General Articles

Why Innocent Men Go to Jail

Innocent men have been jailed because they couldn't afford a lawyer.The remedy: legal aid bureaus to underwrite justice for all

SIDNEY KATZ September 15 1948
General Articles

Why Innocent Men Go to Jail

Innocent men have been jailed because they couldn't afford a lawyer.The remedy: legal aid bureaus to underwrite justice for all

SIDNEY KATZ September 15 1948

Why Innocent Men Go to Jail


ONE AUTUMN DAY a young man was hitchhiking along a gravel road in rural Quebec, on his way home after working on a farm all summer.

A car pulled up containing two men. Although they could speak no English and he could speak no French, he managed to make out that they were going in the right direction, so he hopped in: But what promised to be a pleasant, brief lift turned into a distressing experience that the young man was to remember for the rest of his life. A police cruiser suddenly appeared out of nowhere and signaled the car to halt. Three burly officers transferred the two men and the hitchhiker to the cruiser, drove on to the next town and lodged them in jail.

The young man was bewildered by this strange turn of events until one of the policemen explained in broken English that he had been picked up in the company of two shopbreakers.

“Plead guilty,” he advised, “and I will explain everything to the court. You will get off free.” Alone, friendless, without sufficient funds on hand to retain legal counsel, the young man accepted the policeman’s advice when he appeared in court the next day with his two erstwhile benefactors. The proceedings, not a word of which he could make out, lasted less than 20 minutes. At the end of that time he was stunned to learn that he had been sentenced to five years in St. Vincent de Paul penitentiary.

The unhappy episode ended 18 months later when the facts came to light and the innocent boy was released from prison.

When Justice Goes Astray

MANY times Canadian newspaper readers have been shocked by reports that guiltless citizens have been serving prison sentences for crimes they did not commit. Usually these miscarriages of justice can be blamed on the fact that the accused person was not represented—or was inadequately represented—by legal counsel for the simple reason that he could not afford it.

Each day, thousands of Canadians throughout the nine provinces are charged with crimes both large and small in our courtrooms. In a recent year, a total of 504,181 charges were brought against adults. Of these, 48,263 were charges relating to indictable offenses—those more generally serious offenses which, when a “true bill” is found, call for a trial by judge and jury. While the vast majority of persons against whom such charges were brought were found guilty, 13.7% of the charges did not stand up in court and were either dismissed or the accused found not guilty. This would indicate that a goodly number of people brought before our tribunals of justice are innocent. Without a competent lawyer to defend them, they run the risk of incurring a prison sentence that will blacken their reputation for the rest of their lives.

Innocent men have been jailed because they couldn't afford a lawyer.The remedy: legal aid bureaus to underwrite justice for all

A group of Toronto lawyers, interviewed, observed, “The great principle that all persons, rich and poor alike, are equal before the law becomes a hollow abstraction to the thousands of indigents who cannot pay lawyer’s fees. There are innocent men in jail—how many it is impossible to estimate.”

Joseph K. Mergler, a prominent Montreal barrister who has been active in the defense of the poor for the past several years, told me, “I sometimes watch a long procession of mere youngsters in court being asked to plead guilty or not guilty. About one third of them are unrepresented by counsel. I say to myself, ‘Many of them will seriously suffer because they are not as ably defended as they are prosecuted.’ ”

It is commonly believed that every indigent person who appears in criminal court is entitled to legal counsel paid for by the crown. This is not so, except in the case of a man or woman being tried for murder. For the citizen without means, being tried on a lesser charge, his only recourse is

to literally “throw himself on the mercy of the court.”

\jei us follow the case of one such individual and see what happens to him.

In our typical case, David Roy, a former RCAF gunner, has been picked up by police and charged with attempting to hold up a theatre cashier. Unable to raise funds for bail, he is lodged in jail.

