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Conditions of Pre-Trial Bail in Texas

Often, persons accused of a crime find themselves – before they have their cases decided by a judge or a jury, before they enter a plea or otherwise resolve their cases – being “punished” by the conditions set on their bonds during pre-trial release. These people post a bond, either in cash or through a bonding company, and then are required by the court to observe a number of restrictions on their liberty while their case is pending. In many counties, including Harris County and Montgomery County in Texas, people accused of crimes, but “presumed innocent,” are still subjected to “random drug tests,” home arrest, monitoring, and often ordered to report to “pre-trial” authorities or risk having their bond revoked and put in jail until their case is resolved.

My clients often ask me how this can possibly be “legal” or “fair,” and I have to answer that it is, probably, “legal,” but that I don’t think it’s “fair.”

The Texas Constitution guarantees that “[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident.” Tex. Const. art. I, § 11; see Tex.Code Crim. Proc. Ann. art. 1.07 (West 1977). The constitution also permits the denial of bail in certain noncapital cases when the accused has a prior record. Tex. Const. art. I, § 11a. Unless those conditions apply, a defendant is entitled to a reasonable pre-trial bond to be released from jail. See U.S. Const. amend. VIII (excessive bail shall not be required); Tex. Const. art. I, § 13 (same); Tex.Code Crim. Proc. Ann. art. 1.09 (West 1977) (same). Ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.-Austin 2002, pet. ref’d)

In Texas, pursuant to the Code of Criminal Procedure, the amount of bail required in any case is within the discretion of the court, judge, magistrate, or officer taking the bail, subject to the following rules:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005).

In addition, appellate courts have held that the following factors may also be considered: the accused’s work record, family and community ties, length of residency, prior criminal record (if any), and any aggravating circumstances alleged to have been involved in the offense the accused is charged with committing. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981).

So, it is apparent that the Texas Code of Criminal Procedure article 17.15 is a legislative effort to implement the constitutional right to bail. 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 16.51 (2d ed.2001) (footnote omitted) (hereafter “Dix and Dawson”); Tex.Code Crim. Proc. Ann. art. 17.15 (West Supp. 2002). Article 17.15 commits the setting of bail to the discretion of the trial court or magistrate, but sets forth five rules that, together with the constitution, govern the exercise of that discretion. Tex.Code Crim. Proc. Ann. art. 17.15. Bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, but not so high as to make it an instrument of oppression. Id. art. 17.15(1), (2); see Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977) (primary purpose of pretrial bail is to secure presence of defendant). The nature of the offense and the circumstances under which it was committed are factors to be considered in setting bail, as is the future safety of the community and the victim of the alleged offense. Tex.Code Crim. Proc. Ann. art. 17.15(3), (5). The defendant’s ability to make bail also must be considered, but is not of itself controlling. Id. art. 17.15(4); Ex parte Gentry, 615 S.W.2d 228, 231 (Tex.Crim.App.1981). In applying article 17.15, consideration may be given to such evidentiary matters as the defendant’s work record, ties to the community, previous criminal record, and record of appearances in the past. See Ex parte Williams, 619 S.W.2d 180, 183 (Tex.Crim.App.1981); Gentry, 615 S.W.2d at 231; Ex parte Parish, 598 S.W.2d 872, 873 (Tex.Crim.App. 1980); Ex parte Keller, 595 S.W.2d 531, 533 (Tex.Crim.App.1980).

The burden is on the accused to prove that bail is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim. App.1981). An appellate court will review the trial court’s ruling for an abuse of discretion. Id. at 850. Unless one can show that the trial court judge “abused” their “discretion” in setting the bond amount or the conditions, the appellate court will sustain the trial court’s ruling.

The primary purpose of an appearance bond is to secure the presence of the accused at trial on the offense charged. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). Thus, the amount of bail must be high enough to give reasonable assurance that the accused will appear as required. Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. 1980). However, while bail should be sufficiently high to give reasonable assurance that the accused will appear, the power to require bail should not be used as an instrument of oppression. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). This occurs when the trial court sets bail at an amount “for the express purpose of forcing appellant to remain incarcerated” pending trial or appeal. See Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.-Austin 1987, no pet.) (per curiam).

