Jerome insisted that Hamilton recount all his findings, not just what the defence wanted to hear and had hired him for. This needed to include the inherited component of Thaw’s condition. ‘If the real facts were known,’ (about the madness in Thaw’s family and Harry, himself) Jerome insisted, ‘I would have no right to be here trying this man. He is incapable of advising counsel.’ This last was, of course, the first measure of legal sanity – competence to plead. If Hamilton’s diagnosis was to be taken on board, Thaw was incapable of standing trial.
Jerome, having undermined his own case, then waxed even more radical, questioning the ability of the M’Naghten rules to deal with contemporary psychiatric knowledge:
Dr Hamilton, having examined this defendant, was of the opinion that he was of unsound mind during, or rather, prior to the time that he committed the crime, that he was of unsound mind as he committed it, and that he is still today of unsound mind, within the meaning of the statute, and incapable of properly advising his counsel on the defence; he is of opinion in a general way that this defendant is suffering in general from a type or form of insanity known as paranoia, or a paranoiac condition; that in paranoia very often – until it has passed into the extreme stage or terminal stage – the person who has it knows the nature and quality of his acts, and knows that they are wrong, and does them under an insane delusion; that the matter is, for lack of a better term, called medical insanity ... Today we are trying a man who, under the law of this State, is absolutely sane and is not a paranoiac, and every competent medical man honestly giving his opinion in this case, with a full knowledge of the facts, would say that he knew the nature and quality of the act that he committed; and knew that it was wrong - and still he was insane!
Since the McNaughton [M’Naghten] case was decided in 1842 by the House of Lords, which is the basis of all our insanity legislation, the knowledge of scientific men has passed far beyond; they know today that many a man who is insane knows what he is doing and what is wrong.
On the stand, Hamilton confirmed what Jerome had said. Thaw was incapable of cooperating with his lawyers and was suffering from a form of insanity which allowed him to recognize right from wrong, but from which only ‘two per cent might recover’.
The Sanity Commission
Trapped by these conflicting expert opinions and by the about turn of the district attorney, the judge had recourse to a ‘sanity commission’, which would evaluate the expert witness from both sides in the form of affidavits, and determine whether Thaw was fit to ‘understand his own condition, the nature of the charges against him, and of conducting his defence in a rational manner’.
Harry Thaw had been removed from the court during these arguments. According to the New York Times, he was ‘absolutely confident that he can advise with counsel, and believes that when that has once been proved it will be far easier for his advocates to convince the jury of the brain-storm theory’. His courage was kept up by visits from Evelyn, his mother and his sister and, the Times noted, by reading ‘St George and the Dragon’ from Percy’s Reliques of Ancient English Poetry. Thaw deems himself the ‘knight of courage stout’ who went to the aid of the damsel enthralled by the ‘fiery dragon’. Stanford White was now a dead fiery dragon, and Harry’s view of himself as the grand and principled saviour never faltered.
Two eminent attorneys and the well known medic, Dr Leopold Putzel, conducted the sanity evaluation. Witnesses from the Tombs, including two chaplains and a doctor, claimed that Thaw was rational, even though they had seen whole chapters of the Bible pasted onto his cell walls, containing notes for his lawyers. There were also scores of newspaper clippings and literary references: the heroic rescuer’s arsenal was all around him.
The experts, once more divided, mostly kept to their initial positions. The prosecution alienists as well as Hamilton contended that Thaw was suffering from an incurable form of paranoia. They added that ‘he had a homicidal tendency, which if he were released, would be a menace to the community’. Britton Evans, Hammond and Jelliffe, meanwhile, stated that whereas Thaw was irresponsible during the killing, he was now able to understand the nature of the charges against him and to conduct his own defence in a rational manner. After the physical examination on 3 April, when Dr Putzel and the two commission attorneys found no abnormal symptoms and shook Thaw’s hand, he issued a statement to the press claiming that he had ‘firmly convinced all three of the Commissioners I am sane in every sense of the word. I believe that when the court convenes for my trial tomorrow morning, the Commissioners will make a unanimous report to the Justice that in their opinion I am mentally competent in every way.’
