(August 18-August 19, 1924)
Debate Over the Admissibility of the Defense's Psychiatric Testimony & Ruling by Judge Caverly
William White, psychiatrist and defense expert:
Walter Bachrach: Will you please state your name?
White: Dr. William A. White.
Bachrach: And your place of residence?
White: Washington, D.C.
Bachrach: What is your profession?
White: Physician.
Bachrach: What is your age, Doctor?
White: Fifty-four.
Bachrach: Will you please state your professional connections, both present and past.
Robert Crowe, prosecutor: Just a moment. I object to that, if your Honor please.
Judge Caverly: Why?
Crowe: It is incompetent, irrelevant, and immaterial.
Bachrach: Why?
Crowe: The only purpose of it would be to lay a foundation for him to testify as an expert on the question of the sanity or insanity of the defendants. On a plea of guilty your Honor has no right to go into that question. As soon as it appears in the trial, it is your Honor's duty to call a jury.... I want to be heard on that, your Honor, because if there is any testimony introduced in this trial as to the mental condition of these boys, any act or any order that your Honor enters in the case is a nullity. In other words, if your Honor, at the conclusion of this trial, after having gone into the sanity proposition, should sentence these boys to hang, your judgment would not be worth the paper that it was written on. The Supreme court would set it aside....What is the purpose of entering a plea of guilty and then maintaining that you have a defense and you have a right to hear it, when the law says that that defense has got to be decided by twelve men. What is the defense trying to do here?
Caverly: Have you got any authorities sustaining your position?
Crowe: I have got the Geary case, your Honor.
Caverly: The Geary case isn't in point. I know the Geary case. . . . But that is not on all fours with this case. That was a trial for insanity, in which counsel waived the constitutional rights of the defendant to a trial by jury, and the Supreme Court said, "you must go back and try the insanity case with a jury." There was no question about that.
Crowe: [After quoting language from the Geary opinion of the Illinois Supreme Court] Can language be more explicit, more mandatory and more direct than the language that I have just read? But here is a cold-blooded murder, without a defense in fact, and they attempt, on a plea of guilty, to introduce an insanity defense before your Honor, and the statute says that is a matter that must be tried by a jury.
Caverly: Has anybody said that they are going to introduce an insanity defense?
Crowe: Well, what is the purpose of putting an expert on the stand?
Caverly: They have a right to, in my opinion.
Crowe: Aren't they going into his mental condition?
Caverly: Well, suppose they do? The defense hasn't said they are going to put on alienists to show that these men are insane, and I don't think that they are going to attempt to show that they are insane.
Crowe: Well then what is the evidence for, what are they going to show?
Caverly: You will have to listen to it.... Will you cite one authority?
Crowe: I have cited, Your Honor, and I believe they are in point.
Caverly: The Geary case?
Crowe: The Geary case and the statute itself, your Honor.
Caverly: If you are relying on the Geary case you might as well end the argument. The Court will overrule you. . . .
Crowe: Your Honor misses the real point. You have not the power to determine whether the evidence that has been introduced constitutes insanity or not. Just as soon as evidence of a mental condition is brought in the case, that is a question, as the Courts have stated, peculiarly for a jury.
Caverly: They never said it.
Crowe: We just read it to you.
Caverly: [After thumbing through a copy of the Illinois criminal code, the judge begins reading] It shall be the duty of the Court to examine witnesses as to the aggravation or mitigation of the offense.'' Now, then, under that wording of the statute. . . the Court permitted eighty witnesses to testify to every detail to show an aggravated murder; and after the State is through the defense come in and. . . they wish to put on certain evidence to show a mitigation of the crime. Now then, supposing I were to say no, and then should impose the extreme penalty. Would not the Supreme Court say that if the Court had listened to mitigating circumstances then he would not have imposed the death penalty? . . . Would not the Supreme Court say that I should have listened to what the defendants had to say rather than have made an arbitrary ruling and sentenced them to whatever it might be?...
Clarence Darrow: The State's Attorney ought to tell us what we could offer in mitigation. What kind of evidence would be in mitigation? . . .
Crowe: I don't think you have any evidence here.
Darrow: Well, is there any such evidence in any case in the world?
