6
SECOND TRIAL
January 6, 1908–February 1, 1908
“HAVE YOU BEEN ILL LATELY, MRS. THAW?”
The lawyer leaned forward, appearing almost to bow before the witness, and Mary Thaw nodded in return, as if to show her appreciation for his words.
“I have,” she replied, speaking in a quiet voice, “since early in November…. But I am now well—almost; sufficiently recovered,” she added.1
She had awaited this moment anxiously, aware that her testimony would determine her son’s fate. The attorney, Martin Littleton, had convinced the family that there were no longer any grounds for complacency, no reason to believe that a jury would necessarily acquit Harry Thaw. The jurors in the first trial, Littleton reminded Mary Thaw, had all disregarded Evelyn Nesbit’s testimony about the rape, each one telling the newspapermen that he had voted only according to his judgment of Thaw’s mental state at the time of the murder.
It would be foolish, Littleton argued, to claim a second time that the rape of Evelyn Nesbit provided sufficient justification for the murder of Stanford White. Their best strategy, their only strategy, according to Littleton, was to persuade the jury that Harry had been insane when he killed White, that he had been mentally incompetent since childhood, and that he was still impaired now. The judge would commit him to an asylum, but eventually, sooner or later, the lawyers would seek his release, arguing that he had regained his sanity.
“When was your son, Harry K. Thaw, born?” Littleton asked.
“February 12, 1871.”
“What was the condition of health of Harry shortly after his birth?”
“For three months he was normal—that is, in average good health. Then he had an attack of congestion of lungs, which involved the brain and caused one spasm.”
“And then after that what was his condition?”
“A condition of the most remarkable sleeplessness that I have ever known in an infant.”
“How long would he sleep during twenty-four hours?”
“I should not think it was one-third what a child should sleep…. We were worn out sitting up with him.”2
Harry’s childhood, from infancy to adolescence, had been punctuated by frequent episodes of excitability, outbursts of anger and ill temper, typically occurring without any ostensible cause. He had been a nervous, irritable child with few companions, and his erratic behavior had lasted until he was fourteen years old. The doctors had variously diagnosed Harry’s condition, attributing it to one cause or another, but their advice had not produced any noticeable improvement.
Mary Thaw was a capable witness, speaking each answer as if she had rehearsed it beforehand, occasionally giving an anecdote to illustrate her son’s tortuous passage to adulthood.
But the long train ride from Pittsburgh the previous day had left her tired, and her responses came haltingly. The Pennsylvania Railroad express had traveled across the Appalachian Mountains, stopping first at Philadelphia before continuing to New York, a wearisome journey that had lasted more than eight hours.
She also seemed occasionally reluctant, often hesitating, as if she resented the necessity of revealing the shameful secrets that she had never previously told. A tangible sympathy hung in the air for someone so frail and vulnerable, for a woman who seemed crushed by the troubles that had given her so much anxiety.
One year before, during the first trial, she had been a commanding presence, never doubting that the jury would acquit her son, but her self-confidence had now vanished and her expression seemed to foreshadow defeat. Mary Thaw had always triumphed over her adversaries, securing her victories through her determination, but the calamity that had overwhelmed her family, the possibility that her son might die in the electric chair, appeared to have vanquished her.
Nothing could have presented a greater contrast to the mournful appearance of the witness than the ebullient presence of Martin Littleton. The attorney was only thirty-eight years old, yet he had already established his reputation as a lawyer and politician. He had grown up in Texas, working first as a rail-splitter and brakeman on the railroads, then setting type in a printer’s office, finally securing a clerical position in the office of the district attorney in Weatherford, a town sixty miles west of Dallas. He studied for the bar, moving to Dallas in 1893 to set up a legal practice, but only three years later he left Texas to move to New York with his wife, Maud.
