Trials of Passion

by Lisa Appignanesi

  The chief prosecutor, District Attorney William Travers Jerome, was a man who bore a passing resemblance to Theodore Roosevelt. He came from the same social class and had a similar zeal for political reform. He worked to free Manhattan of police and political corruption and had no time for those who wanted to buy justice. He was also a man of great verbal skill and wit, a determined cross-examiner, and didn’t suffer fools gladly. But fighting the Thaw millions and the press love affair with the trial’s principals would not prove easy.

  It was Jerome’s assistant DA Garvey who, the jury having at last been selected, on 4 February opened the proceedings for the prosecution. The shooting of White by Harry Thaw ‘was a cool, deliberate, malicious, premeditated murder, and we shall ask for a verdict of murder in the first degree,’ he stated.

  Witnesses to the murder in the Garden followed. After lunch, it was the defence’s turn. Everyone had been waiting to hear Delmas, but instead John B. Gleason led the proceedings. A practised lawyer in civil fields, this was his first criminal case, and he rambled on mercilessly, stating that the defence would prove that Harry was insane when he killed White, and ‘not accountable for his actions’: his client was acting ‘under the delusion that it was an act of Providence; that he was the agent of Providence to kill Stanford White’. At the time he didn’t consider the murder wrong: he acted ‘without malice and without premeditation and in the belief of self-defence, induced by the threats of Mr White to kill the defendant’.

  Whether Gleason thought there was actual ‘provocation’, or merely Harry’s delusion of provocation, isn’t altogether clear. But the main thrust of his opening argument was that Thaw had a ‘psychopathic temperament... a temperament liable to a mind diseased’, the result of ‘his insane heredity’. ‘It was an act justfiable in itself, yet nevertheless performed by a man who had no control over himself or his acts at the time.’ Robert Louis Stevenson, Shakespeare and Goethe came to Gleason’s aid in his attempt to convince the jury that ‘upon the evidence it will be impossible for you ... to say that this man at the time he shot Stanford White was sane beyond a reasonable doubt’. ‘It is a maxim of Roman law that a madman’s punishment is his own misery. It is a rule of the common law that the intent of the party is a part of the alleged crime,’ Gleason added, reminding the jury that madness was a mitigation.

  Harry sat rigid and stony-faced, staring at the floor, while Gleason spoke. The press would report that his case had had ‘an inauspicious beginning’. The team’s choice of witnesses, Gleason’s questioning, all were somewhat shambolic. But despite Gleason’s unhappy style, ‘temporary insanity’ was indeed the defence’s plea, and they would go on to show that what had derailed Harry, who had a marked tendency to be derailed, was an honourable intention – one with which the jury could sympathize. The ‘unwritten law’ had no statutory force in the US (except briefly in Texas during the 1920s, when murder was reduced to manslaughter if a husband shot his wife’s lover in flagrante delicto, a very French dispensation for a state that might not now like to admit the link). The term ‘crime of passion’ was never used. Nonetheless, the defence strategy was to prove that Thaw had been driven temporarily mad by the behaviour of a vicious Stanford White. He had been justified in taking action against this evil rapist who had humiliated and disgraced his beloved wife, thereby ridding the world of a foul Lothario. The act done, Thaw was no longer insane and needn’t be institutionalized.

  This defence, which combined an appeal to the ‘unwritten law’ – the duty of a man to keep his family sacred, defend his wife’s chastity and through that his own honour – while pleading temporary insanity, was not new. In a famous 1859 case known to Thaw, who cited it at a later trial, Lincoln’s future secretary of war Edwin M. Stanton won a not-guilty verdict for one Daniel Sickles, who had killed his wife’s lover in full view of the White House, the day after she had confessed to adultery. Sickles was a Congressman, his victim, Philip Barton Key, an attorney for the District of Columbia. Sickles had huge public support for his act, and the plea of temporary insanity in a man driven into ‘uncontrollable frenzy’ by his wife’s infidelity got him an acquittal from his jury in just a few minutes. In the aftermath of the trial, the more responsible papers worried over the impact of a ruling that sanctioned murder, an act often committed in a state of uncontrollable frenzy.

