the reply to simple questions as to what she saw could incriminate the witness, the judge asked her to explain to him privately the reasons for such a position. After this private explanation the judge supported Miss Neely whenever she refused to reply. However, he allowed the prosecuting attorney to examine Miss Neely fully in the absence of the jury, during which Miss Neely testified that she had told the truth at the first trial. It is manifest that the private explanation to Judge Powell was to the effect that the witness perjured herself at the first trial, since no other excuse would cover a refusal to answer the questions put to her. The situation then apparently became one where a witness informally tells a judge that she lied in her previous testimony, but under oath says that she told the truth. Under these circumstances a court sensitive of its position would have known how to deal with such a witness, even if not roused to action by her attitude earlier in the case.

The fact that Judge Powell did not vindicate the dignity of the court is typical of the general attitude toward perjury. Lawyers and judges tell of cases in which witnesses admitted perjury, but nothing was done. "The average witness has no respect for his oath," says a former Common Pleas judge; "in three out of five cases, civil or criminal, the judges and lawyers know some of the witnesses lied."

LAXNESS IN PUNISHING OFFENSES AGAINST JUSTICE

The statistics for the Common Pleas cases begun in 1919 yield impressive evidence of this callousness toward corruption of the court's process. Out of more than 3,000 cases, only 27 were for offenses against public justice, of which 20 were bribery and 7 perjury. This was probably an unusually large number of such cases because of the indictments returned by the special grand jury in 1919. In view of the firm conviction of the bench and bar that perjury and subornation of perjury are common, this showing of less than 1 per cent. charged with such crimes is significant. Even these cases were disposed of as follows:

Behind the McGannon trial, therefore, is a community which recognizes the prevalence of crimes against public justice but seeks to vindicate. the law in only a handful of cases in a year for such offenses and allows all but one offender to escape.'1

RECOMMENDATIONS

The attitude of the courts and public toward this kind of offense is not induced wholly by indifference, however. The perjury statute, G. C., Sec. 12842, provides as a penalty imprisonment in the penitentiary "not less than one year nor more than ten years." Undoubtedly the severity of this statute is a partial explanation of the paralysis of its enforcement.

The statutes relating to the giving and obtaining of false testimony should be amended in the penalty clause so that a judge could impose a severe fine or a workhouse sentence. Following this, an active campaign. against perjury in civil and criminal actions would upset the old tradition and replace it with a wholesome respect for an oath. One judge has suggested a special prosecutor to handle perjury complaints alone. The vigor and success of Special Prosecutor David has opened the way for the new tradition. The campaign should not stop with the witnesses, however, but should reach beyond to the lawyers responsible for their offense. In this respect the Cleveland Bar Association has an imperative duty and opportunity. In the last analysis, however, the judges cannot delegate their responsibility to campaigns and prosecutors. Alert and strong judges, jealous of the sanctity of their court, constitute the only lasting insurance against the practice of perjury.

The drugged state of the public conscience is indicated by Petition No. 188262, filed by one of those indicted in the McGannon perjury investigation against Judge McGannon for balance due for services "in influencing Mary Neely to change her attitude in her testimony in a law-suit wherein he was charged with murder.

An attempt was made to withdraw this petition upon the indictment of the petitioner for the crime set out in his own petition.

T

CHAPTER XI

JURIES

GENERAL DISSATISFACTION

HE service performed by juries does not lend itself to appraisal

by the statistical method. Without knowing the facts in each case one is not able to conclude whether an acquittal, disagreement, conviction, or verdict was or was not justified. Even if the facts are known, it might well be that reasonable men differ in the inferences to be drawn from such facts. Since it is both impossible and undesirable to retry cases in this survey, one is forced to rely upon opinion evidence as to the quality of service rendered by jurors in Cuyahoga County.

The testimony of judges and lawyers is almost unanimous on the point of dissatisfaction with juries. "I have held court here two months and have never seen a business man on one of my juries," an out-of-town judge is quoted as saying after serving an assignment to Cuyahoga County. "Jurors recruited from the caverns of Ali Baba in the desert," remarked the oldest judge on the bench, with the hearty approbation of a large audience of lawyers.

We have already observed the large percentage of convictions set aside principally because of the poor work of juries. Although no new trial may be granted for error in acquitting a defendant, we may assume that the average jury errs much more on the side of leniency than severity. The community has probably suffered considerably because of this tendency, in view of the fact that acquittals have increased 600 per cent. since 1914. Juries are blamed for the large number of disagreements during the January, 1921, term of the Common Pleas Court. Upon receiving a surprising verdict of acquittal the judge who presided at the trial is quoted as observing to the jury that "it is apparently now lawful to attack a man with an axe, provided the blunt side only is used."