Littleton joined the Democratic Party and almost immediately obtained a position as an assistant district attorney in Kings County. He was a man who made friends easily, and he secured the support of the Democratic machine, winning the election in 1903 for Brooklyn borough president. Littleton was ambitious for higher office and already, in 1908, he had begun to canvass his allies for the nomination for the upcoming election to the House of Representatives from the First Congressional District.3
Harry Thaw hired Martin Littleton as his defense attorney in his second trial. Littleton served one term, from 1911 to 1913, in the U.S. House of Representatives but then failed to win the Democratic Party nomination for election to the U.S. Senate. (Library of Congress, LC-DIG-ds-10585)
He was only five feet four inches tall, but his barrel chest and broad shoulders compensated for his lack of height. He had a cheerful disposition and he spoke with a distinctive Texas twang. He had chestnut-brown hair, already gray at the temples, a fleshy, slightly pink complexion, and inquisitive brown eyes. Littleton invariably radiated self-confidence even when his cause appeared hopeless, and now, as Mary Thaw continued to respond to his questions, he attempted to steer her along the path that they had mapped out beforehand.4
She told the court, in response to Littleton’s questions, that she had first sent Harry away from home in 1881, to study at the Beck School in Lititz, a Moravian community in the interior of the state, seventy miles west of Philadelphia. She had hoped that the experience might improve her son’s condition, but it had been an ill-advised move. Harry, then ten years old, was a sullen pupil who intermittently burst into tears for no apparent reason, even occasionally uttering loud howls during class. The principal, Abraham Beck, had written to her, saying that her son was a disruptive presence and asking her to withdraw him from the school. Mary Thaw had written a tearful response, confessing her fear that he was unbalanced and asking for the principal’s forbearance, but Harry eventually left the school, returning to Pittsburgh to live again with his mother.5
Five years later Mary Thaw enrolled Harry at the University of Wooster, a Presbyterian college in Ohio. Its rural location, in the center of the state, and its small size—only a few dozen students matriculated each year—ameliorated her son’s condition: “He did improve… he was looking very much stronger.” But the faculty at Wooster could not tolerate Thaw’s disruptive behavior and expelled him three months after his arrival. Harry then attended the Western University of Pennsylvania, but his studies there were equally lackadaisical.6
Harry, according to his mother’s testimony, had suffered mental illness for many years, from infancy through adolescence to adulthood. His afflictions were not dissimilar from those that had plagued other members of the extended Thaw family. One of her brothers, Josiah, an uncle of Harry, had experienced an attack of brain fever as a student at Amherst College.
“The brain fever left him very nervous and unstrung…. He had three days of violent, acute mania. And then he was taken away to an asylum.”
“How long,” Littleton asked, “was he away in the asylum?”
“Seven months.”
“Did he recover from that afterward?”
“Yes. They discharged him cured.”
A second brother, Henry, had been weak-minded as a child, displaying just those symptoms that she had witnessed in her son. Henry would frequently burst into tears, crying for no apparent reason, then relapsing into silence for several hours.
Mental illness had been present also on the other side of the family. Her late husband, William, had a sister who suffered for many years from epilepsy. The attacks would occur without warning and last for prolonged periods.
“She was an invalid,” the witness explained, “as long as I knew her, and for many years before, subject to epilepsy.”7
Several witnesses followed Mary Thaw onto the stand, describing Harry Thaw’s irrational behavior. Catherine O’Neil remembered that she had first worked for the Thaw family in 1874, when Harry was three years old. She had remained at Lyndhurst for six years, caring for Harry, dressing him, preparing his meals, playing with him on the estate, and generally arranging his daily schedule. It was a demanding task, made more difficult because Harry threw frequent temper tantrums, screaming and yelling, occasionally speaking gibberish, finally collapsing in exhaustion.
“He used to have awful spells,” O’Neil told the court. “He used to throw himself on the floor and holler and yell and stamp until he was exhausted…. He learned very slow and poorly.”
“How old was he then?” Littleton prompted.
“Well, these conditions continued from the age of five until the age of seven.”
“Was he able to speak or use words intelligently during his early childhood?”
“No, not until he was seven or eight years old.”8
Abraham Beck, the principal of the Beck School in Lititz, remembered that Harry Thaw appeared excessively nervous when he first came to the school in September 1881. The boy resisted the attempts of the staff to introduce him to the other pupils. He seemed always alone, invariably standing apart from the other children at playtime, refusing any invitation to join their games. Beck, now sixty years old, white-haired, slightly stooped, with a kindly demeanor, painted a heartbreaking picture of a lonely child, morose and withdrawn, a boy who made no friends while attending the school.
“During the time Thaw was at your school,” Littleton asked, “did you observe him daily?”
“Yes,” Beck replied, remarking parenthetically that the passage of thirty years had not erased his memories.
“Was your attention attracted to him during school hours?”
“Yes,” Beck answered. “The quiet of the study room would be broken by a sudden, wild, passionate cry from Harry Thaw. It was the cry of an animal…. He would repeat these howlings and keep them up for twenty minutes at times, and would then lapse into a fit of abstraction. They would cease as suddenly as they started, like the turning off of a fountain jet.”9
He had written to Pittsburgh, asking Mary Thaw to remove her son from the school. She had replied a few days later, confiding her dread that Harry was unbalanced and pleading that he stay at least until the end of the school term. Beck had reluctantly agreed; but it had been an unpleasant experience, the most trying ordeal he had faced in his long career as a schoolteacher.
Charles Koehler, a former instructor at the University of Wooster, also recalled Harry Thaw as a moody pupil. Koehler had taught mathematics at Wooster in 1886, when Thaw first arrived at the college.
“Do you know the defendant, Harry K. Thaw?” Littleton asked.
