New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-04-15
GARDINER ORDER REVOKED
JUDGE FOSTER YIELDS TO THE ATTOR-
NEY-GENERALS COUNSEL.
MOTION TO ExPUNGE THE VICE PRESENT
MENT ARGUED-DR. PARKHURsTs RIGHT
TO ADVISE THE GRAND JURY.

TO ADVISE THE GRAND JURY.
Judge Foster sat in Part I of the General Ses-
sions Yesterday to hear argument the motion
of District Attorney Gardiner to have expunged
from the records the presentment criticising him
made by the March Grand Jury.
The Attorney General, represented by Wheeler
H. Peckham and Deputy Acknowledgement John
Fl. Coyne, opposed the motion. Samuel Untermyer
counsel for Mr. Gardiner argued the other side
The motion before Judge Foster a week ago.
and with his consent was taken to the Appellate
Division for a ruling. 1t back to the Court
of General Sessions the decision or the Appel
late Division to take no action until after the
lower Court had decided the motion and the pro-
ceedings put In print.
Mr. Peckham In opening the argument. declared
that Mr. Gardiner came into court an individual
and that he had right TO inspect the minutes or
the Grand Jury, unless he able to show in open
court some right an individual. He asked that
the permission granted by the Court to inspect
those minutes be revoked.
Judge Foster said there no law compelling
the minutes of the Grand Jury to be kept secret
and that he could not see that any public rights
were threatened by the publication of those MIN
utes. He said he was ready to hear rurther arsu-
Mr. TTntermver argued that If the Grand jury
had found an Indictment it would be in the dis
erection of Court to permit the accused 10 IN
spect the minutes of the Grand Jury.
Mr.. Peckham said that Judge Foster had ruled
that he would hear the Acknowledgement before
making a ruling on the publication of the Grand
Jury minutes. and had then made an order on an
ex parte motion that Colonel Gardiner might IN
spect those minutes Judge Foster said he saw no
harm in the order he had made. He announced
himself ready to revoke that order If the Attorney
General found anything pre1udicial to the puoic
interest in 1t.
we came into court" said Mr. Peckham. ito
discuss two motions and find that one has al
ready been ruled upon against US on an ex parte
argument We have not examined those minutes.
."The Court is very ready to hear any arguments
the Acknowledgement has to give said Judge
Foster.
MY friend is not stating the fact" retorted Mr.
ITntermyer 1.-THE special Deputy Attorney-Gen-
eral Mr.. Cosby, spent an entire day examining
those minutes, and his stenographer was with MN
all the time"
AS soon as the Acknowledgement heard of the
action taken" put In Mr.. Coyne "he instructed
us to do nothing further until after he mad peen
heard in court
1r-DGE FOSTER REOPENS THE CASE
Judge Foster announced that the Attorney
General desired to be heard he would Vacate MS
order and hear argument. Mr.. Untermyer re-
counted the facts of the presentment declared the
Grand Jury had authority to present such docu-
ments and renewed his application for permission
for Mr. Gardiner las individual with indfVidual
rights and reputation to protect" TO inspect the
minutes of the March Grand Jury. He argued that
the files of the the proper place for the
Grand Jury minutes and not the Attorney-ien-
erals office.
Mr.. Peckham, in reply declared that before Mr..
Gardiner had any grounds for his application he
should specify the particular points he objected
TO and show that Illegal evidence had been re-
ceived by the Grand jury
Let Your Honor decide he WILL he said,
1.-The paper stands. and must stand, for the In"
formation of the prosecuting officer of the State
to make what charges he sees fit 1t is fact
accomplished. and no ruling Your Honor can make
alter it
the public interests?" asked the Court.
Mr. Peckham said he had not seen the minutes,
and Mr. Untermyer replied that the public interests
could not be preiudiced, because no indictments
can now be found on the presentment. He
newed his application that the order vacated be
restored. Judge Foster declined to decide the ap-
plcation ofhand but ruled that for the purpose or
discussion the minutes might De CONSIDERED as De-
fore the Court.
I'VE shall object" said Mr. Peckham. Ito the
Introduction CT any matters not read to the Court.
and shall object to the admission OF any docu-
ment not legally admitted IN evidence.
Judge Foster explained the methocs of procedure
In moving for the dismissal of an indictment, and
MIR. Untermyer presented a copy or the minutes
of the recent Grand Jury and asked that they be
received Replying to the Court. Mr. Peckham said
he could not say the admission of the evidence
offered would be prejudicial to the public interest
but declared that proof had been submitted that
all the papers produced had been considered by the
Grand Jury.
Judge Foster said he would receive the papers for
the purpose of argument barring out any evidence
referring the affairs of the Third Avenue Rail-
road Company.
DR. PARKHURSTS ADVICE TO GRAND JURY
I'VE purpose to show" said Mr.. Untermyer, that
the document procured by methods recognized
by the law as illegal. The Grand Jury took advice
and was Influenced by others than its legal advisers
We shall refer the testimony of one witness,
who said
This document was found upon the advice and
recommendation of Dr. Parkhurst who stated when
asked what. if any; suggestion he had to make that
he thought indictments were available but he
thought presentment good thing. 1t had worked
well in 1892 and with good results In 1894 and 1t
might do equally we'll now
Mr. Untermyer read from the minutes the
words used by DR.. Parkhurst and declared that
the code makes 1t msdemeanor for any but
the regularly constituted legal advisers attempt
to advise the Grand Jury. He said:
The Grand Jury was never established as
to protect the people against the encroachment of
the Government. Mr.. Peckham's statement that
ter is closed is monstrous. A like proceeding to
this was taken in Brooklyn in 1898. when Grand
Mayor. David A. Body Benjamin F. Tracy acted t
for the Mayor Judge Moore heard the case and
upon his order the presentment was stricken from
the record.
Mr. Untermyer promised to submit General
Tracys brief and Judge Moore's order. and then
proceeded to a discussion of the essential allega-
tions of the presentment He criticised the wording
OF the document undgnified, and they casti-
gated the District Attorney because legal evil
dence hand to justify the published state
ments of newspapers engaged in a so-called crusade
against vice.
Mr. Peckham in reply, began by saying that the
presentment did not accuse the District Attorney
of any crime 1t merely rected that in the opinion
of the Grand Jury the District Attorney did not
aid their deliberations he bound do by