Trials of Passion (47 page)

One other aspect of Evelyn's testimony had the women reporters split in their estimation of her. On the sixth day of her brave open testimony concerning her sexual life, DA Jerome once more set out to cast her as more sinning than sinned against. This time he used her schooldays diary to illustrate that she was not quite the home-loving would-be wife that her testimony might have been intended to evoke. At sixteen, commenting on her mates, she had written:

A girl who has always been good and never had a word of scandal breathed about her is fortunate in more ways than one. These girls are all just that kind. They have been kept from the world all their lives and know very little of the mean side of it. And then, on the other hand, there is not one of them who will ever be ‘anything'. And by ‘anything' I mean just that. They will perhaps be good wives and mothers and die good wives and mothers. Most people would say, What could be better? But whether it is ambition or foolishness, I want to be a good actress first.

All the papers reported, or printed verbatim, this moment in Evelyn's testimony. She had been unflinching in her response to questions about waking in Stanford White's tower after the rape, to insinuations that her ‘appendicitis' might well have been an abortion or to inquisitorial probing about Thaw's whipping attack and rape – but this extract from her diary, it was said, was the one moment that brought a blush to her pale cheeks. Evelyn had been outed as a woman who harboured desires, evidently perverse for the time, to be more than a domestic appendage, a good little wife. Perhaps she was also flushed through worry that the court, in the light of her wishing to be an actress, might take her entire testimony as a performance.

But the women journalists didn't uniformly attack her teenage revelations. Hard-headed Greeley-Smith defended this schoolgirl's diary: Though Mr Jerome read the slangy passages of this interesting human document with as insinuating an emphasis as his varied voice could summon, the worst interpretation that Mrs Thaw's worst enemy could place upon it is that at sixteen her view of life was, as the New York vernacular phrases it, “hip”.' To wish to have a working life carried no shame, this commentator thought: indeed, she herself would be wooed back into journalism after her marriage.

40.
Expert Fall-out

Harry Kendall Thaw languished in jail for nine long months before his second trial began. During that time his affection for his wife, the newspapers reported, dimmed, and he took up the study of Christian Science. Meanwhile his lauded sister, the Countess of Yarmouth – whom Harry had held up to Evelyn as a counter-example to Stanford White's claim that all people really behaved badly in secret - was divorcing her husband on grounds of non-consummation of their marriage. Evelyn's relations with her in-laws grew no better, but as the second trial approached, they knew they had to rely on her once more for her testimony.

Principal players apart, it was the expert witnesses who seemed most appalled by the progress of the first trial. They were calling for reform. Writing in
The American Lawyer,
which devoted its July 1907 issue to articles on the ‘fiasco of the recent Thaw trial', Hamilton reiterated his belief that Thaw was permanently insane. He attacked his fellow alienists for supporting the defence of temporary insanity. They had sold out to the highest bidder in what he described as ‘the present prostitution of scientific testimony'. He and several other experts now voiced their opinion that impartial experts should be appointed by the court to examine defendants in a hospital setting.

Others objected to the form of the all-inclusive, multifaceted hypothetical questions that lawyers put to experts, demanding at their long-delayed end a yes or no response about the defendant's sanity. A human life could hang on this single response, which might include one or two hypotheses with which the expert simply could not agree. Looking back at the trial, though not naming it, at the sixty-fifth annual meeting of the American Medico-Psychological Association in June 1909, the defence's star expert witness, Britton D. Evans, objected
to the hypotheticals, which grouped too many unknowns together and forced the witness to accept them all as facts:

In a somewhat celebrated murder trial in which I appeared as one of the expert witnesses, a hypothetical question was so framed as to lead a casual observer to believe that it embodied all the essential facts which had been presented upon the witness stand, but in one part of it it had this phrase: ‘and assume that this time he was suffering from a disorder of the mind'. Now whatever might have constituted the other parts of this lengthy question, since a ‘disorder of the mind' is used to indicate mental unsoundness, mental derangement and insanity, it is clear that the witness, by the insertion of this one assumption, was left no choice as to a conclusion and was denied the right of discrimination and the opportunity of weighing the other parts of the question.

