by David Wilson
Mr. Hickman and his two lawyers sat on the left directly facing the judge on the bench, with a witness box on one side and the jury seated on the other. The three windows in the courtroom were covered and the only light in the room came from half a dozen overhead fixtures. Spectators in the room were sweating profusely.
The courtroom was filled the first day, as it would be every day for the duration of the trial. The corridor outside held the overflow of concerned citizens wanting to catch a glimpse of the proceedings. At nine o’clock on the first day, all conversation in the room stopped as everyone watched the accused murderer enter the room for the first time. The guards escorted him to a seat between Jerry Walsh and Richard Cantillon. William Edward Hickman appeared relaxed, as if he were not aware of the reason he was in the room.
During the previous thirty days Mr. Hickman’s life had been one continuous interrogation, with interviews by at least ten different psychiatrists, two lawyers from the DA’s office, and two detectives from the LAPD. Besides this steady stream of government officials, Mr. Hickman had numerous conversations with his own defense attorneys, several newspapermen, and two ministers. For the defendant the change in his daily routine came as a relief. He wanted to have his day in court and was confident he would be vindicated. In his mind blame for the killing of Marion Parker belonged to her father, who had refused to follow his instructions. Once the trial was over he could return to his daily routine of watching movies.
Judge Hardy entered the room from a side door, the court bailiff’s gavel hit his desk, and the noise reverberated against the walls of the courtroom. From the bailiff came the call to order.
“Please stand and face the flag of your country. Recognizing the principle of justice for all, for which it stands, department twenty-four of the Superior Court of the State of California in and for the county of Los Angeles is now in session, the Honorable Carlos S. Hardy, judge, presiding. Be seated please!”
Judge Hardy was the same judge who had sentenced Hickman a year earlier for the crime of forgery. This fact was not overlooked by the young defense attorneys. The judge nodded his head, ordering Mr. Hickman to stand while the court clerk read the indictment into the record.
In the Superior Court of the State of California in and for the County of Los Angeles. Indictment Number 32543 filed December 22, 1927. The people of the State of California, Plaintiff, versus William Edward Hickman, Defendant. The said William Edward Hickman is accused by the Grand Jury of the County of Los Angeles with the crime of murder, a felony, committed at and in the County of Los Angeles, State of California, and before the findings of this indictment as follows to wit: That the said William Edward Hickman, on or about the 17th day of December 1927, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously, and with malice aforethought, kill and murder one Marion Parker, a human being, contrary to form, force and effect of the statute in such case made and provided and against the peace and dignity of the People of the State of California.
Judge Hardy asked both sides in a perfunctory manner if they were ready to proceed. Asa Keyes announced in a strong and self-confident voice, “We are ready for the People of the State of California.”
No less confidently, the lead defense lawyer Jerry Walsh stood and faced the judge to make a point of law: “On behalf of the defendant, William Edward Hickman, I am filing a petition for the disqualification of Your Honor as trial judge in this case. I herewith deliver to the district attorney a copy of that petition, and hand the original to the court clerk requesting that it be filed in the records of this case.”
The judge was not amused. Several reporters wrote that the judge appeared to be stunned, as flashbulbs popped from the back of the courtroom and reporters started scribbling in their notebooks. This last-minute legal maneuver caught both the judge and the district attorney off guard.
Judge Hardy addressed Mr. Walsh in an unfriendly tone: “On what ground is your petition based, Mr. Walsh?”
Refusing to be intimidated, Mr. Walsh responded: “On the grounds of actual bias.”
Unknown to Judge Hardy, Ray Nazarro, Richard Cantillon’s law clerk, had heard from a friend that Judge Hardy had spoken at a dinner party expressing his belief that Hickman’s defense team did not have a chance of convincing a jury Hickman was insane. The judge went on to tell the gathering it would only take a few days to convict Hickman and then he would personally sentence the murderer to death by hanging. The judge took the next few minutes to read the petition, which gave other detailed examples of bias relating to the judge’s behavior in pretrial motions. Without taking this motion under formal advisement, Judge Hardy responded after he had finished reading the last word. “Let the record show that I have read the petition for my disqualification filed on behalf of the defendant,” he said. “In answer to the petition I, as judge, declare I would not sit in this case if I were of such a biased mind and entertained such prejudice that I would not extend to this defendant the full measure of his rights under the law and grant him a fair trial. Accordingly, I deny generally and specifically all the material allegations of this petition.”
Mr. Walsh stood up once more and addressed the judge: “It is the contention of the defense that if this court persists in passing on its own qualifications, it will be denying this defendant a substantial right, that is, the right to have the question of this court fairness determined by an outside judge.”
Deputy District Attorney Mr. Murray clearly saw the significance of the petition. He did not believe the defense lawyers would risk the wrath of Judge Hardy unless they knew something substantial. Fearing a mistrial, he asked for a recess, and the judge granted him thirty minutes. During the break Asa Keyes, Mr. Murray, Mr. Walsh, and Judge Hardy met behind closed doors to discuss the issue.
