5
FIRST TRIAL
January 23, 1907–April 12, 1907
“THE DEFENDANT IS ACCUSED OF THE CRIME OF MURDER IN THE first degree.” The assistant district attorney, Francis Garvan, addressed the jury in a ponderous manner, each sentence followed by a slight pause. “It is claimed by the people of the State that on June 25, in this county, he shot and killed with deliberation and premeditation and intent to kill, one Stanford White.”
There was nothing ostentatious about Garvan’s opening address, nothing superfluous about his words, as he described how Harry Thaw had murdered Stanford White during a performance of the musical comedy Mamzelle Champagne. Thaw had acted deliberately, firing three bullets, then holding his gun above his head as if to indicate that he intended no further harm, calmly speaking to his wife before leaving Madison Square Garden. “He was placed under arrest, and was brought to the police station. He has been indicted by the Grand Jury and is now here before you to be tried upon the charge.”1
The hush of the courtroom was broken by a slight cough, and Garvan glanced toward the far side of the room. Harry Thaw, seated in the front row, his attorneys on either side, coughed a second time, muffling the sound with a handkerchief. The six defense lawyers sat stone-faced, paying no attention to Thaw, waiting impassively for Garvan to conclude his address. Daniel O’Reilly occupied the aisle seat, adjacent to the jury box; Henry McPike and A. Russell Peabody sat on his left; and three more lawyers—Delphin Delmas, John Gleason, and Clifford Hartridge—filled the remaining seats in the front.
Garvan had spoken for fifteen minutes and already he was approaching the end of his address. No one disputed the facts, Garvan continued, and the state need only show that the defendant had acted intentionally in order to prove his guilt. “The people claim that it was a cruel, deliberate, malicious, premeditated taking of a human life. After proving that fact to you,” he said, addressing the jurors, “we will ask you to find the defendant guilty of the crime of murder in the first degree.”2
The district attorney, Travers Jerome, nodded his approval, whispering some congratulatory remarks to his assistant as Garvan returned to his seat. The judge, James Fitzgerald, spoke next, saying that those people who expected to testify should leave the courtroom, and the clerk of the court, William Penney, stepped forward to escort Evelyn Nesbit to a side door. Delphin Delmas, the lead attorney for the defense, had warned Mary Thaw that he might call her to testify on her son’s behalf, and she too gathered her belongings, walking alongside her daughter-in-law to wait in an anteroom outside the courtroom. Harry’s siblings—his brothers, Josiah and Edward, his sister Margaret, and her husband, George Lauder Carnegie—all remained, seated behind the attorneys.3
Lawrence White, the son of the slain architect, was the first witness, telling the court that he had met his father for dinner on the evening of the murder. He had taken a cab uptown with a friend after dinner to see a musical at the New York Theatre, leaving his father to walk alone to Madison Square Garden for the opening of Mamzelle Champagne. He had returned to the family’s town house on Gramercy Park, retiring around eleven o’clock, but reporters had awoken him shortly before midnight to tell him that someone had shot his father.4
A second witness, the coroner’s physician, Timothy Lehane, also testified, saying that he had performed the autopsy on the day after the murder. He had found three bullets in White’s body: two bullets had entered the skull, resulting in cerebral hemorrhage, the cause of death; a third bullet had hit White’s arm.5
Other witnesses, members of the audience at Madison Square Garden, described the shooting, telling the court that Thaw had walked toward the stage to stand directly in front of Stanford White. He stood motionless for a few seconds before raising his gun and firing three shots. White collapsed, bleeding profusely, and Thaw, holding the gun above his head, retreated toward the rear of the theater, giving up his gun to the duty fireman.
There was little distinction between one account and another; they all agreed in the essential particulars. Even Delphin Delmas seemed content to let the testimony go unchallenged. Occasionally Delmas would cross-examine a witness, asking about some detail—what was the expression on Thaw’s face? how was White sitting when Thaw shot him?—but his questioning seemed otherwise perfunctory; and very quickly, almost as soon as it had begun, the state had presented its case.6
Evelyn Nesbit lifted her veil as the clerk of the court, William Penney, waited to administer the oath. She removed her gloves, holding them in her left hand, her right hand raised as she repeated the words that Penney spoke to her. The crowd looked on expectantly, watching as she made her way across the front of the courtroom to the witness stand, waiting as she ascended the steps to sit in a high-backed chair on a raised platform.
She had placed her gloves on a small table by her side and she now sat erect, her back straight, her hands resting in her lap. She seemed so slim, so slight, almost impossibly young, closer in age to sixteen than twenty-two. There was nothing elaborate about her appearance: her dark-blue velvet jacket, white linen shirtwaist, and plain blue skirt provided no hint that she was married to one of the wealthiest men in the country. She wore a diamond solitaire ring and a gold wedding band on her left hand and a silver bracelet watch on her wrist. A black velvet ribbon fastened her hair away from her shoulders, at the nape of her neck, and a lawn tie, done in a bow, softened the severity of her white shirtwaist blouse.7
Delphin Delmas rose slowly from his chair, stepping toward his witness.
“You are Evelyn Nesbit Thaw?” he began.
“Yes.”
“You are the wife of the defendant, Harry K. Thaw?”
“I am.”
“On the evening of the twenty-fifth of June of last year were you in company with your husband at dinner at the Café Martin, in this city?”
“Yes.”
“Kindly state who, if any one besides you two, composed the party?”
“Mr. Truxton Beale and Mr. Thomas McCaleb.”
They had dined together that evening at Café Martin, a restaurant at Twenty-sixth Street and Fifth Avenue, leaving shortly after eight o’clock to walk across Madison Square for the opening night performance of Mamzelle Champagne, a musical comedy playing at Madison Square Garden. They had arrived in the middle of the first act, finding four seats at the rear of the theater. There had been nothing unusual, nothing untoward, about the evening; she had noticed nothing in her husband’s behavior that might have caused comment; and she remembered only that he had left his seat for about ten minutes to talk to an acquaintance sitting by the balustrade on the south side of the rooftop theater. Harry returned to her side; but she was not enjoying the performance, and they decided to leave shortly afterward.
“Will you kindly describe to the jury,” Delmas asked, “how the party left?”
“We all went out together…. We were almost to the elevator and I was talking to Mr. McCaleb and turned around to say something to Mr. Thaw and he was not there.”
She had looked around, searching the theater for her husband, when she suddenly noticed Stanford White seated at a table near the stage. Harry was motionless, standing directly before White.
“What was he doing?” Delmas asked.
“He had his arm out,” Evelyn replied, raising her right arm, holding it straight before her, pointing it in the direction of the attorney, “like that.”
“Did he then move forward?”
“No, he stood still a little longer.”
“Did you hear any shots fired?”
“I did…. Immediately I saw Mr. Thaw I heard the shots.…”
“How many shots did you hear?”
“Three.”8
Her voice was quiet, almost soft, yet she spoke in a matter-of-fact manner, each word so clear and distinct that even those spectators at the back of the courtroom could hear her answers. Occasionally she leaned forward as though to add emphasis to her testimony; at other times she placed her elbow on the arm of the chair, resting her chin on her hand. Sometimes Delmas would walk a few paces back and forth in front of her, twirling his eyeglasses in his hand, and she would follow his movements, always responding to each question in the same quiet, unhurried tone of voice.
