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ed fact, after Loeb made up his mind to confess, that he insisted very strenuously, that the crime originated in Leopold, and that Leopold was the person who struck the boy, stuck the gag in the mouth and did the other things that caused death, have any significance to you?
A I think not, under those circumstances, as drawing a conclusion about the essential elements that led up to the crime.
Q Does not that indicate to you that he was trying to avoid some of the graver consequences that might follow?
A Under the impulse of the moment, I presume he was.
Q And if he persisted in that from one o'clock Saturday morning until ten o'clock the following morning, when he fell into the hands of his lawyers, that would not be under the impulse of the moment, would it?
A Under the impulse of the situation.
Q Is there a difference between them?
A Or we might say, under the compulsion of the situation. i think a man under those circumstances is in a pretty difficult position.
Q Does it not indicate, seeing that the crime already had been uncovered, that he was trying to make it as easy for himself as possible?
A At that time, but he certainly has not with us since then in that or in other matters.
Q well, of course, as a matter of law it does not make any difference as to who actually did the killing, and it does not make any difference, as a matter of law, as to who originated the crime?
A That is what I suppose.
Q So if they had been so informed that would account for his change in attitude, wouldn't it?
A I don't know. It might have done.
Q It might?
A It might have done, yes.
Q Well, don't you think that is the reason they changed their attitude?
A I don't know even whether he was acquainted with that fact before or not. I should think he naturally should have been .
THE COURT: It is close to adjourning time now. We will suspend now until two o'clock.
Whereupon a recess was here
taken to 2 o'clock P.M. same
day, August 5th, 1924.
Tuesday, August 5, 1924.
2:00 o'clock P.M.
Court convened at 2:00 o'clock P.M. Tuesday,
August 5th, 1924, pursuant to adjournment
Present: Same as before.
D R. W I L L I A M J. H E A L Y ,
resumed the stand for further cross examination by Mr. Crowe as follows:
MR. CROWE: Q Now, doctor, in talking about the defendant Loeb you gave three or four examples of acts which showed his criminalistic tendencies. I believe that the first act was that some little boy next door buried some money and Loeb found it, dug it up and made off with it?
Q How old was he when that happened?
A He states he was about 9 years old.
Q And what did the other boy bury?
Q How much?
A I don't know that he remembers exactly, but my recollectionis that it was a dollar or two.
Q In a boy of nine is that unusual or abnormal?
A I think it is rather unusual.
Q Is it abnormal?
A Not necessarily. Proof of abnormal mentality. you mean?
A No, not necessarily.
Q So that standing by itself would not mean anything?
Q Now the next one was that he had a bonfire.
A No, there were other things.
Q Or he burnt something?
Q What was next.
A The next things was that he told me about was entering a window and getting some sort of vase.
Q Did he tell whose house he burglarized?
A A neighbor's house.
Q Did he tell you whose? A No.
Q Did he tell you when?
A Soon afterwards, as he remembers it.
Q When he was about -
A Nine or ten.
Q (Continuing) -
Q Well, outside of indicating that he was inclined to be a burglar, what else did that indicate to you?
MR. DARROW: I object to that question. It does not follow that it indicates that, if it does.
Q What did it indicate in itself, that act?
A That he was already following out some of the trends of his ideas, prompted by his imaginations that he has told me about.
Q That he had started on a criminal career?
Q That is not an unusual thing in a man who eventually commits murder, is it?
A I could not say that it was usual or unusual. Many people who commit murders have never done another act but of the way previously.
Q you are referring to crimes of passion?
Q Where people have been decent citizens, and their
passions are inflamed by something, and in real hot blood they kill?
Q You do not regard this as a crime of passion?
Q It is a cold-
Q So for the purpose of comparison is the inception of his criminal career any different than you would expect to find in other criminals?
A Entirely different.
Q Those two acts?
A Which two acts?
Q The one about the pot of gold, and burglarizing the neighbor's houses? You would expect to find acts of that sort in a great many criminals when they were young would they not?
A I don't have any great expectations of any kind with regard to criminals. They are so totally different, I find, as I examine them, that I have ceased to have any expectations about them whatever.
Q You are really not surprised at finding anything in the makeup of criminals, are you, you find so many different things?
A We find so many things of normality and abnormality.
Q What is "normal"?
A You are speaking, now, in the mental life?
A According to the general rules of understanding of such things, I should think it would be pretty self evident.
Q You tell me.
A A person who does not show any signs of mental disease.
Q In other words, it is what you find in a majority of the people?
Q Is not everybody somewhat abnormal?
A Are you asking that as a question? I refuse to answer yes, I don't know whether they are or not.
Q Generally speaking.
A I don't know.
Q The way that you arrive at a definition of what is normal is what you expect the majority of people to do, isn't it?
