by Simon Baatz
“Gentlemen of the jury,” William Penney called out in a loud voice, “please answer to your names.”
Each man answered in turn, rising slightly from his seat in acknowledgment of his name.
“The defendant will rise,” Penney commanded.
Thaw, his left hand resting on the table in front of him, rose to his feet, the legs of his chair scraping backward against the floor. He looked anxiously at Penney, waiting for the clerk’s command, his face set in a grimace, a frown upon his forehead.
“Jurors, look upon the defendant; defendant, look upon the jurors.” Penney paused, waiting for the jury to turn toward Thaw.
“Gentlemen of the jury, have you agreed upon a verdict?”
“We have not,” Deming Smith replied.
The crowd let out a sigh of disappointment. Thaw, still standing, seemed to stagger slightly before slumping backward into his chair, and Evelyn reached out to comfort him, her hand resting on his arm as she whispered some words of encouragement. Delphin Delmas was already shuffling some papers on the table before him, waiting only for the judge to dismiss the jury before making his exit.
“Gentlemen,” Fitzgerald began, his gaze fixed on the jurors, “I have kept you together for a long time and have deemed it my duty to do so as long as there seemed any possibility of your being able to reach a verdict. I have now arrived at the conclusion that this is not possible…. I am going to discharge you from further consideration of this case.”51
There would be a second trial.
Portrait photographs at the turn of the century usually took the form of cabinet cards. Such photographs, typically produced either on gelatin bromide paper or on matte collodion, measured 4¼ by 6½ inches and were often sold commercially to the public or used as illustrations in popular magazines. Evelyn Nesbit posed for a series of cabinet cards, including these five photographs, in 1902 at the Sarony Studio on Fifth Avenue. (Theatrical Cabinet Photographs of Women [TCS 2], Harvard Theatre Collection, Houghton Library, Harvard University)
6
SECOND TRIAL
January 6, 1908–February 1, 1908
“HAVE YOU BEEN ILL LATELY, MRS. THAW?”
The lawyer leaned forward, appearing almost to bow before the witness, and Mary Thaw nodded in return, as if to show her appreciation for his words.
“I have,” she replied, speaking in a quiet voice, “since early in November…. But I am now well—almost; sufficiently recovered,” she added.1
She had awaited this moment anxiously, aware that her testimony would determine her son’s fate. The attorney, Martin Littleton, had convinced the family that there were no longer any grounds for complacency, no reason to believe that a jury would necessarily acquit Harry Thaw. The jurors in the first trial, Littleton reminded Mary Thaw, had all disregarded Evelyn Nesbit’s testimony about the rape, each one telling the newspapermen that he had voted only according to his judgment of Thaw’s mental state at the time of the murder.
It would be foolish, Littleton argued, to claim a second time that the rape of Evelyn Nesbit provided sufficient justification for the murder of Stanford White. Their best strategy, their only strategy, according to Littleton, was to persuade the jury that Harry had been insane when he killed White, that he had been mentally incompetent since childhood, and that he was still impaired now. The judge would commit him to an asylum, but eventually, sooner or later, the lawyers would seek his release, arguing that he had regained his sanity.
“When was your son, Harry K. Thaw, born?” Littleton asked.
“February 12, 1871.”
“What was the condition of health of Harry shortly after his birth?”
“For three months he was normal—that is, in average good health. Then he had an attack of congestion of lungs, which involved the brain and caused one spasm.”
“And then after that what was his condition?”
“A condition of the most remarkable sleeplessness that I have ever known in an infant.”
“How long would he sleep during twenty-four hours?”
“I should not think it was one-third what a child should sleep…. We were worn out sitting up with him.”2
Harry’s childhood, from infancy to adolescence, had been punctuated by frequent episodes of excitability, outbursts of anger and ill temper, typically occurring without any ostensible cause. He had been a nervous, irritable child with few companions, and his erratic behavior had lasted until he was fourteen years old. The doctors had variously diagnosed Harry’s condition, attributing it to one cause or another, but their advice had not produced any noticeable improvement.
