Wilk ambled to the bench, as a man puzzled. “And has the degree of responsibility nothing to do with it?”
“Degree!” Horn snapped. “Insanity is a total defence, the same as self-defence, the same as an alibi.”
“But if a medical condition-” Edgar Feldscher began.
Padua interrupted. “The law on the issue of an insanity defence-”
“We claim-” began Wilk.
“One moment, Mr. Wilk!” And he put his question to the judge. “If it is conceded that insanity is not a defence, have they any right to introduce any evidence of insanity?”
“No, we’re not-” Feldscher shouted.
“No evidence of insanity!” Wilk echoed, while Dr. McNarry studied them all with interest.
“Then have you any right to introduce evidence as to the mental condition of these men?” Padua demanded.
“Certainly!” they cried in unison.
“Evidence intended to show that they are not responsible, or should not be held to the degree of responsibility that other people should be?”
“Certainly,” Wilk demonstratively resumed his seat.
“But that is insanity called by another name!”
“You can call it green cheese if you like!” Ferdinand Feldscher sneered.
“Wait, wait! Don’t get excited!” The judge leaned in.
Dr. McNarry permitted himself a chortle. Judd grinned. Artie looked worried, as if to remind us all that his life was at stake in this dispute.
The case seemed to hang in balance. Turning blandly toward Dr. McNarry, the judge said, “I don’t know what Dr. McNarry or whatever his name is, is going to testify.” He beamed upon Horn. “Nobody has said he is going to testify as to their sanity, except the State.”
It was sophistry. We all had the report of the alienists in our hands. Did not the report on each boy conclude with the statement that he was mentally affected? From a legal point of view, Horn seemed right. But the real trouble was that the law itself in its definition of insanity was antiquated.
There in that broiling courtroom in Chicago the inadequacy of the definition was being made clear; there in those days of wrangling the law itself was being tested. If it did nothing else, if the life or death of Judd and Artie was of little significance, their case at least served to focus the world’s attention on the inadequacy of our laws in the face of our new knowledge of the human personality and mind.
The argument climbed. The lawyers brought in rulings from Nebraska, precedents from Alabama, statutes from Colorado. Word of the battle had seeped down to the street, and the pressure at the door increased. As in most arguments, the issue was only a definition of a word. Insanity. The word was like a push button for a jury. The defence tried to shade it to “an affected mind”.
“There is no need in citing the law,” Judge Matthewson said. “If there is any mental disease, it is insanity.”
There was a sudden silence. The prosecution seemed to have won. Judd, in panic, turned to Jonathan Wilk.
Wilk arose again and stepped to the bench. “Do you mean to say that the court will not consider the mental condition on the question of mitigation? When the mental condition does not rise to a defence?”
His question hung in the air. Mitigation, he repeated. What entered into mitigation? Didn’t one consider the conditions that led to a crime? The background of the criminal, the forces that moulded his character? The pressures upon him, the extent of his responsibility?
And as he spoke, the courtroom was being gradually drawn back from the definition of a word to deeper questions. What was free choice of action? What was free will? And, unsaid, one could hear Wilk’s lifelong rumination, his gentle pessimism, his insistence on some form of mechanistic determinism, his claim that there was no free will. Yet even if some freedom of will did exist, “Suppose the mental condition seriously interferes with their free will and understanding, don’t you think the court has a right to listen to that, in mitigation?”
It was the deeper kind of plea, for which we had waited from Wilk, the plea for compassion, yet delicately balanced, because if you carried it too far you would be saying what you really meant, that no one was responsible for any crime.
And Padua, lowering his voice so that it was as solemn as Wilk’s, devilishly suggested, “If you had a mental condition of that kind, it would be your duty to take full advantage of it before a jury.”
A grudging gasp went through the courtroom, at the young attorney’s cleverness in puncturing the grand champion’s spell.
Wilk was momentarily taken aback. Ferdinand Feldscher stepped in, to quote authorities again, and at times four or all six of the attorneys argued earnestly, with the judge intently taking part.
But gradually voices rose. “We’re wasting hours!”
“Wasting a few hours doesn’t make any difference,” said the judge. “The lives of two men are at stake here, and the issue itself is important.”
The morning session was over. As the boys were led out, Judd remarked to Dr. McNarry, “Well, you nearly got a word in,” and Artie said, “They’ve got you stuck to that seat, Doc.” We all recorded their wit, the hostile papers adding that at two hundred and fifty dollars a day, the doctor had no reason to complain.
When the argument was resumed, it was Edgar Feldscher who attempted to clarify the issue. “Even the most expert alienist finds it difficult to put his finger on the border line between sanity and insanity.” Though experts found it hard to define insanity, Feldscher pointed out, “Yet the law is that a jury of twelve ordinary laymen, maybe half of whom got through high school, should, on listening to testimony, be able to judge whether a man is sane or insane!”
“But that’s the law!” Horn was right back at it. “An insanity issue goes before a jury.”
The mild Edgar Feldscher suddenly snapped, “Let me ask, when you were a judge on this bench, didn’t you, in a similar proceeding – in the Fitzgerald case – hear evidence of sanity on a plea of guilty, for attacking that poor five-year-old little girl?”
“No, I didn’t-” Horn began.
Wilk cut in, a figure of wrath. “Why, every lawyer in Chicago knows you had an alienist testify that Fitzgerald was a legal moron!”
“Yes, but I didn’t permit testimony of insanity!” Horn screeched. “Moral depravity is not insanity.”
“An alienist testified to the mental condition of Fitzgerald,” Wilk insisted.
“Testified he was a degenerate!”
“And irresponsible!” Wilk shouted in his face.
“And Fitzgerald was sentenced to be hanged!” Horn retorted triumphantly.
“You hanged him,” Wilk stated, in disgust. “You hanged a diseased moron.”
Judge Matthewson angrily rapped for order. For another day they debated, until Padua summed it up for the State: “Seventy per cent of all admissions to state institutions are mental diseases functional in their nature – the very language of the defence – and that is insanity, legal insanity, and that is a defence before a jury.”
Now Wilk ranged himself in his famous pose, his thumbs under his braces, his long body relaxed.
He began dryly. “I understand from everything that has been said in this case, from the beginning to the end, that the State’s Attorney’s office feels the universe will crumble unless these two boys are hanged. I must say I have never before seen the same passion and enthusiasm for a death penalty as I have seen in this case.”
It was Wilk in one of his characteristic humanitarian outbursts. “If I thought that hanging men would prevent any future murders, I would probably be in favour of doing it,” Wilk said. “In fact, I would consent to having anybody hanged, excepting myself…”
Now he became the clever lawyer, turning Horn’s own argument against him. “If the ability to judge between right and wrong is the only criterion of sanity, why, then we already know the boys are legally sane, so the judge can listen to anything he wants, here. Why, Mr. Horn even said my clients are as sane as he is!” What, then, was the prosecution holding things up for? “They came in here with their beloved Blackstone, hoary with time…”