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"I grieve for my country to say that the administration of the criminal law in all the states in the Union (there may be one or two exceptions) is a disgrace to our civilization .... The institution of trial by jury has come to be regarded as such a fetish in our country that state legislatures have exalted the power of the jury and diminished the power of the court .... The counsel for the defense, relying on the diminished power of the court, creates, by dramatic art and by harping on the importance of unimportant details, a false atmosphere in the courtroom which the judge is powerless to dispel, and under the hypnotic influence of which the counsel is able to lead the jurors to vote as jurors for a verdict which, after all the excitement of the trial has passed away, they are unable to support as men and women.

Another problem is the difficulty of securing jurors properly sensible of the duty which they are summoned to perform. In the extreme tenderness the state legislatures exhibit toward persons accused as criminals, and especially as murderers, they allow peremptory challenges to the defendant far in excess of those allowed to the state. This very great discrepancy between the two sides of the case allows defense counsel to eliminate from all panels every person of force and character and standing in the community, and to assemble a collection in the jury box of nondescripts of no character, weak and amenable to every breeze of emotion, however maudlin or irrelevant to the issue."

Some people may consider the preceding remarks a gross overreaction to the "not guilty" verdict in the O. J. Simpson case. Others may think these remarks are right on the money. In any event, they were made on June 26, 1905, as part of a Yale Law School commencement address, long before defense lawyers had the assistance of any experts in selecting a jury and long before anybody accused defense lawyers of "playing the race card."


Reproduced with permission.