CHAPTER XVIII.

Lunacy Commission is Appointed.

EVELYN THAW CARRIES TRYING INFORMATION TO HER HUSBAND--ACCUSED ISSUES STATEMENT--PERSONNEL OF THE COMMISSION--JEROME BALKS--REMARKABLE INQUIRY IS RUSHED--THAW SUBMITS TO EXAMINATION--HOW THE YOUNG DEFENDANT PASSED EASTER.

To the surprise of every one connected with the case, Justice Fitzgerald on March 26, suddenly called District Attorney Jerome and the lawyers for the defense into a conference and announced his decision to appoint a commission to pass upon the sanity or insanity of Harry Thaw.

Upon the verdict of the three disinterested men whom he selected was to depend whether Thaw would ever face the jury again, or go directly to the Matteawan asylum.

The decision was embodied in a written memorandum, prepared for the minutes of the court. The court based his decision on the conflict of affidavits as presented by the opposing sides, saying they were too diametrically at odds to permit of a decision other than in favor of an impartial inquiry. After citing the suggestion made in court by District Attorney Jerome and the various affidavits presented on both sides, Justice Fitzgerald’s memorandum reads:

“I do, therefore, in pursuance of the statute in such cases made and provided, hereby appoint Morgan J. O’Brien, Peter B. Olney and Leopold Putzel, M. D., three disinterested persons, a commission forthwith to examine into the mental condition of said Harry K. Thaw, and to report to the court with all convenient speed the facts and their opinion as to whether at the time of such examination the said Harry K. Thaw was in such a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of rightly understanding his own condition, the nature of the charges against him, and of conducting his defense in a rational manner.”

The task of announcing the decision of the court to Thaw was allotted to his wife, who tearfully accepted it. Messrs. Hartridge and O’Reilly went with Mrs. Evelyn Thaw to the Tombs and there in the hospital ward they met the prisoner. This ward had been placed at their disposal because of the crowd in the usual consultation room. Thaw was cheerful.

“It is all right, dearie,” he said to his wife, “I am not afraid of a commission. I am a sane man now; just as sane as the judge himself, and I am sure that any fair-minded commission will so declare me.”

The attorneys quickly withdrew from the conference and Thaw and his wife sat for a long time together discussing what the commission probably would do. When Mr. Hartridge came out he declared:

“The fortitude of the boy [meaning Thaw] astonishes me sometimes, and it certainly did today.”

Later in the afternoon Thaw sent out a statement, in which he said:

“Everything is perfectly satisfactory to me. I am sure I will be able to satisfy the commission that I am sane at the present time. Anything Justice Fitzgerald does is all right. He has always acted in a fair and impartial manner.”

The brothers of the defendant did not go to the Tombs, but hurried uptown with the news of the commission to their mother and sisters, who were waiting in their apartments. Thaw had divined the result of the conference with Justice Fitzgerald and was not in the least surprised.

The personnel of the commission lent a new distinction to the already notable case.

Morgan J. O’Brien, a former justice of the Appellate division of the Supreme Court, was one of the trustees, with Grover Cleveland, of the Hyde stock in the Equitable Life Assurance Society purchased by Thomas F. Ryan just prior to the insurance investigation. When he was a candidate for re-election to the bench in 1901 as a Democrat, Justice O’Brien was unopposed. President Roosevelt made a trip from Washington to Oyster Bay to cast his ballot for him.

Peter B. Olney, formerly district attorney of New York county, was a member with William C. Whitney of the commission appointed in 1879 to revise the laws of the state affecting public interests in New York city. He was a graduate of Harvard.

Dr. Leopold Putzel, the third member of the commission, was a graduate of Bellevue Hospital Medical School and had a long experience in that institution. He qualified before the State Medical Board as examiner in lunacy.

A surprise was ahead, however, for former Justice O’Brien declined to serve as a member of the board, after he had been sworn in. He gave ill-health as a reason. Attorney David McClure, a well-known reform worker in New York, was appointed to fill the vacancy.

