A hundred years ago, if a trench collapsed and a worker was killed, that was a tragic accident. Now, it’s negligent homicide. Very large numbers of workers were in fact killed on the job—160-plus in the Triangle Shirtwaist Factory Fire in 1911. A hundred years ago if two men were in a fight and one of them died, police would ask whether it was a fair fight. A hundred years ago accused murderers were not infrequently seized by mobs and executed before trial. (In an 1898 newspaper which I tragically failed to make a copy of and now cannot find, I found a story about an accused murderer who was being returned to Ohio, where, according to the newspaper, he would be lynched as soon as he arrived.) A hundred years ago substantial numbers of black people were murdered in the South—in fact, I would predict that the murders of southern blacks alone, if they could be tallied, might exceed the number of homicides estimated by the NCHS study for the years 1900–1903. Medical malpractice leading to death, a hundred years ago, was never or virtually never investigated as murder. The killing of citizens by police officers was never or virtually never investigated as murder. Frank Hamer, who set up the ambush that killed Bonnie and Clyde, has been reported to have personally killed 65 people in the performance of his police duties. (In the 1920s the Texas Bankers Association offered $5,000 rewards to police officers for the deaths of outlaws. This led to several innocent people being set up and murdered by Texas police officers—a practice which Hamer is credited with having put an end to, busting up the murder ring.) The killing of strikers by hired strike-breakers (such as the Pinkertons) was not generally prosecuted as murder.
When I was in high school, the football coach used to work us hard on hot days and not let us have water. Of course, across the country a few kids every year would die from this practice, but … that was just the way it was. Kids still die occasionally from that kind of practice, but when it happens now, it is called reckless homicide. The estimate that there were only 1.1 murders per 100,000 people in the United States at the start of the 20th century is, in my view, utterly preposterous, at least in the modern understanding of the term “murder.”
From 1894 into the early 1930s, Oklahoma attorney Moman Pruiett defended 343 persons accused of murder. None of them was executed, and 303 or 304, depending on the source, were acquitted outright, although about the same number were probably guilty in fact. These are truly phenomenal numbers, to a modern reader, and we need to masticate them a moment before we can digest them. Moman—the name was a backwoods corruption of “Morman”—would not uncommonly defend two accused murderers a week in separate trials, sometimes three. Very rarely would any of these scoundrels be convicted, and if they were, Moman took it as a personal affront. He would carry his case to the governor, who would either be a close personal friend or a hated political rival, depending on the state and the season. If the governor could be cajoled or corrupted into issuing a pardon, he would get a pardon. If not, he would work on getting a new trial or getting a new governor, or both. Once, early in his career and before he had any serious connections, he had a client who was convicted and stood to be executed. He went to Washington, DC, knowing almost no one, finagled a meeting with the President, and convinced the President to issue a pardon.
It is hard to say whether Moman Pruiett should be described as a criminal lawyer, or just a criminal. He was both. Pruiett was born in Kentucky in 1872. His mother was a pioneer woman who made up in determination for what she lacked in teeth. Pruiett never went to school, apart from a few weeks one winter, but his mother was determined that he should be a famous orator, and she would occasionally drag him around Kentucky or Arkansas or wherever the hell the family was hunkering, so that he could listen to famous men speak. That was as much education as he got, and in his mid-teens he could neither read nor write, although even then he could talk pretty good.
Twice, as a young man, Pruiett was convicted of serious felonies (forgery and armed robbery) and sentenced to substantial terms in prison. One of the crimes amounted to murder, although Pruiett was not convicted of murder. A man well known to Pruiett was knocked unconscious and robbed, and his residence set on fire. The man died, and Pruiett was convicted of armed robbery.
And both times, after his conviction, Pruiett’s mother determined to convince the governor to pardon her son. She would ask for an audience with the governor, and she would plead his case, and when she was turned down she would be back the next week to plead it again, and when she was told to go away she would take up residence in the governor’s waiting room, begging for just a moment of his time. By this method she convinced first the governor of Arkansas, then the governor of Texas to issue a pardon for her beloved son.
Before and between his prison sentences Pruiett liked to hang around lawyers’ offices, fetching coal and running messages to the court. With a little help from the lawyers he taught himself to read, and he began studying the law books. He used his time in prison well. He got out of prison the second time in 1894, 22 years old, and was admitted to the Texas bar just months later, due to the influence of a judge who took a liking to him, and took the oath enabling him to speak to the United States Supreme Court in 1900.
He was a tall, vigorous, attractive man who dressed well in a Western fashion. He could quote from memory hundreds of long passages of law and legal opinion. He was eloquent, even mesmerizing. He would quote the Bible or Shakespeare or Abraham Lincoln, whatever the occasion called for, and he would do anything to win a case. He practiced mostly in Oklahoma, some in Texas, later on moved to Florida. Once, defending a woman who had killed her husband, he learned that the departed had been a member of the Ku Klux Klan, and that several Klansmen were on the jury. Undeterred, Pruiett used Klan code words to hint that he, too, was a Klansman, and put the poor widow on the stand to recite a history of abuse at the hands of the late husband, who she now claimed had been born in Italy. She was free and out of the state before anybody could prove she was just making it up.