Q What is normal in china is not normal in chicago outside of Chinatown, is it?
A In some ways it is not, but I think mental disease runs pretty much the same sort of course and there are as many of the same symptoms among the Chinese as amongst Americans.
Q Is there any actual normal man?
A I suppose there is.
Q Is there?
A I think so.
Q Have you ever met one?
A I think so.
A A great many people.
Q Who is actually normal in every respect and that you can use as a standard by which to judge other people's actions as to whether they are normal?
MR. DARROW: We object. that is a purely theoretical question as to who is normal.
MR. CROWE: We have listened to so much theory the last three or four days that you have brought in that I would not expect you to object. Now I have been dealing with facts.
MR. DARROW: Suppose he said he had -
MR. CROWE: Well, let us find out.
THE COURT: Answer it if you can, doctor.
A That is a pretty difficult question to answer. I thought you were alleging just now that the majority of people were normal.
MR. CROWE: Q Is there any one man whose actions are to be taken as a standard in every respect by which to judge others?
A I think a great many men are.
Q In every respect?
A Yes, in every respect, as exhibiting normal mentality.
Q A person's personality has a great deal to do with his actions, has it not?
Q A perfectly normal man under one set of circumstances might get very indignant and angry and another person would pass it off with a laugh?
Q And they are both normal?
Q So that normal people do not act in the same way under the same circumstances?
A Not always.
Q Is there any one person whose acts you could use as a standard in every set of circumstances?
Q You say that normal people do not act in the same way under the same given set of circumstances?
Q One man may get very angry at a thing and another man be totally indifferent?
Q And another man would be amused by it?
Q Is there any one person who you can use as a standard to judge how normal people ought to act under a given set of circumstances?
A How every other person would act?
A I thought we decided that all people act differently or may act differently under different circumstances.
Q Then, in other words, there is not any one standard by which you can judge a normal person?
A You mean in regard to mental disease?
Q I don't know, doctor. You are a doctor, I am not.
A You are speaking about personality, the reaction of personality. You are now invading the field of mental disease and that is a totally different thing.
Q Is a normal person mentally diseased or mentally sane?
A A normal person is mentally sane.
Q What is the next act indicating a criminal tendency on the part of Loeb?
A I think, as I remember, I would not be quite sure of it, was stealing from shops about town.
Q That is in line with his desire to become a burglar?
A No, this is just stealing from shops, that is not burglary.
Q You make a distinction between stealing and burglary?
A Yes, indeed, naturally.
Q what did he steal?
A He named quite a number of different articles that he took from field's and scott's and other places about town. Just what those were, I don't believe I can remember off hand.
Q You were in the juvenile court in Chicago, were you not, about that time?
A Which time?
Q About the time in which he was doing these petty stealings?
A No, I don't know. Yes, approximately. I left here seven years ago.
Q Supposing he had been brought in each time he was caught stealing, how many times would he have to be brought into court before he would have been sent to St. Charles?
A I could not say. I noticed that a good many of them were brought in a good many times.
Q They are eventually sent out to St. Charles when it is apparent they are confirmed thieves, aren't they?
A A good many of them, not all of them.
Q Well, those that are not sent to St. Charles are sent to an insane asylum?
Q Or they are sent to some institution?
Q What is done with them? Turned loose on the street again?
A Most of them are worked with under probation, I believe, or used to be.
Q That is, when they come in the first three or four times, is it not?
A Yes, a good many times.
Q Well, you don't -
A Looking over the juvenile court records I find a good many of them have been six or seven times.
Q And placed on probation?
A Yes, frequently, when there is some well known cause of environment, so that the judge can feel that the condition might be altered, and frequently they do do better after that length of time.
Q How many times would Loeb have to be brought into the criminal courtbefore you would send him, if you were the judge, to st. Charles or some other institution?
A That I cannot answer.
Q As to whether or not -
A That I could not answer. That is a poser to me. I don't know what I should have done.
Q You know more about themmentally, you say, than anybody else?
A Beg pardon?
Q You know more about them mentally than we do?
A I didn't say so.
Q Well, do you think you do?
A I don't know what you know about him mentally, so I cannot say.
Q When did he have the bonfire?
A You mean burning up the shacks and so on?
A That I could not tell you, exactly when.
Q Did you ask him?
A Well, it is since his association with Leopold, certainly.
Q When did that begin?
A That began about four years ago.
Q whose shacks did they burn up?
A I do not know.
Q What time of day and time of the year was it?
A I don't know anything about it.
Q If it happened on Halloween night, would it make as deep an impression on you as if it happened at some other time?
A No. If they were bruning up people's barns, actually committing deliberate arson for the enjoyment of it, I should say yes.
