by Simon Baatz
The psychoanalytic psychiatrists--White, Glueck, and Healy-- could assert, with equal justification, that according to their understanding of psychiatry, an understanding informed by psychoanalysis, the defendants had suffered mental trauma during childhood that had damaged each boy's ability to function competently. Nathan and Richard had each experienced abuse at the hands of a governess: in Richard's case, Emily Struthers had imposed a set of demands that had distorted his perception of reality; in Nathan's case, Mathilda Wantz had seduced him when he was still a child. The damage inf licted on each boy at an early age had resulted in compensatory fantasies that led directly to the murder.
Most commentators, however, were unaware of the epistemological gulf that separated neurology from psychoanalytic psychiatry. The expert witnesses all claimed to be psychiatrists, after all; and it was, everyone agreed, a dark day for psychiatry when leading representatives of the profession could stand up in court and contradict each other. If men of national reputation and eminence could not agree on a common diagnosis, then could any value be attached to a psychiatric judgment? Or perhaps the experts in each group were saying only what the lawyers required them to say--for a fee, of course. But if psychiatrists, leaders of the profession, no less, were so avaricious as to hire themselves out as mercenaries for a few hundred dollars, then of what value was the psychiatric profession?
It was an evil that contaminated the entire profession, thundered the
New York Times, in an editorial similar to dozens of others that appeared at the same time. The experts in the Leopold-Loeb hearing were "of equal authority as alienists and psychiatrists," apparently in possession of the same set of facts, who, nevertheless, gave out "opinions exactly opposite and contradictory as to the past and present condition of the two prisoners. . . . Instead of seeking truth for its own sake and with no preference as to what it turns out to be, they are supporting, and are expected to support, a predetermined purpose. . . . That the presiding Judge," the Times concluded sorrowfully, "is getting any help from those men toward the forming of his decision hardly is to be believed."19
Darrow had listened patiently as Joseph Sbarbaro asked Archibald Church questions about the mental condition of Nathan and Richard. Now it was his turn. The neurologists had had only one opportunity to examine the boys, Darrow began, and they had come into court arguing that their examination--on Sunday, 1 June, in the office of the state's attorney--allowed them to claim that neither boy suffered from mental disease. But how, Darrow asked, could they have examined Nathan and Richard under conditions that were far from ideal? Darrow himself had been in the anteroom to Crowe's office that Sunday afternoon, trying to get access to the boys; he had seen for himself the to-and-fro of the police sergeants, the stenographers, the psychiatrists, and various functionaries. How had it been possible to have determined the boys' mental condition under those circumstances?
"Now, there were," Darrow asked Church, "some fifteen people in the room while you were talking to these boys?"
"I think," Church replied cautiously, "hardly that many, but there were many, I know that."
"Too many," Darrow suggested, "for a thorough consultation?"
"Too many," Church admitted, grudgingly, "for an ideal consultation."
"You never had anybody bring you a patient to treat where you called in any such number of people as that, did you?"
"Occasionally it is very difficult to keep all the members of the family out."
"I asked you a specific question," Darrow responded tartly, his voice rising slightly.
"No, I never treated a patient in private practice--" Church paused, reluctant to concede Darrow's point; "--examined a patient before as many people."
"You have laid down the rules yourself as to how a private examination should be conducted, have you not?"
"Well, I control the situation under those conditions."
"Did you ask any questions?"
"Yes."
"Who did most of the questioning?"
"Really, there were very few questions asked," Church glanced momentarily toward Hugh Patrick and William Krohn, sitting behind the state's attorney and his assistants. "Dr. Patrick asked a few and Dr. Krohn asked a few and Mr. Crowe asked a few, but most of it was continuous narrative on the part of Mr. Loeb and some questions asked him by Leopold and some back and forth conversation between them. . . ."20
"Did you ask any questions to find out evidence of mental disease?"
"No."
"Did anybody else that you know of?"