“Yes,” Koehler replied, glancing toward Thaw, seated among his attorneys in the front row of the courtroom. “He was under my immediate instruction for about a period of three months.”
“How old was he?”
“What was his appearance?”
“He had a nervous gait and walked in a zigzag manner…. His eyes were fixed and staring much of the time; frequently the muscles of his mouth would twitch, and when he walked his gait was unsteady. On some days he was moody and on others more cheerful. His moods alternated. One day he would be more playful and the next deeply depressed.”
“What progress did he make in his studies?”
“Very little progress; scarcely any that was perceptible…. His capacity for concentration was so weak that he was utterly unable to follow an ordinary demonstration in mathematics.”10
Other witnesses followed, all testifying to Harry Thaw’s irrational behavior. Amy Gozzett, a nurse, told the court that she had been working in 1897 on the Côte d’Azur in France for her employer, Price Mitchell, an American physician, when she first encountered Harry Thaw. Many expatriates spent the season at Monte Carlo, and she frequently cared for wealthy British and American patients who had taken ill. Thaw had been unwell for three weeks, running a high fever, and she spent that summer caring for him, gradually nursing him back to health. He was an unusual patient who would often refuse his doctor’s orders, occasionally rising from his bed, dressing himself, and leaving the hotel for two or three hours before returning to his room. Gozzett recalled that, even after Thaw recovered, he seemed irrational, mumbling to himself, moving jerkily and awkwardly, sitting motionless for long periods, staring into space.11
Sydney Russell Wells, a physician at St. George’s Hospital in London, remembered his alarm when he first saw Harry Thaw as a patient in 1899. Thaw, then staying at Claridge’s in Mayfair, had been walking about the hotel in his pajamas, brandishing a large stick and shouting obscenities at the staff. Wells had committed Thaw to the Devonshire Nursing Home, a private clinic in the capital, holding him until he recovered his sanity, eventually allowing him to return to the hotel.12
Physicians elsewhere, in other European cities, could recall similar episodes. Frederick Burton-Browne, a doctor at the British embassy in Rome, saw Thaw in August 1902. Burton-Browne remembered that Thaw had been feverish, with a slow pulse and dilated pupils, and recalled that his patient’s eccentric behavior seemed symptomatic of a maniacal outburst. Finally, Maurice Gauja, the house doctor at the Hôtel Palais d’Orsay in Paris, told the court that he had attended Thaw in 1904 when he, Thaw, had taken poison in an apparent suicide attempt. Thaw had been desperately ill, drifting in and out of consciousness, occasionally vomiting blood, and Gauja had immediately applied a stomach pump. Gauja returned the next day to check on his patient and found Thaw rested and alert, apparently oblivious to his brush with death.13
Evelyn Nesbit testified also, repeating the account that she had given the previous year at the first trial. Travers Jerome had already appealed to the judge, Victor Dowling, to hold the second trial in camera, with no reporters present, saying that the salacious nature of Evelyn’s testimony was not suitable for publication in the newspapers. Dowling was sympathetic; he agreed with the district attorney that the publication of the testimony in 1907 had been deeply shocking, an affront to public morality. But what, he asked, was the point in trying to prevent publication when everything had already appeared in the newspapers? In any case, Harry Thaw had a constitutional right to a public trial, and he, Dowling, could not abrogate that right on account of a concern for public decency.
“The federal constitution,” Dowling ruled, “provides a man shall have a speedy and public trial. The civil and criminal codes of this State provide likewise…. It is the Court’s opinion that whatever harm might be caused the morals of the community by the printing of certain revolting details and testimony is more than compensated for by the safeguards thrown around the constitutional rights of the defendant. I therefore decline the appeal of the District Attorney.”14
This photograph shows Evelyn Nesbit on the witness stand in the Criminal Courts Building. Harry Thaw’s attorneys persuaded Evelyn to testify twice on her husband’s behalf, first in 1907 and again in 1908. (Library of Congress, LC-DIG-ggbain-07120)
Evelyn told her story a second time, but her account of the rape no longer had the force that it had possessed one year before. It played out exactly as it had the first time, but the recitation now seemed shopworn and stale. There had been no change in Evelyn’s appearance—she seemed not to have aged even a single day, and she was just as attractive as before—but there was a hardness in her voice, a glint in her eyes, a self-assurance in her bearing that had not existed in 1907. Jerome tried again to intimidate her, to bully her into submission, to confuse her on the details, occasionally comparing her answers to the responses she had given in the first trial, but she fought back relentlessly, matching him point by point, never allowing Jerome to win an advantage.
Her testimony during the second trial was remarkably precise, corresponding exactly, in every particular, to her testimony in the first trial. She added only a few details to the account that she had given previously, details that aimed to convince the jury that Harry Thaw had been insane long before he murdered Stanford White.