Q How many did they tell you they burned up?
A they didn't tell me how many.
Q So your last answer does not clear the situation up even in your own mind, if they were burning up people's shacks? As a matter of fact, they only told you about burning one shack, is that not true?
Q How many did they say they burned up?
A They said buildings or barns or something of that sort.
Q No, can you tell?
A How many?
A Exactly, no.
Q Can you tell me exactly what they said, whether it is outhouses, shacks or buildings?
Q And you did not inquire?
Q If they had burned one shack up on a Halloween night or on election night, it would
not mean anything to you except that they were perfectly normal boys, busting out
with boyish -
A No, I have already answered that, that if they deliberately committed arson, and then as they told me they did, sent afterwards and mingled with the crowd in order to enjoy the talk as to how it was committed, my idea about it would be totally different, and it is.
Q You have not any suspicion that when they were telling you these things, that they were trying to fool you, have you?
A I don't see why they should feel in such matters.
Q When they were talking to the state's Attorney, before they had seen any lawyer, they were maintaining their innocence?
A Well, naturally.
Q You believe that they have sufficient intellect to understand that they were in a pretty bad hole by the time you got them, talked to them; they were in a pretty tight hole?
A Yes, of course they have.
Q and they have sufficient mentality to want to get out, like other people who get caught violatingthe law, haven't they?
Q They would like to beat this case if they could, wouldn't they?
A I don't know. I am not sure about that. I think in a way they would, but -
Q Do you think they want to hand?
A Beg pardon?
Q Do you think they want to hang?
A I don't really know whether they do or don't.
Q Well, does the fact that when Loeb found that the authorities had sufficient evidence against Leopold to charge him with the murder, the fact that he confessed and blamed the crime itself and the originating of the crime upon Leopold, throw any light on that subject to/you as to whether he wants to hand or whether he wanted to unload on his former king and pal, Leopold?
A I think that under these circumstances there would come to the front the natural
instinct of self-
Q And that is further confirmed by the proposition that before they confessed and when they were being questioned by the State's Attorney, they built up an alibi and denied all connection with and participation in the crime?
A That is what I should expect them to do, certainly. It would be part ofthe picture of one of their perfect crimes, as well as a part the idea that they would naturally like to preserve themselves as much as possible under the situation.
Q Then when they found out that they were not quite the master criminals that they thought, and the law had them in a firm grasp, you would naturally expect them to react and begin to build up a defense would you not?
A I should think they might.
Q And in order to build up that defense, these two men, who you and Doctor White
say have lied to everybody in the world, even the king lying to the slave and the
slave lying to the king, and both lying to the officers of the law, -
A I should think they would lie in the manner that they did, making themselves out to be a great deal worse that anyone suspected that they were before. I wouldn't expect them to, no.
Q What possible defense is there in this case, to prevent a hanging, unless by what they told you they would create a doubt in his honor's mind as to whether their minds were sound?
MR. DARROW: That is objected to because it does not follow that there is no other defense to prevent a hanging. Everybody is not so bloodthirsty.
THE COURT: Sustained.
MR. CROWE: Q What defense have these boys, except the story told by the alienists based on what they told you?
A I don't know anything about it.
Q A minute ago you were teaching me law, and showing me the difference between burglary and larceny. You have been in court a long while, have you not?
Q When it is going to hurt your defendants, you know nothing about it.
MR. DARROW: I object.
THE COURT: Strike it out.
MR. CROWE: Q Do you understand what defense is being put in here?
A Mitigation, is that it?
Q Do you think that if these boys had not told you about a phantasy life, a teddy bear, a desire to steal, burn, cheat at cards and lie, but had told you that they had lived the life of normal healthy boys, that you would be on the stand now?
A I should be perfectly willing to be.
Q do you think that Mr. Darrow or Mr. Bachrach would call you as a witness?
A No, but as I said before, we endeavored to get across to you every fact that we had, and not to go on the stand.
Q You would not expect to be a witness if they had told you they had lived a perfectly normal life, would you?
MR. DARROW: Objection.
THE COURT: Sustained.
MR. CROWE: Q Don't you think that in order to prepare the defense that is now being put in, they might have been educated by some other alienist or some lawyer so that they could give you a ground work on which you could base your conclusion?
A No, indeed.
Q Do you think that they would refrain from doing that because it was morally wrong to lie to a doctor?
A I don't think that they would.
Q What would cause them to hesitate to lie to you?
A I don't think they did lie. I think they started out and told their life story in an endeavor, for one thing, particularly for Leopold, and partly for Loeb, to really understand themselves.
Q They were not sitting in preparing a defense, then, but they were sitting in a clinic, to find out really what was the matter with them.
