The following is a paper I did for an undergrad class almost ten years ago. I found it on my crappy old laptop, in a DOS directory if you can believe it. Funny how I still remember the basic DOS commands.

I haven't changed anything except for the first word of the essay, in reference to the year, and removal of the footnotes. I apologize for the excessive use of the passive voice, the unwieldy subordinate clauses, redundant modifiers and other hallmarks of a desperate undergrad's writing syle. Most everything I wrote back in those days was done at the last minute, with a hangover and barely proofread.

But I got a good grade, and it is on a subject of general interest and therefore blogworthy, I hope.

[Eighty-two] years ago, in May of 1924, America was shocked by what has often since been called "the Crime of the Century." In prohibition era Chicago, two wealthy and intelligent teenagers who had almost everything in life coldly murdered a fourteen year old boy for the sheer fun of the experience.

This event has become known as the case of Leopold and Loeb, the two young murderers who were saved from the hangman's noose through the efforts of a defense team led by an aging, yet still able Clarence Darrow.

After a brief discussion of the dastardly crime itself, this paper will examine the strategies of the State of Illinois and that of the Defendants. This paper will then discuss the evidence used in the hearing, including the use of psychiatric reports, and the novel use of expert witnesses by both sides. Finally, the paper will conclude with an examination of the closing arguments and commentary on the prosecution's failure to persuade the court to impose a death sentence on the two defendants.


THE CRIME

Nathan F. Leopold Jr. and Richard A. Loeb were raised by wealthy Jewish parents in the fashionable upper class neighborhood of Kenwood on Chicago's South side. They had both been brought up with governesses, chauffeurs and large bank accounts. Both young men were widely read and extremely intelligent. Leopold had been the youngest man ever to graduate from the University of Chicago, at 18. Loeb had been the youngest man ever to graduate from the University of Michigan, at 17. Both planned to study law. Both were homosexuals.

The murder of fourteen year old Robert Franks was the last in a long line of criminal activities for Leopold and Loeb. Up until the incident, however, their crimes consisted mainly of burglaries, petty larcenies, vandalism and arson. In Spring of 1924, Loeb convinced Leopold that it was time to plan a kidnap for ransom and murder.

The conspirators used a false name to open a bank account and rent a car for the crime. The plan was to find a small child, take him into the rented car, hit the victim over the head, and then strangle him with a rope. A ransom note was prepared in advance with a blank spot for the name of the victim's parents.

On May 21, 1924, Leopold and Loeb drove to the Harvard School and spotted their young neighbor and acquaintance, Robert Franks. Once Franks was inside the car, they turned a corner and killed Franks by a few blows to the head with a heavy metal chisel. The two murderers then drove twenty miles around town through "thickly populated streets" with the dead body in the back seat. They waited until darkness before burying the body in a culvert.

Forty-eight hours later the body was discovered and a pair of glasses found nearby was traced to Leopold. On May 31, 1924, soon after the capture of both Leopold and Loeb, the police succeeded in obtaining confessions from both young men. On June 6, 1924, the two prisoners were indicted for the kidnapping and murder of Robert Franks and the crime of the century was set to become the trial of the century.


STRATEGIES

The so-called trial of the century was not to be a trial at all because on July 21, 1924, the defendants withdrew their not guilty plea and entered a plea of guilty on both counts, to the surprise of all observers. With guilt established, the trial had become merely a hearing on the mitigation or aggravation of the offense, for the purpose of fixing a sentence.

The prosecution team of State's attorney Robert E. Crowe, and assistants Joseph Savage, John Sbarbaro and Milton Smith had originally anticipated that the defendants would try for an acquittal based on an insanity defense. The defense team of Clarence Darrow, Benjamin C. Bachrach and Walter Bachrach had a number of reasons for changing the plea to guilty. Due to the extreme notoriety of the case and the public clamor for the death penalty, the defense wanted to take the case away from a jury. A surprise plea of guilty on both counts was the best way to avoid a death sentence, in the mind of Darrow, because the State would then be unable to try the defendants on one capital charge first and then try a second time if unsuccessful. Darrow felt that a jury would find it easier to hang his clients because they could share the responsibility for the decision. On the other hand, Darrow knew Judge Caverly, and though the Judge had handed down death sentences before, there was a better chance that Darrow could persuade him to be merciful in this case.