Also, the conditions of bonds can be “excessive,” unless they comply with certain statutory standards and there is an evidentiary basis and justification for them.

In setting bail, a balance must be struck between the defendant’s presumption of innocence and the State’s interest in assuring the defendant’s appearance at trial. See Simpson, 77 S.W.3d at 896 (citing Balboa v. State, 612 S.W.2d 553, 557 (Tex.Crim.App.1981)). Although both the federal and state constitutions permit the denial of pretrial bail under certain circumstances, when bail is available it is excessive if set in an amount greater than is reasonably necessary to satisfy the government’s legitimate interests. See United States v. Salerno, 481 U.S. 739, 753-54, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (construing Eighth Amendment); 41 Dix and Dawson §§ 16.11, .12 (discussing federal and state constitutional right to bail).

In reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh’g). But an abuse of discretion review requires more of the appellate court than simply deciding that the trial judge did not rule arbitrarily or capriciously. Id. at 392. The appellate court must instead measure the trial court’s ruling against the relevant criteria by which the ruling was made. Id.

How to do you challenge an excessive bond or overly onerous pre-trial conditions of the bond?

In Texas, a pre-trial writ of habeas corpus is appropriate only in very limited circumstances. The writ is permitted to challenge the State’s power to restrain a defendant, the manner of pre-trial restraint (i.e., the denial or conditions of bail), or certain issues that would bar prosecution or conviction. Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). If one considers that the conditions of bond are “restraints” on a defendant’s liberty, then one would argue that a defendant may challenge conditions on pre-trial bail through a writ of habeas corpus.

In Texas in 1999, magistrates were given general authority to impose reasonable conditions on pre-trial bail. Ex parte Anderer, 61 S.W.3d 398, 401 (Tex. Crim. App. 2001). “To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Tex. Code Crim. Proc. art. 17.40(a). In setting pre-trial bail, a magistrate must consider the nature and circumstances of the alleged offense and the safety of the alleged victim and the community, and the magistrate may impose reasonable conditions related to their safety. Anderer, 61 S.W.3d at 405-06.

A condition of pre-trial bail will be upheld if it meets three criteria: (1) it must be reasonable; (2) it must be made to secure the defendant’s presence at trial; and (3) it must be related to the safety of the alleged victim or the community. Anderer, 61 S.W.3d at 401.

Again, in the case of pre-trial conditions of bond, an appellate court reviews a trial court’s pre-trial bail decision for an abuse of discretion. Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex. Crim. App. 1981). The applicant bears the burden to show that the trial court abused its discretion in setting the amount of bail or imposing a specific condition. Id.; Ex parte Anunobi, 278 S.W.3d 425, 528 (Tex. App.-San Antonio 2008, no pet). And, again, as with the amount of the bond and the “excessive bond” argument, in reviewing a trial court’s ruling for an abuse of discretion, an appellate court will not intercede as long as the trial court’s ruling is at least within the zone of reasonable disagreement. Cooley v. State, 232 S.W.3d 228, 234 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).

However, the conditions of bail “may not impinge unreasonably upon rights guaranteed by the Constitution.” Anderer, 61 S.W.3d at 402.

Even before the statutes were amended to allow specific conditions, it was well established that courts have the inherent power to place restrictive conditions on the granting of bail. Estrada v. State, 594 S.W.2d 445, 446 (Tex. Crim.App. [Panel Op.] 1980). The trial court’s discretion to set the conditions of bail is not, however, unlimited. As noted regarding the amount of bail, a condition of pre-trial bail is judged by three criteria: it must be reasonable; it must be to secure the defendant’s presence at trial; and it must be related to the safety of the alleged victim or the community. Ex parte Anderer, 61 S.W.3d 398, 401-02 (Tex.Crim.App.2001) (making a distinction between pre-trial bail and bail pending appeal); see TEX.CODE CRIM. PROC. ANN. art. 17.40(a) (Vernon Supp.2008) (authorizing trial court to impose “any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community” in order to “secure a defendant’s attendance at trial”); 428*428 see also Burson v. State, 202 S.W.3d 423, 425-26 (Tex.App.-Tyler 2006, no pet.) (interpreting § 17.40(a) to mean a single bail condition may be solely related to the safety of the victim or community, and need not necessarily relate to all three criteria mentioned in Anderer).