  In another case, in 1875, a San Francisco jury had effectively arrived at a verdict of ‘justifiable homicide’, and acquitted the pioneering photographer Eadweard Muybridge after he had killed his wife’s lover on discovering that their baby had in fact been fathered by the man. Muybridge’s attorney had run an insanity defence, bringing witnesses to testify that ever since a stagecoach accident in 1860 Muybridge’s personality had changed. Having been a genial, pleasant businessman, the accident had turned him into a risk-taker with an explosive and unpredictable personality. It may well be that Muybridge had sustained damage to the orbitofrontal cortex, the anterior part of the frontal lobe. Whatever the actual ailment, however, the jury wanted to find him neither guilty nor insane. Though it was never called such, his ‘crime of passion’ was considered justified. Muybridge’s wife died a few months after the trial; he went on to become a world famous photographer.

  There were major differences in the Thaw case, however. Not only had the turn of the century and the passing years of the new one brought a slightly more liberal moral regime into being, particularly in that twentieth-century enclave Manhattan. But, more importantly, five years had elapsed between Evelyn’s sexual coercion by White and Thaw’s murder of him. Nor was Evelyn at the time of her affair with White either married to Thaw or even aware of his existence, except perhaps via gossip. To win the sympathy of jury and public concerning a murder propelled by vengeance for an act long past and committed on a chorus girl then not even met, while pleading temporary insanity, would be an uphill struggle – particularly under New York jurisdiction, which followed the old British M’Naghten test of insanity measured as an ability to understand right and wrong. Nor did New York law equate ‘irresistible impulse’ with insanity.

  Yet the press, and particularly the women reporters, were sympathetic to Thaw. He, in turn, loved the attention and put out many a press release. He was in his ‘heroic mood’, Evelyn noted. William Alanson White, a future president of the American Psychiatric Association (APA) and one of the ten expert psychiatric witnesses hired by the defence, summed up the role of the press and the public response to the defendants. When negative feelings towards the accused are stirred, he commented, the verdict is usually that he’s responsible for the crime. ‘If sympathetic emotions are more stirred, then the verdict is that he is irresponsible, that is, insane.’

  34. Mad Harry: American Psychiatry Meets the Law

  Harry K. Thaw’s trial provided something of a congress of psychiatry for the 1900s. It might not retrospectively have had quite the historical cachet of the occasion on which Sigmund Freud delivered his September 1909 lectures at Clark University, but the Thaw trial gathered together many of the best-known alienists – or ‘bug-doctors’, as Harry would have it – of the period. Some of them were traditional, some more experimental. Their diverging diagnoses and analyses of Harry could be seen to reflect a ‘disorder’ in the field; or they could equally be seen as indicating a buoyant phase of debate and experimentation, alongside a wish that the legal system were less rigid in its understanding of the human.

  It was an exciting moment for the field of psychiatry. New ideas were rapidly being generated. Many alienists and neurologists had grown demoralized by the therapeutic possibilities of the vast asylums. Once considered sanctuaries both for the indigent poor and for those who could pay, many were no longer fit for purpose. By the turn of the century medical (as opposed to mind) doctors had risen to a high social and scientific status: with the germ theory of disease to hand, medics had developed a surer grasp of the origins and aetiology of disease, and were no longer relegated to the mere assuaging or description o
f symptoms.

  The mind doctors, by contrast, were well aware that they were too often mere hospital superintendents overseeing storage bins for idiosyncratic (and unwanted) human life. Scientific knowledge was needed. So were new therapies. The period’s most enterprising psychiatrists were alive to the possibilities of both. They wanted new ideas and techniques that would permit them, like their medical kin, to investigate the anatomy and physiology of the nervous system, all the while treating their patients. A first centre for psychiatric research had been set up in 1895 in New York, the Pathological Institute, attached to the New York Hospital. One of Harry Thaw’s future medics, Adolf Meyer, took over its headship in 1901.

