by Meyer Levin
And finally, the press. Nearly half the courtroom was filled with correspondents from abroad, from national magazines, from out-of-town papers. But there existed a higher category still. The select of the press were in the jury box. Thus we saw ourselves as the true arbiters; what we wrote was judgment.
Several in the press box were old familiars, on the case from its beginning. Mike Prager was there, sporting his belligerent sneer; Richard Lyman, of the Tribune, had naturally appropriated the foreman’s seat; the Tribune had added a “fancy writer” named Arthur Kramer, who sat alongside the box, where extra chairs had been placed. A dozen sob sisters were in court to cover the women’s angle. Certainly Artie evoked a hysterical tenderness in women. We heard it now in the corridor, a curious feminine shrieking and gasping, as the boys were pulled through the crowd; we glimpsed bare arms, hands reaching toward him, heard a few piercing girls’ voices above the others – “Artie!” “Artie, honey!”
Inside, the two sides had assembled. For the prosecution, there was Horn, looking ruddy, massaged, made fit for battle, low-set, a line-driver. Padua was on his left, handsome, a smiling ball-carrier. They were accompanied by Czewicki – a padded interference man, with his mountains of files and reference books – and a half-dozen others.
The other team was older-looking: Wilk, in his studied shabbiness, his clothes having the same rough, worn, softened look as his face; Ferdinand Feldscher, perfectly groomed, reasonable, shrewd, smooth; his brother Edgar, with his high forehead, his unlit pipe, his slightly poetic look that made one wonder what he was doing in a law court, in a murder case.
Then there were the representatives of the families: Artie’s brother James, who aroused sympathy, and his Uncle Gerald, leaning forward to whisper to the lawyers. On Judd’s side, father and brother sat together; sometimes Max was to be absent, and Judah Steiner would sit alone, a monumental Job, a figure that seemed, even within the crowded courtroom, removed by some invisible wall.
Directly behind sat two small men, Charles Kessler and his brother Jonas, their faces impassive. Judge Wagner was with them.
And so the prisoners were led in. Artie exchanged a puckish smile with his brother and uncle, while Judd cast a furtive glance toward his kin.
Then came the judge, in his black robe. Throughout the sweltering August Chicago heat, he was to retain in his black robe that look of being unaffected by weather as by any mere extraneous factor.
The case was called, and a representative of each side rose to state what it would attempt to show. Horn in person declared for the State that never in all the world had so cold, vile, and excuseless a murder been committed, and that the extreme penalty was inescapable in such a case. When Ferdinand Feldscher rose for the defence, it was simply to state that their efforts would be to present evidence in mitigation.
Horn called his first witness, the Polish worker who had found the body.
And then, for more than two weeks, there ensued a dull parade of circumstantial witnesses, the undertaker, various policemen, handwriting experts, the diver who had found the typewriter – all in endless detail proving the crime which the defence fully conceded. But there was method to it, for by having witnesses describe the blood, the body, by having teachers describe the innocent schoolboy, and by piling up evidence of the luxury in which the murderers had been raised, Horn was indeed proving aggravation, to counterbalance any mitigating evidence the defence might offer.
During those weeks, the defence could only make effort after effort to shorten the proceedings; witnesses were rarely cross-examined, except for an occasional flash question to show the defence was in form.
Then came the coroner’s physician, Dr. Kruger. Despite an air of disgust and impatience on the part of Judge Matthewson, Horn kept the doctor on the stand, describing “signs of sexual abuse”.
The defence objected incessantly. The coroner’s verdict itself stated that no conclusion could be drawn. Surely the prosecutor was attempting deliberately to arouse prejudice!
Horn flared back. “Prejudice! Monsters are monsters!”
Finally, Wilk had the witness. This time there was no perfunctory dismissal. Had Dr. Kruger not stated that no tangible evidence existed? How then could he come to a conclusion? Oh, it was an opinion. Would there not be just as much basis for the opposite opinion? Then it was a guess? Were medical men given to swearing on guesswork?