In that respect, the courts must be mindful that one of the purposes of release on bail pending trial is to prevent the infliction of punishment prior to conviction. Anderer, 61 S.W.3d at 405. Again, however, it must be emphasized that the primary purpose for setting a bond is to secure the defendant’s presence in court. Ex parte Garcia, 100 S.W.3d 243, 245 (Tex.App.-San Antonio 2001, no pet.). Home confinement and electronic monitoring are expressly permitted conditions of pre-trial bail in Texas. TEX.CODE CRIM. PROC. ANN. art. 17.44(a)(1) (Vernon 2005).

In cases involving minor victims of sex offenses, or intoxication offenses, the conditions of bond can be quite onerous, requiring intensive monitoring of the defendant and his actions and sometimes, in DWI cases, severely restricting the defendant’s right to operate an automobile before trial.

When considering conditions of bail, one should apply the standards discussed above and, if they are thought to be excessive, or to unreasonably restrain the liberty of the (presumed innocent) defendant, and be prepared to show how the conditions are not related to securing the defendant’s presence in court, to safeguard a victim, or to protect the community.

Selected Texas Statutes

Texas Code of Criminal Procedure

Art. 17.29. ACCUSED LIBERATED. (a) When the accused has given the required bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty.

(b) Before releasing on bail a person arrested for an offense under Section 42.072, Penal Code, or a person arrested or held without warrant in the prevention of family violence, the law enforcement agency holding the person shall make a reasonable attempt to give personal notice of the imminent release to the victim of the alleged offense or to another person designated by the victim to receive the notice. An attempt by an agency to give notice to the victim or the person designated by the victim at the victim’s or person’s last known telephone number or address, as shown on the records of the agency, constitutes a reasonable attempt to give notice under this subsection. If possible, the arresting officer shall collect the address and telephone number of the victim at the time the arrest is made and shall communicate that information to the agency holding the person.

(c) A law enforcement agency or an employee of a law enforcement agency is not liable for damages arising from complying or failing to comply with Subsection (b) of this article.

(d) In this article, “family violence” has the meaning assigned by Section 71.004, Family Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 17.38. RULES APPLICABLE TO ALL CASES OF BAIL. The rules in this Chapter respecting bail are applicable to all such undertakings when entered into in the course of a criminal action, whether before or after an indictment, in every case where authority is given to any court, judge, magistrate, or other officer, to require bail of a person accused of an offense, or of a witness in a criminal action.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 17.40. CONDITIONS RELATED TO VICTIM OR COMMUNITY SAFETY. (a) To secure a defendant’s attendance at trial, a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.

(b) At a hearing limited to determining whether the defendant violated a condition of bond imposed under Subsection (a), the magistrate may revoke the defendant’s bond only if the magistrate finds by a preponderance of the evidence that the violation occurred. If the magistrate finds that the violation occurred, the magistrate shall revoke the defendant’s bond and order that the defendant be immediately returned to custody. Once the defendant is placed in custody, the revocation of the defendant’s bond discharges the sureties on the bond, if any, from any future liability on the bond. A discharge under this subsection from any future liability on the bond does not discharge any surety from liability for previous forfeitures on the bond.

Added by Acts 1999, 76th Leg., ch. 768, Sec. 1, eff. Sept. 1, 1999.

Amended by: Acts 2007, 80th Leg., R.S., Ch. 1113, Sec. 4, eff. January 1, 2008.

Art. 17.43. HOME CURFEW AND ELECTRONIC MONITORING AS CONDITION. (a) A magistrate may require as a condition of release on personal bond that the defendant submit to home curfew and electronic monitoring under the supervision of an agency designated by the magistrate.

(b) Cost of monitoring may be assessed as court costs or ordered paid directly by the defendant as a condition of bond.

Added by Acts 1989, 71st Leg., ch. 374, Sec. 4, eff. Sept. 1, 1989.

