by Simon Baatz
It would work to Thaw’s advantage, therefore, to demonstrate to the jury that he had knowingly planned his escape and that he was guilty of the charge against him; and so on March 11, 1915, Stanchfield called Harry Thaw as a witness to testify against himself.
Thaw, in response to questions from his attorney, stated that he had been in the asylum from February 1908 until his escape in August 1913. He had repeatedly attempted to obtain his release from Matteawan by petitioning the courts on a writ of habeas corpus, but in each instance the judge had denied his application. He had believed himself to be sane, but successive superintendents refused to issue a certificate of recovery to allow him to leave the asylum. The situation had become intolerable, and in 1912 his attorneys advised him that, since he had never been convicted of a crime, he could not be held against his will.
“Was there a time,” Stanchfield asked, “when you had conversation with people about your right to leave?”
“Yes.”
“Did you see lawyers?”
“I did,” Thaw replied. “I was advised that there was no law against my leaving Matteawan so long as I did not do it by violence…. I was exceedingly particular not to commit a crime.” His attorneys had warned him beforehand that he should neither attempt to bribe the attendants nor assault anyone when leaving the asylum.
He had arranged through an intermediary, Horace Hoffman, to hire Richard Butler to drive him north into Canada, giving Hoffman $7,000 to pay Butler and to secure a car and a driver for the journey.
“I intended to go to Pittsburgh,” said Thaw. “First I expected to go through Connecticut to Canada, through Canada to Detroit, and from there to Pittsburgh, which is my home.”20
Other witnesses also testified during the trial, but neither the witnesses for the defense nor the witnesses for the state provided evidence to contradict the indictment. It was most peculiar: both sides desired the same result.
The defense, on the one hand, would welcome a guilty verdict as proof that Thaw was sane when he left the asylum. The judge would, no doubt, give him a custodial sentence, but Thaw, after spending a few months in the penitentiary, would then be a free man, and New York would have no further claim on him.
The prosecution, on the other hand, would welcome a guilty verdict as the guarantee that the state would eventually be able to apprehend Thaw. In 1908, at the conclusion of the second trial, the judge, Victor Dowling, had committed Thaw to the asylum, and that committal was still in effect. The Matteawan superintendent, Raymond Kleb, would send his attendants to capture Thaw just as soon as he left the penitentiary, at the moment when he stepped away from the prison gates, and they would immediately return him to the asylum.
The judge, Alfred Page, instructed the jury not to consider the matter of Thaw’s sanity. That question was irrelevant, Page said, to the charge of conspiracy. Had Harry Thaw conspired with others to leave the asylum? If the jurors believed that Thaw had known that he was committing an illegal act in walking away from the asylum, then he would have acted with criminal intent and the jurors should return a guilty verdict.21
It seemed almost a foregone conclusion that the twelve jurors would vote to convict; but the first ballot—eight to four for acquittal—signaled the possibility that there might be a hung jury. The next day, Saturday, March 13, the foreman, Frank Bailey, told the judge that the jurors had agreed on their verdict. Ten minutes later they filed into a crowded courtroom.
The clerk, William Penney, called the roll of the jurors, asking each man to identify himself. Penney then called on the foreman to announce the verdict.
“Not guilty,” Bailey said, “of conspiracy as charged.”
There was a gasp of surprise among the spectators. Frank Cook, the deputy attorney general, jumped to his feet, calling out to the judge, “Your Honor, there are attendants from Matteawan waiting here to take this man back to Matteawan, where he belongs.” Two men had stepped forward, away from the crowd of spectators, and Cook motioned with his hand as if commanding them to seize hold of Thaw. The jury had acquitted Thaw, Cook explained, and there was no longer any legal sanction against him. The State of New York would therefore immediately exercise its authority to return Thaw to the asylum.
