For the Thrill of It

by Simon Baatz

  Of course, Hughes had heard the rumor that the fathers of the boys were preparing to spend millions of dollars in defense of their sons—but how could their wealth stand against such an accumulation of evidence? “They talk about ‘millions for defense,’” Hughes said, “but I don’t believe all the money in the world could save these boys.”14

  Thomas Marshall, an assistant state’s attorney, explained to the same reporter the precautions taken by the state in drawing up the indictments. There was, for example, some ambiguity over the cause of death. Had Bobby Franks died from the blows to the head or from asphyxiation when Richard had jammed the rag down his throat? Or perhaps the murderers had poisoned the boy with the hydrochloric acid. The coroner’s physician, Joseph Springer, had determined that asphyxiation was the cause of death, but Robert Crowe was taking no chances: the indictments for murder and kidnapping had to be sufficiently broad to cover all possible challenges from the defense.

  Marshall’s final draft of the murder indictment contained eleven counts: the first count charged murder with a chisel; the second, murder with a club; and the third, murder by smothering with a bandage. Other counts included smothering with a piece of cloth; murder with chisel, club, and smothering; smothering with hands; smothering with hands and a cloth gag; killing with deadly poisons; and poisoning with unknown ingredients.15

  The second indictment, charging Leopold and Loeb with kidnapping for ransom, contained sixteen counts: seizing and confining for the purpose of extorting money; inveigling, decoying, and kidnapping for ransom; seizing and confining for $10,000; inveigling to extort $10,000; and so on. Each count repeated the same charge, albeit in different phrases.16

  By the end of the week, the jurors had heard enough evidence; they would now vote on the indictments. Frederick Hoffman, the foreman of the grand jury, announced that the jurors had endorsed both indictments; the state’s attorney had indeed demonstrated that the evidence warranted the prosecution of Nathan Leopold and Richard Loeb.17

  IT WAS A PREDICTABLE OUTCOME, of course: no one had expected the grand jury to refuse the indictments. Robert Crowe was satisfied with the result and boasted to the press that it was “the most complete case ever presented to a grand or petit jury. The evidence against the two undoubtedly constitutes a hanging case.” But did not Crowe’s case, one reporter asked, rest on the confessions? What if Leopold and Loeb repudiated the confessions? And if the judge excluded the confessions because the police had obtained them by duress, how would Crowe’s case stand then?

  “When this murder trial is called,” Crowe replied, “I shall place on the stand the three stenographers from the state’s attorney’s office who alternated in taking the statements from Leopold and Loeb…. The stenographers will be backed by attorneys, police officers and other witnesses who were present when Leopold and Loeb declared they had kidnaped and murdered young Franks. I am confident that…we will be able to get the two youths’ statements before the jury in the event they repudiate their confessions and plead not guilty of the crime.”18

  It was not true that his men had tortured the prisoners. “They were not given ‘goldfish’ treatment or kept in ‘goldfish’ rooms,” Crowe asserted, using the slang term for a beating by the police. “Because of kindness mixed with firmness, we were able to obtain the confessions, which were voluntary and given without fear…. No one ever laid a hand on them or spoke a harsh word to them.”19

  Crowe reminded the reporters that he also had handwritten notes that Leopold and Loeb had made on each other’s account of the slaying. Each had recounted the killing in Crowe’s office on Sunday, 1 June, but the boys’ versions of the murder had differed in certain details—most significantly, each had accused the other of striking the blows with the chisel—and the state’s attorney had helpfully suggested that each boy make notes on the other’s version of events.