Art. 17.44. HOME CONFINEMENT, ELECTRONIC MONITORING, AND DRUG TESTING AS CONDITION. (a) A magistrate may require as a condition of release on bond that the defendant submit to:

(1) home confinement and electronic monitoring under the supervision of an agency designated by the magistrate; or

(2) testing on a weekly basis for the presence of a controlled substance in the defendant’s body.

(b) In this article, “controlled substance” has the meaning assigned by Section 481.002, Health and Safety Code.

(c) The magistrate may revoke the bond and order the defendant arrested if the defendant:

(1) violates a condition of home confinement and electronic monitoring;

(2) refuses to submit to a test for controlled substances or submits to a test for controlled substances and the test indicates the presence of a controlled substance in the defendant’s body; or

(3) fails to pay the costs of monitoring or testing for controlled substances, if payment is ordered under Subsection (e) as a condition of bond and the magistrate determines that the defendant is not indigent and is financially able to make the payments as ordered.

(d) The community justice assistance division of the Texas Department of Criminal Justice may provide grants to counties to implement electronic monitoring programs authorized by this article.

(e) The cost of electronic monitoring or testing for controlled substances under this article may be assessed as court costs or ordered paid directly by the defendant as a condition of bond.

Added by Acts 1989, 71st Leg., ch. 785, Sec. 4.03, eff. Sept. 1, 1989. Renumbered from art. 17.42 by Acts 1991, 72nd Leg., ch. 16, Sec. 19.01(3), eff. Aug. 26, 1991. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(46), eff. Sept. 1, 1991.

Amended by: Acts 2009, 81st Leg., R.S., Ch. 163, Sec. 1, eff. September 1, 2009.

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What to do if you get stopped for DWI

So, You’re Stopped for Driving While Intoxicated. What do you do?

First, and foremost, act politely and with respect toward the officer. Keep in mind that officers must take care for their own safety during a traffic stop, and it is important that the officer understand that you are not a threat to their safety.

Activate your emergency flashers when you notice the officer wants to pull you over. Pull off the roadway safely.

Locate your driver’s license and proof of insurance and then keep your hands on the steering wheel. Answer the officer’s questions clearly and to the point. Don’t argue and don’t explain. If you can get by with just a ticket, that’s the best of the worst alternatives.

When you are stopped by a law enforcement officer and they ask you whether you’ve been “drinking,” and then they ask you to step out of your vehicle, the OFFICER ALREADY THINKS THAT YOU’RE DRIVING WHILE INTOXICATED. The officer has already stopped you for another reason – speeding, unsafe lane change, “failure to maintain single lane,” or some other “traffic violation.” The officer will then likely note in his report that you “fumbled” for your license or insurance card, that your eyes were “bloodshot” or “glassy,” and that he smelled the “odor of an alcoholic beverage.” Once the officer forms these opinions, you are asked to exit your vehicle AND THE INVESTIGATION OF DRIVING WHILE INTOXICATED HAS COMMENCED.

You need to protect yourself at this point, and the only thing that can protect your interest is for you to decide to remain silent. Do not volunteer any information. Remain polite and do not argue.

If the officer asks if you’ve been drinking, and then asks you to get out of your vehicle, you are more than likely going to jail. Everything that happens after you get out of your vehicle is designed to bolster the officer’s opinion that you are intoxicated and to provide evidence to support the criminal charge against you.

The best advice I can give you when you are stopped by a law enforcement officer and asked to take a breath test or a field sobriety test is this: just say “no, thank you, officer.”

While it may be intimidating, and while you may have your license suspended, and while the officer may try to tell you that if you “pass” these tests he will “let you go,” you should NOT participate in any of the field sobriety tests or consent to a breath or blood test. The chances of you passing the field sobriety tests are low. Remember – the defense of your DWI case starts when you’re asked to get out of your vehicle. If you GIVE the officer the evidence against you, you are many times more likely to be convicted of DWI. Just say “no, thank you, officer.”

The officer will likely ask you to take a number of field sobriety tests (and those are discussed elsewhere on this site). You should politely decline.

