Clarence Darrow: Attorney for the Damned (60 page)

When he was finished with the bereaved parents, Crowe summoned an army of detectives, doctors, tradesmen, maids, and other witnesses—thirty-three on the second day alone. A metal filing cabinet was carted into the courtroom, to contain all the evidence. Darrow decried the spectacle and, in all but a few cases, declined to cross-examine the state’s witnesses. He did choose to grill the sixty-eighth person Crowe called to the stand—a police detective who claimed to have heard Leopold’s boast about a friendly judge.

Darrow wheeled in his seat and demanded of Leopold: “Did you say that, Babe?”

“Hell no!” Leopold told him.

Darrow rose, swung his chair around, and leaned upon it. He pressed the detective for witnesses, notes, or other supporting evidence. Leopold could, by now, recognize when Darrow was shifting from “leonine” into “tiger” mode. When the copper hedged, Darrow pounced.

“Who was with you?”

“Nobody but he and I,” the detective acknowledged.

“Did you make any memoranda on it?”

“Not at that time …”

“Mr. Officer,” he said. “Don’t you know that this story of yours in reference to a ‘friendly judge’ is a pure fabrication made for the purpose of intimidating this court?”
¹⁰

O
N THE MORNING
of Monday, July 28, the
Herald Examiner
offered, with a banner front-page headline, the
INSIDE STORY OF LOEB AND LEOPOLD; FIRST FULL REPORT OF ALIENISTS
. The newspaper devoted six pages
to a summary and excerpts of an eighty-thousand-word report prepared by Drs.
Karl Bowman and
H. S. Hulbert on the mental condition of the two defendants.

Most Americans, by 1924, were familiar with the plea of insanity—and generally willing to spare the life of a crazed wretch who, babbling or hallucinating, was found with a bloody instrument in hand. Many were fascinated by the theories of Freud, Jung, and other pathfinders of psychiatry. The themes that the trial explored—childhood and adolescence, juvenile delinquency, sexual identity, and the nature of evil—would be lasting preoccupations in twentieth-century America. Darrow released the report—and another by psychiatrist
William Healy—so all the papers had the story.

As a boy, Nathan Leopold had been sexually abused by an ignorant and dominating nanny described by the doctors as “insane” and “oversexual in unusual ways.” With a variety of threats and prurient inducements, she kept Babe from his family and friends, and taught him to lie and steal. Nathan’s intellectual ability far outpaced his physical development, and at school he was scorned by his classmates as “Crazy Bird” or “Flea.” He repressed the homosexual urges that stirred in puberty and, in doing so, crushed most other feelings in the process.

“While yet a child he began to strive to be the cold-blooded egocentric intellectualist, turning gradually … to a deliberate overthrowing and eliminating of God, conscience, sympathy, social responsibility and loyalty as being thoroughly unnecessary to him and unworthy of him,” the psychiatrists wrote. The result was a pitiably soulless individual. “The split between the intellectual process and the emotional process is very striking.” It was an “essential feature” of dementia praecox or, as it was now being called, schizophrenia.

Nathan’s love for Richard Loeb was the one emotion he could not suppress. In fantasies, Leopold saw himself as a strong and handsome slave, willing to fight and die for a masterful king. In Loeb he found that master—a superior intellect like himself, but with the physical gifts that Nathan lacked. “It was a blind hero worship,” Leopold told the doctors, and he wrote, many years later, that “my motive, so far as I can be said to have had one, was to please Dick.” But the relationship was not all one-sided. In a crisis, the powerful slave could “take the reins,” the experts said. And in some of his fantasies Nathan was a rapist.

Richard Loeb also had a “split personality,” in which his intellectual capacity far exceeded his emotional maturity, which remained at the level of a child. He too had been coddled by an “insane” nanny—a “particularly repressive and jealous governess” who had “peculiar” ideas about sex and a “paranoid” fear of men, and so repressed her sexual urges. She coveted Dickie’s love and, as he moved through puberty, kept him away from girlfriends and other boys his age. He had entered college at the age of fourteen before learning about sex.

