CHAPTER XVII.

Jerome Calls Thaw Madman.

PHYSICIANS ASSERT YOUNG MILLIONAIRE TO BE DEMENTED--ANGRY PROTEST BY DELMAS--SENSATIONAL ARGUMENT BY DISTRICT ATTORNEY--BAD FAITH CHARGED TO COUNSEL--LUNACY COMMISSION IS DEMANDED--THAW’S LETTERS USED TO QUESTION HIS SANITY--COURT TAKES QUESTION UNDER ADVISEMENT.

After the reading of the shocking affidavit, District Attorney Jerome swore five of the alienists for the defense, at one time. He sought, through asking them the same hypothetical question put by the defense, to prove that Thaw was insane both at the time of the murder and at the time of the trial.

“I do not believe Harry Thaw was sane at the time he shot Stanford White, nor do I believe he is sane now,” declared Dr. Graeme M. Hammond. “I do not know whether he will ever recover.”

Dr. Smith Ely Jelliffe, professor at Columbia Medical School, swore he was convinced Thaw was crazed at the time of the murder, but that he “had a sort of insane knowledge” of what he was doing.

Dr. Charles W. Pilgrim asserted Thaw “Did not know the nature or the quality of his act on the Madison Square Roof-garden.” Dr. Minas Gregory also swore the prisoner was insane at the time of the crime, and others made the same statement.

This was a startling change of base for the prosecution. Instead of trying to prove the young millionaire was sane both at the time of the tragedy and at the time of the trial, Jerome astounded the legal world by endeavoring to prove him hopelessly insane. The prosecutor had given up all hope of securing a verdict which would make the death-chair the penalty.

Delmas was angry.

“We propose,” he shouted, “honestly to convince you, Mr. Jerome, that Thaw was insane when he shot Stanford White--and sane now--by the very witnesses whom you have subpœnaed and brought into court for the obvious and only conceivable purpose of telling to this jury under oath the truth and the whole truth.”

The jury was ordered to leave during arguments over further testimony of alienists.

In his startling argument after the jury retired Mr. Jerome said:

“I want to explain and make my position clear. As I understand the matter Dr. Hamilton, who was originally called into the case by the defense, is ready to testify that in his opinion this defendant was insane, that he was of unsound mind when he committed the homicide, and that as he sits at the table today he is suffering from a mental disease known as paranoia, a disease in which the sufferer until the last stages of the disease is capable of knowing the nature and quality of his acts.

“I understand that Dr. Hamilton so advised the defendant’s counsel and that his counsel was then changed.

“I am willing to throw open the door wide, and ask to let all these facts come out, but I will not agree to Mr. Delmas confining his questions to these four visits and keep me down to the close limits of evidence and not be allowed to go into the real facts of the case.

“Your honor knows,” continued District Attorney Jerome, “what my position here has been all along. We have no right to be here trying this man if the real facts are known. Your honor knows that I have tried ever since this case opened to bring out these facts and that I have not been able to do so.

“If the real facts as to the mental condition of this defendant can be brought out the court would be shocked and horrified and would stop this trial instanter. So deeply have I been impressed with all this that I have served notice on the attorney of record that when this case is over, if I am convinced they possess the facts that I believe they possess, I will lay the matter before the Appellate division of the Supreme court.

“There is not a man who has seen this defendant sitting there at the table who believes he is capable of advising counsel. We are today trying a man who is insane, while under the law he is sane. He is a paranoiac, and while he is insane he is not insane in the eyes of the law, for strictly speaking he knows the nature and quality of his acts.

“A man named Taylor went to death under exactly similar circumstances. The Appellate court said that he was insane, but he was a paranoiac, and while his act was committed as the result of a delusion, this delusion was not such as would have made his act justifiable had it been true. It was one of the most gruesome acts the law has ever done.

“In five minutes time,” cried the prosecutor, banging his fist on the lawyers’ table, “I can show that this man is incapable of advising his counsel as he sits here in court. I will present facts which will prevent this trial from going further!”

“In view of the statement made by the district attorney,” said Justice Fitzgerald, “I now ask that I be given all the information in the possession of either counsel--all the evidence as to the defendant’s present state of mind which can be presented to the court. I do this before instituting the proceedings I understand have been asked for.”