Darrow intended to convince Judge Caverly that Leopold and Loeb should not be sent to the gallows because of their mental condition and their youth.

The only defense sought to be interposed was 'mitigating circumstances,' to avoid the extreme penalty of the law, death. The mitigating circumstances claimed by counsel for the defendants did not consist of the facts surrounding the commission of the crime, but of the alleged abnormal diseased mental condition of the defendants.

Judge Caverly placed no restrictions on the introduction or admissibility of medical evidence to support mitigation "thereby making possible", in Darrow's words, "for the first time in the history of medical jurisprudence a completely scientific investigation in a court of law of the mental condition of persons accused of crime."

This decision was a major blow to the prosecution, which argued that medical evidence of degrees of insanity is improper where guilt is established, and used for the sole purpose of proving mitigation. As State's Attorney Crowe put it: "Our interpretation of this is, your Honor, that they are attempting to show degrees of responsibility. There is nothing in law known as degrees of responsibility. You are either entirely responsible for all the consequences of your act, or you are not responsible at all." Crowe argued that such a tactic amounted to the use of an insanity defense and required that the question be put to a jury.

The defense's argument that Judge Caverly found persuasive in the matter was that there are degrees of insanity and mental deficiency that fall short of the threshold required for a defense of legal insanity. These lesser degrees of insanity should be considered as evidence on the issue of mitigation, just as youth or other factors affecting responsibility.


EVIDENCE

The most important piece of evidence introduced by the defense after Judge Caverly's ruling was a report made by psychiatrists Drs. Hulbert and Bowman. These lengthy, comprehensive reports contained information on both defendants' family histories, the effect of governesses on their development, their childhood memories and fantasies, and their academic and sexual histories. The report called the murder "a climax to criminal careers that had been developing over a period of years." The report was useful to the defense because it supported their theory of diseased mind with statements such as the following:

"The psychiatrists wrote: 'Leopold denies any feeling of remorse. . . . [H]e has no feeling of having done anything wrong as he doesn't feel that there is any such thing as morals. . . . He maintains that anything which gives him pleasure is right, and the only way in which he can do any wrong is to do something which will be unpleasant to himself.'"

The prosecution presented eighty-one witnesses in an attempt not only to prove guilt beyond a reasonable doubt, but to demonstrate to the Judge the full horror of the crime. This strategy called for the presentation of the State's evidence "in minute detail, as though before a jury", while the defense attempted to counter this tactic with extremely limited cross-examinations. Defense counsel Benjamin Bachrach objected to the cumulative use of evidence by the State at one point, saying that guilt had already been conceded by their side. State's Attorney Crowe responded:

I prefer . . . to present my case. Of course the plea of guilty admits everything. Your Honor is going to be asked to fix the punishment here and I want to show by the mountain of evidence we have piled up that, when they pleaded guilty, there was nothing else they could do. . . . I want to show their guilt clearly and conclusively, and the details of it and ask that they be hanged. I don't think I ought to be limited.

The defense presented three alienists who had examined Leopold and Loeb and were each highly distinguished forensic psychiatrists of the day. Dr. William Alanson White, the first to testify, was president of the American Psychiatric Association and superintendent in charge of the national mental institution, St. Elizabeth's Hospital in Washington, D.C. Each of the three Doctors testifying in support of the defense, concluded that "[Leopold and Loeb] suffer[ed] from a mental disease, characterized by disturbance of [their] emotional life, which, when the two boys were brought into association with each other, resulted in the murder of young Robert Franks."

The second alienist to testify, Dr. William Healy was an expert in juvenile delinquency. His testimony included details of a secret "compact" between the conspirators in which Loeb would perform sex acts with Leopold in exchange for Leopold's regular assistance in various criminal activities. On Cross-examination, Crowe elicited this statement from the witness: "[T]he crime itself is the direct result of diseased motivation of Loeb's mental life. The planning and commission was only possible because he was abnormal mentally, with a pathological split personality."

Crowe seized the opportunity to again move for a jury trial, saying: "[I]f the defense here is insanity, there is only one thing to do under the law and this is to call a jury." Again, the motion was denied and the defense continued with the third alienist, Dr. Bernard Glueck.

