On the delicate subject of the ability of the members of the office, the same two prominent Democratic and Republican lawyers who had given their judgment upon the ability of the municipal prosecutors were consulted, and again their opinions were surprisingly similar. According to their judgment of the eight members of the force, one has exceptional trial ability, another is an able lawyer, a third has only fair ability as a lawyer, a fourth is a poor lawyer, while the remaining four have not had sufficient experience or standing at the bar to enable their professional brothers to know or judge of their ability.

Of the lawyers who answered the questionnaire, 92 expressed the opinion that the prosecutors were lacking in the necessary ability and competence, while only one or two expressed a contrary opinion.

The present prosecuting attorney, Mr. Stanton, served five years in the municipal prosecutor's office, during one of which he was chief. Judging by the methods and organization of that office at the end of his term, he did not there disclose the desire or the talent for that strong executive control or leadership whereby policies and standards are initiated and carried out and the administration of an office is freed from accumulated bad habits and molded into an effective, enlightened, and modernized institution. He became county prosecutor in January, 1921, since which date certain improvements have occurred, such as creation of the position of managing clerk and the beginnings of a card docket system. The period of his incumbency in that office, however, has been perhaps too short from which to judge whether or not he will develop the desire or the talent for such executive control or leadership.

As shedding some light on the work of individual prosecutors, a detailed study was made of the disposition of the 1919 cases, with classification according to disposition of the case, and with a further classification according to the particular prosecutor who had charge of the case. The results of this study are shown in Table 16. The column designated "All cases" gives the number of cases which received the dispositions noted in the first column. The column designated "Prosecutor unknown" contains the number of the cases in which the records fail to disclose the names of the prosecutor in charge. The next column gives the total of cases in which the records disclose the assistants who were in charge, and in the subsequent columns the cases are distributed among these assistants according to the records.

This illustrates a possible method of measuring or, at least, of obtaining some facts for measuring the work of the assistants. The small figures in the columns of some of the assistants indicate that they were

engaged in work other than trials, such as preparation of evidence or

presentation of cases to the grand jury.

The salary list of the county prosecutor's office follows:

CHAPTER VII

OPERATION OF THE COUNTY PROSECUTOR'S OFFICE

I

PREPARATION OF CASES

'N general, the prosecuting attorney and his assistants take no part in the investigation of the crime or the molding of the proof. He has no machinery, other than his busy assistants and the single county detective or general utility man, for detection of the offender or discovery of proof. He has no facilities for modern methods of criminal investigation. He pits his unpreparedness, with such assistance as he may obtain from the police department, against the carefully prepared case of the defendant's attorney. He takes the proof in the way it has been prepared by the police or municipal prosecutor, making the best of what he gets, or, in more serious cases, attempting to remedy the defects or omissions. An unusually sensational case sometimes affords an exception to this practice, but the exceptions are few.

The well-known Kagy murder case affords an interesting example of the dangers of this system. Harold Kagy was shot early on the morning of May 9, 1920, while he and two others were standing at a street corner. One of these two companions was named Joyce. There remains some mystery as to who the other may have been. The then Chief Justice of the Municipal Court, William H. McGannon, was accused of being the third person. He denied this, but has been convicted for perjury in making this denial upon his trial for the murder. Kagy was taken to the hospital on May 9 and was there until his death, thirteen days later. Obviously, the main issue was as to the identity of the person who fired the fatal shot and, obviously, the best proof of this identity would have been Kagy's death-bed statement. The rule of evidence regarding the admissibility of a death-bed statement is familiar to most lawyers. The main factor determining this admissibility is the knowledge of the dying man that he is dying. There is a fairly conventional and traditional method of ascertaining this factor. The police department entirely failed to obtain Kagy's death-bed statement, and permitted the statement to be obtained by two brothers of Kagy, who failed to obtain the necessary proof of Kagy's knowledge of his critical condition, with the result that the death-bed statement was excluded from the evidence. This failure might have been avoided if the prosecuting attorney's office had been called into the situation in time to take charge of the obtaining of the death-bed statement. Members of the police department visited the hospital from day to day, and were actually just outside the room at the time Kagy's two brothers took the statement. Though the case was the sensation of the day, there is no indication that during these thirteen days the prosecuting attorney took any step whatever to get in touch with or instruct the police department. Both Joyce and McGannon were acquitted.

The period elapsing between the arrest and the presentation to the grand jury varies from a few days to 500 days, during which there is time for the disappearance of witnesses, the destruction or elimination of dangerous documents, and the coaching of possible witnesses, in addition to the effects upon the memories of witnesses made by the public discussion of the case in the press and elsewhere. No member of the county prosecutor's office is present in the office of the municipal prosecutor while the affidavit is prepared, nor in the Municipal Court during the preliminary examination. Owing to the constancy of the stream of work, practically no attention is given to the case, its proof or lack of proof, until the moment of presenting it to the grand jury.

The assistant who has charge of the presentation of the cases to the grand jury has generally, up to the very moment of presenting a case, no familiarity whatever with the case, its facts or proof. He simply calls in the witnesses whose names are noted on the papers which have come up from the municipal prosecutor. Sometimes, if this rather casual testimony before the grand jury proves inadequate or there are indications of the possibility of improving the proof of the case, an attempt is made to find additional testimony before the grand jury passes on the

case.

TABLE 17.-AVERAGE NUMBER OF DAYS USED IN DISPOSING OF CASES ORIGINATING IN THE SEVERAL COURTS, COMMON PLEAS COURT, 1919

With exceptions, so rare as to be negligible, the testimony before the grand jury is not taken down stenographically or otherwise and no

1In cases originating in the grand jury arrest follows indictment, hence the first of the three averages is the reverse of the others in its column, being the time from indictment to arrest, rather than, as otherwise, from arrest to indictment. This is shown also by the fact that the third average is less than the second, contrary to all the other groups of cases.

1 Time Interval C is the difference between the average Time Intervals A and B.

Results insignificant because of insufficient number of cases.