The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-09-21
BLOW AT JOHN DOE PROCESS
"IMPOSTURE" AND 'TRAVESTY."
SAYS JUSTICE MAC LEAN

n, thr Collection Of Evidence Under Grand
Jury Subpoena ana Not Before the
Grand Jury -Thaw. However, Told 10
Apply 20 the Recorder for Prohibition.
"a travesty" and ian imposture" are
farms applied by Justice MacLean OF the
sunreme Court TO certain examinations
IN John Doe proceedings. Justice Mac
lean had before him an application TO
uake permanent the alternative writ OF
nrob,bffion obtained by Harry X. Thaw
- restrain the District Attorney. the Court
~ General Sessions and the Grand Jury
from continuing the examination Of wit
pesses in connection with the murder OF
sanford White after the indictment Of
Thaw. Justice MacLean concludes hat
An. application should ave been made
10 the Recorder, but he gives his opinion
pf some of the John Doe proceedings.
The afidavits submitted to him related,
as he SAYS in his opinion. that the District
Attorney; not for the purpose OF procuring
tbe Indictment Of any person but for the
plrpose Of procuring evidence to be used
AGAINST the relator at the trial for said crime
"a alleged, was making out and addressing
Eubppnas requiring persons, some named
and many Of names unknown, to ppear
and testify before the Grand Jury as wit
nesses against John Doe or John Doe ct
nj. and causing them, once arrived, to
he sworn az before the Grand Jury, and
their dispositions thereafter taken against
che relator.
The mere statement of the fact Of that
n~ourse," continues Justice MacLean, lis
enough to condemn it. Such a proceeding
IL a trsveety. The command therein to
attend, under the caption OF the People of
the state and its Court OF General Sessions,
over the sign Of the District Attorney, under
the threat thereafter expressed in its very
name, fortified by statute, enforceable by
the court is an imposture.
sThe Use Of fiction has 30 fallen into
deeuetude as TO have become. not to quote
a more unseemly simile, only a wart which
here and there deforms the face Of Justice;
and no man. even official, is now n here
so far elevated above his fellows that he il
20 be INDUCED in cheating them as for their
good or for the public welfare.
If the officers OF the law may get persons
into their privacy under cover Of a call
which all but the fewest fear to disobey,
have them talk and be ~catechised, after
being bounden under the semblance Of In
unsanctioned oath. taken in the array of
the members of the Grand Inquest Of the
county, il follows as the night the day that
the accused should have the like oppor-
funity.
he lnSlstenCe mat the DleJrlCt Attorney
has the right to send for witnesses and
i~nterrogste them ia not gainsaid. The
suggestion that those who come 20 the
Criminal Courts Building pursuant to un-
legal ~processl and make dispositions under
mock solemnity, come and do 50 willingly
begs much OF the question. II they be
wiling so to do there ia no need for the
surreptitious subpGnas.
The chief contention OF the pros ecution
In opposition is that the affidavit is not
entitled TO the consideration of the court,
particularly because the assertions therein
are largely upon information and belief.
1t is not contended that the assertions are
made ~frvolously or even that they are
untrue, nor that the REALTORS counsel has
not obtained the best a~ttainable veriication
Of notorious and common nmor, without
asking the especial assistance Of the court
under the section OF the codes for such
case made and provided. OF course il
would be the right Of a public official ar
rsigned personally for INV arrantable prao-
tics, and it would be the bounden duty Of
his counsel to protect him behind all the
privileges allowed by the law. 1t Is not
80 clear that when called upon to present
his conduct involving the liberty, even life,
Of a citizen he il not bolnden in candor to
the community. Of which the court is the
servant, to disclose the actual facts clearly
without the circumlocution and delay Of a
special inquiry had at IN instance OF the
court, That the statements in the affidavit
would be sufficient II made az allegations
In pleadlngs to require a definite denial or
admission, direct or inferential, 10 plain
enough. There is no presumption Of
there is little for the subpoena OF a witness
before the Grand jury against a real person
after his Indictment fOund."
Justice MacLean adds that there Ia some
~presumptive proof in the deposition Of
May Mckenzie as to her examination.