Mr. Delmas wanted to know if a commission in lunacy was under discussion.

“The court,” replied Justice Fitzgerald, “is asked to hear testimony while the jury is out of the room, and then to determine its course.”

“All of my own experts, Dr. Bingaman, the family physician, and Dr. Deemar, the physician to the Copley family, have informed me,” said District Attorney Jerome, “that this man is suffering from paranoia. This paranoia is characterized by systematized delusions. While suffering from one of these insane delusions this man shot and killed Stanford White.”

“Did your own experts tell you that?” inquired Justice Fitzgerald of District Attorney Jerome.

“They certainly did,” replied Mr. Jerome, “but from the record of the case I was prevented from bringing this out. I was bound down to a hypothetical question, and my witnesses testified only as to the hypothetical question. There is heredity in this man which he cannot avoid.”

Mr. Delmas again arose and inquired if a commission in lunacy had been applied for.

“I so understand it,” said Justice Fitzgerald, “if the court shall so decide.”

“We are prepared to combat that application,” said Mr. Delmas.

“I have made no formal application,” explained Mr. Jerome. “I submit to your honor the fact as he sits there the defendant is incapable of directing his defense. I leave the matter entirely to the court.”

Mr. Delmas declared Mr. Jerome’s charges were entirely unsupported.

“The district attorney’s remarks were made under his oath of office,” said Justice Fitzgerald, with some display of feeling.

“He has appealed to my conscience, and I now demand the production of all the evidence which any of counsel may possess.”

Mr. Delmas said he understood Mr. Jerome to imply unprofessional conduct on the part of the defense in suppressing testimony.

“There was an implication of misconduct,” said Justice Fitzgerald.

“I hear of it today for the first time,” said Mr. Delmas.

Mr. Gleason here asked to be heard in behalf of the defense.

“I desire to say,” said Mr. Gleason, “that when this case began I attempted to introduce evidence on the very point which the district attorney now demands, but it was ruled out on his own objections.”

“I remember,” said Justice Fitzgerald, “ruling out such testimony on the ground that it was in relation to collateral lines.”

“We have made a perfect defense here,” asserted Attorney Gleason, “and it is the duty of this court to submit that defense to the jury-- --”

“This court does not need any instructions as to its duty,” interrupted Justice Fitzgerald. “That is a matter the court can attend to for itself. All I want is all of the information I can get on this subject. The court wants this information, but if I can not get it, I will have to act as I see fit.”

For a moment all the lawyers were talking excitedly at once, and Justice Fitzgerald was forced to rap sharply with his gavel. Finally Mr. Jerome made himself heard.

“The court has asked for all the facts I have in my possession, and I will willingly furnish them. I will give them in the form of an affidavit. I will also furnish the affidavit of Dr. Mabon and Dr. MacDonald, and if his professional privilege is waived I will have an affidavit from Dr. Hamilton.”

“The learned district attorney has just said that this defendant is at this moment so insane as not to be able to instruct his counsel,” broke in Mr. Gleason in an angry tone, “and now he asks that this man whom he has dubbed insane waive a privilege.”

“His attorneys can waive it for him,” said Mr. Jerome.

“The district attorney knows that that cannot be done,” was the reply.

“We will get the other affidavits first,” said Justice Fitzgerald, “and then we will discuss that matter.”

Several other clashes took place, and ended in a formal demand by District Attorney Jerome that a commission in lunacy be appointed to pass on the mental condition of Harry Thaw, that the young prisoner might be sent to a mad-house at once if found insane. Justice Fitzgerald asked time to consider the question, and demanded from both sides the names of all the alienists involved in the case, to guide him in selecting a commission.

Jerome was happy. He made this statement:

“The situation is just what I have been looking for all during the trial. A man who should be incarcerated in an insane asylum should not be on trial for his life.”