In court, he tells the judge he can’t afford counsel. The judge may proceed without the accused being represented at all. However, he may look around the courtroom and invite someone to represent the accused. He may choose an experienced member of the bar, or a young lawyer fresh out of law school, eager for experience, who has previously expressed himself as willing to act in just such cases.

A hasty conference ensues between lawyer and client. The veteran insists that he is innocent. Yes, he was in the neighborhood of the theatre that evening, since he Continued on page 61

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Why Innocent Men Go to Jail

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only lived six blocks away, but at the time of the crime he was visiting with a couple of Air Force buddies who were passing through town.

The story sounds plausible and it may be a genuine case of mistaken identity. But how can it be made to stand up in court? To do so, the lawyer would have to investigate all the facts and find witnesses to back them up. But how can he? This requires both time and money—especially money— and neither the lawyer nor his client can afford the financial outlay.

On the other hand, the crown attorney lets it be known that he has a strong case against the accused. The girl in the theatre box office can identify the accused and, furthermore, he made several incriminating remarks to the police at the time of his arrest.

The crown attorney and the defense lawyer have a talk. The former, usually anxious to be fair, says that if the veteran will plead guilty to a lesser charge he will recommend the minimum sentence. Thwarted, the defense lawyer counsels his nonpaying client to plead guilty. He does—and goes to prison, acquiring a criminal record that will pursue him for the rest of his life.

It is a tragic feature of our system of administering justice that we depend almost solely on voluntary efforts of this kind for providing legal aid to those too poor to afford it.

Appeals Are Costly—And Late

A person who believes that he has been wrongly convicted can launch an appeal. This is largely a case of locking the barn door after the horse has been stolen. The unfortunate victim has already suffered the indignity of being sentenced, his case has received wide notoriety and he has generally served at least part of the sentence even if his appeal is successful.

Of the few groups in Canada organized for the express purpose of helping the poor, the Montreal Legal Aid Bureau is one of the most active. Financed by the community chest, the Bureau is manned by two fulltime members who retain legal counsel when necessary on a regular fee basis. Although confining its efforts to the 200,000 Protestants in Montreal, during 1947 the Bureau assisted over 2,300 people and was able to recover $31,600 in lawsuits on behalf of its indigent clients.

It is in civil matters that the average citizen most frequently requires legal aid and advice—and is unable to afford it. Injustices are particularly common in cases involving desertion and nonsupport. In many of these, a mother and her children are left unprotected and penniless. The legal costs involved in bringing back a husband, particularly if he has skipped across provincial boundaries, is far beyond the means of the impoverished wife.

The Husband Who Fled

One Ontario man suddenly disappeared after an argument with his wife, leaving his three children behind him. Because the wife’s total resources were $3.75, the family was forced to go on relief immediately. The Family Court obtained a judgment against the man, but how could they make it stick since he was now in Vancouver? Laws are not self-enforcing. To bring the husband to justice, a sheriff must

be paid to find him and the husband’s fare must be paid back to Ontario so that he can face the court. Nothing has been done and the man’s family is still existing on public funds.

The executive secretary of the Society for the Protection of Women and Children, and of the Montreal Legal Aid Bureau, George H. Corbett, told me that his organization serviced 177 cases of desertion and nonsupport during 1947.

“Through lack of funds and facilities,” he said, “we had to admit failure in over 40% of the cases.”

One unfortunate wife, mother of four children, was deserted by her husband who skipped to Windsor and took a good job with a motor company. She appealed to the Bureau for help. While she and her children were eating the bitter bread of charity, the agency discovered her husband was living the life of Riley on a salary of $70 a week. They wrote him to return home, but he didn’t answer. Finally, at considerable expense, they brought the deserter back to Montreal to stand trial. He flatly denied that he was making enough money to support his family. Since the burden of proof lies with the wife, it would have meant bringing the paymaster to Montreal as a witness—an additional outlay of money which was not available. Finally, the father was prevailed upon to stay in Montreal and find a job or else take the family with him to Windsor.