Judge Hardy returned to the courtroom and made the following declaration: “I have acquainted myself with the law upon which the defense is relying. I reiterate my statement that I do not entertain such prejudice or bias against this defendant as would preclude me from granting him the full measure of his legal rights and a fair and impartial trial. But rather than have this trial delayed by a court determination of the question of fairness as a judge and possibly prolonged by an appeal on that issue, I herewith present to the clerk my formal consent that this case be tried before another judge. This court will stand adjourned until ten o’clock tomorrow, at which time some other jurist will take my place.”
District Attorney Keyes regarded Mr. Walsh, seated at the table next to him, with newfound respect and with the understanding that the trial was not going to be as easy as he had originally thought. The gentlemen of the press had their first headline. William Edward Hickman appeared to have no idea what was going on and had no apparent reaction to the ruling. His attorneys were elated.
The lawyers for the defense knew this was only one small victory and they had no legal alternative but to base their entire defense on an English point of law, one that had come to prominence after an incident in England in the 1840s. The principle of law was known as the McNaughton Defense, and took its name from a would-be assassin who tried to kill Queen Victoria. Mr. McNaughton was an assassin who was laboring under the illusion he was a member of a secret organization formed to bring about the destruction of the royal family. The court determined no such organization existed except in McNaughton’s mind. Besides this major issue, the man made numerous delusional statements when he was brought before a British magistrate. At the conclusion of Mr. McNaughton’s lengthy trial, he was acquitted of wrongdoing on the grounds that he couldn’t understand the difference between right and wrong. The general public throughout Britain responded to the court’s ruling with disbelief and disdain. Questions were raised in the media, seeking answers to how someone could commit such a serious crime against the queen and escape punishment.
The ruling was eighty-seven years old at the time of the Hickman trial. The precedent in the McNaughton ruling was established
when psychiatry was in its infancy, and the medical profession had no clear definition of mental illness that could be used as the legal basis for arguing whether or not a suspect could tell the difference between right and wrong. Clarence Darrow had unsuccessfully argued that maladjustment was sufficient cause for claiming an insanity defense. Walsh was well aware of the failure and knew he needed a more persuasive argument. At the time the McNaughton ruling was established as law in England, extreme criminal behavior was considered to be the result of the influence of the devil. This meant the legal basis for the inability to distinguish between right and wrong was argued largely on a religious basis. The courts had since consistently ruled out the religious argument to the point that it was no longer admissible. This was in spite of the fact that, in 1927, a significant portion of the population believed mental illness was rooted in some form of demonic influence. Not surprisingly, the legal concept of insanity met with the same public disdain in California it had back in England in 1840.
As a student of Clarence Darrow, Walsh had studied recent developments in psychiatry. Originally the field had only dealt with extreme cases requiring commitment to mental institutions. Treatments were often brutal and arbitrary, more concerned with the care and maintenance of patents than any effort at finding a cure. This situation was radically changed by a neurologist named Sigmund Freud, who published a series of articles claiming less severe forms of mental illness had unconscious origins. Freud also claimed that unconscious mental disorders could result in physical symptoms. He developed a therapy called psychoanalysis in an effort to source unconscious influences that had a negative effect on mental health. Freud believed the primary source of negative unconscious influence was childhood sexual trauma. The efforts of Freud to establish his views as accepted medical theory were challenged by other doctors in the field, who disagreed with what they believed was his limited view of the sources of mental illness.
The formal legal ruling in California read in part:
Has a party sufficient mental capacity to appreciate the character and quality of the act? Did he or she know and understand that it was a violation of the rights of another, and in itself wrong? If he or she had the capacity thus to appreciate the character and comprehend the possible or probable consequences of his or her act, and knew that if it was wrong, he or she is responsible to the law for the acts thus committed. And if not the burden of proof is on the accused; it is incumbent upon him or she to establish by a preponderance of evidence that he or she was insane at the time of committing the act charged.
The proof of Mr. Hickman’s insanity rested solely with his lawyers; their mission was to solicit answers from their witnesses both in deposition and inside the courtroom, which would reveal the dark aspects of their client’s sociopathic behavior. If the lawyers could accomplish this, the jury would begin to see a common element contributing to his increasingly bizarre and violent behavior. The problem for the defense was twofold. They needed to focus on one of many theories about the sources of mental illness, and then gather the evidence to support the theory. They had the additional problem of needing to gather the evidence in a month with limited resources.
Mr. Walsh spent almost the entire time before the trial traveling to the Midwest to take depositions from family members, friends, teachers, and Mr. Hickman’s parole officer. His strategy was to reveal a criminal whose behavior went beyond the limits of a dysfunctional member of society. He wanted to show Mr. Hickman had been acting out a complete fantasy. He needed to show Hickman’s reasoning was devoid of common sense. The risk was enormous. While the legal system was in the early stages of recognizing the significance of forensic psychology, it was still relatively new and was often misunderstood by an uneducated public. The medical arguments over the sources of mental illness were virtually unknown to the public. Any medical theory presented by the defense would be challenged by the prosecution. The sympathy of the jury would likely be with the prosecution.