But Abel Smith, a member of the defense team, also stepped forward, protesting to the judge that New York had no right to interfere with his client in this way. “There are motion papers before Your Honor,” Smith shouted above the hubbub, “asking that Thaw be returned to the State of New Hampshire from which place he was extradited.” New York had extradited Thaw on an indictment for conspiracy. The jury had absolved him of the charge, and it would be unethical—an act of bad faith—for New York now to attempt to detain him on some other pretext.22
Two days later, on March 16, the judge denied the motion that Thaw be allowed to return to New Hampshire, saying that New York did indeed have a right to detain Thaw and to send him back to the asylum. Thaw was now within the borders of New York State and was subject to its jurisdiction. “The motion is therefore denied,” Page wrote in his decision, “and the Sheriff is directed to deliver the said Thaw to the proper authorities, to be conveyed to the Matteawan State Asylum for the Insane.”23
But already Thaw’s attorneys had applied for a writ of habeas corpus. The State of New York must now demonstrate the grounds on which it claimed possession of Harry Thaw.
It had always been customary in the New York courts for one judge alone to decide habeas corpus, but nothing in the Code of Civil Procedure foreclosed the possibility that a jury might make the decision, and Thaw’s lawyers now asked the judge, Peter Hendrick, to convene a jury to hear the application. Hendrick was quick to adopt the suggestion, saying, however, that the jury would act only in an advisory role. He would listen to the evidence, he would consider the jury’s verdict, and then he would make his decision. “The time has come,” Hendrick stated, “when the question of Thaw’s sanity should be determined by the court, with the aid of twelve men who are not lawyers or doctors, but who are called from the various walks of life to aid the court by their advice.”24
It was a fateful decision, one that opened up the real possibility that Harry Thaw would finally win his freedom. There had been several previous hearings on Thaw’s sanity, but always a single judge had made the final decision, and always that decision had denied Thaw his liberty. But now, for the first time, a jury would help to determine his fate, and that jury seemed more likely to decide in favor of Thaw. Nearly a decade had passed since the murder of Stanford White, but public sentiment in favor of the killer had never ebbed. Thaw had avenged the rape of his wife—nothing else mattered—and everyone agreed that he had acted with justification. The authorities had unfairly persecuted Thaw for nine long years, pursuing him relentlessly, always clamoring to incarcerate him, and he had suffered enough. It was time, most New Yorkers agreed, to end his torment.
John Stanchfield, in his opening address to the court, candidly admitted that his client had suffered temporary derangement when he had seen Stanford White in the audience at the opening of Mamzelle Champagne. But Thaw had long since regained his sanity and there was no longer any reason to confine him in an asylum. He had lived peacefully in New Hampshire for almost eighteen months, and nothing had occurred during that time to indicate that he was insane. He had not assaulted or attacked anyone; he had not even displayed any bad temper; and there were no signs that Thaw was likely to kill a second time.
Fourteen witnesses who had known Thaw either in Canada or in New Hampshire testified on June 24; thirteen more witnesses spoke the next day on Thaw’s behalf; and three psychiatrists completed the testimony, saying that they had never observed any signs of insanity.
Bert Richardson, a physician who had treated Thaw in New Hampshire after Thaw sprained an ankle, stated that his patient had appeared entirely normal; Oliver Pelren, the manager of the Eagle Hotel in Concord, claimed that Thaw had been the perfect guest, always retiring early and never giving any cause for
complaint; and Holman Drew, the sheriff who had accompanied Thaw in New Hampshire, asserted that he, Thaw, had been invariably courteous to everyone he had encountered. Emma Sergent recalled that she had met Thaw at a football game and that afternoon they had discussed the campaign for woman suffrage; she considered him a perfect gentleman, normal in every way. Noel Guillet, a doctor at the state reform school in Manchester, New Hampshire, had given Thaw a tour of the institution, explaining to his guest that the superintendent had banned the use of corporal punishment. Thaw had conversed rationally on the subject, Guillet remembered, saying that he also disapproved of the practice.25
There could have been no greater contrast to such testimony than the evidence provided by the first witness to appear for the state. Susan Merrill sat in the witness chair, nervously clutching a black leather purse, occasionally wiping her brow with her handkerchief, all the while glaring angrily at the deputy attorney general, Frank Cook. She no longer lived in New York, having moved to Boston the previous year, and after her appearance as a witness at a previous hearing in 1909, she had wanted nothing more to do with Harry Thaw.