She remembered that Harry had returned to New York from Europe in December 1903 to learn that Stanford White had told her that he, Thaw, was a cocaine addict. Other men, friends of White, had confirmed the rumor, adding also that Thaw had whipped and brutalized young girls in his apartments.
He had denied everything, telling her that there was no truth in such gossip, and Evelyn eventually reconciled with Harry, moving with him in January 1904 to an apartment in the Grand Hotel on Broadway. But the episode had caused Harry great distress. Stanford White had attempted to renew his relationship with Evelyn, telling her all sorts of stories, and Thaw could no longer feel confident that she would remain faithful to him. That month, Evelyn told the court, Harry had fallen into a deep depression. He brooded over the situation, worrying that she would abandon him, fearing that her love for him would evaporate.
“He said,” Evelyn recalled, “that his life had been ruined, and that White… and his friends were constantly circulating unpleasant stories about him and hurting him in every way possible.”15
One afternoon, without warning, Harry blurted out that his life had become unbearable—the pain of his existence was too much and he intended to kill himself. There was no way to prevent Stanford White from harming his reputation, and there was no reason for either of them, Harry or Evelyn, to live. They should both commit suicide that afternoon.
“I did not know what to do,” Evelyn testified. “He was in a wild state…. He said that there was no use living: too many things had happened. He said that he was going to commit suicide…. He said he thought he would take laudanum and that I should take it, too. He thought we should go together.”16
But, remarkably, his mood seemed to lighten as they talked, and gradually Harry became less fretful. He started to relax, he spoke less excitedly, he stopped pacing about the apartment, and his expression no longer seemed so anxious. Evelyn was able to change the subject, to engage him in his plans for their journey to Europe later that year, and soon Harry had forgotten about his threat to commit suicide.
His depression would reappear intermittently, Evelyn testified, but there had been only one other occasion when Harry repeated his intention to kill himself. They had traveled to Paris in March 1904, staying in a suite of rooms at the Hôtel Palais d’Orsay in the Seventh Arrondissement. They had intended to remain only a few days in the capital before taking the train south to Monte Carlo, and Harry had proposed that they then travel through Europe by motorcar.
One evening, shortly before their departure for Monte Carlo, Harry had gone for a stroll along the path that ran beside the Seine. He returned within an hour, abruptly entering the living room, walking hurriedly to the settee where Evelyn was reading a book. His face was white, the color of chalk, and he walked rigidly toward her as though something inhibited the movement of his arms. He announced that he had finally done it; he had swallowed a bottle of laudanum, and he would soon die from the poison.
His appearance seemed to confirm the truth of his declaration: his face was deathly pale; his eyes were fixed with a glassy stare; he started to choke as though the poison had begun to work its malign effect. A telephone stood nearby, on a small table by the window, and Evelyn dialed the front desk, asking the concierge to send a doctor to the apartment. The physician, Maurice Gauja, acted immediately, using a stomach pump to flush away the poison, giving Thaw some morphine to calm his nerves, finally waiting until his patient was asleep in bed before leaving the apartment.17
Harry Thaw’s suicidal impulses, according to the psychiatrists, were congruent with the diagnosis that he suffered from manic-depressive insanity. Charles Wagner, the superintendent of Binghamton State Hospital, testified for the defense that Thaw’s behavior alternated between two polar opposites: he would be deeply depressed, sitting motionless for hours at a time, sunk in a deathlike torpor, yet on other occasions he would behave excitedly, frantically engaged in some task to the exclusion of everything else.
“Symptoms of excitement and depression are characteristic of manic-depressive insanity,” Wagner explained. “Suicidal attempts often mark these cases…. Quick, irregular habits of speech, nervousness and restlessness are all characteristic.”
“Have you an opinion,” Martin Littleton asked, “of the soundness of mind of the defendant at the time of the commission of the act?”
“Yes. The defendant was of unsound mind, and in my opinion he did not know the nature and quality of the act, and did not know that it was wrong.”
The judge, Victor Dowling, interrupted the witness, leaning forward in his chair to ask Wagner about his diagnosis. Harry Thaw had killed once; was it possible that he might kill again?
“Is it not a fact,” Dowling asked, turning in his chair to look directly at the witness, “that attacks of manic-depressive insanity are likely to recur?”
“It is,” Wagner replied.
“Is there any certainty or way of telling when they will recur?”
“Is there any guide by which you can establish when lucid intervals will recur?”
“No.”
Dowling leaned back in his chair, a look of irritation on his face, indicating with a motion of his hand that he had no further questions. It annoyed him that Wagner had not been more forthcoming in his responses. It might be necessary to confine Thaw indefinitely—but Dowling would be able to make that decision only on the basis of the psychiatric testimony.