Dr. Glueck had formerly been psychiatrist at Sing Sing prison in New York. His direct testimony concerned the defendants' almost total lack of guilty feelings or normal emotional response to their crimes.

In what may have been a crucial error, State's Attorney Crowe attempted to establish monetary gain as the motive for the murder. Dr. Glueck sidestepped Crowe's questions saying that Loeb's motive probably involved "power, potency, and the realization of the fantasy of a perfect crime", while Leopold may not have had any motive. This line of questioning was attacked by Darrow in his closing argument, as lacking credibility since the defendant's were so wealthy money was not a likely motive for the killing.

Later, the defense called certain acquaintances of the defendants to the stand, including two of Loeb's former girlfriends. One spoke of Loeb's recent bizarre behavior, and his reckless driving and taunting of pedestrians. The defense rested soon after calling Dr. Hulbert, co-author of the initial psychiatric report.

For the State's case in rebuttal, Crowe called two alienists who testified that the defendants were normal and not mentally diseased. For his cross-examination, Darrow tried with limited success to show that the alienists' examinations were not credible since there were others in the room at the time they questioned the defendants.


CLOSING ARGUMENTS

The closing argument of Clarence Darrow, which began on August 22, 1924, has often been called his finest speech. He began by saying that hangings of prisoners who had plead guilty was a rarity and the youth of the defendants would set a precedent. Darrow admitted that his controversial decision to plead his clients guilty and hope for life in prison was made out of fear of public opinion. He attacked the prosecution, calling their arguments "cruel; dastardly; premeditated; fiendish; abandoned and malignant heart; . . . cowardly, [and] cold-blooded." Darrow argued that since the defendants did not murder out of passion or a need for money their crime was less cruel. His main argument was that the defendants were mentally diseased, that killing them would not remove the disease, and finally that as part of a civilized society the court should be moving away from the death penalty. Darrow's eloquence ended with a quote from the poet Omar Khayyam and the Judge reportedly had tears in his eyes when the attorney sat down.

State Attorney Crowe's began his summation by answering the attacks made by Darrow against the prosecution. He then began to paint a picture of the defendants that included sadism, cruelty, perversion, but not insanity. Referring to Drs. Hulbert and Bowman's assessment of the defendant's abnormal lack of emotion, he said:

[I]f it is the fate of these two perverts that they must pay the penalty of this crime upon the gallows, when they realize it, you will find that they have got emotion and you will find they have got fear and you will find these cowardly perverts will have to be carried to the gallows.

At another critical point in the argument, Crowe made a serious error by alienating Judge Caverly. Crowe intimated that the defense was happy with Judge Caverly because he was "friendly" to their side. Caverly responded angrily saying "[T]he court will order stricken from the record the closing remarks of the state's attorney as being a cowardly and dastardly assault upon the integrity of this court." Despite Crowe's apologies, the damage had been done.

On September 10, 1924, Judge Caverly read the judgment of the court, sentencing Leopold and Loeb to life in prison plus 99 years. In making his decision, the Judge stated clearly that he did not use the medical evidence of psychiatric disorder to mitigate the sentence. However, it seems clear that Judge Caverly was persuaded in some measure by Darrow's unusual strategy of painting the killers as victims of their own diseased minds.


CONCLUSION

The prosecution's failure to obtain a death sentence in this case was a startling defeat, considering the amount of public opinion on their side. One reason Darrow and the defense was successful may have been his stature in the public mythology. Darrow was a champion of the underdog, and this may have affected public opinion in his favor, and Darrow's heroic reputation may have made the Judge more receptive to the defense's novel arguments. Crowe neglected public opinion and throughout the trial, his aggressive tactics combined with Darrow's victimization of the defendants began to turn Leopold and Loeb into folk heroes. In the end, the prosecution may have lost by alienating Judge Caverly with their tactics of badgering witnesses, their lack of respect for the professional stature of the defense experts, and their insulting attacks on the defense. In doing so, State's Attorney Crowe helped to increase the legendary status of Clarence Darrow and foster a renewed attitude in this country toward the use of the death penalty.

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