A We endeavored to make it exactly that. I told you before we endeavored to make it exactly the same conditions as obtain when we are studying cases for the juvenile court.
Q When Leopold began to plan with loeb this murder, and they stole the typewriter, what was acting then, his intellect or his emotions?
A His intellect, but always accompanied by some emotional life, as it always is.
Q What was the emotion that operated with his intellect?
A The desire to act this part of a superior individual, to fall in line with each
other, to get from each other what each wanted, -
Q This morning you said it was the intellect that acted.
A I am telling you now that intellect is always accompanied by emotion. It is intellect but also emotion.
Q You did not say that this morning.
A I am willing to put it in now.
Q You want to supplement it now by saying, also the emotions?
A Always emotion is working, with every bit of the intellect.
Q Which was in control, the intellect or the emotions at the time they planned to steal the typewriter, so that they could write letters that could not be traced back to them?
A I think the intellect was the predominating thing there probably.
Q And when they rented the room in the Morrison Hotel, intellect was still walking in front?
Q And so on through all the details of this murder?
A Yes sir.
Q And it was not the intellect or a boy of eight or nine, it was the intellect in one case of a superman and the other of an average college man?
A In some ways it was the intellect of a very young boy in regard to matters of judgement about the whole thing.
Q Give me one specific example of what they did that would show the judgement of a very small boy?
A the fact that they did any of it at all.
Q Can you tell me of some young boy that you know under nine or ten years of age that can plan a murder of this sort with its wealth of detail and then plan in so many ways to cover it?
A Oh, no, I said in regard to his judgment about doing it at all. -
Q In other words -
A (Continuing) -
Q In other words, when they decided to commit a murder, at that very momemt they had the intellect of a little child?
A I think in regard to judgement and detail the intellect works in different departments.
Q Were they little boys when they decided to commit murder?
Q Andthe little boy was sent out to play and the superman, the super-
A That is not very far from being the truth, it seems to me.
Q It was pretty convenient for these boys to have so many personalities?
A I think we all have, no different from the rest of us.
Q And they can call one into action at one time and chase him away and call the superman
in the next moment -
A I am afraid we frequently do that sort of thing.
Q And then call in Mr. Emotion, how old is he in this case? Have you estimated the age of the emotion here?
A I think the emotion in the case of these boys, particularly of Loeb in a questionnot so much of being on any particular level but as being misplaced. That is what I endeavored to give at great length previously.
Q Now, we originally had a personality -
A Split personality.
Q And as I understand it, there are two in this combination, emotion and intellect, is that right?
Q Dr. White estimated the junior member at four or five years of age and the senior
member, the superman -
Q And you bring into the firm a third member, that is, the intellect, the junior five years of age working in connection with the big brother of nineteen or twenty?
A Oh, no, I don't. I did not say anything of that sort.
Q What connection or influence in this firm of the manyper sonalities did this boy Richard Rubel have?
MR. DARROW: I object to the question in that form.
THE COURT: Mr. Darrow objects to the form "firm". Leave that out.
MR. CROWE: Q Did you know that these two boys had another very close friend that they chummed with constantly?
A I don't think they chummed with him constantly. I heard they went with him occasionally.
Q They had a habit of each week dining three days a week at least with one another, first at one house and then at another and then at a third, they went to dances together, played bridge together, went with the same boys and girls and Rubel was a party to the quarrel concerning which the letter that was shown to you was written. That makes them chums, doesn't it, pals, makes him a pal?
A I guess he was, superficially.
Q Now, these two boys here with their split personalities and working in conjunction together, led each other into a crime, what connection do you think Rubel had with them?
A I have not the slightest idea that he had any whatever.
Q Do you think we ought to have him examined to see whether he is a dangerous criminal or a boy nursing a harmless phantasy?
A I know if he were my son i should certainly want to see under what influence he had been and what effect upon his mind if any association with these boys had had.
Q Doctor, you have frequently used the word "abnormal" in speaking of the mental condition of Leopold and Loeb. What do you mean by "abnormal" as applied to their mental condition?
A Not normal.
Q Describe it a little more?
A I think the term is pretty obvious. You mean in these specific cases, these two boys?
Q Yes, these are the only two cases I am interested in?
A You are interested in the boys?
Q What do you mean by abnormal as applied to their mental condition?
A Shall I refer to my notes and go all over the same subject again?
Q Will it take you that long to answer it?
A Because I have outlined the different points.
Q Can you give me a definition of abnormal that would cover this case?
A Yes, I think I should [so] take it up point by point as I did previously. I think it is abnormal for them, or for Leopold, it is abnormal for him to have developed such a notion of his superiority as that he thinks of himself as being a man or a boy who has the right to live above all law and order.
Q Now, what is tremendously abnormal, as you used it, what do you mean by the expression "tremendously abnormal"?
