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The inefficiency of the electorate.
The elective principle is not wrong, but a good principle in ignorant hands is not generally successful. The present electorate is by far the most ignorant in the history of the republic. It is now not only electing but by the direct primary actually nominating the candidates for judicial office. The power of nominating is much more important than that of electing. The present electorate is not capable of selecting such experts. The American system of government as it is now administered places almost insuperable burdens upon the electorate.
C. It makes a politician out of a judge.
If there is anything that a good judge is not, it is a politician. It is repulsive to the judicially minded to have to go on the stump and campaign for office. This very fact will naturally eliminate the material that the office calls for. The result is the best campaigner becomes the judge regardless of qualifications. The sacred toga of a judge should not be colored by the muddy waters of politics. Justice is not a political matter.
The independence of the judiciary.
The independence necessary for a judge is destroyed by election. The judiciary becomes bossridden by virtue of the fact that a boss in a judicial district can dictate the election of the district judge. A district judge who enforces the law will almost invariably be defeated for reelection. He is forced to administer justice so as to please the dominant clique, club, society or boss in his district. The exaggerated position of the jury.
Popular election has also resulted in the state judges almost wholly withdrawing from the process of trial by jury. The whole matter has been turned over to the jury, so that the judges are merely referees in a great forensic game in which the lawyers play before the jury for their verdict. A toy judge presiding over an ignorant jury in the hands of astute lawyers diverts the old common law process of trial by jury into an American novice that could scarcely recognize its ancestor. It is in this way that judges have avoided the above responsibility and shifted the burden of law enforcement to the jury. They delight to tell us now that the enforcement of law is in the hands of the jury.
It is a noteworthy fact that the constructive period of American state judiciaries was prior to 1850 during the appointive bench. It was during this time that the English common law was adapted to American practice and the basic principles of American jurisprudence were worked out. It is also an equally important fact that it is the period since 1850 in the life time of an elective bench that has given us a technique of evidence and procedure and a system of trial by jury that have in many instances resulted in 50 per cent of all appeals and retrials being made on purely procedural errors. It makes little difference whether substantial justice has been obtained, but it is of maximum importance that forms have been properly complied with.
3. TRIAL BY JURY.
Trial by jury should be reformed in its procedure and restricted in its scope. Trial by jury' is nearly the only institution that has come down from the middle ages practically unconstructively modified. It was in its origin and early application a method of limiting the absolute monarchy by being a restriction upon royally appointed judges. The jury has no such use today. It was a method by which the common people could limit the power of a royally appointed and arbitrary judiciary. It was an effective check in this regard. But as its uses then were made to fit a certain system of government so should it now function according to the present organization of society.
The jury is one of the pieces of the regalia of technique that causes delays and retrials. It is the uncertain and unknown quantity in the game. The best of lawyers cannot advise their clients as to the outcome of a suit because of the jury feature. Charles A. Baston, chairman of the committee of professional ethics of New York County Lawyers' Association, says of trial by jury "that no more persistent barrier to the achievement of a just result could be conceived by a malignant enemy of mankind than the civil jury system as administered in practice. We hamper it as a popular tribunal by limiting the evidence which it may consider, and by instructing it unintelligently concerning the law which it is to apply. Then we let its uneducated prejudices produce the results, and point to them with superstitious pride, while we erect alongside of it another system, that of equity, in which the worshipped jury plays no considerable part. Yet with a straight face, and with a legal mind apparently all unconscious of inconsistencies, we praise both systems as having an equal claim to our admiration.” This criticism is in the opinion of the writer, too severe, but it has enough truth in it to challenge the attention of students of civil government and jurisprudence. Trial by jury has been the object of panegyric ever since Tacitus eulogized it. It has been called "palladium of liberty," the “nation's chief defender," "the bulwark of our civil and political liberties.” It has been said that the chief end of Anglo-Saxon jurisprudence is to put “twelve good and lawful men in a box.” While it is undoubtedly true that the jury system is the most distinguished feature of AngloSaxon jurisprudence, it is also equally certain that there have developed certain weaknesses in its workings that need to be eliminated in order that this venerable institution may be preserved in a more perfected form for future generations. The jury system frequently ends in an almost total waste of time and money because “the verdict was excessive," or "the jury unduly influenced," or "guilty of misconduct,” or “a juror couldn't remember the evidence," or "by intervention some lawyer decided to impeach the verdict."
Juries are very expensive for the following reasons:
a. Actual expenses paid them.
(1) A long list of names is selected by the jury commissioners and given to the sheriff.
(2) He summons these people to the county seat on a certain day.
(3) On the appointed day about one-fourth of these fail to appear.
(4) Then the sheriff must go after the absentees or summon additional persons.
(5) The court then hears under oath any reasonable excuse of anyone who desires to be relieved of jury duty. The list includes all those who have anything to do or those who are capable of serving on the jury. Most of the excuses are reasonable, and are so considered by the judge.
(6) By this time the list has been packed with “courthouse hangers-on” and professional jurors.
(7) Then comes the task of selecting “twelve good and lawful men.”
(8) The attorneys may still find a number disqualified, and the sheriff will have to summon more “hangers-on.” This reduces the jury to the poorest material in the county.
(9) It takes time to present evidence to the jury.
(10) The judge's charge must be prepared in writing and given to the attorneys, and in Texas the attorneys must be given a "reasonable time" to consider it before the judge can charge the jury. What is a "reasonable time"?
(11) The attorneys then make their argument before the jury.
(12) The jury, after a day or two, may report that it cannot reach a verdict or many give a verdict unsupported by evidence or contrary to the preponderance of evidence. In this manner, eventually the whole procedure comes to naught.
d. The jury system is responsible for many appeals, reversals, and new trials. It requires twice the time for a jury trial as for a non-jury trial. It is, therefore, a considerable item in the almost unbearable expense of state administration of justice.
The jury system is cumbersome from the first act of the jury commission to the rendering of the verdict by the jury.
The delay and extra work caused by the jury system has been a large factor in the breaking-down of the state judiciaries. It has thus forced inadequate consideration of litigation and by delay has practically denied due process to a great many litigants whose cases have remained on the docket until the litigants were dead or the matter had adjusted itself.
Several items in the previous criticisms are responsible for the expensiveness of litigation in state courts. Trial by jury in all of its ramifications, multiple appeals, repeated retrials, technicalities of procedure, the inability of state judges to expedite the process of trial, and the almost complete control of the administration of justice by lawyers, enabling them in many instances to cause errors in proceedings that force retrials and appeals, are the main factors in the unnecessary expense in the cost of justice.
This is without doubt the most serious charge that can be brought against state courts. It would be rare indeed that one could find a court that discriminates against a litigant because he is poor or politically uninfluential. The question raised is, “Does the case of justice, regardless of the equal accessibility of the courts to all classes legally, not only exclude the poor from the process of litigation, but secure for them an inferior, justice ?" The retrials and appeals that most state court systems permit give the rich litigant the advantage, the poor litigant is forced to be satisfied with the decisions of the lower court whose judges are inferior and before which only the incompetent lawyers practice. “I fear that it must be admitted,” said Woodrow Wilson, "that our present processes of adjudication lack both simplicity and promptness; that they are necessarily expensive, and that a rich litigant can almost always tire a poor one out and readily cheat him of his rights by simply leading him through an endless maze of appeals and technical delays."1
1 Wilson, Woodrow, “Constitutional Government in the United States," p. 153.