by Meyer Levin
The argument climbed. The lawyers brought in rulings from Nebraska, precedents from Alabama, statutes from Colorado. Word of the battle had seeped down to the street, and the pressure at the door increased. As in most arguments, the issue was only a definition of a word. Insanity. The word was like a push button for a jury. The defence tried to shade it to “an affected mind”.
“There is no need in citing the law,” Judge Matthewson said. “If there is any mental disease, it is insanity.”
There was a sudden silence. The prosecution seemed to have won. Judd, in panic, turned to Jonathan Wilk.
Wilk arose again and stepped to the bench. “Do you mean to say that the court will not consider the mental condition on the question of mitigation? When the mental condition does not rise to a defence?”
His question hung in the air. Mitigation, he repeated. What entered into mitigation? Didn’t one consider the conditions that led to a crime? The background of the criminal, the forces that moulded his character? The pressures upon him, the extent of his responsibility?
And as he spoke, the courtroom was being gradually drawn back from the definition of a word to deeper questions. What was free choice of action? What was free will? And, unsaid, one could hear Wilk’s lifelong rumination, his gentle pessimism, his insistence on some form of mechanistic determinism, his claim that there was no free will. Yet even if some freedom of will did exist, “Suppose the mental condition seriously interferes with their free will and understanding, don’t you think the court has a right to listen to that, in mitigation?”
It was the deeper kind of plea, for which we had waited from Wilk, the plea for compassion, yet delicately balanced, because if you carried it too far you would be saying what you really meant, that no one was responsible for any crime.
And Padua, lowering his voice so that it was as solemn as Wilk’s, devilishly suggested, “If you had a mental condition of that kind, it would be your duty to take full advantage of it before a jury.”
A grudging gasp went through the courtroom, at the young attorney’s cleverness in puncturing the grand champion’s spell.
Wilk was momentarily taken aback. Ferdinand Feldscher stepped in, to quote authorities again, and at times four or all six of the attorneys argued earnestly, with the judge intently taking part.
But gradually voices rose. “We’re wasting hours!”
“Wasting a few hours doesn’t make any difference,” said the judge. “The lives of two men are at stake here, and the issue itself is important.”
The morning session was over. As the boys were led out, Judd remarked to Dr. McNarry, “Well, you nearly got a word in,” and Artie said, “They’ve got you stuck to that seat, Doc.” We all recorded their wit, the hostile papers adding that at two hundred and fifty dollars a day, the doctor had no reason to complain.
When the argument was resumed, it was Edgar Feldscher who attempted to clarify the issue. “Even the most expert alienist finds it difficult to put his finger on the border line between sanity and insanity.” Though experts found it hard to define insanity, Feldscher pointed out, “Yet the law is that a jury of twelve ordinary laymen, maybe half of whom got through high school, should, on listening to testimony, be able to judge whether a man is sane or insane!”
“But that’s the law!” Horn was right back at it. “An insanity issue goes before a jury.”
The mild Edgar Feldscher suddenly snapped, “Let me ask, when you were a judge on this bench, didn’t you, in a similar proceeding – in the Fitzgerald case – hear evidence of sanity on a plea of guilty, for attacking that poor five-year-old little girl?”
“No, I didn’t-” Horn began.
Wilk cut in, a figure of wrath. “Why, every lawyer in Chicago knows you had an alienist testify that Fitzgerald was a legal moron!”
“Yes, but I didn’t permit testimony of insanity!” Horn screeched. “Moral depravity is not insanity.”
“An alienist testified to the mental condition of Fitzgerald,” Wilk insisted.
“Testified he was a degenerate!”
“And irresponsible!” Wilk shouted in his face.
“And Fitzgerald was sentenced to be hanged!” Horn retorted triumphantly.
“You hanged him,” Wilk stated, in disgust. “You hanged a diseased moron.”
Judge Matthewson angrily rapped for order. For another day they debated, until Padua summed it up for the State: “Seventy per cent of all admissions to state institutions are mental diseases functional in their nature – the very language of the defence – and that is insanity, legal insanity, and that is a defence before a jury.”
Now Wilk ranged himself in his famous pose, his thumbs under his braces, his long body relaxed.
He began dryly. “I understand from everything that has been said in this case, from the beginning to the end, that the State’s Attorney’s office feels the universe will crumble unless these two boys are hanged. I must say I have never before seen the same passion and enthusiasm for a death penalty as I have seen in this case.”
It was Wilk in one of his characteristic humanitarian outbursts. “If I thought that hanging men would prevent any future murders, I would probably be in favour of doing it,” Wilk said. “In fact, I would consent to having anybody hanged, excepting myself…”
Now he became the clever lawyer, turning Horn’s own argument against him. “If the ability to judge between right and wrong is the only criterion of sanity, why, then we already know the boys are legally sane, so the judge can listen to anything he wants, here. Why, Mr. Horn even said my clients are as sane as he is!” What, then, was the prosecution holding things up for? “They came in here with their beloved Blackstone, hoary with time…”
Horn shook his head as if to say, Let the clown have his act.