Delphin Delmas, sixty-two years old, was a short, stubby man, about five feet six inches tall, slightly overweight, with a pompous manner. As a young man he had won a reputation as a clever, resourceful attorney, and he still treasured that reputation, now dulled with age, much as one might value an expensive overcoat that had become shabby through overuse. He had studied first at Santa Clara College in California, traveling east in 1863 to learn law at Yale University, eventually establishing a practice in San Francisco. His mannerisms in court seemed old-fashioned, reminiscent of the previous century; his sentences were too elaborate, excessively long-winded, and his gestures were overly dramatic, more for show than for effect. But he had learned his trade well, and he had not forgotten the tricks of a legal practice that had already lasted several decades. His knowledge of the law was compensation for his manner, and he almost invariably triumphed in the courtroom. He had a dour, disdainful expression and was often abrupt in his manner, but he was a clever lawyer who prepared each case meticulously, checking every detail that might win him an advantage.9
Mary Thaw hired Delphin Delmas to represent Harry Thaw during his first trial for the murder of Stanford White. Delmas had studied at Santa Clara College in California before entering Yale University to study law. He served as a delegate to the 1904 Democratic National Convention in St. Louis and nominated William Randolph Hearst as the Democratic candidate for president. (Library of Congress, LC-DIG-ds-10595)
There was little chance, he had told Evelyn before the trial, that a jury would send Harry to the electric chair after hearing an account of the rape that Stanford White had inflicted on her. They had rehearsed her testimony beforehand, talking together for hours over the details that he needed her to describe in court. She should hold nothing back, Delmas had said; every detail, no matter how graphic, would serve both to damn Stanford White and to save her husband. But it was important, above all else, that she present her testimony about the rape in the form of a conversation that she had had with her husband. She had first told Harry about the rape in 1903, in their apartment in Paris, and it was that conversation, Delmas believed, that had tipped Harry over the edge into insanity.
The district attorney, Travers Jerome, would attempt to prove her account false, to trip her on some detail, to catch her in a contradiction, even perhaps to claim that the rape had never happened. But Jerome could cross-examine her only on the facts that had been entered into evidence on direct examination, which she had already presented to the court. He could not challenge the veracity of a private conversation that she had had with her husband, so their triumph over the district attorney would be assured, Delmas had said—but only as long as she avoided giving any direct testimony about the rape.
“When,” Delmas asked, “had Mr. Thaw proposed for the first time to marry you?”
“In June, 1903, in Paris,” Evelyn replied.
“At the time Mr. Thaw proposed to you, at that time did you accept his offer or did you refuse it?”
“I refused it.”
“Did you state to him the reasons why you refused it?”
“I did.”
“In stating the reasons to Mr. Thaw why you refused his offer, did you state a reason to him which you then stated was based upon an event in your life with which Stanford White was connected?”
“Yes.”
“Will you kindly give us the whole of that conversation from beginning to end?”
Harry had proposed to her one evening during their stay in Paris, telling her that he loved her and that he wished to marry her. She had hesitated, and he had questioned her, wanting to know the cause of her reluctance, eventually surmising that it had something to do with Stanford White.
She told Harry that Edna Goodrich, a dancer in Florodora, had first introduced her to the architect, taking her to meet White at a town house on Twenty-fourth Street. They had had lunch with White and one of his friends, and later that afternoon they had played together on the velvet swing. White subsequently invited her mother to visit him at his offices and immediately, it seemed, he won their confidence. He had been generous, almost excessively so, providing the money for their suite of rooms at the Audubon Hotel and paying for her brother to study at the military academy outside Philadelphia. White always seemed willing to pay any expense, and when her mother, Florence, mentioned that she might travel to Pittsburgh to visit some friends, White offered to pay for the journey.
She, Evelyn, had seen White frequently during her mother’s absence. One day he suggested that she pose for a photographer, Rudolf Eickemeyer, at a studio on Twenty-second Street.
“Did you describe or relate to Mr. Thaw what took place in that photograph studio?”
“I said they showed me a dressing room and I put on a very gorgeous kimono…. I put on this Japanese kimono and Mr. White said it came from Hong Kong and I posed for a long time.”
“Did you describe to Mr. Thaw the general appearance of those garments?”
“I did…. Then the next night after that I received a note from Mr. White at the theatre asking me to come to a party and he would send a carriage for me; the carriage would be waiting.”
She had taken the cab downtown, to Twenty-fourth Street, expecting to see other guests, but Stanford White had been at the town house alone. They had dinner together, and White took her upstairs to the fourth floor, where he offered her a glass of champagne.
“He insisted that I drink this glass of champagne, which I did and I don’t know whether it was a minute after or two minutes after, but a pounding began in my ears…. The whole room seemed to go around: everything got very black.”
Evelyn had previously given her testimony without hesitation—there had not been the slightest trace of emotion in her words—but suddenly, without warning, she stopped speaking. She turned away slightly, toward the window, shifting in her chair as if to hide her face from view. There was a sudden hush in the courtroom, a painful silence that seemed to last forever, ticking away minute by minute, as the spectators watched her struggle to control her emotions. There was a slight twitching in her left cheek, and tears started to well up in her eyes. Her hands were clasped tightly together on her lap, the fingers of one hand gripping the fingers of the other hand. Suddenly a loud cry broke the silence and Evelyn buried her face in her hands, her muffled sobs echoing through the courtroom.
“Mrs. Thaw, I do not desire,” Delmas spoke quietly, his voice full of sympathy, “to distress you any more than is necessary in this matter, but it is absolutely essential that you should go on with your testimony.”
Eventually she recovered her composure, taking up again the thread of her story; but her voice was no longer calm as she recounted the dreadful details of that night. She had awoken to find herself lying naked on the bed next to Stanford White. Telltale bloodstains on the sheets told her that he had raped her while she lay unconscious.
“When I woke up all my clothes were pulled off me and I was in bed…. I screamed and screamed and screamed, and he came over and asked me to please keep quiet, that I must not make so much noise.”
“Did you tell Mr. Thaw what took place between yourself and White?”
“Yes.…”
“You told all of this,” Delmas asked again, “to Harry Thaw that night in Paris after he had asked you to marry him?”
“Yes.”
“What was the effect of this statement of yours upon Mr. Thaw?”
“It was very terrible…. He was very excited…. He bit his nails, he tore his hair. His face got very white…. He would get up and walk up and down the room…. He sat there and he cried…. Every now and then he would come and ask me particular things about it.”
“Asked about the details of this occurrence?”
“Yes, sir.”10
She had not anticipated that her story would cause Harry such anguish, and she had not realized the extent of his hatred for Stanford White. Later that year, at the end of October, she had returned alone to New York while Harry remained in Paris.
They met again, on Harry’s return to New York at the end of December, at the Café des Beaux-Arts, and she told him how Stanford White had contacted her shortly after her arrival back in New York. She had been unwilling to see White again; but he had insisted on seeing her, and eventually she relented.
“You told Mr. Thaw,” Delmas interrupted, “that Mr. White… had repeatedly called at your apartments at the hotel?”
“Yes.”
“Proceed,” Delmas instructed his witness. “Tell us all that you said to Mr. Thaw upon the subject.”
White had attempted to kiss her on their first meeting, but she resisted his advances. He said that he had been concerned for her safety while she was in Europe. Harry Thaw was a drug addict who assaulted young girls, and he, White, had been fearful that Thaw might hurt her also. He introduced her to some of his friends, and they too told her the stories that had circulated on Broadway about Harry Thaw. White suggested that she speak to his lawyer, Abraham Hummel, and she took a carriage downtown to Hummel’s office. She told the lawyer about her travels with Thaw in Europe, and he, Hummel, dictated a statement, an affidavit, to a stenographer in her presence.
“He said that I must be guided by his advice absolutely, that he had practiced law a great many years and knew just what to do…. Then he put in a lot of stuff that I had been carried off by Harry Thaw against my will, and I started to interrupt and he put up his hand for me to stop…. Mr. Hummel went on at great length about I had been taken away against my will and against my consent… and a lot of stuff that wasn’t true, and that I had been ill treated by Thaw.”
“Tell us all the details,” Delmas prompted. “Tell us what you told Mr. Thaw.”