Crowe: Yes.
Darrow: What?
Crowe: Evidence that grows out of the transaction itself. In other words, as I explained yesterday, after a murder has been proved, it is competent, in order to mitigate the punishment, to show, for instance, that the man who was killed had seduced the daughter or the wife, that is mitigating evidence.
Darrow: Why would that be competent?
Crowe: Because it is in mitigation.
Darrow: Why?
Crowe: Because the law would not hold a man who had a reason in morals. . .
Darrow: Oh, that is nonsense.
Crowe: . . . for killing for the same strict accountability that the law would hold a man who had absolutely no justification in morals. . . .
Bachrach: He [Crowe] says he was trying to show that it was a cold-blooded murder. Upon what does a cold-blooded murder depend if it does not depend upon the mental condition of the man who is committing the murder? How are you going to tell whether it was a cold-blooded murder if you don't know what the mental condition of the person was who committed it?. . . .
Caverly: ....Under that section of the statutewhich gives the court the right, and says it is his duty to hear evidence in mitigation, as well as evidence in aggravation, the Court is of the opinion that it is his duty to hear any evidence that the defense may present, and it is not for the court, to determine in advance what it may be. The Court will hear it and give it such weight as he thinks it is entitled to. . . The objection to the witness is overruled, and the witness may proceed.
DEFENSE WITNESSES
Testimony of Dr. William White
Walter Bachrach: From the result, Doctor, of your examination and observation of the defendant, Richard Loeb, are you able to form and have you formed an opinion as to his mental condition at the present time and on the 21st of May 1924?
William White: ....Emily Struthers [Loeb's governess] pushed him tremendously in his school work, was apparently very ambitious with regard to him and stimulated and pushed him ahead, further than he would have gone without that sort of stimulus....[To meet her demands, he began a pattern of lying.] For example, in college he lied about his marks. He lied about all sorts of things. He lied to Babe Leopold, his comrade, about his attendance in college. While his marks were on the whole pretty good he made them a good deal better. . . . He was continually building up all sorts of artificial situations until he himself says that he found it difficult to distinguish between what was true and what was not true....
He considered himself the master criminal mind of the controlling a large band of criminals, whom he directed; even at times he thought of himself as being so sick as to be confined to bed, but brilliant and capable of mind. . . [that] the underworld came to him and sought his advice and asked for his direction, and so he directed this whole group of criminal conspirators from his sick bed.
In a well-rounded, well-integrated, well-knit personality, emotion and intelligence go hand-in-hand. . . . Dickie is in a stage which if it goes on further is capable of developing that kind of very malignant splitting.
Walter Bachrach: Doctor, will you now address yourself to Nathan Leopold, Junior, and state what you have obtained as a result of your examination of him?
William White:Nathan's pathology, the psychiatrist replied, had begun in early childhood. His classmates at the Douglas School had teased him relentlessly; his estrangement from his peers had begun when he was seven or eight years old and had continued through his time at the Harvard School and into the present. Nathan had always been a lonely, unhappy child, ever the outsider; and to protect himself from further pain and hurt, he had retreated into an inner world where emotion counted for nothing and intellect was all.
Nathan, like Richard, was trapped inside a world of fantasy. Nathan imagined himself as a slave, subservient yet physically powerful, who had saved the life of his king and had thereby earned the king's gratitude. It was an elaborate fantasy, played out in innumerable ways, yet it always allowed Nathan to imagine himself as superior.
Babe fancies himself as being a slave, in which case he has saved the king's life, and the king is very grateful, and the king wants to recompense him by giving him his liberty, which he refuses. However, he is a very unusual slave. He is not an ordinary every-day slave. He belongs to the social grade of slaves, to be sure, but he is very powerful, physically powerful. The various kings, when they are in dispute with one another, if they want to settle their differences, each pick out one of their slaves to fight in single-handed combat. He is always the one that is picked out. He always wins. Sometimes, he says, he has found himself fighting many, many men in his phantasies, to save the king. At times it was getting where he was fighting a thousand men, single-handed; and then the thing would get so utterly ridiculous that he would shake himself out of the phantasy and perhaps begin over again.
Walter Bachrach: Now, what findings did you arrive at . . . with reference to each of the defendants in combination with the other?
