Trials of Passion

by Lisa Appignanesi

  40. Expert Fall-out

  Harry Kendall Thaw languished in jail for nine long months before his second trial began. During that time his affection for his wife, the newspapers reported, dimmed, and he took up the study of Christian Science. Meanwhile his lauded sister, the Countess of Yarmouth – whom Harry had held up to Evelyn as a counter-example to Stanford White’s claim that all people really behaved badly in secret - was divorcing her husband on grounds of non-consummation of their marriage. Evelyn’s relations with her in-laws grew no better, but as the second trial approached, they knew they had to rely on her once more for her testimony.

  Principal players apart, it was the expert witnesses who seemed most appalled by the progress of the first trial. They were calling for reform. Writing in The American Lawyer, which devoted its July 1907 issue to articles on the ‘fiasco of the recent Thaw trial’, Hamilton reiterated his belief that Thaw was permanently insane. He attacked his fellow alienists for supporting the defence of temporary insanity. They had sold out to the highest bidder in what he described as ‘the present prostitution of scientific testimony’. He and several other experts now voiced their opinion that impartial experts should be appointed by the court to examine defendants in a hospital setting.

  Others objected to the form of the all-inclusive, multifaceted hypothetical questions that lawyers put to experts, demanding at their long-delayed end a yes or no response about the defendant’s sanity. A human life could hang on this single response, which might include one or two hypotheses with which the expert simply could not agree. Looking back at the trial, though not naming it, at the sixty-fifth annual meeting of the American Medico-Psychological Association in June 1909, the defence’s star expert witness, Britton D. Evans, objected to the hypotheticals, which grouped too many unknowns together and forced the witness to accept them all as facts:

  In a somewhat celebrated murder trial in which I appeared as one of the expert witnesses, a hypothetical question was so framed as to lead a casual observer to believe that it embodied all the essential facts which had been presented upon the witness stand, but in one part of it it had this phrase: ‘and assume that this time he was suffering from a disorder of the mind’. Now whatever might have constituted the other parts of this lengthy question, since a ‘disorder of the mind’ is used to indicate mental unsoundness, mental derangement and insanity, it is clear that the witness, by the insertion of this one assumption, was left no choice as to a conclusion and was denied the right of discrimination and the opportunity of weighing the other parts of the question.

  Evans was also aiming at the critics who wanted all experts to agree. New forms of selecting expert witnesses, perhaps by official boards, were being mooted; but these, Evans argued, would be selected by people who themselves might disagree with each other. If selected for life and thus responsible to no one, the experts could still find reasons to differ. In addition, there were other real difficulties in making the principles of medicine meet the requirements of the law.

  The law too often ended up disarranging and misusing ‘legitimate and reliable scientific findings in order that they may be made to meet the demands of established legal precedents or harmonize with court rulings, many of which are relics of antiquity’. The relationship of medicine to law may have begun in England at the Suffolk witch trials of 1665, when the natural philosopher and doctor, Sir Thomas Browne, had examined the accused. But medical science had grown in expertise since then. It was progressive. Evans went on:

  It does not depend on the dogma and theories of the middle ages; it does not even hang on the theories of the last decade, but accepts that which is proven to be the soundest and best after it has been subjected to scientific scrutiny and careful analysis. In medicine no great authority of the past is allowed to retard the investigations and progress of today or to interfere with the steady strides which were made through scientific medical research in the interests of humanity.

  For all the criticism, Evans underlined, the court needed its experts: and it couldn’t expect them ever and always to agree. After all, judges at the Supreme Court didn’t always agree either.

  William A. White had already suggested in his article ‘Expert Testimony and the Alienist’ in the New York Medical Journal of 25 July 1908 that professional jealousy was hardly unknown, even amongst doctors. The specialist who hadn’t been called to give his expertise to a court and consequently had not received ‘large fees... can well afford to decry the lack of morals in his more fortunate brother’. Using his own psychoanalytic expertise, White had termed this a ‘defence reaction’ which allowed the unsummoned professional to ‘spare himself the discomfort that comes from emotions that find no means of outlet’. A less technical way of putting it was to say they were venting their spleen. Too often they had no understanding of the way the criminal law worked, and that what they proposed would mean its radical overhaul.