Within a few weeks the heartbroken mother was back. “He’s disappeared again,” she sobbed. “What am I to do?”

She had an unenviable choice to make. She could either go back on charity or raise a large amount of money to take the appropriate legal action against her husband.

“We couldn’t afford to help her,” commented Mr. Corbett.

In cases of a marital breakdown, it is usually the woman who suffers from a lack of legal aid. The husband, who handles the purse strings, can protect himself by retaining an experienced lawyer. One man, for example, skipped town to another province with $4,000 of his savings, leaving his family destitute. When a social agency wrote him a letter reminding him of his responsibilities, he didn’t bother answering: the reply came from an expensive firm of lawyers!

The Poor vs. the Landlord

Because of the shortage of housing accommodation, friction between landlords and tenants is not uncommon. Property owners sometimes try to find loopholes in rent-control legislation and evict their tenants.

When this happens it may prove an uneven struggle. The landlord, often a person of means, can afford the coaching of a shrewd lawyer, while the tenant, usually a small wage earner, can’t. For instance:

In a Maritimes city a couple in their late 50’s had occupied the same fourroom bungalow for 16 years. They were good tenants. The house was kept in good repair and surrounded by a well-kept garden and lawn. Although the head of the household earned only a modest salary, he managed to lay aside a few dollars a week in anticipation of his retirement in 10 years.

One day the landlord showed up and said that he desired occupation of his bungalow. The couple refused to go, explaining that they could get no other place. Furthermore, they reminded him, they were protected by rent control.

A month later the landlord again

visited them, saying that he had a legal right to evict them since they were in arrears of rent by more than 15 days. He firmly denied receiving the cheque that was usually sent to him by mail the beginning of each month.

The landlord hinted menacingly about getting the couple out of the house within two weeks. Then, in response to their pleas, he appeared to be somewhat mollified and made a generous offer. “I don’t want to be tough on you,” he said. “If you sign this paper, you can have four months to look around for another place.”

Knowing that they could not afford a costly legal battle, the couple signed the paper which made eviction legally permissible. But a competent lawyer could have proved in court that the j tenants were in the habit of paying J their rent by cheque via the mails for a period of years. Furthermore, he could have produced the stub of the uncashed cheque and shown that there was sufficient money in the bank at the time it was issued to cover it.

Just how a group dispensing legal aid on an organized basis can protect ! the underprivileged, the inexperienced I and the unworldly from sharp practices I can be illustrated by two experiences ; of the Montreal Legal Aid Bureau:

When Mr. S. F. died suddenly of a j heart attack, his $4,000 home was completely paid for with the exception of $550. Distracted by the tragedy that had overtaken her, and unaccustomed to managing the finances of the family, the widow overlooked making two monthly payments on the small balance that remained.

The owner of the property made a great show of being indignant and waved a paper at her.

“You’ve missed two payments—a very serious matter. But if you sign this, everything will be all right.”

It was not until after the widow had affixed her signature to the document that she learned she had given the owner the right to dispossess her of property at the end of 60 days. She might have been evicted from the home her husband had saved for all his life, were it not for a chance encounter that brought her finally to the offices of the Legal Aid Bureau. When the matter came to court, the Bureau’s solicitor was able to show that the woman had transferred the property to the detriment of her two children—an action expressly forbidden by the terms of her husband’s will.

In another case, a landlord tried to evict a widow on the excuse that she had, through lack of cleanliness, allowed the building to deteriorate. By producing four friendly witnesses (a roomer, a social worker and two acquaintances) the Bureau was able to prove that the woman was a meticulous housekeeper and that the shabby appearance of the house was due to the refusal of the landlord to make necessary repairs. She retained possession of her home. The landlord j was ordered to make improvements, !

The Poor vs, the Insurance Adjuster

Frequently, the injured party in an accident finds himself negotiating for damages with an insurance adjuster.

