United States v. Wingert, 4867.

• Citation: 55 F.2d 960
• Decision Date: 06 February 1932
• Docket Number: No. 4867.,4867.
• Parties: UNITED STATES v. WINGERT.
• Court: U.S. District Court — Western District of Pennsylvania

55 F.2d 960 (1932)

UNITED STATES v. WINGERT.

No. 4867.

District Court, E. D. Pennsylvania.

February 6, 1932.

Paul Freeman, Asst. U. S. Atty., and Edward W. Wells, U. S. Atty., both of Philadelphia, Pa.

Francis B. Biddle, of Philadelphia, Pa., for defendant.

Before DICKINSON and KIRKPATRICK, District Judges.

DICKINSON, District Judge.

The motive and purpose of this proceeding calls for a rather lengthy preamble.

Those accused of crime have two dearly bought rights now confirmed to them by the practice of a quarter of a millenium. One is the right to a fair trial, and the other to the equal and even more valuable right of protection from arrest except on probable cause and from the ignominy, loss of time, and expense following unfounded accusations. The latter is afforded by the provision of the Fourth Amendment and the practice that no one shall be put on trial until some responsible official or tribunal has found that he should be so tried. Ordinarily this protection is afforded (or at least heretofore has been) by the requirement (1) of a complaint under oath before any arrest; (2) a binding over by a committing magistrate; (3) the right to invoke the judgment of a court into the causes of a commitment; and (4) the finding of a grand jury. There is a fifth protection which, when given, is of more practical value than any of the others. This is afforded by the refusal of a fair-minded prosecuting attorney to press an unfounded charge. This official has an opportunity to know the facts and can bring to his decision a judgment trained by experience. Whether for good or ill we have lost the benefit of this. The drift to what is known as the policy of "centralization of power" has shifted the decision of what prosecutions shall be brought or pressed from the United States Attorney who knows all the facts to an official 150 or 3,000 miles away who does not and cannot know them. The latter is per force compelled to decide the question upon some broad general policy which, however sound, may be inapplicable under the particular facts of a particular case. The United States Attorney, who is on the ground, is in consequence powerless to pass upon the propriety of the prosecution, and the accused, not only loses a right of great value to him, but what concerns directly the courts our lists are cluttered up with cases which the developments of the trial show should never have been brought. The ordeal of trial to which an innocent defendant is thus subjected is no light matter, and emphatically so in a court of the United States. In a county court he is afforded another real protection in the fact that he is tried by a jury to whom he is not altogether unknown. In a United States court he is taken to a distant place for trial, and is among strangers to whom he is known only as one accused and hence probably guilty of a more or less heinous offense. His name is bruited about in the newspapers as a felon and prospective convict, and his offense described in the lurid verbiage of an indictment. It is true that the language of indictments has been somewhat softened, and he is not said, as formerly, to have been "instigated by the Devil" but even yet indictments are by no means complimentary in phraseology. The charge against him usually starts from some private source, often in hiding, as the writer of an anonymous letter. This goes to a highly trained band of official investigators whose efficiency is measured by the number of prosecutions brought. These men are chosen for their capacity to become real sleuth hounds of the law, and they are trained to the minute. What is expected of them, and this is backed by the professional instinct, is that a case be built up and presented against the accused. They are all men of a high type, considerate, and fair, but they are human, and failure means professional and official defeat. The preparation for the trial is often at a cost which reaches the proportions of what to many people would be a fortune. The accused is forced to go to a corresponding expense in the preparation of his defense. Unless he does so, no matter how innocent, he is doomed. The mere expense to which he is thus subjected is in itself no light matter. There is another feature of practical moment. If a hearing be given the defendant, he has some knowledge which is a great aid in the preparation of his defense. If an indictment is secretly found and a bench warrant follows, a defendant may be hauled into court by "railroad." We are glad to bear witness that this is not done, but the power is fraught with the possibilities of frightful abuse. Of course it may be objected to all this and will be that under our system of administering legal justice there is more danger of the escape of the guilty than the conviction of the innocent. This, however, is aside from the mark, for we are not discussing trials but protection from unfounded charges, and as a matter of pure policy the elimination of trivial and unfounded accusations will not obstruct but will aid in the conviction of the really guilty.

Since the ruling in United States v. Thompson, 251 U. S. 407, 40 S. Ct. 289, 64 L. Ed. 333, the practice has grown up of having those who are to be tried indicted in the first instance by a grand jury. All the protection before given accused persons is thus cut out except that given by the grand jury. This changes our system from what we had to the "J' Accuse" system. We can readily understand that this is a great convenience to the United States Attorney and the inspector officers. It is, however, at the cost of ignoring the United States Commissioners and of denying to the accused the right, through a denial of the opportunity, to get the judgment of the court upon the question of probable cause. It may be said, of course, that the accused still has the protection of a finding by the grand jury as before, but this becomes no more than a star chamber proceeding with a carefully prepared prima facie case submitted with all suggestions of what may be behind it shut out. When the United States Attorney has submitted and the grand jury has found a true bill, the defendant cannot be tried because not in court. So far as any one has been able to suggest, there is no other way of getting him before the court than by the issuance of a bench warrant. The question then arises of whether one should issue as a matter of course or whether the court may lawfully exercise its judgment before issuing it. In practice such bench warrants are issued whenever there is, as there usually is, justification for the issue.

This proceeding has been brought by the United States Attorney at the suggestion of...