Mary Copley Thaw, shown here with her daughter Margaret, married William Thaw in 1869. Mary Thaw was a devout Presbyterian, contributing thousands of dollars to Presbyterian institutions in Pittsburgh and western Pennsylvania. (Library of Congress, LC-DIG-ggbain-18581)
Mary Thaw was a capable witness, speaking each answer as if she had rehearsed it beforehand, occasionally giving an anecdote to illustrate her son’s tortuous passage to adulthood.
But the long train ride from Pittsburgh the previous day had left her tired, and her responses came haltingly. The Pennsylvania Railroad express had traveled across the Appalachian Mountains, stopping first at Philadelphia before continuing to New York, a wearisome journey that had lasted more than eight hours.
She also seemed occasionally reluctant, often hesitating, as if she resented the necessity of revealing the shameful secrets that she had never previously told. A tangible sympathy hung in the air for someone so frail and vulnerable, for a woman who seemed crushed by the troubles that had given her so much anxiety.
One year before, during the first trial, she had been a commanding presence, never doubting that the jury would acquit her son, but her self-confidence had now vanished and her expression seemed to foreshadow defeat. Mary Thaw had always triumphed over her adversaries, securing her victories through her determination, but the calamity that had overwhelmed her family, the possibility that her son might die in the electric chair, appeared to have vanquished her.
Nothing could have presented a greater contrast to the mournful appearance of the witness than the ebullient presence of Martin Littleton. The attorney was only thirty-eight years old, yet he had already established his reputation as a lawyer and politician. He had grown up in Texas, working first as a rail-splitter and brakeman on the railroads, then setting type in a printer’s office, finally securing a clerical position in the office of the district attorney in Weatherford, a town sixty miles west of Dallas. He studied for the bar, moving to Dallas in 1893 to set up a legal practice, but only three years later he left Texas to move to New York with his wife, Maud.
Littleton joined the Democratic Party and almost immediately obtained a position as an assistant district attorney in Kings County. He was a man who made friends easily, and he secured the support of the Democratic machine, winning the election in 1903 for Brooklyn borough president. Littleton was ambitious for higher office and already, in 1908, he had begun to canvass his allies for the nomination for the upcoming election to the House of Representatives from the First Congressional District.3
Harry Thaw hired Martin Littleton as his defense attorney in his second trial. Littleton served one term, from 1911 to 1913, in the U.S. House of Representatives but then failed to win the Democratic Party nomination for election to the U.S. Senate. (Library of Congress, LC-DIG-ds-10585)
He was only five feet four inches tall, but his barrel chest and broad shoulders compensated for his lack of height. He had a cheerful disposition and he spoke with a distinctive Texas twang. He had chestnut-brown hair, already gray at the temples, a fleshy, slightly pink complexion, and inquisitive brown eyes. Littleton invariably radiated self-confidence even when his cause appeared hopeless, and now, as Mary Thaw continued to respond to his questions, he attempted to steer her along the path that they had mapped out beforehand.4
She told the court, in response to Littleton’s questions, that
she had first sent Harry away from home in 1881, to study at the Beck School in Lititz, a Moravian community in the interior of the state, seventy miles west of Philadelphia. She had hoped that the experience might improve her son’s condition, but it had been an ill-advised move. Harry, then ten years old, was a sullen pupil who intermittently burst into tears for no apparent reason, even occasionally uttering loud howls during class. The principal, Abraham Beck, had written to her, saying that her son was a disruptive presence and asking her to withdraw him from the school. Mary Thaw had written a tearful response, confessing her fear that he was unbalanced and asking for the principal’s forbearance, but Harry eventually left the school, returning to Pittsburgh to live again with his mother.5
Five years later Mary Thaw enrolled Harry at the University of Wooster, a Presbyterian college in Ohio. Its rural location, in the center of the state, and its small size—only a few dozen students matriculated each year—ameliorated her son’s condition: “He did improve… he was looking very much stronger.” But the faculty at Wooster could not tolerate Thaw’s disruptive behavior and expelled him three months after his arrival. Harry then attended the Western University of Pennsylvania, but his studies there were equally lackadaisical.6
Harry, according to his mother’s testimony, had suffered mental illness for many years, from infancy through adolescence to adulthood. His afflictions were not dissimilar from those that had plagued other members of the extended Thaw family. One of her brothers, Josiah, an uncle of Harry, had experienced an attack of brain fever as a student at Amherst College.