As a well-paid, legally trained foyal employee of the insurance company, it is the adjuster’s job to settle the claim as quickly and inexpensively as possible and preferably out of court. Obviously, the claimant is in a stronger position if he too has access to legal counsel.

“Yet one out of three claimants,”

1 was told by an authority on these cases, “cannot afford to retain a lawyer

or bear litigation costs to push his claim.”

The wisdom of a claimant having legal representation can be shown by following the case of Arthur Jordan, 38, father of two children, who earns $37.50 a week working in a department, store. One evening he was struck by a truck belonging to a large industrial concern as it backed out of a laneway. At the hospital, his condition was diagnosed as “fractured right leg with possible internal injuries.”

When Jordan was almost recovered, the insurance adjuster visited him and offered him a settlement: $500 in cash, lost pay made up, plus all medical expenses incurred. Because he was in urgent need of cash, Jordan accepted.

Properly advised, this accident victim may not have settled on such terms. The effects of his injury are apt to make themselves felt, intermittently, for years to come. Long periods of enforced idleness may be necessary; or he may be incapable of returning to his old job and be forced to seek employment elsewhere. With legal counsel, the«e exigencies would have been taken into consideration in arriving at a settlement or the whole matter battled out in court.

How different are the results when the claimant has access to legal advice and aid are illustrated by cases from the files of the Montreal Legal Aid Bureau.

Due to gross carelessness, an eightyear old child was severely burned while in a public institution. In their effort to heal the child, the worried parents spent their small savings and went heavily into debt.

“They haven’t 25c to pay out in legal fees and costs to recover damages from the institution,” says Mr. Corbett of the Bureau, “but we are gladly fighting their case for them. Rather than suffer in silence, these devoted parents will have their day in court.”

In another case that Mr. Corbett recalls, a man was so seriously injured, through no fault of his own, that he was forced to spend four weeks in the hospital. In dire need of money for food and rent for his family, he accepted $300 and medical expenses from the party responsible for his condition and absolved them of all future responsibility.

Some weeks later, his wife appealed to a local welfare agency for assistance, explaining that her husband was home in bed unable to carry on with his old job. The agency arranged to help her with the necessities and referred her to the Bureau whose solicitor was able to reopen the whole case and question

Answers to


(See puzzle on page 56)

1. To boycott (Charles Boycott 1832-1897).

2. To mesmerize (Franz Mesmer 1733-1815).

3. To galvanize (Luigi Galvani 1737-1798).

4. To guillotine (Dr. J. I. Guillotin 1738-1814).

5. To gerrymander (Elbridge Gerry 1744-1814).

6. To mercerize (John Mercer 1791-1866).

7. To macadamize (John Macadam 1756-1836).

8. To sandwich (John Montagu, 4th Earl of Sandwich 17181792).

9. To pasteurize (Louis Pasteur 1822-1895).

10. To lynch (Charles Lynch 1736-Í796).

the legality of the settlement. The injured man was awarded several thousand dollars, which will assure him proper treatment for his injuries in the future.

Your Chances in Criminal Court

It is not uncommon to see a young man, a mere youngster, facing a criminal court alone. Despite the sympathy of the judge and crown attorney, he is frightened and bewildered by the language and the atmosphere of the courtroom. Fie doesn’t understand the full significance of the charge upon which he is called to enter a plea. He is an easy mark for the smooth-tongued examining lawyer. The judge gives him the opportunity to ask a question, but he has no idea what to ask or how to ask it. If he is articulate and does speak up, he may talk in circles and be promptly ruled out of order.

The charge of vagrancy is a veritable pitfall for the indigent accused. “I doubt,” said a Toronto magistrate in his courtroom recently, “if there is any section of the Criminal Code more commonly misused.” The magistrate went on to explain that the vagrancy act of England, which Canada copied, was never intended to apply to all citizens, “but only to those who by their generally idle mode of life bore the reputation of a loose or idle person.”

