by Simon Baatz
Jerome was a familiar figure in the hallways of the Criminal Courts Building. He was instantly recognizable: his sandy-brown hair, strong jaw, trim mustache, and pince-nez eyeglasses gave him an idiosyncratic presence. The sense of probity that had induced Jerome to support the reform movement in the 1890s had not deserted him; but he was now more pragmatic, less scrupulous in his choice of allies, often relying on members of the criminal underworld for information. He was a merciless prosecutor who always expected to win his cases, and he was never reluctant to use any available means to achieve his goal. He could be cruelly indifferent toward his adversaries, badgering the witnesses relentlessly, doing everything possible to belittle their testimony, seeming almost to take a sadistic pleasure in exposing their answers as fraudulent.24
Evelyn Nesbit had been an excellent witness for the defense. There had been nothing vague or uncertain about her replies to Delmas’s questions, and she had provided an extraordinary amount of detail—detail that seemed to argue for her veracity. But she had inadvertently made one error, an error that would allow Jerome to challenge her testimony.
Stanford White had raped her, according to her previous statements, on the day after she first posed for Rudolf Eickemeyer in his studio on Twenty-second Street. But Eickemeyer had allowed the district attorney to examine his appointment books for 1901, and Jerome had discovered that Evelyn Nesbit first visited Eickemeyer’s studio on Monday, November 4, 1901. The rape must have occurred, therefore, on the evening of the following day, Tuesday, November 5. But the municipal elections had taken place that day, and Stanford White, with his wife, Bessie, had hosted a dinner party for some friends at his town house on Gramercy Park. Jerome could therefore establish an alibi for White—an alibi that would destroy Evelyn’s testimony—but only if he could prove to the jury that she had visited Eickemeyer’s studio on November 4.25
Jerome held in his hand a large piece of cardboard, measuring eighteen by twelve inches, and he handed it to the witness, asking her to identify the photograph that was mounted on the front of the card. Evelyn recognized the photograph showing her dressed in a kimono, lying on a polar bear rug.
“Who was present when that photograph was taken?” Jerome asked.
“Mr. Eickemeyer and Mr. White.…”
“How many poses do you recall—were there a good many?”
“I don’t remember.”
“You were never exposed to any indignity?”
“No.”26
Jerome handed her a second photograph, again asking her to identify the picture. It showed her dressed in the skirt she had worn to the studio, a skirt that her mother had bought her earlier that year.
“I show you exhibit 31 for identification and ask you when that was taken?”
“In 1901.”
“Were you acting at that time?”
“I think so.”
“What company were you acting with?”
“The Florodora company.”27
Jerome took a third photograph from the table by his side, showing it to the witness, but Delphin Delmas now interrupted. “This is a cross-examination,” Delmas objected, “not upon what she told Mr. Thaw, but a cross-examination upon the events, facts, entirely independent from what she may or may not have told him.” Such questions lay outside the rules of evidence. Evelyn Nesbit had not testified on direct examination about the photographs. The defense had not introduced them in evidence. How, then, could the district attorney cross-examine her about the photographs in this way?
But the judge, James Fitzgerald, now gave the state an important victory. Jerome had previously said that he intended to test the credibility of the witness. His interrogation, when directed toward that end, was therefore legitimate. “The question of the credibility of this witness,” Fitzgerald stated, “is a material issue in this case. The objection will be overruled.”28
Jerome continued to show her the photographs, pressing her for information about her visit to Eickemeyer’s studio, trying to determine the day of the appointment; but Evelyn had realized the significance of his questions and she refused to be drawn. It was too long ago, she said, more than five years since she had first posed for Eickemeyer, and she could not provide Jerome with the information that he demanded.
Could she recall anything about the following day, Jerome asked, the day, according to her testimony, when White had drugged and raped her? That event, an intensely traumatic episode as she had described it, must have stamped itself on her memory. She had claimed to have lost her virginity in White’s bedroom. What could she remember? How about the weather? Had there been snow on the ground? Had it rained?