“He asked me,” Evelyn continued, relating her conversation with Hummel, “why I didn’t sue Harry Thaw for breach of promise, and I answered that that would be absurd, that any breach of promise suit might be the other way because Thaw had asked me to marry him…. He said there would be lots of money in it…. Lots of rich men were sued for breach of promise of marriage by actresses, and he said I ought to sue Mr. Thaw, and he could easily win the case for me.”
“Was that the substance of that interview, as stated by you to Mr. Thaw?”
“Yes,” Evelyn replied. “Then Mr. Thaw asked if I had ever signed anything at Hummel’s office. I told him I had not…. I said that I had signed absolutely nothing in Mr. Hummel’s office.”11
Who would now defend Stanford White? His behavior seemed the more contemptible because it had been so carefully calculated. His assault on Evelyn Nesbit’s virtue—the rape in 1901—had not been an act of passion, the result of a momentary loss of control, but had been long in preparation, each step of the scheme leading inexorably to the next. Two years after the rape, in November 1903, White had attempted to renew their acquaintance, hoping to have sex with her. She rebuffed him, but he attempted nevertheless to win her back, seeking to poison her relationship with Harry Thaw, telling her that Thaw was a drug addict who habitually whipped young girls. White had then conspired with Hummel to deceive her into drawing up a document, an affidavit, that he could use to blackmail Thaw.
Most observers realized that Delphin Delmas had so cleverly arranged matters that not even the district attorney could attempt to contradict the testimony of the witness. Evelyn Nesbit had testified only about her conversations with Thaw—the first in Paris in June 1903, the second in New York in December later that same year—and Jerome could cross-examine her, therefore, only on the content of those conversations. But how could Jerome challenge anything that she had said in a private conversation? It would not be possible. And it soon became apparent that Delmas would use his advantage to destroy whatever little remained of White’s reputation.
“After you had told Mr. Thaw,” Delmas prompted, “what had happened between you and Stanford White in 1901, did Mr. Thaw have any conversation with you in which he discussed the fate of other young girls who had met with similar treatment—?”
“If Your Honor please,” the district attorney interrupted angrily, rising from his chair. “Stanford White is dead.” Would there be no end to the destruction of White’s character? Would the witness now tell the court every piece of gossip about the dead man? “Are there no limits,” Jerome protested, “upon the condemnation which may be thrown upon the dead? I object to this question. It does not bear up on the case and we have gone far enough on this path.”
“The learned District Attorney,” Delmas replied sarcastically, “will bear in mind that I have no more desire to asperse the memory of the dead than of the living.” But Stanford White had assaulted other young girls in his apartments. The defendant had heard about those episodes also, and the cumulative effect of these tales had accelerated his mental deterioration. The defense attorneys had a responsibility to their client to provide the evidence that would account for his mental collapse. “We would be derelict in our duty,” Delmas concluded, “if we omitted to supply every atom of proof which we conceive will aid these gentlemen,” he pointed to the jury, “in arriving at a correct conclusion of his mental attitude.”
But the judge sustained Jerome’s objection. He would not allow the attorneys to introduce in this manner the gossip about Stanford White. The state had no means of contradicting such evidence, and, more significantly, Delmas had not yet provided any testimony to the court that Harry Thaw had been insane at the time of the murder. It was not sufficient, Fitzgerald ruled, merely to assert that Thaw had been insane; it was also necessary for the defense to provide the expert medical testimony that would support the contention.12
Evelyn Nesbit had begun her testimony on Thursday, February 7, and she remained on the witness stand for two days. She was an excellent witness, faithfully following Delmas’s instructions, speaking always with a degree of self-assurance that seemed to confirm her testimony as truthful. But outside the courtroom, in every part of the United States, there had arisen a storm of protest that a young woman should speak so candidly of such terrible events and, worse, that the newspapers should reprint her shocking description of the rape. The publication of such explicit testimony, told in such detail, had no precedent and seemed to many observers to symbolize moral decay and degeneracy.
The National League of Catholic Women, then holding its annual convention in Chicago, took time away from more humdrum matters to pass a resolution calling on the city’s newspapers to stop printing verbatim accounts of the trial. The Women’s Christian Temperance Union, an influential reform organization with more than 200,000 members, condemned the publication of Evelyn Nesbit’s testimony and called on Christian parents to protect their children by preventing them from reading the newspapers. In Chattanooga, the mayor, William Frierson, spoke at a mass meeting of citizens at the First Baptist Church against the publication of the sordid details, saying that such revelations would lead young men and women astray.13
Few observers attached any blame to Evelyn Nesbit for her testimony. Most commentators regarded her as the unfortunate victim of the affair and praised her for her resolute defense of her husband. It was the newspaper editors who were behaving irresponsibly, without any regard for morality. They had hoped to boost their sales by printing the scandalous details, and they were deservedly the target of public censure. A grand jury in Lebanon, Kentucky, indicted three newspapers in the state—the Louisville Herald, the Louisville Times, and the Louisville Evening Post—for printing offensive and indecent matter, and prosecutors in Ohio brought similar charges against the editor of the Cincinnati Enquirer. More significantly, Charles Wharton, a member of the United States House of Representatives from Illinois, introduced a resolution calling for legislation to empower the president of the United States to prevent the distribution of the newspapers across state lines.14
Federal officials, including prominent members of Theodore Roosevelt’s administration, debated the practicality of banning the circulation of the newspapers. Henry Stimson, the United States district attorney for the area that encompassed Manhattan, warned the New York newspapers that they had violated federal legislation that outlawed the distribution of obscene matter. It was irrelevant, Stimson announced, to claim as a defense that the newspapers had published the official transcript of a court proceeding: “The mere fact that such matter purports to be an account of a judicial proceeding furnishes no excuse for a violation of the statute.”15
The federal authorities in Canada had already acted—the postmaster general, Rodolphe Lemieux, had issued a warning from Ottawa that he would enforce the law against any newspaper that printed obscene matter—and members of the Roosevelt administration in the United States were keen to follow suit. George Cortelyou, the postmaster general of the United States, discussed the situation with the president that weekend, and on Monday, February 11, Roosevelt issued a statement through his press secretary, William Loeb, to say that he hoped to do everything possible to prevent further publication.16
But other government officials were not sanguine that the federal authorities could successfully prosecute the newspapers. Would any jury vote to convict such newspapers as the New-York Tribune and the New York Times as obscene publications? It would, moreover, create a dangerous precedent; if the administration could succeed in this instance, it might be tempted to censor the newspapers whenever their editorials opposed government policy. Charles Bonaparte, the attorney general of the United States, acknowledged Roosevelt’s desire to prevent publication but refused to declare an opinion on the question. “Somebody must clean out sinks and cesspools,” Bonaparte proclaimed, “but I at least feel no inclination to take part in it as a matter of choice.”17
But in any case, attempts at censorship were obviously now too late. The newspapers had already distributed Evelyn Nesbit’s testimony far and wide, to every corner of the United States—even the president confessed that he had read her statements—and any attempt now to prevent publication would seem futile, even ridiculous. Her testimony on direct examination had ended, and other witnesses—the psychiatrists—had already started to give their evidence to the court.
Harry Thaw had rejected the suggestion that he might be insane, and he had previously refused any request that he be examined by psychiatrists. He had always regarded his trial as an opportunity to reveal to the world the extent of Stanford White’s crimes, and an insanity plea would undercut his purpose. But Delphin Delmas had been persuasive, explaining that he would use psychiatric evidence only to supplement Evelyn’s testimony. Evelyn would tell the world about the rape, and the psychiatrists would testify that her story had driven him insane.
It was a clever scheme, and Harry gave his consent. Britton Evans, the medical superintendent at the New Jersey State Hospital for the Insane, was the first psychiatrist to visit the Tombs, examining Thaw on August 4, five weeks after the murder. Evans, accompanied by a second psychiatrist, Charles Wagner, returned to the Tombs on August 21, visiting the prison eight times over the next two months.
