by Simon Baatz
1Walter Bachrach, defense attorney, 31 July 1924
Nathan held out his hands before him and studied them absentmindedly, turning them slightly in a circular motion. He had scrubbed them vigorously that morning, as part of his preparations for his first day in court, but the orange-brown nicotine stains on his right hand still remained, blemishes on his index and middle fingers. He had wanted to make a good impression, of course; his hair, carefully pomaded, lay slicked backward across his head--not a strand was out of place. He had dressed conservatively for his first appearance before the public; his dark blue suit had been pressed the previous evening and his brown-tan shoes, white shirt, and black four-in-hand tie completed the picture that he was about to present to the court.
2
Nathan could hear, on the other side of the door leading to the courtroom, a voice, muff led and indistinct, speaking for several minutes, interrupted occasionally by other voices, equally indistinct. He strained to catch the words. Was that Darrow's voice--now interrupting the first--and speaking at a slightly lower pitch?
Nathan nudged Richard Loeb, sitting beside him on the wooden bench, smoking his third cigarette of the morning, looking down at his legs stretched out in front of him. Richard also had taken care with his appearance; he too was dressed in a dark blue suit. He wore a white shirt and a blue bow tie with white polka dots; his black shoes, carefully brushed and polished, looked as good as new.
3
He couldn't tell, he answered in reply to Nathan's question, if that voice belonged to Darrow--it was too indistinct.
The bailiff spoke now, telling Richard to extinguish his cigarette, warning that they would soon walk from the antechamber into the courtroom. The judge had been speaking to the photographers, telling them that once the proceedings had begun, they should not use their f lashbulbs.
2 . RICHARD LOEB ENTERS COURT . A guard escorts Richard Loeb along the corridor from the Cook County jail to the Criminal Court Building.Soon the bailiffs would receive the signal to bring Nathan and Richard into court.
The door to the courtroom swung open. The sheriff, Peter Hoffman, entered first. His deputy, David Edfeldt, followed close behind, along with two guards. Richard followed immediately afterward and Nathan Leopold stepped out behind him, trailed by more guards. The room was silent. Richard looked curiously around the courtroom and noticed that all eyes were on him; the crowd had turned in a single motion--as though choreographed--toward the right-hand side of the court, to gaze at the prisoners as they walked into the room.
4
As Nathan and Richard took their seats behind him, Clarence Darrow gave them a reassuring smile, before turning to the front of the court to address the judge.
"Your honor, in the case of general number 33623 and 33624, where the defendants, Nathan F. Leopold, Jr., and Richard Loeb, are indicted for murder and kidnaping, these cases are set for this morning for any motions we might wish to make."
Darrow paused. It was still only quarter past ten in the morning, but already the summer heat was building relentlessly. Perspiration had gathered on Darrow's brow; he wiped it away with a single motion of his thumb across his forehead.
"Of course it is unnecessary," Darrow continued, "to say that this case has given us many perplexities and sleepless nights. Nobody is more aware than we are of what this means and the responsibility that is upon us. . . . No one . . . will doubt for a moment that we have the deepest sympathy for every one of the three families involved.
"Of course, this case has attracted very unusual attention on account of the weird, uncanny and terrible nature of the homicide. We have meant to consider it from the standpoint of the defendants, but we must also consider it first of all from the standpoint of their families-- and by the families I include all three--and from the standpoint of the public, who are rightfully interested in this proceeding. . . .
"We want to state frankly here that no one in this case believes that these defendants should be released. We believe they should be permanently isolated from society and, if we as lawyers thought differently, their families would not permit us to do otherwise.
"We know, your honor," Darrow continued, "the facts in this case are substantially as have been published in the newspapers and what purports to be their confession, and we can see we have no duty to the defendants, or their families, or society, except to see that they are safely and permanently excluded from the public. . . ."
5
Behind Darrow, listening to his words with an air of intense concentration, Nathan Leopold had moved forward in his seat as though to hear the attorney more clearly. Richard Loeb, seated adjacent to Nathan, seemed not to be paying attention--his eyes wandered around the courtroom until he caught the gaze of his brother Allan.
6
"After long ref lection and thorough discussion . . . we have determined to make a motion in this court for each of the defendants in each of the cases to withdraw our plea of not guilty and enter a plea of guilty. . . ."
Robert Crowe sat bolt upright in surprise as he heard the words. He stared across the aisle at Darrow, motionless, his lips parted, waiting to discover the import of Darrow's words.
"The statute provides that evidence may be offered in mitigation of the punishment and we shall ask at such time as the court may direct that we may be permitted to offer evidence as to the mental condition of these young men, to show the degree of responsibility they had and also to offer evidence as to the youth of these defendants and the fact of a plea of guilty as further mitigation of the penalties in this case.
"With that we throw ourselves upon the mercy of this court and this court alone."
There was a momentary silence in the room. Then a low buzz of conversation came from among the spectators. Was Darrow saying that Leopold and Loeb were insane? But why, then, plead guilty? Would the judge sentence the prisoners now, or later?7
At the rear of the room, reporters stumbled over chairs in their haste to get to the telephones and read their reports to their editors in time for the midday editions. Crowe and his assistants were on their feet, looking first at Darrow and then at the judge, seeking somehow to retrieve an initiative that had slipped from their grasp.