William White:Nathan and Richard complemented each other. Richard needed Nathan's applause and admiration in order to confirm his sense of his own self.
But Nathan also needed Richard to play a role; Richard took the role of a king who was simultaneously superior and inferior. Richard had suggested the murder and had taken the initiative in its planning-in that sense, he had been the king. But at crucial moments, when Richard had appeared to falter, Nathan had assumed command. For example, on the day following the murder, Thursday, 22 May, Richard had wanted to abandon the ransom attempt as soon as they had learned of the discovery of the body-Dickie would have let it gone by but Babe. . . insisted upon sending the last telephone message and taking such chances to bring the whole thing to a successful combination.
It was a peculiarly bizarre confluence of two personalities, each of which satisfied the needs of the other. Nathan would never on his own initiative have murdered Bobby Franks.... I cannot see how Babe would have entered into it at all alone because he had no criminalistic tendencies in any sense as Dickie did, and I don't believe Dickie would have ever functioned to this extent all by himself, so these two boys with their peculiarly interdigitated personalities come into this emotional compact with the Franks homicide as a result.
Walter Bachrach: As a result of your examination and observation of the defendant Richard Loeb have you formed an opinion as to his mental condition on the 21st of May, 1924?
William White: Yes, sir.
Walter Bachrach: What is that opinion?
William White: He was the host of anti-social tendencies along the lines that I have described; he was the host of an infantile make-up which was a long way from the possibility of functioning harmoniously with his developed intelligence. . . . The main outstanding feature was his infantilism. I mean by that these infantile emotional characteristics. That is the outstanding feature of his mental condition. He is still a little child emotionally, still talking to his teddy bear. . . .
Walter Bachrach: Now, have you an opinion as to the mental condition of Nathan Leopold, Jr., on the 21st of May, 1924?
William White: Yes.
Walter Bachrach: What is your opinion?
William White: Well, he also is the host of a relative1y infantile emotional aspect of his personality but . . . he has reacted by a defense mechanism, which has produced the final picture of a marked disordered personality make-up in the direction of developing feelings of superiority, which places him very largely out of contact with any adequate appreciation of his relations to others.
Walter Bachrach: You may cross-examine.
Robert Crowe: Now, how many persons--From how many persons did you get any information in reference to Nathan Leopold, Jr. that you base your opinion on? . . .
William White: I did not get any information from anybody except Nathan Leopold, Jr. . . . I beg pardon. I want to supplement that. I had read--There is one other thing I did have. I had read the so-called Bowman and Hulbert report.
Robert Crowe: Do you think that Nathan Leopold would attempt to mislead you?
William White: I don't think he did. . . .
Robert Crowe: He has not lied to you at all?
William White: I don't remember any particular instance at this moment where I believe Nathan lied to me. I think he was frank, as frank as he could be.
Robert Crowe: You are satisfied that he has been absolutely truthful, that is, Nathan has, with you all the way through? . . . Don't you think it is strange that he lies to Loeb and he lies to everybody else except you? . . . The fact that Nathan Leopold has lied to every other person that he has talked to except you, doesn't make any impression on your mind at all? Does it?....
Robert Crowe: [What did Leopold and Loeb tell you about their previous crimes?]
William White: They set fire to several buildings. Three instances I think they gave me of having set fires. . . .
Robert Crowe: Now tell us what Loeb told you about these fires? . . .
William White: Well, this shack was set on fire, this particular one. . .
Robert Crowe: When and where was it?
William White: I don’t know where it was.
Robert Crowe: Didn't you ask them?
William White: It was out in the middle of a lot somewhere.
Robert Crowe: Can you give us any information that will enable me to check up and show whether this actually happened or whether they had just imposed on you?
William White: No, I can't give anything to satisfy you. . . .
Robert Crowe: If you were able to tell me the date on which it happened and the location don't you think I would be able to obtain proof as to whether or not they were lying to you or telling you the truth?
William White: You probably would be able to tell whether such a thing happened in the city.
Robert Crowe: And your conclusion depends entirely upon the fact that you believe what these boys told you? . . . If they have fooled you and consistently lied to you then your conclusion isn't worth anything, is it?