  Evans, in his lecture, went on to re-emphasize that in all expert fields there are differences of opinion. In court, however, witnesses were badgered ‘by pugnacious and aggressive lawyers’ and sometimes had to react either combatively or submissively. If the latter, jury and public thought them ill-equipped and incompetent, not qualified to testify in the capacity of expert. Humiliation followed. If, on the other hand, the witness stood firm in his convictions and refused to be forced into a false position, he would then be criticized for arrogant lecturing, for behaving like an advocate or showing bias. Evans’s recommendation was that experts needed to put their opinions in plain English, back them up, and be fearless of criticism or of the aggressive attacks of examining counsel.

  In the discussion that followed the lecture, a Dr Stedman recommended that a court-appointed expert would be the surest means to ‘secure unbiased expert opinion’. The employment of such an officer of the court would not preclude the hiring of further expertise by defence or prosecution, but for the jury the opinion of the court expert, since it was disinterested, would necessarily carry greater weight. A law in favour of the appointment of such experts had thus far failed to be passed, even though it would uphold the dignity of the medical profession. Germany had such appointees, and as a result their doctors were not held up to ridicule and cases were quickly settled. There, in difficult cases the accused would be sent to a hospital for some months for pre-trial observation.

  Most telling of all the comments at this annual meeting was the criticism Britton Evans himself received. The specialists did not approve of his having coined a ‘classification’ on the witness stand, particularly one that had caught the attention of the media. Classifications had to be agreed upon by the learned society as a whole. As if they had arrived some hundred years early for a meeting of a Diagnostic and Statistical Manual of Mental Disorders task force, the good doctors scorned Evans’s colourful notion of a ‘brain storm’ as a diagnostic category.

  Although indignant about the publicly reported and undignified ‘battle of the experts’, the professionals were not averse to doing battle with each other. Nor, in time-honoured fashion, did they mind taking the more prominent physicians down a peg or two. Evans’s reputation suffered, while White and Hamilton were bitter until the end about the humiliation the trial had brought. And on top of this professional malaise, all the experts claimed that the Thaw family had failed to pay them the agreed fees. Evelyn was to fare no better at the hands of the millionaires, insane or not.

  41. The Second Trial of Harry K. Thaw

  Thaw’s second trial began on 6 January 1908. Though still much reported, it didn’t consistently make the front pages – except when it was Evelyn’s turn to come to the witness stand. It may have been the same navy-blue schoolgirl outfit she was wearing, but Evelyn, according to one reporter, appeared at the opening day of the trial like ‘a new radiant self instead of the wan, pinched girl of the first trial’. Perhaps it was the lavish hat that made the difference: a vast black velvet topped with a lavender rose amidst a cluster of violets and draped with a ne
wly fashionable motoring veil. Though the radiance may equally have been the effect of life at the Waldorf, her current address, and six months without Harry. As for Harry, in his place in the dock, he was both quieter and grimmer.

  As before, some six hundred prospective jurors were summoned in order to find twelve good men and true. But this time, instead of Napoleonic Delmas at the helm of the defence team, the lead was Martin W. Littleton, a witty and agile attorney who, with the Thaw family’s backing, would argue for a simple insanity verdict. There would be no attempt to argue temporary insanity or appeal to the unwritten law.

  In his opening speech, Littleton stated that the defendant ‘would make the simple claim that at the time he killed Stanford White he was insane’. This was effectively what Thaw’s first and fired advocates had urged. Littleton had had prior discussions with District Attorney Jerome, and though the prosecution argued that Thaw’s murder of White had been a premeditated act, the trial moved on far more quickly than its predecessor. Expert witnesses were limited by the judge, Justice Victor J. Dowling, to three on each side.

