He has the right to make
his own powerful appeal to the jury and to have the services
of the best lawyer he can secure to sway their emotions and
their sympathies. If the prosecutor resorts to eloquence he
is stigmatized as "over-zealous" and as a "persecutor." If a
plainly guilty defendant be acquitted, not the trampled ideal
of justice, but the vision of a liberated prisoner rejoicing
in his freedom hovers in the talesman's dreams.
So far so good; we can afford to stand by a system which in
the long run has served us fairly well. But an occasional
evil, an evil which when it occurs is productive of great harm
and serves to give color to the popular opinion of criminal
law, begins only when the lawyers have had their opportunity
for elocution. At the conclusion of the charge the
defendant's attorney proceeds to put the judge through what
is familiarly known as "a course of sprouts." He makes
twenty or thirty "requests to charge the jury" on the most
abstract propositions of law which his fertile mind can
devise,--relevant or irrelevant, applicable or inapplicable
to the facts,--and the judge is compelled to decide from the
bench, without opportunity for reflection, questions which the
attorney has labored upon, perchance, for weeks.
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