William Healy, psychiatrist and defense expert
Clarence Darrow: [What did you learn about the relationship between Leopold and Loeb?]
William Healy: As far as I can find out from the account given by the boys themselves and from their relatives, their association began at fifteen years of age. They just barely knew each other earlier, but that is the time they first came together. It is very clear from the study of the boys separately that each came with peculiarities in their mental life. . . . Each arrived at these peculiarities by different routes; each supplemented the other's already constituted abnormal needs in a most unique way. And in regard to the association I think that the crime in its commission and in its background has features that are quite beyond anything in my experience or knowledge of the literature. There seems to have been so little normal motivation, the matter was so long planned, so unfeelingly carried out, that it represents nothing that I have ever seen or heard of before. . . . In the matter of the association, I have the boys' story, told separately, about an incredibly absurd childish compact that bound them. .. . For Loeb, he says, the association gave him the opportunity of getting someone to carry out his criminalistic imaginings and conscious ideas. In the case of Leopold, the direct cause of his entering into criminalistic acts was this particularly childish compact.
Robert Crowe: You are talking about a compact that you characterize as childish. Kindly tell us what that compact was.
William Healy: I am perfectly willing to tell it in chambers but it is not a matter that I think should be told here.
Robert Crowe: I insist that we know what that compact is," Crowe replied, "so that we can form some opinion about it. . . . Tell it in court. The trial must be public, your Honor. I am not insisting that he talk loud enough for everybody to hear, but it ought to be told in the same way that we put the other evidence in.
[Judge Caverly, after a discussion with the attorneys at the bench, told William Healy to whisper his answers so that only the judge, the attorneys, and the stenographers could hear his words.]
William Healy: This compact, as was told to me separately by each of the boys, consisted in an agreement between them that Leopold, who has very definite homosexual tendencies was to have the privilege of--Do you want me to be very specific?
Robert Crowe: Absolutely, because this is important.
William Healy: --was to have the privilege of inserting his penis between Loeb's legs at special rates; at one time it was to be three times in two months, if they continued their criminalistic activities together. . . then they had some of their quarrels, and then it was once for each criminalistic deed.
Clarence Darrow: I do not suppose this should be taken in the presence of newspapermen, your Honor.
Judge Caverly: Gentlemen, will you go and sit down, you newspapermen! Take your seats. This should not be published.
Robert Crowe: What other act's, if any, did they tell you about? You say that there are other acts that they did rarely or seldom?
William Healy: Oh, they were just experimenting once or twice with each other.
Clarence Darrow: Tell what it was.
William Healy: They experimented with mouth perversions. . . . Leopold has had for many years a great deal of phantasy life surrounding sex activity. . . He has phantasies of being with a man, and usually with Loeb himself . . . He says he gets a thrill out of anticipating it. . . . Loeb would pretend to be drunk, then this fellow would undress him and he would almost rape him and would be furiously passionate. . . . With women he does not get that same thrill and passion.
Robert Crowe: That is what he tells you?
William Healy: Surely. . . . That is what he tells me. Loeb tells me himself. . . how he feigns sometimes to be drunk, in order that he should have his aid in carrying out his criminalistic ideas. That is what Leopold gets out of it, and that is what Loeb gets out of it. . . . When Leopold had this first experience with his penis between Loeb's legs. . . he found it gave him more pleasure than anything else he had ever done. . . . Even in jail here, a look at Loeb's body or his touch upon his shoulder thrills him so, he says, immeasurably....
Robert Crowe: When Leopold began to plan with Loeb this murder, what was acting then, his intellect or his emotions?
William Healy: His intellect, but always accompanied by some emotional life, as it always is.
Robert Crowe: 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?
William Healy: I think the intellect was the predominating thing there probably.
Robert Crowe: And when they rented the room in the Morrison Hotel, intellect was still walking in front?
William Healy: Yes.
Robert Crowe: And so on through all the details of this murder?
William Healy: Yes, sir.
