by Simon Baatz
In preparation for his appearance on the witness stand, the defense attorneys had spent considerable time coaching Hulbert. Crowe would attempt to discredit the endocrinological results by questioning the reliability of the evidence. The defense attorneys had no way to know just how or where Crowe would attack; yet, for all that, they were confident that Hulbert would be a capable witness.
Walter Bachrach began by asking Hulbert to list the physical tests that the scientists had employed in their examination of Richard and Nathan. What were the specific results? Bachrach asked Hulbert to begin with Richard Loeb.
"As I understand you, you say you took his blood pressure?" "Yes."
"Tell us the result of that test."
"Systolic, 100; diastolic, 65. Blood pressure, 35. Pulse rate, 88 to
92. . . ."
"Did the result of that test in any way indicate a deviation from the
normal, as far as blood pressure is concerned?"
"It is below normal," Hulbert replied.43
"You said you took a basal metabolism test. State what that is and
its purpose."
"The basal metabolism test is a chemical test to determine the rate
at which the body tissues oxidize the food which the body has ingested,
and gives us an indication of the vital forces of the body. The test is done in a technical way by having the patient appear without any breakfast and lie quietly for an hour in loose clothing, breathing into an apparatus which has been clamped to the mouth, the nose having been
shut tight, to measure the carbon dioxide of the breath."
It was a routine test, Hulbert explained, commonly used to search
for glandular disease; it served as a reliable method to pinpoint endocrinological disorders. "This has all been carefully tabulated in thousands of cases. . . . We are able to contrast the results obtained in any
one patient with what would be normal for that patient considering his
age, weight, etc. The metabolism test, in the case of Richard Loeb on
June 14th, taken under ideal circumstances, was minus seventeen percent, which is abnormally low."
"What," Bachrach prompted, "does such an abnormally low basal
metabolism result signify . . . ?"
"A disorder of the endocrine glands and the sympathic nervous
system," Hulbert replied. "It is one phase of medical evidence to indicate that there is such a disease of the endocrines and sympathetic
nervous system."44
Hulbert continued to read off the results of his tests on Richard
Loeb, occasionally consulting the loose-leaf binder spread across his
knees. The Wassermann test for syphilis had been negative; the sugar
tolerance test had been slightly high; the blood physics test had shown
Loeb to be slightly anemic; the blood chemistry test had revealed a
slight excess of nonprotein nitrogen in the blood; and the urine examination had been normal--the urine showed "clear transparency and
amber color," Hulbert replied, "no albumin, no sugar, no indican . . .
but there was mucus present, and a few epithelial cells. . . ." "That," Crowe interrupted sarcastically, grinning at his quip,
"throws considerable light on this murder, does it not? . . ." "I object," Bachrach shouted angrily, "to counsel interrupting!"45 Bachrach turned back to the witness.
"Did you make an X-ray examination of Richard Loeb?" "We did," Hulbert replied, indicating several X-ray photographs,
along with charts and diagrams, lying on the documents table in front
of the bench. Hulbert explained that the scientists had taken X-ray photographs of the skull, face, wrists, and thorax. There was no pathology, he concluded; the X-rays revealed extensive dental work, but in all other respects Richard Loeb was normal.46
The scientists had examined Nathan Leopold also, Hulbert continued. Measurement of Nathan's metabolism had produced a result of minus five percent, well within the normal range; the Wassermann test for syphilis had been negative; and the blood physics test had shown that Nathan was only slightly anemic. His blood pressure reading had been low; the sugar tolerance test had revealed that Nathan did not metabolize sugar properly; and a chemical analysis of his blood had revealed premonitory signs of kidney disease.
47
Hulbert continued to read from his notes. He had a f lat, emotionless voice and his matter-of-fact recitation of the tests scarcely hinted at their significance. Crowe no longer bothered to interrupt the witness with objections or sarcasm, and even the reporters seemed to have lost interest. One by one, the stenotypes stopped clicking. The reporters merely listened, without bothering to record the testimony for their readers, until eventually only a solitary Caligraph machine, recognizable by its enormous keyboard, remained in operation, quietly clacking away as an accompaniment to Hulbert's voice.
48
Walter Bachrach pointed to the X-ray photographs lying on the documents table. Had the X-rays revealed anything unusual, he asked, with respect to Nathan Leopold?
The clerk of the court, Ferdinand Scherer, stepped across to the documents table to hand the X-rays to the witness. Hulbert had stopped speaking; he was now looking through the photographs, holding each to the light in order to make his choice.
"The X-ray of the skull," he began, "revealed the most pathology. The tables of the skull, the bony tables of the skull, are of normal thickness, but the union between the various bones of the skull has become firm and ossified at the age of 19."
"What in normal life," Bachrach asked, "is the time at which such ossification takes place?"
"It varies, but usually at full maturity or when a man is in his prime." "In terms of years when does that usually take place?" "I would say from thirty to thirty-five."49
As John Caverly leaned across to look at the photograph, Hulbert
rose slightly from his chair, holding the X-ray in his right hand, and pointed to a slight shadow at the base of the skull. The photograph showed that the pineal gland had calcified prematurely, he explained, as Caverly looked on; in a normal individual, the pineal gland did not calcify until thirty years of age.
