by Simon Baatz
Darrow had undoubtedly undercut the state's claim that Nathan and Richard were normal; it was apparent that the state's experts had conducted a superficial and largely meaningless examination. Yet Darrow had won no concessions from the state; none of the witnesses had conceded any sign of mental illness in the defendants.
Now the hearing had reached its conclusion. Each side had presented its evidence. The defense had demonstrated the character and extent of the mental illnesses that inflicted Nathan Leopold and Richard Loeb. It would not be just for the judge to exercise the extreme penalty of the law on two defendants so clearly aff licted with mental disease.
The state had made its case also. It would be preposterous to mitigate the punishment on the grounds of mental illness. The defendants were entirely rational. They had shown no signs of impairment either before or after the crime, and now, inside the courtroom, they appeared normal. Capital punishment was entirely appropriate in such a case.
It remained only for the judge to hear the closing statements from each side. It seemed that both defense and prosecution had already said all they wanted to say--there was surely nothing new to add. But Robert Crowe was to give the final summation, following immediately after Clarence Darrow, and Crowe had prepared a surprise that would catch the defense unawares. And Crowe had the final word--it would not be possible for the defense to rebut his allegations.
15 CLOSING STATEMENTS Tuesday, 19 August 1924-Thursday, 28 August 1924
The penalty under the laws of the State of Illinois for aggravated, deliberate murder, is death. . . . If this is not an aggravated deliberate murder on the facts as they are before the court, if this is not a murder of the extreme type on the facts, then of course a lesser penalty can be invoked; but when, as here, the greatest turpitude, months of detailed planning, careful execution of every detail, a money motive, a kidnaping for ransom, the deliberate murder, the cruel blows of a sharp steel chisel, the gagging, the death and the hiding of the body all appear as they do in this case, the malice and deliberation take the crime out of the scale of lesser penalties and prescribe death.
1Thomas Marshall, assistant state's attorney for Cook County, 19 August 1924
I want to say, your honor, that if we do not hang these two most brutal murderers, we might just as well abolish capital punishment, because it will mean nothing in our law. . . . Murder must stop, and the only way you will stop murder is by hanging the murderers; and if your honor hangs these two murderers, it will set an example to the others, if we have any of them among us, that justice is swift, and that justice is sure, and that if they fail to live up to the letter of the law they will receive the extreme penalty of the law.
2Joseph Savage, assistant state's attorney for Cook County, 21 August 1924
Walter Krauser waited at the corner of Halsted and West 47th streets. It was a cold December morning, just one week before Christmas 1922, and Krauser could feel the wintry chill penetrating his thin jacket. He stamped his feet in a futile attempt to keep warm and cursed his friend, Bernard Grant, for his want of punctuality.
Both boys--Krauser was nineteen; Grant, eighteen--lived in Back of the Yards, a notorious slum area, in dilapidated ramshackle terrace houses built at the turn of the century for the stockyard workers. Both boys had criminal records: Krauser was a petty thief, known to the police for a string of burglaries; Grant had been arrested a dozen times already, once in connection with the murder of Frank McGurk, a police sergeant shot during a payroll robbery. Both boys were unemployed and looking for work, but even at the height of the Christmas season, there were no jobs for two unschooled illiterate teenagers.
3
The second boy finally appeared, and they started south, down Halsted. It was still only seven o'clock, too early in the morning to be looking for work; the storekeepers had not yet begun to unlock their shutters and open for business.
They drifted haphazardly from street to street. There was no plan; they did not, if truth be told, even know how to begin looking for work or where to find it.
The streets were still relatively deserted in the morning darkness; dawn had just broken and only now were the storekeepers throwing up the blinds and shutters. Krauser touched the revolver in his jacket pocket and ran his index finger down the barrel. Perhaps, he thought, it would be easier to rob a store than to find a job.
