The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1910-03-12
From the Atlanta Constitution Of
Feb 16, 1900

(From the Atlanta Constitution of
Feb. 16, 1900
Editor Constitution:-Afte read
ing the very thoughtful and timely
article of Judge Fred Foster in Sun
days Constitution, l am moved 10
give you some ideas of my own on
that most important subject.
In November. 1876, l entered upon
the practice Of law at this place, and
for nearly thirty years l was In the
courts. From the lowest to the high
est, my business ran; and l became
professionally familiar with all kinds
! of litigants and litigation.
| Consequently, a disinterested eX-
| preston Of opinion, coming from q
| lawyer of my experience, may be
worth consideration.
| Judge Foster failed to touch either
| one of the two most vital defects in
our plan of campaign to punish crime
| by process of law.
| % Our judges act as umpires of a
game played by hired experts. In
this particular. the American sys-
tenn Estate courts, l mean), is utter
ly vicious. Judges should be made
responsible for the melting out of JUS
tice. They should take an active hand
in the trial, at all stages. They
should not allow a good case to be
lost through the fault of a sorry law
yer. The trial should not be mere
bout between opposing counsel.
The judge should be in the high
est, broadcast, best sense anxious
curiae-the friend of the court. He
should ask such questions as coun
| sci, through ignorance or inadVert
ence, fail to ask. He should rule ou
such testimony as he considers i'm
proper, whether objection is raised
by counsel or not. He should see II
it that no man suffer on account o
the inferiority of his lawyer.
If the verdict is wrong, in his op1n
, ion, he should see to it that steps arr
taken to set it aside. If it be :
r criminal. and the defendants attOr
neys refuse to go on with the case
: for lack of fees or other reason, tn
Judge should appoint a lawyer t
s move for the new trial.
If there appear on the face of tn
I pleadings any defect, of omission 0
commission, the judge should su:
b gest the necessary amendments.
An End to TechnicaIity.
|, The iron law of technicality shoul
be forever broken. Its reign ha
|, been the scandal of the courts.
has defeated justice, outraged con
mon sense and insulted public OPT
ion.
e GU In the remote past prisoner
i were tortured to force confession
y Going to the other extreme, we q
t not permit the accused to be examine
save by his own consent. We eve
allow him to make the statemel
which his lawyers have fixed 10
Z, him; we do not permit the prosec
ton to question him concerning i
st and We compel the judge to chars
of the Jury that theV-mau haliaHa~ th
= Ina--szpnrn- concerning ii
u CRIME OF which he is falsely accuse
CHiy the guilty could have any O
VI Jectlon. Consequently. we retain
~ custom and practice which notorious
m shields guilt.
u How can we be surprised to lear
> that crime goes 'unwhipt of Justice
81 When we frame our code for that Yer
purpose? '--"' Wei
Nobody but the guilty ever df,
}, ever does, or even can derive an
: cement from our absurd tenderness
: toward the defendant accused c
= crime.
r IN the very nature of things III
: innocent cannot possibly be helDed b
, Such system. In all nv practice
5 never had case in which nv ellen,
+ Delng innocent of the charge brough
| against him, did not insist on goin.
upon the stand and voluntarily offer
ing himself to cross-examinatfon.
Ana L will say another thing which
VIII not be disputed by any experience
ed lawyer: 1t is practically limos
sl5le to convict an innocent man.
| have seen hundreds of defendants
set free by the precious words. we