50
"The pineal gland," Hulbert explained, "in this x-ray throws a definite shadow, typical of a calcified pineal gland."
"What is the pineal gland?" Bachrach asked. "What is the function of the pineal gland so far as it is known to science?"
The pineal gland had two functions, Hulbert replied. It acted as a brake on sexual desire, serving to inhibit the libido, and it stimulated mental development.51
Nathan displayed other indications of glandular pathology. His thick, dry skin and his coarse hair; the early appearance of his primary and secondary sexual characteristics; his low blood pressure, low body temperature, and slight anemia--these were signs that Nathan had previously suffered from an abnormal thyroid gland.52
Nathan's medical history during childhood and early adolescence-- his lack of resistance to disease, including such skin infections as urticaria--indicated a disorder of the adrenal medulla.53
X-rays of Nathan's skull had shown that the sella turcica, the bony cradle at the base of the skull enclosing the pituitary gland, was smaller than one might have expected, and its small size would have the effect of congesting and crowding the pituitary gland. Other indications of hyperpituitarism, according to Hulbert, included Nathan's sexual development and activity, his inability to metabolize sugar at a normal rate, and his coarse, heavy hair.54
Finally, Hulbert concluded, Nathan's sex glands were undoubtedly diseased. Nathan possessed an abnormally high sex drive and both his primary and his secondary sexual characteristics had appeared prematurely.55
Nathan, sitting immediately behind Clarence Darrow, whispered an occasional remark to the attorney, while listening to the witness. Hulbert paused in his testimony and Nathan turned slightly in his seat to see Richard Loeb, sitting to his left, grinning
mischievously. As Nathan turned toward him, Richard murmured in his ear that it looked as if he, Nathan, were in a bad way--and both boys laughed quietly at the joke.56
Walter Bachrach sought to lead his witness to the conclusion toward which he had been heading. That Nathan suffered from glandular disease, there was no doubt; but how was this relevant to the murder of Bobby Franks?
"What relation," Bachrach asked, "is there between the abnormal functioning of his endocrine glands and his mental condition?"
"The effect of the endocrine glands on the mental condition is definitely established in the minds of medical men in certain points and is still a matter of dispute in others. . . . I would say that his endocrine disorder is responsible for the following mental findings. His precocious mental development, his rapid advance through school, his ease of learning, are of endocrine origins. . . . The early development and strength of his sex urge is obviously of endocrine origin. His shallow mood and his good bearing are of endocrine origin and particularly his mental activity and early mental development are of endocrine origin. . . ."
"What would be the effect of that upon him, where there was not a corresponding maturity of his emotional life and judgment?"
"The effect of the intellectual drive of endocrine origin . . . and [his] emotional shallowness is that he now has mentally a decided degree of discrepancy, a diseased discrepancy, between his judgment and emotions on the one hand and his intellect on the other hand. . . ."57
"What, if any, effect," Bachrach asked, "did the diseased mental condition of Leopold on May 21st, 1924, have in connection with the Franks kidnaping and homicide?"
"A very great deal. . . . His mental condition or disease at that time would not primarily have caused him alone to have carried out any such kidnaping or homicide. It caused him to ignore the ordinary re24. A JOKE IN COURT . Testimony on the witness stand gives the defendants cause to smile. From left: Nathan Leopold, Richard Loeb, and Nathan Leopold Sr.
straint which individuals impose upon themselves because of their consciousness of their duties they owe to society; it caused him to react in the non-emotional way he did at that time and subsequently; caused him to justify his own actions to himself, so that he is uncritical of them; and his mental condition at that time is one of the predominating factors in this homicide and kidnaping."
"Would Leopold on May 21st, 1924, have been able to commit the Franks kidnaping and homicide but for the presence of such mental disease?"
"He could not have done it."
"State whether the diseased mental condition of Richard Loeb on
May 21st, 1924, entered into the Franks homicide and kidnaping?" "It did."
"Will you tell us how?"
"The mental condition of Richard Loeb on that date was a direct
factor. . . . He was impelled by motives which had been nourished in his subconscious mind, his judgment was childish and uncritical and did not restrain him. . . . His emotions are definitely immature and childish, and he had only an academic realization of what he owed to society, his feeling on the matter being too slight to bind him or modify his conduct and his mentally diseased condition at that time based on his experiences and based on his constitution was a definite factor in this kidnaping and homicide."
"Could Richard Loeb but for the existence of the mental disease existing in him on the 21st of May, 1924, and which you have described in your testimony, had committed the Franks kidnaping and homicide?"
"He could not."58
Just as, one week earlier, it would have been foolish for Robert Crowe to have challenged William White on his knowledge of psychoanalysis, so it would now be reckless for the state's attorney to confront Harold Hulbert on his knowledge of endocrinology. Crowe had no scientific training or expertise, and he knew nothing about endocrinology. Perhaps an abnormally low metabolism did indicate glandular disorder; perhaps a calcified pineal gland was a sign of mental illness; perhaps a diminutive
sella turcica was a cause of hyperpituitarism-- who, apart from the experts, could say? No, Crowe decided, there was nothing to be gained from disputing endocrinological theory with the witness.