Evans recalled that Thaw had been nervous and agitated on his first visit, fidgeting constantly, talking without pause about the perceived slights that he had endured during his imprisonment. Thaw had been preoccupied with the belief that prominent New Yorkers, friends of Stanford White, were using their influence to send him to an insane asylum, thus preventing him from exposing their crimes in court. DeLancey Nicoll, a former district attorney, was a central figure in this conspiracy. Nicoll had been White’s attorney and was still receiving a retainer from White’s widow, Bessie, to hush up the scandal.
“What did you observe,” Delmas asked Evans, “of Mr. Thaw’s condition—mental condition—at the time of these various visits?”
“I observed that Harry K. Thaw exhibited a peculiar facial expression,” Evans stated, “a glaring of the eyes, a restlessness of the eyes…. I observed a nervous agitation and restlessness, such as comes from a severe brain storm.”18
Thaw told him that he intended to uncover evidence that would send White to the penitentiary. Thaw described how he had hired men from the Pinkerton Detective Agency to follow White; he had also asked Anthony Comstock to investigate the architect; and he had even contacted the district attorney, Travers Jerome; but nothing had come of his efforts. White, however, according to Thaw, had learned about this campaign against him and hired gangsters to assault Thaw; and Thaw had purchased a gun as a precaution against an attack. He had not intended to murder White, Thaw insisted. It had been an act of Providence that he used the gun to shoot White at Madison Square Garden—nothing more, nothing less.19
Thaw had allowed the psychiatrists to conduct a physical examination on their fourth visit, on September 22. His pulse, reflexes, muscular coordination, memory, eyesight, and sense of smell were all in excellent condition; there were no obvious signs of drug use and no symptoms of excessive drinking. But his mental condition was unstable and he was assuredly irrational. “He exhibited delusions of an exaggerated ego,” Evans testified. “He felt himself of exaggerated importance and was subjected to persecution by numerous persons.”20
Both psychiatrists, Britton Evans and Charles Wagner, on hearing a description of the defendant’s behavior at the time of the shooting, agreed that Thaw had been insane when he killed Stanford White. Thaw had remained irrational for some time afterward, until September 1906, almost ten weeks after the murder, but his condition subsequently improved, and there was reason to believe that his mental instability had been only temporary. Thaw was less nervous, less agitated, and his behavior in subsequent interviews more closely approached the behavior of a normal person. “He was in a general way more composed,” Evans stated, “more deliberate in manner, his greeting more cordial…. He did not exhibit the same amount of nervousness. There was none of that peculiar suspicious glancing around the room.”21
Travers Jerome could not recall a time when he had been so reluctant to cross-examine a witness. Evelyn Nesbit had shown extraordinary self-assurance a few days before, during the direct examination; but her composure would evaporate, Jerome realized, as soon as she understood how much he had uncovered about her past. Seven months had elapsed since the murder of Stanford White, and Jerome had used the time well, ferreting out the intimate details of Evelyn Nesbit’s life. She was, he believed, a foolish, gullible woman with no thought for the consequences of her actions; she had allowed Thaw’s attorneys to manipulate her; and she seemed unaware that she had put herself in a perilous position.
It was an outrage, Jerome felt, that she was sacrificing everything—her reputation, her honor—for such a scoundrel as Harry Thaw. It would have been easy for Thaw’s attorneys to plead their client not guilty by reason of insanity. Thaw, no doubt, would have spent a few years in the asylum, but there would then have been no need for his wife to humiliate herself for his sake. Thaw had repeatedly said that he refused to go to the asylum because he wanted to expose Stanford White’s crimes; but it was Evelyn Nesbit, not Thaw, who was performing that task. It was Evelyn Nesbit who was telling the world about the rape, while Thaw was merely observing, passively watching as his wife revealed the most intimate details of her life.
Jerome would be willing to spare Evelyn Nesbit his cross-examination, but only if Thaw’s attorneys would agree that Thaw should submit a plea of insanity. He had little confidence that they would accept his offer, but he would at least make the attempt.
“Your Honor,” he began, “if in my opinion an honest case of insanity is made out here,” he paused, looking at the attorneys on the other side of the room, “I am not going to take up the time of this learned Court in pressing this charge.”
If both sides agreed to a hearing on the defendant’s sanity, and if the lunacy commission decided that Thaw was currently insane, there would be no need for Evelyn Nesbit to subject herself to his interrogation. “I do not want,” Jerome added, “to take this unfortunate young woman through the course I shall have to take her through if I can help it.”
It was a generous offer, made in good faith, but Thaw’s attorneys refused. They were confident that their client would win an acquittal and that Harry Thaw had no reason to accept Jerome’s proposal.
“I thought to save the feelings of this girl,” Jerome said, speaking in a subdued voice, with an air of resignation, “but if I must proceed I will.”22
Travers Jerome, forty-seven, had first attracted public notice thirteen years before as an attorney for the Lexow Committee, an investigation by the state legislature into police corruption in New York City. The scandalous revelations by the committee resulted in the political eclipse of the Democratic Party and the election of the reform candidate, William Strong, in the mayoral election in 1894. Travers Jerome was a beneficiary of Strong’s victory, receiving an appointment in 1895 as a judge on the Court of Special Sessions. Jerome used his position on the court to great effect, campaigning vigorously against gambling and prostitution, and in 1901 he won election as district attorney on the reform ticket.23
Few politicians in the new administration were as influential as Travers Jerome. The new mayor, Seth Low, a lackluster, mediocre politician, had been unable to hold together the disparate factions that made up the reform movement, and it had quickly fallen apart. But Jerome had distinguished himself as the new district attorney; and his patrician upbringing and personal integrity set him apart from previous incumbents. A series of spectacular trials, each more scandalous and sensational than the last, had provided Jerome with enormous publicity, and he used his celebrity to campaign ceaselessly against crime and corruption in the city.
Jerome was a familiar figure in the hallways of the Criminal Courts Building. He was instantly recognizable: his sandy-brown hair, strong jaw, trim mustache, and pince-nez eyeglasses gave him an idiosyncratic presence. The sense of probity that had induced Jerome to support the reform movement in the 1890s had not deserted him; but he was now more pragmatic, less scrupulous in his choice of allies, often relying on members of the criminal underworld for information. He was a merciless prosecutor who always expected to win his cases, and he was never reluctant to use any available means to achieve his goal. He could be cruelly indifferent toward his adversaries, badgering the witnesses relentlessly, doing everything possible to belittle their testimony, seeming almost to take a sadistic pleasure in exposing their answers as fraudulent.24
Evelyn Nesbit had been an excellent witness for the defense. There had been nothing vague or uncertain about her replies to Delmas’s questions, and she had provided an extraordinary amount of detail—detail that seemed to argue for her veracity. But she had inadvertently made one error, an error that would allow Jerome to challenge her testimony.
Stanford White had raped her, according to her previous statements, on the day after she first posed for Rudolf Eickemeyer in his studio on Twenty-second Street. But Eickemeyer had allowed the district attorney to examine his appointment books for 1901, and Jerome had discovered that Evelyn Nesbit first visited Eickemeyer’s studio on Monday, November 4, 1901. The rape must have occurred, therefore, on the evening of the following day, Tuesday, November 5. But the municipal elections had taken place that day, and Stanford White, with his wife, Bessie, had hosted a dinner party for some friends at his town house on Gramercy Park. Jerome could therefore establish an alibi for White—an alibi that would destroy Evelyn’s testimony—but only if he could prove to the jury that she had visited Eickemeyer’s studio on November 4.25
Jerome held in his hand a large piece of cardboard, measuring eighteen by twelve inches, and he handed it to the witness, asking her to identify the photograph that was mounted on the front of the card. Evelyn recognized the photograph showing her dressed in a kimono, lying on a polar bear rug.