Krauser stopped his companion in front of the Atlantic and Pacific Tea Store at 5361 Morgan Street. Through the front of the store, they could see the manager, Daniel Glass, moving around behind the counter, stepping up and down a short ladder, stacking cans on the shelves above him.
Krauser and Grant peered again into the store, more intently this time, to look beyond Glass into the interior of the store, to see if he was alone. Grant nudged his accomplice with his elbow; the store was empty. As they passed through the doorway, Krauser drew his gun from his jacket and held it in his right hand.
They had no intent to kill; they only wanted the cash in the register. Krauser held Glass at gunpoint while Grant searched for the money in the cash drawer. Krauser ordered the manager to the back of the store-- if they could find some rope in the storeroom, they would tie him up and make good their escape.
Inside the storeroom, unaware of the drama that was making its way toward him, Ralph Souders sat reading the morning newspaper. There had recently been a rash of robberies of A&P stores in the area. Souders, a probationary policeman, was about to begin the morning shift guarding the store. His gun lay on a chair beside him; his right hand held a cigarette.
As Krauser entered the storeroom, he suddenly saw the policeman. Grant was following close behind. Krauser barked out a warning to his accomplice, "Get the copper's gun!"
Souders looked up in surprise. His cigarette fell to the f loor as he jumped up, away from his chair. The policeman grabbed for Krauser's gun; the three men struggled together in the middle of the room and suddenly there was a loud explosion--the gun had gone off, and two more shots were fired in rapid succession.
4
Ralph Souders, who was killed, left behind a young widow, Mary, with one young child and a second expected the following April. Detectives picked up Krauser and Grant that evening, and within hours both had confessed to the murder of the young policeman.
5
The court sentenced both boys to hang, but appeals to the Illinois supreme court delayed their execution. By August 1924, twenty months after Souders's death, Krauser and Grant still waited on death row for the final disposition of their cases.
6
On Tuesday, 19 August 1924, Thomas Marshall, assistant state's attorney for Cook County, stood in front of John Caverly in the sixthf loor courtroom in the Criminal Court Building. The hearing on Nathan Leopold and Richard Loeb was almost concluded; the state had questioned its last witness, and now Marshall was presenting his closing statement on behalf of the state.
What sort of justice, Marshall demanded, would prevail in Chicago's courts if Krauser and Grant went to the scaffold while Leopold and Loeb escaped with a prison sentence? The Criminal Court had sentenced Walter Krauser and Bernard Grant to death for the killing of a young policeman, but there had been no forethought, no premeditation, in their act. Neither Krauser nor Grant had been aware that Ralph Souders was on the premises; they had intended merely to rob the store. The shooting had been incidental to the robbery. "There was," Marshall explained, "no deliberate original intention to commit the murder of that police officer. There was no thought of the murder of that police officer."
7
And what, Marshall asked, of Leopold and Loeb and the murder of Bobby Franks?
Nathan Leopold and Richard Loeb had plotted and planned the murder for six months. They had been meticulous in their preparations, preparations that had included the use of alibis and false identities and the rehearsal of the scheme to obtain the ransom. There had been nothing impulsive about the killing of Bobby Franks. Few crimes in the history of Chicago, Marshall stated, had shown as de
tailed preparation and premeditation as the murder of this fourteen-year-old boy. Yet Darrow dared to ask for mitigation of punishment!
At the time of the killing, Krauser and Grant were both young men--nineteen and eighteen years old, respectively--but, apart from their youth, they were as unlike Leopold and Loeb as one could imagine. Krauser and Grant had grown up in the squalid slum district known as Back of the Yards, west of the meatpacking plants on the South Side. They had known only poverty and destitution; both had come from broken homes; they had had no schooling worth the name; both were illiterate. Their original crime, the robbery of the A&P store, Marshall suggested, had been born almost of necessity, and the murder of the policeman had been an unseen consequence.
What a contrast, Marshall exclaimed, with those pampered, wealthy, self-indulgent killers, Nathan Leopold and Richard Loeb! Leopold and Loeb had breezed through life, with all the advantages that money could buy. Their parents had showered them with all the luxuries they could desire.
