My knowledge of the grand jury, the Prosecutor’s office, and criminal justice more broadly in Cuyahoga County in the early 1920s comes primarily from Criminal Justice in Cleveland, a study sponsored by the Cleveland Foundation and published in 1922. The study, which served as a model for several similar subsequent studies, including the Wickersham Commission Report in 1931, brought together a group of experts under the direction of Harvard Law School’s Dean Roscoe Pound and Professor Felix Frankfurter. The rather massive tome bears many of the earmarks of early twentieth-century Progressivism. It has a decidedly reformist goal, to analyze and improve criminal justice from policing to parole with all steps in between. It begins from the conclusion that there had been a “breakdown of criminal machinery” in Cleveland and the county, and that it must systematically seek out the sources of and solutions to that breakdown. It reflects many of the prejudices and fixations of the Progressive Movement. As Frankfurter notes in his introduction, the study was to be “scientific” and empirical grounded in a massive collection (but not, incidentally, original generation) of statistics regarding every aspect of criminal justice. The study’s organizers assigned the task of interpreting these statistics to disinterested experts drawn from outside of Cleveland to guarantee impartiality. Further, the study frames criminal justice as an integrated system to be studied as a whole.
The Cleveland Foundation was itself a product of the Progressive era, an attempt by the “leading men” of Cleveland to systematize charitable and other communal efforts. Its director at the time of the study was Raymond Moley who would later organize FDR’s brain trust before publicly repudiating the New Deal and moving to the political far right. The reports that make up the study reveal Progressive concerns about disorder in the modern industrial era, political corruption under big city machine politics, and the displacement of men of the better sort in government and the professions. Its assessment of the Cuyahoga County Prosecutor’s office, for instance, finds the office seriously lacking. Partly, it attributes the office’s failings to inadequate resources, but it also decries the impact of ethnic block voting on county administration. Essentially, it complains that there are too many poorly skilled Irishmen, Italians, Jews, and Slavs in the office, who treat their jobs as sinecures, rather than positions of public trust. The study similarly criticizes the staffing of the county and municipal courts.
Cuyahoga County saw its first female assistant prosecutor before any women sat on its grand juries. In 1919, Florence Allen became an assistant county prosecutor. Her time in the office was brief, because the following year she was elected to the county’s Court of Common Pleas, becoming the first woman in U.S. history to be elected to a judicial office. Allen was a woman of many firsts. In 1922 she was elected to the Ohio Supreme Court and became the first female state supreme court justice. With her appointment to the United States Court of Appeals for the Sixth Circuit in 1934, she became the first female Article III judge. Sometime in the mid-1920s the county hired its first Black assistant prosecutor, Selmo Glenn. By 1930, Glenn had left the prosecutor’s office for private practice, but in that year Norman S. Minor became an assistant prosecutor. Minor, for whom Cleveland’s African American bar association is named, would become one of Cleveland’s most revered trial lawyers.
Because jurors were drawn from the rolls of registered voters, no women served on Ohio juries before Ohio women won the vote in 1920. In 1921, Judge Allen selected Cora Cross as the first female foreperson of a grand jury. Three additional women sat on that grand jury.
African Americans did not face the same barrier to participation on grand juries as women did prior to 1920, notwithstanding a provision of the Ohio constitution that limited suffrage to white males, a provision that Ohio voters declined to eliminate as late as 1912. African Americans were on Ohio’s voter rolls and served on its grand juries. Nevertheless, there is reason to believe that African Americans were not frequent participants in Cuyahoga County grand juries. The study does not indicate the percentage of grand jurors who were white or African American, presumably because the county kept no such statistics. Nonetheless, from what it does tell us about the selection there is reason to believe that African Americans were underrepresented on the grand jury. First, while it offers a spot review rather than a systematic review of juror selection (apparently for grand and petit juries aggregated) by ward and jurisdiction, the review does suggest that the disqualification rate was higher than average in Ward 11, one of the emerging African American neighborhoods. Additionally, the presiding judge rather than the regular juror selection process selected a substantial number of the grand jurors. The County would call a reasonably small number of potential jurors and seat the grand jury from that pool. Once the pool ran out, or once seated grand jurors left during the term, which appears to have happened often, the judge would simply fill the gaps with his acquaintances. The judge would also pick someone to serve as foreman, a procedure that still operates today. Given the increasing segregation of Cleveland during the 1920s, and the demographics of the County’s court system, it seems likely that most judge-selected grand jurors were white.
The study reveals that there were important differences in how the grand jury functioned in the 1920s from how it works today. I will turn to those differences and why the study recommended that most of the grand jury’s work be eliminated, soon.
I would be remiss not to mention that today is the one-year anniversary of the shooting of Tamir Rice. Rice, a twelve-year old African-American child, had been seen playing with a realistic looking toy gun outside of the Cudell Recreation Center on Cleveland’s West Side. The person who reported the possibility of an armed man to the police, also told the 911 dispatcher that he thought the person might be a child and that the gun might be a toy. That dispatcher did not relay those two important pieces of information. Within two seconds of the police zone car arriving on the scene, Officer Timothy Loehmann exited the car and fired two shots at Tamir. One of them fatally wounded him. The Rice case hung over our grand jury for most of the summer, as we sat in expectation that it might be presented to us. It is now before a grand jury. While I have more that I want to share about the differences between the modern grand jury and its 1920s ancestor, I will turn next to Tamir Rice.