A What anybody means by tremendously, very greatly.
Q What do you mean by it?
A Very greatly.
Q Is a person with tremendously abnormal inner mental life sane?
A As I said before, the question of sanity is one of legal definition, according to what we have been working for in recent years, and I am unable to answer that question, it is a question for a judge and a jury, he might or might not be.
Q You know what the word "sane" means?
MR. BACHRACH: I object.
THE WITNESS: I thought we had been all over that. I know what the word "sane" means.
MR. CROWE: Q You say you know what the word "sane" means. What does it mean?
A Legal responsibility.
Q Would you call a person with a tremendously abnormal inner mental life sane?
MR. BACHRACH: I object, if the court please.
MR. CROWE: Well, he has answered the question.
THE WITNESS: No, it is not answered.
THE COURT: The objection is sustained.
MR. CROWE: Just a moment, your honor. I insist that the witness has already answered
the question, and his answer is that a person who is tremendously abnormally -
MR. BENJAMIN BACHRACH: Every little while we get to that place.
MR. CROWE: Certainly.
THE COURT: The motion is denied. This court does not care what definition Dr. White gives of insanity, What Dr. Healy gives of insanity, what any other doctor may give of insanity. There is only one definition that the court will follow and that is the definition that the supreme court of this State has said what is legal insanity. This court will follow that and pay no attention to what the alienists say about insanity. This court is only dealing with the legal insanity and I will follow the rule that our supreme court has laid down for me.
The motion is denied. Proceed.
MR. CROWE: Q Doctor, is Nathan Leopold, Jr. able to distinguish right from wrong?
MR. B.C.Bachrach: I object, if the court please, on the ground that it is not germane to this issue at all.
THE COURT: Oh, he may answer.
A Indirectly, I think he is. He can tell you what is right and what is wrong.
MR. CROWE: Q Has he the power of choice?
A I don't think he has the complete and normal power of choice.
Q Has he any power of choice?
A Yes, I think that people who are mentally diseased, even so they have been declared insane, frequently have some power of choice left.
Q what do you mean by the word "insane"?
MR. B.C. BACHRACH: I object.
MR. CROWE: He just used it.
THE COURT: The court has ruled it does not make any
difference what the doctor thinks about insanity, what he declares to be insanity. This court will be guided by the rule laid down by the supreme court. They have told me what legal insanity is.
MR. CROWE: Q Doctor, on May 21, 1924, did Nathan Leopold, Jr. know that the things he did in connection with the murder of young Franks were wrong?
A Oh, he could have told you very well that it was wrong, according to the ordinary definitions.
Q On that date, knowing that the murder of Robert Franks was wrong, did Nathan Leopold have the power of choosing between doing it and not doing it.
A I think he had some power of choice, but not complete.
Q. No, did he have sufficient power to refrain from committing that murder?
MR. B.C.BACHRACH: I object, if the court please, on the ground that it comes within the legal definition of sanity, and that has no place at this hearing.
THE COURT: Sustained.
MR. CROWE: I did not get the ruling, your Honor.
THE COURT: Sustained. This is not an inquiry as to the insanity of these boys. These boys are presumed to be sane. They have pleaded guilty. They have assumed the responsibility for that which they did and the only reason for this hearing is to see whether or not there is anything in mitigation of punishment. We are not going to inquire into the sanity of those boys. That is not in question. Those boys are sane as far as this court is concerned now.
MR. CROWE: I am at a loss, your honor, to understand all this expert testimony from alienists, if that is not the defense here.
THE COURT: I cannot help that.
MR. CROWE: They have been testifying -
THE COURT: The Supreme Court has said that it is not discretionary with me but it is mandatory upon me to hear anything that the defense may introduce in the way of mitigation of punishment. There is no question about that. The court has ruled that three or four times and I am not going to change my ruling now, and that is the only thing we are here for now, is to determine whether or not the defense will introduce anything here that the court may think is in mitigation of punishment. It is my duty to hear it, then give it such weight as the court thinks it is entitled to, and after that to pass judgement.
MR. CROWE: If the court please, it is very warm, especially down in the hole here
THE COURT: All right. We will take a little recess. A few minutes recess, gentlemen.
Whereupon a short recess was here taken by Court and Counsel.
Court convened pursuant to short
recess heretofore taken.
D R . W I L L I A M J. H E A L Y ,
resumed the stand for further cross examination by Mr. Crowe, and testified as follows:
MR. CROWE: Q You did not ask Leopole how he came to confess, did you?
Q Do you know under what circumstances he made his confession?
