Babe and Dickie on Trial (Part 2 of 3)

Continued from Part 1

Darrow, who was sixty-seven years old at the time, was already considered a legal superstar and an outspoken opponent of the death penalty.    Along with the Scopes Monkey trial (which occurred in the following year), Darrow's fame as the most famous lawyer of the twentieth century was guaranteed by his role in the Loeb and Leopold trial.    Making up the rest of Darrow's "dream team"  were Benjamin and Walter Bachrach, two brothers who also happened to be cousins of Richard Loeb.     Both brothers were prominent legal heavyweights in their own right while Walter Bachrach had a longterm fascination with the psychology of crime. 

Opposing them was the State's Attorney Robert Crowe.   Facing re-election in the fall, Crowe needed a successful conviction to advance his own political career.    Having been elected on an anti-crime platform,  there was absolutely no chance of any kind of deal that might suggest that the Loeb and Leopold families had used their wealth to save them from execution.   The presiding judge, John R. Caverley had been a former city attorney himself and had a reputation for legal toughness.    The fundamental question to be decided by the trial that began on July 21, 1924 was not whether Loeb and Leopold were guilty, they had confessed after all, but whether they should face the death penalty.

Though everyone had been expecting Clarence Darrow to try for an insanity plea,  his defense gambit was far more ambitious.  Not only did he have his clients plead guilty, but they threw themselves on the mercy of the court.   This was a clever strategy since it meant that Darrow could avoid a jury trial, which would certainly led to their getting the death penalty considering public opinion.    Instead, Darrow decided to rely on the psychiatric testimony of the expert witnesses he had arranged to examine Loeb and Leopold to reduce their sentence with what would be called a "diminished capacity defense" today.

In many ways, the Loeb and Leopold trial was the first real showcase of Freudian psychoanalysis in the United States.   Though Sigmund Freud and his supporters had gained a quiet reputation in some intellectual circles, they weren't very well-known otherwise.    Psychiatric testimony was largely limited to insanity hearings.    Once a defendant had been declared fit to stand trial however, psychiatrists and psychologists would have little to contribute afterward. 

Before the trial, the prosecutor had arranged for Richard Loeb and Nathan Leopold to be examined by three of the most prominent "alienists" (forensic experts qualified to testify about mental status) in Illinois.   The prosecution experts were all eminent in their field and even Darrow would say as much during the course of the trial.    Since all three experts were prepared to testify that the defendants were fit to stand trial, Darrow and his team tried an edgier approach using the newfangled Freudian psychoanalysis instead.   

Loeb and Leopold were both examined by two alienists of their own from out of town.   As well, Walter Bachrach hired three of the most well-known psychoanalysts in the county to assess the defendants.   The first of these, Dr. William White was the superintendant for St. Elizabeth's Hospital in Washington, D.C.and the then-head of the American Psychiatric Association.   He was also the author of numerous books on mental disorders.     The other two psychoanalysts, William Healy and Bernard Glueck were also eminent in their field with extensive experience in criminal psychology.   A fourth expert, neuropsychiatrist Ralph Hamill, rounded out the team of experts who prepared a joint medical report on Loeb and Leopold.   Though the report was not formally entered into evidence during the trial, it was a cornerstone of the defense strategy and would be later published in a professional journal. 

Based on the report (which would eventually be regarded as a classic in the history of psychiatry), Clarence Darrow and his team of lawyers would use psychological testimony to argue that the defendants were sane but still not completely responsible for their actions.   While the "diminished capacity" defense is common enough now, no lawyer had ever attempted it before the Loeb and Leopold trial.  The prosecution's job was relatively straightforward by comparison.    There was absolutely no question of Loeb and Leopold's guilt and an insanity plea was out of the question with three prominent alienists testifying for the prosecution.   The public was demanding the death penalty and prosecutor Robert Crowe was determined to make it happen. 

For his part, Clarence Darrow was as flamboyant as ever.  After the prosecution rested its case on July 30, he leaked key portions of the forensic report prepared by his own two alienists, H.S. Hubert and Karl Bowman, to the press.   Darrow then insisted that parts of the report had been stolen to cover himself and avoid being cited for contempt of court.  With the report being run by all the newspapers covering the case,  the defense team was able to build support for this diminished capacity defense.

In the report, along with the usual medical conclusions, Bowman and Hubert also provided a psychological evaluation of both Loeb and Leopod, including their abnormal childhoods.    The report focused on their lack of proper socialization and failure to develop a normal moral sense.  The report also described their abnormal sexual fantasies and strongly suggested that Richard Loeb had been the mastermind behind the killing, rather than Nathan Leopold as the newspapers had been arguing up to that time.    All of this followed Clarence Darrow's strategy in arguing that his clients were not fully responsible for their actions due to their childhood problems.

When the psychoanalysts took the stand, the trial became a showcase for Freudian psychoanalysis and newspapers carried all the details.   Concepts such as "repression" and "libido" suddenly became household words and the trial outcome would generate a legal and ethical debate that would continue for years.   As soon as Willliam White began testifying about "Babe" and "Dickie" (his pet names for the defendants), Robert Crowe demanded that the judge rule out the possibility of a diminished capacity defense.   In stating his position, Crowe pointed out that the law only allowed someone to be declared responsible for their actions or not responsible, there was no in-between position.     After carefully weighing his options, Judge Caverly decided to allow Darrow to argue for mitigation.   It would set a legal precedent that transformed criminal law.

And the battle began between the prosecution and defense experts.   Judge Caverley's decision allowed for all the alienists, the ones for both the prosecution and defense, to testify and for their reports to be entered as evidence.    Terms such as "split personality", "subconscious influence", "phantasies" (as it was spelled at the time), and various other medical concepts were flung back and forth while newspaper reporters tried to make sense of it all for their readers.   Freudian psychoanalysis gained a new respectability as readers across the country tried to educate themselves on what was being described in the trial.

In a move to sell newspapers, William Randolph Hearst (who owned the Chicago Herald and Examiner at the time) offered Sigmund Freud up to half a million dollars if he would come to Chicago to psychoanalyse Loeb and Leopold himself.    Hearst even offered to charter an ocean liner to bring him to the United States.   Freud, who had been recently diagnosed with cancer, declined.    Whatever Freud's own views on the "diminished responsibility" gambit, his American disciples continued to argue their case on his behalf.

Not that Darrow's argument was particularly popular.   Outrage over the idea that psychology could be used to mitigate responsibility for Bobby Franks' murder was apparent enough in editorials and letters to the editors across the U.S. and even in Europe.    A 1924 editorial in London's Daily Mail described the "mobilization of  a procession of psycho-analysts" as being "dubious science" that posed a danger to the public.    While the public was fascinated by the psychoanalytic explanations of why Loeb and Leopold committed murder,  they were not inclined to see them treated more leniently as a result.    The trial testimony also presented a new psychology for raising children since the testimony outlined how the abnormal childhoods of the defendants led to their committing murder. 

To be continued
















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