Trials of Passion

by Lisa Appignanesi

  42. Manic-depressive Insanity

  Having had more time with Thaw, and perhaps more time to make good their earlier classificatory vagaries, the three defence expert witnesses, Drs Evans, Wagner and Jelliffe, had arrived at a uniform diagnosis for this second trial. They now determined that Thaw suffered from manic-depressive insanity. According to Dr Wagner, this entailed phases of both mania and melancholy in the patient. ‘Suicidal attempts often mark these cases,’ he stated, ‘and such habits as the writing of incomplete letters, quick irregular habits of speech, nervousness and restlessness are all characteristic.’

  With dark irony, Jerome stated that this ‘manic-depressive insanity’ was a new one for him. He had heard of other kinds, but hadn’t had time to specialize in that branch, much as he would have liked to. His comment underlined how many different kinds of insanity had already been attributed to the defendant. The doctors were being inordinately inventive on behalf of their client.

  In fact, manic-depressive psychosis had recently entered the psychiatric literature, and was soon to acquire a great deal of renown, since it seemed to make sense of a whole series of symptoms and solve certain puzzles. It was the famous German psychiatrist Emil Kraepelin, who in 1899 had taken the earlier classification of ‘circular insanity’, amplified the details, and called the new illness ‘manic-depressive psychosis’. For the sixth and definitive edition of his Textbook–which served as an early model for the Diagnostic and Statistical Manual of Mental Disorders, the current bible of the American psychiatric profession – Kraepelin systemized its various characteristics in a copious depiction of what he considered to be an affective, or mood-based, illness.

  Kraepelin was well known in the United States. The Swiss-born psychiatrist Adolf Meyer (1866–1950), for example, was influenced both by him and – oddly, since in Europe the two were deeply opposed – by Freud. Meyer introduced a Kraepelinian system of detailed history-keeping at the New York Psychiatric Institute, where he began working in 1902. He would become one of Thaw’s doctors around 1909. Many other medics travelled to Heidelberg, where Kraepelin worked until 1904, and then to Munich to learn from the great classifier, whose punctiliously kept patient records provided the evidence for generalizing diagnoses.

  In a volume that contained his writings on manic-depressive insanity and paranoia, Kraepelin listed many features that Harry K. Thaw shared with his own patients. Amongst these were ‘tattered thoughts’, ‘so many thoughts in my head that I can’t work’, ‘interpolated thoughts’ which prevented consistent thinking as well as producing diffuseness in speech, heightened distractibility, rolling of the eyes and speedy, repetitive movement.

  Kraepelin’s patients were also subject to frequent delusions. In their manic state, like Harry’s these might take on a paranoid flavour. They were surrounded by spies or being followed by detectives, despised by their neighbours, mocked, no longer greeted. They found allusions to themselves in the newspapers. They found poison in their coffee or in the washing water. They felt themselves hypnotized or magnetized by another. They spoke of the existence of a conspiracy against them. They experienced delusions of greatness, thought themselves of aristocratic origin and nurtured messianic projects. Some thought they were possessed, like Rockefeller, of vast sums of money, and spent it accordingly. In Harry’s case, of course, he did more or less possess vast sums, so his spending didn’t attract the police in the first instance. Bouts of fury as well as a marked sexual excitability were all symptomatic; and in the manic state, Kraepelin notes of these patients, they ‘commit all possible acts of debauchery’ and never show signs of fatigue. Evelyn’s description of Harry in their remote Schloss comes to mind. In the depressive part of the cycle, when the patients are ‘stuporous’ and delusion is more difficult to determine, what Kraepelin calls ‘delusional suicide’ is often attempted.

