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Every month, Professor Douglas Linder of the University of Missouri-Kansas City School of Law, developer of the Famous American Trials website, introduces JURIST readers to one of legal history's famous trials. This month...
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The Trial of Leopold & Loeb

On April 24, 2000, Chicago attorney Elmer Gertz died at the age of 93. Over his long career as a civil rights lawyer, Gertz defended such well-known figures as Jack Ruby (the assassin of Lee Harvey Oswald) and Henry Miller (the author whose novel, "Tropic of Cancer", faced accusations of obscenity). Gertz's notoriety began, however, in the 1950s with his representation of Nathan Leopold, who--along with Richard Loeb--had killed 14-year-old Bobby Franks on his way home from school on May 21,1924. Gertz orchestrated a successful parole campaign for Leopold, and walked with him through the gates of Stateville prison on March 13, 1958. Later, when Gertz visited his famous client in Leopold's apartment in Puerto Rico he was disconcerted to see that a photograph of himself was prominently displayed next to one of Leopold's former lover and partner in crime, Richard Loeb.

Elmer Gertz's hero, Clarence Darrow, defended Leopold and Loeb in 1924 after the two brilliant teenagers--both from prominent Chicago families--confessed to the thrill killing of young Bobby Franks. Darrow's twelve-hour plea to save the lives of his young clients has been called "the greatest courtroom speech in history." When Darrow's appeal finally ended, tears were streaming down the face of the presiding judge, John Caverly.

Add to Darrow's eloquence a sharp-tongued and able prosecutor, Robert Crowe, plus dueling "alienists" offering competing stories about the defendants' mental states, and you have one of the most fascinating trials of the twentieth century.

Douglas Linder
University of Missouri-Kansas City School of Law
linderd@umkc.edu
May 2000

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Few trial transcripts are as likely to bring tears to the eyes as that of the 1924 murder trial of Richard Loeb and Nathan Leopold. Decades after Clarence Darrow delivered his twelve-hour long plea to save his young clients' lives, his moving summation stands as the most eloquent attack on the death penalty ever delivered in an American courtroom. Mixing poetry and prose, science and emotion, a world-weary cynicism and a dedication to his cause, hatred of bloodlust and love of man, Darrow takes his audience on an oratorical ride that would be unimaginable in a criminal trial today. Even without Darrow in his prime, the Leopold and Loeb trial has the elements to justify its billing as the first "trial of the century." It is not surprising that the public responded to a trial that involved the kidnapping and murder of a fourteen-year old boy from one of Chicago's most prominent families, a bizarre relationship between two promising scholars-turned-murderers, what the prosecutor called an "act of Providence" leading to the apprehension of the teenage defendants, dueling psychiatrists, and an experienced and sharp-tongued state's attorney bent on hanging the confessed killers in spite of their relative youth.

    The crime that captured national attention in 1924 began as a fantasy in the mind of eighteen-year old Richard Loeb, the handsome and privileged son of a retired Sears Roebuck vice president. Loeb was obsessed with crime. Despite his high intelligence and standing as the youngest graduate ever of the University of Michigan, Loeb read mostly detective stories. He read about crime, he planned crimes, and he committed crimes, although none until 1924 were crimes involving physical harm to a person. ( Darrow and Leopold later saw Loeb's fascination with crime as form of rebellion against the well-meaning, but strict and controlling, governess who raised him.) For Loeb, crime became a sort of game; he wanted to commit the perfect crime just to prove that it could be done.

     Loeb's nineteen-year old partner in crime, Nathan Leopold, was interested in ornithology, philosophy, and especially, Richard Loeb. Like Loeb, Leopold was a child of wealth and opportunity, the son of a millionaire box manufacturer. At the time of their crime, the brilliant Leopold was a law student at the University of Chicago and was planning to begin studies at Harvard Law School after a family trip to Europe in the summer. Leopold already had achieved recognition as the nation's leading authority on the Kirtland warbler, an endangered songbird, and frequently lectured on the subjects of his ornithological passion. As a student of philosophy, Leopold was attracted to Friedrich Nietzsche. Nietzsche's influence on early twentieth century academics was powerful, and the merits of ideas contained in books like his Beyond Good and Evil were fiercely debated in centers of learning like the University of Chicago. Leopold agreed with Nietzsche's criticism of moral codes, and believed that legal obligations did not apply to those who approached "the superman." Leopold's idea of the superman was his friend and lover, Richard Loeb.

