This testimony was deemed at the time too scandalous for public consumption, especially in the presence of women. The testimony was given in whispers in the courtroom, and this material, as previously stated, was deemed “unprintable” by McKernan (1924, p. 82) and does not appear in her summaries of the medical reports. Judge Caverly told the newspaper reporters that the testimony was not appropriate for publication (see The Florida Times-Union, “Alienist Strips From Boys any Vestige of Soul,” August 5, 1924, p. 1), and I have yet to find any evidence of the actual testimony in the newspaper coverage of the case. As the retelling of the Leopold and Loeb case shifted over the years to highlight different aspects, the sexual relationship would receive much greater attention. Today, this likely would have been the lead story about the case.
Yet, rumors circulated of “perversion,” which was the term used in 1924 for homosexual acts. The only printed article that I am aware of that directly mentions the sexual relationship between Leopold and Loeb at the time of the trial was written by a practicing psychiatrist, Leonard Blumgart, in the September 10, 1924 edition of The Nation (“The New Psychology and the Franks Case”). Dr. Blumgart believed that this evidence was the most important for the trial to come to a true understanding of why the crime was committed. He would describe Leopold’s intellectual life as a constant and unsuccessful endeavor to guard himself against his “perverse” homosexual urges. In addition, Dr. Blumgart believed that prior to psychoanalysis no scientific knowledge existed to shed light on people like Leopold and Loeb. Freud’s beliefs about homosexuality, as well as the beliefs of most psychoanalysts in the 1920s, were very different than most contemporary viewpoints.
On August 6, the last of the psychoanalysts, Dr. Bernard Glueck took the stand. Dr. Glueck would tell the court that Loeb considered his own younger brother as a possible victim, and showed a complete lack of normal feelings. Dr. Glueck would say of Loeb, “My impression is very definite that Loeb is suffering from a disordered personality, that the nature of this disorder is primarily in a profound pathological discord between his intellectual and emotional life. We might designate it as a split personality” (cited in Sellers, 1926, p. 23). Perhaps more importantly, Dr. Glueck told the court that Loeb had told him that he had struck the blow with the chisel to the head of Robert Franks that killed the boy (see The New York Times, “Expert Says Loeb Admitted he was the Actual Slayer,” August 7, 1924, p. 1; The Washington Post, “Loeb Dealt Fatal Blow, Say Doctor; Leopold Paranoid,” August 7, 1924, p. 1). Of Leopold, Dr. Glueck would say, “This boy has come to develop a definitely abnormal conception of himself, of his ego. I am perfectly ready to place that conception of his ego within the category of what we know as paranoid” (cited in Sellers, 1926, pp. 23-4). The defense alienist also commented upon the king-slave phantasy of Leopold, saying that Leopold had told him that “he was jealous of the food and drink that Loeb took, because he could not come as close to him as did the food and drink” (cited in Sellers, 1926, p. 24).
On August 7, friends, classmates, and a former girlfriend of Loeb took the stand to testify about the defendants’ abnormal views and to confirm what Leopold and Loeb had told the alienists (see The New York Times, “State Accuses Girl of Lying for Loeb; Four Chums Testify,” August 8, 1924, p. 1). Also, the prosecution had attempted to say that the motive for the crime was simply money, but the defense witnesses testified that both defendants, from very wealthy families, had plenty of access to money. On August 8, Dr. Hulbert was the last alienist to testify for the defense. He was not a Freudian, although that would have not been clear to the average reader by the newspaper reporting as all of the experts were lumped together under the “alienist” term. His testimony confirmed much of what had been said earlier about the king-slave compulsion of Leopold, and that the motivation for Richard Loeb was to commit the perfect crime (see The New York Times, “Strange Impulses of Franks Slayers Traced to Cradle,” August 9, 1924, p. 1). Dr. Hulbert’s testimony, in contrast to the other defense alienists, focused more on the physical abnormalities and associated problems of the defendants’ endocrine systems. For example, of Leopold he would say, “The pineal gland has involuted early, because of the X-ray showing that it has already calcified at the age of 19 … the thyroid gland has been definitely diseased … his large teeth and their poor condition… . He has a disorder of the adrenal glands, medullary insufficiency. I have come to the conclusion that his sex glands are over functioning…” (cited in Sellers, 1926, pp. 31-2).