The next witness, Smith Ely Jelliffe, was more accommodating, giving Dowling a better sense of the nature of Thaw’s condition. Jelliffe agreed that the defendant had a medical condition that psychiatrists classified as manic-depressive insanity, and the judge again inquired about the diagnosis.
“Do you mean,” Dowling asked, “[that] patients are apt to commit assaults?”
“Oh, yes,” Jelliffe replied. “They are apt to knock around and tear their clothes, rush through the streets or the wards of institutions they are confined in and do other maniacal acts.”18
The psychiatrists for the defense—Wagner, Jelliffe, and a third expert, Britton Evans—agreed that Thaw was chronically insane. He had suffered manic-depressive insanity since childhood, and his condition was likely to persist for some time.
But Travers Jerome, in his cross-examination, reminded the witnesses that they had all testified for the defense in the first trial, one year previously, and on that occasion they had told the court that Thaw had been insane only at the moment when he shot Stanford White. They had claimed that Thaw experienced a sudden derangement, a brainstorm, on seeing White at the theater, and in that moment of madness he had drawn his revolver and killed the architect.
But now, in the second trial, the psychiatrists offered a diagnosis of Thaw’s condition that could not be reconciled with the first. They claimed now that Thaw had always been irrational, unable to distinguish between right and wrong, and that he was unaware of the nature of his acts, insane in both a medical and a legal sense of the term. The expert witnesses, psychiatrists with extensive experience in treating mental illness, had thus followed the defense attorneys in lockstep fashion, abandoning their previous diagnosis for one that would better support Martin Littleton’s claim that Thaw had been insane since childhood.
It was preposterous, the district attorney exclaimed, that the experts should so readily alter their medical opinions to fall in with the attorneys. How could the three psychiatrists claim professional integrity as scientists if they could so effortlessly change their diagnosis?
Travers Jerome called Britton Evans to the stand, eyeing the witness with a look of contempt as Evans made his way across the front of the courtroom.
“Dr. Evans,” Jerome demanded, “did you testify at the last trial that Thaw killed Stanford White while suffering from a brain storm?”
“I can only say,” Evans replied, speaking cautiously, “that [it] was not a disease, but a phase of his mental condition. My recollection is that during a brainstorm he did the act, but that was not his disease.”
“Answer the question, yes or no,” Jerome snapped. “Was it your opinion that he killed Stanford White while suffering a brain storm?”
“Yes.” Evans seemed to shrug as he gave his answer. “I testified that he had a brainstorm.”
“That’s all.” Jerome abruptly turned away from Evans, signaling to the judge that he had no more questions for the witness. He also interrogated Charles Wagner and Smith Ely Jelliffe that afternoon, demanding that each man acknowledge that, in now claiming that Thaw suffered from chronic insanity, he had contradicted his testimony from the previous trial.19
Everyone had anticipated that Jerome would introduce expert witnesses in rebuttal; but Jerome, turning to address the judge, now informed Dowling that the state would close its case. It was an odd decision by the district attorney. The defense had entered a plea of not guilty by reason of insanity. The burden of proof of guilt lay on the prosecution to show that Thaw had been sane at the time of the murder; yet Jerome had decided not to offer any psychiatric testimony. What could it mean? Some observers speculated that Jerome was signaling to the jury that he no longer sought to send Thaw to the electric chair and that he might now be satisfied with a verdict that would send Harry Thaw to the asylum.
Martin Littleton, in his closing address, jubilantly interpreted the absence of psychiatric evidence as an admission by Jerome that he could not prove that Thaw had been sane when he shot White. “New York is filled with doctors and scientists and neurologists and specialists and experts,” Littleton proclaimed. No city in the United States, not even Philadelphia or Boston, could rival New York in the prestige of its medical community; yet the district attorney had not offered any scientific evidence. “Why did he not call the names of the city’s pick of insanity experts? Where, oh, where, is this assembled genius of the profession of New York?”20
The burden of proof lay with the state—there was a presumption of innocence in the American courts—yet Jerome had failed to make his case. On that basis alone, Littleton concluded, the jury should acquit the defendant.21
But the available evidence, Jerome replied in his closing speech, showed that Harry Thaw had indeed been sane on the day of the murder. That same afternoon, a few hours before he shot White, Thaw had played poker with some friends at the Whist Club before returning to the Hotel Lorraine. He left the hotel around six o’clock with Evelyn Nesbit, taking a cab downtown to meet Truxton Beale and Thomas McCaleb at Café Martin. They had walked across Madison Square after dinner, arriving at the theater in the middle of the first act of Mamzelle Champagne.
Jerome faced the jury as he spoke, seeming to address each of the jurors in turn, leading them through the events of the day of the murder. It was the culmination of the trial, and a large crowd had squeezed into the courtroom to hear Jerome’s closing address. Josiah Thaw, seated next to Evelyn Nesbit, was there to support his elder brother, but neither Harry’s mother nor his sisters were present. Thaw’s attorneys, Martin Littleton, Russell Peabody, and Daniel O’Reilly, sat in the front row, not bothering to take notes while Jerome talked, but Harry Thaw, seated among his lawyers, occasionally scribbled some notes on a large pad of paper.