Bernard Glueck, psychiatrist and defense expert
Bernard Gluek: ....I then took up with Loeb the Franks crime,and asked him to tell me about it. He recited to me in a most matter of fact way all the gruesome details of the planning and execution of this crime, of the disfiguring and the disposal of the body, how he and Leopold stopped with the body in the car to get something to eat on the way. He spoke to me in a most matter of fact way about his doings and movements immediately following this act. As his recital proceeded, I was amazed at the absolute absence of any signs of normal feeling, such as one would expect under the circumstances. He showed no remorse, no regret, no compassion for the people involved in this situation, and as he kept on talking. . . there became evident the absolute lack of normal human emotional response that would fit these situations, and the whole thing became incomprehensible to me except on the basis of a disordered personality. . . . In the course of my conversation with him he told me how his little brother. . . passed in review before him as a possible victim of the kidnapping and killing. Even in connection with this statement, he showed the same lack of adequate emotional response to the situation.
Benjamin Bachrach: In the conversation with Richard Loeb, did he say anything about who it was that struck the blow on the head of Robert Franks with the chisel?
Bernard Gluek: He told me all the details of the crime, including the fact that he struck the blow.
Benjamin Bachrach: If you have reached any conclusion with reference to his mental condition, you may now state it.
Bernard Gluek: My impression is very definite that this boy is suffering from a disordered personality, that the nature of this disorder is primarily in a profound pathological discord between his intellectual and emotional life.
Benjamin Bachrach: Now then, doctor, are you ready to begin with your examination of the defendant Nathan F. Leopold, Jr.?
Bernard Gluek: Yes.
Benjamin Bachrach: You may proceed. . . .
Bernard Gluek: I started out with him by asking him to tell me about the Franks murder. .. . He argued with me that for many years he has cultivated and adhered to a purely hedonistic philosophy that all action is justified if it gives pleasure; that it was his ambition and has been for many years to become a perfect Nietzschean and to follow Nietzsche's philosophy all the way through. . . . He told me of his attitude toward Loeb and of how completely he had put himself in the role of slave in connection with him. He said, "I can illustrate it to you by saying that I felt myself less than the dust beneath his feet." . . . He told me of his abject devotion to Loeb, saying that he was jealous of the food and drink that Loeb took, because he could not come as close to him as did the food and drink. .. Nathan F. Leopold, in my estimation, is a definitely paranoid personality, perhaps developing a definite paranoid psychosis. I have not seen a definite psychosis of this sort in as young a person as he is. His aberration is characterized primarily by this abnormal pathological transformation of his personality and by the delusional way of thinking.
Benjamin Bachrach: Doctor, from your experience in dealing with persons of disordered mind, state whether or not it is common and ordinary to find in such persons a high degree of' intelligence existing at the same time as the abnormality or diseased condition?
Bernard Gluek: If I should give an answer to this question in a general way,I should say that it is quite characteristic of paranoid individuals to have along with their disordered mental state a highly developed intelligence.
Benjamin Bachrach: Have you observed among other such persons under your care the ability to plan like ordinary intelligent people without abnormality?
Bernard Gluek: I have observed the most ingenious and great capacity to plan among paranoid patients. . . . Patients suffering from mental disorder and 90 percent of my patients in private practice do suffer from mental disorder-carryon their activities while they are under treatment for their mental disorder.
Benjamin Bachrach: You may take the witness.
Harold Hulbert, defense expert on endocrinological evidence
Walter Bachrach: As I understand you, you say you took [Loeb's] blood pressure?
Harold Hurbert: Yes.
Walter Bachrach: Tell us the result of that test.
Harold Hurbert: Systolic, 100; diastolic, 65. Blood pressure, 35. Pulse rate, 88 to 92.
Walter Bachrach: Did the result of that test in any way indicate a deviation from normal, as far as blood pressure is concerned?
Harold Hurbert: It is below normal.
Walter Bachrach: You said you took a basal metabolism test. State what that is and its purpose.
Harold Hurbert: The basal metabolism test is a chemical test to determine the rate at which the body tissues oxidize the food which the body has and gives us an indication of the vital forces of the body. The test is done in a technical way by having the patient appear without any breakfast and lie quietly for an hour in loose clothing, breathing into an apparatus which has been clamped to the mouth, the nose having been shut tight, to measure the carbon dioxide of the breath.... This has all been carefully tabulated in thousands of cases . . . We are able to contrast the results obtained in any one patient with what would be normal for that patient considering his age, weight, etc. The metabolism test, in the case of Richard Loeb on June 14th, taken under ideal circumstances, was minus seventeen percent, which is abnormally low.
