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were unlikely actually to prejudice a jury. New rules of procedure—simpler, less technical, more streamlined—helped avoid trouble in the upper stories of the building. Most criminal appeals are affirmed, not reversed, as has long been the case. This is only to be expected. The flood of criminal appeals is not a historical accident. It is easy to find the causes. More free attorneys is one source. Another is the rapid expansions, especially in the 1950s, of due process rights. A third is the rights culture, which affects men in prison as well as the rest of society. If appeal is free, why not try it? There is little or nothing to lose. Hence, more marginal cases get appealed than, say, contract or tort cases; affirmances are thus exactly what one would expect.

To be sure, some situations are special. One is death-penalty cases. In many states, these are automatically appealed.121 In many states, too, they are particularly liable to get reversed, as we have seen (chapter 14). For a judge horrified at the thought of putting a fellow creature to death, even a fly speck on the record is enough to send the case back down.

18

GENDER AND JUSTICE

CRIMINAL JUSTICE IN THE TWENTIETH CENTURY HAS COME TO RECKON WITH women in new and different ways. We have already touched on some of the points. Women arrived on police forces, for example. We also traced changes in some crimes that had special impact on women, statutory rape and seduction, for example. In this chapter, we look at gender and justice more directly.

Women in the Courtroom

In the nineteenth century, women were in the courtroom as onlookers, victims, witnesses, or defendants. They ran no trials, served on no juries. Even a western state like Wyoming, where women had the right to vote for state officers before the Nineteenth Amendment, balked at putting women on juries. dy

In the twentieth century, the situation slowly, and somewhat grudgingly, changed. The Nineteenth Amendment (1920) gave women the right to vote; it did not automatically put them in the jury box, let alone at counsel’s table, or on the bench. A few states did move quickly to implement women’s rights. But others dawdled and lagged. To put women on juries meant that men had to rethink, to a degree, their notions of the nature and role of women. Some men were fearful of disruption in the home: “baby ... in a fury” with “mama ... on the jury.”2 Some states let women serve on juries but made it easy for them to wriggle out of the duty—much easier than for men. Among these states was Oregon (1921); the Oregon statute made it the “duty” of the person who served a jury summons “to inform every female person so served” of her right to beg off.3dz Early accounts often gave women jurors high marks. But male judges were still uncomfortable with the idea. One Pennsylvania court went to the heart of the matter: there was “no waiting-room for the women,” inadequate toilets, “no separate rooms to which women could retire,” and no beds except cots to sleep on.4

The bed problem was an obstacle because juries were sometimes sequestered, and, horror of horrors, what was to be done with a mixed jury under such circumstances? One writer suggested handling the overnight problem by putting “a woman bailiff in charge of the women, and a man bailiff in charge of the men,” with “partitions between members of the two sexes, while still keeping them together in the same room.”5 One California county came up with an ingenious, though rather questionable, solution in a case where a woman, Anna Manuel, went on trial for forgery. The court produced a jury made up entirely of women; after all, a mixed jury “would not be nice” if night sessions proved necessary.6 Another problem was that some cases were quite unsuitable for ladies. In Minnesota in 1927, local authorities, aware that cases of “carnal knowledge” were coming up, decided to exclude women; ladies, after all, would be deeply offended if they were forced to hear such things. An appeals court agreed.7

Some states simply made women exempt. In 1921, after the Nineteenth