IV.
The deliberate effort to excite the emotions of jurors still in the grip of war fever is not unparalleled in the legal history of the times. During the year 1918-19 in the United States, forty-four convictions were reversed by appellate courts for misconduct of the trial judge or the public prosecutor; thirty-three of them for inflammatory appeals made by the district attorney on matters not properly before the jury. Appellate courts interfere reluctantly in such cases and only where there has been a flagrant abuse, so that we may safely assume the above figures indicate an even more widespread evil. What is unparalleled is that such an abuse should have succeeded in a Massachusetts court.
As things were, what wonder the jury convicted? The last words left with them by Mr. Katzmann were an appeal to their solidarity against the alien: "Gentlemen of the jury, do your duty. Do it like men. Stand together, you men of Norfolk." The first words of Judge Thayer's charge revived their memories of the war and sharpened their indignation against the two draft-dodgers whose fate lay in their hands: "The Commonwealth of Massachusetts called upon you to render a most important service. Although you knew that such service would be arduous, painful, and tiresome, yet you, like the true soldier, responded to that call in the spirit of supreme American loyalty. There is no better word in the English language than 'loyalty.'" It had been to the accompaniment of this same war motif that the jurors were first initiated into the case: by the license allowed to the prosecution it had remained continuously in their ears throughout the trial; and now by the final and authoritative voice of the Court it was a soldier's loyalty which was made the measure of their duty.
The function of a judge's charge is to enable the jury to find its way through the maze of conflicting testimony, to sift the relevant from the irrelevant, to weigh wisely, and to judge dispassionately. A trial judge is not expected to rehearse all the testimony; in Massachusetts he is not allowed to express his own opinion on it. But in drawing the disconnected threads of evidence and marshaling the claims on both sides he must exercise a scrupulous regard for relevance and proportion. Misplaced emphasis here and omission there may work more damage than any outspoken comment. By his summing up a judge reveals his estimate of relative importance. Judge Thayer's charge directs the emotions only too clearly. What guidance does he give to the mind? The charge occupies twenty-four pages; of these, fourteen are consumed in abstract legal generalities and moral exhortations. Having allowed the minds of the jurors to be impregnated with war feeling, Judge Thayer now invited them to breathe "a purer atmosphere of unyielding impartiality and absolute fairness." Unfortunately the passion and prejudice instilled during the course of a long trial cannot be exorcised by the general, placid language of a charge after the mischief is done. Every experienced lawyer knows that it is idle to ask jurors to dismiss from their memory what has been deposited in their feelings.