  It’s hardly surprising that District Attorney Jerome had a little trouble with this latest of the defence’s diagnostic moves. The pioneering George Robertson, Edinburgh’s first professor of psychiatry and editor of the translation of Kraepelin’s monograph on manic-depressive insanity, published in 1920, stated in his preface that ‘as true Paranoia has also some affinities to some varieties of Mania, all these forms of insanity seem to merge into one another at their so-called boundaries or limits’. At the various hearings that followed upon Thaw’s second trial, paranoia and manic-depressive insanity were often referred to as if they were more or less the same. Perhaps, in this second trial, the defence had agreed on ‘manic-depressive insanity’ because it was a diagnosis that could allow improvement. Given that Thaw was far less overtly agitated and visibly deranged at this trial, and indeed somewhat ‘stuporous’ or ‘depressed’, the current strategy could be said to fit more of the facts. But since the nature of manic- depressive insanity was that it was cyclical and would most probably recur, it also left the court free to make the judgement that it ultimately did.

  Jerome didn’t bother to call any of his own expert witnesses. Instead, in his summing-up he once more ridiculed the defence’s attribution of insanity to Thaw. A good spanking in childhood would have done far more for his fits of temper than the best medical treatment: his teachers hadn’t dreamt of thinking young Thaw insane until his mother had suggested it. Nor was there any report of insanity during the seventeen years between childhood and his meeting Evelyn Nesbit. Lawyers, bankers, drinking partners – none were called to testify to any madness on Thaw’s part. As for the night of the murder, a man who knew how to grab his coat and go out with his wife, who knew enough to take his revolver with him, who dined and paid for dinner, who could tell a policeman that he had shot Stanford White and ask ‘Is he dead?’, who could discriminate between two brands of cigar at the police station ... was not in Jerome’s book an insane man.

  Then, too, there was the time factor to consider: a period of three years had elapsed between Thaw hearing Evelyn’s narrative about White, and the murder: time enough to go gallivanting around Europe and get married. There was certainly no ground here for the defence’s initial ‘brain storm’ theory of insanity. Finally, what kind of honourable man is it who shoots the man who purportedly once dishonoured his wife, and then lets the story of his wife’s shame be told in open court, lets it go into the records and be spread far and wide by the newspapers – all to save his own miserable life? Perhaps Thaw could have been forgiven if he had ‘killed quick’.

  In his directions to the jury, Justice Dowling reminded them of the strictures of the M’Naghten rules: ‘The doctrine that a criminal act may be excused upon the notion of an irresistible impulse to commit it, when the offender has the ability to discover his moral and legal duty in respect to it, has no place in the law. But it is a defense if his mind is in such an unsound state that reason and judgment are overwhelmed, and he acted from an uncontrollable impulse and as an involuntary agent.’ Justice Dowling was very careful to underline that ‘Heat of passion and feeling produced by motives of anger, hatred or revenge, are not insanity. The law holds the doer of the act under such conditions responsible for the crime, because a large share of homicides committed are occasioned by just such motives as these.’

  The jury retired at 11.45 on the morning of Friday 1 February and only reached their verdict on the Saturday afternoon. They determined that Harry K. Thaw was not guilty ‘on the ground of his insanity at the time of the commission of the act’.

  The broad smile that came over Thaw’s face, probably because he assumed he had not only been saved from the electric chair, but also granted his freedom, was soon wiped. The judge read a memorandum he had evidently prepared in advance. Since, according to the testimony on manic-depressive insanity, there seemed to be no suggested possibility of cure; since it was reasonably certain that the illness recurred, and at unforeseen times; since there was ‘danger of assaults or murders being committed by the person who is troubled or afflicted by this ailment’; and since, in the ‘depressive state of this form of the malady,
it appears from the testimony that there is danger that a person so afflicted will commit suicide’, the defendant was dangerous to public safety.

  The court therefore ordered that Harry K. Thaw be detained in safe custody and sent to the Matteawan State Hospital for the criminally insane in upstate New York.

  Within minutes of his verdict being announced, Thaw asked his defence lawyer, Martin Littleton, to come and see him in the New York County sheriffs office, where he was being held until the journey upstate.

  An exhausted Evelyn was lying on a sofa when Littleton arrived. Harry was smiling and impatient. Despite it being a Saturday afternoon, he ordered Littleton to proceed immediately to the Supreme Court to apply for a writ of habeas corpus. Littleton agreed, but he and his defence team second, Daniel O’Reilly, had already established that the court order had to be accepted for the time being.