Bernard Grant had not even fired the gun that had sent the bullets into Ralph Souders. And yet now he sat in his cell, awaiting execution on 17 October. How, Marshall exclaimed, could the court not give Leopold and Loeb the same sentence--death by hanging--that Grant had received?
"Shall Grant, who killed a police officer in a struggle in a robbery in that store . . . go to the gallows . . . when men of the same age, of greater education, of better opportunity, can deliberately plan and scheme a murder and kidnaping for ransom for months and months, carry it into execution and by any possibility escape that penalty? Grant . . . committed an atrocious crime, but in comparison the crime at bar revolts whereas Grant's crime can be understood."8
Darrow had asked that his clients' age mitigate the punishment. But many youths in Cook County--some younger even than Nathan Leopold and Richard Loeb--had received the death penalty for murder, and none had killed with comparable deliberation.
David Anderson, a nineteen-year-old executed for murder in 1908, was a case in point, Marshall explained. Anderson had been present when a companion, Albert McGagg, had shot and killed a plainclothes detective on the street. At his trial, the state had failed even to show that Anderson had drawn his revolver. Nevertheless, the court had found Anderson guilty of murder and had sentenced him to death, a verdict later upheld by the Illinois supreme court.9
Nicholas Viani, a member of the Cardinella gang, was only seventeen years old when he killed Andrew Bowman, a saloon keeper, during the robbery of a restaurant on Canal Street, near the factory district. Perhaps, Marshall suggested, a clever and resourceful lawyer might have appealed in that case for mitigation of punishment, just as Darrow had. Salvatore Cardinella, a thirty-nine-year-old Sicilian, had initiated Viani into a life of crime. Cardinella was a notorious fagin, infamous for his ability to manipulate young boys; Viani, who ended his life on the scaffold, was one of the less fortunate boys drawn into Cardinella's spiderweb. How, Marshall demanded, could one compare Viani's crime--a bungled robbery that turned, in a moment, without premeditation, into murder--to the deliberate and calculated killing of Bobby Franks?10
Marshall continued to read from his list of men executed by Cook County for murder. Thomas Schultz, nineteen years old; Thomas Errico, nineteen; Leonard Crapo, nineteen; William Yancey Mills, twenty-one; Dennis Anderson, twenty-one; Andrew Williams, twenty-two; John (Smiling Jack) O'Brien, twenty-two; Frank Camponi, twenty-two; John Henry Riese, twenty-two. All had ended their lives swinging from the beam of a scaffold in the Cook County jail, yet none of them, not one, Marshall emphasized, had planned his crime with as much deliberation as Leopold and Loeb in the killing of Bobby Franks.11
If Leopold's and Loeb's youth did not mitigate the crime, then what of Darrow's plea that their mental condition should save them from the gallows? Marshall reminded the court that the defendants had pleaded guilty to the murder. Both, therefore, had admitted responsibility. But responsibility for an action was not divisible; in law, a defendant was either responsible or, alternatively, bore no responsibility at all. The defense had admitted responsibility and, with its admission, had conceded that Leopold and Loeb were eligible for the penitentiary. And if they were eligible for the penitentiary, they were equally eligible for the gallows.
The court, Marshall argued, should impose its sentence not in consideration of the mental condition of the defendants--"their fate is deter m i ned not by wea k m i nd or pha nta sy, delusion, or menta l d i s e a s e"-- but with regard to the gravity of the offense.12
Murder was punishable in Illinois by a sentence of death, by life in the penitentiary, or by a prison sentence not less than fourteen years. The state legislature allowed judicial discretion in the determination of punishment. But that discretion, Marshall reminded Caverly, should give effect to "the will of the law, not the will of the individual. . . . By judicial discretion is meant sound discretion guided by law, not an arbitrary discretion, never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law."13
And in the case now before the court, the crime was so f lagrantly willful, so deliberate and premeditated, that Caverly, if he were to give effect to the law, had little choice but to impose the death penalty. The killing of Bobby Franks was unique, Marshall claimed, in the degree of preparation and forethought that had preceded it; and the callousness of the act, an act committed more as an intellectual exercise than as a crime of passion, gave the murder an especially horrific aspect. There were no mitigating circumstances; there were abundant aggravating circumstances; and both defendants, moreover, had confessed their guilt and admitted responsibility! The murder cried out for the death penalty; any other sentence would be a travesty.