     Loeb and Leopold had  an intense and stormy relationship. At one time Leopold contemplated killing Loeb over a perceived breach of confidentiality. This relationship, described by Darrow as "weird and almost impossible," led the two boys to do together what they almost certainly would never have done apart: commit murder. Motives are often unclear, and they are in this trial. Neither the defense's theory that the murder was an effort by both to deepen their relationship nor the prosecution's theory that money to pay off gambling debts and a desire by Loeb to "have something" on Leopold in order to counter Leopold's unwanted demands for sex, are likely accurate. What is clearest about the motives is that Leopold's attraction to Loeb was his primary reason for participating in the crime. Leopold later wrote that "Loeb's friendship was necessary to me-- terribly necessary" and that his motive, "to the extent that I had one, was to please Dick." For Loeb, the crime was more an escape from the ordinary; an interesting intellectual exercise.

     Murder was a necessary element in their plan to commit the perfect crime. The two teenagers spent hours discussing and refining a plan that included kidnapping the child of a wealthy parents, demanding a ransom, and collecting the ransom after it was thrown off a moving train as it passed a designated point. Neither Loeb nor Leopold relished the idea of murdering their kidnap victim, but they thought it critical to minimizing their likelihood of being identified as the kidnappers. Their victim turned out to be an acquaintance of the two boys, Bobby Franks.

     Franks was simply in the wrong place at the wrong time. On May 21, 1924 at about five o'clock in the afternoon, Bobby Franks was walking home from school when a gray Winton automobile pulled up near him. Loeb asked Franks to come over to the car, asked him to get in the car to discuss a tennis racquet, then killed him with a chisel as the two drove off. (Though most evidence points to Loeb as the actual killer, there is some dispute about this, as there is over the time of the killing. Some have suggested that Franks was sexually molested, then killed later.) Leopold and Loeb drove their rented car to a marshland near the Indiana line, where they stripped Franks naked, poured hydrochloric acid over his body to make identification more difficult, then stuffed the body in a concrete drainage culvert. The boys returned to the Loeb home where they burned Franks' clothing in a basement fire. That evening Mrs. Franks received a phone call from Leopold, who identified himself as "George Johnson." Leopold told Franks that her boy had been kidnapped, but was unharmed, and that she should expect a ransom note soon. The next morning the Franks family received a special delivery letter asking that they immediately secure $10,000 in old, unmarked bills and telling them to expect further instructions that afternoon. Leopold ("George Johnson") called Jacob Franks, Bobby's father, at three o'clock to tell him a taxi cab was about to arrive at his home and that he should take it to a specified drugstore in South Chicago. Just as Franks headed out to the Yellow Cab, a second call came, this one from the police, spoiling hope that the perfect crime would be executed. The body of Bobby Franks had been identified; a laborer happened to see a flash of what turned out to be a foot through the the shrubbery covering the open culvert where the body had been placed.

     There would have been no arrests and no trial but for what the prosecutor called "the hand of God at work in this case." A pair of horn-rimmed glasses were discovered with the body of Bobby Franks. The glasses, belonging to Nathan Leopold, had slipped out of his pocket as he struggled to hide the body. They had an unusual hinge and could be traced to a single Chicago optometrist, who had written only three such prescriptions, including the one to Leopold. When questioned about the glasses, Leopold said that he must have lost them on one of his frequent birding expeditions. He was asked by an investigator to demonstrate how the glasses might have fallen out of his pockets, but failed after a series of purposeful trips to dislodge the glasses from his coat. Questioning became more intense. Leopold said that he spent the twenty-first of May picking up girls in his car with Loeb and driving out to Lincoln Park. Loeb, when questioned separately, confirmed Leopold's alibi. Prosecutor's were on the verge of releasing the two suspects when two additional pieces of evidence surfaced. First, typewritten notes taken from a member of Leopold's law school study group were found to match the the type from the ransom note, despite the fact that an earlier search of the Leopold home turned up a typewriter with unmatching type. Then came a statement from the Leopold family chauffeur, made in the hope of establishing Nathan's innocence, that spelled his doom. He said he was certain that the Leopold car had not left the garage on the day of the murder.

     Loeb confessed first, then Leopold. Their confessions differed only on the point of who did the actual killing, with each pointing the finger at the other. Leopold later pleaded with Loeb to admit to killing Franks but, according to Leopold, Loeb said, "Mompsie feels less terrible than she might, thinking you did it and I'm not going to take that shred of comfort away from her."

