Examination by Mr. Zeisler. Challenged for cause by the Defense. Defense argued that the juror had formed and expressed an opinion as to the guilt or innocence of the defendants and that it amounted to a strong conviction. Discussion revolves around the criteria for determining a potential juror as biased. Juror dismissed peremptorily by the Defense.

Judge Gary's ruling on this issue was challenged as an error in the appeal of this case. See In the Supreme Court of Illinois. Brief and Argument for Plaintiffs in Error. Governor of Illinois John P. Altgeld also mentions the questioning of Allen in his Reasons for Pardoning Fielden, Neebe and Schwab.

Was called and sworn to answer all questions put to him by Court or counsel touching his qualifications to serve as a juror on the trial of this cause, was examined by Mr Zeisler as follows:

Q. What is your name?

A. W. D. Allen.

Q. Where do you reside?

A. Four Washington Place.

Q. What business are you engaged in?

A. Wholesale rubber.

Q. In business for yourself?

A. Yes sir.

Q. What is the name of the firm?

A. E. D. Preston & Co.

Q. Where abouts is your place of business?

A. 151 Lake street.

Q. Have you heard and read about the haymarket difficulty?

A. Yes sir.

Q. From what you have heard and read did you form an opinion as to the guilt or innocence of some one or two of these defendants or more?

A. Yes sir.

Q. Have you that opinion now?

A. Yes sir.

Q. Did you express it to others?

A. Yes sir.

Q. Frequently?

A. Yes sir.

Q. Is that a strong opinion?

A. It is.

Q. Do you think you could determine the guilt or innocence of these defendants, and every one and each one of them solely and exclusively upon the proof presented here in Court?

A. Yes sir.

Q. You could determine the guilt solely upon the evidence here in Court?

A. Yes sir.

Q. Without being influenced by the opinion you now have?

A. Yes sir.

Q. I will ask you whether what you have formed from what you read and heard is a slight impression or an opinion, or perhaps a conviction?

A. It is a very decided conviction.

Q. You have made up your mind as to whether these men are guilty or innocent?

A. Yes sir.

Q. It would be difficult to change that conviction?

A. Yes sir.

Q. Or impossible perhaps?

A. Yes sir.

Q. It would be impossible to change your conviction?

A. Yes, it would be very hard to change my conviction.

MR. ZEISLER: I think that is sufficient to sustain a challenge.

MR. GRINNELL: I understood Mr Allen to answer that he could determine the innocence or guilt of these defendants upon the proof presented here in Court?

A. Yes sir.

Q Q. Regardless of your opinion?

A. Yes sir.

THE COURT: Q. Have you any personal acquaintance with either of these eight men?

A. No sir.

Q. Did you ever see either of them before you came into Court to your knowledge?

A. No sir.

Q. Have you any feeling in regard to them except such as grows out of what you have read or heard in connection with the matter that is referred to here as the hay-market?

A. No sir.

Q. If you should be impanneled here as a juror, do you believe that you would endeavour to get at the real truth by the evidence, without regard to any former opinion that you have had, or any opinion that you have now, or anything that you have read or heard?

A. I should.

Q. And if you try the case, you believe you can fairly and impartially try it only upon the evidence here in court, with the instructions of the court?

A. I do.

Q. I suppose you are familiar with the rule of law that if there is no evidence which entirely satisfies the jurors beyond all reasonable doubt of the guilt of the person charged with the offence, he must be acquitted?

A. Yes sir.

Q. Do you think you would have any difficulty-- do you believe you can fairly and impartially apply that rule in this case, and unless the evidence which is heard here is of that character, that you can acquit these defendants?

A. Yes sir.

THE COURT: It don't make any difference what a man calls his own state of mind, whether he calls it an impression, opinion or conviction. The thing is; has he any bias, any

prejudice, any state of mind which will prevent him from trying the case upon the evidence.

