Archive for August 18, 2011

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

John Francis Dickison , a notorious Popish Priest being taken in Newgate, as he came to pervert on Martha Cook a Convict, his Indictment being grounded upon a Statute made in the Third Year of King James, to prevent drawing away the King’s Subjects from their Allegiance; the manner thus, Martha Cook about Three Quarters of a Year since being Condemned for Cliping and Coyning, and remaining in Newgate, Two Women that were her fellow Prisoners, perswaded her to embrace the Romish Religion, and after some yielding to their proposition; the Prisoner was sent by the Priests into the Press-yard to visit her, who upon promise to get her a Pardon, made her renounce the Protestant Religion gave her the Sacrament, confessed her, &c. And to encourage her to perservere in what she had Embraced, oftentimes brought her Money; the which she disclosing to on Partridg a Presbyterian Minister, he discovered it to the Ordinary, who acquainted Captain Richardson with the same, so that about the Twenty-first of October last, the Prisoner coming to visit his Proselite, was seised in the Hole, and after some time carried before Sir William Turner , where he owned himself to be a Priest; and that he was Chaplain to the Portugal Embassadour ; whereupon he was commited, upon his Trial he likewise owned himself a Priest; and but faintly denied the pervertion, Mr. Ordinary, Mr. Partridg, and Martha Cook giving Evidence against him, after the Jury were satisfied of the Statute, they brought him in guilty ; and he was Sentenced to be Drawn, Hang’d and Quartered as a Traitor, &c.

But this online presence of the Old Bailey records also provides a very instructive roadmap of the evolution of the jury system and the rights of defendants and victims in the proceedings that were to have a profound influence on the framers of the United States Constitution and the architects of our modern criminal justice system. These bits of information show us just how much and how little the system has evolved since the turn of the 19th century. Take Grand Juries, for instance. Prosecutors in those days might vociferously disagree with someone from modern times who would scoff at their utility by citing their propensity to indict a ham sandwich:

The problem with this system was that the Grand Juries therefore often had very little information to go on and no legal training. Consequently, for most of the period a significant number of cases were rejected and in the early nineteenth century the grand juries in London acquired the nickname “the hope of London thieves”. From 1838 a clerk attended meetings of the grand jury at the Old Bailey to offer advice and thereafter far fewer cases were dropped at this stage.

The presumption of innocence started out as the presumption of guilt (unfortunately, as I’ve argued before, we seem to have reverted back to the late 1600s on that score):

The prisoners whose indictments had been approved by a grand jury were brought into the court and formally charged. Each prisoner was asked to plead to the charge, which was read to them, and the vast majority pleaded not guilty. Until the reforms of the early nineteenth century, the court encouraged this plea because if a defendant confessed to a crime there was no flexibility in the punishment they could receive, whereas if a trial took place evidence could be introduced which might determine whether the defendant merited a lesser sentence or a pardon. With the decline in death sentences in the early nineteenth century guilty pleas became more common.

Defendants who refused to enter a plea were, unless they were found mute “by visitation of God”, subject to the ordeal of peine forte et dure, in which they were forced to lie down and have weights placed on them until they either relented or died. For example see the trial of William Spiggot and Thomas Phillips alias Cross in 1721. This practice, however, was rare, and formally ended in 1772, after which date standing mute was deemed the same as pleading guilty. In 1827 the presumption of guilt was reversed and refusal to plead was redefined as equivalent to pleading innocent.

And lastly, the role of the lawyers:

Lawyers were rarely present in ordinary criminal trials prior to the last decades of the eighteenth century, and only began to appear in a significant number of trials at the turn of the nineteenth century. Lawyers who appeared at the Old Bailey in the eighteenth century hardly ever made it to the very top of the legal profession. They were often accused of being ignorant of the law and of a general incivility, something that was also said to characterise their bullying of witnesses. Such accusations were not always unfounded

…

Defendants in misdemeanour cases and treason cases (from 1696) could also employ legal representation, but they were excluded in felony cases (except for the purpose of raising narrow points of law) until the mid-1730s. The justification for this prohibition was that they were thought unnecessary: it required “no manner of skill to make a plain and honest defence” (Hawkins). Moreover, judges were thought capable of looking out for defendants’ interests. However, the increasing number of prosecution lawyers from the early 1730s appears to have led the courts to allow defence lawyers in order to help maintain a balance.

…

The trial process placed defendants at a disadvantage. Typically without the benefit of legal assistance, they had to organise their cases on their own, normally while in prison awaiting trial. Until the actual trial, they were unaware of the specific evidence that would be presented against them, and therefore had to respond spontaneously to what the witnesses said. This was thought to be the best way of ascertaining the truth.

Unthinkable now, but certainly fun to think about.

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