or not. If the case were tried immediately upon its merits, such lawyers would be unable to use the machinery of criminal law as instruments for extortion.

THE "MOTION IN MITIGATION"

The tendency cannot be effectively curbed, however, unless the "motion in mitigation" is eliminated from the practice of the court. This motion, apparently peculiar to the police court, makes a farce of judicial business, more than any other single factor. After a defendant has been adjudged or has pleaded guilty, the court imposes sentence. To the uninitiated the case is over, but this is not so. A "motion in mitigation" is then made, which is sometimes granted the same day, after trial, and sometimes ruled upon weeks and even months later, after many continuances. Thus the court satisfies the complaining witness in open court, and has the opportunity later to placate the defendant's lawyer. Lawyers report instances where their clients were found guilty, though clearly innocent (in the belief of the defendant's lawyer), and upon protesting against the "outrage" of a conviction, were advised to make a "motion in mitigation." This they did, and the motion was later granted.

The "motion in mitigation" affords the setting for the performing judge, enabling him to do "stunts" which get into the front page of the newspapers, and then to undo the damage quietly at a later date. Mention has already been made of Judge Stevens' campaign against liquor law violators during January, 1921, and the notoriety which resulted from it. Considering the fines for this offense during 1919 and 1920 (taking every tenth case), 61 per cent. were less than $200 and 99 per cent. less than $400. About 26 per cent. of these sentences were suspended. The average original fine imposed by Judge Howells for January, 1921, was $299.12, and the average fine imposed by Judge Stevens (exclusive of five appealed cases) for the same period was $468.72. Excluding cases sentenced to the workhouse for failure to pay fines,

3

1 Several cases of alleged extortion have been brought to the attention of this survey.

On November 23, 1920, Louis Ettkin was fined $200 and costs for violating the liquor law, and the same day the fine was changed to $100 and costs. Notice of motion in mitigation was given, and the case continued eight times until February 21, 1921, when the execution docket shows the entry, "motion in mitigation overruled." The original file, however, shows that at some stage $75 was suspended, so that Ettkin paid $25 and costs on February 21. Meanwhile bond had been forfeited twice and the forfeitures set aside.

'The inclusion of appealed cases would make Judge Stevens' average a trifle higher.

Judge Stevens' average fine was $376.62. The average amount actually paid in Judge Howells' cases was $180.17 and in Judge Stevens' cases (exclusive of workhouse commitments), $176.61. The "motion in mitigation" is thus seen to be a leveler of fines in this particular group of cases.

It is said that the "motion in mitigation" serves the purpose of allowing a defendant time to pay his fine, and after the fine is paid, the motion is overruled as a matter of form. Undoubtedly the motion is used for this purpose and also to allow the court time to investigate the defendant to ascertain whether the fine imposed is a just one. The vice of the motion is that the court apparently disposes of the case, and at a later date, when no witnesses are present, makes a change. This vice is intensified by a system of record keeping, discussed later, which makes it difficult to find out what actually happened in a particular case. The court should make its investigation before sentence, not afterward, and the sentence once imposed, should stand. This could be accomplished by continuing a case for sentence to a certain day after the issue of guilt is determined, in case the court wishes further advice as to the condition of the defendant. This method would be more apt to impress the defendant with the seriousness of the court than the game of thimble played with motions in mitigation.

1

The extent to which these motions are used may be seen in the fact that of 314 fines for liquor law violation in cases originating in January, 1921, exclusive of cases subsequently appealed or committed,-totaling $101,650, motions for mitigation were made in 193 cases and allowed in 114 cases, reducing the fines by $42,135. Of these fines, 131 were over $200 each, totaling $75,500, in which 103 motions in mitigation were made, 85 of which were allowed for a total reduction of $39,150, or nearly 52 per cent. in amount. An average of 15.43 days was required to overrule a "motion in mitigation" and an average of 35.15 days to grant it. In cases where the fines were more than $200 each, an average of 23.5 days was required to overrule the motion and 36.24 to grant it. As in the case of the hearing on the merits, delay favors the party who can keep longest alive his motion in mitigation.

THE "POLICE COURT RING"

Owing to the fact that no record is kept of attorneys in cases before the criminal branch of the Municipal Court, no statistical data can be submitted of the attorneys practising in this court. It is common knowl

1 This is exclusive of cases where fine was suspended in whole or in part on the day the fine was imposed. Counting such suspensions with the motions in mitigation, the total reduction from original fines was $48,885, or 32.3 per cent. in amount.

edge, however, that certain attorneys monopolize most of the business, and in a rough fashion divide the practice among themselves. Thus one group represents prostitutes, another pickpockets, another suspicious persons, etc. Any one connected with the court knows the names of these attorneys.

