The Detroit times., 1913-08-07
PHELAN SEEMS
INCLINED TO
QUASH PANEL
Intimates Irregularities May BE
Such as To Sustain Chal-
lenge of Array
ARGUMENTS OVER;
MATTER UP TO COURT
Famous Daniel O'Connell Case
Cited BY Mcnamara In
Closing Address

"There was no effort made 10 rail-
road Tom Gilman 10 prison. said
Judge Phelan, in the recorders court,
Wednesday morning. as James Nc
Namara. attorney for the accused al
derman, was concluding his argu-
ment on the challenge to the jury
list. Such a thing would have been
impossible with the men who had
charge OF making out this jury list.
1t may be possible. however, that
the jury commissioners did exceed
their authority in the exclusion OF
certain classes. and that is a differ
ent question Whether malicious or
not, it may be sufficient for quashing
the array of jurors
Mcnamara concluded the argument
for the challenge at noon. He spent
two days IN the major argument,
Prosecutor Shepherd replied for two
days. and Mcnamara followed with
two DAYS more. McNamara's final
speech was a powerful presentation OF
the ease based principally upon one
point. He contended that although
u
there was prejudice against Gilman
in the drawing of coo jury nam IS
there was a possibility OF 1t because
the drawing was not strictly accord
ing to law and that as long as there
was a chance for injury 10 Gilman
the jury list should be quashed.
His most spectacular authority in
support of this was Lord Denman,
who argued In the 10 use OF Lords.
in 1S43 when Daniel OConnell, Irish
emanc!pator. was tried for treason.
In that case the jury was challenged
for similar reason and O'Connell,
although he had been found guilty,
was released because the Jury had
been illegally drawn. Dublin had
been excluded from the territory for
drawing jurors, although 1t was sup
posed to furnish 81
THAT is good law" said Judge
Phelan when Mcnamara presented
this case and this was in accord with
other remarks made by the judge
which indicated leaning toward the
challengers side Of the case. He
has now taken the challenge under
advise ment and will need several
weeks to consider II.
No matter how he decides the case
Is likely TO 90 TO the supreme court.
Either the prosecutor or the defense
can have the right of appeal on the
challenge TO the array and it Is likely
the higher tribunal will be askC 10
settle the questions involved
Excluding man for his residence,
or because he is a politician or a sa-
loonkeeper." said Mcnamara. in be-
ginning his argument, Wednesday,
must be illegal or there would be
| legal reasons for excluding such jur
ors after their selection. If a court
cannot excuse man for these rea-
sons there is no law that would per
nit the jury commission to excuse
them"
Mcnamara cited a number OF new
authorities for his statement that the
exclusion of any territory, as the com
missioners excluded the Eighteenth
ward, was illegal. He also attacked
| the authorities cited by shepherd as
not applicable.
Michigan supreme court decisions
were quoted by Mcnamara to show
that any discrimination against class
' of men in drawing jury is not only
unlawful, but "grieyous wrong
your honor has no means Of know
ing how far such action could injure
. this man on trial." said Mcnamara.
|"The court has no means of peering
SO far into the future or into the
minds OF these men as TO know what
will happen. For that reason the