The commission did indeed find Thaw sane and capable of conducting his defence. Jerome was in a double bind: how to demand a death sentence for a man he now thought insane?
38. Climax: ‘Murder as a Cure for Insanity’
Delmas’s closing defence speech, which he made on 8 April 1907, drew a portrait of Harry K. Thaw as the best kind of American, a protector of ‘the purity of the home and the purity of American women’. If this was madness, then it deserved a patriotic diagnosis of ‘dementia Americana’, he stated, launching a whole new form of lunacy for the newspapers to pounce on.
It is that species of insanity which makes every home sacred. It is that species of insanity which makes a man believe that the honour of his wife is sacred; it is that species of insanity which makes him believe that whoever invades the sanctity of that home, whoever brings pollution upon the daughter, whoever stains the virtue of that wife, has forfeited the protection of human laws.
Some of the papers felt that Delmas, despite his rhetorical flair, was exaggerating just a little. He ‘was straining the limits both of forensic and poetic licence when, in the morning hours, he had pictured as a veritable Sir Galahad, pledged to the knightly service of distressed maidens, this profligate, who for years had fluttered through the tawdry tinsel life of the Tenderloin, idly squandering such portion of a paternal fortune as a too indulgent mother had allowed him’.
District Attorney Jerome, nonetheless, had a difficult act to follow. He pleaded with the jury to remember that they were there to determine ‘whether what the defendant did was, in law, justifiable or excusable’.
Five possible verdicts were open to them – murder in the first or second degree, manslaughter in the first degree, justifiable homicide or not guilty on the grounds of insanity. He pointed out that ‘dementia Americana’ did not equal justifiable homicide, which could only be carried out in self-defence: Harry’s brutal murder of the great Stanford White certainly wasn’t that. Nor was it excusable – that is, an accident. Jerome redescribed the murder. He tried to salvage White from the brutal image that Evelyn had painted of him: unchaste, yes, but violent no – after all, if he was such a heinous man why had the child she then was continued to see him? He then argued that the Thaw who had pursued young Evelyn and flaunted her through every European capital was no Sir Galahad either. If Thaw had been one of the more typical inhabitants of the Tenderloin, a son of a padrone, a godfather, and not of a Pittsburgh millionaire, if Mr White had been a modeller of plaster images and not a leading architect, there would be no talk of paranoia or brain storms, only of ca vulgar, ordinary, low, sordid, murder’.
Jerome then poked fun at the experts who contended that a man could be insane when in love, insane when he was married and when he made his will, insane ‘when he brutally and cowardly shot down his enemy whom he hated’ – and then, suddenly, his insanity vanished. ‘Murder as a cure for insanity is a new thing in this jurisdiction, until with Dementia Americana, it was introduced by my learned friend, Mr Delmas.’
When the time to instruct the jury finally came, Justice Fitzgerald reminded them that the law was there to protect everyone, no matter the character of the victim. He underlined that there was no excuse in law for ‘an irresistible impulse to commit a crime, where the offender has the ability to discover his legal and moral duty in respect to it. Nor is it ev
ery weak and disordered mind that is excused from the consequences of crime.’ Partial insanity – for example, if the defendant had an insane delusion as to the character of his victim – was no excuse for homicide. Explaining the brunt of the M’Naghten rules, the judge further reminded the jury that experts testify only to their own opinions. The jury was not bound, or indeed permitted, ‘to accept testimony of opinions as you would accept testimony of facts’. Such opinions were merely an aid to their deliberations. If Thaw knew the nature and quality of the act he was doing and knew it was wrong, he had committed a crime.
The jury went out at five, couldn’t reach a verdict by eleven, and were locked up for the night. They were sifting evidence that had accumulated over eleven weeks and four days, at a cost of a hundred thousand dollars to the state (two million at today’s rates) and four times that amount to the Thaw family. Next day, looking haggard, the jury returned to the court and asked for further information. They didn’t finally come back with their verdict until the day after, 12 April. Having deliberated for forty-seven hours, they now declared they had failed to agree. Seven had voted for murder in the first degree and five for acquittal on the ground of insanity.
A new trial was called.