And, sitting among the spectators, Nathan Leopold Sr. had a stricken look, his face twisted in anguish, as he realized that the guilty plea left only a slender hope that Nathan might now escape the gallows.8
Crowe had immediately realized the implications of Darrow's maneuver. Illinois law mandated that an insanity plea be heard before a jury. If the plea had been not guilty by reason of insanity, Darrow would have had to argue his case before a jury--an impossible task. How could any jury have found the defendants insane?
But by changing the plea to guilty and arguing that their mental condition--along with their youth and their guilty plea--should be considered a mitigating factor in determining their punishment, Darrow had cleverly avoided a trial by jury. There would now be no trial. John Caverly would instead preside over a hearing to determine the punishment, which might range over several distinct possibilities from the death penalty to a minimum of fourteen years in prison. Caverly was a liberal judge, and clearly it was preferable for Darrow to argue his case before a single judge than before twelve jurors susceptible to public opinion and to Crowe's inf lammatory rhetoric.
Darrow had turned the case on its head. He no longer needed to argue insanity in order to save Leopold and Loeb from the gallows. Now he needed only to persuade the judge that they were mentally ill--a medical condition, not at all equivalent or comparable to insanity--to obtain a reduction in their sentence. And Darrow needed only one reduction--from death by hanging to life in prison--to win his case.
Crowe's long-standing antipathy toward Darrow could not prevent him from acknowledging his adversary's brilliance. Darrow was using the insanity defense yet pretending it was something else. Moreover, he was introducing it by a back door so as to avoid confronting a jury.
John Caverly gesture
d to the defendants to approach the bench. Both Nathan and Richard stood before the judge, their faces pale, Richard chewing nervously on his lower lip, Nathan looking directly ahead at the judge.
9
"Nathan Leopold Jr.," Caverly began, "if your plea is guilty, and the plea of guilty is entered in this case, 33623, the court may sentence you to death; the court may sentence you to the penitentiary for the term of your natural life; the court may sentence you to the penitentiary for a term of years not less than fourteen. Now, realizing the consequence of your plea, do you still desire to plead guilty?"
"I do."
"Let the plea of guilty be entered, Mr. Clerk, in indictment number
33623, charging Nathan Leopold Jr. with murder. . . .
"Now, Nathan Leopold, in indictment number 33624, in which
you are charged with kidnaping for ransom, the court desires to inform you that if you plead guilty, the court may sentence you to death,
to the penitentiary for the term of your natural life or for a term of
years . . ." Caverly paused, puzzled that he could not remember the
statute. "What is the minimum in kidnaping?" he asked the clerk, Ferdinand Scherer.
"There is," Robert Crowe called out, "no minimum, your honor." Caverly continued, ". . . any term up to life. Now, realizing the consequences of that plea do you now wish to withdraw your plea of not
guilty in that case and plead guilty?"
"I do."
"Mr. Clerk, let the record show that Mr. Nathan Leopold, Jr., in indictment number 33624 charging kidnaping for ransom, desires to
withdraw his plea of not guilty and have a plea of guilty entered, after
being warned by the court of its consequences."
Caverly read the same cautions to Richard Loeb. Did he understand
that his guilty plea might result either in death by hanging or in a
prison term not less than fourteen years? Yes. Richard--still nervous,
still chewing on his lower lip--acknowledged the judge's warning. Caverly conferred with the attorneys. He would begin the
hearing on Darrow's motion--to consider evidence in mitigation of
punishment-- in two days, on Wednesday, 23 July.10
Benjamin Bachrach rose to speak. The psychiatrists for the defense--"men of science, of high standing, well known," he began-- had investigated the mental condition of Nathan Leopold and Richard Loeb and would report their findings to the court as evidence in mitigation of the punishment. He understood that the prosecution had also hired psychiatrists to rebut and answer the defense presentation. Would it not be better, Bachrach asked, for defense and prosecution to present a joint report on the mental condition of the defendants?
Psychiatric evidence was typically submitted in a partisan manner, with the psychiatrists on one side contradicting those on the other side, and, as a consequence, "the ordinary hearing of insanity in criminal trials," Bachrach continued, "is much in the nature of a vaudeville show. It looks like high-class arguments, bickerings, denials, one set of alienists say one thing, another set of alienists say another thing." It brought disrepute on everyone involved. Each set of psychiatrists impugned the honesty of the other; psychiatry was regarded by the public as a laughingstock, less a serious science than an exercise in charlatanism and buffoonery, and the attorneys--never reluctant to purchase testimony from expert witnesses to say whatever served their purpose--were damned in the public eye as corrupt and venal.
A joint report by both sets of psychiatrists not only would save everyone the customary embarrassment that accompanied such proceedings but would ensure that the salacious details of the relationship between Nathan and Richard would not appear in the newspapers. Before the hearing begins, Bachrach explained, there must be "a joint conference of the alienists of the defendants and the state . . ."
