Yet it is not enough to prepare for the defence you believe the accused is going to interpose. A conscientious preparation means getting ready for any defence he may endeavor to put in. Just as the prudent general has an eye to every possible turn of the battle and has, if he can, re-enforcements on the march, so the prosecutor must be ready for anything, and readiest of all for the unexpected. He must not rest upon the belief that the other side will concede any fact, however clear it may seem. Some cases are lost simply because it never occurs to the district attorney that the accused will deny something which the State has twenty witnesses to prove. The twenty witnesses are, therefore, not summoned on the day of trial, the defendant does deny it, and as it is a case of word against word the accused gets the benefit of the doubt and, perhaps, is acquitted.
No case is properly prepared unless there is in the court-room every witness who knows anything about any aspect of the case. No one can foretell when the unimportant will become the vital. Most cases turn on an unconsidered point. A prosecutor once lost what seemed to him the clearest sort of a case. When it was all over, and the defendant had passed out of the courtroom rejoicing, he turned to the foreman and asked the reason for the verdict.
"Did you hear your chief witness say he was a carpenter?" inquired the foreman.
"Why, certainly," answered the district attorney,—
"Did you hear me ask him what he paid for that ready-made pine door he claimed to be working on when he saw the assault?"
The prosecutor recalled the incident and nodded.
"Well, he said ten dollars—and I knew he was a liar. A door like that don't cost but four-fifty!"
It is, perhaps, too much to require a knowledge of carpentry on the part of a lawyer trying an assault case. Yet the juror was undoubtedly right in his deduction.
In a case where insanity is the defence, the State must dig up and have at hand every person it can find who knew the accused at any period of his career. He will probably claim that in his youth he was kicked in a game of foot-ball and fractured his skull, that later he fell into an elevator shaft and had concussion of the brain, or that he was hit on the head by a burglar. It is usually difficult, if not impossible, to disprove such assertions, but the prosecutor must be ready, if he can, to show that foot-ball was not invented until after the defendant had attained maturity, that it was some other man who fell down the elevator shaft, and to produce the burglar to deny that the assault occurred. Naturally, complete preparation for an important trial demands the presence of many witnesses who ultimately are not needed and who are never called. Probably in most such cases about half the witnesses do not testify at all. Most of what has been said relates to the preparation for trial of cases where the accused is already under arrest when the district attorney is called into the case. If this stage has not been reached the prosecutor may well be called upon to exercise some of the functions of a detective in the first instance.
A few years ago it was brought to the attention of the New York authorities that many blackmailing letters were being received bearing the name of "Lewis Jarvis." These were of a character to render the apprehension of the writer of them a matter of much importance. The letters directed that the replies be sent to a certain box in the New York post-office, but as the boxes are numerous and close together it seemed doubtful if "Lewis Jarvis" could be detected when he called for his mail. The district attorney, the police, and the post-office officials finally evolved the scheme of plugging the lock of "Lewis Jarvis's" box with a match. The scheme worked, for "Jarvis," finding that he could not use his key, went to the delivery window and asked for his mail. The very instant the letters reached his hand the gyves were upon the wrists of one of the best-known attorneys in the city.
When the district attorney has been apprised that a crime has been committed, and that a certain person is the guilty party, he not infrequently allows the suspect to go his way under the careful watch of detectives, and thus often secures much new evidence against him. In this way it is sometimes established that the accused has endeavored to bribe the witnesses and to induce them to leave the State, while the whereabouts of stolen loot is often discovered. In most instances, however, the district attorney begins where the police leave off, and he merely supplements their labors and prepares for the actual trial itself. But the press he has always with him, and from the first moment after the crime up to the execution of the sentence or the liberation of the accused, the reporters dog his footsteps, sit on his doorstep, and deluge him with advice and information.
Now a curious feature about the evidence "worked up" by reporters for their papers is that little of it materializes when the prosecutor wishes to make use of it. Of course, some reporters do excellent detective work, and there are one or two veterans attached to the criminal courts in New York City who, in addition to their literary capacities, are natural-born sleuths, and combine with a knowledge of criminal law, almost as extensive as that of a regular prosecutor, a resourcefulness and nerve that often win the case for whichever side they espouse. I have frequently found that these men knew more about the cases which I was prosecuting than I did myself, and a tip from them has more than once turned defeat into victory. But newspaper men, for one reason or another, are loath to testify, and usually make but poor witnesses. They feel that their motives will be questioned, and are naturally unwilling to put themselves in an equivocal position. The writer well remembers that in the Mabel Parker case, where the defendant, a young and pretty woman, had boasted of her forgeries before a roomful of reporters, it was impossible, when her trial was called, to find more than one of them who would testify—and he had practically to be dragged to the witness chair. In point of fact, if reporters made a practice of being witnesses it would probably hurt their business. But, however much "faked" news may be published, a prosecutor who did not listen to all the hints the press boys had to give would make a great mistake; and as allies and advisers they are often invaluable, for they can tell him where and how to get evidence of which otherwise he would never hear.
The week before a great case is called is a busy one for the prosecutor in charge. He is at his office early to interview his main witnesses and go over their testimony with them so that their regular daily work may not be interrupted more than shall be actually necessary. Some he cautions against being overenthusiastic and others he encourages to greater emphasis. The bashful "cop" is badgered until at last he ceases to begin his testimony in the cut-and-dried police fashion.
"On the morning of the twenty-second of July, about 3.30 A.M., while on post at the corner of Desbrosses Street—," he starts.
"Oh, quit that!" shouts the district attorney. "Tell me what you saw in your own words."
The "cop" blushes and stammers:
"Aw, well, on the morning of the twenty-second of July, about 3.30 A.M."
"Look here!" yells the prosecutor, jumping to his feet and shaking his fist at him, "do you want to be taken for a d—n liar? 'Morning of the twenty-second of July, about 3.30 A.M., while on post I' You never talked like that in your life."
By this time the "cop" is "mad clear through."
"I'm no liar!" he retorts. "I saw the – pull his gun and shoot!"
"Well, why didn't you say so?" laughs the prosecutor, and the officer mollified with a cigar, dimly perceives the objectionable feature of his testimony.
About this time one of the sleuths comes in to report that certain much-desired witnesses have been "located" and are in custody downstairs. The assistant makes immediate preparation for taking their statements. Then one of the experts comes in for a chat about a new phase of the case occasioned by the discovery that the defendant actually did have spasms when an infant. The assistant wisely makes an appointment for the evening. A telegram arrives saying that a witness for the defence has just started for New York from Philadelphia and should be duly watched on arrival. The district attorney sends for the assistant to inquire if he has looked up the law on similar cases in Texas and Alabama—which he probably has not done; and a friend on the telephone informs him that Tomkins, who has been drawn on the jury, is a boon companion of the prisoner and was accustomed to play bridge with him every Sunday night before the murder.
Coincidently, some private detectives enter with a long report on the various members of the panel, including