Posted by: Democratic Thinker | August 13, 2010

Stout—Where the Law Fails

American Debate

Judge Robert L. Stout, of the Fourteenth Judicial District of Kentucky, addresses the bar with his concerns about the education of lawyers and the thwarting of justice by administering on technical points of law rather than on substance.

In summing up this branch of our subject, I suggest that the failure of the law, in both civil and criminal branches, lies in a too great devotion to technicality, and the remedy is to withhold that devotion. Let us look to the substance rather than to the form of administering justice.

of the Eighth Annual Meeting
of the
Kentucky State Bar Association
Held in Paducah, Ky.
July 7 and 8

Morning Session, Thursday, July 8.

Address: “Where the Law Fails.”

Hon. Robert L. Stout, Versailles.

The President: We will now have the paper of Judge Robert L. Stout, on “Where the Law Fails.”


Mr. President and Gentlemen:

THE duty of pointing to and exploiting failure commends itself to no generous or considerate man. I make some pretensions to both generosity and consideration. I never sympathized with the mother who told her elder boy to “go and find what Johnnie is doing and tell him to quit it.”

Some years ago, I read of a lawyer who found a small, but fatal, defect in a deed conveying a fortune to an irreproachable gentleman, which divested him of the title, while investing it in a contemptible cad. In commenting upon the lawyer’s discovery, the novelist compared him to a beetle crawling over Westminster Abbey, totally blind and oblivious to the beauty and grandeur of the architecture of that stately edifice, but discovering with an unerring precision the crack in the floor. Surely the role of beetle is unenviable, unless it serves some good purpose: So with the subject, “Where the Law Fails,” unless I may point out some way to remedy the failure, I accomplish nothing more than the carping faultfinder, whose purpose is done when he gleefully points to his better brother’s glaring faults.

My object is to offer to this Association some few suggestions whereby we may make the mansion of the law more stately, more enduring and more compelling in its right to respect.

If I speak of the failures known of all men and yet are not corrected, I may not only be pardoned, but may even be congratulated, for, by constant appeal and importunity, we may at last have a favorable hearing—the petition for re-hearing can not be overruled always.

To undertake to point out every weak spot where the law fails is to undertake a Gargantuan task, impossible and inappropriate here. I shall content myself with pointing out a few defects and offering such remedy as presents itself. In the first place, I am convinced that the most conspicuous failure is in the administration of the law and not in the law itself. And the first defect is in adhering too closely to technicality in criminal cases.

Courts must administer justice according to rules, which is technicality. I do not deplore technicality; it is just as necessary in the laws as in engineering, but it should never be permitted to delay, thwart or deny justice. When it reaches that point generally and the lay mind once understands that justice is subservient to the mere rules of the profession, my advice to the various fiscal courts is to increase the insurance on the courthouse, if it can find a foolish agent.

If courts are really places where justice is judicially administered, why, then, let us administer it according to a sound judgment, rationally, wisely and discerningly, just as it is administered in the McCracken Circuit Court. A blind devotion to the form and technicalities of the law is followed nowhere except in courts of last resort. Parenthetically, I want it distinctly understood that what I say of courts of last resort has and shall have no reference to the Court of Appeals of Kentucky, unless I should happen to say something good. If I should say something nisi bonum, it, at any rate, shows the court is not a dead one.