The prosecution was doing its best to refute the expert testimony (see The Seattle Times, “State Attacks Expert’s Theory,” August 11, 1924, p. 1). The prosecution was able to obtain an admission from Dr. Hulbert that Leopold and Loeb may have been rehearsed by both their doctors and lawyers to help build a defense for their case, as well as an acknowledgement that the influence of the endocrine glands was not a scientifically settled question. Readers across the country would also learn from Dr. Hulbert something contained in the Bowman and Hulbert report (1924a). Specifically, that Leopold had favored selecting a girl because of a phantasy which involved French girls being attacked by German soldiers (see The Pensacola Journal, “Leopold Favored Girl Victim for Their Death Plan,” August 12, 1924, p. 1).
Clarence Darrow and the defense rested on August 12, and the alienist testimony, while not impressing everyone (particularly the editorial writers of major newspapers who were more often than not critical of the testimony), had served its purpose. As Simon Baatz (2008, p. 312) nicely summarizes, “The defense had placed the murder within a psychoanalytic framework, using psychoanalytic concepts and theories… .” Furthermore, “The new psychology transformed them from arrogant Nietzschean criminals (the early representation of Leopold) into vulnerable boys (Loeb and his teddy bear) and linked them to the ordinary boys of America” (Fass, 1993, p. 936). The alienist testimony had not only introduced America to the New Psychology (often in riveting front page stories in newspapers across the country), but had done so in a context that was of great interest to virtually everyone. Now, the New Psychology of Freud was of interest to the general public. However, it is important to emphasize that Freud himself and the term psychoanalysis were not typically mentioned in the front page newspaper coverage.
On August 12, the prosecution alienists, none of which were Freudian psychoanalysts, began to take the stand starting with Dr. Hugh Patrick, who would testify that he found no evidence of mental disease in the defendants (see Chicago Daily Tribune, “‘Slayers Not Mentally Ill’,” August 13, 1924, p. 1; The Seattle Times, “Slayers of Boy Declared Sane by Two Experts,” August 13, 1924, p. 1). When asked why, he responded with, “That unless we assume that every man who commits a deliberate, cold-blooded, planned murder, must, by that fact, be mentally diseased. There was no evidence of any mental disease, in any of this communication or in any of the statements the boys made regarding it, or their earlier experiences; there was nothing in the examination; there were no mental obliquities or peculiarities shown, except their lack of appreciation of the enormity of the deed which they had committed” (cited in McKernan, 1924, pp. 171-172). When Clarence Darrow had his chance to cross-examine the witness, he asked if the only reason that Dr. Patrick had met with the defendants was to gather evidence that would ensure the defendants would hang for their crime (see The Pensacola Journal, “Heated Clash in Trial of Two Slayers,” August 15, 1924, p. 1).
Dr. Archibald Church was the next prosecution alienist, who also found no evidence of mental disease (see The Pensacola Journal, “State Alienists Say Leopold and Loeb are Normal,” August 14, 1924, p. 1). The prosecution attorney (John Sbarbaro) had an interesting line of questioning for Dr. Church, and for the subsequent prosecution alienists. He asked the alienists to assume a hypothetical person that had all of the characteristics that the defense alienists had testified too, and give their opinion about whether mental disease existed. For example, in describing the hypothetical person, with the characteristics of Loeb, assume that
“in his inner mental life he is stated to have had phantasies in which he would lie and preface his lie by saying, ‘And now, Teddy,’ as if talking to a teddy-bear … that he phantasied himself as a cowboy or frontiersman, as a leader of a gang of criminals, committing a perfect crime… . Assume, further, Doctor, that he has been in the habit of reading detective stories, and of acting out some of these stories” (cited in McKernan, 1924, p. 183). In response, the prosecution alienists would answer, “No mental disease.”
One interesting exchange occurred between Clarence Darrow and Dr. Church upon cross-examination, which highlights the difference between the prosecution and defense alienists (cited in Sellers, 1926, p. 36).
Mr. Darrow: You know something about dreams?