“The brain fever left him very nervous and unstrung…. He had three days of violent, acute mania. And then he was taken away to an asylum.”
“How long,” Littleton asked, “was he away in the asylum?”
“Seven months.”
“Did he recover from that afterward?”
“Yes. They discharged him cured.”
A second brother, Henry, had been weak-minded as a child, displaying just those symptoms that she had witnessed in her son. Henry would frequently burst into tears, crying for no apparent reason, then relapsing into silence for several hours.
Mental illness had been present also on the other side of the family. Her late husband, William, had a sister who suffered for many years from epilepsy. The attacks would occur without warning and last for prolonged periods.
“She was an invalid,” the witness explained, “as long as I knew her, and for many years before, subject to epilepsy.”7
Several witnesses followed Mary Thaw onto the stand, describing Harry Thaw’s irrational behavior. Catherine O’Neil remembered that she had first worked for the Thaw family in 1874, when Harry was three years old. She had remained at Lyndhurst for six years, caring for Harry, dressing him, preparing his meals, playing with him on the estate, and generally arranging his daily schedule. It was a demanding task, made more difficult because Harry threw frequent temper tantrums, screaming and yelling, occasionally speaking gibberish, finally collapsing in exhaustion.
“He used to have awful spells,” O’Neil told the court. “He used to throw himself on the floor and holler and yell and stamp until he was exhausted…. He learned very slow and poorly.”
“How old was he then?” Littleton prompted.
“Well, these conditions continued from the age of five until the age of seven.”
“Was he able to speak or use words intelligently during his early childhood?”
“No, not until he was seven or eight years old.”8
Abraham Beck, the principal of the Beck School in Lititz, remembered that Harry Thaw appeared excessively nervous when he first came to the school in September 1881. The boy resisted the attempts of the staff to introduce him to the other pupils. He seemed always alone, invariably standing apart from the other children at playtime, refusing any invitation to join their games. Beck, now sixty years old, white-haired, slightly stooped, with a kindly demeanor, painted a heartbreaking picture of a lonely child, morose and withdrawn, a boy who made no friends while attending the school.
“During the time Thaw was at your school,” Littleton asked, “did you observe him daily?”
“Yes,” Beck replied, remarking parenthetically that the passage of thirty years had not erased his memories.
“Was your attention attracted to him during school hours?”
“Yes,” Beck answered. “The quiet of the study room would be broken by a sudden, wild, passionate cry from Harry Thaw. It was the cry of an animal…. He would repeat these howlings and keep them up for twenty minutes at times, and would then lapse into a fit of abstraction. They would cease as suddenly as they started, like the turning off of a fountain jet.”9
He had written to Pittsburgh, asking Mary Thaw to remove her son from the school. She had replied a few days later, confiding her dread that Harry was unbalanced and pleading that he stay at least until the end of the school term. Beck had reluctantly agreed; but it had been an unpleasant experience, the most trying ordeal he had faced in his long career as a schoolteacher.
Charles Koehler, a former instructor at the University of Wooster, also recalled Harry Thaw as a moody pupil. Koehler had taught mathematics at Wooster in 1886, when Thaw first arrived at the college.
“Do you know the defendant, Harry K. Thaw?” Littleton asked.
“Yes,” Koehler replied, glancing toward Thaw, seated among his attorneys in the front row of the courtroom. “He was under my immediate instruction for about a period of three months.”