"Well, all of the questions and conversations were for the purpose, as far as I was concerned, of determining their mental status."21
In other words, Darrow concluded, the examination had been entirely superficial, so superficial as to render it worthless. There had been perhaps fifteen people in Crowe's office during the examination-- could it even be properly called an examination? he wondered--and yet the state's witnesses persisted in saying that they had evaluated Nathan and Richard! The examination had lasted a mere three hours, and none of the neurologists, according to Church, had even asked questions designed to elicit evidence of mental disease!
Had Darrow known, he could have asked whether Church had carried out the routine tests that neurologists customarily used when evaluating defendants. By the 1920s, physicians had devised well-known procedures for determining lesions of the nervous system. Church could have used an esthesiometer, a needlelike instrument designed to measure tactile sensibility and to test for damage to the peripheral nervous system. He could also have used a dynamometer, an instrument for measuring muscle strength and movement, useful in detecting signs of decreased muscle tone (hypotonia), symptomatic of cerebellar lesions. And even if the state's experts had not had such instruments at their disposal during the examination, it would have been possible for them to have tested for ataxia (a loss of balance due to lesions of the cerebellum) by requiring Richard and Nathan to perform simple walking and standing exercises.
Roentgenology also had become an accepted procedure in neurological diagnosis. It had become possible, as early as 1910, to map the central nervous system by X-rays; and by the 1920s, physicians had learned to detect tumors of the spinal marrow with the aid of X-rays.
The lumbar puncture--the insertion of a fine needle into the lumbar interspace of the spine to collect a sample of cerebrospinal f luid-- enabled neurologists to calculate pressure measurements of the cerebrospinal f luid and to draw off a sample for biochemical and serological analysis. By 1924, the lumbar puncture had become the most common diagnostic technique favored by neurologists to test for tabes dorsalis, a form of syphilis that results in the degeneration of the dorsal columns of the spinal cord.22
That Darrow knew nothing of such diagnostic procedures and their use in neurological examination did not prevent him from pushing forward his attack on the state's testimony. Church had been a coauthor, with Frederick Peterson of Columbia University, of the textbook Nervous and Mental Diseases, long the standard work on neurological disorders and their treatment. Darrow had a copy of the most recent edition, the ninth, on the table before him. He picked up the book, a heavy volume with black covers, and turned toward Church to read his words back to him. "This is your latest on this subject," Darrow began "and you have said here: 'The examination of a patient with mental disorder is a much more complex process than that of a case of physical disease. . . . For it is necessary in the former not only to ascertain the present physical condition, as with ordinary patients, but also to investigate the mental state, which involves the employment of unusual and new methods and brings us into contact with a novel series of psychic phenomena, and moreover to attain our end we need to study the whole past life of the patient, his diseases, accidents, schooling, occupation, environment, temperament, character; nor can we stop here; for it is of t he greatest impor ta nce to inform ourselves as to conditions a mong his antecedents to determine the type of family from which he sprung, and the presence or absen
ce of an hereditary taint. There is therefore much to learn even before seeing the patient in person.' "23
Darrow paused. He looked from the book to the witness. "And you did not learn that before seeing them, surely?"
"I did not," Church replied, "have the opportunity."
Church explained that the state's attorney had called him at midday on 1 June. He had not had the time to prepare for the examination. And in any case, Church continued, his coauthor, Frederick Peterson, had written the words that Darrow had quoted. The preface, Church explained, stated that Church had been responsible for the sections on neurology and that Peterson had contributed the second section on psychiatry.
It was an evasive response. Darrow pointed out that Church would not have put his name to a book if he had disagreed with the contents. Did he agree with the words that Peterson had written on the procedure for a psychiatric examination? "Doctor, don't you think," Darrow asked, "you share in the responsibility, when you let nine editions go out? . . . And you would not question what I have been reading as being correct, would you, that is, as being proper in the examination of a patient, would you?"24
But Church refused to concede Darrow's point. Frederick Peterson had written the words quoted by Darrow--and he, Church, was not responsible for that section of the book.