“Who was present when that photograph was taken?” Jerome asked.
“Mr. Eickemeyer and Mr. White.…”
“How many poses do you recall—were there a good many?”
“I don’t remember.”
“You were never exposed to any indignity?”
“No.”26
Jerome handed her a second photograph, again asking her to identify the picture. It showed her dressed in the skirt she had worn to the studio, a skirt that her mother had bought her earlier that year.
“I show you exhibit 31 for identification and ask you when that was taken?”
“In 1901.”
“Were you acting at that time?”
“I think so.”
“What company were you acting with?”
“The Florodora company.”27
Jerome took a third photograph from the table by his side, showing it to the witness, but Delphin Delmas now interrupted. “This is a cross-examination,” Delmas objected, “not upon what she told Mr. Thaw, but a cross-examination upon the events, facts, entirely independent from what she may or may not have told him.” Such questions lay outside the rules of evidence. Evelyn Nesbit had not testified on direct examination about the photographs. The defense had not introduced them in evidence. How, then, could the district attorney cross-examine her about the photographs in this way?
But the judge, James Fitzgerald, now gave the state an important victory. Jerome had previously said that he intended to test the credibility of the witness. His interrogation, when directed toward that end, was therefore legitimate. “The question of the credibility of this witness,” Fitzgerald stated, “is a material issue in this case. The objection will be overruled.”28
Jerome continued to show her the photographs, pressing her for information about her visit to Eickemeyer’s studio, trying to determine the day of the appointment; but Evelyn had realized the significance of his questions and she refused to be drawn. It was too long ago, she said, more than five years since she had first posed for Eickemeyer, and she could not provide Jerome with the information that he demanded.
Could she recall anything about the following day, Jerome asked, the day, according to her testimony, when White had drugged and raped her? That event, an intensely traumatic episode as she had described it, must have stamped itself on her memory. She had claimed to have lost her virginity in White’s bedroom. What could she remember? How about the weather? Had there been snow on the ground? Had it rained?
“Do you recall the character of the weather that day?”
“No, sir.”
But she could surely remember the date of that dreadful event? She had told Thaw that White had drugged and raped her and that she had lost her virginity. No one could possibly forget to mark such a traumatic episode.
“Do you recall what day of the week it was?… Was it on a Sunday?”
“No,” Evelyn replied, “it was not on a Sunday, because I came from the theatre.” But she could not otherwise say what the day was.
“Do you recall what day of the month it was?”
“No, sir.”
“Do you recall what month of the year it was?… Could it not have been in late October or early November?”
“No, I don’t think so; it couldn’t have been as late as that; I don’t think it could have been November. I don’t remember.”29
Jerome had previously been reluctant to cross-examine Evelyn Nesbit, hoping to save her from the humiliation that would be the consequence of his interrogation. But her obstinacy, her refusal to answer his questions, annoyed and irritated him. He did not know the nature of her relationship with White; but he was certain that the rape never occurred as she had described it. He realized that it would be futile to continue his questions along the same path—she was obviously intent on giving him as little information as possible—but he expected to call Rudolf Eickemeyer as a witness at some point, and Eickemeyer would willingly testify to the date when he had first taken photographs of Evelyn Nesbit in his studio.
Jerome picked up some slips of paper from the table beside him, standing before Evelyn Nesbit, holding several canceled checks in his hand. Henry Deming, the president of the Mercantile Trust Company, was an acquaintance—both men were members of the University Club—and Deming had allowed Jerome to examine Stanford White’s bank accounts. Jerome had discovered that the Mercantile Trust Company had sent checks, drawn on White’s account, to Evelyn Nesbit throughout 1902.
“I hand you exhibits 65 to 73,” Jerome said, showing the checks to the witness, “and ask you to pick out the ones bearing your signature.”
She held the checks in her hand, glancing at each one before returning them to the district attorney. “They all have my signature,” she replied.30
“You got these checks and indorsed them, didn’t you?”
“I did,” Evelyn replied.
The district attorney had taken her by surprise. How had Jerome come into possession of the checks? What else did he know about her relationship with Stanford White?
The checks were drawn for varying amounts, some for twenty-five dollars, others for fifty dollars. The payments had started in December 1901, several weeks after White had raped her, and continued at least until October 1902. Jerome started to leaf through the checks, reading the amount and date of each one, occasionally pausing to allow the stenographer to record the details.
“Who was furnishing that money?” he asked.
“Stanford White.”31
“How long after you were drugged, as you say you were, did you begin to receive checks from Stanford White?”
“I don’t recall,” Evelyn answered. “It was some time after that.”
“Did you not receive money…” Jerome paused, correcting himself. “Did you not have a letter of credit from Stanford White when you went to Europe?”
“Yes,” Evelyn replied.
“Who got that money?”
“My mother.”
“All of it?”
“Yes.”32
Stanford White had provided a letter of credit for $500 for the journey to Europe in June 1903. But, Evelyn added, he had given it to her mother as the boat was about to sail from the harbor. She had not known about it until her mother mentioned it to her during the voyage to England.33
The district attorney had surprised her a second time; but Evelyn could now guess that her mother, Florence, had told Jerome about the letter of credit. Florence Nesbit had always refused to believe that Stanford White had raped her daughter. White had been a kind, generous man who had helped her and her children at a time when she was most in need. He had never refused any request, paying for the education of her children, securing an apartment for her in the Audubon Hotel, and occasionally giving her small presents of money. Stanford White had been her guardian during her time in New York, and his death had deeply upset her. It was impossible for her to believe that White had raped Evelyn; nothing could have been more hurtful than her daughter’s accusations against her benefactor.
Florence Nesbit could not forget also that members of the Thaw family had uniformly treated her with contempt. The matriarch, Mary Thaw, held herself aloof, obstinately refusing any contact, still seeming regretful that her son had chosen Evelyn as his wife. Nor could Florence Nesbit forget that Harry Thaw, an obnoxious, self-centered young man, had ignored her during their time in Paris. It infuriated her to know that Evelyn was now besmirching the memory of Stanford White—all for the sake of that scoundrel Harry Thaw!—and Florence Nesbit had disowned her daughter. She had never liked her son-in-law, and it humiliated her to know that Evelyn was bringing dishonor on her family solely in order to save Thaw from punishment. Travers Jerome had asked her for her assistance, saying that he only wished to know the truth, and she had willingly cooperated with the district attorney, providing him with the information that he requested.34
Stanford White, according to Florence Nesbit, had frequently called at the Audubon Hotel, and Evelyn had often visited White at Madison Square Garden after performances of Florodora, occasionally staying out until the early hours of the morning. Jerome soon realized that the friendship between White and Evelyn Nesbit had continued for many months, long after the time when White had supposedly raped Evelyn.
“How often,” Jerome demanded, “were you alone in the company of Mr. White?”
“I don’t remember,” Evelyn answered. She now spoke less assuredly, less confidently, uncertain how much Jerome already knew.
But she confessed that she had continued to see White alone, even after the rape. White would send a note to the theater, asking her to come see him, and she would take a cab downtown either to the tower apartment in Madison Square Garden or to the town house on Twenty-fourth Street.
“Did you,” Jerome asked, “go out with him to lunch or to suppers in the tower very frequently?”
“Yes, sir.”
“That was practically every week for a considerable period, was it not?”
“Yes.”
“Sometimes two or three times a week?”
“Oh, yes, oftener than that sometimes.”
“Sometimes every day?”