You have a right to decline to take these tests and you should exercise that right. Unlike refusing a breath test, the DPS cannot move to administratively suspend your license if you refuse to participate in these field tests. Remember, once the officer has asked if you’ve been drinking and asked you to step out of the vehicle, you are likely going to jail, anyway. Just say “no, thank you, officer,” when asked to perform any of these tests.

The best way to defend against the results of the Standard Field Sobriety Tests and the breath test is for the accused driver to say “no, thank you, officer,” when they are asked to take those tests. (In fact, I’ve devoted an entire website of information to a discussion of defending DWI cases. You can visit it at No Thank You Officer )If there are no results for the officer to point to, then the jury will be left with less evidence upon which to base a possible “guilty” verdict and you can defend yourself more effectively against an unfair and unfounded charge of driving while intoxicated.

In other words, be polite and be patient. Keep in mind that “you can beat the rap, but you can’t beat the ride.” The number of people who “talk their way out” of a DWI arrest, or who pass the Standard Field Sobriety Tests, is very low. More than likely, you will NOT pass those tests, even if you’re not “driving while intoxicated.”

You can decide to “take your chances.” But, if you want the best chance of clearing your name of a DWI charge, just say “no, thank you, officer.”

For more information about defending driving while intoxicated (DWI) cases, the Administrative License Revocation procedure, and other issues involved in this very serious criminal offense, please visit No Thank You Officer . If you still have questions, please feel free to contact us, anytime.

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Clarence Darrow, “How to Pick A Jury” (1936)

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

The audience that storms the box-office of the theater to gain entrance to a sensational show is small and sleepy compared with the throng that crashes the courthouse door when something concerning real life and death is to be laid bare to the public.

Everyone knows that the best portrayals of life are tame and sickly when matched with the realities. For this reason, the sophisticated Romans were wont to gather at the Colosseum to feast their eyes on fountains of real blood and await breathlessly the final thrust. The courtroom is a modern arena in which the greatest thrills follow closely on each other. If the combat concerns human life, it presents an atmosphere and setting not unlike those cruel and bloody scenes of ancient Rome. The judge wears the same flowing robe with all the dignity and superiority he can command. This sets him apart from his fellow-men, and is designed to awe and intimidate and to impress the audience with seeming wisdom oftener than with kindliness and compassion.

One cannot help wondering what happens to the pomp and pretense of the wearer while the cloak is in the wash, or while changing into a maturer, more monarchial mantle, as his bench becomes a throne, or when he strolls along the street in file with the “plain clothes” people.

When court opens, the bailiff intones some voodoo singsong words in an ominous voice that carries fear and respect at the opening of the rite. The courtroom is full of staring men and women shut within closed doors, guarded by officials wearing uniforms to confound the simple inside the sacred precinct. This dispels all hope of mercy to the unlettered, the poor and helpless, who scarcely dare express themselves above a whisper in any such forbidding place.

The stage, the arena, the court are alike in that each has its audience thirsting to drink deeply of the passing show. Those playing the parts vie for success and use whatever skill and talent they possess. An actor may fumble his lines, but a lawyer needs to be letter-perfect; at least, he has to use his wits, and he may forget himself, and often does, but never for a moment can he lose sight of his client.

Small wonder that ambitious, imaginative youths crowd the profession of law. Here, they feel, they themselves will find the opportunity to play a real part in the comedies as well as the tragedies of life. Everyone, no matter how small his chance may be, tries to hold the center of some stage where the multitudes will scan his every move. To most lads it seems as though the courts were organized to furnish them a chance to bask in the public eye. In this field the adventure of life will never pall, but prove interesting, exciting and changeful to the end. Not only will he have the destinies of men to protect and preserve, but his own standing and success to create.

If it is a real case, criminal or civil, it usually is tried by a jury with the assistance and direction of the judge. In that event, every moment counts, and neither the lawyers nor the audience, or even the court, goes to sleep. If it is a criminal case, or even a civil one, it is not the law alone or the facts that determine the results. Always the element of luck and chance looms large. A jury of twelve men is watching not only the evidence but the attitude of each lawyer, and the parties involved, in all their moves. Every step is fraught with doubt, if not mystery.