  It was O’Reilly who accompanied Thaw on the 4.39 train that would take them to Fishkill in upstate New York. Reporters teemed and the crowd cheered as Thaw got into the waiting car, where a journalist interviewed him and had him reminisce about the murder. Visibly happy at the attention, Thaw was at his joking best, though one of his jokes entailed taking back the cash fee he had paid O’Reilly while still in the sheriff’s office.

  Evelyn joined them on the train. At Fishkill more reporters were waiting, together with a crowd of local onlookers. Thaw’s group ate and drank at the town hotel. Just after nine, the deputy sheriff indicated that it was already past lights-out time at the Matteawan Hospital. Reluctantly, but smiling for the photographers, Harry left to make the thirty-five-minute drive to what – despite his family’s, and indeed at first Evelyn’s, and certainly his own best efforts – would be his new home for years to come.

  The Matteawan Hospital in Beacon had been established in 1892 to replace an earlier asylum at Auburn. This had housed criminals along with ordinary inmates, and had exceeded its capacity. Purpose-built, readily reachable by train, with ‘an abundance of light and ventilation5 and on a site that offered some 246 acres of ‘good tillable land, pure water and pleasant scenery between the Hudson River and the Fishkill mountains’, Matteawan was intended as a model correctional asylum, at first housing some 550 inmates. There was a work programme for those who could cook, farm or make clothing or rugs; twice-daily outdoor exercise, a variety of sporting activities, weekly movies, and special entertainments for holidays. By 1889, the hospital had grown beyond its bed space, and a new prison mental hospital was built for those who had gone mad while serving their sentences.

  Lore has it that with his millions, Harry could afford his own room, special food, drink and cigars, as well as evening drives with warders along a road where he became well known – or so Evelyn recounted in her memoir. According to her, the private room meant that she and Harry also engaged in occasional marital activity. So she contended, to the accumulated Thaw family rage, when a son was born in October 1910.

  43. Fighting Lunacy

  In what became a precedent, replayed by many in the course of the century (including most recently in Britain in the shape of the moors murderer, Ian Brady), Harry K. Thaw battled for years with the courts against his ‘insanity’ ruling. He had no intention of extending his confinement beyond the bare minimum. But the superintendent at Matteawan and the State Board of Lunacy took a different view. They publicly opposed any notion that he was now cured of his insanity. His trial lawyers seemed to agree, while DA Jerome also made it known that he would oppose any application for a writ of habeas corpus. Only Evelyn, who took a room in Fishkill, publicly stated that her husband didn’t belong ‘with a group of hopelessly insane creatures’.

  Three months after his institutionalization, Thaw with his mother’s help had a new team of lawyers in place. Over the next seven years they would repeatedly file for habeas corpus in the hope that one of the various judges would deem Harry sane. Since his trial verdict had been ‘not guilty on grounds of insanity’, once he was determined sane his liberty would be returned to him. Failing that reversal, Thaw’s only possibility of obtaining his freedom was somehow to make his way outside the state of New York: insanity was not an extraditable offence within American states.

  Habeas corpus (or habeas corpus ad subjiciendum – literally, ‘you hold the person or body subject’) is an order or writ from a superior (in this case, federal) to an inferior court (state), requiring the person they are holding to be brought to the higher court in order to examine whether he or she is being legally detained. Some attribute its spirit, if not its exact fact, to Magna Carta: habeas corpus acts as a safeguard of individual liberty from dictatorial arrest without trial. The great English jurist William Blackstone states that the procedure was codified in 1679: it allowed the subject, a member of the family or an advocate to petition for a writ of habeas corpus to be issued by a superior court, commanding the addressee (often a lower court, or a sheriff) to produce the subject before a court of law. This ‘most celebrated of English writs’, as Blacks tone called it, is effectively a civil action against a jailer. In America, it tests whether the confinement of the subject is a violation of his constitutional rights.

  Appealing to the Supreme Court for writs of habeas corpus, followed by hearings, is an expensive business. But the Thaw family was as ever prepared to pay (or promise to pay) anyone and everyone’s expenses – except Evelyn’s.