  Meyer, like many of the younger members of the profession, was not interested in administering the large populations of the asylums. He was interested in the individual and the new psychodynamic and psychoanalytic ideas coming from Freud’s Vienna, from Paris, and from that leading institution for research and treatment, Zürich’s Burghölzli, where Eugen Bleuler and C. G. Jung were at work. Jung would come to the US with Freud in 1909 and return once more in 1912 on the invitation of Smith Ely Jelliffe, another of Thaw’s psychiatrists.

  The possibilities of individual practice and new-style private clinics also beckoned to the psychiatrists. Meanwhile, the challenges of working within a forensic environment were being tested out. The relationship with the law was hardly an easy one, as the Thaw case would prove. But the very exposure in the public domain that the case provided inevitably served as something of a stimulus to the rapidly changing field.

  Harry K. Thaw was examined by no less than thirteen experts – medics with a knowledge of psychiatry and neurology or experience with work in asylums. Ten of these were hired by the defence at an expense of, purportedly, ten thousand dollars a day (or approximately two hundred thousand dollars in today’s terms), the others by the prosecution. Each side thus had their own experts whose ‘opinions’ were tested in cross-examination by the other side, though not all the medics were called to testify.

  Allan McLane Hamilton MD (1837-1919) was the first of the doctors to examine Thaw in the Tombs. Hamilton saw him on 27 June, two days after the murder, and then on three other occasions. He also consulted with the Thaws’ family doctor to get a fuller picture of Harry’s mental history. Remembered by his colleagues as a tall, distinguished and imposing man, Hamilton was professor of mental diseases at Cornell University, and as the grandson of Alexander Hamilton, one of America’s founding fathers, well respected. A seasoned expert witness, he had appeared in two of the three American presidential assassination cases and had looked into the sanity of Mary Baker Eddy, the founder of Christian Science, whose son wanted to prove her mentally incompetent.

  Hamilton, it was said, could withstand days of cross-examination by ‘pompous and conceited’ lawyers. He was highly critical of a system in which expertise could be ‘bought’ by attorneys, and wished for an arrangement like the French, which made the experts ‘objective’ servants of the court. He also considered the English ‘guilty but insane’ ruling far superior to the American ‘not guilty, because insane’. He thought DA Jerome an honest man, but one who was misguided in his scoffing at Thaw’s ‘mental degeneration’ by naming it a ‘Pittsburgh Insanity’. He judged the Thaw family far more severely. Their ‘lavish use of money’ enabled the hiring of a ‘perfect cloud of so-called experts, the testimony of some at different times being contradictory and worthless’. Hamilton took himself off to North Africa so he wouldn’t have to testify – and only did so later ‘under compulsion’, when he had to join the commission of expert witnesses. The case, from his point of view, was ‘a gross illustration of the evils of expert testimony’.

  Hamilton, who held eugenic and hereditary ideas not unlike Maudsley’s in England, was convinced that Thaw’s insanity was not of the temporary kind. He understood him to be ‘hopelessly crazy’, ‘a paranoiac in an advanced stage’, and he wouldn’t allow his opinion to be bought for lucre. Nor did he have any time for the so-called unwritten law, which countered the rule of law. Harry Thaw’s opinion of him was inevitably not very high: he thought this ‘bug doctor’ was a queer person, and in collusion with the ‘Traitor’, his first lawyer.

  William Alanson White (1870–1937), Charles G. Wagner and Charles W. Pilgrim – all three future presidents of what was the American Psychopathological Association and became the American Psychiatric Association – as well as a past and future president of the American Neurological Association, Graeme M. Hammond (1858–1944), chair of neurology at the NYU School of Medicine, and Smith Ely Jelliffe (1866–1945), all provided expert assessments on behalf of the defence. There was also Britton D. Evans, for the last fifteen years superintendent of the 1850-patient New Jersey State Asylum at Morris Plains, and an experienced forensic witness.

