“Obsessed, did you say?”

“Yes, he seemed obsessed.” I left the stand, feeling somehow grateful to Jonathan Wilk for having got me to say those last things.

At long last, Horn was done, and the defence was to begin. Again, the pavement was jammed; the halls, the lifts were crowded; and extra bailiffs had to be called to guard the courtroom doors. It was Wilk’s turn.

He rose in his piecemeal manner, and asked Dr. McNarry to take the stand. Even while the doctor made his way to the chair, the opposition was clamouring at the bench. He gave his name; he was sworn. Only then Judge Matthewson turned his attention to Padua, Horn, Czewicki – all three in full cry, Czewicki with an arm-load of books, Padua repeating as a litany, “If Your Honour please-”

“All right, what is it?”

Padua led off, with a torrent of argument about the plea of insanity, beginning with sonorous quotations from Blackstone about compos and non compos: the ability to tell right from wrong.

Judd had become alert; something like pleasure showed on his face – the argument was being joined at last on a question of ideas. He whispered to Edgar Feldscher, no doubt some jibe about the high school lawyer with his primitive Blackstone.

Padua read from the Illinois statutes: “A person shall be considered of sound mind who is neither an idiot, nor a lunatic, nor affected with insanity, and who has arrived at the age of fourteen years, or before that age if the person knows the distinction between good and evil… An individual under the age of ten years shall not be found guilty of any crime or misdemeanour.”

It flashed through my mind that the psychiatric reports had placed the “emotional age” of the boys at nine. Wouldn’t it be a clever argument for the defence to contend that the emotional, rather than the physical, age should apply?

Then came the provision for temporary insanity. If at the time of committing a crime, “the person so charged was a lunatic or insane, the jury shall so find by their verdict…”.

“… In all these cases it shall be the duty of the court”, Padua read emphatically, “to empanel a jury to try the question whether the accused be… sane or insane.”

If the defence even touched on the question of insanity, the case automatically had to go to a jury.

It was a curious moment. Wilk, the great jury lawyer, was seeking at all costs to avoid a jury. And the prosecution was trying by every trick in the law books to force the case before a jury, or else to keep out the entire mass of psychiatric evidence, the only evidence the defence had to offer.

Now Horn took up this argument. “Insanity is a defence,” he insisted, “the same as an alibi. Have we got to a point of the law here where we can enter a plea of guilty before the court in order to avoid a jury, and then treat that plea as a plea of not guilty, and put in a defence?”

The judge made a movement, as though brushing away a fly. Horn kept on. “I insist, if Your Honour please, that we proceed without hearing any evidence tending to show that these men are insane. If not, everything you do from now on is of no effect under the law.”

There was a gasp from the courtroom at his audacity. Dr. McNarry, who had been staring at Horn with a professional half-smile, now turned his gaze upon Judge Matthewson.

“From the moment you hear evidence on insanity, this becomes a mock trial!” Horn shrieked. At last, the judge cut in. Did the State’s Attorney have any authorities?

Several lawyers responded simultaneously. Meanwhile, as Judd and Artie listened intently, the judge leaned forward, explaining his own view. It was actually his duty to find out if the boys might be insane, in order to protect their rights – to a jury trial! “I have a right to know whether these boys are competent to plead guilty or not guilty.”

The judge seemed determined to give each side a point, for he went on to remark, “There are different forms of insanity. Medically-”

“Not under the law!” Horn cried.

Patiently, as one going back to fundamentals, Judge Matthewson asked Horn, “Then is there no mitigation in a murder case at all?”

“Insanity is not a mitigating thing. It exists or does not exist.”

Wilk ambled to the bench, as a man puzzled. “And has the degree of responsibility nothing to do with it?”

“Degree!” Horn snapped. “Insanity is a total defence, the same as self-defence, the same as an alibi.”

“But if a medical condition-” Edgar Feldscher began.

Padua interrupted. “The law on the issue of an insanity defence-”

“We claim-” began Wilk.

“One moment, Mr. Wilk!” And he put his question to the judge. “If it is conceded that insanity is not a defence, have they any right to introduce any evidence of insanity?”

“No, we’re not-” Feldscher shouted.

“No evidence of insanity!” Wilk echoed, while Dr. McNarry studied them all with interest.

“Then have you any right to introduce evidence as to the mental condition of these men?” Padua demanded.

“Certainly!” they cried in unison.

“Evidence intended to show that they are not responsible, or should not be held to the degree of responsibility that other people should be?”

“Certainly,” Wilk demonstratively resumed his seat.

“But that is insanity called by another name!”

“You can call it green cheese if you like!” Ferdinand Feldscher sneered.

“Wait, wait! Don’t get excited!” The judge leaned in.

Dr. McNarry permitted himself a chortle. Judd grinned. Artie looked worried, as if to remind us all that his life was at stake in this dispute.

The case seemed to hang in balance. Turning blandly toward Dr. McNarry, the judge said, “I don’t know what Dr. McNarry or whatever his name is, is going to testify.” He beamed upon Horn. “Nobody has said he is going to testify as to their sanity, except the State.”

It was sophistry. We all had the report of the alienists in our hands. Did not the report on each boy conclude with the statement that he was mentally affected? From a legal point of view, Horn seemed right. But the real trouble was that the law itself in its definition of insanity was antiquated.

There in that broiling courtroom in Chicago the inadequacy of the definition was being made clear; there in those days of wrangling the law itself was being tested. If it did nothing else, if the life or death of Judd and Artie was of little significance, their case at least served to focus the world’s attention on the inadequacy of our laws in the face of our new knowledge of the human personality and mind.

The argument climbed. The lawyers brought in rulings from Nebraska, precedents from Alabama, statutes from Colorado. Word of the battle had seeped down to the street, and the pressure at the door increased. As in most arguments, the issue was only a definition of a word. Insanity. The word was like a push button for a jury. The defence tried to shade it to “an affected mind”.

“There is no need in citing the law,” Judge Matthewson said. “If there is any mental disease, it is insanity.”

There was a sudden silence. The prosecution seemed to have won. Judd, in panic, turned to Jonathan Wilk.

Wilk arose again and stepped to the bench. “Do you mean to say that the court will not consider the mental condition on the question of mitigation? When the mental condition does not rise to a defence?”

His question hung in the air. Mitigation, he repeated. What entered into mitigation? Didn’t one consider the conditions that led to a crime? The background of the criminal, the forces that moulded his character? The pressures upon him, the extent of his responsibility?

And as he spoke, the courtroom was being gradually drawn back from the definition of a word to deeper questions. What was free choice of action? What was free will? And, unsaid, one could hear Wilk’s lifelong rumination, his gentle pessimism, his insistence on some form of mechanistic determinism, his claim that there was no free will. Yet even if some freedom of will did exist, “Suppose the mental condition seriously interferes with their free will and understanding, don’t you think the court has a right to listen to that, in mitigation?”