by Simon Baatz
“When you met Hummel at his office, in the fall of 1903,” Jerome asked, speaking almost nonchalantly, “I understand you as saying that Hummel dictated a paper, dictated something to a stenographer in your presence.”
“Yes,” Evelyn replied. Her voice was abrupt, almost harsh, as if she had prepared herself for the onslaught of questions that Jerome was about to set loose.
“Before Hummel dictated to the stenographer, you talked with him?… Did you not tell him, Hummel, about your trip abroad, in all its details?”
“I told him about the trip abroad. I don’t exactly know what you mean about all its details.”
“Did you tell him what happened between you and Thaw there?… Did you not tell him that after travelling for five or six weeks the defendant had rented a castle in the Austrian Tyrol?”
“I told him that. I am not sure I told him after travelling five or six weeks; I don’t remember that.”39
“Did you tell him that the first night… you were very tired and went to bed right after dinner?”
“I don’t remember whether I told him that or not. It is very possible.”
“Did you tell him that in the morning you were awakened by Mr. Thaw pounding on the door and asking you to come to breakfast, saying that the coffee was getting cold?”
“I don’t remember that.”
“And did you further tell him at that time that after breakfast Thaw said he wanted to tell you something and asked you to step into your bedroom?”
“No.”
“Did you tell him that when you entered the room Thaw, without any provocation, grasped you by the throat and tore the bathrobe from you?… That his eyes were glaring and that he had in his hand a cowhide whip?… That he seized hold of you and threw you on the bed?… That he continued to act like a demented man and beat you very violently there?”
“I did not tell Mr. Hummel that.” Each word rang out across the courtroom, clear and distinct in its emphasis. She had regained her self-confidence, and she angrily denied Jerome’s accusations.40
“Did you tell him that Thaw wanted to injure White and get him in the penitentiary?”
“I told Mr. Hummel,” Evelyn conceded, “Mr. Thaw wanted Mr. White put in the penitentiary, yes.”
“And that Thaw had begged you time and time again,” Jerome asked, “to swear to a written document that he had prepared?”
“No, sir.”
“And that these documents,” Jerome continued, now referring to the accusation that Thaw had made against Stanford White, “charged this man with having drugged and attacked you?”
“No.”
“And that you had told Thaw that this was not so?”
“No.”
“And that he had beaten you because you wouldn’t sign it?”
“No, sir.”
Jerome now offered a single page to the witness, asking her to identify the signature that appeared on the final page of the affidavit he had received from Abraham Hummel. “I show you people’s Exhibit No. 76 for identification, and ask you if that is your signature?”
“It looks very much like my signature,” she replied hesitantly. She glanced across the room toward the defense attorneys, silently appealing to Delphin Delmas for his assistance, her plaintive expression demanding his intervention—anything to halt Jerome’s insistent interrogation.
“Have you any doubt that that is your signature?”
“I don’t remember ever signing anything like that.”
But there was something curious about the paper that Jerome had offered to the witness, and Delmas realized that the district attorney was asking Evelyn Nesbit to identify her signature on a photographic copy. It was not an original document that Jerome held in his hand but a photograph!
“Is that what counsel means,” Delmas demanded, anger and incredulity combined in equal measure in his voice. “Does counsel offer a photograph?”
“Certainly,” Jerome replied, turning away from Delmas as if to dismiss the question.
“I submit,” Delmas appealed to the judge, “that the question is misleading. When learned counsel asks:—‘Is that your signature?’ knowing it is a photograph, the question condemns itself…. I submit that the photograph is improper unless the original, its counterpart, is produced, and I object to it.”
“I will let her answer,” Fitzgerald replied, overruling the objection.
But already Evelyn had regained her composure, and she refused to say that it was her signature at the bottom of the page. It was not possible, she answered, to identify the signature.
