“We can come down to the last century where nearly two hundred crimes were punishable by death. You can read the stories of hanging on a high hill, and the populace for miles around coming out to the scene, that everybody might be awed into goodness. Hanging for picking pockets – and more pockets were picked in the crowd that went to the hanging than had been known before.
“What happened? Gradually the laws have been changed and modified, and men look back with horror at the hangings and killings of the past. What did they find in England? That, as they got rid of these barbarous statutes, crimes decreased instead of increased. I will undertake to say, Your Honour, that you can scarcely find a single scholarly book – and I will include all the works on criminology of the past – that has not made the statement over and over again that as the penal code was made less terrible, crimes grew less frequent.
“This weird tragedy occurred on the twenty-first of May. It has been heralded, broadcast through the world. How many attempted kidnappings have come since then? How many threatening letters have been sent out by weak-minded boys and weak-minded men since then? How many times have they sought to repeat again and again this same crime because of the effect of publicity upon the mind? I can point to examples of killing and hanging in the city of Chicago which have been repeated in detail over and over again, simply from the publicity of the newspapers and the public generally.
“Let us take this case. If these two boys die on the scaffold, which I can never bring myself to imagine, every newspaper in the United States will be filled with the gruesome details. It will enter every home and every family. How many men would enjoy the details? And you cannot enjoy human suffering without being affected for better or for worse; those who enjoyed it would be affected for the worse.
“Do I need to argue to Your Honour that cruelty only breeds cruelty? If there is any way to kill evil and hatred and all that goes with it, it is not through evil and hatred and cruelty; it is through charity and love and understanding.
“There is not a man who is pointed to as an example to the world who has not taught it. There is not a philosopher, there is not a religious leader, there is not a creed that has not taught it.”
We looked to Judd. Would he let himself be defended by this assault on his Nietzschean creed? But he was attentive, only flushing slightly.
“This is a Christian community,” Wilk went on, “so-called; at least it boasts of it. Let me ask this court, is there any doubt about whether these boys would be safe in the hands of the Founder of the Christian religion? It would be blasphemy to say they would not. And yet there are men who want to hang them for a childish, purposeless act, conceived without the slightest malice in the world.
“Your Honour, I have become obsessed with this deep feeling of hate and anger that has swept across the land. I have been fighting it, battling with it until it has fairly driven me mad, until I wonder whether every righteous human emotion has not gone down in a raging storm.
“I am not pleading so much for these boys as I am for the infinite number of others to follow, those who perhaps cannot be as well defended as these have been. It is of them that I am thinking, and for them I am begging of this court not to turn backward toward the barbarous and cruel past.”
In the morning Wilk turned to speak of the boys themselves. “Now, Your Honour, who are these two boys? Straus, a boy robbed of his boyhood, turned into a prodigy; Steiner, with a wonderfully brilliant mind-”
Judd leaned forward, as if at last the moment of fruition had come, when a great soul would interpret him to the world. But it was to the general psychiatric argument that Wilk gave attention. The brilliant youths, from earliest childhood “crowded like hothouse plants to learn more and more and more. But it takes something besides brains to make a human being who can adjust himself to life.
“In fact, as Dr. Ball and Dr. Tierney regretfully admitted, brains are not the chief essential in human conduct. The emotions are the urge that makes us live – the urge that makes us work and play, or move along the pathways of life. They are the instinctive things.”
Wilk pictured the examination by the State’s alienists after the boys had made their confession. “Dr. Tierney and Dr. Ball are undoubtedly able men. Dr. Tierney said this: The only unnatural thing he noted was that they showed no emotional reactions. Dr. Ball said the same. These are the State’s alienists, not ours. These boys could tell this gruesome story without a change of countenance, without the slightest feelings. What was the reason? I do not know. I know what causes the emotional life. I know it comes from the nerves, the endocrine glands, the vegetative system. I know it is practically left out of some. They cannot feel the moral shocks which safeguard others. Is Artie Straus to blame that his machine is imperfect? I have never in my life been interested so much in fixing blame as I have in relieving people from blame. I am not wise enough to fix it.
“A man can get along without his intellect, and most people do, but he cannot get along without his emotions. These boys – I do not care what their mentality: that simply makes it worse – are emotionally defective.
“Mr. Horn worked with intelligence and rapidity. On that Sunday afternoon, before the defence had a chance to talk to the boys, Mr. Horn got in two alienists, Ball and Stauffer, and they sat around hearing these boys tell their stories, and that is all.
“Your Honour, they were not holding an examination. They were holding an inquest and nothing else. A little premature, but an inquest.
“If Mr. Horn was trampling on the edges of the Constitution, I am not going to talk about it here. A great many people in this world believe that the end justifies the means. I don’t know but what I do myself. And that is the reason I never want to take the side of the prosecution, because I might harm an individual. I am sure the State will live anyhow.
“But what did Dr. Ball say? He said that it was not a good opportunity for an examination. Of course there was Stauffer. ‘Fine – a fine opportunity for an examination, their souls were stripped naked.’ Stauffer is not an alienist. He is an orator. Well, if Stauffer’s soul was naked, there wouldn’t be much to show.” So much for the prosecution’s alienists.
But the defence alienists had indeed examined the emotional conditioning of the boys. First there was Artie’s Miss Newsome. “This nurse was with him all the time, except when he stole out at night, from four to fourteen years of age. She, putting before him the best books, which children generally do not want; and he, when she was not looking, reading detective stories, which he devoured. We have a statute in this state, passed by the legislature last year, if I recall correctly, which forbids minors reading stories of crime. Why? Because the legislature in its wisdom felt that it would produce criminal tendencies in the boys who read them. This boy read them day after day. He never stopped. When he was a senior he read them, and almost nothing else. Artie was emotionally a child.
“Counsel have laughed at us for talking about childhood fantasies and hallucinations. Your Honour has been a child. And while youth has its advantages, it has its grievous troubles.
“What do we know about childhood? The brain of the child is the home of dreams, of castles, of visions, of illusions and delusions. I remember, when I was a child, the men seemed as tall as the trees, and the trees as tall as the mountains. I can remember very well when, as a little boy, I swam the deepest spot in the river for the first time. I have been back since, and I can almost step across the same place, but it seemed an ocean then. And these tall men who I thought were so wonderful, they were dead and they had left nothing behind. I had lived in a dream. I had not known the real world, which I met, to my discomfort and despair, as I grew older, and which dispelled the illusions of my youth.