Walter Bachrach: What does such an abnormally low basal metabolism result signify?
Harold Hurbert: A disorder of the endocrine glands and the sympathic nervous system. It is one phase of medical evidence to indicate that there is such a disease of the endocrines and sympathetic nervous system.... [Loeb's] urine showed "clear transparency and amber color--no albumin, no sugar, no indican . . . but there was mucus present, and a few epithelial cells.
Robert Crowe: That throws considerable light on this murder, does it not?
Walter Bachrach: I object to counsel interrupting! Did you make an X-ray examination of Richard Loeb?
Harold Hurbert: We did...[The results for Loeb were normal.]
Walter Bachrach: [Did the X-rays for Leopold reveal any abnormalities?]
Harold Hurbert: The X-ray of the skull revealed the most pathology. The tables of the skull, the bony tables of the skull, are of normal thickness, but the union between the various bones of the skull has become firm and ossified at the age of 19.
Walter Bachrach: What in normal life is the time at which ossification takes place?
Harold Hurbert: It varies, but usually at full maturity or when a man is in his prime.
Walter Bachrach: In terms of years when does that usually take place?
Harold Hurbert: I would say from thirty to thirty-five....The pineal gland in this x-ray throws a definite shadow, typical of a calcified pineal gland.
Walter Bachrach: What is the pineal gland? What is the function of the pineal gland so far as it is known to science?
Harold Hurbert: [Hurbert said the gland controlled sexual desire by inhibiting the libido, and it stimulated mental development. ]
Walter Bachrach: What relation is there between the abnormal functioning of his endocrine glands and his mental condition?
Harold Hurbert: The effect of the endocrine glands on the mental condition is definitely established in the minds of medical men in certain points and is still a matter of dispute in others. . . . I would say that his endocrine disorder is responsible for the following mental findings. His precocious mental development, his rapid advance through school, his ease of learning, are of endocrine origins. . . . The early development and strength of his sex urge is obviously of endocrine origin. His shallow mood and his good bearing are of endocrine origin and particularly his mental activity and early mental development are of endocrine origin.
Walter Bachrach: What would be the effect of that upon him, where there was not a corresponding maturity of his emotional life and judgment?
Harold Hurbert: The effect of the intellectual drive of endocrine origin. . . and [his] emotional shallowness is that he now has mentally a decided degree of discrepancy, a diseased discrepancy, between his judgment and emotions on the one hand and his intellect on the other hand.
Walter Bachrach: What, if any, effect, did the diseased condition of Leopold on May 21st, 1924, have in connection Franks kidnapping and homicide?
Harold Hurbert: A very great deal. . . . His mental condition or disease at that time would not primarily have caused him alone to have carried out any such kidnapping or homicide. It caused him to ignore the ordinary restraint which individuals impose upon themselves because of their consciousness of their duties they owe to society; it caused him to react in the non-emotional way he did at that time and subsequently; caused him to justify his own actions to himself, so that he is uncritical of them; and his mental condition at that time is one of the predominating factors in this homicide and kidnapping.
Walter Bachrach: Would Leopold on May 21st, 1924, have been able to commit the Franks kidnapping and homicide but for the presence of such mental disease?
Harold Hurbert: He could not have done it.
Walter Bachrach: State whether the diseased mental condition of Richard Loeb on May 21st, 1924, entered into the Franks homicide and kidnapping?
Harold Hurbert: It did.
Walter Bachrach: Will you tell us how?
Harold Hurbert: The mental condition of Richard Loeb on that date was a direct factor. . . . He was impelled by motives which had been nourished in his subconscious mind, his judgment was childish and uncritical and did not restrain him. . . . His emotions are definitely immature and childish, and he had only an academic realization of what he owed to society, his feeling on the matter being too slight to bind him or modify his conduct and his mentally diseased condition at that time based on his experiences and based on his constitution was a definite factor in this kidnapping and homicide.