Mr. BLACK: This juror has answered, and we assume for the purpose of this argument, he has answered correctly, that as a result of what he has heard, read and believed, he has formed and has expressed an opinion; that that opinion a amounts to a very strong conviction. When asked if it was so strong that it would be impossible to remove it, he hesitated considerably before answering, and then replied, "It would require very strong evidence to remove it" or that "it would be very hard to remove it." Now that shows, beyond any question of doubt that this witness has not come into this jury box unbiased. He is committed by an opinion which he has declared to others publicly. He is confirmed in that opinion by reports which he has read and heard, and which he declares, under the solemnity of an oath he believes. He is honest enough to admit that he finds in himself a condi ion of mind which has gone so far in the direction of conviction upon this point that it would require very strong testimony to change that. It is perfect folly, it is sheer idleness, it is as idle as anything that ever came out of mortal lips, for a man, placing himself in that position, to assure us that he can fairly and impartially try this case. It dont lie in the human organization for a man to do it who stands in that position, fixed to a

belief, committed to its advocacy by public declaration, admitting that it is so strong as to amount almost to a conviction, as to require very strong evidence to overcome it. It is a travesty of justice to say that that man is a man who can give a fair and impartial hearing-- A man of a decided opinion, without reference to prejudice-- that man stands in the position of telling us frankly, under oath, that the first thing we have to do is to remove it: to remove an impression so strong, an opinion so fixed, that he had to hesitate in his answer to say whether it was possible that it could be removed.

THE COURT: It seems to me that every man who has heard merely second hand reports about a transaction which he has afterwards to inquire into himself from the testimony of people who really know about it, must, in the nature of things, in coming to his ultimate opinion be governed only by what he hears from those who have knowledge.

MR BLACK: Will your honor allow me a suggestion in regard to that. It is in the nature of the human organization that when any man starts out on any inquiry on any subject with a theory, he fits everything he hears to his theory. He cannot help it. Now, assume, for the purpose of this argument that this juror starts out with the theory of the guilt of these parties; assume that that opinion is so fixed and based upon what he has read, so firmly believed in that

he is ready to say to us here that it will require very strong evidence to remove that opinion-- does your honor mean to tell me that that man can listen impartially, and resolve doubts in favor of these prisoners?

THE COURT: I see no reason why he cannot.

MR BLACK: I know that he cannot. Every human authority says that he cannot. Every authority on mental science, every writer on psychology, every philosopher that has written upon the subject-- the standard writers on abstract science,- say that when a man has formed an opinion, it is impossible for him to do otherwise than resolve all doubtful points in favor of that opinion.

MR. GRINNELL: It does not seem to me this is a question of phylosophy, mental or otherwise. It is simply a practical question. Any juror who has read accounts has formed an opinion. The State may be so unfortunate as not to be able to prove the guilt of the defendants. He would have to acquit in that case, and would go out of court firmly convinced that his former opinion was correct, and that the State had been unfortunate in not being able to produce that which he read:

MR BLACK: And is that an unbiased juror?

MR GRINNELL: Certainly.

MR BLACK: Is that a juror without prejudice.

MR GRINNELL: Any man that is called into this jury box, who

has read accounts about which there has been no dispute, and been where it has been talked about, but where nobody has been under oath-- he, like every other man that is level headed, can sit in this jury box, and hear the proof presented in court, and determine the innocence or guilt of every individual defendant, and a true verdict render regardless of his opinion.

MR BLACK: In reply to that I will say this: The prisoner, under the law is entitled to the benefit of every rational doubt. I simply take this position: that the talesman must be himself in a situation mentally to give to the prisoner honestly and fairly the benefit of every legitimate and reasonable doubt, and not in the position of resolving every doubt to support his theory.

THE COURT: If the juror has a theory based upon reports which he has heard, why necessarily he will say to himself: My own information now derived from witnesses under oath, subject to cross examination, is a great deal superior to any that the persons had who made the reports upon which I have formed my opinion. He must, in the nature of things say to himself: I am now in a better position to get at the truth than any persons who made the reports that I listened to or read, being in a much better situation to learn the truth than they were, what they have said about it will have no influence upon me. Having no acquaintance with the defendants,

no other feeling towards them than such as has been produced by the reports, and being now bound to investigate himself the truth of the charges against them upon original evidence, it is not in the nature of things that he shall regard the reports made by persons who had imperfect sources of information. It is not in the nature of things that he should regard those reports as giving any tone or color to the original evidence which he has himself to hear.