But the lawyers for New York had discovered her hiding place in Boston and had tricked her into returning to the state. They had served her with a subpoena as soon as she crossed the state line, thereby compelling her appearance as a witness in the hearing. “I didn’t want to come,” Merrill protested, turning to address the judge. “I was brought here…. They brought a policeman, bundled me into an automobile and brought me here.”26
But nothing she could say, no words of protest, would allow her to escape the obligation to provide the answers that Cook demanded, and she proceeded to recount the same narrative that she had told six years before. Harry Thaw had first rented rooms from her in 1902 when she was working as a housekeeper on West Forty-sixth Street. One day she heard a commotion in an upstairs room, as if someone had overturned a bureau, followed immediately by a series of short, piercing screams.
“I ran to Thaw’s room and saw him with a whip raised to strike a girl who had most of her clothes off. Thaw ran out when I went in. The girl was about sixteen years old. Her back was covered with black and blue marks.”
Thaw had dropped the whip, leaving the room as she entered. She had comforted the girl, wiping away the blood, bathing her wounds, and giving her a new shirtwaist.
“I asked Thaw,” Merrill continued, “why he struck her. He said she was stupid and he was trying to make her learn.
“On another occasion I heard screams and found him beating another girl. His eyes were sticking out, his face was red and his veins were protruding. After he ran out I quieted the girl and gave her some money Thaw left for her.”
It had happened so many times after those first occasions in 1902. One or two girls, sometimes more, would call at the house, expecting to audition for a role on the stage. Thaw would escort them upstairs, and very shortly afterward she would hear loud screams. Thaw’s victims would be half-naked, their upper bodies covered in blood, with welts on their shoulders and torso. He always promised to change his ways, but the whippings continued nevertheless. She had protested, telling him that he could no longer rent rooms, but Thaw threatened her, saying that he would kill her if she told anyone. In 1905 she moved to a boardinghouse at 208 West Fifty-fourth Street, and Thaw again rented rooms from her, taking three bedrooms at the rear of the building, continuing to assault young girls even after his marriage to Evelyn Nesbit.
“In West Fifty-fourth street I heard the same screams and when I ran up to Thaw’s three rooms I found him with two girls. The back of one of the girls was all black and blue and her arms bleeding. Thaw’s face was red, as I have described. She told me she was twenty-two years old.”27
Susan Merrill, despite her anxiety on the witness stand, had been an excellent witness for the state. Her testimony had damned Thaw as a vicious degenerate who sought a perverse pleasure in attacking his victims; and Frank Cook, the deputy attorney general, could congratulate himself on securing such compelling testimony.
But Cook anticipated even greater success when he called Harry Thaw as his next witness. The defense attorneys had produced thirty witnesses to testify that Thaw appeared rational. But none of these witnesses, Cook believed, had ever conversed with Thaw on the topic that invariably enraged him—the supposed immorality of Stanford White—and Cook planned to question Thaw exclusively on the murder, hoping to provoke him to anger.
Thaw had testified before, in previous hearings to determine his sanity, and he had always behaved erratically, his mood shifting from one moment to the next. He could be angry and indignant, often for no ostensible reason, but his demeanor might suddenly change, again for no apparent cause, and he might be almost excessively pleasant, even cheerful. At other times Thaw could appear supercilious, haughty, even patronizing toward the lawyers; and then, without any warning, as if someone had flicked a switch, he would seem strangely timid, mumbling his answers as though ashamed to speak.
Thaw, dressed in a dark-blue suit, first appeared as a witness on Thursday, July 8, at ten o’clock in the morning. It promised to be another hot, humid day, and the bailiffs had opened the windows, allowing sunlight to fall in rectangular patterns across the courtroom floor. An electric fan, on a small table at the front of the court, made a whirring sound as it rotated from side to side, and the spectators, crowded onto plain wooden pews, watched as Thaw settled into his seat. He crossed his right leg over his left, then reversed himself, crossing his left leg over his right, trying to make himself comfortable. But the noise of the fan, almost directly at his back, was an irritant, and he turned to the judge, Peter Hendrick, to request that an attendant silence the hum.