39. Sexual Politics
The Thaw trial was kept in the public mind for months by a horde of reporters who not only commented on the look and statements of witnesses, lawyers and the accused, but speculated on or insinuated motives and meanings. The nature of madness and ‘honour’ killings, the fine points of expert analysis, what constituted female virtue and woman’s place in the world, the definitions of perversity and perversion – all were debated in that democratic forum that is the press.
Criticized or admired, Evelyn Nesbit was at the centre of the media storm. Through her, America came face to face with its contradictory morality. The country was prepared to visit at the shrine of her nubile photographic image, but the very fact that Stanford White had been equally attracted and had stepped over the line from wish to consummation had not only destroyed his reputation as an architect, but in some quarters had turned his murderer into a hero. Meanwhile, Evelyn’s calm refusal to condemn White outright as a horrendous beast tarnished her image. Female desire and desirability combined with female intelligence were simply too dangerous in one tiny child- woman. No one, however, seemed to be particularly aghast at the sadistic brutality of Harry K. Thaw: the existence of millions seemed to excuse a million ills. Perhaps the savage Thaw rather than the civilized White incarnated a preferred image of masculinity.
Yet even though the trial reporters, standing in for Everyman and woman, might turn against Evelyn, their depiction of her extraordinary calm and honesty on the witness stand came to embody a new twentieth-century manifestation of emancipated femininity.
Women reporters – like Evelyn herself, relatively new figures on the American public scene – were present in substantial numbers at the Thaw trial. Nicknamed the ‘pity platoon’, ‘sympathy squad’ or ‘lady muckrakers’, they were mostly excluded from the courtroom when proceedings grew too sexually explicit: the judge, unwittingly echoing Thaw’s own feelings about women and virtue, ordered all but four of the most serious ‘sob sisters’ to leave. They sat at their own special table. It may have been the famous wit Irvin S. Cobb, then a rising journalist, who named the ‘four fine looking girls who spread their sympathy like jam’ ‘sob sisters’, thereby giving birth to a term that would long outlive its origin. Women’s coverage was intended, like popular fiction, to elicit tears, a ‘great depth of womanly feeling’ – to show the human face of a story.
The Pittsburgh millionaire was uncomfortably popular with the romanticizing type of woman, unlike the marauding Stanford White – in the period leading up to the trial, many chorus girls had spoken out against him. Whether this was due to the Thaw family’s financially seductive efforts or to White’s actual seductions will never be known. Thaw’s ‘is a lovable face’, wrote Beatrice Fairfax of the New York Evening Journal. ‘Wilful, and perhaps weak, it is yet lovable. One can imagine that he was an easy boy to spoil ... The chances are that, even without his fortune, Harry Thaw would have been popular among women.’ It may as easily be the case that the allure of millions in the Gilded Age happily stood in for any other lacks.
Of Evelyn, that slip of a girl who had run the whole gamut of emotions and ‘crowded more into her few short years than other women go through in a lifetime’, the same reporter emphasized her ‘sad little face now, with all the joy and youth faded out of it’. She judged both Thaw and Evelyn to be two ‘unruly natures’ who, given their ‘lack of self control’, inevitably ushered in an unhappy end.
The story of Evelyn Thaw’s life is a lesson to every foolish little girl in the land who imagines that the greatest of joys lies in posing before the world as a famous beauty and receiving the homage and gifts of men whose attentions, did the girl but know, are an insult instead of an honor.
America and its women couldn’t work out whether Evelyn was a vixen or a victim, an active beneficiary of her own rape, or its sullied loser. Whereas Stanford White was condemned as an ageing seducer and rapist, Harry Thaw’s whipping and humiliation of Evelyn brought almost no comment: prevailing wisdom seemed to think it altogether unremarkable that a man might beat the woman who was, or would soon be, his wife. Domestic violence, after all, was not unusual.