  They had complied, willingly, even enthusiastically, not realizing that their notes might be used by the state’s attorney as evidence against them. Crowe had now secured those notes—he had locked them away in a safe in his office—and he intended to use them to convince a jury, first, that the prisoners had given their confessions voluntarily; and, second, that both of the accused were aware of the nature of their crime and hence were, in a legal sense, sane.20

  Crowe’s optimism that his evidence against the boys was sufficient to send them to the gallows found an echo among other, less partisan, legal observers. Nevertheless, it was cause for concern that Clarence Darrow might exploit some technicality to free his clients; he had done it in the past and he might do it again. Leopold and Loeb were guilty, of course, but would they therefore necessarily receive the appropriate punishment? Or would their lawyers find some loophole that would allow the accused to get off lightly?

  John Clinnin, a former district attorney, was cautiously optimistic that justice would prevail but warned, nevertheless, that Crowe should zealously watch for any tricks from the defense. “I am certain,” Clinnin remarked, after the grand jury had voted on the indictments, “that Mr. Crowe will prosecute this case to the full extent of his power…. But the people are watching the case with very suspicious eyes because of the money involved. The state must be on its guard at every point of the legal conflict.”

  Julius Smietanka, a member of the Board of Education, agreed with Clinnin that Crowe should be on guard. Smietanka urged that the trial “be expedited in every possible way. Public feeling is running high and there will be no toleration of unnecessary delay…. The full penalty of the law should be invoked.”21

  Leopold and Loeb had already confessed; there were no mitigating circumstances; a jury would surely find them guilty; and the sentencing would quickly follow. Any delay would, therefore, assist the defense: public feeling would die down and the atrocity of the murder would be forgotten. Edmund Jarecki, a judge on the County Court, wondered why the United States “should not follow the example of England in expediting its trials in criminal cases and particularly in a case like this one. I am sure,” Jarecki continued, “that the state will not lose any time in satisfying the public demand that justice be done in this case.”22

  Constitutional rights seemed beside the point in a case such as this. The killers had confessed and had substantiated their confessions by revealing physical evidence of their crime to the police. What more needed to be said? Of course, Nathan Leopold and Richard Loeb did have the right to a trial, but there was not much more that the law should grant them, at least according to the editor of the Chicago Herald and Examiner: “For every reason this is a case for steady judgment and not for the introduction of technicalities. The remaining right of the young men who have confessed is for such a trial…. The people of this city, whom this thing has shaken with its horror, have a right to immediate procedure. This is not a case the details of which anybody cares to cherish in his memory…. Delay can serve no purpose of justice. The evidence is at hand; there is not need to wait for distant witnesses or to search for hidden testimony…. The quick, firm action of investigation calls for equally quick and firm action in prosecution!”23

  Already, rumors were circulating that the families were prepared to spend as much money as was necessary to free the boys. Albert Loeb had, according to one report, paid Clarence Darrow a retainer of $25,000 and had provided Darrow with $1 million to spend on the defense.

  The grand jury had recommended that Leopold and Loeb be held for trial without bond, but now a second rumor, that the defense would attempt to have the prisoners released on bail, had appeared in the newspapers. And would Darrow seek to move the trial out of Cook County, thus incurring additional delay, arguing that the notoriety of the case made it impossible to obtain an unprejudiced jury in Chicago?

  Public opinion had never favored the murderers of Bobby Franks, and now, as it appeared probable that Darrow would use some subterfuge to evade justice, public sentiment hardened in favor of the death penalty for Leopold and Loeb. Chicagoans who had previously opposed capit
al punishment wrote to the newspapers demanding that the murderers be sent to the gallows. Both Leopold and Loeb had confessed their guilt and had yet to express any remorse for the killing; why, therefore, should they be spared the noose?24

  On Friday, 6 June, Albert Loeb and Nathan Leopold Sr. issued a joint statement denying their intention to influence the result by using their wealth. Their sons would expect the same treatment in a court of law that every American was entitled to receive—nothing more and nothing less—and rumors that the fathers would use their fortunes to evade justice were unfounded: “the families of the accused boys…have not the slightest inclination or intention to use their means to stage an unsightly legal battle with an elaborate array of counsel and an army of high-priced alienists in an attempt to defeat justice. Only such defense as that to which every human being is entitled will be provided for their sons.

