Crime and Punishment in American History - Lawrence M. Friedman [163]
Clara Fallmer, age sixteen, was on trial for murder in Oakland in 1897. The case was a local sensation. Clara came to court every day veiled, dressed all in blue, her gloved hands clutching a bouquet of violets. Clara had shot and killed her lover, who had refused to marry her. Her hope lay in projecting an image of wounded innocence. The victim’s mother also appeared in the courtroom, “in deep mourning,” her voice “frequently broken with emotion.” All this tomfoolery, crafted by the lawyers, was designed to shape the case in terms of what people wanted to believe. In the event, Clara won: the jury acquitted her.72
It was from cases like this, too, that the average person absorbed what he or she knew about criminal justice. But what message did these cases broadcast? It was a curiously two-faced message. On the one hand, people learned about due process, about the rights of the defendant. They saw how carefully each stage of the case was prepared. They watched the lawyers battle each other like gladiators before the eyes of judge and jury. Nothing was hidden, secret, Star Chamber-like. The state seemed to have no great advantage over the defendant at the bar of justice; on the contrary, the rules seemed delicately balanced, scrupulous, rigidly fair.
This, at any rate, was what they thought they saw. Of course, it was only an illusion. The real work of the system was obscure, quiet, hidden from view; what they saw was a grotesque exception, a caricature. They saw something like the huge, bloated shapes, garishly colored, that one might see at a Mardi Gras, a carnival, an outdoor show. People saw that justice was real; but they also saw it as absurd.73
In short, they saw both more and less justice than the system actually provides. More in that the other face of justice—heartless, dry, efficient, uncaring-never reached their consciousness. Less in that the tricks, the tomfoolery, the loopholes, the lawyers’ machinations, had nothing to do with the staple work of the courts: the thousands of cases of larceny, assault, or drunkenness. They saw justice as a ham, a mountebank, a fool; the other face of justice, swift, callous, crude, was lost in the shadows.
Criminal Appeals
If the jury comes in with a verdict of not guilty, or if the judge dismisses the case, that ends the affair. The defendant “walks”—that is, he strolls out of the courtroom, free as the breeze. In the Anglo-American system, the prosecution has no right to appeal an acquittal, no matter how ludicrous it might seem, or how much it went against the weight of the evidence. bn Nor can the defendant ever be tried again for the same offense. That would be “double jeopardy”; federal and state constitutions specifically forbid this.bo
If the verdict at a trial is guilty, however, the defendant (through his lawyer) can file a motion asking for a new trial. The defendant may also ask the judge to set aside the verdict; once in a while, the judge obliges. Most of the time, of course, the judge sticks to his guns. At this point, the defendant has, and had, in every state, the right to appeal.
In some legal systems (but not ours), an appeals court goes over everything—facts, testimony—in effect, retrying the case. In American law, an appeals court only corrects “errors”; it does not rehash everything that went on at the trial. The convicted defendant (or his lawyer), on appeal,bp must be able to point out some technical flaw in the indictment, in the procedures followed, or in the way the trial was run. Did the judge allow forbidden bits of evidence? Did he keep proper evidence out? Did he give the jury erroneous instructions? 75
The law of criminal appeals was very complicated and technical. Some cases early in the nineteenth century, reflecting English practice, refused to hear complaints except about errors on the face of the record, which pretty much barred anything that went wrong at