“We have in this state a statute which says the court, before he passes sentence on a human being, may inquire whether there are mitigating circumstances. Now what does this mean? Is there any catalogue? No, the court must tell, it is for him to decide and no one else.
“What is a mitigating circumstance? Youth itself. Simply because a child hasn’t judgment. Why, we’ve all been young and we know the vagaries of the mind of a child. We know the dream world it is in; we know that nothing is real. These two boys are minors. The law forbids them making contracts, from marrying without their parents’ consent. Why? Because they haven’t judgment, which comes only with years. I can’t understand lawyers who would talk of hanging boys as they would talk of a holiday – as they would talk of the races.
“About seven years ago, a poor boy named Petnick was charged with murder and I was asked by a charitable organization to defend him. He went to a house one day to deliver groceries and picked up a knife and killed a mother and her baby.
“I entered a plea of guilty, as in this case. I called his school teacher to show his mental condition, and I called alienists to prove the state of that poor boy’s mind. Judge Willard, a former partner of Mr. Horn here, said he would not hang that boy. And yet in this courtroom today we are told that the court may not consider such a circumstance!” He gazed reproachfully at the prosecution. “They say that’s the law – you are told you can’t even hear this testimony in mitigation. If that’s the law, I trust this court will ignore it, as the courts do ignore it constantly!”
Horn exploded. “In the name of the women and the children of this state,” he screamed, “I ask Your Honour whether this has ceased to be a court of law! Mr. Wilk tells Your Honour to ignore the law, to bum the criminal code!” He glared at the forgotten Dr. McNarry, the cause of the two-day argument. “You would indeed have to disregard the law, to hear this witness!”
With a brusque movement, the judge made his decision. “Under the wording of the statute I must hear evidence in mitigation and evidence in aggravation. The objection of the State is overruled, and the defence may proceed.”
Judd and Artie were alight, as though all had been won.
What could Dr. McNarry te
ll? Why had the State’s Attorney fought for two whole days to keep out his testimony?
McNarry began with Artie, detailing how the habit of lying evolved until “he himself says that he found it difficult to distinguish between what was true and what was not true.”
Horn broke in: “I submit that we are getting now clearly into an insanity hearing and I move that a jury be empanelled.”
“Motion denied,” said the judge.
McNarry came to the fantasy life, and Horn tried the other tack. “This condition you have described is sometimes called building castles in the air, is it not? Is that not quite common among boys?”
“Surely,” the alienist agreed. “But air castles are generally considered to be something beautiful and desirable, while these-”
“Don’t most boys have daydreams about dungeons and escapes?”
Judge Matthewson said stiffly, “Let the doctor proceed without interruption; cross-examine when he gets through.”
The doctor described the shadowing in the street, the jail fantasy, and how when Artie finally got into jail he “felt as if he belonged there and was living out in reality what he used to picture to himself as a child”. He told of the curious “continuance into his present life of a practice he had as an infant, confiding in his teddy bear, ‘And now, Teddy…’” He summarized: “Whereas fantasy life is compensatory, it also foreshadows our real conduct. He thinks of himself in prison, as a master criminal. The significance is on the emotional side because it is in the emotions that the fantasy life has its roots.” Artie was remaining, then, emotionally a child, a bad child seeking punishment.
To show how fantasy imposed itself and could even obliterate reality, the psychiatrist reminded us that despite Artie’s genera! popularity everywhere, Artie had an idea of himself as unwanted and inferior. This was another sign of Artie’s disintegration, as was his complaint that in the last few years he had felt that he “wasn’t all there”.
“In other words, he has grown to eighteen years of age, but he has carried his infancy with him in the shape of an undeveloped emotional attitude toward life… We see a complete derangement, a complete personality split where there is no longer the possibility of bringing the two aspects of the personality into sufficient harmonious union. Artie is in a stage which is capable, if it goes further, of developing that malignant splitting.”
Would Dr. McNarry discuss the other crimes, A, B, C, D, as further evidence of Artie’s disintegration?
“Artie’s tendency was criminalistic.” But he listed only the minor crimes, already well known. “To fulfill his mastermind fantasy, Artie needed a gang, and Judd was his gang. Now Judd had no fundamental criminalistic tendency.”
This statement in itself startled the courtroom.
Judd’s tendencies, the doctor said, could be expressed as a constant swing between feelings of superiority and feelings of inferiority. He needed a complement, a balance, and had attached Artie as his other ego, sometimes superior, sometimes inferior, as when the king was rescued by the slave.
“Thus, in this fantasy, in either position he occupies, as king or as slave, he gets the expression of both components of his make-up, his desire for subjection on the one part and the desire for supremacy on the other, so that with their effective and emotional relationship to each other, each entire life plays into the other with almost devilish ingenuity, if I may be permitted to use the term.”
While Artie was a disintegrating, a decomposing, personality, saying he had had all he wanted out of life, the alienist showed us Judd as incessantly active, cataloguing churches as a child, then investigating ornithology, analysing languages, and even now in jail projecting a book he would write to explain himself, a speech he would make from the scaffold if he were to hang. Indeed he was even planning a set of questions that he would answer from afterlife, should there prove to be any, though he did not believe any existed.