MR BLACK: Will your honor allow me to read a little from one of the decisions of the supreme court which I regard as bearing upon the point, found in 48 Illinois page 146, Collins vs The People. It is stated that the court erred in refusing to allow challenge of the plaintiff in error to a number of jurors. These jurors stated that they had heard of the circumstanc of the killing, that they believed the statements, and upon these statements had fixed opinions as to the merits of the case, such as would require evidence to remove or change, but that the opinion could be changed by sufficient evidence; but that they had no prejudice against the accused, and they believed they could render a fair and impartial verdict according to the evidence. That is this case precisely.

THE COURT: That was before the present statute.

MR BLACK: These are the statements of some five jurors who tried the case, and were all challenged by plaintiffs in

error, but which were disallowed by the judge trying the case in the court below. (Reads from case)

THE COURT: This statute was passed in 1871.

MR BLACK: Independently of the statute. The statute, as I understand it, takes off a certain disability in a certain case, or relieves against a certain disability. It does not relieve nor purport to relieve against a case where the opinion has been not only formed but expressed-- in other words, where the party has committed himself to the advocacy of an opinion, as a man does whenever he expresses himself, and puts himself on record. Nor does it at all purport to effect a case where the party goes on and admits frankly that he has in himself a pre-conception or pre-disposition which amounts in fact to a prejudice which must be removed. I am prepared to reiterate here what I said to your honor the other day. I understand the purport of that statute to be to take off the disability from a man, who, having casually read an account upon which he may have casually formed an opinion, but has yet never gone to the point of the expression of that opinion, never committed himself in any way to its advocacy, never allowed it to take such possession of him by a consideration of the truth or falsity of the report read or the rumor received as to have led him to the public expression of his opinion, or to an utterance as to the truth or falsity of the source from which the

rumor comes, or the report reaches him-- that is what I understand. It was not intended to compell a defendant to go to trial before a prejudiced jury. It was not intended to shift the burden of proof, and require the defendant to meet the pre-conceptions of men trying him who would practically declare in advance that they had decided convictions which his testimony must overcome. Because they might say that they believed it could be overcome; that they thought of themselves that they could grant a fair trial. Now, I say that it is absurd to talk about any man giving a fair hearing to a question upon which he has a settled conviction based upon reports which he declares under oath he believes to be true, and to the truth of which he has committed himself, not in express terms saying he believed the truth of the report, but saying positively that he entertained a certain belief which would only be in him as the result, if he has an opinion himself, of the belief in the report and the truth of its details.

THE COURT: It seems to me that the object and effect of the statute is, that jurors who have no personal relations with the parties on trial, who have no feeling towards them individually, except such as grows out of the reports which they have read, and can have no weight therefore either way on the subject, having no feeling towards the individual-- that the object and intent of the statute, the purpose of the

statute is, that such persons, although they may have read accounts of the transactions, and from those accounts formed an opinion based upon the supposed truth of those accounts, are still to be competent jurors, if they themselves believe, and if the court is satisfied from all the circumstances, that they can impartially determine the question of the guilt or the innocence of the persons who are upon trial from the evidence which is to be presented here; that in the nature of things a man must regard the authentic information that he gets from witnesses under examination and cross examination, he must regard that account as being so far superior to the second hand reports of individuals, that when he comes to investigate the truth or the falsity of the charge with that evidence before him, he will entirely disregard, if he is an intelligent man, he will entirely disregard what other people have said about the transaction, the truth or falsity of which he is now himself investigating upon original evidence. There is no case that goes quite to the extent that we are making the inquiry about-- no case I mean in this State that goes quite to the extent which we are making the inquiry now. The 82nd comes pretty near it. In this case the juror said:"I have read newspaper accounts of the commission of the crime with which the defendant is charged, and have also conversed with several