  Insane, and therefore legally incompetent, Harry was no longer in charge of his own finances. This left Evelyn, whose usefulness had by now greatly diminished, at the mercy of her mother-in-law, who had long wanted her son to divorce the ‘chorus girl’. The dowager had had Evelyn followed by detectives, who kept a record of her late-night activities. Payments due to her as a wife arrived only erratically. She was ever short of funds; and her loyalty to Harry, more or less intact for the first period of his confinement, eventually reached breaking point. Not only were his moods increasingly sullen and violent, but there seemed to be diminishing hopes of any financial settlement. Following threats he had made on her life, Evelyn began to testify to his insanity and filed for an annulment of their marriage. Like so many other wives disapproved of by rich mothers-in-law, she had lost out to the family. Though rumours had it that her initial loyalty to Thaw had been bought at great expense, her own story, and indeed her return to her working career soon after Harry’s incarceration, seem to prove otherwise. The Thaw family millions never made their way into Evelyn Nesbit’s pockets.

  At the first appeal hearing at the New York Supreme Court at White Plains in May 1908, the evidence of the Thaw trial was rehashed, and expert psychiatrists battled it out once more. The judge found Thaw was not sane, and refused to grant him his freedom. The form of insanity from which he suffered could recur, the experts agreed. The safety of the public is better insured by his remaining in custody and under observation,’ the judge stated, ‘until he has recovered or until such time as it shall be reasonably certain that there is no danger of a recurring attack of the delusion or whatever it may be.’ Proving sanity in civil courts can be as difficult as proving insanity in criminal courts.

  No longer the district attorney who had been elected by a landslide, William Travers Jerome, the man who had done more than anyone in New York to make the public appreciate the need ‘of a fearless and incorruptible administration of the law’, was now state prosecutor. He would not or could not let Thaw, the millionaire who had murdered the great and now rarely mentioned Stanford White, go. He was adamant that Thaw should not be allowed to buy his freedom: ‘It has been said that in the end, the Thaw money would defeat the ends of justice,’ he stated. ‘But wherever this case has gone, and where it has rested, it has left a trail of ignominy, disgrace, filth and scandal behind it... The state of New York will not permit justice to be defeated by the corrupt use of money if it can prevent it.’

  Jerome’s tactic was repeatedly to show not only that Harry was still insane, but that he was debauched and depraved and that the family as a whole was
corrupt. In both the 1909 and the 1912 hearings the state called a Mrs Merrill, mentioned earlier, who in fear and trembling reported on Thaw’s sadistic activities. She testified that he had kept rooms, first at 46th Street, then at 54th Street, under the name of ‘Professor Reid’. Here came young girls he had falsely advertised for, who were subjected to terrible whippings. Some two hundred of them. One day, when she came running at their screams, Mrs Merrill had found two of them - one bleeding on the floor, the other at the mercy of his blows. She claimed that Thaw’s eyes were protruding from his head and he looked like a madman. She got the girls out, but was terrified Thaw would kill her. This narrative of violence apart, Jerome made it equally clear that Mrs Merrill had been sought out by the Thaw family’s agents prior to earlier trials, and had been subjected to threats and bribes and kept from court.

  At the June 1909 hearing, it was also shown that Evelyn had received an extra five hundred dollars in her expenses envelope just before the trial, in order to keep her sweet and on Thaw’s side. Many other, hostile, witnesses had been menaced and bought off. One Thaw lawyer turned prosecution witness, because he hadn’t been paid all he had been promised. If Jerome didn’t directly charge the expert psychiatric witnesses with foul practice and offering diagnoses for sale, he nonetheless had them confessing to lucrative links with Thaw family friends. From sometime in 1909, Adolf Meyer – soon to head the Johns Hopkins psychiatry department and the famously progressive Phipps Clinic – acted as one of Thaw’s consulting psychiatrists. According to the New York Times of 27 July 1912, his performance in court did little to advance his reputation, since Jerome elicited from him the damning information that he was ‘under engagement to take a position in an institution founded by friends of Harry K. Thaw’.