Walter Bachrach: Could Richard Loeb but for the existence of the mental disease existing in him on the 21st of May, 1924, and which you have described in your testimony, had committed the Franks kidnapping and homicide?
Harold Hurbert: He could not.
Cross-examination by Robert Crowe
Robert Crowe: Who made the basal metabolism test?
Harold Hurbert: Dr. Moore, Dr. Bowman and myself. On Leopold we repeated the test three times, and took the average of the three, and on Loeb we took the test twice, and took the average of the two. Those tests were continued one right after the other.
Robert Crowe: Don't you know you have no machine in Chicago that can accurately make this test?
Harold Hurbert: I was quite satisfied with the machine we used.
Robert Crowe: What kind was it?
Harold Hurbert: A Jones.
Robert Crowe: Is it not a fact that there is no machine that can accurately take this test, but they take a great many and average them in order to arrive at some conclusion?
Harold Hurbert: I don’t know whether there is a perfect machine or not. Now, this machine was good enough.
Robert Crowe: If it was not perfect, then the result would not be perfect?
Harold Hurbert: It might or it might not.
Robert Crowe: If it is not a good reliable test, it is not of any use, is it?
Harold Hurbert: I would not use an unreliable test.
Robert Crowe: Describe the X-ray apparatus and the techniques by which these x-ray pictures were taken.
Harold Hurbert: The apparatus we used was a portable machine furnished by the Victor X-ray people, one of the largest X-ray manufacturers in America, brought to the jail by Dr. Blaine, of the National Pathological Laboratory, former radiologist at Cook County Hospital for a number of years, and by Dr. Darnell, research pathologist of the Victor Company… Triplicate films were taken in all cases. The parts of the body pictures were studied by me through the fluoroscope for the purpose of identification, and the films were identified with my Veterans of Foreign Wars insignia, which I wear, so that there would be no doubt as to their identity. The pictures were carried to the laboratory by the technicians in the same taxi with me; they were never out of my sight. I went into the dark room at the time they were developed, and stayed there talking with Dr.Blaine while they were being developed.
Robert Crowe: Do you know the name of the machine you used?
Harold Hurbert: A Victor portable.
Robert Crowe: What kind of a current, direct or alternating?
Harold Hurbert: I don't know.
Robert Crowe: What kind of a tube?
Harold Hurbert: All I know is, it was a new tube suitable for the portable machine, a Victor tube.
Robert Crowe: What transformer was used?
Harold Hurbert: I don't know.
Robert Crowe: Where was the transformer located on the machine?
Harold Hurbert: I don't know.
Robert Crowe: Is it possible to see a calcified pineal gland through a fluoroscope?
Harold Hurbert: It may be.
Robert Crowe: Did you see it?
Harold Hurbert: I did not.
Robert Crowe: Did you ever see one through a fluoroscope?
Harold Hurbert: I don't think so.
Robert Crowe: Can you see the sella turcica through the fluoroscope?
Harold Hurbert: Yes, sir.
Robert Crowe: Did you?
Harold Hurbert: I did.
Robert Crowe: Did you use cassettes in taking these films?
Harold Hurbert: I beg pardon?
Robert Crowe: Did you use cassettes in taking these films?
Harold Hurbert: I don't know what you mean.
Robert Crowe: If you don't know what I mean, then you would not know who furnished them, would you?
Harold Hurbert: It I don't know what you mean, I don't know what you are talking about.
Robert Crowe: What screens were used, do you know?
Harold Hurbert: I don't know, sir.
Robert Crowe: Was the Bucky diaphragm used?
Harold Hurbert: I am not a radiologist.
PROSECUTION WITNESSES
William Krohn, expert witness for the prosecution:
On Richard Loeb:
In my opinion, as a result of that examination, [Richard Loeb] was not suffering from any mental disease, either functional or structural, on May 21st, 1924, or on the date I examined him....[T]he stream of thought flowed without any interruption or any break from within. There was not a single remark made that was beside the point. The answer to every question was responsive. There was no irresponsive answer to any question. There was abundant evidence that the man. . . was perfectly oriented as to time, as to place, and as to his social relations.....Not only that, there was excellence of attention. . . . There was not a single evidence of any defect, any disorder, any lack of development, or any disease, and by disease I mean functional as well as structural.
