Arizona republican., 1903-10-31
PHOENIX. ARIZONA, OCT. 80, 1903,
Brewer on the Right Of
Appeal.

Some months ago. in an address de-
livered in wisconsin. Justice David ].
Brewer of the United States supreme
court commented in forcible language
on the evils of mob law. and pointed
out in convincing terms the dangers
which threaten our institutions if law
and order are not to be upheld. The
voluminous press comments on the ad-
dress made one thing clear. namely.
that the belief prevails everywhere
that one of the basic causes of the
lynching mania is the delay CT justice.
Justice Brewer accepts this view as
sound and he suggests that one way
to avoid frequenr miscarriages of JUS
tice in criminal cases would be to pro-
hibit, or at least greatly restrict. ap-
peals from the verdicts and judgments
rendered in trial courts.
In an article on THE Right of APP
peal in last weeks Independent. the
eminent jurist answers some of the
critics who have asserted that to
modify the right of appeal would be
an invasion of constitutional rights. He
points out that the right of appeal is
not in fact. q constitutional right. but
merely a statutory privilege which the
state may deny or grant at its pleas
ure. Considering the effects which
follow unrestricted appeal he finds. as
the press of the United States had al
ready stated, that the system now in
vogue tencs to prevent the punishment
Of crime. and transfers the stress OF
litigation from the lower to the higher
court. thus lessening both the standard
and the responsibility OF the former.
and overburdening the latter" He
would net take away from courts of
appeal the right Of reviewing judg-
ments. but would give the higher court
the added lower of determining the
advisab ility of the revision. That is.
the right of appeal would no longer be
at the absolute disposal of the de-
PENDANT. We can quote but briefly
from the Independent article:
What is meant by the right of ap-
peal? Practically it is claim Of
right to two trials. 1t is not a right
guaranteed by the constitution of the
United States. Neither is al a natural
right, for upon what principle of
natural justice can it be said that the
state ewes the duty of providing a
second tribunal to inquire whether the
first one has erred? If it does owe any
such duty, may it rot also be contend
ed that it also owes the further one Of
providing a third tribunal? And where
Is the limit"
No matter how aggravated the of
tense. how clear the guilt, the con-
Victed party. by simply insisting on an
appeal, postpones further action until
hearing can be had in the appellate
court. and that often means a long de-
hay. Astute counsel have been busy
during the trial seeking to Introduce
some errors into the proceedings ana
thus lay the foundation for a success
full appeal And when one recalls the
multitude of rules which have been
laid down in respect to trials it is not
strange that the appellate court finds
errors and awards a new trial. In
the case of a homicide the dead man
is forgotten and the sympathies are
with the living defendant and against
the public, and. as experience shows
too often result in the guilty mans
escaping punishment.
such result is a tacit admission
that there is something radically
wrong in or present modes of Grim
lnal procedure. We shall check the in
crease Of crime only when the would
be wrongdCer feels that there is a
moral certainty that his crime will be
promptly punished Is il strange that
community incensed by some afro
cious offense. aware of the common
RXnaTinnnn Of
takes the law into it's own hands and
summarily Furnishes the offender"
Justice Brewer then tells at length
how the judicial system is warped by
the shifting Of the burden of the lower
court upon the shoulders of the appel
late judiciary. He states that expert
lawyers reserve their best efforts for
the appeal case. thus belittling the trial
courts and creating a sense of indit-
ference in both judges and juries A
Sinking of responsibility insensibly
creeps into the lower courts. where
the judges often juggle cases. out oil
respect for their political reputation,
casting their consciences with the
thought that the appellate body will
see that absolute justice is done.
The effects upon the appellate court
he defines as follows:
Their dcckets are crowded beyond
measure. The multitude of cases, in
addition tc the great delay caused, Sc
burden them thatsthey are unable to
give that full consideration to each
case that it deserves. The judges
work under constant pressure"
Justice Brewer would have the ap-
pellate court itself decide upon the ad.
visibility of probable error.