The justice held a special session of court, with the jury absent, for the purpose of receiving affidavits from alienists for both sides, to aid him in determining whether or not a commission in lunacy should be appointed. Mr. Jerome called the court’s special attention to the following statements by Dr. Carlos MacDonald:

“After careful examination of the exhibits and the hypothetical question and the testimony and affidavits of Mr. Cobb and assuming evidence stated in the case to be true, my personal observation, in court during the trial and also including certain observations that I made of the defendant in the library of the district attorney’s office on the 27th day of June, 1906, I am of the opinion that the defendant is now and for some time past has been suffering from a form of mental disease commonly known among men skilled in mental diseases as paranoia. Yet it is my opinion, based upon what has just been enumerated, that when the defendant killed Stanford White on the 25th day of June, 1906, he was then suffering from said mental disease commonly known as paranoia, but that his then mental state was such that he knew the nature and quality of the act that he was doing ... and that he then and there knew such act on his part was against the current morality of the people of this state and in violation of law.

“I am of the opinion, upon the facts above enumerated, that the mental disease commonly known as paranoia, from which the defendant was suffering on the night of June 25, 1906, is a form of mental disease from which it is reasonably certain he will not recover, and that the discharge of the said Harry K. Thaw would be dangerous to public peace and safety, and that he should be committed to an institution for the insane.”

In arguing to secure the investigation of Thaw’s mental state, Mr. Jerome said:

“As long as forty days ago, Dr. Austin Flint, one of the state’s alienists, came to me in my office and told me that after watching Thaw in court every day of the trial he was solemnly of the opinion that the defendant was not capable of instructing his counsel. I was much concerned, and with my assistant and Drs. MacDonald and Mabon held a long conference. I then called in other alienists, and after submitting to them all the evidence I had in my possession they joined with the others in declaring Thaw a paranoiac.

“I am convinced Harry Thaw should be tried for his life.”

To strengthen his argument, the prosecutor gave Justice Fitzgerald several letters written by Thaw to J. Dennison Lyon, his Pittsburg banker. Some were written before the tragedy and some while Thaw was in the Tombs, but all, Jerome asserted, went to show Thaw was insane. One of these letters, written from the Republican Club, was as follows:

“Dear Denny--I’m sorry that the manager of Miss N’s (Evelyn Nesbit) hotel is an idiot. She stopped one night at a place called the Cumberland, but was disturbed by street noises. No one was moved, and all meals were served. Now she has a better place, with a nice woman--Mrs. Kane (Caine), a friend of her family.

“I never saw this Sweat, nor spoke nor wrote to him. You know of her misfortunes.

“Mr. Holman married her mother three years too late. He is trying to keep her quiet, and must do so. Should the facts come out, no one but would believe she sold the child to the most notorious dastard in New York. Everything proves it.

“I, and a few other persons, know she did not mean wrong, but since infancy she was jealous of and disliked the child, and was gulled to an unbelievable extent by this blackguard and -- -- --”

Some rambling letters about transactions in stocks followed this, and then came these letters:

“Dear Denny--I’m sorry to trouble you, but I don’t understand. I was overdrawn $10,063.36. Paid in $8,982.70. (6370). (?) Did you make a note for $10,000--leaving my balance near $9,000 or make a note for $1,130.85, leaving no balance?

“I lost almost nothing at M. C. playing. Just $1,400 for four weeks--a good deal less than the percentage. I bought some pearls and a strong automobile.”

This letter was written after the trial started:

“Dear Denny--The package arrived safely, but I can’t send them the slip for 11 (eleven) days, as we thought it best to leave bundle sealed in Gleason’s desk until he returns. He worked exceedingly hard circumventing the crooked deal between Jerome’s first assistant and that judge--and will combine rest with affairs. Friday he starts for Mexico with -- --. If needed a telegram will always catch him, then he could be back in two days--if we see a chance for an early trial before any other judge--but we believe it will be first week January.

“All very well. Yours very sinc’ly,

“H. K. THAW.

“P. S.--I hope these blackmailers try you again.”

The following peculiar letter no one in court could understand:

“Dear Denny--or Frank: Please try to remember who was -- --. It is said a relative of his is on my jury. If he is friendly or neutral only write me a brief answer, but if he had any trouble with you or I or is unfriendly please telegraph, ‘The iron is,’ eh? I will know what you mean. I hope he is all right, we can leave jury as it is. Of course, this is very secret.

“All well. Y in haste.

H. K. THAW.”

The defense presented evidence equally strong, and Justice Fitzgerald plainly was in a quandary.