"Now, just a minute," Robert Crowe interrupted.
"Well, before . . ."
"Just a moment," Crowe interrupted again. "Is there a plea of guilty entered here by two sane men or is the defense entering a plea of guilty by two insane men? . . ."
"Now, I ask counsel not to interrupt until I finish . . ."
"I know, but what I want to know is whether the contention is here the boys are sane or insane?"
Crowe's implication was obvious. The defendants had pleaded
guilty. By their plea they admitted responsibility for their actions. If
they admitted responsibility, they admitted their sanity. Why would
the defense present evidence on their mental condition if the defendants had admitted their sanity?
"I am not to be sidetracked," Bachrach replied testily, glancing
across the aisle to look at Crowe, "we ask counsel for the other side to
assume that we are in good faith. . . . What we desire to do is to determine the degree of mental responsibility of the defendants. When the
court hears all of the evidence it is his duty to fix the penalty. I think
it comes with bad grace for the state's attorney to try to shut me off at
this time. . . . What these alienists that we have talked to want to do
is to meet with the alienists of the state and talk it over with them
and see if they can iron out whatever differences there may be
among them. Maybe our alienists will be won over to their side;
maybe it will be the other way, but at any rate they want to present a
joint matter."11
It seemed a futile proposal, which Crowe would certainly disdain.
Crowe had nothing to gain and everything to lose. Any hint that the
defendants were insane necessarily reduced their responsibility for the
murder. And if the defense could argue that the defendants were insane, why, then they would be committed to the asylum. Crowe had
boasted, again and again, that he had a hanging case. Why would he
torpedo his own case by agreeing to a joint report on the defendants'
mental condition and, by implication, conceding to the defense that
Leopold and Loeb suffered from mental illness?
"Well, the court," Caverly interjected, "of course . . . has no power
to require the state's attorney to do that."
And if anyone had any doubts about the matter, Crowe answered
Bachrach's petition with as definitive a statement as it was possible for
him to make.
"The state's attorney," Crowe declared, "is in a position to prove by
evidence beyond all reasonable doubt that these boys are not only
guilty, but that they are absolutely sane under the law and should be hanged, and the state will introduce its evidence beginning Wednesday
morning to that effect."
"All right," Caverly banged his gavel on the bench to conclude the
proceedings. "We will suspend, gentlemen, then, until Wednesday
morning at 10 o'clock. All be here promptly at ten."12
Nathan and Richard, back inside the Cook County jail, chatted with the reporters in an outside corridor. Richard was in a giddy mood. He had a sense of nervous relief, now that his first court appearance was behind him. How much coverage would they get in the evening newspapers, he wondered? Would they make the front page?
A reporter for the
Chicago Herald and Examiner asked if Darrow had surprised them by entering a guilty plea. Or had they known beforehand?
"We're not allowed to say," Nathan spoke rapidly, trying to cut Richard off before he said something foolish. "Ask us something else."
"I bet we're all over the front page," Richard gloated. His moment in the spotlight had left him light-headed--it had given him a sudden rush of adrenaline. "I wish I had the papers. There certainly was a commotion when Mr. Darrow moved to plead guilty . . ."
"Better not talk about that," Nathan interrupted, angrily.
"What is it that the judge sa
ys when it's all over," Richard continued. "The court finds you . . ."
"Shut up!"13
In his office on the third f loor of the Criminal Court Building, Robert Crowe insisted to the reporters that Darrow's plea would not save Nathan and Richard from the gallows.
"The fact that the two murderers have thrown themselves upon the mercy of the court does not in any way alleviate the enormity of the crime they committed."
Darrow's case was a contradiction in terms, Crowe argued. How could Darrow introduce psychiatric evidence showing insanity and simultaneously introduce a plea of guilty? An insane person did not know the difference between right and wrong, could not be responsible for his or her actions, and was therefore not guilty of the intent to commit a crime.
"The defense is not permitted to introduce any insanity testimony because the law states that a plea of guilty to a fact automatically presumes the defendant to be sane. . . . For the defense to say they attempt to introduce alienists to testify regarding the mental condition of the two slayers would be going clearly outside the rules of evidence. There can be no insanity for a person who pleads guilty. . . . There is but one punishment which will satisfy the prosecution," Crowe concluded. "We will demand they be hanged."
14
Clarence Darrow was in a ref lective mood when he, too, met with the Chicago reporters after the adjournment. "I think we did the best thing we could for these two boys. . . . We have thrown ourselves upon the mercy of the court because I firmly believe that nowhere in this broad land could there be gotten together a fair-minded and impartial jury to try the case." There was no trickery about it, he insisted; there was no intent to have them released into society again. Most certainly they would spend the rest of their days in prison. The reporters repeated Crowe's assertion that the defense could not introduce psychiatric testimony, but Darrow was not concerned. If Crowe tried to prevent their testimony, the judge would assuredly rule in favor of the defense. "We can go as far as we want to go with insanity evidence, and we probably will."
15
2 . THE DEFENSE TEAM . The defense attorneys confer together before court convenes. From left: Walter Bachrach, Benjamin Bachrach, and Clarence Darrow.