On Nathan Leopold:
There was no evidence of any organic disease of the brain, as would have been revealed by the Argyll-Robertson pupil. . . . There was no evidence of any toxic mental condition resulting from any toxicity of the body, because the pulse and the tremors that would have been incidental thereto were absent at this examination.....[H]e showed remarkably close attention, detailed attention; he showed that he was perfectly oriented socially as well as with reference to time and space...[There were] none of the modifications of movement that come with certain mental disorders.
Archibald Church (chair of the department of nervous and mental diseases at Northwestern University), expert witness for the prosecution:
Joseph Sbarbaro: Have you an opinion, doctor, from your observation and examination, as to whether the defendant, Richard Loeb, was suffering from any mental disease on that day, at that time?
Church: The young man, was entirely oriented. He knew who he was and where he was, and the time of day and everything about it. His memory was extraordinarily good; his logical powers manifested during the interview were normal, and I saw no evidence of any mental disease.
Sbarbaro: Now, doctor, have you an opinion from your observation and examination of Nathan Leopold, Jr., as to whether he was suffering any mental disease at that same time?
Church: I have.
Sbarbaro: What is that opinion?
Church There was no evidence of any mental disease.
Sbarbaro: Will you state your reasons again, please?
Church: Because he was perfectly oriented, of good memory, of extreme reasoning capacity, and apparently of good judgment within the range of the subject matter....Phantasies, are day dreams. Everybody has them. Everybody knows they are dreams. They have an interest in relation to character and conduct, but they do not compel conduct nor excuse it.
Cross-examination by Clarence Darrow:
Darrow: Now, there were, some fifteen people in the room while you were talking to these boys?
Church: I think, hardly that many, but there were many, I know that.
Darrow: Too many, for a thorough consultation?
Church: Too many, for an ideal consultation.
Darrow: You never had anybody bring you a patient to treat where you called in any such number of people as that, did you?
Church: Occasionally it is very difficult to keep all the members of the family out.
Darrow: I asked you a specific question.
Church: No, I never treated a patient in private practice--examined a patient before as many people.
Darrow: You have laid down the rules yourself as to how a private examination should be conducted, have you not?
Church: Well, I control the situation under those conditions.
Darrow: Did you ask any questions?
Church: Yes.
Darrow: Who did most of the questioning?
Church: Really, there were very few questions asked. 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…'
Darrow: Did you ask any questions to find out evidence of mental disease?
Church: No.
Darrow: Did anybody else that you know of?
Church: Well, all of the questions and conversations were for the purpose, as far as I was concerned, of determining their mental status....
Darrow: [Showing Church a copy of a book he had co-authored called Nervous and Mental Diseases] This is your latest on this subject 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 the greatest importance to inform ourselves as to conditions among his antecedents to determine the type of family from which he sprung, and the presence or absence of an hereditary taint. There is therefore much to learn even before seeing the patient in person." And you did not learn that before seeing them, surely? .
Church: I did not have the opportunity....
Darrow: 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?
Prosecutor Robert Crowe: Just a moment. 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 cross-examine him on something that he has based his opinion on in this case.
Hugh Patrick (professor in the department of nervous and mental diseases at Northwestern University), expert witness for the prosecution:
Cross-examination by Benjamin Bachrach:
Bachrach: How many people [had been in the room when Leopold and Loeb were interviewed]?
Patrick: I suppose there were about ten people there or something like that. There may have been more.
Bachrach: Don't you think, there were about fifteen?
Patrick: No, I shouldn't think there were fifteen, but it was possible.
Bachrach: Let us count them. There were the state's attorney and three assistants. That is four.
Patrick: Four, and the two prisoners make six.
Bachrach: Six. [Weren't there also three psychiatrists and one physician present, as well as several police officers?]
Patrick: And four doctors are ten. Well it might go to fifteen. . . .
Bachrach: And two stenographers?
Patrick: Yes, two stenographers. I guess it would reach-
Bachrach: About seventeen?
Patrick: Well, I don't think so, but I don't know.
Bachrach: Did you ever in your life make an examination of any person, as to his mental state, under circumstances of that kind before?
Patrick: I think not.