“No,” said Edgar, tentatively. “Why couldn’t we present the entire psychiatric evidence, as we would before a jury?”
The others looked at him as though he had forgotten his ABC’s. If a judge could be convinced of insanity, he was bound to call a jury.
“Yes, yes, but short of insanity-”
Wilk’s head had lifted. “Mitigating circumstances,” he croaked hoarsely, pulling himself up to a sitting position. “A judge is duty bound to listen to mitigating facts.”
“Yes, but how can you raise the question of their mental condition, in mitigation, without coming to the question of insanity? And the minute you touch on that…”
It was indeed the paradox, and McNarry did not hesitate to express his lifelong disgust with this curious situation in which a jury of laymen, the persons least equipped for it, were always the ones who had to decide whether a person was insane.
Uncle Gerald had a thought. “All right, suppose a judge does at some point call a jury. We’re no worse off. In fact, we’re better off, because this already shows the judge doubts their sanity.”
It was an impressive point. “And then, we’ve still got Jonathan, here, before a jury,” said Ferdinand Feldscher.
“We’re not doing this as a show for me,” Wilk said.
Edgar Feldscher drew them back to the original idea. “We don’t have to raise the insanity issue, temporary or anything. We claim they are suffering from a functional disorder, short of a psychosis. These boys are not responsible for their behaviour-”
“Who is?” Wilk interjected.
“And if we are careful to keep the argument short of insanity, isn’t it a mitigating condition?”
It would be a thin line to tread – to convince the judge that they were sick, but not sick enough to be called insane. The doctors would have to avoid the very word.
“Don’t worry,” said McNarry. “It’s not really a medical word. I never use it if I can help it.”
“There’s one thing I like about this plan,” said Max Steiner. “It’s honest to plead guilty. It’s the plain truth.”
Wilk drawled, “It’s no easier to make people believe the plain truth than a lie. But I suppose it is always more comfortable.”
Uncle Gerald was still uncertain. It was so risky to rest everything on one man instead of twelve.
“He’s a good man,” Wilk commented.
“He’s never hanged anybody,” Ferdinand Feldscher said.
And so they agreed, but with one condition. “We’d better make sure how the boys feel about it.”
Wilk wanted to see for himself how they reacted. Artie nervously agreed. They knew best. Judd had a touch of resistance. Pleading guilty, didn’t that mean merely going up to be sentenced? Then the case would never really be heard?
No, Wilk assured him; in the mitigating evidence, everything would be heard. All his ideas would be heard.
Thus it was that the defence made the astonishing announcement of a change of plea. In a quick, unspectacular hearing, the boys were brought into court, to declare themselves guilty.
The Hearst papers were the most blistering. So even Wilk was afraid to go before a jury! And then Mike Prager carried an “inside” story. The defence case had collapsed, he declared on “good authority”, because the thousand-dollar-a-day alienists for the defence refused to declare the boys insane.
We all found ourselves crowding into Wilk’s office. Wilk looked harrowed, his voice was hoarse. He gestured to the newspapers on his desk. On top was the American, with its scarehead: THEY’LL HANG, HORN VOWS.
“Now, fellows,” Wilk said, “if you want to know why we had to change the plea, there’s the answer. You’re all part of it. How can we hope to find even one unprejudiced citizen for this jury?” He would plead evidence in mitigation, merely that their lives might be spared.
What mitigating evidence? we all demanded.
If they had been boys from impoverished homes, Wilk pointed out, we would all agree there were mitigating conditions. But wasn’t there something beyond the social condition, a lower common denominator, something that forced the boys to kill? That was what the psychiatrists were trying to find.
A dozen voices demanded, Was it true that the psychiatrists had reported there was nothing wrong with the boys? The report of Dr. Allwin and Dr. Storrs was a private one, Edgar Feldscher put in sharply.
“Why?” demanded Mike. “What are you trying to hide?”
There might be some private family matters that had nothing to do with the crime, Feldscher said calmly.
Mike retorted, “There’s nothing private about murder.”
Wilk addressed Mike directly. “Now why do you want to go printing stuff you don’t know is true?” He slapped his hand down on the newspaper. “What do you want to make up stuff like this for?”
If anything was made up, Mike taunted, then let Wilk release the facts to disprove it.
“The facts will come out in court,” Wilk said, “and all of you will get them at the same time.”
“I’ll get them before that, if I can!” Mike snapped. “And I’ll get my own facts, not the facts you want us to have.”
There was a murmur, something like “Aw, play ball.” But Mike marched out.
On the secretary’s desk was a pile of documents, just delivered from a typing service. The secretary was in the main office with the rest of us. Mike’s eye took in the doctors’ names, on the top sheet. He picked up a copy of the Storrs-Allwin report and simply walked out of the office with it.
Mike’s paper was on the street in two hours, with a full page of sensational quotes from the confidential report. Instantly, we were called to come back to Wilk’s office. Even as I dodged across the Loop streets, I was skimming Mike’s scoop. Under “Sex Pact” there appeared for the first time the story of their curious agreement, after the Ann Arbour robbery. In a special box, I found Artie’s admission of additional crimes, A, B, C, D. What were they? the paper demanded. And on the inside page were columns and columns of quotations from their fantasies.
In Wilk’s office there was an atmosphere of outrage. Edgar Feldscher handed out all the available copies of the report, with one last attempt to caution us. “This should never have got out,” he said. “Not that we want to hide anything from the public, but because these studies are still incomplete. We’re pleading mitigation, mercy, because these studies show that the boys were not entirely responsible – indeed they were far from responsible – for what they were doing, in the sense that they were not in mental and moral health.”
It may be that he said it as well, then, to our circle of reporters, as it was ever said in court. As we hurried out with our copies, we talked angrily of Mike and his scoop. Only Danny Mines of the News said, “Hell, any one of us wishes he had done it.” And there was again the question never entirely resolved in the mind of the newspaperman, the fundamental question of the means and the end.
And it must be asked, had Mike never stolen that report, would all that we know have become known? Would even that slight mention, “He admits to four other episodes” – characterized as A, B, C, D, and not further examined – ever have come to public knowledge?
The report had one stunning effect on our conception of the crime. Until then, Tom and I, like almost everyone else, had felt Judd to be the dominant power, the Svengali, the dark, sinister one; but in the office, as we digested the material, we saw that we had been wrong, everyone had been wrong. Except, I thought, Ruth.
For the alienists showed in detail how Artie had been the instigator, the leader, and Judd his “gang”. Judd had been tied to him in passion. While Tom rushed out the excerpts, I phoned Horn. He was in high spirits, alternating between ridicule of all that flimflam and indignant demands that the obscure parts be illuminated. “A, B, C, D – that’s all crime means to Mr. Wilk and his friends!” Horn shouted. “Just a couple of little boys that can say A, B, C, D, with a murder for each!” And that gland stuff – the boys were known in jail to be in perfect health. As for all those daydreams, kings and slaves, was Wilk actually going to come into court with that nonsense? No wonder he wouldn’t dare face a jury!