Dr. Church: Yes. I regularly inquire into the character of dreams in nervous people. According to Freud they are a very good index of character. I do not follow Freud to that degree.
Mr. Darrow: Do you follow him to any extent?
Dr. Church: No. The character of the dreams, whether pleasurable or unpleasurable, has for me a significance as a reflex of the physical condition; but the content of the dream to my mind is of very little significance.
The testimony of Dr. Patrick and Dr. Church directly contradicted the theories put forth by the defense alienists, as their examinations indicated no mental or physical abnormities that would explain the murder of Robert Franks.
Dr. Harold Singer, who was asked about paranoid personalities and split-personalities, also concluded that there was no evidence of mental disease in the defendants (see The Atlanta Constitution, “Vital Admissions Made as Darrow Grills Alienist,” August 17, 1924, p. 1; The Pittsburg Post-Gazette, “Boy Killers Defense Rips at Testimony of Alienist,” August 17, 1924, p. 1). Dr. Rollin Woodyatt was the next witness for the prosecution, and he testified about the certainty of the endocrine gland testimony given by the defense witness. He noted, “There are many definite facts known, but they are scattered, disordered, unrelated. This field of endocrinology beyond the coastline of definite information is a field which has been exploited by romantic writers, charlatans, and others who are not to be classified as scientists” (cited in Sellers, 1926, p. 39). Finally, Dr. William Krohn, who had previously worked at Clark University and knew G. Stanley Hall, also testified that there existed no evidence of mental disease by focusing on the defendants’ memories (i.e., details of the fake alibis), the planning of the crime, the logical judgment, and so forth. Dr. Krohn was a particularly effective witness for the prosecution (see The Hartford Courant, “Declares Slayers Mentally Sound,” August 19, 1924, p. 2). The prosecution would rest its case on August 19, and thus ended the battle of the alienists (see The Florida Times-Union, “With Evidence all in, Fight for Lives of Slayers Opens,” August 20, 1924, p. 1.)
An article written shortly after the trial in The Survey (October 15, 1924, pp. 74-5) by Dr. Thomas Salmon (“The Psychiatrist’s Day in Court”) provides insight into the media coverage that occurred while the defense and prosecution alienists testified. Salmon noted that the newspaper coverage provided psychiatrists with clinical material that was not different from what was presented at a conference or as part of a clinical case history. Dr. Salmon also noted that the trial provided a popular education of the New Psychology, and provided an impetus for discussions about the necessity of implementing anticipatory actions to counteract abnormal development and actions. Also, the Chicago Daily Tribune (“British Amazed by Trial of Chicago Slayers; Insanity Defense Seldom Wins in England,” August 8, 1924, p. 2) would note that the legal community in Britain was following the trial with keen interest because of the alienist testimony.
Closing Arguments
Several other important events deserve mentioning to close the trial. First, while closing statements were given by several defense and prosecution attorneys, the most important were those given by the lead defense attorney (Clarence Darrow) and the lead prosecuting attorney (Robert Crowe). Darrow’s closing statement is widely regarded as a classic in the field of law, and started on Friday, August 22, and ended on Monday, August 25. It is a mixture of philosophy, history, psychology, science, literature, and even poetry. It was a passionate plea against the death penalty that was consistent with Darrow’s strict deterministic philosophy of life as he believed that the murder could have only been planned and carried out by a diseased mind. This closing statement was printed in whole or in part in newspapers across the country, and is available from a variety of sources (e.g., McKernan, 1924; Sellers, 1926). I will not attempt to summarize Darrow’s closing statement, but reports indicate that the audience of approximately 350 people inside the courtroom was mesmerized and some within the courtroom openly wept (see The Florida Times-Union, “Near Riot at Beginning of Darrow’s Talk,” August 23, 1924, p. 1).[8]
The leading prosecuting attorney, Robert Crowe would begin his final argument for the people on August 19, 1924 (McKernan, 1924; Sellers, 1926). His argument was a razor sharp and often sarcastic indictment of the evidence offered for mitigation of the crime. He refers to the Freudian alienists throughout the statement as “The Three Wise Men from the East,” and Dr. White was a particular target. As just one example (others exist), Crowe stated, “I did come up to your Honor’s court room five weeks ago, and after I was there a little while Old Doc Yak—is that his name?—the man from Washington—oh, Dr. White,—Dr. White took me by the hand and led me into the nursery of two poor, rich young boys, and he introduced me to a Teddy bear. Then he told me some bedtime stories, and after I got through listening to them, he took me into the kindergarten and he presented to me little Dickie and Babe…” (cited in McKernan, 1924, p. 312). The prosecuting attorney ridiculed the diseased mind theory of the defense (see The Pittsburg Post-Gazette, “Deserve Same Mercy Shown Coiled Snakes, Judge is Told,” August 27, 1924, p. 1).