One time, figuring out who would be on the jury and guessing correctly who would be picked as the foreman, Pruiett persuaded the defendant’s sister to move to Oklahoma, seduce the jury foreman and move in with him, never revealing that she was the accused man’s sister. Pruiett played poker with judges, and accepted acquittals to settle debts. His stock in trade, though, was common perjury. A rancher, John Evans, was arrested for killing his wife’s lover. He was tracked to and from the scene of the crime by the horseshoes on his horse. Pruiett produced a blacksmith who swore he had not put those shoes on the horse until days after the murder, and a stockman who swore that, on the morning of the murder, the horse had been bred to one of his mares. Oklahoma jurors knew that horses are not shod during breeding, for the same reason you and I don’t wear iron gloves during sex. The stockman, challenged to do so, produced a record book and a receipt for the stud fee. John Evans was acquitted.
In some cases, Pruiett probably arranged for key witnesses to be kidnapped and unavailable at the time of the trial. Incredible as this sounds today, that practice was not terribly uncommon at the time; witnesses in trials in that era frequently failed to appear, and by no means was it only defense lawyers who arranged this; most of the time it was the prosecutors. At that time there was no federal law against kidnapping, and no one, in 1910, would ever have thought to term the private detention of a potential witness as “kidnapping.” They might have recognized it as an unlawful act, certainly, but would not have placed it, as we would, in the same category as “holding a person for ransom.”
Some of his clients were no doubt innocent. In 1913 Oklahoma Senator Thomas P. Gore, who was blind and Gore Vidal’s grandfather, was accused of attempting to rape a young woman named Minnie Bond. Pruiett defended him, and earned an acquittal that was probably justified by the facts; Gore was a lecher but probably not a rapist. (Thomas P. Gore may have been very distantly related to the family of Al Gore, but there is no clear connection.)
According to numerous possibly reliable sources, Pruiett tried 342 murder cases, resu
lting in 304 acquittals, 37 convictions on lesser counts, and one conviction for murder, which was subsequently set aside by presidential pardon. While I wouldn’t want to bet a lot of money that these numbers are accurate, a modern reader must wonder how they are even possible.
There are uncanny parallels between Moman Pruiett (1872–1945) and Earl Rogers (1869–1922). Both men were remarkably successful lawyers who secured the release of dozens if not hundreds of probably guilty murderers; Rogers’ Wikipedia entry claims a won-lost log of 74–3. Both men were nice-looking, extremely well dressed, and usually divorced. Both lived with the boldness of heroes, projecting fantastic self-confidence while undertaking formidable tasks. Both men were political insiders who battled against the establishment on behalf of reprobates and peddled influence inside the establishment on behalf of banks and oil men. Both men were alcoholics who fell near if not actually into the gutter when the bubble of alcoholic courage collapsed underneath them. Both men would do whatever was required to win a case. Although the evidence against Rogers is not as clear as the evidence against Pruiett, Rogers’ commitment to victory was absolute, and his string of successes is nearly inexplicable.
Although both men earned very large amounts of money in their legal practice, Rogers by the age of 50 was living in a room in his daughter’s house, sneaking out occasionally to get lost and get drunk, while Pruiett died at 73, at the time living in a 50¢ a night flophouse, bumming whiskey from strangers in seedy bars.
And both men became the subject of wonderful books. I thought about drawing up a list of the 100 best crime books ever, decided not to. A consensus pick for number one would be In Cold Blood, and I don’t quarrel with that; In Cold Blood is a remarkable book. But my number two pick, I think, would be Final Verdict, Adela Rogers St. Johns’ account of growing up in her father’s law office. Earl Rogers, as I mentioned, didn’t believe in formal education; he thought his daughter would learn more going to the office—and to court—with him. As a little girl and a young woman Adela Rogers was present in person for most of Earl Rogers’ fantastic career. Many years later (1962), after a distinguished career as a journalist and screenwriter and finally a novelist, Adela Rogers St. Johns wrote the story of Earl Rogers’ career in Final Verdict. We have here a skillful novelist with an amazing true-life story to tell.
Not quite as great, but somewhere in the top 25 would be Howard K. Berry’s bio of Moman Pruiett, He Made It Safe to Murder. The story of this book is a novel in itself. As a young lawyer in the late 1930s Berry became fascinated with Pruiett, by that time on the far downhill slope of his brilliant career, and spent many hours listening to his stories and writing them up, doing some incidental research to associate Pruiett’s stories with real cases. Pruiett, predictably, let Berry put the book together and then tried to steal the manuscript and sell it as his own. This led to a lawsuit, and the book was tied up for years in litigation.
The book emerged in 1944 but with a very small print run, under the name Moman Pruiett: Criminal Lawyer. Many years later, as an old man, Berry was able to bring the book back out, stronger, under the new title.
Much of the charm of the book is that it is so preposterously dated. Book writers of the 1940s did many things that would never be tolerated for a modern writer who wished to remain respectable. They told stories in vaguely mythic form, without dates and without references, and with the periodic inclusion of details that don’t exactly resound with the ring of truth. The writers of that era … and, to an extent, this applies to Adela Rogers St. Johns as well … believed that their central responsibility was to tell a compelling story. If the story went one way and the facts went the other, they followed the story.