"A fourteen year old helpless school boy lured by deceit into the automobile, by two stout robust young men, bent upon murder, bent upon kidnaping for ransom, for Ten Thousand Dollars in old bills; lured into that car, seated in the front seat to talk about a tennis racket with his friend, whom he had known for a long time; and while he is facing forward in that car, talking about a tennis racket, he is beaten upon the head with a steel chisel, and his life crushed out at the hands of two strong young men,--a helpless boy."
Marshall had already spoken for almost two days--his voice was hoarse--and now he had almost finished. "There is nothing in Illinois jurisprudence that compares with it. It cannot be found on the books. . . . And so upon the whole of the record, compare all of the Illinois cases I have cited from the beginning down to this moment, and nowhere in any of them will you find the premeditation, the deliberate malice, the cunning plans, the months of preparation, the thought, the science, the ability. . . . There is only one sentence that can be imposed upon these vile culprits. . . . Any lesser penalty than the extreme penalty of the law under such circumstances and upon the record in this case, would make a mockery of the law itself."14
Walter Bachrach, in his response for the defense, replied that Thomas Marshall was wrong to say that the defense had advanced mental illness to dilute the responsibility of Nathan and Richard for the murder. Bachrach seemed to have a calming inf luence on the courtroom; his manner, as he stood before the bench, was thoughtful, even scholarly; his sentences, precise and neat, seemed designed to dissect Marshall's erroneous logic; and his voice, smooth and silky, drifted through the warm, moist air of the courtroom, lulling his audience into agreement. The defense admitted full responsibility for the crime, Bachrach stated; what other conclusion could one draw from a plea of guilty? And responsibility was not, of course, divisible; one could not be partially responsible for an action.
15
But the judge, Bachrach continued, had a duty and a right to consider the circumstances of the murder when deliberating on the appropriate punishment. The Illinois legislature had provided the court with discretion in fixing the penalty for the crime. It expected the court to examine the condition of the murderer in sentenci
ng him. A man who had killed the seducer of his wife might, for example, have acted in a jealous rage, out of sudden anger; surely, under those circumstances, the court would take into account the mental condition of the murderer when determining punishment.
16
Age, also, was a mitigating circumstance; a child had not the same judgment, knowledge, or experience that one would expect to find in an adult. There was not, therefore, the same degree of deliberation in the action of a child as in the action of an adult, and as a consequence the court would determine on a lesser punishment.
17
Was not an individual suffering from mental illness comparable to a child? Both lacked the ability to comprehend the effect of their actions on others; both lacked knowledge and experience in successful social relations; and both lacked, therefore, awareness and understanding of moral behavior. The defense had demonstrated mental illness in Nathan and Richard, but this was not an attempt to evade responsibility, Bachrach explained. Just as their youth was an aspect of the case that called for a lesser punishment, so their mental condition also mitigated punishment.
18
And, of course, there was no doubt that both Nathan and Richard were mentally ill. Nathan was a paranoiac. He displayed all the symptoms of someone suffering from a paranoid psychosis: delusions of grandeur, self-satisfied superiority, disregard of others, and exaggerated self-importance. Nathan, in letters to Richard Loeb and in comments to classmates at the University of Chicago, had repeatedly represented himself as a superman who had no need either to behave according to the law or to conform to social convention. His philosophy was an individualistic hedonism that held others in contempt; whatever gave him pleasure or satisfaction determined his daily course of action.