To escape his nanny’s strictures, Loeb became an accomplished liar, cheat, and petty thief. In his fantasies, he was a criminal mastermind, often beaten and imprisoned, but able to outwit his captors. He was obsessed with criminal behavior, stalking strangers and enlisting Nathan in acts of vandalism, auto theft, arson, and burglary. After killing Bobby Franks, Loeb had infiltrated the ranks of young reporters who were covering the crime and led them to scoops. Loeb was troubled at how his life had developed; unlike his friend, he contemplated suicide. But when asked if he could kill again, Loeb said yes. There was “nothing inside me” to prevent it, he told the doctors.

“There wasn’t a sunnier, pleasanter, more likable fellow in the world,” Leopold said. “His charm was magnetic—maybe mesmeric is the better word … But then there was that other side to him … He wasn’t immoral; he was just plain amoral—unmoral. Right and wrong didn’t exist. He’d do anything—anything.”

It was after a nighttime burglary of a University of Michigan fraternity house in the fall of 1923 that the pair reached a compact to commit the perfect crime. Sexually, Loeb seemed indifferent to Leopold. He thought Babe a bother and a bad influence, and once contemplated killing him. But Dickie needed Nathan as “an audience,” and agreed to continue their lovemaking if Leopold would join him in criminal activities. Just as he had when his nanny had enticed him to climb on her back and put his penis between her legs, Nathan felt an overwhelming thrill when performing that act with Loeb. Dickie would feign drunkenness, and Babe would furiously pretend to rape him. And so they negotiated. In return for being Dickie’s accomplice, Babe could have sex a certain number of times, or after each criminal deed.

“Each boy felt inadequate to carry out the life he most desired unless he had someone else in his life to complement him, to complete him,”
Hulbert declared. “The psychiatric cause for this is not to be found in either boy alone, but in the interplay or interweaving of their two personalities.”
¹¹

R
OBERT
C
ROWE WAS
not about to let exculpatory material into the record without a fight. When Darrow called
Dr. William White, a prominent psychiatrist, to the stand, Crowe rose to object, demanding that Caverly halt the proceedings.

“What is the defense trying to do here?” Crowe asked. “Are they attempting to avoid a trial upon a plea of not guilty with the defendants before twelve men that would hang them, and trying to produce a situation where they can get a trial before one man that they think won’t hang them?”

It was a rhetorical question. Everyone in Chicago knew that this was exactly what Darrow was trying to do.

“There are not degrees … in responsibility,” Crowe argued.

Darrow’s entire case rested on Caverly’s ruling, and he showed great restraint in not joining the debate. Crowe was trying to bully Caverly, and Darrow, who believed that the outcomes of trials rested on such elemental factors as likability, let the prosecutor continue, trusting that Crowe would antagonize the judge. It was only after Caverly asked for legal briefs and argument the next day that Darrow responded with an hourlong address.

“I understand,” he began, leaning upon the bar in his wrinkled seersucker suit, that “the position of the State’s attorney is that the universe will crumble unless these two boys are hanged.…

“I must say that I have never before seen the same passion and enthusiasm for a death penalty,” he said.

“If I thought that hanging them would prevent any further murders I would probably be in favor of doing it,” Darrow said. “But I have no such feeling. I know the world will go on about the same in the future as it has in the past.”

It was all about precedent. “The defense in this case has met these issues perfectly squarely,” Darrow said, raising his voice and jutting out his jaw. “We have not invoked any harsh and strained laws to save the lives of these defendants, and we protest against any such rules of law being invoked to kill them.”

Caverly listened thoughtfully, tapping his teeth with a pencil. “A man may be wholly, or nearly wholly, defective, and still it doesn’t come under the definition of legal insanity,” Darrow said. “There are many conditions and diseases that come far short.” He was swaying back and forth now, like a grizzly on its hind legs.

There was precedent, Darrow said, and he cited his own defense of the crazy
Russell Pethick, the grocery boy who had slaughtered a young mother and her toddler son. As in the Pethick case, the condition of Babe and Dickie was such “that we did not wish to go before a jury with the full defense of insanity … but it was such as we believed would appeal to any court as a ground for clemency and mercy in the case of these two unfortunate lads.”