  Littleton called his first expert witness on the second day. He was going down the well beaten path of inherited insanity. Dr Robert H. Chase of the Friends’ Asylum in Frankford, Pennsylvania, testified to the mental incompetence of a cousin of Harry’s father. She had been an inmate at the institution. Next came a nurse, Amy Gosette, who had attended Harry for three weeks under the auspices of one Dr Price Mitchell in 1897 in Monte Carlo, while she was working there. Jerome, being his usual argumentative self, objected to the violation of personal medical material without prior permission. A seemingly confused Harry was asked to waive confidentiality privileges. He eventually murmured the only words that would leave his lips during the trial, ‘I do.’ Nurse Gosette proceeded to describe how Harry, who was running a high temperature while under her care, had behaved in an entirely irrational manner, ‘was very unsettled in his actions and direction of thought’. Against the doctor’s orders not to leave his room, a wild-eyed, twitching Thaw had gone out, only to return to finish a quantity of letters that he then destroyed.

  Witnesses, including a schoolteacher who remembered him for his ‘backwardness’, then all attested to Harry’s incoherence of speech, his running-together of words, going off on wild tangents, failing to do the simplest things, and his crazy eyes. There were testimonies about relatives who had spent their lives in asylums, and the statement of the steward from Manhattan’s Whist Club where Thaw came periodically, sometimes staying in the club rooms. He had been there on the day before the murder and on the actual day, and talked of Thaw’s irrational speech and actions, his twitching and nervousness. A hotel switchboard operator stated that Thaw had made an outlandish seventy-five telephone calls in three or four hours. A second schoolteacher talked of his impulsive behaviour, his ‘animal-like howls and his tearless crying. His eyes were wide and rolling.’

  Harry’s mind was patently unsettled, a view with which his mother in a letter to Harry’s former teacher Abram Beck concurred. ‘His mind is more or less unbalanced,’ she wrote, adding that he ‘ought to have been more closely reared and trained’.

  Mrs William Thaw now rose from her sickbed and travelled from Pittsburgh to take the stand. She was feverish and feeble, and her testimony was rather different from that given at the first trial. She spoke of how her ‘nervous system’ had suffered after the death of her first child and how she had been an invalid until six months before Harry was born. Though he seemed normally healthy at first, a congestion of the lungs at three months induced nervous problems and sleeplessness. He also screamed, was frail, had fits and what was diagnosed as St Vitus’ Dance. Other members of the family were ‘weak-minded’, nervous or epileptic and had spent time in asylums.

  Mrs Thaw stood down without cross-examination because Jerome had permission from Littleton to read before the court her affidavit for the first trial. This stated that there ‘were no family secrets to be hidden’ and that there had been no sign of insanity or epilepsy for four generations in Harry K. Thaw’s direct line of descent. Evidently, definitions as well as declarations of madness were a moveable feast.

  It is tempting to speculate, however, on the key to Harry’s character that Mrs Thaw’s new trial narrative provides. Her stress here on her suffering nervous system, on Harry as a swift replacement child after the death of her firstborn, on his succession of early illnesses, finds parallels in the troubled infancy of other ‘deviant’ subjects. The presence of a dead and much mourned baby between mother and Harry may well have contributed to his ever shaky sense of himself. Beneath the image of scion of the millionaire family, there often seems to be little more than a small boy thrashing about in a world he can’t quite make sense of. His compulsive and perverse beating of young boys, the forbidden pleasure he takes in it, may well signal a wish to eradicate the ghost infant who had preceded him in his nervous mother’s affections.

  More witnesses followed, to testify to Harry’s insanity. At Claridges in 1899, he had been in so excited a state that a Dr Wells diagnosed subacute mania and had him transferred to a nursing home, where for six days he made preposterous demands. A physician from Paris’s Hotel d’Orsay stated that he had attempted suicide by swallowing poison when there with Evelyn Nesbit. A British doctor, in Rome, had diagnosed a case of mild mania.