“Yes…. He was constantly coaxing me to go with him alone…. He was constantly nagging me. Sometimes he would coax me and sometimes scold me, and he would get very unpleasant about it…. He told me that he wanted me; he told me over and over again. He always wanted me to come back…. He tried to get me to come back.”35
Travers Jerome was careful not to make any accusations against the witness—it scarcely seemed necessary—but her testimony had cast her relationship with White in a new light. She had been many times with Stanford White after that evening when he had first raped her. She had gone alone to see him, taking a cab downtown after each performance of Florodora. There had been no compulsion for her to be alone with White and, apart from his nagging, no coercion placed on her to see him. Had there been a consensual relationship? Had she been his mistress? Why had White continued to give her money for more than a year after they first met?
Her previous testimony, on direct examination, had cast her as an innocent victim who had suffered a brutal assault. But more and more, as Jerome continued to question her, it seemed almost as if Evelyn had encouraged the jealousy between her two suitors, continuing her relationship with Stanford White while traveling in Europe with Harry Thaw, holding White’s letter of credit while living at Thaw’s expense in Paris.
Florence Nesbit had accompanied her daughter to France in the summer of 1903, and after spending several weeks in Paris, they had left the capital for London. Harry Thaw had gone alone to England, traveling ahead to make the arrangements for their stay; and Florence had taken a train to Boulogne with her daughter to catch a boat across the Channel. There had been a delay at Boulogne, and Evelyn passed the time writing letters to her friends in New York, including a letter to Stanford White.
“Will you tell me,” Jerome asked, again catching Evelyn by surprise, “why you wrote to Stanford White from Boulogne? Why did you write a letter from Boulogne to the man who had so grievously wronged you?”
“Because my mother begged me to write to him,” Evelyn replied, dismayed that her mother had told Jerome even this detail. “Because my mother made me—she insisted on my writing to him. It was hateful to me to do so.”
“What did your mother say to you?”
“She said that I was an ungrateful girl not to have written to Stanford White more than I had…. She said I was very ungrateful to him not to have written to him.”
Had she never confided to her mother that White had drugged and raped her? “Why didn’t you turn to your mother and tell her those things when she urged you to write to White from Boulogne? She was your mother—why didn’t you tell her?”
“Because I couldn’t…. I would rather have died than tell her. I could not tell her.”36
It had been a welcome surprise for Jerome that Florence Nesbit had betrayed her daughter, providing him with information that he used to such effect to undermine Evelyn Nesbit’s testimony. But even Jerome could not have imagined that another informant, one of his most bitter enemies, the attorney Abraham Hummel, would also offer him evidence against the witness, evidence that would contradict Evelyn’s claim that Stanford White had raped her.
Two years before, in January 1905, Jerome had successfully prosecuted Hummel on a charge of conspiracy, accusing Hummel of bribing a witness to offer a false affidavit in a divorce case. The judge had sentenced Hummel to imprisonment for one year in the penitentiary; but Hummel had fought his conviction in the appellate courts and now, in February 1907, he awaited a final decision by the Court of Appeals.37
Jerome had indicted Hummel on a second charge, still pending, of subornation of perjury; and that felony indictment, more consequential than the conviction for conspiracy, would doubtless result in a second prison term for the attorney.
But Hummel now approached Jerome with a proposition. He had interviewed Evelyn Nesbit in his office in October 1903, shortly after she returned from Europe. She had signed an affidavit against Harry Thaw, Hummel told the district attorney, saying that Thaw had assaulted her with a dog whip. Thaw had told Evelyn, during their time in Europe, that he wanted to send White to the penitentiary and he had demanded that Evelyn accuse White of raping her. She refused, telling Thaw that the accusation was untrue, and he attacked her in her bedroom in the castle at Meran, seizing her by the throat, tearing away her clothes, and whipping her.
Every detail of Thaw’s assault on Evelyn, Hummel said, was contained in the affidavit, and he would gladly give Jerome his copy… but only if the district attorney would abandon the indictment for perjury, still pending, that Jerome had presented against him.
The affidavit, Hummel told Jerome, would prove to the world that Evelyn’s courtroom testimony, her claim that White had raped her, was a fabrication, a lie that had its origin in Harry Thaw’s obsessive desire to send White to the penitentiary. Evelyn Nesbit had refused Thaw’s original demand when he first presented it in 1903; but now, after White’s death, she had agreed to testify falsely, telling the court an elaborate fiction that she hoped would save her husband from the electric chair.
But how could Jerome accept such an offer? How could he present as evidence an affidavit from Hummel when two years before he, Jerome, had prosecuted Hummel for offering a false affidavit? Everyone, including Jerome, knew Hummel’s reputation as a deceitful, dishonest attorney, a shyster lawyer who had no regard for the law except as it served his self-interest. But the affidavit held out the possibility that Jerome could finally destroy Evelyn’s testimony. It did not seem to matter that Hummel no longer possessed the original document and that he could provide Jerome only with a carbon copy. Nor did Jerome worry that Hummel might have fabricated the affidavit. The deal was struck: Jerome would withdraw the indictment against Hummel, and Hummel would provide the affidavit to Jerome.
“Evelyn Nesbit Thaw to the stand!”
The clerk of the court called out his command and the witness again stepped across the front of the courtroom, taking her place on the raised chair adjacent to the bench. She had borne the weight of her cross-examination for four days, never wavering in her testimony, never yet failing her husband, but now, on the fifth day, there was a hint of fatigue about her appearance. She no longer seemed so self-assured; her gaze, as she looked out across the courtroom, no longer seemed so fearless; the color had faded from her cheeks, and she seemed slightly diminished, almost as if she had lost weight.38
Travers Jerome, by contrast, appeared ebullient, almost cheerful, as he rose from his chair. He held in his hand the carbon copy of the affidavit that, according to Hummel, Evelyn Nesbit had sworn against Harry Thaw in 1903, the affidavit that claimed Thaw had whipped her.
“When you met Hummel at his office, in the fall of 1903,” Jerome asked, speaking almost nonchalantly, “I understand you as saying that Hummel dictated a paper, dictated something to a stenographer in your presence.”
“Yes,” Evelyn replied. Her voice was abrupt, almost harsh, as if she had prepared herself for the onslaught of questions that Jerome was about to set loose.
“Before Hummel dictated to the stenographer, you talked with him?… Did you not tell him, Hummel, about your trip abroad, in all its details?”
“I told him about the trip abroad. I don’t exactly know what you mean about all its details.”
“Did you tell him what happened between you and Thaw there?… Did you not tell him that after travelling for five or six weeks the defendant had rented a castle in the Austrian Tyrol?”
“I told him that. I am not sure I told him after travelling five or six weeks; I don’t remember that.”39
“Did you tell him that the first night… you were very tired and went to bed right after dinner?”
“I don’t remember whether I told him that or not. It is very possible.”
“Did you tell him that in the morning you were awakened by Mr. Thaw pounding on the door and asking you to come to breakfast, saying that the coffee was getting cold?”
“I don’t remember that.”
“And did you further tell him at that time that after breakfast Thaw said he wanted to tell you something and asked you to step into your bedroom?”
“No.”
“Did you tell him that when you entered the room Thaw, without any provocation, grasped you by the throat and tore the bathrobe from you?… That his eyes were glaring and that he had in his hand a cowhide whip?… That he seized hold of you and threw you on the bed?… That he continued to act like a demented man and beat you very violently there?”
“I did not tell Mr. Hummel that.” Each word rang out across the courtroom, clear and distinct in its emphasis. She had regained her self-confidence, and she angrily denied Jerome’s accusations.40
“Did you tell him that Thaw wanted to injure White and get him in the penitentiary?”
“I told Mr. Hummel,” Evelyn conceded, “Mr. Thaw wanted Mr. White put in the penitentiary, yes.”
“And that Thaw had begged you time and time again,” Jerome asked, “to swear to a written document that he had prepared?”
“No, sir.”
“And that these documents,” Jerome continued, now referring to the accusation that Thaw had made against Stanford White, “charged this man with having drugged and attacked you?”