In criminal procedure and practice, the law conspicuously fails to administer justice as the law should be enforced. Punishment should be a certainty following the infraction of the law as surely as the shadow follows the substance. The statement recently made in the metropolis of this nation, the statement that stands unchallenged and uncontradicted—that it is impossible to convict a millionaire of crime—is the most shameful commentary upon our methods of administering criminal justice, or of criminally administering justice, as you choose to take it, that ever caused an honest citizen to blush or to think. Is that statement true? If it is, why? The juries of this country are all right and the fault does not lie with them. They rarely fail to plumb the line in the trial of criminal cases. They usually give the guilty exactly “the punishment to fit the crime,” no matter whether an indictment for murder fails to charge that the act was done with malice aforethought or that an indictment for larceny fails to charge that the thief intended to permanently deprive the owner of his property. The jury, even with such “fatally defective” indictments, usually brings in a verdict in accordance with the facts. If that verdict is guilty, does the malefactor suffer the penalty? For answer, I beg leave to refer you to 1st Technical Reports, page 1, reported from forty-six States in the Union. I do not want you to understand that I believe juries are without fault. Being human, subject to error, human sympathy, human passion, bias and prejudice, they, therefore, sometimes miss the mark or do not measure up to the standard. These times are rare, but they are sometimes imposed upon by the perjurer swearing for his life or liberty. I must confess, too, that they are frequently taken in by the boldest, most brazen and flimsiest plea. To illustrate: Some years ago, a murder was committed in our State under such peculiarly shocking and brutal circumstances that it attracted more than local attention. Among those who followed the case in all its details was a celebrated prosecuting attorney, now dead. The jury returned a verdict of not guilty on the ground that the accused had exercised his right of self-defense. The old prosecuting attorney, in commenting upon the finding and the jury’s reason therefore, said that the plea of self-defense in that case was like that offered by the bartender. Two gentlemen of Hibernian extraction were holding a wake in a room over a saloon. In the early morning the whisky gave out; they waited with what patience they had until the barkeeper was heard in the room below; the two watchers were penniless, but the drink must be had; so they devised the plan of taking the corpse down stairs and, while the bartender was stooping under the counter washing glasses, they propped the dead body against the bar and pulled a hat over the face; the dispenser of the liquid refreshment looked up and a voice mumbled:

“Three whiskies.”

Three whiskies were poured and two consumed while the bartender returned to his task. Two Irishmen disappeared just as the barkeeper arose and demanded his pay of the dead man. Naturally the corpse did not respond. Whereupon the barkeeper said:

“Now, look here, I want my money. This is the third time this week I’ve had this thing played on me. I’m going to stand it no longer, and if you don’t pay me thirty cents, I’m going to get my money’s worth with this bungstarter.”

Still no reply, no move to produce the money. He swung the bung-starter, hit the corpse over the head and knocked it to the floor. The two friends then rushed in, shouting:

“You’ve killed my friend! You’ve killed my friend! !”

The barkeeper said:

Sure, I’ve killed him. Didn’t the son-of-a-gun draw a knife on me?”

Self-defense is worked overtime in Kentucky. But I can offer no remedy to correct this failure. If the juries are not to be held accountable for the failure in this branch, then we must kindly, but firmly, arraign the courts and look to the Legislature. Our courts ought not to permit a criminal to go unwhipped of justice simply because he has not been formally convicted. If courts would depart from precedent when such departure is reasonably sure to secure justice, then the reform is accomplished, and it would be impossible for even the millionaire to escape the consequences of crime. “The reason of the law is the life of the law.” So when the reason moving a certain course no longer exists, the course itself should be abandoned. Under our system of criminal law, the accused has too great advantage, advantages, too, which are no more accorded for cause, e. g., the law allows fifteen peremptory challenges to a defendant accused of felony, and five to the State. The reason has long ago ceased, yet the practice is continued. The Legislature ought to correct this failure, for no man now is tried by the witnesses to the fact. The only reason now for continuing this privilege is one which should demand its discontinuance—it gives the defendant opportunity to pack the jury and ties the hands of the Commonwealth. The Legislature ought to be called upon to aid the State in the prosecution of criminals in the way of minimizing perjury. Witnesses go before grand juries to testify, and when indictments are returned based upon that very testimony, they come into court, swear to an entirely different statement, and the criminal goes acquit. An easy way to correct this evil is to secure an act permitting the attorney for the Commonwealth to have the statements of witnesses before the grand jury taken by a stenographer, those statements transcribed and then be made admissible against the false swearer. The average grand juror can not testify with any degree of certainty as to exact statements made by witnesses before the body of which he was a member. I believe that some provision such as suggested would go a long way toward eliminating false swearing before grand and petit juries by witnesses who experience a change of heart after securing an indictment. Sometimes I have been inclined to think that courts of appeal, supposed to pass only upon the law involved in criminal cases, are tempted to review the facts in such cases, and, worse, being tempted, they yield to the temptation. Juries are properly the sole judges of fact. When presented by the living witness, it is a difficult proposition from that same proposition presented by the written record. The court can not see the witness, his bearing, his physiognomy and his conduct; it can not hear his voice, nor observe his manner. A look, a tone, an accent, a movement, impossible to put on paper, may, and often does, compel a jury in its opinion. So I say the appellate court should be loath to dip into the facts as presented to it by the record in a criminal case. For, after an excursion into the mazes of record facts, an appellate court, if convinced that wrong has been done, is mighty likely to go mouse-tracking through the more intricate mazes of technicality in order to find a pretext for freeing a criminal unable to bamboozle a jury of his fellow citizens. Let the shoemaker stick to his last. The courts are the best judges of law, the juries are the best judges of facts, and for this reason I am in favor of letting juries try criminal cases.