Dr. Kruger, with each reply, seemed ready to jump out of his seat. But Wilk kept him pinned there with a barrage of medical questions. Wasn’t it true that muscle tension relaxed after death? Particularly during all-night immersion? “Then the condition was really normal, wasn’t it?”
“That’s my opinion and I stick to it!” the coroner’s physician snapped. Wilk shrugged, and waved him from the stand.
The retinue of humdrum witnesses continued.
For Judd, the trial was the last bitter irony. Was this the great trial that was in a sense to have justified his crime by bringing momentous questions before mankind? The question of free will, the question of law and the superman, reduced to routine evidence about a fake signature on a hotel registry. And for Artie, there was no particular disappointment, only boredom; to him the outcome was interesting only as a kind of bet, a long shot on life.
Then came my day to testify.
I had assured myself that testifying on the stand would only be like sitting in front of the typewriter. When I wrote, I gave testimony, making it as true as I knew how. Then what was it that troubled me? Was it some feeling that I would nevertheless that day be deserting my function as an objective bystander, to take the chair and participate?
From Artie and Judd, I was sure I received a special, measuring look, weighing how damaging I might be.
I had gone over the material with Tom. Certain words of Artie’s would be ugly to repeat. But we had long ago put them into print; how could we change them? If you had to pick a kid to kill, he was just the kind of cocky little sonofabitch you’d choose. That sentence, we both knew, was counted on by Horn as a hanging sentence.
The heat was growing in the room, and the people were wiping their brows. The two accused sank low in their chairs, showing their indifference. A Socrates trial, a dance of minds! Then, seemingly in the midst of a sentence, Horn sat down; Wilk shook his head, no questions, and I heard my name called.
As I raised my hand in the oath, I experienced a queer intensification, an archaic fear of the absoluteness of what I would be saying; I am told that all witnesses feel this to some extent and that lawyers play upon it.
Horn advanced, smiling reassuringly, and established my identity, my employment, and that I was a recent graduate of the University of Chicago, as well as a fraternity brother of one of the accused. Then he asked my age.
To graduate at eighteen was pretty unusual, wasn’t it? he asked, and I found myself saying there were others who had graduated at my age.
“Yes.” He stared at the prisoners.
Then he asked if I had been tutored by a governess to speed me through school. Wilk had risen, objecting, “No, no!” Horn withdrew the question, and turned then to my work as a reporter, and the identification of the body of Paulie Kessler. “That was considered quite a scoop, wasn’t it?”
Artie had picked up his head. I muttered, “Well, it was only luck.”
On the day we found the drugstore, wasn’t it Artie who had insisted on making a search? And the inevitable question arrived.
“Did you discuss Artie’s personal acquaintance with the victim?”
“We did.”
“Did you ask him anything about Paulie?”
“My partner, Tom Daly, asked what kind of kid Paulie was.”
“And what was his reply?”
Artie and Judd were staring fixedly at me. I felt sweat break and slide under my arm. “He said, ‘He was just the kind of cocky little -’ and then he used a swear word ‘you would pick if you were going to kidnap someone.’” They had me repeat the word to the stenograp
her.
Horn glanced challengingly at the defence.
Had the remark aroused any suspicion in me? Not at the time. Then Horn led me through the account of the typewriter, without failing to remark that there seemed to be different kinds of prodigies at the university.
But he was not through. “Tell me, Mr. Silver, would you mind telling the court, have you ever pictured yourself as a king, or a slave, or an ideal college hero?”
The quiet Edgar Feldscher leaped up, shouting objections.
What was the purpose of the line of questioning? the judge asked. Even while they argued, there crowded through my mind my own fantasies: a football hero, a sophisticated star reporter, a great writer receiving the Pulitzer Prize. I felt myself flushing, for quickly, overwhelming these, were sexual images, harem images…
Horn was insisting that the alienists’ reports, pages and pages filled with the boys’ fantasies, had opened up this entire question. But this evidence had not yet been presented in court, Judge Matthewson remarked.
