by Meyer Levin
The next day came Czewicki’s turn. It was a memorized speech filled with gruesome images piled one on the other; the effect was like turning the pages of an illustrated Inferno. His task was to deal with the psychiatric testimony, and his burden was that it was a virtual hoax, since the defendants were admittedly legally sane. Mad dogs were suffering from illness, but not these pervert prodigies, these vicious lust-killers.
To him, Edgar Feldscher replied, reviewing the entire relationship of psychiatry and criminal law and urging, earnestly, that the tragic case yield, for humanity, a further step in the use of the new science as an aid to justice. Of all who had spoken until then, he touched us most, for there was a deep perplexity in him, and even more than had been felt from his brother, an unashamed personal concern for the defendants. When Edgar Feldscher turned toward them in his plea that their lives were young, that one or the other, sick as they were, might yet have much to give, his voice lost its pitch. He ended by recalling that it had been the wish and hope of the defence that both sides should participate in the psychiatric study; it was still his wish and hope that the use of such knowledge should prevail, in place of oratory, in man’s search for justice.
There remained only Wilk and Horn.
Although only one individual, Judge Matthewson, would render the verdict, the trial was not a play rehearsed behind a dropped curtain. The entire world had become a jury. Thousands of letters, telegrams, petitions, even death threats, inundated the court. Could Wilk move enough feeling, literally sway it, to the side of pity?
If the doors had been crowded before, the day of the great attraction brought an unimagined assault. Their shirts blotched with sweat, the linked bailiffs tried to hold back the charge, when suddenly there was a roar of pain. A bailiff’s arm had been broken.
For half an hour Wilk waited, until there was complete order. The judge nodded, and Wilk arose.
We think of a great speech in terms of an oration that has a rising structure and a shattering climax. And we were indeed to be moved, but not in a continuous line.
He spoke for two days, during four sessions.
In such a lengthy address there were of necessity times when his delivery was relaxed and when he seemed only to be shambling about the courtroom. But the total effect was of a piece. It was of a man talking from his heart, in an intimate and serious conversation.
He began in a low, almost tired key, touching at once upon the question that was on everyone’s mind – the avoidance of a jury.
“Your Honour, it has been almost three months since the great responsibility of this case was assumed by my associates and myself. I am willing to confess that it has been three months of great anxiety. Our anxiety has not been due to the facts that are connected with this most unfortunate affair, but to the almost unheard-of publicity it has received. Newspapers all over the country have been giving it space such as they have almost never before given to any case. Day after day the people of Chicago have been regaled with stories of all sorts, until almost every person has formed an opinion. “And when the public is interested and demands a punishment, it thinks of only one punishment, and that is death.
“In this stress and strain, we did all we could to gain the confidence of the public, who in the end really control, whether wisely or unwisely.
“It was freely published that there were millions of dollars to be spent on this case. Here was to be an effort to save the lives of two boys by the use of money in fabulous amounts, amounts such as even these families never had.
“We announced to the public that no excessive use of money would be made in this case, either for lawyers or for psychiatrists, or in any other way. We have faithfully kept that promise.
“There are times when poverty is fortunate. I insist, Your Honour, that had this been the case of two boys of these defendants’ age, unconnected with families supposed to have great wealth, there is not a State’s Attorney in Illinois who would not have consented at once to a plea of guilty and a punishment in the penitentiary for life. Not one.
“We are here with the lives of two boys imperilled, with the public aroused. For what?
“Because, unfortunately, the parents have money.
“I told Your Honour in the beginning that never before had there been a case in Chicago where on a plea of guilty a boy under twenty-one had been sentenced to death. I will raise that age and say, never has there been such a case where a human being under the age of twenty-three has been sentenced to death.
“And yet this court is urged, aye, threatened, that he must hang two boys contrary to precedents.
“Why need a judge be urged by every argument, moderate and immoderate, to hang two boys in the face of every precedent in Illinois and in the face of the progress of the last fifty years?
“Lawyers stand here day by day and read cases from the Dark Ages, where judges have said that if a man had a grain of sense left, and a child barely out of his cradle, he could be hanged because he knew the difference between right and wrong. Death sentences for eighteen, seventeen, sixteen, and fourteen years have been cited.
“As if this had something to do with the year 1924, as if it had something to do with Chicago, with its boys’ court and its fairly tender protection of the young.
“In as cruel a speech as he knew how to make, Mr. Padua said to this court that we plead guilty because we were afraid to do anything else.
“Your Honour, that is true.
“We have said to the public and to this court that neither the parents, nor the friends, nor the attorneys would want these boys released. They are as they are. They should be permanently isolated from society. We are asking this court to save their lives, which is the least and the most that a judge can do.
“We did plead guilty before Your Honour because we were afraid to submit our case to a jury. I can tell Your Honour why.
“I know perfectly well that where responsibility is divided by twelve it is easy to say, ‘Away with him’.