  The vice crusader Anthony Comstock had not been well enough to testify at Thaw’s first trial, but this time he appeared. He recounted Harry’s coming to his office and detailing the vicious sex life of Stanford White. He had also told Comstock he was being shadowed. Perhaps only this last accounted for the personal blow for Harry from the Comstock he admired: ‘I thought his mind was unbalanced.’

  It was Evelyn’s testimony that once more drew vast crowds to the courthouse, as well as legions of journalists. It also drew Prosecutor Jerome’s most heated cross-examination. The papers, this time, were less sympathetic to Eveyln. She appeared too composed, too strong, no longer the little girl but the contained, confident woman. The press on the whole didn’t approve. The New York Times stated that cshe was flushed of face, but the flush was the mantling of the cheeks of a woman angry at heart and not the flush that comes with a sense of shame’. The first time, the paper reported, she lisped in constant suggestion of childish innocence’. The details were given ‘with a calmness and poise that made them all the more thrilling and horrible’. This time round there was no lisp, the cynical Times underscored: ‘she was no longer in the role of a child’, even if her attire showed that ‘her feminine heart was still attached to the juvenile in the matter of make-up’.

  Perhaps Evelyn really had grown up; perhaps too, she had had her fill of the Thaw family and its mean millionaire ways.

  Littleton, intent on proving Harry insane, not a jealous man who had rescued his wife from dishonour, quickly took Evelyn through her testimony. The effect, according to the Times, which nonetheless carried the trial on its front page for the first time since its second round had started, was that ‘where women in the courtroom – newspaper women accustomed to the sensational – had bowed their heads and gasped a year ago, they maintained a stolid indifference this time’. Evelyn shed no tears and didn’t collapse, and her sexual congress with Stanford White in this current rendition seemed less important than the details of the furnishings in his apartments.

  Evelyn stood her ground remarkably well against Jerome’s haranguing objections – so marked that in his summing-up Littleton complained of his attitude of ‘unofficial antipathy’ towards her, as if his entire case rested on Evelyn’s morality, not on Thaw’s sanity. Evelyn herself, in this trial, emphasized the signs of Thaw’s madness and the fact that everyone had told her ‘Harry was crazy’. Harry’s attempted suicide by overdosing on laudanum in the Hotel d’Orsay was now narrated in detail; as well as a plan that they commit joint suicide at the Waldorf – on the very day when he had made those seventy-five telephone calls.

  Jerome’s cross-
examination began promptly at three, and was intended totally to subvert any possibility of the jury trusting in Evelyn’s honesty, or indeed innocence. She was, he set out to prove, a hardened money-grabbing schemer already immersed in vice, whose account of why she had initially refused to marry Harry and what she had told him so as to tip him over the edge was a pack of lies. According to the New York Times, he ‘hammered mercilessly on the question of the witness’s conception of what was moral in the matter of the relation of the sexes, and quoted from her former testimony that illicit love was ‘indelicate and vulgar’. But Evelyn, the tiny twenty-three-year-old with little education, came back at him with such cool that the Times felt impelled to express its admiration: ‘So clear in mind was the witness’, so ‘quick of wit’, that she declared she knew ‘instinctively that it was not right to marry Harry Thaw’.

  Why had she not told the court of Harry’s suicide attempt the first time round? Jerome quizzed. ‘Because Mr Delmas said it would make Harry out to be too crazy.’ And when Jerome queried her about Barrymore, Thaw’s courtship, White’s money, the Hummel affidavit, she answered it all with ‘dauntless courage’ and a straightforward veracity that turned Jerome’s harshness to her favour.

  This was Evelyn’s finest performance. Perhaps the sheer crush of the public who had pushed or begged their way into the court – bearing personal letters to court officers or pleading varieties of personal reasons to be allowed admittance – had brought her star talents to the forefront. But then, as she admitted in her memoir, she had by this time learned how to be a witness – and Jerome no longer had the power to frighten her with his bullying tactics. During the recess, according to the New York Times, ‘the corridors of the Criminal Court Building on the first floor were overrun by the curious, and many women and boys fought and scrambled for a chance to get a glimpse of the wife of the prisoner’.