I was turned over to the defence.
I watched Jonathan Wilk, unfolding like a carpenter’s rule; would he now make a fool of me? But from the first stroke of his voice I felt drawn to his side. Wilk did not have many questions to ask of me. I was used to Artie’s way of talking, wasn’t I? I knew him around the fraternity house and on campus, didn’t I? And was Artie in the habit of employing swear words or dirty words in his usual speech?
He was.
In fact – and with a shadow of his sad smile, Wilk turned his head toward Artie – in fact, the boy couldn’t open his mouth without some filthy expression, the way some kids did to show they were grown-up?”
Yes, I agreed. These were habitual expressions with him.
So the swear word Artie had put in there didn’t have any real significance, did it? It didn’t mean anything?
No, I agreed, and found myself relieved to have this pointed out.
Mentally I deleted “sonofabitch”. The rest was still terrible.
Wilk seemed to have done the same thing in his mind. And now he lowered his voice to a more intimate level.
Now, I had seen a great deal of Artie, and of his friend Judd, but particularly of Artie in those days before they were caught, and as I thought back on Artie’s conduct, what had he seemed like to me?
For a moment, I could not answer. There came to me, insistently, the Four Deuces, the dead derelict, Ruth, Artie, Judd dancing with Ruth… If I opened my mouth, I would talk of her -
Wilk prompted me. On the day Artie had insisted on hunting out the drugstore, what had he seemed like to me?
“I would say he was obsessed,” I testified. “I even remarked to my partner that Artie was obsessed with the case because he was so crazy about detective stories.”
“It didn’t bring suspicion upon him?”
“No; he himself had the explanation that his own kid brother might have been the victim.” Willie Weiss was staring at me. Did I really believe Willie’s far-fetched theory? Within myself, I felt an intensification, an acceleration of all processes, as if being a witness indeed helped me to see. It was a peculiar instant of oversensitivity; there was an exquisite shudder in it; and I even thought, Suppose someone were driven to hunt for such augmented perceptions? Suppose someone had to reach out beyond everyday actions, by hurting, by murder…
“Obsessed, did you say?”
“Yes, he seemed obsessed.” I left the stand, feeling somehow grateful to Jonathan Wilk for having got me to say those last things.
At long last, Horn was done, and the defence was to begin. Again, the pavement was jammed; the halls, the lifts were crowded; and extra bailiffs had to be called to guard the courtroom doors. It was Wilk’s turn.
He rose in his piecemeal manner, and asked Dr. McNarry to take the stand. Even while the doctor made his way to the chair, the opposition was clamouring at the bench. He gave his name; he was sworn. Only then Judge Matthewson turned his attention to Padua, Horn, Czewicki – all three in full cry, Czewicki with an arm-load of books, Padua repeating as a litany, “If Your Honour please-”
“All right, what is it?”
Padua led off, with a torrent of argument about the plea of insanity, beginning with sonorous quotations from Blackstone about compos and non compos: the ability to tell right from wrong.
Judd had become alert; something like pleasure showed on his face – the argument was being joined at last on a question of ideas. He whispered to Edgar Feldscher, no doubt some jibe about the high school lawyer with his primitive Blackstone.
Padua read from the Illinois statutes: “A person shall be considered of sound mind who is neither an idiot, nor a lunatic, nor affected with insanity, and who has arrived at the age of fourteen years, or before that age if the person knows the distinction between good and evil… An individual under the age of ten years shall not be found guilty of any crime or misdemeanour.”
It flashed through my mind that the psychiatric reports had placed the “emotional age” of the boys at nine. Wouldn’t it be a clever argument for the defence to contend that the emotional, rather than the physical, age should apply?
Then came the provision for temporary insanity. If at the time of committing a crime, “the person so charged was a lunatic or insane, the jury shall so find by their verdict…”.