Such improper use of a law necessarily results in many people being penalized unjustly. A 23-year-old man, for example, lost his wallet and found himself stranded in a strange town without money and without friends. An overzealous member of the local police force charged him with vagrancy. Never a man who could express himself well and entirely without funds to retain counsel, he was found guilty and sentenced to six months.

When his friends learned of the incident a few days later, they got together and hired a lawyer to reopen the case. In five minutes the conviction was quashed.

Another young man, an 18-year-old farm boy, came to Toronto with $8 in his pocket, looking for a job. He found one, but a few days before he was to start working his money ran out. Hungry, evicted from his room and not knowing where to turn, he drifted into the nearest police station and confessed to a forgery crime which he did not commit. The police were aware of his innocence and advised him to plead guilty to a vagrancy charge instead. There was no one around to advise him differently, so he did. He was given 10 days—and a black mark against his name.

Sometimes an indigent accused will plead guilty to a wrong charge, an error that may mean the difference between an acquittal or a conviction, a light sentence or a heavy one.

Take the position of a man before the court for handing out an N.S.F. cheque. If he is without a lawyer, it is possible to present the facts of the case to the court in such a manner as to obtain a conviction for obtaining money under false pretenses. On the other hand, a defending lawyer can sometimes show that the accused was not in the habit of issuing bad cheques, that there was sufficient money in the bank at the time the cheque was written, or point up some other extenuating circumstances which a less articulate man might overlook.

Injustices in the courtroom are often enough to turn a harmless first offender into a hardened, incorrigible criminal. A professor who lectures at one of our large law schools tells of a farmer’s son who was brought before the

magistrate in a small town, charged with stealing chickens. He had no lawyer. The crown attorney advised the accused that if he pleaded guilty a small sentence would be imposed and the whole matter would be forgotten.

The Judge Who Was Deaf

The boy pleaded guilty as charged. The crown attorney then whispered to the magistrate that in view of the boy’s remorse, a sentence of three months would be reasonable. The magistrate, who was slightly deaf, thought he said three years. He thereupon summoned the accused to stand up, lectured him briefly on the folly of crime and then—fantastic as it may sound-—declared "I sentence you to three years in prison.”

The boy went to the St. Vincent de Paul penitentiary. A year later he participated in a violent escape riot and was given an additional 10 years. Not long ago he was released from prison, but his period of freedom only lasted a few weeks: he was caught redhanded in a holdup. Today this boy is again behind bars, starting a 15-year stretch.

One young lawyer told me: “I can’t do full justice to many of my pauper clients. It often takes a lot of money to investigate facts and find witnesses. My client hasn’t the money; neither have I.”

To appreciate how much preparation is required to establish the innocence of an accused party, let us follow the true case of Mike Roberts (although that is not his real name), an army veteran who was charged with drunken driving.

Mike canvassed a few lawyers, but none of them would undertake his defense for less than $150. He was resigned to facing the court with a hastily prepared defense presented by a lawyer assigned by the court, when he had a lucky break. The pastor of his church prevailed upon a prominent barrister to accept the case.

At the trial, the officer laying the charge stated that Mike Roberts was found asleep at 11 o’clock in the morning at the wheel of his truck, which was parked off the highway.

"He feeked of beer,” testified the officer. "When I woke him, he seemed to be in a sort of stupor. Then he put up a terrific struggle.”

The lawyer then presented his defense. He explained that accused had served overseas with the Canadian Army for 414 years and that he had been twice hospitalized by army doctors, once for head wounds received in battle and again for nervous fatigue. As a civilian, his nervous condition persisted and he had difficulty in adjusting to civilian life.

Step by step, the events leading to Mike Roberts’ arrest were traced. He had been up all night with his wife minding their sick child. At eight o’clock he got into his truck and started driving out to the country to pick up a load of produce. En route he made a stop at a hotel where his father was staying. The two men chatted over a few beers, after which the journey was continued. A half hour later Mike felt drowsy. Being an experienced driver, he pulled up oft’ the highway and fell asleep. Suddenly he felt somebody grabbing at him and shouting. He fought back instinctively.