When the commission was finally in court together Harry Thaw was brought in and found all the members of his family awaiting him. He looked exceedingly well, and smiled a greeting to his wife, mother, sisters and brothers.

The commission began its hearings at once. At the end of the session, which was held behind closed doors, Attorney Peabody for Thaw announced:

“We are perfectly satisfied.”

Hardly had the commission seated themselves when Thaw appeared. He was directed to a chair within the inner counsel rail and sat directly beneath the eyes of the men whose decision as to his mental capacity was of such vital import to him.

Thaw appeared to be in excellent spirits and sat unflinchingly under the steady gaze they turned upon him. In the big courtroom there were only the newspaper reporters and three of the prisoner’s family--his wife, Evelyn Nesbit Thaw, who has never missed an opportunity to be near him since he was placed on trial; and his two brothers, Edward and Josiah Thaw. Mrs. Thaw sat between the brothers.

After the session had formally been opened by the reading of the court’s order, Clifford W. Hartridge, acting as counsel of record for Thaw, arose and stated to the commission that his client was ready at any time to submit to such examination as the commission desired. His only request was that the hearing should be private.

“Being a prisoner on trial for his life,” said Mr. Hartridge, “he feels he should be protected as far as possible in this matter.”

Chairman McClure then announced that whatever examination of Thaw the commission might decide upon would be held behind closed doors.

District Attorney Jerome protested. He remarked that if the commissioners resolved themselves into a body of medical examiners and undertook a physical examination of the defendant in private, he would not attend such an examination.

“But the law requires you to attend the session of the commission,” suggested Chairman McClure.

“I shall attend all sessions of the commission sitting as judges in lunacy,” replied Mr. Jerome, “but I am not required to attend a board of medical examiners.”

Chairman McClure then said the inquiry the commission had in mind was a simple one--to determine whether at this time the defendant is capable of understanding the proceedings against him and of rationally advising his counsel. The commission desires to limit the scope of inquiry as far as possible. The court, he said, wished the inquiry to be brief in order that the pending trial might be disposed of at the earliest possible moment. The commission had decided not to take into consideration the conflicting affidavits submitted to Justice Fitzgerald by Thaw’s counsel and the opposing alienists, as they were considered as having been prepared solely for the information of the court.

The first two days of the hearing were taken up with a mental and physical examination of Thaw. He was asked scores of questions, but the nature of these never was made public.

While the investigation was in progress Easter came, and on that Sunday afternoon Thaw had a two hours’ conference with his wife in the Tombs prison. The visit by Evelyn Nesbit Thaw was unusual. Never before had she called on her husband on Sunday. To do so it was necessary for her to obtain from Commissioner of Corrections John V. Coggey a special permit. Mr. Coggey granted it when Mrs. Thaw explained that she had been unable to see much of her husband during the week and that she wanted to be with him some time on Easter Sunday. Commissioner Coggey went to the Tombs himself and remained there during the time that Mrs. Thaw was there.

Before leaving the Tombs Mrs. Thaw said there was no significance attached to her visit. She said she merely wanted to visit her husband on Easter.

“Harry is cheerful and feels confident the commission will decide in his favor,” she said.

Mrs. Thaw looked exceptionally pretty. She was dressed in a plain brown tailor-made suit. She wore a flat, round hat of black straw, such as women wear in riding costume. Her veil was white and heavy. She looked just a little pale, and her expression was sad, but she said she felt quite well. The trip to and from the Tombs was made in the electric hansom that Mrs. William Thaw, mother of the prisoner, uses in going to and from the courthouse.

Thaw deviated from his usual custom and attended special Protestant Easter services conducted in the Tombs chapel by the Rev. Mr. Sanderson. A special choir and orchestra was engaged for the service. Thaw seemed to enjoy the music and the remarks of the minister.