“I will have to prove this as an independent fact.” Jerome addressed the judge, saying that he wished to call Abraham Hummel as a witness to the affidavit. “I will ask to suspend and lay the ground to offer this in evidence. I wish to adjourn until I can put Mr. Hummel… on the stand.”41
Jerome had hoped to catch Evelyn Nesbit in a lie, to prove her testimony false, but she had been more elusive in her responses than he had anticipated. Jerome had finished his cross-examination and now he called witnesses in rebuttal. Rudolf Eickemeyer took the stand to testify about the date when he had first photographed Evelyn Nesbit in his studio.
“Were you,” Jerome began, “ever connected with Campbell’s studio?”
“I was manager for several years,” Eickemeyer replied. He had worked at the Campbell Art Studio on Fifth Avenue after moving to New York in 1895.
“Were these taken by you?” Jerome asked, showing Eickemeyer several photographs mounted on cardboard of Evelyn Nesbit.
But Delphin Delmas now reminded the judge that Evelyn Nesbit had not testified on direct examination about the photographs. She had testified only on her conversations with Harry Thaw. The district attorney could call witnesses regarding those conversations, but he could not question Eickemeyer about matters that were not in evidence.
“I desire,” Jerome replied, addressing the judge, “to fix the very day on which the photographs were taken.” Evelyn Nesbit had said that White raped her on the day after she posed for Eickemeyer in his studio. “I desire to show that on that day Stanford White was somewhere else.”
“Your Honor,” Delmas interrupted, “has heard my objection.”
“Objection sustained,” Fitzgerald said.
“That is all, Mr. Eickemeyer.” Jerome shrugged his shoulders, as if to accept his defeat. He had hoped to establish an alibi for Stanford White on the night when Evelyn Nesbit said White had raped her; but Delmas had blocked his way.42
Could Jerome prove that Evelyn Nesbit had signed the affidavit against Harry Thaw? She had already testified on direct examination that Abraham Hummel interviewed her on her return from Europe in 1903. Hummel had provided the district attorney with a copy of the affidavit, and now he appeared in court to say that the affidavit was genuine.
“When Evelyn Nesbit called on you in October, 1903,” Jerome asked, “did she state to you as follows: that Harry K. Thaw had begged her, time and time again, to swear to documents which he had prepared, charging Stanford White with having drugged and betrayed her?”
“Yes,” Hummel replied.
Evelyn Nesbit had told him on October 27, 1903, that Harry Thaw had demanded, during their stay in the castle in Meran, that she falsely accuse White of raping her. She had refused his demand and Thaw had beaten her with a whip.
Hummel had dictated the substance of her remarks to his stenographer, and later that same day the stenographer had returned to him a typewritten original and a carbon copy. He gave the original to his notary, Abraham Snydecker, and the next day Snydecker returned the original, now signed by Evelyn Nesbit. He, Hummel, then gave the signed original to her while retaining the carbon copy and a photographic copy of the signature page.
Could Hummel now identify those documents for the court? “Is People’s Exhibit 77 for identification,” Jerome asked, showing the witness both the carbon copy and the photograph, “either of those papers?”
“It is,” Hummel replied,
pointing to the carbon copy of the affidavit.
“Examine People’s Exhibit 78, for identification,” Jerome instructed, now showing Hummel the photographic copy of the signature page, “and state whether or not it is a true and correct representation.”
Yes, Hummel replied, he could identify it as a photograph of the signature page of the affidavit.
The notary, Abraham Snydecker, also testified, saying that he had received the affidavit from Hummel, and later that day he witnessed Evelyn Nesbit sign the original copy.
“On October 27, 1903,” Jerome asked, “were you a commissioner of deeds in the city of New York?”
“Yes, sir.”
“On that day did you see Evelyn Nesbit?”
“I did…. Miss Nesbit had the paper in her hand probably between five minutes and ten minutes, it may have been a little less, and she then signed her name to the paper. Then I asked her whether or not she had read the paper and whether or not she swore to its contents and she said yes, and I then signed my name to it as commissioner of deeds of New York.”
“I show you People’s Exhibit 78 for identification and call your attention to a signature there and ask you… whether or not the signature there is your signature.” Snydecker fumbled for his eyeglasses and peered at the paper that Jerome held in his hand. He studied it carefully before finally acknowledging his signature at the bottom of the page.