“How old was he?”
“About sixteen or seventeen.”
“What was his appearance?”
“He had a nervous gait and walked in a zigzag manner…. His eyes were fixed and staring much of the time; frequently the muscles of his mouth would twitch, and when he walked his gait was unsteady. On some days he was moody and on others more cheerful. His moods alternated. One day he would be more playful and the next deeply depressed.”
“What progress did he make in his studies?”
“Very little progress; scarcely any that was perceptible…. His capacity for concentration was so weak that he was utterly unable to follow an ordinary demonstration in mathematics.”10
Other witnesses followed, all testifying to Harry Thaw’s irrational behavior. Amy Gozzett, a nurse, told the court that she had been working in 1897 on the Côte d’Azur in France for her employer, Price Mitchell, an American physician, when she first encountered Harry Thaw. Many expatriates spent the season at Monte Carlo, and she frequently cared for wealthy British and American patients who had taken ill. Thaw had been unwell for three weeks, running a high fever, and she spent that summer caring for him, gradually nursing him back to health. He was an unusual patient who would often refuse his doctor’s orders, occasionally rising from his bed, dressing himself, and leaving the hotel for two or three hours before returning to his room. Gozzett recalled that, even after Thaw recovered, he seemed irrational, mumbling to himself, moving jerkily and awkwardly, sitting motionless for long periods, staring into space.11
Sydney Russell Wells, a physician at St. George’s Hospital in London, remembered his alarm when he first saw Harry Thaw as a patient in 1899. Thaw, then staying at Claridge’s in Mayfair, had been walking about the hotel in his pajamas, brandishing a large stick and shouting obscenities at the staff. Wells had committed Thaw to the Devonshire Nursing Home, a private clinic in the capital, holding him until he recovered his sanity, eventually allowing him to return to the hotel.12
Physicians elsewhere, in other European cities, could recall similar episodes. Frederick Burton-Browne, a doctor at the British embassy in Rome, saw Thaw in August 1902. Burton-Browne remembered that Thaw had been feverish, with a slow pulse and dilated pupils, and recalled that his patient’s eccentric behavior seemed symptomatic of a maniacal outburst. Finally, Maurice Gauja, the house doctor at the Hôtel Palais d’Orsay in Paris, told the court that he had attended Thaw in 1904 when he, Thaw, had taken poison in
an apparent suicide attempt. Thaw had been desperately ill, drifting in and out of consciousness, occasionally vomiting blood, and Gauja had immediately applied a stomach pump. Gauja returned the next day to check on his patient and found Thaw rested and alert, apparently oblivious to his brush with death.13
Evelyn Nesbit testified also, repeating the account that she had given the previous year at the first trial. Travers Jerome had already appealed to the judge, Victor Dowling, to hold the second trial in camera, with no reporters present, saying that the salacious nature of Evelyn’s testimony was not suitable for publication in the newspapers. Dowling was sympathetic; he agreed with the district attorney that the publication of the testimony in 1907 had been deeply shocking, an affront to public morality. But what, he asked, was the point in trying to prevent publication when everything had already appeared in the newspapers? In any case, Harry Thaw had a constitutional right to a public trial, and he, Dowling, could not abrogate that right on account of a concern for public decency.
“The federal constitution,” Dowling ruled, “provides a man shall have a speedy and public trial. The civil and criminal codes of this State provide likewise…. It is the Court’s opinion that whatever harm might be caused the morals of the community by the printing of certain revolting details and testimony is more than compensated for by the safeguards thrown around the constitutional rights of the defendant. I therefore decline the appeal of the District Attorney.”14
This photograph shows Evelyn Nesbit on the witness stand in the Criminal Courts Building. Harry Thaw’s attorneys persuaded Evelyn to testify twice on her husband’s behalf, first in 1907 and again in 1908. (Library of Congress, LC-DIG-ggbain-07120)