“… In all these cases it shall be the duty of the court”, Padua read emphatically, “to empanel a jury to try the question whether the accused be… sane or insane.”
If the defence even touched on the question of insanity, the case automatically had to go to a jury.
It was a curious moment. Wilk, the great jury lawyer, was seeking at all costs to avoid a jury. And the prosecution was trying by every trick in the law books to force the case before a jury, or else to keep out the entire mass of psychiatric evidence, the only evidence the defence had to offer.
Now Horn took up this argument. “Insanity is a defence,” he insisted, “the same as an alibi. Have we got to a point of the law here where we can enter a plea of guilty before the court in order to avoid a jury, and then treat that plea as a plea of not guilty, and put in a defence?”
The judge made a movement, as though brushing away a fly. Horn kept on. “I insist, if Your Honour please, that we proceed without hearing any evidence tending to show that these men are insane. If not, everything you do from now on is of no effect under the law.”
There was a gasp from the courtroom at his audacity. Dr. McNarry, who had been staring at Horn with a professional half-smile, now turned his gaze upon Judge Matthewson.
“From the moment you hear evidence on insanity, this becomes a mock trial!” Horn shrieked. At last, the judge cut in. Did the State’s Attorney have any authorities?
Several lawyers responded simultaneously. Meanwhile, as Judd and Artie listened intently, the judge leaned forward, explaining his own view. It was actually his duty to find out if the boys might be insane, in order to protect their rights – to a jury trial! “I have a right to know whether these boys are competent to plead guilty or not guilty.”
The judge seemed determined to give each side a point, for he went on to remark, “There are different forms of insanity. Medically-”
“Not under the law!” Horn cried.
Patiently, as one going back to fundamentals, Judge Matthewson asked Horn, “Then is there no mitigation in a murder case at all?”
“Insanity is not a mitigating thing. It exists or does not exist.”
Wilk ambled to the bench, as a man puzzled. “And has the degree of responsibility nothing to do with it?”
“Degree!” Horn snapped. “Insanity is a total defence, the same as self-defence, the same as an alibi.”
“But if a medical condition-” Edgar Feldscher began.
Padua interrupted. “The law on the issue of an insanity defence-”
“We claim-” began Wilk.
“One moment, Mr. Wilk!” And he put his question to the judge. “If it
is conceded that insanity is not a defence, have they any right to introduce any evidence of insanity?”
“No, we’re not-” Feldscher shouted.
“No evidence of insanity!” Wilk echoed, while Dr. McNarry studied them all with interest.
“Then have you any right to introduce evidence as to the mental condition of these men?” Padua demanded.
“Certainly!” they cried in unison.
“Evidence intended to show that they are not responsible, or should not be held to the degree of responsibility that other people should be?”
“Certainly,” Wilk demonstratively resumed his seat.
“But that is insanity called by another name!”
“You can call it green cheese if you like!” Ferdinand Feldscher sneered.
“Wait, wait! Don’t get excited!” The judge leaned in.
Dr. McNarry permitted himself a chortle. Judd grinned. Artie looked worried, as if to remind us all that his life was at stake in this dispute.
The case seemed to hang in balance. Turning blandly toward Dr. McNarry, the judge said, “I don’t know what Dr. McNarry or whatever his name is, is going to testify.” He beamed upon Horn. “Nobody has said he is going to testify as to their sanity, except the State.”
It was sophistry. We all had the report of the alienists in our hands. Did not the report on each boy conclude with the statement that he was mentally affected? From a legal point of view, Horn seemed right. But the real trouble was that the law itself in its definition of insanity was antiquated.
There in that broiling courtroom in Chicago the inadequacy of the definition was being made clear; there in those days of wrangling the law itself was being tested. If it did nothing else, if the life or death of Judd and Artie was of little significance, their case at least served to focus the world’s attention on the inadequacy of our laws in the face of our new knowledge of the human personality and mind.