Howard Berry’s book is choppy, episodic, vague, amateurish and tinged with BS—and that’s what makes it work. His lead character, Moman Pruiett, is a walking contradiction, partly truth and partly fiction, as Kristofferson wrote about Johnny Cash. Berry stares at him in open-mouthed awe for 700 pages. You can’t often find a copy of the book for less than $150, but … it’s worth every penny.
There were other attorneys of the same era who also had fantastic careers. Samuel Leibowitz (1893–1978) was reported to have successfully defended dozens of murder cases without a loss, in a career culminating in his defense of the Scottsboro Boys in the 1930s; the book about him is Quentin Reynolds’ Courtroom: The Story of Samuel S. Leibowitz. Leibowitz defended Al Capone and numerous other gangland figures whose names were once infamous, like Kid Twist and Pittsburgh Phil.
Pruiett, Rogers, Leibowitz and others defended legions of murderers with hardly a loss. We posed a moment ago the question: How is it even possible that they did these things? Or, stated more accurately from a historical standpoint: How did it happen that these things became impossible, since certainly they are impossible in modern America?
I would argue that essentially three things happened to make stories like these no longer possible. First, the bar associations, in the years 1915 to 1940, cracked down on and gradually brought under control such practices as jury tampering, suborning perjury, bribing judges and intimidating witnesses. That wasn’t all done between 1915 and 1940, and it wasn’t all done by bar associations, but the bar associations in that era were very active at prosecuting and disbarring renegade attorneys.
Second, and most important of the three … in my opinion, by far the largest change in American criminal trials over the last 100 years has been the accumulation of layers of pretrial discovery. In a series of landmark cases beginning with Mooney v. Holohan (1935) and culminating in Brady v. Maryland (1963), the Supreme Court ruled that defendants had the right to know in advance what testimony would be introduced against them at trial.
This, in essence, moved the action of a trial outside the trial, and into the pretrial skirmishing. I am oversimplifying here … worse, I am oversimplifying things that I but dimly understand. But a hundred years ago, murder cases resulted in murder trials, plain and simple. You had 100 murders; you had 90 murder trials. This was still vaguely true into the 1960s.
After Brady v. Maryland in 1963, the real action moved from the trial to the foreplay, the pretrial discovery. There were always defendants who entered pleas; there was always some possibility of negotiating a plea in return for a negotiated sentence. After Brady this process exploded, and the ratio of trials to accused criminals began to shrink. For 100 murders we started with 90 trials, each lasting a day or two days. Eventually we had 15 trials or less for each 100 murders, but trials lasting, at least sometimes, for months. (A study by David Feige reported in the Boston Globe says that 44% of murder “cases” go to trial. I am uncertain what is meant by a murder “case,” but certainly the number of murder trials in the United States is nothing like 44% of the number of murders. For that matter, it probably isn’t anything like 15%, either; I just said 15 to stay clear of the fine edges of the issue.)
The third thing that happened—and I honestly don’t think that anyone understands why this happened—was a dramatic shift in the ratio of acquittals to convictions. A newspaper editorial reproduced in He Made It Safe to Murder claims that in England at that time (just after World War I), 90% of accused murderers were convicted, whereas in America 80% were acquitted. Newspapers of that era are fantastically unreliable, but obviously a high percentage of persons who were accused of murder in that era were, in fact, acquitted or found guilty of lesser charges. But in America today, according to Feige, 85% of murder trials result in conviction.
How did that happen? How did it happen, and doesn’t anyone but me see that as being somewhat remarkable? There have, after all, been dozens of landmark Supreme Court rulings in the last hundred years that were intended to protect the rights of the accused. And yet, a hundred years ago, when there was no Miranda and no Brady, no Gideon and no exclusionary rule, no Escobeda and no Malloy v. Morgan, a large majority of accused murderers walked away from the courthouse. Today they are almost all led away in shackles. How did that happen?
Th
e most benign explanation for this change is that prosecutors have become more careful about who they put on trial. In the time of Rogers and Pruiett, prosecutors would file charges first and ask questions later. Now, although certainly innocent people are still accused of crimes, almost all prosecutors will insist that they would never file charges unless they were convinced of the accused person’s culpability. There has been a significant change in how prosecutors view this issue, and I think that that does account for at least some of the difference in conviction rates.
Pretrial discovery, since Brady, has created a situation in which people who have some defense that they can offer have the opportunity to negotiate down from the maximum charge. That leaves in the dock only those accused persons who really have no defense, thus have nothing to gain from making a deal; this, at least, is the theory. No doubt that also explains some of the change.
Let me suggest some other things that I think may have contributed. Police officers are much more professional now than they were a hundred years ago. Police officers a hundred years ago were often not respected by juries because, in truth, they very often were not worthy of much respect. They are better educated now; they have better uniforms and better PR guys. This probably causes juries to give them more credence. This is perhaps unfortunate. Professionals lie just as often as amateurs, only more skillfully.