Evans was also aiming at the critics who wanted all experts to agree. New forms of selecting expert witnesses, perhaps by official boards, were being mooted; but these, Evans argued, would be selected by people who themselves might disagree with each other. If selected for life and thus responsible to no one, the experts could still find reasons to differ. In addition, there were other real difficulties in making the principles of medicine meet the requirements of the law.

The law too often ended up disarranging and misusing ‘legitimate and reliable scientific findings in order that they may be made to meet the demands of established legal precedents or harmonize with court rulings, many of which are relics of antiquity'. The relationship of medicine to law may have begun in England at the Suffolk witch trials of 1665, when the natural philosopher and doctor, Sir Thomas Browne, had examined the accused. But medical science had grown in expertise since then. It was progressive. Evans went on:

It does not depend on the dogma and theories of the middle ages; it does not even hang on the theories of the last decade, but accepts
that which is proven to be the soundest and best after it has been subjected to scientific scrutiny and careful analysis. In medicine no great authority of the past is allowed to retard the investigations and progress of today or to interfere with the steady strides which were made through scientific medical research in the interests of humanity.

For all the criticism, Evans underlined, the court needed its experts: and it couldn't expect them ever and always to agree. After all, judges at the Supreme Court didn't always agree either.

William A. White had already suggested in his article ‘Expert Testimony and the Alienist' in the
New York Medical Journal
of 25 July 1908 that professional jealousy was hardly unknown, even amongst doctors. The specialist who hadn't been called to give his expertise to a court and consequently had not received ‘large fees... can well afford to decry the lack of morals in his more fortunate brother'. Using his own psychoanalytic expertise, White had termed this a ‘defence reaction' which allowed the unsummoned professional to ‘spare himself the discomfort that comes from emotions that find no means of outlet'. A less technical way of putting it was to say they were venting their spleen. Too often they had no understanding of the way the criminal law worked, and that what they proposed would mean its radical overhaul.

Evans, in his lecture, went on to re-emphasize that in all expert fields there are differences of opinion. In court, however, witnesses were badgered ‘by pugnacious and aggressive lawyers' and sometimes had to react either combatively or submissively. If the latter, jury and public thought them ill-equipped and incompetent, not qualified to testify in the capacity of expert. Humiliation followed. If, on the other hand, the witness stood firm in his convictions and refused to be forced into a false position, he would then be criticized for arrogant lecturing, for behaving like an advocate or showing bias. Evans's recommendation was that experts needed to put their opinions in plain English, back them up, and be fearless of criticism or of the aggressive attacks of examining counsel.

In the discussion that followed the lecture, a Dr Stedman recommended that a court-appointed expert would be the surest means to ‘secure unbiased expert opinion'. The employment of such an officer of the court would not preclude the hiring of further expertise by defence or prosecution, but for the jury the opinion of the court expert, since it was disinterested, would necessarily carry greater weight. A law in favour of the appointment of such experts had thus far failed to be passed, even though it would uphold the dignity of the medical profession. Germany had such appointees, and as a result their doctors were not held up to ridicule and cases were quickly settled. There, in difficult cases the accused would be sent to a hospital for some months for pre-trial observation.

Most telling of all the comments at this annual meeting was the criticism Britton Evans himself received. The specialists did not approve of his having coined a ‘classification' on the witness stand, particularly one that had caught the attention of the media. Classifications had to be agreed upon by the learned society as a whole. As if they had arrived some hundred years early for a meeting of a
Diagnostic and Statistical Manual of Mental Disorders
task force, the good doctors scorned Evans's colourful notion of a ‘brain storm' as a diagnostic category.

Although indignant about the publicly reported and undignified ‘battle of the experts', the professionals were not averse to doing battle with each other. Nor, in time-honoured fashion, did they mind taking the more prominent physicians down a peg or two. Evans's reputation suffered, while White and Hamilton were bitter until the end about the humiliation the trial had brought. And on top of this professional malaise, all the experts claimed that the Thaw family had failed to pay them the agreed fees. Evelyn was to fare no better at the hands of the millionaires, insane or not.