There were four witnesses to testify on his behalf. His wife and the family doctor confirmed the fact that the Roberts child was ill and had required constant attention. A friend of his father attested to the fact that the accused had only been with his father long enough to have one or two glasses

of beer. Finally, the physician who had treated Roberts at the veterans’ hospital described him as being of a nervous and high-strung temperament, the type which would react violently if suddenly frightened.

The case was decided in Mike Roberts’ favor. But—would justice have been served had his lawyer been a young man recently admitted to the bar, with neither the experience nor the resources to present an adequate defense?

“To None Deny”

Prominently displayed on the wall of one of our great law schools, Osgoode Hall, Toronto, is the quotation from Magna Charta which reads:

“To none will we sell, to none will we deny or delay the right of justice.'’ Until legal services are made available to all who require them, regardless of their economic status, this ideal will not be achieved. Aware of this fact, the Canadian Bar Association has from time to time appointed various committees to report on the possibilities of instituting legal-aid bureaus. Nothing concrete has resulted. For example, the Committee appointed in 1923 functioned for six years. Its work seems to have aroused no general interest and its final report was passed perfunctorily.

Most of the members of the legal profession seem sympathetic to the idea of organized legal aid in one form or another. Many of those 1 spoke to felt that the leadership should come from the social welfare agencies. On the other hand, George Corbett, Montreal welfare executive, believes that legalaid bureaus should be initiated, controlled and operated by our law schools.

Not long ago, Eileen Mitchell, a Toronto barrister, suggested in the magazine Canadian Welfare various ways that legal aid to the indigent might be organized and operated.

One way would be through a system devised by the Government, financed by public funds, staffed by civil servants and operated by a special department of the Government. When such a proposal was made in England some years ago, a strong objection was presented by a spokesman of the Labor Party, who said, “Keep politics out of it. It would be unfair since the state is directly or indirectly affected by many of the claims upon which the legal-aid bureau would have to advise.” Another method would be an entirely voluntary system run by law associa-

tions as a charitable function, or by social agencies out of contributed funds. The Montreal Legal Aid Bureau comes in this category. There are two disadvantages to this system. First, no uniformity of service is assured; second, any emergency could upset its continuity.

A third type of system is now suggested in Great Britain by the Rushcliffe Report, written by a committee, headed by Lord Rushcliffe, to look into legal aid. It would appear to be the most workable scheme. It is a mixture of the first and second systems, financed by the State and operated by the Law Societies. Here you have uniformity, continuity and country-wide service for all citizens.

Still another type of organization is the “legal-aid clinic,” operated by the faculty and senior students of a law school, supervised by the Bar Association and financed by the Community Chest. Such organizations, with variations, are active at Harvard, Duke, Wisconsin and Northwestern Universities in the United States and have proved their workability.

The University of Wisconsin’s legalaid clinic at Madison, for example, is staffed the year round by 20 outstanding students taken from the two senior years and supervised by the county bar association. It has a paid stenographic staff and a permanent office that is conveniently located near the local social agencies. Whenever it. is necessary to go to court, the student lawyers call on experienced members of the bar association.

Ralph von Briesen, a Milwaukee attorney who has been active in the legal-aid clinic, observes, “It is generally recognized that the studentlawyers get better experience than the students working in a law office. Furthermore, since the students are interested in educating themselves in practice and procedure, their client receives treatment as good as or better than he would by depending upon the charity of some practicing attorney busy with more remunerative cases,”

Organized, properly operated and adequately sponsored legal aid for the indigent is one of the crying needs of our day. It should not be a matter of’ halfhearted, occasional almsgiving.

George Corbett, executive secretary of the Montreal Legal Aid Bureau, spoke for all fair-minded Canadians when he recently observed, “That the poor should wait in vain at the portals of justice is a serious and grave reproach to our social order.” if