“But, Your Honour, if these boys hang, you must do it. You can never explain that the rest overpowered you. It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility.
“Your Honour, I know that of four hundred and fifty persons who had been indicted for murder in Chicago in the past ten years and who had pleaded guilty, only one has been hanged. And my friend who is prosecuting this case earned the honour of that hanging while he was on the bench. But his victim was forty years old.” Wilk turned then to the prosecutor’s table. “I can sum up their arguments in a minute: cruel, dastardly, premeditated, fiendish, cowardly, cold-blooded.
“Cold-blooded!” And the long arm pointed. “Let the State, who is so anxious to take these boys’ lives, set an example in consideration, kindheartedness, and tenderness before they call my clients cold-blooded.
“Cold-blooded! Because they planned and schemed?
“Yes. But here are officers with all the power of the State, who for months have been planning and scheming and contriving to take these two boys’ lives.
“They say this is the most cold-blooded murder the civilized world has ever known. I don’t know what they include in the civilized world. I suppose Illinois. Now, Your Honour, I have been practising law a good deal longer than I should have, anyhow for forty-five or forty-six years, and during a part of that time I have tried a good many criminal cases, always defending. It does not mean that I am better. It probably means that I am more squeamish than the other fellows.
“I have never yet tried a case where the State’s Attorney did not say that it was the most cold-blooded, inexcusable, premeditated case that ever occurred. If it was murder, there never was such a murder.
“Why? Well, it adds to the credit of the State’s Attorney to be connected with a big case. That is one thing. They can say, ‘Well, I tried the most cold-blooded murder case that ever was tried, and I convicted them, and they are dead.’
“And then there is another thing, Your Honour
: of course, I generally try cases to juries, and these adjectives always go well with juries – bloody, cold-blooded, despicable, cowardly, dastardly, cruel, heartless – the whole litany of the State’s Attorney’s office goes well with a jury.
“They say this was a cruel murder, the worst that ever happened. I say that very few murders ever occurred that were as free from cruelty as this.”
He waited for the chill of these words to pass through us. “Poor little Paulie Kessler suffered very little. There is no excuse for his killing. If to hang these two boys would bring him back to life, I would say let them go, and I believe their parents would say so, too. But
The moving finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.
In the pause, Mike Prager remarked, “Ever hear of Wilk making a plea without Omar Khayyám?”
Wilk resumed, turning now to the State’s argument. Horn had taken pains to build up the ransom as the motive. This was almost too easy to ridicule, with their huge allowances, with Artie’s $3,000 bank account, with Judd’s $3,000 for a trip to Europe.
“And yet they murdered a little boy against whom they had nothing in the world, to get five thousand dollars each. That is what their case rests on. It could not stand up a minute without a motive. Without it, it was the senseless act of immature and diseased children, as it was.”
He turned and gazed at the boys, interminably, it seemed, and a gloom, a heart-heaviness at existence itself could be seen coming over him, and it came over the courtroom, too.
“How insane they are I care not, whether medically or legally. They committed the most unprovoked, most purposeless, most causeless act that any two boys ever committed, and put themselves where the rope is dangling above their heads.
“Was their act one of deliberation, of intellect, or were they driven by some force such as Dr. McNarry and Dr. Allwin have told this court?
“Why did they kill little Paulie Kessler?
“Not for money, not for spite, not for hate. They killed him because somewhere in the infinite processes that go to the making up of the boy or the man something slipped, and those unfortunate lads sit here hated, despised, outcasts, with the community shouting for their blood.
“Are they to blame for it? It is one of those things that happened; and it calls not for hate, but for kindness, for charity, for consideration.
“Mr. Padua with the immaturity of youth and inexperience says that if we hang them there will be no more killing. This world has been one long slaughterhouse from the beginning until today, and killing goes on and on and on, and will for ever. Why not read something, why not study something, why not think instead of blindly shouting for death?
“Kill them. Will that prevent other senseless boys or other vicious men or vicious women from killing? No!
“I heard the state’s attorney talk of mothers. I know that any mother might be the mother of a little Paulie Kessler who left his home and went to his school and never came back. I know that any mother might be the mother of Artie Straus, of Judd Steiner. The trouble is that if she is the mother of a Judd Steiner or of an Artie Straus, she has to ask herself the question, ‘How came my children to be what they are? From what ancestry did they get this strain? How far removed was the poison that destroyed their lives? Was I the bearer of the seed that brings them to death?’
“I remember a little poem that gives the soliloquy of a boy about to be hanged, a soliloquy such as these boys might make.” And he quoted Housman:
The night my father got me
His mind was not on me;
He did not plague his fancy
To muse if I should be
The son you see.
The boys were looking down. Judd seemed to brush at his eyes, and two rows behind him his father sat with a strange, tranced pain, his eyes fixed on the back of his son’s head.
The day my mother bore me
She was a fool and glad,
For all the pain I cost her,
That she had borne the lad
That borne she had.