Q Assume for the purpose of the question that after he had been in custody from Thursday
at three o'clock or thereabouts during which at odd times he was questioned, up until
Friday evening, during which time he constantly denied his guilt and offered an alibi;
that Friday evening the ownership of the Underwood typewriter was fastened on him,
and the fact he had not used his red car from one o'clock the day of the murder until
ten thirty that night, that it was in his garage, and that at ten thirty it was taken
out, and about one o'clock the bloody chisel was thrown from it; that after these
facts were made plain to him, he still persisted for half an hour or so in maintaining
his innocence; that he then sent for the State's Attorney and asked him whether he
could put a hypothetical question to him; that he then addressed a hypothetical question
to the State's Attorney, the substance of it was, assuming that a person whose family
were as rich and influential as his had committed this crime, did the State's Attorney
think he could beat the case? That the State's Attorney then told him that he was
going to give him an opportunity to try it out; that he then asked the State's Attorney
what he meant by that expression, and the State's Attorney told him that he meant
that he intended to place a charge of murder against him; that he then with a smile
stated, "While you have some few circumstances that point to me, you haven't a sufficient
evidence to bring me into court, and you won't"; that the State's Attorney then told
him that Richard Loeb was confessing; that he then registered sur-
prise, and said he didn't believe it; thatthe State's Attorney then called his attention to several facts in connection with the crim,e and asked him where else he could have gotten them if Loeb had not given him the information; that he then said, "Well, I am surprised that Dick is talking; I thought he would stand till hell froze over", or some equivalent expression, "but Dick is talking I will tell you the truth about the matter." That he then stated that the crime had originated in Loeb, that Loeb had struck the blows and used the gag that caused the death. Later, in the presence of Loeb, he reiterated that, and argued at length to demonstrate that his story was true, and that Loeb was lying when he blamed Leopold; that as a result they became very angry with each other, and refused to eat with one another, and maintained that attitude until the following Monday, when they were turned over to their lawyers and to the sheriff. What was working then in Leopold, intellect or emotion?
A Certain kinds of emotion.
Q Intellect at all?
A Possibly as long as he was talking at all.
A Fear and Caution, yes.
Q And a desire to escape some of the consequences of this murder?
A Working out the instincts of self preservation, certainly.
Q Does that make any difference in the conclusions you have stated?
A Not the slightest.
Q What do you mean by the word psychosis?
A Mental disease.
Q Do you follow the classification of mental disease used by the American Psychiatric Association?
A More or less.
Q Do you remember the change that was made in the last revision of that classification?
A I could not repeat it, but I have read it.
Q Was not psychosis used in place of insanity which was eliminated?
A I think very likely it was because that is the sort of thing I am drawing attention to all the time. I think it was.
Q So now that the old or ancient term, as Mr. Darrow terms it, of insanity is now termed psychosis? Is that right?
A In medical parlance it is, with a new meaning given to insanity.
Q You made a report of your examination of these defendants, shortly after you finished the examination and you gave it to the lawyers?
A The first examinationI made two reports, and the first report was an individual report. I made this first report on each individual shortly after the first examination, and then we all entered into a joint report.
Q In your first or second report did you state as one of your conclusions that these defendants were suffering from psychosis?
A I should have to look it up to see. Very likely I did since it is equivalent to mental disease I might have done so.
Q Will you look it up now, doctor?
A Yes. These are the individual reports, the joint report I have not a copy of, the
lawyers have it. Yes, I said of Leopold that he was suffering from psychosis and
MR. CROWE: No.
Q Now, yesterday or sometime in your direct examination didn't you state in reference to Leopold that he could and did distinguish between what was phantasy and reality?
A I don't know that I did say that, no, Idon't remember saying that, did I?
Q Well, Loeb. Probably I am mistaken, when he was lying on the couch, was that Loeb?
A Leopold who during the last year had the appearance of voluntarily going into dreamland.
Q Then it is Leopold, I am correct in that?
Q Who used to lie on the couch last year or so and indulge in his phantasy?
Q You stated at the time that he could and did distinguish between the phantasy and the reality?
A I don't remember making any such comment.
Q Well, could he?
A I think he could.
Q Now, as a matter of fact, an insane person cannot distinguish between what is reality and what is phantasy , can he?
A I thought we were not discussing insane people.
Q Well, I am asking you now.
MR. BACHRACH: I object.
THE COURT: Objection sustained.
MR. CROWE: Q Well, a person who has psychosis -
A There are very many different kinds of mental disease or psychosis.
Q Can you answer that question?
A If you will wait, please, I will answer it. In some they can and in some they undoubtedly cannot, and where to draw the line is an extremely difficult matter.
Q What other doctors have you consulted with in this matter that have been employed by the defense?
A Dr. white, Dr. Glueck, Dr. Hamill, Dr. Hall.
Q Dr. Hickson?
Q Dr. Hulbert?