NASHVILLE, TENN., July 5.—In a statement published today, Attorney General Caldwell, who prosecuted and convicted the night riders at Union City, Tenn., several months ago, and whose cases were reversed by the Supreme Court last Saturday, scores the members of that tribunal for their decision. Among other things, General Caldwell says:

“I should not complain if they had gone into the facts of the case and had seen proper to say that the facts did not warrant a conviction, but for them to reverse so important a case on mere technicalities occurs to me as being a travesty on justice. They had a complete record before them. Were the defendants guilty? If not, go into the facts and say so and I would be the last one to complain, but in the name of justice let no guilty one escape because of flyspecks.

“I may be wrong, but in my opinion these three judges have committed a judicial blunder such as has not occurred for a hundred years in Tennessee jurisprudence. Of course, I accord them honesty and sincerity, but the god of justice pities their judgment.

“None of those who are in a position to know can realize the full meaning of the decision. According to the same, I see no way to ever have a trial of the case again. Retributive justice must be left to an avenging God.”

In summing up this branch of our subject, I suggest that the failure of the law, in both civil and criminal branches, lies in a too great devotion to technicality, and the remedy is to withhold that devotion. Let us look to the substance rather than to the form of administering justice. The law will then be venerated and our dear old Kentucky will cease to be a mark of cheap jokes, jokes teeming with such bitter truth as to cause the blush of shame to mantle the brow of every one of her sons. Do not let us cling to custom simply because it is custom and hoary with age. Such policy may lead to absurdity and disaster, just as in the case of the governor of an English jail. This governor was informed by an earl that the Fenians were to destroy the jail at a certain time; the governor demanded the source of the information; the nobleman could not give it because he had received it in the strictest confidence; the governor thereupon informed him that the custom prevailing for centuries in the management of that jail forbade him receiving or using any information concerning the jail unless such information was accompanied by the name of the informer. His lordship refused to give the name; the governor refused to receive the information and the jail was destroyed by dynamite strictly on schedule time. Such customs should be abandoned. Age can not make them either sensible or respectable.

If the law fails in administering justice, it no less fails in safeguarding and protecting itself through failure to require the members of the profession to meet certain requirements of conduct, character and education. Is the law now a learned profession, a profession at all, or is it merely a business? If it is a business, can it be any more respected or respectable than any other business? Is the lawyer entitled to any more consideration for his opinion, influence or example than the butcher, the baker or the candlestick maker? If we have degenerated into a set of business, instead of professional, men, we have ourselves to thank. But we can also remedy that failure. And we must do it. Kentucky as to matters educational is going forward by leaps and bounds, but our profession is slumbering the profound sleep of the callous or indifferent. So we realize that the requirements for admission to the bar are necessarily the veriest makeshift.