"Just a moment," Robert Crowe interrupted, appealing to the judge. "I object to cross examining upon a textbook, a portion of which--and the portion that he is being cross-examined on--he did not write, and disclaims any responsibility for. . . . You can only crossexamine him on something that he has based his opinion on in this case." How could Darrow cross-examine the witness on something that Church had not written? And, in any case, Crowe continued, the words that Darrow had quoted had not been introduced into testimony on direct examination.25
It was an inconclusive argument. But Darrow had already made his point. Church had had insufficient opportunity for a proper examination of the defendants. He could not plausibly assert that Richard and Nathan were free of mental disease.
Other witnesses for the state had no recourse but to concede that the inadequacy of the examination was the weakest link in the state's case. There had been insufficient time on 1 June for the psychiatrists properly to evaluate the mental condition of Nathan Leopold and Richard Loeb. Benjamin Bachrach, in his cross-examination of Hugh Patrick, pushed the witness to accept the same inevitable conclusion: that the brevity of the examination, along with the conditions under which it had taken place, nullified any judgment the state's psychiatrists might make. There had been at least fifteen people in the room at the time of the examination--how could any analysis of any value be obtained under such conditions?
Just how many people, Bachrach asked Patrick, had been in the room that afternoon? Ten? Fifteen? Or perhaps as many as seventeen?
* * *
"I suppose," Patrick answered cautiously, "there were about ten people there or something like that. There may have been more."
"Don't you think," Bachrach responded, "there were about fifteen?"
"No, I shouldn't think there were fifteen, but it was possible."
"Let us count them," Bachrach spoke decisively, armed with the confidence that came from knowing the answer to his question. "There were the state's attorney and three assistants. That is four."
"Four, and the two prisoners make six," Patrick agreed.
"Six."
There had been three psychiatrists and one physician present as well as several police officers--perhaps there had been as many as fifteen persons in the room.
"And four doctors are ten," Patrick conceded reluctantly. "Well it might go to fifteen. . . ."
"And two stenographers?" Bachrach demanded impatiently.
"Yes, two stenographers. I guess it would reach--"
"A b out s e ve nte e n ? "
"Well, I don't think so, but I don't know."
Bachrach smiled, flushed with victory. "Did you ever in your life," he asked with mock incredulity, "make an examination of any person, as to his mental state, under circumstances of that kind before?"
"I think not."26
Harold Douglas Singer, professor a nd chair of psychiatry at the University of Illinois, succeeded Patrick on the witness stand. Singer, a tall, gangly man with a distinctive British accent, had studied medicine at St. Thomas's Hospital in London before moving to the United States in 1904 to become an associate professor of neurolog y at Creighton University. Singer had stayed in Nebraska only three years before moving to Illinois as director of the State Psychopathic Institute. He had taken up his present position at the University of Illinois in 1919.
27
Singer had read the Bowman-Hulbert report and had met brief ly with Nathan and Richard in the state's attorney's office; he had been a constant presence in the courtroom and had heard the evidence presented by both sides. There had been nothing in the testimony, he stated in reply to a question from Milton Smith, assistant state's attorney, that would indicate mental disease in Leopold and Loeb. Indeed, the evidence presented in court argued against the presence of mental illness. The planning of the murder, the preparation of the alibis, the disposal of the body--all showed that Nathan and Richard had had sufficient mental acuity to calculate and to organize, and in that sense they were normal.