A I have not consulted with him. I have read his report merely.
Q Dr. Bowman?
A I have consulted with him, he came back to Boston and spent most of a day with me.
Q Dr. Neyman?
Dr. Sanger Brown?
Q Now, doctor, you testified that Leopold told you for twelve years he had made an extensive study of birds, ornithology, and he had a very wonderful collection of exhibits, something over three thousand, and had made valuable contributions to the literature of ornithology and delivered an interesting as well as instructive lecture to the students at Cambridge?
A I did not say that.
Q Well, he did as a matter of fact deliver one down there? Now, that shows a persistency of purpose,does it not?
A Yes, indeed.
Q Intellect is working all the time on that?
A Yes, and also his emotional life giving him a tremendous drive in that way.
Q and that is not a phantasy?
A No, indeed. It might add reality to his phantasy of being superior.
Q Were there any birds in his kingdom that he told you about, his phantasy?
MR. BACHRACH: We object to the question because he does not really expect to have an answer, seriously.
MR. CROWE: I insist that when I ask a question I do expect to have it answered as seriously as any of the questions that counsel for the defense have asked in the last two or three days.
MR. BACHRACH: I insist, if the court please -
MR. CROWE: I don't think any of it is very serious.
MR. BACHRACH: That is what I thought. It did not appear that there was any kingdom.
THE COURT: If you can answer it, doctor, go ahead and save time.
THE WITNESS: Please say it again, Mr. Crowe. Do you mean in his phantasy life?
MR. CROWE: Yes.
THE WITNESS: I did not hear of any.
Q Do you believe that the study of ornithology and the teaching and writing books, all that was reality?
A Yes sir.
Q An every day honest-
Q He showed a deep interest in showing pictures and specimens of rare birds, didn't he?
A I don't know about the pictures; I have seen the birds.
Q Well, about the specimens?
Q That is an indication of intense interest, is it not?
A Yes, indeed.
Q And it has been abiding and continuous for twelve years?
A Yes, it is one of his characteristics, is his persistency.
Q Is that the interest you expect in a child of four or five, as Dr. white described the emotional Mr. Leopold?
A Well, I am not discussing Dr. White's opinion in that matter, but it is exactly the type of mental effort that would affect a person of his paranoidal tendencies.
Q But you would not expect the interest that he exhibited in ornithology in any child of five years of age, would you, doctor?
A He already exhibited it, by the way, at five years of age.
Q Then it is perfectly natural and normal in a child that young?
A To start collecting anything?
A Yes, indeed, surely.
Q What is your understanding or definition of the word "responsibility" as you have used it?
A As I have used it?
Q Haven't you used it in your testimony, "responsibility"?
A I don't remember using it at all.
Q Well, what do you understand by the word "responsibility"? What does it mean?
A "Responsibility" is too much for me to answer, what is responsibility and what is not. It is a matter that i have pondered on for many years; and how to define responsibility and how to adjudge anybody responsible is something that is beyond me to do. I think it would take the Creator himself to be able to do it.
Q You don't use the word "responsibility"?
A I don't ever recall doing it. I certainly never do in court work.
Q Have you used the words "legal responsibility"?
Q What does that mean?
A My understanding of that is that it is what a judge or a jury have pronounced upon the individual, whether he should be under the law held to his deeds one way or the other.
Q Do you agree with your colleague, Dr. White, that it is a fiction?
MR. BENJAMIN BACHRACH: I object.
A Is it a fiction?
MR. BENJAMIN BACHRACH: And ask that the answer be stricken out, if it has been answered before my objection.
MR. CROWE: Q What is it?
THE COURT: What is the question?
THE COURT: Oh, yes, objection sustained.
MR. CROWE: That is all.
MR. DARROW: Just a few more questions, doctor.
BY MR. DARROW.
MR. DARROW: Q You were shown this book of Dr. White, Outlines of Psychiatry, published in 1909? Has there been a good deal done in psychiatry since 1909?
A An immense deal.
Q And in definitions?
A Particularly in classifications and definitions, both from the standpoint of law and of medicine.
Q I want to show you the parts that counsel calls your attention to, which they have marked as the definition of insanity, on page 10 and 13, and then I want to call your attention to the summing up on the page I have marked, at the end of it. In summing up on the chapter that the State read, does he not say, "As I have intimated all along, a perfect definition of insanity is impossible, because our knowledge of the subject to be defined is not complete."
A That is what I read in there.
Q Do you see any difference in his statement in this book and the later books?
A His later books? He has later editions of this.
Q He has?
Q How many?
A I could not tell you.
MR. DARROW: (Addressing Dr. Krohn) I presume you could not find a later one?
DR. KROHN: I bought one. That is enough.