“Do you recall the character of the weather that day?”
“No, sir.”
But she could surely remember the date of that dreadful event? She had told Thaw that White had drugged and raped her and that she had lost her virginity. No one could possibly forget to mark such a traumatic episode.
“Do you recall what day of the week it was?… Was it on a Sunday?”
“No,” Evelyn replied, “it was not on a Sunday, because I came from the theatre.” But she could not otherwise say what the day was.
“Do you recall what day of the month it was?”
“No, sir.”
“Do you recall what month of the year it was?… Could it not have been in late October or early November?”
“No, I don’t think so; it couldn’t have been as late as that; I don’t think it could have been November. I don’t remember.”29
Jerome had previously been reluctant to cross-examine Evelyn Nesbit, hoping to save her from the humiliation that would be the consequence of his interrogation. But her obstinacy, her refusal to answer his questions, annoyed and irritated him. He did not know the nature of her relationship with White; but he was certain that the rape never occurred as she had described it. He realized that it would be futile to continue his questions along the same path—she was obviously intent on giving him as little information as possible—but he expected to call Rudolf Eickemeyer as a witness at some point, and Eickemeyer would willingly testify to the date when he had first taken photographs of Evelyn Nesbit in his studio.
Jerome picked up some slips of paper from the table beside him, standing before Evelyn Nesbit, holding several canceled checks in his hand. Henry Deming, the president of the Mercantile Trust Company, was an acquaintance—both men were members of the University Club—and Deming had allowed Jerome to examine Stanford White’s bank accounts. Jerome had discovered that the Mercantile Trust Company had sent checks, drawn on White’s account, to Evelyn Nesbit throughout 1902.
“I hand you exhibits 65 to 73,” Jerome said, showing the checks to the witness, “and ask you to pick out the ones bearing your signature.”
She held the checks in her hand, glancing at each one before returning them to the district attorney. “They all have my signature,” she replied.30
“You got these checks and indorsed them, didn’t you?”
“I did,” Evelyn replied.
The district attorney had taken her by surprise. How had Jerome come into possession of the checks? What else did he know about her relationship with Stanford White?
The checks were drawn for varying amounts, some for twenty-five dollars, others for fifty dollars. The payments had started in December 1901, several weeks after White had raped her, and continued at least until October 1902. Jerome started to leaf through the checks, reading the amount and date of each one, occasionally pausing to allow the stenographer to record the details.
“Who was furnishing that money?” he asked.
“Stanford White.”31
“How long after you were drugged, as you say you were, did you begin to receive checks from Stanford White?”
“I don’t recall,” Evelyn answered. “It was some time after that.”
“Did you not receive money…” Jerome paused, correcting himself. “Did you not have a letter of credit from Stanford White when you went to
Europe?”
“Yes,” Evelyn replied.
“Who got that money?”
“My mother.”
“All of it?”
“Yes.”32
Stanford White had provided a letter of credit for $500 for the journey to Europe in June 1903. But, Evelyn added, he had given it to her mother as the boat was about to sail from the harbor. She had not known about it until her mother mentioned it to her during the voyage to England.33
The district attorney had surprised her a second time; but Evelyn could now guess that her mother, Florence, had told Jerome about the letter of credit. Florence Nesbit had always refused to believe that Stanford White had raped her daughter. White had been a kind, generous man who had helped her and her children at a time when she was most in need. He had never refused any request, paying for the education of her children, securing an apartment for her in the Audubon Hotel, and occasionally giving her small presents of money. Stanford White had been her guardian during her time in New York, and his death had deeply upset her. It was impossible for her to believe that White had raped Evelyn; nothing could have been more hurtful than her daughter’s accusations against her benefactor.