HISTORY

In judging the operation of the jury system, its history in Cuyahoga County should be considered. There is no doubt that opportunities for corruption and actual dishonesty have greatly decreased in recent

years. Lawyers tell the story of a long fight between counsel for the great public service corporations and the personal injury attorneys, in which the jury system was debauched by campaigns for the allegiance of enough jurors to insure victory at the ensuing trials. In those days the jury commissioners made up lists of jurors from names submitted by various persons so that it was a relatively easy matter for an influential corporation or a tort lawyer in large practice to secure picked men on the jury lists. Then in some mysterious manner these names were drawn from the wheel. In the ten-year period from 1905 to 1915, out of a total of 11,126 names placed in the jury wheel, 386 names appeared a total of 2,317 times, or an average of six times each. In the course of the ten years 5,489 names were drawn from the wheel and 388 names were drawn 1,923 times, or nearly 40 per cent. of the total drawn. "It is entirely safe to say, however, that if the drawings had been left to chance, as the law intends, it would have been impossible to have drawn out so many repeaters."

THE PRESENT SYSTEM

During the past few years the system has been changed so that many of the glaring defects have been obviated. Under the present method, when the court instructs the jury commissioners to secure a certain number of jurors' names to be placed in the wheel, the commissioners make a rough estimate of the number necessary to call in order to qualify the number requested. The commissioners then roughly divide the total which they must call into the number of electors, and use the quotient as a key number. Thus, if the presiding judge requests 3,500 names for a term, the jury commissioners estimate that it would take 10,000 names to qualify this number, and dividing 10,000 into the total number of electors they secure, for example, the key number 20. The commissioners then take every twentieth name upon the polling list, and send out a form letter to each name and address checked, asking the addressee to report for examination upon a certain date. Next occurs the first examination of prospective jurors by both commissioners, which proceeds until at least 3,500 names are accepted. The list of those accepted is then certified to the clerk of courts and the list is spread on the journal of the court. The clerk copies the list on slips of paper, and in the

The Municipal Bulletin, January, 1916, pages 3 to 6.

Rule 23 (b) requires that the court designate a key number, but owing to the necessity of securing names from each ward in proportion to its population, the commissioners have adopted their own method of securing a key number.

presence of the jury commissioners the slips are placed in the wheel, the wheel locked, and the key given to the presiding judge, from whom the clerk must get it each time a jury is required to be drawn. Formerly the custody of the key, as well as of the wheel, was given to the clerk, but the change was made when the system was reformed a few years ago.'

The names once placed in the jury wheel become the sole source of petit juries in both civil and criminal cases, and to some extent of grand juries. The drawings are made by the clerk and sheriff. Every other week the presiding judge orders that a certain number of names be drawn from the wheel as petit jurors, and for each term the presiding judge of the criminal division orders a number of names to be drawn for grand jurors. Separate drawings are made for juries in first degree murder cases, and in such cases the venire must be returned at least fifteen days before the date set for trial. When the original is returned, the clerk draws an alias venire without further order of the court, and the alias is composed of two names for every one not found on the original venire. The alias is returnable forthwith, and both original and alias are served on the defendant and his attorney three full days before the trial. If a jury for the first degree murder trial cannot be secured from the original and the alias, the judge issues further orders until the jury is complete.

In the case of petit jurors, exclusive of first degree murder cases, service is made by letter postpaid and the sheriff's return is stamped upon a paper containing the entire list. In murder cases and for grand juries the sheriff actually serves summonses.

The petit jurors summoned by letter are expected to serve unless excused by the presiding judge. Those who answer the letter and are not excused are sent to the rooms of the jury bailiff, who assigns them to various cases as the need arises. In the case of the grand jury, “if the number is insufficient, the court may issue a special venire to the sheriff and command him to summon the persons named therein and to attend forthwith as grand jurors" (Sec. 11431). Since the original venire drawn from the wheel for grand juries rarely produces enough qualified men, the judge usually selects additional persons, often a majority of the talesmen.

This is the system under which Cleveland juries have been recently selected. Although the personnel of the grand jury is largely dependent upon the presiding judge, this institution is so much a part of the prose

1 To the retiring clerk, Mr. Haserodt, much credit is due for the improved operstion of the system.