Selecting a jury is of the utmost importance. So far as possible, the lawyer should know both sides of the case. If the client is a landlord, a banker, or a manufacturer, or one of that type, then jurors sympathetic to that class will be wanted in the box; a man who looks neat and -trim and smug. He will be sure to guard your interests as he would his own. His entire environment has taught him that all real values are measured in cash, and he knows no other worth. Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.

Lawyers are just as carefully concerned about the likes and dislikes, the opinions and fads of judges as of jurors. All property rights are much safer in the hands of courts than of jurors. Every lawyer who represents the poor avoids a trial by the court.

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called “twelve men, good and true.” In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. Understanding of all this cannot be obtained too bluntly. It usually requires finesse, subtlety and guesswork. Involved in it all is the juror’s method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence and origin.

To the ordinary observer, a man is just a man. To the student of life and human beings, every pose and movement is a part of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror’s words and manner of speech and, in fact, hastily and cautiously “size him up” as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word “justice” has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his malting, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror’s bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do of the personality and the man. There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his most vital views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

It is obvious that if a litigant discovered one of his dearest friends in the jury panel he could make a close guess as to how certain facts, surrounding circumstances, and suppositions would affect his mind and action; but as he has no such acquaintance with the stranger before him, he must weigh the prospective juror’s words and manner of speech and, in fact, hastily and cautiously “size him up” as best he can. The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word “justice” has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer’s idea of justice is a verdict for his client, and really this is the sole end for which he aims.

In spite of the power that the courts exercise over the verdict of the jury, still the finding of the twelve men is very important, sometimes conclusive. It goes without saying that lawyers always do their utmost to get men on the jury who are apt to decide in favor of their clients. It is not the experience of jurors, neither is it their brain power that is the potent influence in their decisions. A skillful lawyer does not tire himself hunting for learning or intelligence in the box; if he knows much about man and his making, he knows that all beings act from emotions and instincts, and that reason is not a motive factor. If deliberation counts for anything, it is to retard decision. The nature of the man himself is the element that determines the juror’s bias for or against his fellow-man. Assuming that a juror is not a half-wit, his intellect can always furnish fairly good reasons for following his instincts and emotions. Many irrelevant issues in choosing jurors are not so silly as they seem. Matters that apparently have nothing to do with the discussion of a case often are of the greatest significance.

In the last analysis, most jury trials are contests between the rich and poor. If the case concerns money, it is apt to be a case of damages for injuries of some sort claimed to have been inflicted by someone. These cases are usually defended by insurance companies, railroads, or factories. If a criminal case, it is practically always the poor who are on trial. The most important point to learn is whether the prospective juror is humane. This must be discovered in more or less devious ways. As soon as “the court” sees what you want, he almost always blocks the game. Next to this, in having more or less bearing on the question, is the nationality, politics, and religion of the person examined for the jury. If you do not discover this, all your plans may go awry. Whether you are handling a damage suit, or your client is charged with the violation of law, his attorney will try to get the same sort of juror.

Let us assume that we represent one of “the underdogs” because of injuries received, or because of an indictment brought by what the prosecutors name themselves, “the state.” Then what sort of men will we, seek? An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And do not, please, accept a prohibitionist; he is too solemn and holy and dyspeptic. He knows your client would not have been indicted unless he were a drinking man, and anyone who drinks is guilty of something, probably much worse than he is charged with, although it is not set out in the indictment. Neither would he have employed you as his lawyer had he not been guilty.

I have never experimented with Christian Scientists; they are much too serious for me. Somehow, solemn people seem to think that pleasure is wicked. Only the gloomy and dyspeptic can be trusted to convict. Shakespeare knew: “Yon Cassius has a lean and hungry look; he thinks too much; such men are dangerous.” You may defy all the rest of the rules if you can get a man who laughs. Few things in this world are of enough importance to warrant considering them seriously. So, by all means, choose a man who laughs. A juror who laughs hates to find anyone guilty. Never take a wealthy man on a jury. He will convict, unless the defendant is accused of violating the anti-trust law, selling worthless stocks or bonds, or something of that kind. Next to the Board of Trade, for him, the penitentiary is the most important of all public buildings. These imposing structures stand for capitalism. Civilization could not possibly exist without them. Don’t take a man because he is a “good” man; this means nothing. You should find out what he is good for. Neither should a man be accepted because he is a bad sort. There are too many ways of being good or bad. If you are defending, you want imaginative individuals. You are not interested in the morals of the juror. If a man is instinctively kind and sympathetic, take him.