Florence Nesbit could not forget also that members of the Thaw family had uniformly treated her with contempt. The matriarch, Mary Thaw, held herself aloof, obstinately refusing any contact, still seeming regretful that her son had chosen Evelyn as his wife. Nor could Florence Nesbit forget that Harry Thaw, an obnoxious, self-centered young man, had ignored her during their time in Paris. It infuriated her to know that Evelyn was now besmirching the memory of Stanford White—all for the sake of that scoundrel Harry Thaw!—and Florence Nesbit had disowned her daughter. She had never liked her son-in-law, and it humiliated her to know that Evelyn was bringing dishonor on her family solely in order to save Thaw from punishment. Travers Jerome had asked her for her assistance, saying that he only wished to know the truth, and she had willingly cooperated with the district attorney, providing him with the information that he requested.34
Stanford White, according to Florence Nesbit, had frequently called at the Audubon Hotel, and Evelyn had often visited White at Madison Square Garden after performances of Florodora, occasionally staying out until the early hours of the morning. Jerome soon realized that the friendship between White and Evelyn Nesbit had continued for many months, long after the time when White had supposedly raped Evelyn.
“How often,” Jerome demanded, “were you alone in the company of Mr. White?”
“I don’t remember,” Evelyn answered. She now spoke less assuredly, less confidently, uncertain how much Jerome already knew.
But she confessed that she had continued to see White alone, even after the rape. White would send a note to the theater, asking her to come see him, and she would take a cab downtown either to the tower apartment in Madison Square Garden or to the town house on Twenty-fourth Street.
“Did you,” Jerome asked, “go out with him to lunch or to suppers in the tower very frequently?”
“Yes, sir.”
“That was practically every week for a considerable period, was it not?”
“Yes.”
“Sometimes two or three times a week?”
“Oh, yes, oftener than that sometimes.”
“Sometimes every day?”
“Yes…. He was constantly coaxing me to go with him alone…. He was constantly nagging me. Sometimes he would coax me and sometimes scold me, and he would get very unpleasant about it…. He told me that he wanted me; he told me over and over again. He always wanted me to come back…. He tried to get me to come back.”35
Travers Jerome was careful not to make any accusations against the witness—it scarcely seemed necessary—but her testimony had cast her relationship with White in a new light. She had been many times with Stanford White after that evening when he had first raped her. She had gone alone to see him, taking a cab downtown after each performance of Florodora. There had been no compulsion for her to be alone with White and, apart from his nagging, no coercion placed on her to see him. Had there been a consensual relationship? Had she been his mistress? Why had White continued to give her money for more than a year after they first met?
Her previous testimony, on direct examination, had cast her as an innocent victim who had suffered a brutal assault. But more and more, as Jerome continued to question her, it seemed almost as if Evelyn had encouraged the jealousy between her two suitors, continuing her relationship with Stanford White while traveling in Europe with Harry Thaw, holding White’s letter of credit while living at Thaw’s expense in Paris.
Florence Nesbit had accompanied her daughter to France in the summer of 1903, and after spending several weeks in Paris, they had left the capital for London. Harry Thaw had gone alone to England, traveling ahead to make the arrangements for their stay; and Florence had taken a train to Boulogne with her daughter to catch a boat across the Channel. There had been a delay at Boulogne, and Evelyn passed the time writing letters to her friends in New York, including a letter to Stanford White.
“Will you tell me,” Jerome asked, again catching Evelyn by surprise, “why you wrote to Stanford White from Boulogne? Why did you write a letter from Boulogne to the man who had so grievously wronged you?”
“Because my mother begged me to write to him,” Evelyn replied, dismayed that her mother had told Jerome even this detail. “Because my mother made me—she insisted on my writing to him. It was hateful to me to do so.”
“What did your mother say to you?”
“She said that I was an ungrateful girl not to have written to Stanford White more than I had…. She said I was very ungrateful to him not to have written to him.”