“That is my signature,” he said.43
A sudden hailstorm rattled the windows of the courtroom. The sky outside had darkened and sheets of rain pounded the sidewalk along Centre Street, driving away the crowd that stood at the entrance to the Criminal Courts Building. There were no more witnesses; the trial had now run its course. Delphin Delmas delivered his closing address on Monday, April 8, telling the jury that Evelyn Nesbit had been a truthful witness. It was pitiful, Delmas stated, that the district attorney had relied on the testimony of Abraham Hummel—a convicted perjurer—to contradict Evelyn’s account of the rape. Stanford White had raped Evelyn Nesbit, and Harry Thaw had suffered insanity as a consequence. Every man on the jury, Delmas declared, could recognize the illness that had gripped Thaw. “It is a species of insanity which has been recognized in every court in every State of this Union from the Canadian border to the Gulf of Texas. It is that species of insanity which… I ask you to label ‘Dementia Americana.’ It is that species of insanity which makes every American believe that his home is sacred…. It is that species of insanity that makes him believe that the honor of his wife is sacred.”44
Travers Jerome came next, reminding the jurors that Evelyn Nesbit’s testimony had been contradictory and inconsistent. She had described the rape as profoundly traumatic, yet she had continued to see Stanford White alone long after White supposedly assaulted her. Why had she accepted his money? Why had she been unable to tell the court when White had raped her? Delphin Delmas had criticized the state for calling Hummel as a witness, but Delmas had said nothing about the clerk, Abraham Snydecker, and his testimony that Evelyn Nesbit signed the affidavit in his presence.45
The judge now addressed the jurors, explaining how they should regard the evidence that each side had presented. It would not be appropriate, Fitzgerald began, for the jury to consider Stanford White’s behavior in determining the culpability of the defendant. “The character of the victim furnishes neither excuse nor justification…. He was entitled to the protection of the law, no matter whether his character was good or bad. A personal avenger of private wrongs or of public wrongs is not recognized by our institutions.”46
The defense claimed that Evelyn Nesbit’s account of the rape, told to Harry Thaw in 1903, was the catalyst that caused Thaw to go insane. The jury, in arriving at its verdict, should therefore consider Thaw’s state of mind at the time of the murder. The penal code of New York stipulated that the defendant could not claim insanity if he knew the quality of the act and knew that it was wrong. “The settled law of the State is that the test of responsibility,” Fitzgerald told the jurors, “is the capacity of the defendant to distinguish between right and wrong at the time of and with respect to the act.” The testimony of the defendant’s wife was central to the defense, and it was proper, therefore, for the jury to consider her credibility as a witness. “You should weigh her story in its entirety—were its various parts consistent or inconsistent with each other?”47
The twelve jurors left the courtroom in single file, walking along a narrow corridor to the jury room. A large rectangular oaken table occupied the center of the room, stretching from one end to the other. Twelve stiff-backed wooden chairs stood haphazardly around the table, and a brown leather settee rested against the far wall, below the windows facing Franklin Street.
The foreman, Deming Smith, took his place at the head of the table, waiting for the other men to take their seats. Smith spoke first, suggesting that they cast votes to learn if they could reach a consensus. He counted the votes as his colleagues looked on: eight men had voted to convict Thaw of murder in the first degree, but four had acquitted him on the grounds of insanity.
“This man is not right in his head,” Henry Harney began, explaining why he had voted to acquit Thaw. “I have watched him very closely from the beginning of the trial, and I sat near enough to him to have an excellent opportunity to observe him, and I know he cannot be right.”
Wilbur Steele nodded his agreement. He also had observed the defendant during the trial. Who could forget how Thaw had mumbled to himself, one moment frantically scribbling some notes on a pad, the next moment muttering orders to the attorneys seated next to him? He had seemed incapable of sitting still, constantly fidgeting, always appearing agitated, sometimes angry, even seeming on occasion about to rise in his chair to denounce the district attorney.