Then, too, there are the women. These are now in the jury box. A new broom sweeps clean. It leaves no speck on the floor or under the bed, or in the darkest comers of life. To these new jurors, the welfare of the state depends on the verdict. It will be so for many years to come. The chances are that it would not have made the slightest difference to the state if all cases had been decided the other way. It might, however, make a vast difference to the unfortunates facing cruel, narrow-minded jurors who pass judgment on their fellow-men. To the defendants it might have meant the fate of life rather than death.

But what is one life more or less in the general spawning? It may float away on the tide, or drop to the depths of oblivion, broken, crushed and dead. The great sea is full of embryo lives ready to take the places of those who have gone before. One more unfortunate lives and dies as the endless stream flows on, and little it matters to the wise judges who coldly pronounce long strings of words in droning cadence; the victims are removed, they come and go, and the judges keep on chanting senseless phrases laden with doom upon the bowed heads of those before them. The judge is as unconcerned about the actual meaning of it all as the soughing wind rustling the leaves of a tree just outside the courthouse door.

Women still take their new privilege seriously. They are all puffed up with the importance of the part they feel they play, and are sure they represent a great step forward in the world. They believe that the sex is co-operating in a great cause. Like the rest of us, they do not know which way is forward and which is backward, or whether either one is any way at all. Luckily, as I feel, my services were almost over when women invaded the jury box.

A few years ago I became interested in a man charged with selling some brand of intoxicant in a denatured land that needed cheering. I do not know whether he sold it or not. I forgot to ask him. I viewed the case with mixed feelings of pity and contempt, for as Omar philosophized, I wonder often what the vintners buy one-half so precious as the stuff they sell.” When I arrived on the scene, the courtroom looked ominous with women jurors. I managed to get rid of all but two, while the dismissed women lingered around in the big room waiting for the victory, wearing solemn faces and white ribbons. The jury disagreed. In the second trial there were four women who would not budge from their seats or their verdict. Once more I went back to the case with distrust and apprehension. The number of women in the jury box had grown to six. All of them were unprejudiced. They said so. But everyone connected with the case was growing tired and skeptical, so we concluded to call it a draw. This was my last experience with women jurors. I formed a fixed opinion that they were absolutely dependable, but I did not want them.

Whether a jury is a good one or a bad one depends on the point of view. I have always been an attorney for the defense. I can think of nothing, not even war, that has brought so much misery to the human race as prisons. And all of it so futile!

I once spent a winter on the shores of the Mediterranean Sea. In front of my windows, four fishermen were often wearily trudging back and forth, and slowly dragging a long net across the sand. When it was safely landed, a few small flopping fish disclosed the results of their labors. These were scattered dying on the beach, while the really worth-while fishes were left in the sea. It somehow reminded me of our courts and juries, and other aims and efforts of optimistic men, and their idle undertakings and disheartening results.

Judges and jurors are like the rest of humans. Now and then some outstanding figures will roll up their sleeves, as it were, and vigorously set to work to reform the courts and get an efficient administration of justice. This will be ably seconded by the newspapers, lashing courts and jurors, past, present and prospective, into a spasm of virtue that brings down the innocent and guilty together, assuming always that there are innocent and guilty. Then, for a time, every defendant is convicted; and soon the campaign reaches the courts; after ruining a few lives and reputations, the frenzy is over, and life goes on smoothly and tranquilly as before.

When I was a boy in the country, one of the standard occupations was whittling. It became as mechanical as breathing. Since then I have decided that this is as good a way to live as any other. Life depends on the automatic taking in and letting out of breath, but in no way is it lengthened or made happier by deep thinking or wise acting. The one big word that stands over courts and other human activities is FUTILITY.