Then, too, Harry blubbed and sobbed in court, while Evelyn largely maintained a reasonable composure, only once letting tears overcome her. Thaw’s emotion garnered sympathy from the women reporters, while Evelyn’s clarity, her intelligence, her stoical self-control through difficult cross-examination, her ability to speak calmly about sexual events, all rendered her more suspect: if not an outright liar, then a denatured woman. The QC Helena Kennedy, writing about women in the courts today, shows that things have not altogether changed: a cool distance, let alone overt sexuality and lack of fluffy emotion in a woman, can brand her as guilty and immoral just as easily now as it did then. While Evelyn spoke, the papers reported, the women in court bowed their heads, evidently in shared shame.
The headline to a report on the Thaw case by Dorothy Dix stated that an all-woman jury – there wasn’t a single woman on the jury of the Thaw trial, of course – would certainly acquit Harry for killing Stanford White, since ‘Killing through Jealousy Appeals to Female Heart’ and ‘Emotions Would Almost Entirely Govern a Decision by Fair Sex’.
In her analysis of the press at the trial, Front-Page Girls, Jean Marie Lutes quotes one of the most coolly analytical of the ‘sob-sisters” assessments of Evelyn. Nixola Greeley-Smith of the New York Evening World wrote: ‘I have no illusions about Evelyn Thaw ... I think merely that she was sold to one man and later sold herself to another.’
The same Greeley-Smith (who met her soon-to-be husband, a fellow journalist, at the trial), during Evelyn’s narrative of the horrors of her sexual victimization, writes of the duty of giving to the trembling, weeping woman on the witness stand any support that the presence of members of her own sex might afford.
I think all the women present felt it, and only a sense of utter mental and physical nausea made any of them forget it and fly from the flaunted shames, the dark horrors of that court-room.
Moreover, they fled from it in vain. For these horrors followed them into the sunlit street, into their offices, back to their homes, and kept relentless vigil at their pillows, making them wonder if the iniquity through which Evelyn Thaw had passed was to leave a permanent polluting stamp on all who heard it.
At the heart of the trial was Evelyn’s despoliation, to which White’s murder came a poor second. When she recounted the sordid facts of her deflowering and broke into tears, the courtroom and the ‘sob sisters’ sobbed with her. Her ‘wrenching tale of betrayal and debauched innocence’ had an even more devastating effect on Harry, the papers reported: he broke down in tears, and uttered the sounds of a wounded animal. It was these sounds that garnered sympathy for Ha
rry.
One other aspect of Evelyn’s testimony had the women reporters split in their estimation of her. On the sixth day of her brave open testimony concerning her sexual life, DA Jerome once more set out to cast her as more sinning than sinned against. This time he used her schooldays diary to illustrate that she was not quite the home-loving would-be wife that her testimony might have been intended to evoke. At sixteen, commenting on her mates, she had written:
A girl who has always been good and never had a word of scandal breathed about her is fortunate in more ways than one. These girls are all just that kind. They have been kept from the world all their lives and know very little of the mean side of it. And then, on the other hand, there is not one of them who will ever be ‘anything’. And by ‘anything’ I mean just that. They will perhaps be good wives and mothers and die good wives and mothers. Most people would say, What could be better? But whether it is ambition or foolishness, I want to be a good actress first.
All the papers reported, or printed verbatim, this moment in Evelyn’s testimony. She had been unflinching in her response to questions about waking in Stanford White’s tower after the rape, to insinuations that her ‘appendicitis’ might well have been an abortion or to inquisitorial probing about Thaw’s whipping attack and rape – but this extract from her diary, it was said, was the one moment that brought a blush to her pale cheeks. Evelyn had been outed as a woman who harboured desires, evidently perverse for the time, to be more than a domestic appendage, a good little wife. Perhaps she was also flushed through worry that the court, in the light of her wishing to be an actress, might take her entire testimony as a performance.
But the women journalists didn’t uniformly attack her teenage revelations. Hard-headed Greeley-Smith defended this schoolgirl’s diary: Though Mr Jerome read the slangy passages of this interesting human document with as insinuating an emphasis as his varied voice could summon, the worst interpretation that Mrs Thaw’s worst enemy could place upon it is that at sixteen her view of life was, as the New York vernacular phrases it, “hip”.’ To wish to have a working life carried no shame, this commentator thought: indeed, she herself would be wooed back into journalism after her marriage.
Trials of Passion Page 35