28
What about the psychoanalytic evidence introduced by the defense psychiatrists? Did Richard's fantasy that he was a master criminal have any significance in assessing the character of the crime? Fantasy, Singer replied, was a means of satisfying wishes that could not otherwise be fulfilled. "The phantasy life of an individual," Singer explained, "represents the striving of certain longings or appetites for expression, being prohibited by the social conditions under which he lives, more or less. The phantasy life, therefore, represents the dreaming of his longings as being fulfilled. It is a way of meeting desires which is permissible in society because it will not lead to difficulties." Richard's fantasy--a career as a master criminal--indicated merely a desire for excitement. Nathan's fantasy--as a powerful slave to a grateful king--represented, according to Singer, homosexual desire.
29
Clarence Darrow listened attentively. There was a book on the table in front of him, and occasionally, as Singer continued to talk, Darrow thumbed through it absentmindedly. It was a copy of Singer's
Insanity and Law: A Treatise on Forensic Psychiatry, cowritten with William Krohn and published earlier that year. Darrow had read the book and prepared his questions; soon he would begin his interrogation of the witness.
Milton Smith had now finished his examination; he had no further questions. Darrow, his left hand hooked behind one gallus as though to prevent it from snapping back, approached the witness stand, holding his copy of Singer's book in his right hand. Was it not true, Darrow began, that Singer had written in
Insanity and Law that mental illness often lay dormant, unseen, until precipitated into visibility by the stress of circumstances? Some individuals coped successfully with the demands of everyday life; in such cases, mental disease might never reveal itself. Others, according to Singer, succumbed to external conditions in ways that revealed what had previously been hidden.
Darrow started to read from
Illustration unavailable for electronic edition. Insanity and Law, glancing occasionally at the witness. " 'It would,' " Darrow began, reading back to Singer, " 'be a mistake to assume that every person with a schizophrenic trend is going to develop a psychosis or become insane. Very many never do so at all, possibly because the complexes that are split off do not involve a very large part of the man's personality, or because the conditions under which he has to live do not make demands that he cannot meet
sufficiently well. . . . One of the subgroups of dementia praecox comprises such individuals under the name of dementia simplex. They do not often come under the observation of the psychiatrist and have but little importance. . . . It is readily intelligible, however, that the outbreak of a
psychosis is especially liable to occur when special demands in the way of responsibility and direct contact with the real world are made. One such period is that of leaving school and emancipation from home control.' "
30
Singer had described latent schizophrenia and had characterized the conditions under which the schizophrenic patient might become psychotic--did not his description apply accurately to Richard Loeb? Singer had also described the onset of psychosis; it manifested itself, according to
Insanity and Law, in a series of violent acts, apparently random and unforeseen, for which the psychotic individual showed neither remorse nor regret.
Darrow resumed reading from the book he held in his right hand: " 'The outbreak is sudden, unexpected, . . . and apparently without motive; a truly impulsive and unconsidered act. The man's attitude toward the deed after its accomplishment is devoid of remorse. It is almost as though he fails to accept authorship, he is not a free agent, and he apparently often experiences considerable relief after the act is performed.' " Was that not also an accurate description of the murder of Bobby Franks? Neither Richard Loeb nor Nathan Leopold had had any reason to kill a fourteen-year-old boy; and the murder had been unexpected and unforeseen; and neither Richard nor Nathan had expressed any remorse for their deed. On the contrary, both boys had adopted a cocky, dismissive attitude toward the murder.
31
Darrow had hoped to force Singer into a contradiction--between, on the one hand, the analysis presented in
Insanity and Law and, on the other, the claim that both boys were free of mental illness--but the attempt could not be sustained: the terms of the debate were too imprecise. Singer always managed to find some qualification that helped shift the meaning of his words; and, in any case, too little was known of the defendants to match description with reality. Neither the experts for the state nor those for the defense had been able, in their descriptions on the witness stand, to capture the essence of those two inscrutable boys. Darrow's psychiatrists had spent weeks examining Nathan and Leopold, yet their inner characters seemed as elusive as ever. Crowe's experts had resolutely persisted in proclaiming the normality of the defendants, but how could such claims be sustained when neither boy felt regret for such a crime?