“So these two boys,” Dr. McNarry continued, in his even tone, “with their peculiar inter-digitating and complementing personalities” – he laced together the fingers of his two hands – “came into this emotional compact, with the Kessler homicide as the result.” It could be described, he said, as a folie à deux, rare enough, since it could not result unless the precise two personalities, by perhaps one chance in millions, came together.
The doctor emphasized this, probably as reassurance to the public, to the world; but even at the time I had a doubting thought: Wouldn’t the needed personalities somehow attract each other, to come together? And since then, of course, we have seen many other crimes out of such conjoinings.
The testimony of Dr. McNarry ended with Edgar Feldscher’s formal questions: “As a result of your examination and observation of the defendant Arthur Straus, have you an opinion as to his mental condition on the twenty-first day of May, 1924?”
“Yes, sir.”
“What is that opinion?”
“Well, I have practically expressed it. He was the host of antisocial tendencies along the lines that I have described. He was going in the direction of a split personality, because of this inner unresolved conflict… He is still a child emotionally, still talking to a teddy bear – somewhere around four or five years old. Intellectually, he passes his tests very well.”
As to Judd, he, too, was “the host of a relatively infantile aspect of his personality, but he has reacted to a defence mechanism, which has produced the final picture of a markedly disordered personality make-up in the direction of developing feelings of superiority which place him very largely out of contact with an adequate appreciation of his relation to others or to society.”
We had almost forgotten that it was a trial, a contest, until Horn came forward for the cross-examination. He turned to Artie’s “criminalistic tendencies”, and Judd’s lack of them. Did the doctor, for example, know who struck the fatal blows on Paulie Kessler’s skull?
There was a moment of hesitation as Dr. McNarry glanced toward the defence table. Wilk arose.
It would make no difference in the conduct of the defence if this point could be clarified, he said. The boys, by their own desire and that of their families, were being tried jointly, as they were inextricably bound in their act.
Horn repeated his question.
“Yes,” said Dr. McNarry. He spoke as though the detail were of little significance. “It was Artie.”
A woman’s shriek sounded over the courtroom hubbub. I noticed Myra, sudden tears on her face. Up to that moment she must still have been clinging to the idea of Judd as the devil.
Horn was asking how the doctor knew it was Artie.
“During one of our talks, there came a point where it was quite clear to me. I asked, ‘It was you who struck the blows, wasn’t it?’ and Artie nodded; he said, ‘You knew it’.”
I had a glimpse over my shoulder of Judd, staring at Artie with almost a reproving look.
The sensation had come late in the afternoon; court adjourned before I finished my call. The corridors were flooded with excited women; there seemed, indeed, to be a particularly sharp scent rising in the warm corridors from their inordinate agitation. In that moment, I saw Myra, slipping between the clots of women. I called her name. She clutched my arm, in that way she had. “Oh, Sid.”
“Sid,” she gasped, “they’re putting me on the stand tomorrow.”
How could that be? What of all the other psychiatrists?
“I don’t know, I don’t know. The lawyers just told me. Sid, I’m scared of that awful man.”
I reassured her. Horn was nobody to be afraid of; it was nothing to be on the stand. She had Wilk to protect her.
I waited in the park. Myra wanted me to walk her to Wilk’s apartment. The heat had not lifted, and the park was teeming. All at once she was there with me, wispy in the twilight. We stood a moment, listening to a middle-aged woman talking to her husband. “I thought all the time it was the dark one did it, that Judd Steiner, but if it was that boy Artie, I don’t understand how h
e could hit a kid – he looks such a nice boy. He must be insane.”
“It’s the way they were brought up,” the husband said. “Kids nowadays, they have everything too easy.”
We started walking. “Perhaps we’re all like that,” Myra said in her low breathy voice, “the generation that refused to grow up. We’re all babies emotionally.”
And as we walked: “Oh, Sid, should I say he was crazy, that he always acted crazy?” When Dr. McNarry had been describing Artie on the stand, Myra said, she had suddenly seen it so clearly, she had remembered so many scenes all tumbling together. The time he put on dark glasses and sat on the curb at Cottage Grove and 63rd, pretending to be a blind beggar, that was infantile – she had always said he was infantile, even to her mother… “Oh, the poor kid, if they do save his life, if he’s sent to an asylum, and some day becomes cured, will they ever let him out?”
And, leaning against me, she expressed her terror again. What was it like on the stand? That Sunday, when Horn’s men had come to see her, she hardly remembered what she had said. Could they hold her to what she had said?
As we entered Wilk’s apartment, Myra was taken over at once by Ferdinand Feldscher, who disappeared with her into a side room. There were conferences everywhere. In a corner of Wilk’s library, several of our fraternity brothers were being prepared to go on the stand. In the dining-room, there were members of Judd’s birding class, and a few campus intellectuals with whom he had argued philosophy.
I began to understand this sudden break in strategy. Dr. McNarry’s testimony had proved too strong; to follow him directly with other psychiatrists was to risk playing into Horn’s hands, to cause the case to go to a jury. Instead, there would be an interlude, with character witnesses, friends, girls, who would restore the image of Judd and Artie as college boys, active, bright, even attractive to perfectly normal young girls.