No one expected either Stanford White’s widow, Bessie, or his son, Lawrence, to be in court, but Charles Hartnett, White’s private secretary, was there, seated alone in a corner of the room, trying to be as inconspicuous as possible. A few actors could be seen, scattered among the crowd: Cecilia (Cissy) Loftus, the vaudeville star; Robert Hilliard, reputedly the most handsome man on Broadway; George Nash, then appearing in The Witching Hour, playing the role of the district attorney; and William Collier, the comic actor who had made his reputation with Eddie Foy’s touring company. The impresario Charles Dillingham, one of Stanford White’s closest friends, sat in the center of the room, in the same row as the author Richard Harding Davis. The heiress Aimée Crocker had known White well, and she too had come to court, hoping to hear Jerome denounce the assassination of her friend. Finally, a few politicians were also among the spectators: Joseph Corrigan, a Democratic Party stalwart and city magistrate, and Patrick McGowan, the president of the Board of Aldermen, were both in the audience.22
There was a hush in the courtroom as Jerome continued to describe Thaw’s movements on the day of the murder. Was it not strange, Jerome asked rhetorically, that the defense had failed to call those witnesses who could testify to Thaw’s behavior on that fateful day? One witness only, Christopher Biggan, the steward at the Whist Club, had appeared in court. Biggan said that Thaw had been nervous when he played bridge with other members of the club; but the defense had not called the cardplayers to testify. Charles Schwab, the president of the Bethlehem Steel Company, and John W. Gates, the principal shareholder of the Republic Steel Company, had both played bridge with Thaw a few hours before the murder; but neither man had appeared in court. “Do you think,” Jerome said, “that these gentlemen whose names I have mentioned would sit down and play cards with a lunatic?” Martin Littleton could have issued a subpoena, compelling their testimony, but neither Schwab nor Gates had given evidence. “Not one of these gentlemen has been called.”23
Thaw had spent the evening with Truxton Beale and Thomas McCaleb, dining with them at Café Martin before going to the theater, yet the defense attorneys had called neither Beale nor McCaleb to the witness stand. One witness, Clinch Smith, had appeared for the prosecution, describing his conversation with the defendant at Madison Square Garden; but everything about that conversation indicated that Thaw had been sane.
There was certainly ample motive for Thaw to kill Stanford White, Jerome continued. Thaw believed that the architect had raped his wife. He had learned that White had been gossiping about him, spreading malicious lies around New York that he was a cocaine addict who frequented prostitutes. There was reason for Thaw to think that White hoped to reignite the relationship that he, White, had enjoyed with Evelyn several years before. “White was a man whom this defendant,” Jerome paused dramatically, pointing directly at Thaw a few feet away, “wanted to put in the penitentiary. White was a man who had wronged this defendant’s wife…. This defendant believed that White was circulating stories about him, charging him with the basest of practices. If all this does not constitute a motive then I don’t know what men are made of.”24
The weapon used by Thaw, a blue-steel double-action revolver, lay on a table at the front of the courtroom, and Jerome, still speaking, stepped three paces to his left, taking the gun in his right hand. “The defendant walked about the roof garden,” he declared. “He saw the man he had the most intense reason to hate, and then and there walked to where White sat at the table, leaning his head on his hand, and he shot three bullets into White’s body.” Jerome held the gun at arm’s length, aiming it at an imaginary victim, pulling the trigger to snap the hammer. Once, twice, three times, the sound, a loud click, reverberated around the silent courtroom. “He turned from his victim and, with his arm raised, he held the gun on high—broken—a sign to the crowd that he had accomplished his vengeance.” Jerome also had now broken the gun and, holding it high above his head, turned about as if to show everyone the weapon.25
Thaw had acted throughout with deliberation and intent and was therefore guilty of first-degree murder. There was not a scintilla of evidence in any of his actions to show that he had been insane. On the contrary, he had been aware, at every moment, of the import of his actions, carefully shooting at point-blank range, aiming to kill his victim. He had not afterward resisted arrest, telling his wife as she stood near the elevator that he had acted to protect her, calmly walking with the sergeant along Madison Avenue to the police station on Thirtieth Street.