Theoretically, there is no objection to a limited group practising in a particular court. Indeed, under wholly different conditions a limited. group of advocates would serve to facilitate the administration of justice by focusing responsibility for the ethical conduct of cases on a definite group. In the "police court" of Cleveland exactly the opposite has resulted. Men of ability as lawyers, or of fine sensibilities, shun this court, so that there is a tendency for men of less refinement to drift into the practice. The activities of these men are nowhere spread upon the record; they involve people who dare not or do not know how to complain. Some of these lawyers were formerly police prosecutors, in which capacity they made the acquaintance of habitual offenders and professional crooks; some are city councilmen with a voice as to the salaries of certain court attendants and a control over votes, which a weak judge cannot entirely overlook; others are connected in various ways with people of political importance.

In the trail of the police court lawyer come the "runner" and the "professional" bondsman, not even subject to the slight check of belonging to the legal profession. Some of the bondsmen are notorious characters, others operate gambling places in the guise of "political clubs." The presence of these men in the corridors of the court-rooms gives rise to rumors of "underground" connections with certain prosecutors, which, even if false, greatly damage respect for the courts in the minds of the unfortunate and their friends.

In some cases these lawyers and "runners" have been compelled to pay back to clients money which they extorted under the claim of "influence." Years ago a police prosecutor, now a Common Pleas judge, tried and convicted one of these men for obtaining money under false pretenses, before the very judge with whom the lawyer claimed to have influence. Judge Howells became for a time so disgusted with lawyers. defending prostitutes that he arbitrarily refused to permit any lawyer to represent a prostitute before him. He had just fined a prostitute $10 when the police prosecutor whispered to him to suspend the sentence. The lawyer also urged suspension on the grounds that his client could not pay the fine. On inquiry the judge learned that the girl had paid the lawyer a fee of $75. It is said that formerly a custom obtained of raiding prostitutes when the city needed money, and although this custom has

been stopped if it ever existed, there is some opinion to the effect that they have been occasionally arrested when their lawyers needed money. Except in an unusual case, the prostitute fares as well or better in court without any police court lawyer, especially since the establishment of the Woman's Probation Department under Mrs. Antoinette Callaghan. TABLE 15.-PERSONS ARRESTED FROM JANUARY 1, 1918, TO DECEMBER 14, 1918, RELEASED ON BAIL BONDS SIGNED BY AND REPRESENTED BY.

AND

ATTORNEYS1

It is no longer necessary for police court runners to look over the contents of the "bull pen" for old and new clients. Some look over the police blotter, and, it is charged, sometimes secure the release of prisoners on personal bond (without surety) in order to make them retain the lawyers in question. For some of the lawyers this is unnecessary because their clientele and reputation are established.

1 These men were called counsel for the "International Association of Pickpockets." The firm has not been active in the Municipal Court since the grand jury investigation of 1919. The figures are submitted, however, as showing a state of things which probably exists as to some other Municipal Court lawyers, if the records were available for study. Pocketpicking has fallen off greatly since this firm ceased to be active. One member is an ex-police prosecutor; the other has since been convicted of arson, case reversed on error in the Supreme Court; both men were formerly associates of a prosecuting attorney for Cuyahoga County.

2 "One visit to the central court is usually sufficient for a stranger-one day's visit to the place being as complete as a month's sojourn within its desolate walls.

* Yet there are a few lawyers in this city who make a practice of habituating the place, picking up such crumbs as these, managing somehow to exist on them. They can be seen every day, a half-dozen or so of them, waiting in eager expectation for the herd to be driven in from the pen; and if one of them looks as though he might have $5 about him, he is besieged by anxious solicitors, ready and willing to take his case."-Kennedy and Day, Bench and Bar of Cleveland, 1889. The spirit of the place has not altered greatly in over thirty years.

Until recently the lawyer himself could be bondsman for his client. Happily, this vicious practice is ended by a court rule, but not without leaving an indication of the activities of a certain group of lawyers who acted as bondsmen for clients whom they represented.

The length of their trail can be judged from figures in Table 15, compiled by the Bureau of Criminal Identification, Division of Police.

These cases included 125 known criminals whose pictures were in the Rogues Gallery at the time of their arrest. These were disposed of as in Table 16.

TABLE 16.-DISPOSITION OF CASES OF 125 KNOWN CRIMINALS

Many of these criminals were notorious offenders, and some were subsequently implicated in murders in Cleveland. Some of those not included in the list of known criminals have later been added to this class by the police.

It cannot be said that the judges are individually responsible for the record shown by these cases. In the great majority of the felony charges the defendants were bound over for the grand jury. In the other cases the story is told in the number of cases "nolled" and "no-papered" by the police prosecutor. The former is done by motion before the court; but the absence of centralized judicial administration through a watchful and directing administrative head, the great confusion of the court, and lack of a courageous, highly skilled, and completely disinterested prosecutor, or failing that some "amicus curiae" upon whom the court can rely for disinterested advice, are largely responsible for the court's part in cases "nolled" and sentences suspended. The police court lawyer is

An ex-judge stated that he informed one of these attorneys that all of his clients accused of pocketpicking were guilty. They would never take the stand for fear the police would fasten their record upon them.