persons in regard to it since coming to Carthage (I suppose the case was tried in Carthage) and during my attendance upon this term of the court, I don' know whether from the witnesses in the case or not--I don't know who the witnesses in the case are--from accounts I have read and from conversations I have had, I have formed an opinion in the case; would have an opinion in the case now if the facts should turn out as I heard them; and I think it would take some evidence to remove that opinion; would be governed by the evidence in the case, and can give the defendant a fair and impartail trial according o the law and the evidence." This is in quotation, and manifestly is not a shorthand report of the full questions and answers of the jurors.

Mr.BLACK: That is the same case your Honor called attention to the other day. My criticism upon that case would be to say that it does not appear there that he had ever expressed the opinion which he said he had formed. Secondly, that he affirmatively stated upon his voir-dire that the opinion which he then held was conditioned upon the truth of what he had heard. That was his attitude. That is not the attitude of this juror% Here is a talesman who says:"I have an opinion that is so fixed that I know it will require testimony to remove it.That is the attitude of this juror.

THE COURT: Was not that attitude of that one?

Mr. BLACK: Not at all.

THE COURT: "I think it would taks some evidence to remove that opinion." The fact that a man has expressed an opinion which he entertains, adds nothing it seems to me to the opinion, unless he is that sort of man tht having said that a horse was sixteenb feet high was going to stick to it.

Mr. BLACK: How many are there that are not that kind of men within certain limits. I rather think all of us are guilty of that.

Mr. GRINNELL: Except defendants' counsel.

THE COURT: These three jurors on this case of Collins vs the people in the 48th Ill. stated that they had been informed of the circumstances in the case, and from these statements had become prejudiced against the prisoners, and had formed an opinion on the merits, such an opinion as would require evidence to remove, yet believed that they could decide the case upon the evidence fairly and impartially, and all that they had heard would not control or influence their verdict. Although the Supreme Court held in the 48th that that challenge was wrongly overruled, yet the precise state of facts whichb they held was good ground for challenge in the 48th, in the 94th they say is not, and we must be governed by the last.

Mr.BLACK: I have the 94th foryunately. Here is the portion

of the court's decision in the 94th. I read from page 306. "The opinion formed seems not to have been decided, but one of a light and transient character which at no time would have disqualified the juror from serving." Then taking up the 82d, they state that the ground of the decision is the 82d was that no injury had been wrought, because the peremptory challenges had not been exhausted. Now, is this case a case of a light and transient opinion as disclosed byt this witness upon his examination. If so, then the 94th is an authority in point. If not, it is not. When it appears affirmatively, as here, that the opinion is not a light opinion not a transient opinion, but a fixed opinion, if it is an opinion that in the mind of the juror puts one side or the other upoj proof, then it comes within the rule of the 48th Ill. which I have already read.

THE COURT: It is not so much the character of the adjective which the juror uses that determined his state of mind, as an inquiry into what the actual state of mind is. It appears that he like most others hatb have been here has read and heard abou this transaction; that from the reports that he heard and read he formed an opinion. That opinion is necessarily based upon the assumed truth of the reports which he has heard and read. Of course if he could be satisfied at once that those reports were not true, then he

would have no opinion. Now, he is called upon--

Mr. BLACK: (Interrupting) If your Honor please, does not he state that he believes they are true.

THE COURT: I say that if he could be shown that the reports were not true, then he would have no opinion. Now, he is called uponn to investigate himself from original sources the whole truth of the transaction about which he has heard reports. In the very nature of things he must regard that original evidence as the only proper basis upon which to come to a conclusion as to what the real truth of the transaction is--not what somebody else has said about it, but what he finds out about it when he hears the evidence.

Mr. BLACK: I don't care to prolong the argument.

THE COURT: Save the point.

Mr. BLACK: Now we challenge the juror peremptorily.