Some years ago, an office was created and the occupant of the place had, under the law, to be a licensed lawyer. The powers that then were selected a gentleman who did not have a license. A complaisant court was found and an accommodating committee was appointed, which made the following report:

“We have examined A B, the applicant, and he correctly answered every question we asked him touching his knowledge of the law. We recommend that license be granted him.”

An old lawyer, knowing the facts, asked a member of the committee how such a report could be made. He was amazed at the answer:

“Well, we asked him what he knew of the law. He answered, ‘Not a d———n thing,’ and the examiners were satisfied that the answer was correct.”

Are our requirements much stricter or harder to comply with? This Association had done what it could, only to be thwarted in a quarter where it expected to find hearty cooperation. The profession stood amazed when the Milliken-Burnam bill was vetoed. Surely in America, with its boasted liberty and freedom, the sympathy of all men naturally and properly goes out to the man struggling to better his condition. But this sympathy should not become maudlin and allowed to menace the State. In one State the young man ambitious to become a great light in the legal firmament is not even required to undergo a perfunctory examination! He hangs out his shingle and thus becomes a lawyer. And so, with special privileges to none, and equal opportunities to all that State removes all restrictions from the path of the individual seeking to enter the law. If the citizen is born with the right to practice law, why is he not born with the right to practice medicine, pharmacy or to exercise the right of suffrage?

The sovereign power surely has the right to prescribe conditions before it confers rights, and it may say what right shall be conferred and what qualifications be met before they are conferred. Especially is this true when the exercise of those rights closely affects the public and the State.

In one of the reports of the President of the Carnegie Foundation for the Advancement of Teaching, there appears an article written on the subject of “Professional Education in Law and Medicine.” The author deprecates the fact that those noble professions are degenerating into business and sums up an able protest against that tendency in these words:

“The low terms of admission to great callings are partly responsible for these conditions. So long as the door stands open to the poorly educated, the ill-prepared and the morally weak candidates, so long will the calling be pulled down beneath the level of a true profession. There is no way by which the public can assure itself that every man who enters either of these professions ought to do so. But it can at least exclude the manifestly unfit by the just requirement of a fair general education and proof of a knowledge of the fundamental sciences upon which the profession rests. Thus both public interests and the integrity of the professions may be conserved. The question whether law is to be a business or a profession is a critical one in determining the stability of popular government.”

The able report of your Committee on Legal Education, read before the Association in 1908, is commended to every lawyer in the State who is a professional man and desires his profession to remain so. Even if we should have no more or greater qualification than a train dispatcher, we should at least have as great. Where is the train dispatcher with no more qualification than is required for admission to the Kentucky bar who could direct a hand-car to go four miles, rescue a lost crow-bar and return to the section gang?

In conclusion let me say that, notwithstanding the failures of the law, I believe it to be the grandest system of rules prescribed for human conduct that has yet been devised by mortal mind. It is a noble mansion wherein we seek to install Justice and her handmaidens. If my pointing out a crack or two in the floor should, perchance, serve to call the attention of those who may prevent the crack from widening into a destructive breach, causing the walls to totter and finally to fall, then my task is not in vain, nor do I regret playing the part of the crawling beetle.

I must ask your pardon for inflicting upon you this paper, prepared at odd times, under many difficulties and amid frequent interruptions. If you listened patiently, you must either be the father of a small boy or the judge of a circuit court. If you listened forbearingly, you must be full of the milk of human kindness. If you listened critically, why, then, you have been a very busy man, and now, expressing the hope that you all agree that the law fails (particularly in criminal cases) because it clings to technicality at the expense of justice, and that it fails to provide proper or sufficient qualifications for those seeking to enter the profession, and that you will endeavor to correct those defects, I thank you.

Related article:
Peremptory Challenges: The Reelfoot Lake Night Rider Trial (PDF)
Donald F. Paine, Tennessee Bar Journal (May 2003; Vol. 39, No.5) p.26.