Jerome turned again to face the jurors, reminding them that they had sworn an oath to uphold the law. They could not accept the defense plea if they believed that Thaw had known, at the time of the murder, the difference between right and wrong, if he had known the nature of his act, and if he had known that it was wrong. “Your oath requires you,” Jerome said in conclusion, “to find this man guilty if you believe that he knew it was Stanford White he killed.”26
The jurors left the courtroom, walking along a narrow corridor, each man taking his seat in the jury room. They had lived together at the Knickerbocker Hotel on Forty-second Street during the trial, and their shared experience had created a sense of solidarity among the twelve men. One or two had grumbled about their privation, complaining that they would not see their families during their confinement, but most felt privileged to play a part in such a sensational drama as the Thaw trial. They ranged in age from thirty-eight to sixty. The majority were married men with children, and they were generally well-to-do, each man having made his mark in his profession—in real estate, shipping, dry goods, banking, and the like. The foreman, Charles Gremmels, a ship broker, married with two children, was the youngest man in the room, but he had already given his comrades an impression of good sense, the conviction that he would organize their discussions in a purposeful manner.27
But the first ballot, taken shortly after noon on Friday, January 31, seemed to foretell that the jurors would never agree on a verdict. Eight men voted to acquit Harry Thaw on the ground of insanity; four, including Gremmels, voted to convict on the charge of murder. One juror, William Doolittle, an auditor for the New York Central Railroad, changed his vote on the second ballot to join the majority, but three men still remained steadfast in their conviction that Thaw was guilty.28
There was a brief snowfall that afternoon and a chill wind blew through Centre Street. The crowd outside the Criminal Courts Building gradually dispersed, taking refuge in the saloons along White Street. The two sets of attorneys, Jerome and Garvan for the state, Littleton, Peabody, and O’Reilly for the defense, spent the afternoon drinking together in Pontin’s Restaurant on Franklin Street, waiting for the verdict.
Some reporters arrived at the Tombs around two o’clock to interview Thaw in his cell, asking the prisoner if he expected a favorable decision. He had always anticipated an acquittal, Thaw replied, and he had no reason now to change his mind. “I think the jury is a good jury,” he answered. “I hope they finish the matter this time…. I deserve to be acquitted…. The result is finally going to be in my favor.”29
The warden, Billy Flynn, interrupted their conversation to report that a visitor, Raffaele Cascone, was waiting in the outside corridor, and Thaw, pleased that his friend had come to the prison, suddenly ended the interview. Cascone had spent several months as a prisoner in the Tombs, in an adjacent cell, and the two men had become close friends, talking together every day. They seemed to have little in common: Cascone, a leader of the Black Hand, had been indicted for the murder of a rival mobster in 1903. Cascone’s subsequent legal odyssey had given Thaw hope that he also would soon be free: Cascone had spent almost three years on death row in Sing Sing Prison, but his lawyers had won an appeal. Remarkably, after several witnesses had refused to testify against the defendant, the jury acquitted him of murder in his second trial.
Later that day, shortly before six o’clock, the jurors returned to the Knickerbocker Hotel for dinner. They had spent the day discussing the murder, combing through the evidence, and now they ate in silence, each man keeping his thoughts to himself. There had been no progress through seven ballots—three jurors were still holding out for a conviction on the murder charge—and no one was optimistic that they would soon reach a decision.
But that evening, after they had returned to the Criminal Courts Building, Charles Gremmels changed his vote. It was possible, he now admitted, that Thaw’s medical history, his nervous temperament, might have predisposed him to a sudden derangement and he may have become insane on seeing Stanford White at the theater. Gremmels joined the majority, voting on the eighth ballot to acquit Thaw. Now only two jurors, John Holbert and Frank Howell, still held out for conviction.
The next morning at ten o’clock, Evelyn Nesbit arrived alone at the courthouse. She had slept fitfully, full of anxiety that there had been no word from the jury. “Why can’t they agree?” she asked plaintively, speaking to a cluster of journalists waiting in the hallway. “I don’t see what keeps them out. A disagreement may mean a third trial, and that would be awful.” She gave a heavy sigh as she contemplated appearing as a witness for a third time. “Poor, poor Harry!”30
Travers Jerome arrived half an hour later. A reporter for the New York World called out a question to the district attorney, asking if he would put Thaw on trial a third time, but Jerome ignored the question, saying only that he had hoped for a decision the previous day. “I guess,” he replied, walking to the elevator, “it will be another disagreement. Too bad!”31
Shortly before one o’clock Jerome reemerged, appearing from the elevator, striding across the main hall toward the courtroom. There was a bustle in the hallways and corridors, a sudden stirring among the crowd as word spread that the jurors were about to enter the courtroom. Two bailiffs stood by the doorway, watching as the onlookers surged toward them, each spectator rushing forward to get a seat before the doors slammed shut.
Victor Dowling stepped onto the stairs that led to the bench, and simultaneously the jurors walked into the courtroom in single file, each man expressionless, his eyes looking directly ahead.
The voice of the clerk rang out—“Harry K. Thaw to the bar!”—and Thaw, his shoulders square, his face white, a slight smile on his lips, stepped forward, moving one pace away from the defense table. He glanced over his shoulder, nodding first to his wife and then to his brother, before turning to face the jury.