Judge Caverly set aside September 10 as the day he would give his decision and sentence. An interesting article about the trial appeared in the Sunday edition of The New York Times (September 7, 1924) just before the trial decision written by Dr. George Kirchwey. Dr. Kirchwey taught courses in criminal psychology and was at the time the head of the Department of Criminology of the New York School for Social Work, and was previously Dean of the Columbia Law School and Warden of Sing Sing Prison. The article starting on page 3, had a large headline of “LOEB CASE INTRODUCES NEW PSYCHOLOGY: Judge Caverly’s Rulings Mark Modern Era in Criminal Procedure.” The article certainly was in favor of the use of alienist testimony to mitigate punishment in the courtroom.
Also, Dr. Kirchwey made a statement that is consistent with the interpretation that prior to the trial Freud and psychoanalysis were not widely known by the general public. When writing about Judge Caverly, Dr. Kirchwey (p. 3) noted that few people, including the judge, knew much about the New Psychology offered as testimony at the trial. As previously stated, I know of no evidence to suggest, or any historian that has concluded that the majority of the American public was familiar with Freudian terms and concepts prior to the massive media exposure that occurred as a direct result of the Leopold and Loeb case during the summer of 1924.
Sentencing and Aftermath
On September 10, 1924, Judge Caverly sentenced the defendants to life imprisonment for the murder charge, and 99 years each for the kidnapping of Bobby Franks (see The New York Times, “Franks Slayers Get Life Imprisonment, Youth Averts Noose,” September 11, 1924, p. 1). Judge Caverly felt compelled to explain the rationale behind the sentence because of the enormous public interest in the case. Most pertinent to this book, Judge Caverly stated that (cited in Sellers, 1926, pp. 319-320):
The court, however, feels impelled to dwell briefly on the mass of data produced as to the physical, mental and moral condition of the two defendants. They have been shown in essential respects to be abnormal; had they been normal they would not have committed the crime. It is beyond the province of this court, as it is beyond the capacity of human science in its present state of deve
lopment, to predicate ultimate responsibility for human acts.
At the same time, the court is willing to recognize that the careful analysis made of the life history of the defendants and of their present mental, emotional and ethical condition has been of extreme interest and is a valuable contribution to criminology. And yet the court feels strongly that similar analyses made of other persons accused of crime would probably reveal similar or different abnormalities. The value of such tests seems to lie in their applicability to crime and criminals in general. Since they concern the broad questions of human responsibility and legal punishment, and are in no wise peculiar to these individual defendants, they may be deserving of legislative but not of judicial consideration. For this reason the court is satisfied that his judgment in the present case cannot be affected thereby.
Judge Caverly would ultimately decline to impose the death sentence because of the defendants ages, “In choosing imprisonment instead of death the court is moved chiefly by the consideration of the age of the defendants, boys of 18 and 19 years” (cited in Sellers, 1926, p. 321; see The Seattle Times, “Murders are Spared Because of their Youth,” September 10, 1924, p. 1). For completeness, I should point out that while this was the first murder trial that put forth psychological testimony in an attempt to mitigate punishment, which is commonplace today, this trial did not set legal precedent. Legal precedent is only established when an innovation to the law is attempted, fails, and an appellate court overrules the trial judge. If Judge Caverly would have ruled that the alienist testimony was not admissible to mitigate punishment; legal precedent could have been established if the defense won an appeal to a higher court.
Freud, Murder, and Fame: Lessons in Psychology’s Fascinating History Page 17