CHAPTER XXII.. Unusual Court Precedent.

UNUSUAL COURT PRECEDENT.

Judge August C. Backus' method of conducting the Schrank case has established a precedent for such cases, and the action of the court in establishing a new form of procedure has met with favorable comment on the part of lawyers, alienists, court officials and editors all over the world.

Instructing the commission of five alienists in its duties Judge Backus said:

Gentlemen of the Commission:

"You have been appointed as an impartial commission to examine into the present mental condition of the defendant John Schrank, who is charged with the crime of assault with intent to kill and murder Theodore Roosevelt, with a loaded revolver, on the 14th day of October, 1912, in the city and county of Milwaukee and state of Wisconsin.

"The court in this proceeding will finally determine the issue. I have decided to take this method of procedure instead of a jury trial, because as a rule in trials by jury the case resolves itself into a battle of medical experts, and in my experience I have never witnessed a case where the testimony of the experts on one side was not directly contradicted by the testimony of as many or more experts on the other side. Where men especially trained in mental and nervous diseases disagree, how can it be expected that a jury of twelve laymen should agree? Such testimony has been very unsatisfactory to the jury and to the court, and generally very expensive to the community.

"Bear in mind, gentlemen, that your appointment has not been suggested by either counsel for the state or for the defendant, or by any other party or, source directly or indirectly interested in this inquisition. You are the court's commission, and you must enter upon your duties free from any bias or prejudice, if any there be. You should assume your duties, and I know you will, with the highest motives in seeking the truth, and then pronounce your judgment without regard to the effect it may have upon the state or upon the defendant; in other words, in your inquiry and deliberation you are placed on the same plane as the judge.

"If any person seeks to influence you or talks to you as a commission, or to any member of the commission, who is not duly requested to appear before you, report him to the court so that an order to show cause why he should not be punished for contempt may issue.

"If there be any witnesses you desire, the court will command their attendance. The court will grant you the services of a phonographic reporter so that everything that is said and done may appear of record.

"This commission may now retire, select a moderator and proceed with the inquiry.

"Now, gentlemen, perform your duties fairly and impartially and render such findings to the court as your consciences and your judgments approve.

"The question for your determination is, 'Is the defendant John Schrank sane or insane at the present time?'"

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Editorial comment from three newspapers is herewith presented as showing the general trend of comment on the course followed by Judge Backus:

The Milwaukee Free Press said:

"The findings of the alienists appointed by Judge Backus to determine the mental condition of Schrank were foreseen. There has been little doubt at any time of the derangement of that unfortunate man. This fact, however, does not detract from appreciation of the excellent and novel course pursued by Judge Backus in taking advantage of the statute that permitted him to submit the question of Schrank's sanity to a body of alienists appointed by himself instead of leaving the question to a jury at the tender mercy of alienists employed alike by state and defense.

"The judge justified his procedure in these words, when instructing the examining physicians:

"'I have decided to take this method of procedure instead of a jury trial, because as a rule in trials by jury the case resolves itself into a battle of medical experts, and in my experience I have never witnessed a case where the testimony of the experts on one side was not directly contradicted by the testimony of as many or more experts on the other side. Where men specially trained in mental and nervous diseases disagree, how can it be expected that a jury of twelve laymen should agree? Such testimony has been very unsatisfactory to the jury and to the court, and generally very expensive to the community.'"

"Worse than that. It has been a scandal to the medical profession, a source of travesty to judicial procedure and all too often a means of defeating the ends of justice.

"The very course pursued by Judge Backus was advocated by President Gregory of the American Bar association not very long ago, and the outcome in this instance at least is such as to recommend its adoption by the bench wherever the statutes permit."

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The Chicago Record-Herald said:

"It is notorious that 'expert testimony' is too often confused and confusing testimony which jurors and judges feel themselves bound to disregard in favor of mere horse sense. The stated experts are matched or overmatched by the experts for the defense, and the conflict of 'scientific' testimony assumes in many cases the proportions of a public scandal.

"Hence the 'Wisconsin idea' as applied by Judge Backus of Milwaukee, who is presiding over the trial of John Schrank, is an admirable one. Under a statute of Wisconsin a judge may summon a certain number of experts and make them officers of the court. They testify as such officers, and presumably the state pays them reasonable fees. Under such a plan as this there is no temptation to strain science in the interest of a long purse, and impartial opinions is likely to be the rule.

"Statutes similar to that of Wisconsin are needed in all other states. 'Expert testimony' has long been a byword and reproach. Of course, under Anglo-Saxon jurisprudence no defendant can be deprived of the right to call witnesses of his own choosing, and after all a medical expert is only a witness who gives opinions instead of facts. Still, a law which authorizes the court to call truly impartial experts would not seem to be 'unconstitutional.' It is certainly not unfair or unreasonable from the lay point of view."

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The Saturday Night of Toronto, Ont., said:

"In the stress attending on matters of greater moment which have been occupying the attention of the daily press of late, the judicial wisdom of Mr. A. C. Backus, municipal judge of the city of Milwaukee, charged with the task of trying John Schrank, the man who attempted to slay Col. Roosevelt, has been overlooked.

"Nevertheless, he established a precedent with regard to the trial of prisoners where insanity is the only defense, that should be copied not only by every state of the American Union, but by every province of Canada.

"It was not generally known that the laws of the state of Wisconsin gave a presiding justice the plenary powers he has exercised, but every good judge who has presided over cases where alienists have been employed to furnish testimony must have yearned for similar authority.

"In the Schrank case Judge Backus decided to eliminate all direct testimony by alienists, and to constitute such experts into an auxiliary court who should co-operate with him in the final judgment of the case.

"His auxiliary, consisting of five physicians, was directed to elect a moderator who would preside over their deliberations and decide the issues of sanity or insanity in case of a deadlock.

"It would be difficult to say what objection could be taken to this system in any case where alienists are subpoenaed. It is even possible that by carefully protecting the rights of the prisoner the same system could be worked out in any case where medical testimony beyond the mere proving of the crime is required. In many murder cases physicians have been heard swearing to contrary positions until the jurors, disgusted with the confusion of the testimony, have simply thrown up their hands, neglected their duty to consider the reasonable facts of the case, and allowed murderers to go free.

"Judge Backus has taken a forward step in the administration of justice on this continent, and it is to be trusted that the effects of it will be far-reaching."