Clarence Darrow, at least, could not see how the state could easily overthrow Hulbert's testimony. It relied on scientific evidence--tangible evidence in the case of the X-rays--that could not be disputed. The scientists had found that Richard had an abnormally low metabolism; that finding was consistent with mental disorder. And the X-rays of Nathan Leopold's pineal gland showed that it had prematurely calcified; that also was a sign of mental disease. The defense had proved its point: neither Richard nor Nathan was insane, but both clearly suffered from mental illness. Surely the evidence of their mental illness would be sufficient to save them from the gallows?
Darrow had supposed that the endocrinological data were impervious to attack; but Crowe soon forced him to reconsider. Crowe went straight to the heart of the matter--he questioned both the metabolic reading for Richard and the X-rays of Nathan's skull.
The science, Crowe asserted, was not at all as objective as the defense liked to pretend. The scientific results were not identical with reality but stood as a representation of it, a representation mediated through the scientific apparatus. The scientists had obtained a reading for the metabolism of Richard Loeb--minus seventeen percent--that, they claimed, indicated mental disease; but this reading was accurate only insofar as the apparatus was reliable. And, Crowe might have added, the reading, of course, possessed only the meaning conferred on it by the scientists; Crowe could also challenge that assigned meaning.
Crowe began his cross-examination--on Monday, 11 August-- with a question about the tests for metabolism,
"Who made the basal metabolism test?"
"Dr. Moore, Dr. Bowman and myself," Hulbert replied. "On Leopold we repeated the test three times, and took the average of the three, and on Loeb we took the test twice, and took the average of the two. Those tests were continued one right after the other."
"Don't you know," Crowe asserted, "you have no machine in Chicago that can accurately make this test?"
"I was quite satisfied with the machine we used."
"What kind was it?"
"A Jones," Hulbert answered.59
Hulbert had too much confidence in his knowledge of the test to allow Crowe's assertion to rattle him. And, in any case, Crowe was wrong. In 1924 there were several types of apparatus for measuring metabolism, and most of them were in use in hospitals and laboratories in Chicago. Hulbert had used the Jones metabolimeter, a machine designed by Horry Jones, a medical professor at the University of Illinois, and he knew it as a reliable and trustworthy apparatus that would give accurate results.60
"Is it not a fact," Crowe demanded, "that there is no machine that can accurately take this test, but they take a great many and average them in order to arrive at some conclusion?"
"I don't know whether there is a perfect machine or not. Now, this machine was good enough."
"If it was not perfect, then the result would not be perfect?"
"It might or might not. . . ."
"If it is not a good reliable test, it is not of any use, is it?"
"I would not use an unreliable test," Hulbert replied, confidently.61
Crowe had chosen the wrong angle of attack. He was no expert on the measurement of metabolism, and whatever gleanings on the subject he had picked up in the previous month were no match for Hulbert's expertise. Perhaps he would have better luck asking Hulbert about the X-ray examinations.
"Describe the X-ray apparatus," Crowe asked, "and the techniques by which these x-ray pictures were taken. . . ."
"The apparatus we used was a portable machine furnished by the Victor X-ray people, one of the largest X-ray manufacturers in America, brought to the jail by Dr. Blaine, of the National Pathologic Laboratory, former radiologist at Cook County Hospital for a number of years, and by Dr. Darnell, research pathologist of the Victor Company. . . . Triplicate films were taken in all cases. T
he parts of the body pictures were studied by me through the f luoroscope for the purpose of identification, and the films were identified with my Veterans of Foreign Wars insignia, which I wear, so that there would be no doubt as to their identity. The pictures were carried to the laboratory by the technicians in the same taxi with me; they were never out of my sight. I went into the dark room at the time they were developed, and stayed there talking with Dr. Blaine while they were being developed."62
There was enough detail in this account, surely, to satisfy even the most skeptical inquisitor! But Crowe was relentless. Hulbert had relied on others to take the X-rays, so how much did he know of the process? His training and education had fitted him to be a psychiatrist--who was he to testify on the reliability of the X-rays?
"Do you know," Crowe asked, "the name of the machine you used?" "A V ic tor p or t a ble ."
"What kind of a current, direct or alternating?"
"I don't know."
"What kind of a tube?"
"All I know is, it was a new tube suitable for the portable machine, a Victor tube."
"What transformer was used?"
"I don't know."
"Where was the transformer located on the machine? . . ."
"I don't know."63
Previously, under direct examination, Hulbert had made much of his observation, through a f luoroscope, of the bones of the skull as the technicians had taken the X-ray photographs. But once again, Crowe attacked Hulbert's testimony as f lawed. How much had he seen through the f luoroscope, and what was the value of his observations?
"Is it possible to see a calcified pineal gland through a f luoroscope?"
"It may be."
"Did you see it?"
"I did not."
"Did you ever see one through a f luoroscope?"