  “They emphatically state that no counsel for the accused boys will be retained other than those lawyers now representing them, with the possible, but not probable, retention of one additional local lawyer. There will be no large sums of money spent either for legal or medical talent. The fees to be paid to medical experts will be only such fees as are ordinary and usual for similar testimony.

  “The lawyers representing the accused boys have agreed that the amount of their fees shall be determined by a committee composed of the officers of the Chicago Bar association.

  “If the accused boys are found by a jury to be not mentally responsible, their families, in accordance with their conscious duty toward the community, agree that the public must be fully protected from any future menace by these boys. In no event will the families of the accused boys use money in any attempt to defeat justice.”25

  The letter was eminently reasonable, calculated to appeal to the better instincts of Chicagoans. All of Chicago’s newspapers printed the statement, and most also published editorials praising the fathers and supporting their sons’ right to a fair trial. The Chicago Daily Tribune, which considered itself the highest-minded of the city’s newspapers, expressed itself satisfied with the fathers’ statement and confident that the lawyers would conduct the defense on its merits: “Undoubtedly there was a very general assumption in the public mind that money would be used without stint to retard, complicate, and, if possible, defeat the ends of justice and the public good. The American public has had too much reason to fear such procedure. It sees year in and year out the escape of offenders through the meshes of the law, in cases where the accused has fewer resources of evasion than the accused in this case possess…. The determination of the families concerned in the coming trial to regard their duty to the community as well as the legitimate rights of the accused, should ease public disquiet.”26

  ON WEDNESDAY, 11 JUNE, at ten o’clock in the morning, Richard Loeb and Nathan Leopold stood before the judge’s bench in the sixth-floor courtroom in the Cook County Criminal Court. Anticipation had been mounting throughout the week; hundreds of spectators had been standing outside the building at seven o’clock that morning, hoping to gain entrance; hundreds more had descended on Austin Avenue in the interim; and now the courtroom was packed. Peter Hoffman, the sheriff, had been caught unawares; he had ordered a special detail of fifteen deputies, in addition to the customary guard, but it had been inadequate to control the thousands of Chicagoans who tried to enter the building. The crowd, in its initial surge to enter the courtroom, had torn one of the heavy oak doors off its hinges, and now a line of bailiffs stood in the doorway, nightsticks drawn, ready to repel a second invasion of the courtroom.

  Inside the courtroom, hundreds of spectators squeezed into every available space. Some sat, precariously, on the windowsills; others stood in the aisles or leaned against the walls; and others stood on temporary benches at the rear of the room, craning their necks over the heads of the crowd for a glimpse of the accused.27

  John Caverly, chief justice of the Criminal Court, peered down from the bench at the crowd in front of him. The previous day, Caverly had announced that he would be the trial judge. Frederic Robert DeYoung, a judge on the Superior Court, would normally have presided over the trial (since he was first in sequence), but he was to ascend to the Illinois supreme court on 19 June. Since DeYoung might hear the case on appeal, Caverly had decided that he himself would be a better choice.28

  Caverly’s decision had pleased Darrow. Caverly was a liberal judge. During his three years on the Criminal Court, he had sentenced five men to death, but in each case he had merely been giving formal utterance to a decision of the jury. And on the one occasion when Caverly might have sentenced a prisoner to hang—when Sam Rosen pleaded guilty to the brutal murder of his wife, Jennie—he had handed down a life sentence instead.29

  Caverly waited patiently for the crowd to come to order. On his left, just a few feet away, Robert Crowe sat with his assistants—John Sbarbaro, Joseph Savage, and Thomas Marshall—at the prosecution table. Caverly could see Samuel Ettelson, representing the Franks family, sitting immediately behind Crowe; at Ettelson’s side, Caverly noticed the wan figure of Jacob Franks, wearing a coal-black suit, white shirt, and black necktie, his eyeglasses dangling from a black ribbon attached to his waistcoat.