     The Loeb and Leopold families hired Clarence Darrow and Benjamin Bachrach to represent the two boys. Nathan said his first impression of Darrow was one of "horror", unimpressed as he was by Darrow's unruly hair, rumpled jacket, egg-splattered shirt, suspenders, and askew tie. His opinion of Darrow would soon change. He later described his attorney as a great, simple, unaffected man, with a "deep-seated, all-embracing kindliness." In his book Life Plus Ninety-Nine Years, Leopold wrote that if asked to name the two men who "came closest to preaching the pure essence of love" he would say Jesus and Clarence Darrow.

     It was Darrow's decision to change the boys' initial pleas to the charges of murder and kidnapping from "not guilty" (suggesting a traditional insanity defense) to "guilty." The decision was made primarily to prevent the state from getting two opportunities to get a death sentence. With "not guilty" pleas, the state had planned to try the boys first on one of the two charges, both of which carried the death penalty in Illinois, and if it failed to win a hanging on the first charge, try again on the second. The guilty plea also meant that the sentencing decision would be made by a judge, not by a jury. Darrow's decision to plead the boys guilty undoubtedly was based in part on his belief that the judge who would hear their case, John R. Caverly, was a "kindly and discerning" man. With the public seemingly unanimous in calling for death, Darrow did not want to face a jury. In his summation Darrow noted, "where responsibility is divided by twelve, it is easy to say 疎way with him'; but, your honor, if these boys are to hang, you must do it--...it must be by your cool, premeditated act, without a chance to shift responsibility."

     The defense hoped to build its case against death around the testimony of four psychiatrists, called "alienists" at the time. The best talent psychiatric talent 1924 had to offer was sought out by both sides to examine the defendants. Even Sigmund Freud was asked to come to Chicago for the trial, but his poor health at the time prevented the visit. The prosecution argued that psychiatric testimony was only admissible if the defendants claimed insanity, while the defense argued strenuously that evidence of mental disease should be considered as a mitigating factor in consideration of the sentence. In the most critical ruling of the trial, Judge Caverly decided against the state's objection, and allowed the psychiatric evidence to be introduced.

     The trial (technically a hearing, rather than a trial, because of the entry of guilty pleas) of Leopold and Loeb lasted just over one month. The state presented over a hundred witnesses proving-- needlessly, in the opinion of many-- every element of the crime. The defense presented extensive psychiatric evidence describing the defendants' emotional immaturity, obsessions with crime and Nietzschean philosophy, alcohol abuse, glandular abnormalities, and sexual longings and insecurities. Lay witnesses, classmates and associates of Loeb, were offered to prove his belligerence, inappropriate laughter, lack of judgment, and childishness. Other lay witness testified as to Leopold's egocentricity and argumentative nature. The state offered in rebuttal psychiatrists who saw normal emotional responses in the boys and no physical basis for a finding of mental abnormality.

     On August 22, 1924, Clarence Darrow began his summation for the defense in a "courtroom jammed to suffocation, with hundreds of men and women rioting in the corridors outside." As a newspaper reporter observed, the setting underscored Darrow's argument "that the court was the only thing standing between the boys and a bloodthirsty mob." For over twelve hours Darrow reminded Judge Caverly of the defendants' youth, genetic inheritance, surging sexual impulses, and the many external influences that had led them to the commission of their crime. Never before or since the Leopold and Loeb trial has the deterministic universe, this life of "a series of infinite chances", been so clearly made the basis of a criminal defense. In pleading for Loeb's life Darrow argued, " Nature is strong and she is pitiless. She works in mysterious ways, and we are her victims. We have not much to do with it  ourselves. Nature takes this job in hand, and we only play our parts. In the words of old Omar Khayyam, we are only Impotent pieces in the game He plays Upon this checkerboard of nights and days, Hither and thither moves, and checks, and slays, And one by one back in the closet lays. What had this boy had to do with it? He was not his own father; he was not his own mother....All of this was handed to him. He did not surround himself with governesses and wealth. He did not make himself. And yet he is to be compelled to pay."    In pleading that Leopold be spared , Darrow said, "Tell me that you can visit the wrath of fate and chance and life and eternity upon a nineteen- year-old boy!"