“No.”
“And that you had told Thaw that this was not so?”
“No.”
“And that he had beaten you because you wouldn’t sign it?”
“No, sir.”
Jerome now offered a single page to the witness, asking her to identify the signature that appeared on the final page of the affidavit he had received from Abraham Hummel. “I show you people’s Exhibit No. 76 for identification, and ask you if that is your signature?”
“It looks very much like my signature,” she replied hesitantly. She glanced across the room toward the defense attorneys, silently appealing to Delphin Delmas for his assistance, her plaintive expression demanding his intervention—anything to halt Jerome’s insistent interrogation.
“Have you any doubt that that is your signature?”
“I don’t remember ever signing anything like that.”
But there was something curious about the paper that Jerome had offered to the witness, and Delmas realized that the district attorney was asking Evelyn Nesbit to identify her signature on a photographic copy. It was not an original document that Jerome held in his hand but a photograph!
“Is that what counsel means,” Delmas demanded, anger and incredulity combined in equal measure in his voice. “Does counsel offer a photograph?”
“Certainly,” Jerome replied, turning away from Delmas as if to dismiss the question.
“I submit,” Delmas appealed to the judge, “that the question is misleading. When learned counsel asks:—‘Is that your signature?’ knowing it is a photograph, the question condemns itself…. I submit that the photograph is improper unless the original, its counterpart, is produced, and I object to it.”
“I will let her answer,” Fitzgerald replied, overruling the objection.
But already Evelyn had regained her composure, and she refused to say that it was her signature at the bottom of the page. It was not possible, she answered, to identify the signature.
“I will have to prove this as an independent fact.” Jerome addressed the judge, saying that he wished to call Abraham Hummel as a witness to the affidavit. “I will ask to suspend and lay the ground to offer this in evidence. I wish to adjourn until I can put Mr. Hummel… on the stand.”41
Jerome had hoped to catch Evelyn Nesbit in a lie, to prove her testimony false, but she had been more elusive in her responses than he had anticipated. Jerome had finished his cross-examination and now he called witnesses in rebuttal. Rudolf Eickemeyer took the stand to testify about the date when he had first photographed Evelyn Nesbit in his studio.
“Were you,” Jerome began, “ever connected with Campbell’s studio?”
“I was manager for several years,” Eickemeyer replied. He had worked at the Campbell Art Studio on Fifth Avenue after moving to New York in 1895.
“Were these taken by you?” Jerome asked, showing Eickemeyer several photographs mounted on cardboard of Evelyn Nesbit.
But Delphin Delmas now reminded the judge that Evelyn Nesbit had not testified on direct examination about the photographs. She had testified only on her conversations with Harry Thaw. The district attorney could call witnesses regarding those conversations, but he could not question Eickemeyer about matters that were not in evidence.
“I desire,” Jerome replied, addressing the judge, “to fix the very day on which the photographs were taken.” Evelyn Nesbit had said that White raped her on the day after she posed for Eickemeyer in his studio. “I desire to show that on that day Stanford White was somewhere else.”
“Your Honor,” Delmas interrupted, “has heard my objection.”
“Objection sustained,” Fitzgerald said.
“That is all, Mr. Eickemeyer.” Jerome shrugged his shoulders, as if to accept his defeat. He had hoped to establish an alibi for Stanford White on the night when Evelyn Nesbit said White had raped her; but Delmas had blocked his way.42
Could Jerome prove that Evelyn Nesbit had signed the affidavit against Harry Thaw? She had already testified on direct examination that Abraham Hummel interviewed her on her return from Europe in 1903. Hummel had provided the district attorney with a copy of the affidavit, and now he appeared in court to say that the affidavit was genuine.
“When Evelyn Nesbit called on you in October, 1903,” Jerome asked, “did she state to you as follows: that Harry K. Thaw had begged her, time and time again, to swear to documents which he had prepared, charging Stanford White with having drugged and betrayed her?”
“Yes,” Hummel replied.
Evelyn Nesbit had told him on October 27, 1903, that Harry Thaw had demanded, during their stay in the castle in Meran, that she falsely accuse White of raping her. She had refused his demand and Thaw had beaten her with a whip.
Hummel had dictated the substance of her remarks to his stenographer, and later that same day the stenographer had returned to him a typewritten original and a carbon copy. He gave the original to his notary, Abraham Snydecker, and the next day Snydecker returned the original, now signed by Evelyn Nesbit. He, Hummel, then gave the signed original to her while retaining the carbon copy and a photographic copy of the signature page.
Could Hummel now identify those documents for the court? “Is People’s Exhibit 77 for identification,” Jerome asked, showing the witness both the carbon copy and the photograph, “either of those papers?”
“It is,” Hummel replied, pointing to the carbon copy of the affidavit.
“Examine People’s Exhibit 78, for identification,” Jerome instructed, now showing Hummel the photographic copy of the signature page, “and state whether or not it is a true and correct representation.”
Yes, Hummel replied, he could identify it as a photograph of the signature page of the affidavit.
The notary, Abraham Snydecker, also testified, saying that he had received the affidavit from Hummel, and later that day he witnessed Evelyn Nesbit sign the original copy.
“On October 27, 1903,” Jerome asked, “were you a commissioner of deeds in the city of New York?”
“Yes, sir.”
“On that day did you see Evelyn Nesbit?”
“I did…. Miss Nesbit had the paper in her hand probably between five minutes and ten minutes, it may have been a little less, and she then signed her name to the paper. Then I asked her whether or not she had read the paper and whether or not she swore to its contents and she said yes, and I then signed my name to it as commissioner of deeds of New York.”
“I show you People’s Exhibit 78 for identification and call your attention to a signature there and ask you… whether or not the signature there is your signature.” Snydecker fumbled for his eyeglasses and peered at the paper that Jerome held in his hand. He studied it carefully before finally acknowledging his signature at the bottom of the page.
“That is my signature,” he said.43
A sudden hailstorm rattled the windows of the courtroom. The sky outside had darkened and sheets of rain pounded the sidewalk along Centre Street, driving away the crowd that stood at the entrance to the Criminal Courts Building. There were no more witnesses; the trial had now run its course. Delphin Delmas delivered his closing address on Monday, April 8, telling the jury that Evelyn Nesbit had been a truthful witness. It was pitiful, Delmas stated, that the district attorney had relied on the testimony of Abraham Hummel—a convicted perjurer—to contradict Evelyn’s account of the rape. Stanford White had raped Evelyn Nesbit, and Harry Thaw had suffered insanity as a consequence. Every man on the jury, Delmas declared, could recognize the illness that had gripped Thaw. “It is a species of insanity which has been recognized in every court in every State of this Union from the Canadian border to the Gulf of Texas. It is that species of insanity which… I ask you to label ‘Dementia Americana.’ It is that species of insanity which makes every American believe that his home is sacred…. It is that species of insanity that makes him believe that the honor of his wife is sacred.”44
Travers Jerome came next, reminding the jurors that Evelyn Nesbit’s testimony had been contradictory and inconsistent. She had described the rape as profoundly traumatic, yet she had continued to see Stanford White alone long after White supposedly assaulted her. Why had she accepted his money? Why had she been unable to tell the court when White had raped her? Delphin Delmas had criticized the state for calling Hummel as a witness, but Delmas had said nothing about the clerk, Abraham Snydecker, and his testimony that Evelyn Nesbit signed the affidavit in his presence.45
The judge now addressed the jurors, explaining how they should regard the evidence that each side had presented. It would not be appropriate, Fitzgerald began, for the jury to consider Stanford White’s behavior in determining the culpability of the defendant. “The character of the victim furnishes neither excuse nor justification…. He was entitled to the protection of the law, no matter whether his character was good or bad. A personal avenger of private wrongs or of public wrongs is not recognized by our institutions.”46
The defense claimed that Evelyn Nesbit’s account of the rape, told to Harry Thaw in 1903, was the catalyst that caused Thaw to go insane. The jury, in arriving at its verdict, should therefore consider Thaw’s state of mind at the time of the murder. The penal code of New York stipulated that the defendant could not claim insanity if he knew the quality of the act and knew that it was wrong. “The settled law of the State is that the test of responsibility,” Fitzgerald told the jurors, “is the capacity of the defendant to distinguish between right and wrong at the time of and with respect to the act.” The testimony of the defendant’s wife was central to the defense, and it was proper, therefore, for the jury to consider her credibility as a witness. “You should weigh her story in its entirety—were its various parts consistent or inconsistent with each other?”47
The twelve jurors left the courtroom in single file, walking along a narrow corridor to the jury room. A large rectangular oaken table occupied the center of the room, stretching from one end to the other. Twelve stiff-backed wooden chairs stood haphazardly around the table, and a brown leather settee rested against the far wall, below the windows facing Franklin Street.