My father and my mother
Out of the light they lie;
The warrant would not find them,
And here, ‘tis only I
Shall hang so high.
O let not man remember
The soul that God forgot,
But fetch the county sheriff
And noose me in a knot,
And I will rot.
And so the game is ended,
That should not have begun.
My father and my mother
They had a likely son,
And I have none.
“No one knows what will be the fate of the child he gets or the child she bears; the fate of the child is the last thing they consider. This weary old world goes on begetting, with birth and with living and with death; and all of it is blind from the beginning to the end. I do not know what it was that made these boys do this mad act, but I do know they did not beget themselves. I know that any one of an infinite number of causes reaching back to the beginning might be working out in these boys’ minds, whom you are asked to hang in malice and in hatred and injustice, because someone in the past has sinned against them.
“I am sorry for the fathers as well as the mothers, for the fathers who give their strength and their lives for educating and protecting and creating a fortune for the boys that they love; for the mothers who go down in the shadow of death for their children, who watch them with tenderness and fondness and longing, and who go down into dishonour and disgrace for the children that they love.
“All of these are helpless. We are all helpless. When you are pitying the father and the mother of poor Paulie Kessler, what about the fathers and mothers of these two unfortunate boys, and the boys themselves, and all the fathers and all the mothers and all the boys and girls who tread a dangerous maze of darkness from birth to death?”
He lifted his head up from his soliloquy. “Do you think you can cure it by hanging these two? Do you think you can cure the hatreds and the maladjustments of the world by hanging them?
“What is my friend’s idea of justice? He says to this court, ‘Give them the same mercy that they gave Paulie Kessler.’
“If the state in which I live is not kinder, more humane, more considerate, more intelligent than the mad act of these two boys, I am sorry that I have lived so long.”
So ended the first session.
In the afternoon, Wilk resumed, speaking of the clumsiness, the ineptitude of the “carefully planned” crime. “Without the slightest motive, moved by nothing except the vague wanderings of children, they rented a machine, and about four o’clock in the afternoon started to find somebody to kill. For nothing.”
Wilk described how they picked up their victim. “… They hit him over the head with a chisel and kill him, and go on, driving past the neighbours that they knew, in the open highway in broad daylight. And still men say that they have a bright intellect, and as Dr. Stauffer puts it, can orient themselves and reason as well as he can.
“If ever any death car went over the same kind of route, driven by sane people, I have never heard of it. The car is driven for twenty miles. The slightest accident – anything would bring destruction. They go through the park, meeting hundreds of machines, in the sight of thousands of eyes, with this dead boy.
“And yet doctors will swear that it is a sane act. They know better.
“You need no experts, you need no X-rays, you need no study of the endocrines. Their conduct shows exactly what it was, and shows that this court has before him two young men who should be examined in a psychopathic hospital and treated kindly and with care…
“We are told that they planned. Well, what does that mean? A maniac plans, an idiot plans, an animal plans; any brain that functions may plan; but their plans were the diseased plans of diseased minds.”
He walked close to the prosecution table, looking quizzically at his opponents. “My friend pictured to you the putting of this dead boy into this culvert – but, Your Honour, I can think of a scene that makes this pale into insignificance.” And gazing then at Judd and Artie, he described, in gruesome detail, the prospective hanging. “I can picture them, wakened in the grey of morning, furnished a suit of clothes by the State, led to the scaffold, their feet tied, black caps drawn over their heads, stood on a trap door, the hangman pressing the spring; I can see them fall through space – and – I can see them stopped by the rope around their necks.
“Wouldn’t it be a glorious day for Chicago? Wouldn’t it be a glorious triumph for the State’s Attorney? Wouldn’t it be a glorious illustration of Christianity and kindness and charity?
“This would surely expiate placing Paulie Kessler in the culvert after he was dead. This would doubtless bring immense satisfaction to some people. It would bring a greater satisfaction because it would be done in the name of justice.
“We hear glib talk of justice. Well, it would make me smile if it did not make me sad. Who knows what it is? Does Mr. Padua know? Does Mr. Horn know? Do I know? Does Your Honour know? Is there a human machinery for finding out? Is there any man who can weigh me and say what I deserve? Can Your Honour? Let us be honest.
“If there is such a thing as justice, it could only be administered by one who knew the inmost thoughts of the men to whom he was meting it out. It means that you must appraise every influence that moves them, the civilization in which they live, and all the society which enters into the making of the child or the man! If Your Honour can do it, you are wise, and with wisdom goes mercy.”
Judd smiled at the gracefulness of it.
“It is not so much mercy either, Your Honour. I can hardly understand myself pleading to a court to visit mercy on two boys by shutting them up in prison for life. Any cry for more roots back to the beasts of the jungle. It is not a part of man. It is not a part of that feeling of mercy and pity and understanding of each other which we believe has been slowly raising man from his low estate.”