     Darrow attacked the death penalty as atavistic, saying it "roots back to the beast and the jungle." Time and time again Darrow challenged the notion of "an eye for an eye": "If the state in which I live is not kinder, more humane, and more considerate than the mad act of these two boys, I am sorry I have lived so long." Darrow told Judge Caverly that a life sentence was punishment severe enough for the crime. He reminded the judge how little Leopold and Loeb would have to look forward to in the long days, months, and years ahead: "In all the endless road you tread there's nothing but the night." When Darrow finally ended his appeal, tears were streaming down the face of Judge Caverly and many other courtroom spectators. One reporter wrote, "There was scarcely any telling where his voice had finished and where silence had begun. It lasted for a minute, two minutes."

     State's Attorney Robert Crowe closed for the prosecution. He sarcastically attacked the arguments of "the distinguished gentlemen whose profession it is to protect murder in Cook County, and concerning whose health thieves inquire before they go out and commit a crime." Addressing Leopold, Crowe said, "I wonder now, Nathan, whether you think there is a God or not. I wonder whether you think it is pure accident that this disciple of Nietzsche's philosophy dropped his glasses or whether it was an act of Divine Providence to visit upon your miserable carcasses the wrath of God." (Leopold, much later, said he wondered the same thing.) He heaped ridicule on Darrow's attempt to blame the crime on anyone and anything but the defendants: "My God, if one of them had a harelip I suppose Darrow would want me to apologize for having them indicted." Crowe called the defense psychiatrists "The Three Wise Men from the East" and accused one of them of being "in his second childhood" and "prostituting his profession." He reserved his strongest language for the two defendants, who he referred to as "cowardly perverts", "snakes", "atheists", "spoiled smart alecs", and "mad dogs." For Crowe, this was a premeditated crime committed by two remorseless defendants, and the appropriate punishment was obvious. The "real defense" in the case, according to Crowe, was "Clarence Darrow and his peculiar philosophy of life." It ought not be a defense, suggested Crowe, who closed by asking Judge Caverly to "execute justice and righteousness in the land."

     Two weeks later Caverly announced his decision. He called the murder "a crime of singular atrocity." Caverly said that his "judgment cannot be affected" by the causes of crime and that it was "beyond the province of this court" to "predicate ultimate responsibility for human acts." Nonetheless, Caverly said that "the consideration of the age of the defendants" and the possible benefits to criminology that might come from future study of them persuaded him that life in prison, not death, was the better punishment. He said that he was doing them no favor: "To the offenders, particularly of the type they are, the prolonged years of confinement may well be the severest form of retribution and expiation."

     Richard Loeb and Nathan Leopold were moved to the Joliet penitentiary. In 1936, Loeb was slashed and killed with a razor in a showerroom fight with James Day, another inmate. Leopold rushed to the prison hospital to be at his old friend's bedside as he died. Day claimed that he was resisting Loeb's sexual advances, while prison officials called it a deliberate and unprovoked attack. Day was acquitted by a jury. Leopold managed to keep intellectually active in prison. He taught in the prison school, mastered twenty-seven foreign languages, worked as an x-ray technician in the prison hospital, reorganized the prison library, volunteered to be tested with an experimental malaria vaccine, and designed a new system of prison education. In the 1950's, an elderly and now retired Robert Crowe reportedly offered to write a letter to the Illinois Parole Board urging his release. In 1958, after thirty-four years of confinement, Leopold was released from prison. To escape the publicity accompanying the release of Compulsion, a movie based on the 1924 crime (and which Leopold and his lawyer, Elmer Gertz, challenged in a lawsuit as an invasion of privacy), Leopold migrated to Puerto Rico. He earned a master's degree, taught mathematics, and worked in hospitals and church missions. He wrote a book entitled The Birds of Puerto Rico. Despite saying in a 1960 interview that he was still deeply in love with Richard Loeb, he married. Leopold said he often found himself wondering during his years in Puerto Rico at what point the thirty-four dark years in prison became balanced by the subsequent sunshine of freedom. Leopold died following ten days of hospitalization on August 30, 1971.  The next morning his corneas were removed.  One was given to a man, the other to a woman.

Douglas Linder
University of Missouri-Kansas City School of Law
linderd@umkc.edu

For more on the trial of Leopold & Loeb, visit Professor Linder's Web site on Illinois v. Nathan Leopold and Richard Loeb.

© 2000 by Douglas Linder. All rights reserved.