Yes, he had called them “unfortunate lads.” No doubt he believed it. His speech led the papers the next morning, and the uncritical coverage was a signal to Caverly that a merciful verdict might not be met with public execration.

In a salute befitting the Windy City, a reporter for the
Herald Examiner
declared that Darrow had shown himself as “the greatest figure in the greatest moment of the greatest drama of life and death in the history of American jurisprudence.…

“Darrow, of counsel for the defense. Darrow, greatest criminal lawyer in America. Darrow going into action,” the newspaper gushed. “Hamlet has his epitaph: ‘He was a man; take him for all in all, I shall not look upon his like again.’ ”
¹²
The judge overruled Crowe’s objection and let the trial proceed on Darrow’s terms.

White and the other experts took the stand to state their conclusions and answer questions about the content of the psychiatric reports. The study of hormones and glands and their effect on human behavior was in its infancy, but Darrow was fascinated by the notion that the release of natural chemicals made the human machine run in certain ways. And so more doctors were summoned to describe the abnormalities of Leopold’s pineal gland and Loeb’s slow metabolism.

The world was paying attention, even if it was difficult to decide just what, in the scattershot testimony of the experts, the defense was trying to say. “Mr. Clarence Darrow may be said to have opened a new chapter in the criminal courts,” the editors of Great Britain’s
New Statesman
wrote. “His witnesses went all out in the direction of the new psychiatry:
Freud, Behaviorism, endocrine glands, split personality,
folie à deux
, basal metabolism and the rest of it—every theory and term that, during these eventful years of psychological enterprise, has been heard in the babel of the schools. Much of it, perhaps the greater part, was pretentious or merely grotesque; but not a little was very interesting, and part of it undeniably significant.”

Crowe countered with his own experts, who declared the boys sane. But under Darrow’s persistent cross-examination, they acknowledged that they had been rushed and were working in far from ideal conditions when they examined the defendants for just three hours in a chaotic session on Memorial Day weekend. In some cases, Darrow read from textbooks they had authored, in which they wrote how controlled clinical conditions were essential elements of a competent observation. At one point Darrow accused Dr.
Archibald Church—whom he knew quite well, and had worked with since the Prendergast trial—of conspiring with Crowe to hang the boys. “You know better than that,” the doctor told him, shaking his finger at Darrow, who, chastened, withdrew the question. But he did get Church to admit that there were more than a dozen detectives, prosecutors, and others in the state’s attorney’s office when the doctors observed the youths.

“Too many,” Church admitted, “for an ideal consultation.”

“Did you ask any questions to find out evidence of mental disease?”

“No,” Church conceded.
¹³

T
HE CLOSING ARGUMENTS
began on August 19, when two of Crowe’s assistants recited the details of the crime with such savagery that
Jacob Franks fled the courtroom and Nathan Leopold shuddered with tears. Word spread that Darrow was to begin speaking on the afternoon of Friday, August 22. Two thousand men and women showed up at the courthouse in what the
Herald Examiner
described as a “maelstrom of rioters who trampled upon each other, clawed at the police and deputies, tore each other’s clothing, cursed and, for a critical half hour, threatened wholesale bloodshed.” Caverly needed the help of three bailiffs, who formed a wedge, to get into his courtroom. The howling from the corridor was so persistent that Darrow threw up his hands and suspended his remarks while more police were called to clear the halls.

Darrow spoke to three distinct audiences. The most important, of course, was Caverly. Here he was direct, using statistics to build the weight of precedent. “I told your Honor in the beginning that never had there been a case in Chicago where on a plea of guilty, a boy under twenty-one had been sentenced to death,” Darrow said, waving a solemn finger. “If these boys hang, you must do it … It must be by your deliberate, cool, premeditated act.”

Indeed, “in the last ten years 350 people have been indicted for murder in the city of Chicago and have pled guilty,” he said, and “only one has been hanged.”
¹⁴

Arms folded, Darrow looked up at the judge.

“Your Honor will never thank me for unloading this responsibility upon you, but you know that I would have been untrue to my clients if I had not concluded to take this chance before a court, instead of submitting it to a poisoned jury,” Darrow said. “I did it knowing that it would be an unheard-of thing for any court, no matter who, to sentence these boys to death.”