“The jury will rise.” William Penney paused, waiting as the jurors rose from their seats. “Jury, look upon the defendant. Defendant, look upon the jury.
“Gentlemen of the jury,” Penney continued, “have you agreed upon a verdict?”
“We have,” Charles Gremmels answered, a touch of anxiety in his voice.
“How say you, gentlemen of the jury, do you find the defendant at the bar, Harry K. Thaw, guilty as indicted or not guilty?”
“We find the defendant,” Gremmels replied, glancing sideways at the other jurors, seated on his left, as if to seek their support, “not guilty on the ground of his insanity at the time of the commission of the act.”32
For a fraction of a second, no more, there was a hush, a sudden silence, and then the sound of a man clapping shook the spectators from their trance. The judge banged his gavel on the bench, signaling the bailiffs to arrest the offender, and the crowd watched as the officers escorted the man from the room. Harry Thaw, a triumphant grin on his face, had turned to look at his wife, hoping to catch her eye, but Dowling had already started to speak, and everyone’s attention was on the judge’s words.
“An obligation,” Dowling began, “now devolves upon the Court to discharge its duty…. Upon the testimony in this case, apart from any other consideration that might arise, the Court is satisfied that the enlargement of the defendant would be dangerous to the public safety…. It is ordered that the said Harry K. Thaw be detained in safe custody and be sent to the Matteawan State Hospital, there to be kept in said hospital until thence discharged by due course of law.”33
The grin had already faded from Thaw’s face, and he looked at his attorneys, expecting them to intervene. The lawyers had held out hope that the judge would allow the family to send Harry to a private sanatorium, but Dowling had defied their expectations, committing Harry to Matteawan, the state hospital for the criminal insane. A deputy sheriff, John Breitenbach, moved to escort Thaw from the courtroom, and the attorneys Martin Littleton, Russell Peabody, and Daniel O’Reilly all followed, walking in single file to the sheriff’s office at the rear of the building.
Only now, after Thaw had left the courtroom, did he understand that he would travel that evening under armed guard to the Matteawan asylum. The sheriff had already made the necessary preparations: a train on the Central New England Railway would leave Grand Central Terminal at five o’clock, arriving at Fishkill Landing two hours later. He told the attorneys that he would allow Thaw to cross back to the Tombs to collect his belongings, but there would be no delay otherwise.
“You never told me,” Thaw shouted, angrily turning on his lawyers, “he would send me to Matteawan. I will not go to Matteawan.” How could he live with the lunatics, the criminal insane? The Matteawan asylum, an institution with a fearsome reputation, contained hundreds of violent criminals, including some of the most notorious murderers in the state. The legislature had never provided sufficient funds for its operations, and the asylum attendants, overworked and underpaid, were not reluctant to use violence against troublesome inmates. It was impossible, unthinkable for him to spend even a brief period of confinement in such an infamous place.
“Where did you think he would send you, Harry?” Daniel O’Reilly, his patience stretched to its limit, refused to tolerate Thaw’s petulance any longer. “Did you think he would send you to Rector’s or Martin’s?”
Martin Littleton stepped forward, seeking to reassure Harry, trying to persuade him that there was no alternative. “You must go,” Littleton said. “There’s such a thing as public sentiment in this town.” Public opinion would not tolerate the immediate release of a man who had murdered another man before hundreds of witnesses. Many New Yorkers had viewed the shooting as justified and had favored Harry Thaw during the two trials; but the public was fickle, and he could lose sympathy just as easily as he had won it.34
That afternoon the heavy gates at the rear entrance of the Tombs suddenly swung open and a large black sedan edged its way through the waiting crowd. Several constables, each holding a wooden club, walked alongside the limousine, pushing people back, striking out at any onlookers who stood in the way. The car accelerated along Lafayette Street, and Harry Thaw, seated between two deputies, watched as the crowd fell back, hooting and yelling in its disappointment. The sheriff had allowed Evelyn Nesbit to travel with her husband as far as Grand Central, but she said nothing, only looking out at the stores as they traveled north along Broadway. The car left Broadway at Twenty-third Street, turning onto Fourth Avenue, and there, on the left, they could see Madison Square Garden, its great bulk looming over the neighboring buildings.
Neither Evelyn nor Harry made any remark, seeming not to notice the place where Harry had killed Stanford White, and ten minutes later the limousine arrived at Grand Central. Evelyn tearfully embraced Harry as they stepped away from the car, whispering her affection, promising to visit him at the asylum early the next week. She stood watching, tears in her eyes, as the deputies escorted Harry into the terminal, waiting until she could see him no longer, and then she turned away, solitary and alone, finally disappearing into the crowds of passers-by on the avenue.35