The courts may be unavailing, lawyers stupid, and both as dry as dust, but the combination makes for something interesting and exciting, and it opens avenues that seem to lead somewhere. Liberty, lives, fortunes often are at stake, and appeals for assistance and mercy rend the air for those who care to hear. In an effort to help, often a casual remark may determine a seemingly vital situation, when perhaps the remark, of all the palaver, was the least important one breathed forth. In all questions men are frequently influenced by some statement which, spoken at the eventful time, determines fate. The most unforeseen, accidental meetings sometimes result in seemingly new and strangely fateful family lines. In fact, all that occurs in life is an endless sequence of events resulting from the wildest chance.

Amongst the twelve in a jury box are all degrees of alertness, all sorts of ideas, and a variety of emotions; and the lawyers, too, are important factors in the outcome. They are closely observed by the jurors. They are liked or disliked; mayhap because of what they say, or how they speak, or pronounce their words, or part their hair. It may be that a lawyer is disliked because he talks too little or too much, more often the latter. But a lawyer of subtlety should know when to stop, and when to go on, and how far to go. As a rule, he must not seem to be above the juror, nor below him. He must not too obviously strive for effect. He often meets baffling situations not easily explained. Sometimes it is better for him to talk of something else. Explanations must not be too fantastic or ridiculous. It does no harm to admit the difficulty of the situation, to acknowledge that this circumstance or that seems against him. Many facts point to guilt, but in another light these facts may appear harmless.

Lawyers are apt to interpret deeds and motives as they wish them to appear. As a matter of fact, most actions are subject to various inferences, sometimes quite improbable, but nonetheless true. Identifications show common examples of mistakes. Many men are in prison and some are sent to death through mistaken identifications. One needs but recall the countless errors he himself has made. How many have met some person whom they believed to be an old-time friend, and have found themselves greeting a total stranger? This is a common mistake made in restaurants and other public places. Many identifications in court are made from having seen a person but once, and under conditions not critical. Many are made from descriptions and photographs, and urged on by detectives, lawyers, and others vitally interested in the results. From all of this it is easy to see that many are convicted who are guiltless of crime. In situations of strong agitation, acquittals are rare, and sentences made long and barbarous and inhuman.

The judge is, of course, an important part of the machinery and administration of the court. Like carpenters and lawyers, brick-layers and saloon-keepers, they are not all alike. No two of them have the same fitness for their positions. No two have the same education; no two have the same natural understanding of themselves and their fellow-man, or are gifted with the same discernment and balance.

Not that judges are lacking in knowledge of law. The ordinary rules for the administration of law are rather simple and not difficult to follow. But judges should be students of life, even more than of law. Biology and psychology, which form the basis of understanding human conduct, should be taken into account. Without a fair knowledge of the mechanism of man, and the motives and urges that govern his life, it is idle to venture to fathom a situation; but with some knowledge, officers and the public can be most useful in preserving and protecting those who most need such help. The life of almost any unfortunate, if rightly understood, can be readjusted to some plan of order and system, instead of left to drift on to ruin, the victim of ignorance, hatred and chance.

If the physician so completely ignored natural causes as the lawyers and judges, the treatment of disease would be relegated to witchcraft and magic, and the dungeon and rack would once more hold high carnival in driving devils out of the sick and afflicted. Many of the incurable victims of crime are like those who once were incurable victims of disease; they are the product of vicious and incompetent soothsayers who control their destinies.

Every human being, whether parent, teacher, physician, or prosecutor, should make the comfort and happiness of their dependents their first concern. Now and then some learned courts take a big view of life, but scarcely do they make an impression until some public brainstorm drives them back in their treatment of crime to the methods of sorcery and conjury.

No scientific attitude toward crime can be adopted until lawyers, like physicians and scientists, recognize that cause and effect determine the conduct of men.

When lawyers and courts, and laymen, accept the scientific theory which the physicians forced upon the world long years ago, then men will examine each so-called delinquency until they discover its cause, and then learn how to remove the cause. This requires sympathy, humanity, love of one’s fellow-man, and a strong faith in the power of knowledge and experience to conquer the maladies of men. The forum of the lawyers may then grow smaller, the courthouse may lose its spell, but the world will profit a thousandfold by a kindlier and more understanding relation toward all humankind. ( Esquire Magazine, May, 1936.)