41.
The Second Trial of Harry K. Thaw

Thaw's second trial began on 6 January 1908. Though still much reported, it didn't consistently make the front pages – except when it was Evelyn's turn to come to the witness stand. It may have been the same navy-blue schoolgirl outfit she was wearing, but Evelyn, according to one reporter, appeared at the opening day of the trial like ‘a new radiant self instead of the wan, pinched girl of the first trial'. Perhaps it was the lavish hat that made the difference: a vast black velvet topped with a lavender rose amidst a cluster of violets and draped with a newly fashionable motoring veil. Though the radiance may equally have been the effect of life at the Waldorf, her current address, and six months without Harry. As for Harry, in his place in the dock, he was both quieter and grimmer.

As before, some six hundred prospective jurors were summoned in order to find twelve good men and true. But this time, instead of Napoleonic Delmas at the helm of the defence team, the lead was Martin W. Littleton, a witty and agile attorney who, with the Thaw family's backing, would argue for a simple insanity verdict. There would be no attempt to argue temporary insanity or appeal to the unwritten law.

In his opening speech, Littleton stated that the defendant ‘would make the simple claim that at the time he killed Stanford White he was insane'. This was effectively what Thaw's first and fired advocates had urged. Littleton had had prior discussions with District Attorney Jerome, and though the prosecution argued that Thaw's murder of White had been a premeditated act, the trial moved on far more quickly than its predecessor. Expert witnesses were limited by the judge, Justice Victor J. Dowling, to three on each side.

Littleton called his first expert witness on the second day. He was
going down the well beaten path of inherited insanity. Dr Robert H. Chase of the Friends' Asylum in Frankford, Pennsylvania, testified to the mental incompetence of a cousin of Harry's father. She had been an inmate at the institution. Next came a nurse, Amy Gosette, who had attended Harry for three weeks under the auspices of one Dr Price Mitchell in 1897 in Monte Carlo, while she was working there. Jerome, being his usual argumentative self, objected to the violation of personal medical material without prior permission. A seemingly confused Harry was asked to waive confidentiality privileges. He eventually murmured the only words that would leave his lips during the trial, ‘I do.' Nurse Gosette proceeded to describe how Harry, who was running a high temperature while under her care, had behaved in an entirely irrational manner, ‘was very unsettled in his actions and direction of thought'. Against the doctor's orders not to leave his room, a wild-eyed, twitching Thaw had gone out, only to return to finish a quantity of letters that he then destroyed.

Witnesses, including a schoolteacher who remembered him for his ‘backwardness', then all attested to Harry's incoherence of speech, his running-together of words, going off on wild tangents, failing to do the simplest things, and his crazy eyes. There were testimonies about relatives who had spent their lives in asylums, and the statement of the steward from Manhattan's Whist Club where Thaw came periodically, sometimes staying in the club rooms. He had been there on the day before the murder and on the actual day, and talked of Thaw's irrational speech and actions, his twitching and nervousness. A hotel switchboard operator stated that Thaw had made an outlandish seventy-five telephone calls in three or four hours. A second schoolteacher talked of his impulsive behaviour, his ‘animal-like howls and his tearless crying. His eyes were wide and rolling.'

Harry's mind was patently unsettled, a view with which his mother in a letter to Harry's former teacher Abram Beck concurred. ‘His mind is more or less unbalanced,' she wrote, adding that he ‘ought to have been more closely reared and trained'.

Mrs William Thaw now rose from her sickbed and travelled from
Pittsburgh to take the stand. She was feverish and feeble, and her testimony was rather different from that given at the first trial. She spoke of how her ‘nervous system' had suffered after the death of her first child and how she had been an invalid until six months before Harry was born. Though he seemed normally healthy at first, a congestion of the lungs at three months induced nervous problems and sleeplessness. He also screamed, was frail, had fits and what was diagnosed as St Vitus' Dance. Other members of the family were ‘weak-minded', nervous or epileptic and had spent time in asylums.