Part 2b: JFR Trial – Judges Chambers
Pages 110 to Sect 328 –
Judge Howe’s Chambers ... (COURT)
COURT: Have you got your Demurrer prepared?
DEF-SPARKS: With this limitation we are: Judge Chatfield suggested he was inclined to grant that with reservations, and he suggested that in the event the Demurrer was overruled, and we were permitted to plead over and went to trial again, that that Demurrer would stand for some purposes as an admission of certain allegations.
(Demur: This is a motion put to a trial judge after the plaintiff has completed his or her case, in which the defendant, while not objecting to the facts presented, and rather than responding by a full defense, asks the court to reject the petition right then and there because of a lack of basis in law or insufficiency of the evidence. This motion has been abolished in many states and, instead, any such arguments are to be made while presenting a regular defense to the petition.)
(Note: Rutherford’s attorney, Fred Sparks, seems to use their Demur as a delay tactic to rethink one’s position. On May 8th, a plea of “Not Guilty” was entered at the Arraignment hearing ... now the Defense wanted to withdraw the “Not Guilty” to Demur. They have to file a Demurrer with the Court to make this strategic change and delay the commencement of the trial.)
COURT: I would not adopt that course. If you Demur, you Demur. I should allow you to plead over. I should not hamper you. (Note: The Court here is being very fair.)
DEF-SPARKS: That is the overruling of the Demurrer and permitting us to plead again, could not be used as an admission on the trial of any formal matters of allegations of the complaint. Your Honor will so rule on that.
COURT: That would be the legal effect of overruling the Demurrer. You admit facts for the purpose of the Demurrer. Isn’t that the rule? I shall not hamper you with admissions whatever. Come in and Demur. If you lose on the Demurrer you can make another plea. (Now DEF-Sparks and DEF-Fuller tip their hands.)
DEF-SPARKS: I want to get this straight. Judge Chatfield was of the opinion if he permitted us to plead over again on the overruling of the Demurrer, that the Government could use the admissions we made.
COURT: I shall not have any such stipulation. If you file a Demurrer and it is overruled, you can plead over.
DEF:-FULLER: Without any admissions?
COURT: Absolutely. If I give you the right, I give you the whole right.
DEF-SPARKS: The admissions are only given on the arguments on the Demurrer.
COURT: That’s the rule I was taught. The Court can say, unless you stipulate so and so, I would not allow you to Demur.
GOVT-OELAND: I have no objection to the course your Honor is taking, except to say the action on the Demurrer we shall insist, and the other motions are made for delay.
What happened? Neither the Court nor the prosecution would use any admissions made in the Demurrer. The Government simply felt that the additional motions were a delay tactic. What interests me most is the fact that if the Demurrer had been sustained, what admissions would have been made for the record. I don’t know if the Demurrer in this case is on file with the court ... but it would be interesting.
So the defendants, Rutherford and company may well have ended up pleading guilty to some of the charges. As it turned out, the Demurrer was overruled, and the admissions in them would not be used against the defendants as directed by the Court and agreed to by the US Attorney. Was this a railroad Job as claimed by the Society?
In Part 2c I will post the reasons for the “delay tactic” that the Government was concerned about regarding DEF-SPARKS. And in that part we will see how Sparks hangs himself. ... To be continued ...