The district attorney only needed to persuade the jury that Mr. Hickman had acted out of simple greed when he kidnapped Marion and killed her to protect himself from detection. The defense needed to persuade the jury that their client was incapable of forming the necessary intent to commit the crime. According to the defense, his inability to form the necessary intent was a result of insanity. Walsh and Cantillon were working with limited funds and could only afford to present one medical doctor and two psychologists to argue their side of the case, while the prosecution hired eight doctors, each well-compensated for their time and effort.
Chapter 4
“A wide screen just makes a bad film twice as bad.”
Samuel Goldwyn
The city of Los Angeles, the Los Angeles Superior Court, and the district attorney escaped the embarrassment of a possible mistrial when Judge Hardy reluctantly recused himself from the case. The American legal premise of “equal treatment under the law” was settled amicably when Judge James Trabucco took his seat inside the courtroom on January 26, 1928. In assigning the unbiased Trabucco to the trial, the proceedings not only received the guidance of a distinguished public servant, it also received the experience of a renowned legal educator. At the time of his appointment, Judge Trabucco was considered one of the top experts on California criminal law in the state. He quickly reviewed the case, rescheduled the trial date, and completed the jury selection in only two days.
With a fully impaneled jury, the judge instructed the clerk to reread the indictment in the courtroom and for the first time announced the defendant’s plea in a public proceeding. The clerk read the initial complaint without hesitation. He paused before reading from the second page of the indictment in anticipation of a reaction from spectators. The clerk continued reading in a firm voice: “The defendant Hickman pleads not guilty by reason of insanity to the charge, and is now here before you for trial.”
There was a gasp of disbelief in the courtroom, followed by the shuffling of papers as reporters recorded the opening proceedings of the trial. The reporters were once again surprised by what happened in the courtroom when the judge addressed the jury and told them they were dismissed for the day. When the jury box was clear, Judge Trabucco addressed both teams of attorneys.
“Prior to September of 1927, when the new legislation went into effect, an issue of insanity was tried under the general plea of not guilty. Now, as I interpret the new law, that issue can only be raised by a special plea of not guilty by reason of insanity. A separate and distinct trial is required on this insanity issue. Gentlemen, I have spent all available time since this case was assigned to me searching for some precedent that might be of aid in construing these radical legislative changes. Frankly, I have found nothing of value. I will ask the counsel for the prosecution and the counsel for the defense if in their respective research they have discovered any guidepost that may help.”
None of the lawyers offered to share any legal precedent relevant to the case because this was the first time a suspect had used the insanity plea in the state of California following the updated legislation. There literally was no precedent. The judge continued his effort to interpret the law based on his own understanding of the written statute.
“The record reflects that the defendant, Hickman, has entered the special plea of not guilty by reason of insanity. As I read this statute the defendant by such a plea is considered to have admitted the commission of the offense of which he is charged and seeks to avoid the legal consequences by the assertion that he was insane at the time the offense was committed.
“The law presumes all men to be sane. This evidentiary presumption places upon the defendant, Hickman, the burden of providing that, at the time of his killing of Marion Parker, he was insane. The defendant, having the affirmative of the issue, must go forward with the proof. It is now ordered by the court that you proceed accordingly.”
With these few simple words, there was a radical shift in the way a murder trial based on the insanity defense would have to be pr
esented in court. The judge was making case law, meaning he was explaining by way of interpretation the implication of the statutory or written law. This is always a risky venture in a high-profile case with public sentiment demanding justice for the accused. Anytime a judge offers a new opinion on case law, that opinion is subject to review on appeal. If the opinion is reversed by a higher court, it can potentially nullify the decision of the jury.
But Judge Trabucco had no choice, because the case was the first use of the insanity plea in a California court room following a recent legislative revision of the law. The insanity plea had been modified in California in reaction to the trial of Leopold and Loeb three years earlier. In the Leopold and Loeb case, their attorney Clarence Darrow simply instructed his clients to plead guilty. The trial then proceeded directly into the sentencing phase. At the time, sentencing was at the sole discretion of the judge. Darrow’s tactic was to present evidence of the maladjustment of his clients without the risk of a jury coming to a decision based on their emotional reaction to the brutality of the crime. Darrow also argued that maladjustment was an affirmative defense that mitigated the question of intent, without rising to the level of insanity.
The defendants Leopold and Loeb were two intelligent college students, both from wealthy and privileged homes, who murdered a fourteen-year-old boy for the admitted reason of proving they could do it without getting caught. Even though the plea was insanity, Darrow challenged the definition of mental illness and presented a case for the two defendants being misguided and dysfunctional. According to Darrow, Loeb had become maladjusted by losing himself in cowboy books and detective stories. Leopold was by his own admission in love with Loeb and willing to do anything he asked to please him. They started out by committing petty crimes and escalated to the idea of committing a murder without getting caught.