Another juror, Malcolm Fraser, reminded his colleagues that several witnesses had described Thaw’s expression immediately after the murder. Thaw had had an unnatural look in his eyes, a fixed glare during those moments when he walked through the audience holding his gun above his head. There was a reasonable doubt, Fraser added, that Thaw had known that his act in killing Stanford White was wrong, and on those grounds he would vote to acquit him.
But George Pfaff, one of the eight jurors who had voted to convict on a charge of first-degree murder, could find nothing in such arguments that might persuade him to change his mind. One witness, Clinch Smith, testified that he had talked with Thaw immediately before the shooting, and that conversation, on the stock market, and on Thaw’s upcoming trip to Europe, contained nothing to suggest that Thaw was insane. Thaw had deliberated before shooting White, and his actions immediately afterward had given every indication that he knew the import of his act. He had held the gun above his head to show the audience that he intended no further harm, and he had calmly told the duty fireman, Paul Brudi, the reason for the murder.
Smith held a second ballot at six o’clock that evening before adjourning for dinner, but the result was the same. The jurors voted a third time at ten o’clock, but still there was no agreement. The crowds no longer lingered around the courthouse, waiting for a decision, and Thaw’s relatives—his wife, his mother, his brothers and sisters—had all abandoned the vigil, returning to their rooms at the Hotel Lorraine.48
A reporter for the New York Herald, catching sight of Jerome as he left the Criminal Courts Building, buttonholed the district attorney to ask if he would seek a second trial if the jury could not reach a verdict.
“In the event of a disagreement,” the reporter asked, “will Thaw be speedily placed on trial again?”
“Not speedily,” Jerome replied. There were many other homicide cases on the docket, and there would probably not be another trial until the end of the year. “There is no reason why Thaw’s should take precedence over the cases of other Tombs prisoners who are yet untried.”49
The next morning, shortly before eleven o’clock, a rumor spread through the Criminal Courts Building that the jury had asked to return to the courtro
om, and crowds started to gather in the hallways, expecting to hear the verdict. But the jurors only wished to hear again the statements of those witnesses who had seen the shooting. There were two more ballots that afternoon; eight men still voted for a murder conviction and four held fast for an acquittal.
All twelve agreed that Evelyn Nesbit had been an admirable witness, selflessly testifying on behalf of her husband, and her account had been truthful—White had raped her, they believed—but her testimony bore no weight in their deliberations. White’s behavior toward Evelyn Nesbit, they agreed, could not justify Thaw’s act in killing him. Their verdict would rest only on their judgment of Thaw’s mental condition during the murder: if Thaw had been insane, incapable of knowing that his act was wrong, he could not be held responsible for the murder.50
One juror, John Dennee, changed his vote on the second day, now saying that Thaw was insane, but it brought the jury no closer to agreement. Harry Brearley, hoping to break the deadlock, suggested that they compromise by voting to convict Thaw on a lesser charge, manslaughter in the first degree. A conviction for manslaughter would spare Thaw from the electric chair while ensuring that he would receive some punishment for his crime.
But George Pfaff rejected the proposal, saying that he would not change his mind. “You can all vote as you please,” Pfaff declared defiantly. “I am going to keep on voting for a conviction in the first degree.”
Wilbur Steele spoke next, saying that he too would not change his vote. Harry Thaw was insane, he added, and he could not contemplate any punishment for a man who was so evidently unbalanced.
The next day, Friday, April 12, Smith spoke to the judge, and that afternoon, at four o’clock, the jurors returned to the courtroom, taking their seats on the benches near the front. The spectators searched their faces in vain, looking for some sign that might betray a verdict; and the jurors, in turn, looked out over the courtroom. Every seat was occupied, and the crowd seemed curiously hushed. Thaw sat in the front row, whispering in the ear of one of his attorneys; Evelyn sat directly behind, her left hand resting on her husband’s shoulder. Mary Thaw, her veil covering her face, sat next to her daughter-in-law, and Harry’s siblings, Margaret, Alice, Josiah, and Edward, looked hopefully at the twelve jurors.