County, there were more than three times as many convictions in felony cases because of guilty pleas than there were convictions by judge or by jury.63
At least some of these pleas of guilty were not driven by remorse or hopelessness; some, beyond a doubt, reflected a “deal.” Plea bargaining would become pervasive in the twentieth century, but it certainly existed in the late nineteenth century, and perhaps even earlier. Plea bargaining has many shapes, but the essence is a deal between the defendant (with this lawyer, if he has one) and the prosecution team; occasionally the judge too plays a role. What exactly is the deal? The defendant pleads guilty. In return, the prosecution drops some charges, or knocks some down from felony to misdemeanor, or the prosecution promises to recommend probation, or a lighter sentence; it all depends. In any event, plea bargaining shifts the focus from the courtroom, and the lay jury, to lawyers and prosecutors. It is part of the trend to professionalize and rationalize criminal justice, which we have noted so frequently before.
Evidence of plea bargaining in the late nineteenth century is quite unmistakable.bm For example, in Alameda County, California, in 1880, Albert McKenzie was charged with embezzlement. He was an agent for a sewing-machine company, who collected $52.50 in gold coin, and pocketed the money. He pleaded not guilty. The judge fixed a date for the trial: February 6, 1881. On that day, McKenzie, his lawyer, and the district attorney met. McKenzie withdrew his plea and pleaded guilty to a misdemeanor—embezzling an amount less than fifty dollars. The district attorney, instead of shouting that this was nonsense, that McKenzie either stole more than fifty dollars or nothing at all, simply voiced his agreement, and the deal became official.65
In general, Friedman and Percival found that 14 percent of all defendants in this county between 1880 and 1910 changed their pleas from not guilty to guilty. Half of these pleaded guilty to a lesser charge, or fewer charges—unmistakably the sign of a deal. Almost certainly, these figures understate the actual amount of plea bargaining. There was also, beyond a doubt, a great deal of “implicit” bargaining.66 Defendants sometimes plead guilty without an actual overt agreement; they expect the state will reward them for saving the trouble and expense of a trial; no words need to be spoken. In the late 1880s, prisoners at Folsom Prison, in California, were asked why they had pleaded guilty, if they did. Out of a group of 330 who had so pleaded, 120 said they wanted to “mitigate the penalty”—a little more than one out of three, if we can believe what they said.67
The Theater of the Law
At the top of the pyramid of trials stood a few select cases of great drama and great theater. Some were famous and important because the crime was especially heinous, lurid, or extreme: the great murder trials, the headline-making trials, the sensations of the courtroom. We have mentioned quite a few, for example, the 1871 trial in San Francisco of Laura Fair, charged with killing her lover, A. P. Crittenden.68 In other instances, what set the case apart was the identity of victim or defendant. There was, for example, the trial of Charles Guiteau, the deranged office-seeker who shot President Garfield in 1881.69
It was in those cases that lawyers outdid themselves in oratory and in maneuvering; these were the trials where the art of cross-examination was at its height. These were the trials where witnesses sobbed and women fainted on the stand. These were trials of high drama. Most were cases of murder, the queen of crimes. Death was in the air, the victim’s ghost and the shadow of the gallows falling across the face of the prisoner.