Frank Cook, tall, thin, bespectacled, with a pale complexion and sandy-brown hair, waited patiently; then he began his attack with his first question.
“Why did you kill Stanford White?”
“Because of the injury he had done Miss Nesbit.” Thaw tilted his head backward, at a slight angle, looking up at the deputy attorney general standing above him.
“Then it was not because of these other women you had mentioned?” Cook’s harsh voice rang out across the courtroom, waking the spectators from their early morning drowsiness. “Had his conduct toward the other girls anything to do with the shooting?”
“No. I would not have bothered him on their account. I would not have paid any attention if Evelyn had escaped him.”
“What was the date of the killing of White?”
“June 25, 1906.”
“You shot Stanford White… three years after Evelyn Nesbit told you her story. Why did you wait so long?”
“No answer I can give to it.” Thaw had a puzzled look on his face, as if he had never considered the question before. He shrugged his shoulders. “No reason.”28
“Where had you been on the day you killed Stanford White?”
Thaw recalled that he had breakfasted around nine o’clock with his wife at their hotel. Later that morning he had gone alone to the offices of the steamship company to purchase two tickets for the SS Amerika, to travel to Germany. That afternoon he had played cards at the Whist Club, returning to the hotel to dress for dinner. He left the hotel with his wife shortly before six o’clock, and they took a cab to go downtown to Madison Square.
“Did you have a revolver with you all that day?”
There was a sudden silence. Thaw looked down at his hands, appearing to study his fingers, before looking out across the courtroom to stare at the back wall. Cook watched him impassively, waiting for an answer, and Thaw awoke abruptly from his reverie.
“My answer to the question is yes,” Thaw finally replied.
“Did you believe, or do you believe now, that Stanford White had hired the ‘Monk’ Eastman gang to beat you up?”
No one had ever explicitly told him, Thaw admitted, that White intended him harm; but everyone knew the enmity that existed between them. There were rumors, gossip that someone might attack him, and
he had purchased the gun as a precaution. “I knew that Miss Nesbit had told Stanford White that it was my desire to put him in State’s prison.”29
“What time did you dine at Martin’s the night of June 25?”
Thaw remembered that he had arrived at Café Martin with his wife shortly after six o’clock. They had dined with two friends, Truxtun Beale and Thomas McCaleb, before leaving the restaurant to walk across the park to Madison Square Garden.
But the performance had been lackluster and they had decided to leave early. He started to follow his wife to the elevator but suddenly noticed Stanford White sitting alone at a small table close to the stage.
“There was some sort of aisle leading to the stage. I went down twenty or twenty-five feet from the place and then turned around and looked at him. I saw Stanford White sitting there. He was sitting with his head resting on his hand…” Thaw’s voice trailed away. He looked away from Cook, his eyes wandering around the courtroom as if searching for something. He resumed his narrative, but the words now came more slowly. “I walked straight up to him and shot him. He looked up—and glared at me and—I—shot—him.
“I turned around and saw that the people were jostling one another and pushing back from me. Holding the revolver so that all could see it, I turned slowly about, hoping to lessen the excitement…. Two men approached me and I asked one of them to take the pistol. I think one of these gentlemen arrested me.”
“What did you say to your wife?”
“I said, ‘Perhaps I have saved your life,’” Thaw stated.
“What did you mean by that?”
“I meant that with White dead she need not have anything to fear and would be free to live her own life.”30
Frank Cook had anticipated that Thaw would lose his composure as he talked about the murder. But Thaw, nervous at the outset, occasionally halting and uncertain, seemed to gain in confidence as he continued to speak. There was little sign that he might become irrational or unbalanced on the stand; and Cook suddenly switched to a new line of questioning.