The foreman, Deming Smith, took his place at the head of the table, waiting for the other men to take their seats. Smith spoke first, suggesting that they cast votes to learn if they could reach a consensus. He counted the votes as his colleagues looked on: eight men had voted to convict Thaw of murder in the first degree, but four had acquitted him on the grounds of insanity.
“This man is not right in his head,” Henry Harney began, explaining why he had voted to acquit Thaw. “I have watched him very closely from the beginning of the trial, and I sat near enough to him to have an excellent opportunity to observe him, and I know he cannot be right.”
Wilbur Steele nodded his agreement. He also had observed the defendant during the trial. Who could forget how Thaw had mumbled to himself, one moment frantically scribbling some notes on a pad, the next moment muttering orders to the attorneys seated next to him? He had seemed incapable of sitting still, constantly fidgeting, always appearing agitated, sometimes angry, even seeming on occasion about to rise in his chair to denounce the district attorney.
Another juror, Malcolm Fraser, reminded his colleagues that several witnesses had described Thaw’s expression immediately after the murder. Thaw had had an unnatural look in his eyes, a fixed glare during those moments when he walked through the audience holding his gun above his head. There was a reasonable doubt, Fraser added, that Thaw had known that his act in killing Stanford White was wrong, and on those grounds he would vote to acquit him.
But George Pfaff, one of the eight jurors who had voted to convict on a charge of first-degree murder, could find nothing in such arguments that might persuade him to change his mind. One witness, Clinch Smith, testified that he had talked with Thaw immediately before the shooting, and that conversation, on the stock market, and on Thaw’s upcoming trip to Europe, contained nothing to suggest that Thaw was insane. Thaw had deliberated before shooting White, and his actions immediately afterward had given every indication that he knew the import of his act. He had held the gun above his head to show the audience that he intended no further harm, and he had calmly told the duty fireman, Paul Brudi, the reason for the murder.
Smith held a second ballot at six o’clock that evening before adjourning for dinner, but the result was the same. The jurors voted a third time at ten o’clock, but still there was no agreement. The crowds no longer lingered around the courthouse, waiting for a decision, and Thaw’s relatives—his wife, his mother, his brothers and sisters—had all abandoned the vigil, returning to their rooms at the Hotel Lorraine.48
A reporter for the New York Herald, catching sight of Jerome as he left the Criminal Courts Building, buttonholed the district attorney to ask if he would seek a second trial if the jury could not reach a verdict.
“In the event of a disagreement,” the reporter asked, “will Thaw be speedily placed on trial again?”
“Not speedily,” Jerome replied. There were many other homicide cases on the docket, and there would probably not be another trial until the end of the year. “There is no reason why Thaw’s should take precedence over the cases of other Tombs prisoners who are yet untried.”49
The next morning, shortly before eleven o’clock, a rumor spread through the Criminal Courts Building that the jury had asked to return to the courtroom, and crowds started to gather in the hallways, expecting to hear the verdict. But the jurors only wished to hear again the statements of those witnesses who had seen the shooting. There were two more ballots that afternoon; eight men still voted for a murder conviction and four held fast for an acquittal.
All twelve agreed that Evelyn Nesbit had been an admirable witness, selflessly testifying on behalf of her husband, and her account had been truthful—White had raped her, they believed—but her testimony bore no weight in their deliberations. White’s behavior toward Evelyn Nesbit, they agreed, could not justify Thaw’s act in killing him. Their verdict would rest only on their judgment of Thaw’s mental condition during the murder: if Thaw had been insane, incapable of knowing that his act was wrong, he could not be held responsible for the murder.50
One juror, John Dennee, changed his vote on the second day, now saying that Thaw was insane, but it brought the jury no closer to agreement. Harry Brearley, hoping to break the deadlock, suggested that they compromise by voting to convict Thaw on a lesser charge, manslaughter in the first degree. A conviction for manslaughter would spare Thaw from the electric chair while ensuring that he would receive some punishment for his crime.
But George Pfaff rejected the proposal, saying that he would not change his mind. “You can all vote as you please,” Pfaff declared defiantly. “I am going to keep on voting for a conviction in the first degree.”
Wilbur Steele spoke next, saying that he too would not change his vote. Harry Thaw was insane, he added, and he could not contemplate any punishment for a man who was so evidently unbalanced.
The next day, Friday, April 12, Smith spoke to the judge, and that afternoon, at four o’clock, the jurors returned to the courtroom, taking their seats on the benches near the front. The spectators searched their faces in vain, looking for some sign that might betray a verdict; and the jurors, in turn, looked out over the courtroom. Every seat was occupied, and the crowd seemed curiously hushed. Thaw sat in the front row, whispering in the ear of one of his attorneys; Evelyn sat directly behind, her left hand resting on her husband’s shoulder. Mary Thaw, her veil covering her face, sat next to her daughter-in-law, and Harry’s siblings, Margaret, Alice, Josiah, and Edward, looked hopefully at the twelve jurors.
“Gentlemen of the jury,” William Penney called out in a loud voice, “please answer to your names.”
Each man answered in turn, rising slightly from his seat in acknowledgment of his name.
“The defendant will rise,” Penney commanded.
Thaw, his left hand resting on the table in front of him, rose to his feet, the legs of his chair scraping backward against the floor. He looked anxiously at Penney, waiting for the clerk’s command, his face set in a grimace, a frown upon his forehead.
“Jurors, look upon the defendant; defendant, look upon the jurors.” Penney paused, waiting for the jury to turn toward Thaw.
“Gentlemen of the jury, have you agreed upon a verdict?”
“We have not,” Deming Smith replied.
The crowd let out a sigh of disappointment. Thaw, still standing, seemed to stagger slightly before slumping backward into his chair, and Evelyn reached out to comfort him, her hand resting on his arm as she whispered some words of encouragement. Delphin Delmas was already shuffling some papers on the table before him, waiting only for the judge to dismiss the jury before making his exit.
“Gentlemen,” Fitzgerald began, his gaze fixed on the jurors, “I have kept you together for a long time and have deemed it my duty to do so as long as there seemed any possibility of your being able to reach a verdict. I have now arrived at the conclusion that this is not possible…. I am going to discharge you from further consideration of this case.”51
There would be a second trial.
Portrait photographs at the turn of the century usually took the form of cabinet cards. Such photographs, typically produced either on gelatin bromide paper or on matte collodion, measured 4¼ by 6½ inches and were often sold commercially to the public or used as illustrations in popular magazines. Evelyn Nesbit posed for a series of cabinet cards, including these five photographs, in 1902 at the Sarony Studio on Fifth Avenue. (Theatrical Cabinet Photographs of Women [TCS 2], Harvard Theatre Collection, Houghton Library, Harvard University)