  Across the aisle from Crowe, on Caverly’s right, Clarence Darrow sat next to Benjamin Bachrach. Nathan Leopold and Richard Loeb, each accompanied by a guard, sat directly behind their attorneys. Bachrach was a familiar figure in the Criminal Court and a celebrated attorney in his own right. He had graduated from the University of Notre Dame, and, after studying at Columbia University, had returned to Chicago to receive his law degree from the Kent College of Law in 1896. Bachrach had a magical touch in the courtroom, winning acquittals for prominent and wealthy clients charged with murder, embezzlement, conspiracy, and fraud.30

  20. JOHN CAVERLY. After studying law at Lake Forest University, Caverly was elected city attorney of Chicago in 1906. In 1910 he won the election for judge of the Municipal Court. He served on the Municipal Court until 1920, when he was elected to the Circuit Court. Caverly served as chief justice of the Cook County Criminal Court in 1923 and 1924.

  Bachrach, like Darrow, had made his reputation in a series of sensational trials, most notably in his defense of Jack Johnson, the black heavyweight boxing champion. Johnson, a flamboyant extrovert who had outraged public opinion by marrying a white woman, had paid the train fare for a woman friend to visit him from Pittsburgh. Unfortunately for Johnson, his friend also happened to be a prostitute, and federal authorities could thus charge Johnson with violating the White Slave Traffic Act, legislation that banned the promotion of prostitution across state lines. Bachrach doggedly fought Johnson’s case through the courts, and eventually the charges were dismissed in the Circuit Court of Appeals in April 1914. It had been an unpopular cause—Johnson, by far the most prominent black Chicagoan at the time, had become the most visible target for white hostility and racism in the city—yet Bachrach, in his defense of Johnson, had made his reputation as a methodical and persistent lawyer capable of successfully defending a client who had seemed destined for the penitentiary.31

  Darrow and Bachrach constituted a formidable defense team and a striking sartorial contrast. Whereas Darrow dressed carelessly, never bothering greatly about his appearance, Bachrach was impeccably dressed in a conservative business suit, white shirt, and expensive necktie. He was almost too meticulous, too careful about his appearance—journalists covering his cases occasionally poked fun at a fastidiousness that bordered on self-absorption.

  JOHN CAVERLY BROUGHT THE COURTROOM to order. The clerk of the court, Ferdinand Scherer, read the indictments and then turned toward the accused: “On June 6 the grand jury returned indictments, charging both of you with murder. Do you plead guilty or not guilty?”

  Richard Loeb answered first: “Not guilty, sir.” Leopold, standing slightly behind the other boy, repeated the same phrase.

  “On June 6 the grand jury returned indictments charging you two with kidnaping
for ransom. Do you plead guilty or not guilty?”

  “Not guilty.”

  The photographers maneuvered among the spectators at the front of the court, stepping around the bailiffs to get the best position; a dozen flashbulbs popped and hissed and crackled.

  Caverly motioned to Clarence Darrow and Benjamin Bachrach for the defense and Robert Crowe for the state to step forward.

  “This case,” Caverly began, “will be assigned to Branch No. 1, my own court. Have you gentlemen any objections?”

  Neither the defense nor the prosecution had any reason to protest against Caverly as the trial judge.

  “Have you gentlemen agreed upon a date for trial?” Caverly asked.

  “No, your honor,” answered Bachrach, “we haven’t had a chance.”

  “I would suggest,” Crowe interrupted, “that your honor follow out the procedure you have been adopting in murder cases and set this for an early date. July 15 would give the defense a month and a half for trial.”

  “This case is not in the class with other murder cases.” Darrow brushed his hair away from his eyes impatiently. “There isn’t a man in Chicago who would say we could get a fair trial within a month. We are as anxious as anyone to get ready, but we must have a fair trial.”