People v. Diamond

The defendant, a captain of police, has been indicted upon the charge of willfully neglecting to suppress a disorderly house within his precinct in the city of New York, and he makes this application for the removal of the trial of the action from the court of general sessions of the peace in and for the city and county of New York “to the supreme court of the state of New York

“A criminal action, prosecuted by indictment, may at any time before trial, on the application of the defendant, be removed from the court in. which it is pending, as provided in this chapter, in the following cases: 1. From a county court or a city court to a term of the supreme court held in the same county, for good cause shown. 2. From the supreme court, or a county court, or a city court, to a term of the supreme court held in another county, on the ground that a fair and impartial trial cannot be had in the county or city where the indictment is pending.” Code Or. Proc. § 344.

The standard of fairness which the law contemplates has been often judicially declared. “The fairness of a trial should be above and beyond suspicion, and no court should allow a trial by a jury of a vicinage the general opinion and belief of which, upon the matters, involved in such a trial, either party has industriously, through newspapers, sought to form. To do this would simply encourage parties, in advance of actual trial, to create prejudice and bias, in the hope of benefit to follow from a legal investigation before men, some of whom, at least, might have obtained their views and judgments of a cause elsewhere than in the court room.” Moulton v. Beecher, 52 How. Prac. 186. The possibility of selecting a jury in the county which would be apparently unprejudiced is not the test of such an application as this, for where there is a general sentiment adverse to the party on trial, and a strong probability that bias exists throughout the community, he should not be compelled to take the risk of coming before a jury whose members, or some of whom, are influenced by adverse sentiments which may be undiscovered in the course of examination, or which, indeed, may be not fully appreciated by the jurors themselves. See People v. Webb, 1 Hill, 179 . Although support may be found in certain of the earlier decisions in this state for the proposition that before such an application as this should be granted the impossibility of obtaining a jury should be demonstrated by an actual attempt and failure to obtain one (Bowman v. Ely, 2 Wend. 250 ; Messenger v. Holmes, 12 Wend. 203 ), the later and better decisions repudiate it (People v. Webb, supra; People v. Railroad Co., 16 How. Prac. 106; Budge v. Northam, 20 How. Prac. 248; People v. McLaughlin, 150 N. Y. 365 , 380, 44 N. E. 1017 ). Indeed, the obtaining of a jury apparently impartial would seem to be the very danger agaipst which this provision of the statute is intended' to shield a defendant. Against obvious prejudice, such as can t>e made to appear upon the record, courts can protect; but this statute

“To make such an experiment essential would seem to be quite dangerous. It [the trial] is the very thing which the law seeks to avoid when it is seen that the party may, and probably will, be drawn into a trial by a jury, who, under an influence of which they may themselves be hardly conscious,—an influence which perhaps no human sagacity can detect,—-may pronounce a verdict against him, and conclude his rights forever. Above all would it be dangerous to require that he should risk his trial by a panel selected from a community already sought to be influenced by the course of the press; that very panel being personally appealed to by the opposite party’s own press, or one put in motion by him, or by some other person.”

This language was quoted with-approval by the court of appeals in People v. McLaughlin, 150 N. Y. 365 , 379, 44 N. E. 1017 , 1021, in which case the court further said on this point:

“That jurors are sometimes prejudiced, and courts may be unconsciously biased to the injury of one of the parties, must be admitted. Prejudice is often an insuperable barrier to the fair and impartial administration of the law. Its influence is subtle, insidious, and often unconsciously warps the judgment and blinds the intelligence of those surrounded by its atmosphere. But its presence can usually be discovered only from the circumstances and conditions which produce it.”

In reaching my conclusion I havé not overlooked any of the arguments advanced by the district attorney against granting the application. One of these arguments is that the refusal of the grand jury recently to indict a sergeant of police on. the'charge of murder in a case where the district attorney felt the evidence demanded an indictment is “conclusive evidence of an entire lack of passion or sentiment in the community, or of any tendency on the part of the representative members thereof to deny a police official accused of crime the benefit of an}*- reasonable doubt.” To my mind, this circumstance is wholly immaterial on the point in issue. There is no public agitation on the subject of police murders, or police burglaries, or any other alleged offense save only the one of accepting bribes to leave vicious resorts unmolested. Another of these arguments is that the ease with which a jury, claimed to have been unbiased, was obtained on the Bissert trial, shows that the same can be done in this case. The answer of the defendant’s counsel to this contention is that questions tending to show bias were excluded in that case, such as tl]e following:

“Q. Have you any prejudice against the police force of the city of New York? Q. Do you know an association or institution of this city known as the ‘City Vigilance League’? Q. Do you know an association or institution of this city known as the ‘Good Government Club’? Q. Do you know of an association—a voluntary association—of this city of some gentlemen commonly known as the ‘Committee of Fifteen’? Q. Have you any prejudice against the police department as a department? Q. Have you any prejudice, or has any prejudice been engendered in your mind by your reading, or by what you have heard against Captain Diamond of the officers in his precinct? Q. Are you a member of the Committee of Fifteen? Q. Did you contribute to or support the so-called Committee of Fifteen? Q. If it should appear in this case that this prosecution has been instigated against this individual defendant in order to secure and bring about political prejudice

against the police department, would that operate to prejudice your mind against this defendant?’

But, even if it appeared in the Bissert trial that inquiries had been allowed which were calculated to disclose .facts from which bias could be inferred, and no such facts had been disclosed, then it would only be demonstrated that a jury could be obtained that was apparently free from bias. But this, under the principle stated in People v. McLaughlin, supra, and People v. Webb, supra, is the precise thing to be guarded against. The bias which is so dangerous, in the language of the Webb Case, is that “of which they [who are under its influence] may themselves be hardly conscious,” and “which no human sagacity can detect,” and, in the language of the McLaughlin Case, which “can usually be discovered only from the circumstances and conditions which produce it.” If, therefore, there exist at the present time in this community,—as I am satisfied there do,—“the circumstances and conditions which produce” bias, and which, moreover, are the only sure means of discovering its presence, it is obvious that such presence could not be detected by the ordinary tests, and that the failure of such tests would show not that the bias does not exist, but only that it is of that subtle and insidious character which evades such tests, and unconsciously warps the sentiment and judgment of those in its atmosphere. As has been so often said by judges before, under similar circumstances, of other localities (see People v. Railroad Co., supra, at page 113; Budge v. Northam, supra, at page 254), the granting of this application for a change of venue involves not the slightest reflection upon the general impartiality of the citizens of this county. This ancient privilege of a defendant, which has been preserved and defined by statute, is one based upon centuries of experience of human nature as it is found to act under certain conditions. This provision no more reflects upon the integrity and honesty of people than does any other safeguard of the law. It simply recognizes human nature as it exists, and makes provision accordingly. Just as the statute itself is no reflection, so the application of it, and action under it when the facts warrant, are no reflection upon the community. Whether guilty or innocent, the defendant is entitled to be tried in a vicinage not charged with,the strong popular sentiment, whether well or ill founded, which here exists. As was said by the court in the McLaughlin Case, at page 375,150 N. Y., and page 1019, 44 N. E.:

“The right of every person accused, of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence. For the protection of persons accused of crime, the law, as a safeguard against local prejudice, has benignly provided this remedy.”

There is one other consideration on this branch of the case which I am led to advert to by the following pertinent observation made by S. B. Strong, J., in People v. Baker, 3 Parker, Cr. R. 181 , 195:

“During an experience of many years I do not remember a verdict in a criminal case in opposition to a strong public sentiment previously entertained and generally known. If that should be erroneous,—and it sometimes is,—it will probably lead to an unjust verdict. If there - should be a divided

sentiment, it would result in a disagreement, and the trial thus prove abortive.”

So, if the trial of this defendant should take place in this county, the jury might be made up of men who had prejudged the case against him or in his favor, or partly of each class, and the result might be an unjust conviction, or an unwarranted acquittal, or a disagreement. If the defendant’s attorney intends by this motion, the language of which is quoted above, to move under subdivision I of section 344, Code Cr. Proc., as well as under subdivision 2, it is plain from an examination of the section that he cannot have a decision in his favor under both subdivisions. Subdivision 1 provides for a removal to “a term of the supreme court held in the same county”; subdivision 2 for a removal to “a term of the supreme court held in another county.” It is true that the ground in the one case is “for good cause shown,” while that in the other is for the specific ground that “a fair and impartial trial cannot be had,” and that a defendant whose motion on the latter ground has been denied would still be entitled to a decision on the former and more general ground. But, as I grant this motion on the ground stated in subdivision 2, there is no necessity for any discussion of the case under subdivision 1. As above stated, I am satisfied that the conditions exist in this county, where the indictment is pending, which are contemplated by the statute under which this motion is made, and therefore that the defendant is entitled to a trial in some other county, where similar conditions do not exist. The place of trial will be designated in the order to be entered hereon. If the parties agree upon any county, I shall designate it; if not, I shall make a selection after hearing both sides upon the settlement of the order on two days’ notice.