MR. DARROW: Q Is the idea of planning in any way inconsistent with a diseased mentality?
A No, indeed.
Q Is the idea of planning for a defense after an act is committed in any way inconsistent with a diseased mentality?
Q Is planning common to people committed to insane institutions?
A planning of any sort?
MR. CROWE: Are you talking about legal or mental insanity ?
MR. DARROW: Neither. I am talking about patients committed to insane asylums.
MR. CROWE: Diseased minds?
MR. DARROW: Yes.
MR. CROWE: Insane asylum commitments are a legal process.
MR. DARROW: That does not mean that they have legal insanity or mental insanity.
Q Is it frequently encountered in patients?
A In patients with mental disease, in hospitals for mental disease?
A One sees very many illustrations of it, but I do not know that all patients have it.
Q Have you seen it?
Q Is it unusual with people who have paranoiac tendencies?
A No, very common.
Q Is emotion for self-
A yes, indeed.
Q It is common to everyone, is it not?
A There are some exceptions in mental disease, where there is a tremendous suicidal impulse.
Q But outside of suicide?
Q How did the intellect a nd the emotion act together, state it briefly, in the conception and carrying out of the Franks homicide?
MR. CROWE: I object. The doctor said he did not ask anything about the inception of the crime.
MR. DARROW: Well, he understood the crime; it had been stated to him, and he knew the details of it, and he did not think it was necessary to think about it.
THE COURT: He may answer if he can.
MR. DARROW: Q State briefly the connection between the emotional and the intellectual part of it, if you can separate them, in both the conception and the planning and the carrying out of it?
A It seems of course very clear in the first place -
Q Which is the driving part of human conduct, the emotional or the intellectual?
A Undoubtedly the emotional is the main driver of human conduct.
Q What part did it have as to Loeb and Leopold equally, if you can state, in the conception and carrying out of this?
Q I do not mean equally, but take them separately if you wish.
A What part did it have?
Q Yes, the emotional and the intellectual.
A I think it was a tremendous driving force in Loeb's mind, because of his continued imaginings of the master criminal phantasies; that he had developed this for so many years, until it had a hold of him that made it difficult to get away from it; and in connection with that he obtained a great deal of pleasure either in the planning, or strangely enough in the commission of the crime itself. In fact, he very definitely states that. In the case of Leopold, also, he obtained, he states, a good deal of emotional pleasure, a good deal of pleasure from the actual planning, from the joining in with his comrade, being one in association with him in the commission of this crime. Now, on the contrary, it is evident that he did not get any direct pleasure from the commission of it.
Q Given the emotional drive to action, as you have stated it, and to action in this case, is there anything inconsistent in the details being carried on by the mental side?
A No, indeed. The mental side goes on working, sometimes with a great deal more fervor, and with a great deal more detail, when there is a good deal of emotion connected with it.
BY STATE'S ATTORNEY CROWE
MR. CROWE: Q when there was danger of detection, emotion was urging him to go on. You referred to it as a drive. Is that not correct?
A emotional drive is the phrase we used.
Q And that was urging them on?
MR. DARROW: Did the doctor finish his answer?
THE WITNESS: Yes.
MR. CROWE: Q Well, have you finished, doctor?
Q You say it was emotion that was driving him on, an emotional drive making him commit this crime, is that right?
A Part of it. That is part of the reason for his committing the crime.
Q what else?
A There were the intellectual components also.
Q The intellect is the thing that stopped them when there was danger of being caught, isn't it?
A I should think there is a great deal of emotion there, a tremendous amount of it, namely, fear.
Q Well, in other words, emotion and intellect are so mixed up here you cannot separate them.
A Oh, no, of course you can't.
Q That is right, is it not?
(Mr. Darrow here had the question and
answer repeated to him.)
MR. DARROW: Q That is correct is it, doctor?
MR. DARROW: All right.
MR. CROWE: Q Well, in order to excuse the crime emotion drives him on, and the emotion is only that of a five year old child, and when you try to take the other end then intellect steps in, the superman, and he is so mixed up with emotion that you cannot separate them, is that so, doctor?
A When you want to excuse the crime?
A I am not attempting to excuse the crime.
Q I am sorry, doctor, that I misunderstood the purpose of all your testimony. There have been times when I thought you were testifying in aggravation and not in mitigation, and I am glad that you agree with me.
MR. DARROW: That is, you mean in doing something worse than hanging when you speak of aggravation?
A I am not arguing for anything. I am trying to get the facts before the court.
MR. CROWE: That is all, doctor.
(the witness was then excused.)
|July 23 (cont)|
|July 25 (cont)|
|Aug 1 (cont)|
|Aug 4 (cont)|
|Aug 4 (3)|
|Defense Closing Arguments|