  White and Jelliffe were interested in psychoanalysis and in psychodynamic ideas that situated disorder in the individual’s lived history of family life. In 1913 – after Freud’s 1909 Clark Lectures (later published as his Introduction to Psychoanalysis) and Jung’s lectures of 1912 at Fordham University in New York, which were initiated by Jelliffe – they founded the first American Psychoanalytic Review, an eclectic publication that was never less than heterodox. Both men also took an active interest in forensic psychiatry as well as in ‘mental hygiene’.

  In 1910, having recognized that there were no black psychiatrists in the US although there was a need for them, White opened his lectures and teaching clinics to black students. The racist backlash from some students and staff was noisy, so seeing no other solution White offered to teach the black students at Howard University separately. He also spoke out against the gathering pace of the eugenicists who would sterilize the ‘defective’ population, and claimed that there wasn’t ‘the slightest particle of justification for the mutilating operations that are being advocated and broadcast over the country at this time’. All real evidence of what could be inherited had been brushed aside ‘for the purpose of satisfying a sadistic orgy of cutting out testicles and ovaries’.

  At the time that he attended the Thaw trial, White was professor of nervous and mental diseases at Georgetown University and also held a chair at George Washington University, all the while acting as superintendent of the Government Hospital for the Insane in Washington. His much reprinted Outlines of Psychiatry, published in the year of the trial, became a classic of the field, influencing a generation of practitioners. So, too, did the text he co-authored with his colleague Ely Jelliffe, Diseases of the Nervous System (1915). Ely Jelliffe was an energetic impresario and publisher, who for forty years edited the influential Journal of Mental and Nervous Diseases.

  At the time of the trial Graeme M. Hammond was the best-known of these many neurologists and alienists, though perhaps as much for his sporting as for his medical feats. His father, William, had been the US army’s Surgeon General during the Civil War and as a boy, Hammond had accompanied Lincoln on visits to the Front. Later, during the Great War, Graeme Hammond worked with soldiers suffering from shell shock.

  The prosecution’s experts were scarcely less illustrious. Carlos F. MacDonald, who had seen Thaw just after his arrest, was Bellevue Hospital’s emeritus professor of mental diseases and medical jurisprudence. Just six years before, in 1901, he had served the defence team working for Leon Czolgosz, the anarchist assassin of President William McKinley – ‘the president of money kings and trust magnates’, as Emma Goldman called him. Czolgosz had refused to speak either to MacDonald or indeed to his defence lawyers, and the attempt to plead insanity in his case failed utterly. MacDonald determined him sane – appropriately, since it’s said Czolgosz’s last words, before he was electrocuted, reiterated his political beliefs: ‘I killed the President because he was the enemy of the good people – the good working people.’ Dr MacDonald had also served as consultant to several hospitals and had headed the New York State Commission in Lunacy, set up in 1899 to improve the treatment of the mad
in the state of New York. He was to become president of the APA in 1913.

  On the witness stand at Thaw’s trial, it was two other physicians who would dominate expert witness for the prosecution. Austin Flint (1836-1915), an expert in physiology, was an eminent and much published medic who had worked on the liver and the nervous system, though not all that much in the field of insanity. The younger man, William Hirsch, was a consultant at the Manhattan State Hospital and had links with Cornell University Medical School, where both men had been professors. Hirsch is also listed in the 1906 records of the American Medico-Legal Association, to which he belonged, as ‘Neurologist to the German Poliklinik’, a pioneering outpatients’ facility.

  In an 1896 issue of Popular Science Monthly, Hirsch argues against the scaremongers who see in the rise of statistics on mental degeneration proof of ‘Epidemics of Hysteria’ and neurasthenia. We just count better than we used to, he argues; plus more people, and in particular women, come more often to doctors. On the way Hirsch shows himself to be well acquainted with continental literature on the subject. In 1912, he published a book called Religion and Civilization. This sets out to argue that from the vantage point of science, delusion is at the heart of monotheism, while paranoia with its persecutory cast and its delusions of grandeur could explain many of the characters in the Old and New Testaments. Apart from their delusions, Hirsch points out, paranoiacs ‘may appear perfectly normal’, and only some suffer from hallucinations – that is, perceive the products of their morbid imaginations with their senses.