Had she never confided to her mother that White had drugged and raped her? “Why didn’t you turn to your mother and tell her those things when she urged you to write to White from Boulogne? She was your mother—why didn’t you tell her?”
“Because I couldn’t…. I would rather have died than tell her. I could not tell her.”36
It had been a welcome surprise for Jerome that Florence Nesbit had betrayed her daughter, providing him with information that he used to such effect to undermine Evelyn Nesbit’s testimony. But even Jerome could not have imagined that another informant, one of his most bitter enemies, the attorney Abraham Hummel, would also offer him evidence against the witness, evidence that would contradict Evelyn’s claim that Stanford White had raped her.
Two years before, in January 1905, Jerome had successfully prosecuted Hummel on a charge of conspiracy, accusing Hummel of bribing a witness to offer a false affidavit in a divorce case. The judge had sentenced Hummel to imprisonment for one year in the penitentiary; but Hummel had fought his conviction in the appellate courts and now, in February 1907, he awaited a final decision by the Court of Appeals.37
Jerome had indicted Hummel on a second charge, still pending, of subornation of perjury; and that felony indictment, more consequential than the conviction for conspiracy, would doubtless result in a second prison term for the attorney.
But Hummel now approached Jerome with a proposition. He had interviewed Evelyn Nesbit in his office in October 1903, shortly after she returned from Europe. She had signed an affidavit against Harry Thaw, Hummel told the district attorney, saying that Thaw had assaulted her with a dog whip. Thaw had told Evelyn, during their time in Europe, that he wanted to send White to the penitentiary and he had demanded that Evelyn accuse White of raping her. She refused, telling Thaw that the accusation was untrue, and he attacked her in her bedroom in the castle at Meran, seizing her by the throat, tearing away her clothes, and whipping her.
Every detail of Thaw’s assault on Evelyn, Hummel said, was contained in the affidavit, and he would gladly give Jerome his copy… but only if the district attorney would abandon the indictment for perjury, still pending, that Jerome had presented against him.
The affidavit, Hummel told Jerome, would prove to the world that Evelyn’s cou
rtroom testimony, her claim that White had raped her, was a fabrication, a lie that had its origin in Harry Thaw’s obsessive desire to send White to the penitentiary. Evelyn Nesbit had refused Thaw’s original demand when he first presented it in 1903; but now, after White’s death, she had agreed to testify falsely, telling the court an elaborate fiction that she hoped would save her husband from the electric chair.
But how could Jerome accept such an offer? How could he present as evidence an affidavit from Hummel when two years before he, Jerome, had prosecuted Hummel for offering a false affidavit? Everyone, including Jerome, knew Hummel’s reputation as a deceitful, dishonest attorney, a shyster lawyer who had no regard for the law except as it served his self-interest. But the affidavit held out the possibility that Jerome could finally destroy Evelyn’s testimony. It did not seem to matter that Hummel no longer possessed the original document and that he could provide Jerome only with a carbon copy. Nor did Jerome worry that Hummel might have fabricated the affidavit. The deal was struck: Jerome would withdraw the indictment against Hummel, and Hummel would provide the affidavit to Jerome.
“Evelyn Nesbit Thaw to the stand!”
The clerk of the court called out his command and the witness again stepped across the front of the courtroom, taking her place on the raised chair adjacent to the bench. She had borne the weight of her cross-examination for four days, never wavering in her testimony, never yet failing her husband, but now, on the fifth day, there was a hint of fatigue about her appearance. She no longer seemed so self-assured; her gaze, as she looked out across the courtroom, no longer seemed so fearless; the color had faded from her cheeks, and she seemed slightly diminished, almost as if she had lost weight.38
Travers Jerome, by contrast, appeared ebullient, almost cheerful, as he rose from his chair. He held in his hand the carbon copy of the affidavit that, according to Hummel, Evelyn Nesbit had sworn against Harry Thaw in 1903, the affidavit that claimed Thaw had whipped her.