“We will get the other affidavits first,” said Justice Fitzgerald, “and then we will discuss that matter.”
Several other clashes took place, and ended in a formal demand by District Attorney Jerome that a commission in lunacy be appointed to pass on the mental condition of Harry Thaw, that the young prisoner might be sent to a mad-house at once if found insane. Justice Fitzgerald asked time to consider the question, and demanded from both sides the names of all the alienists involved in the case, to guide him in selecting a commission.
Jerome was happy. He made this statement:
“The situation is just what I have been looking for all during the trial. A man who should be incarcerated in an insane asylum should not be on trial for his life.”
The justice held a special session of court, with the jury absent, for the purpose of receiving affidavits from alienists for both sides, to aid him in determining whether or not a commission in lunacy should be appointed. Mr. Jerome called the court’s special attention to the following statements by Dr. Carlos MacDonald:
“After careful examination of the exhibits and the hypothetical question and the testimony and affidavits of Mr. Cobb and assuming evidence stated in the case to be true, my personal observation, in court during the trial and also including certain observations that I made of the defendant in the library of the district attorney’s office on the 27th day of June, 1906, I am of the opinion that the defendant is now and for some time past has been suffering from a form of mental disease commonly known among men skilled in mental diseases as paranoia. Yet it is my opinion, based upon what has just been enumerated, that when the defendant killed Stanford White on the 25th day of June, 1906, he was then suffering from said mental disease commonly known as paranoia, but that his then mental state was such that he knew the nature and quality of the act that he was doing ... and that he then and there knew such act on his part was against the current morality of the people of this state and in violation of law.
“I am of the opinion, upon the facts above enumerated, that the mental disease commonly known as paranoia, from which the defendant was suffering on the night of June 25, 1906, is a form of mental disease from which it is reasonably certain he will not recover, and that the discharge of the said Harry K. Thaw would be dangerous to public peace and safety, and that he should be committed to an institution for the insane.”
In arguing to secure the investigation of Thaw’s mental state, Mr. Jerome said:
“As long as forty days ago, Dr. Austin Flint, one of the state’s alienists, came to me in my office and told me that after watching Thaw in court every day of the trial he was solemnly of the opinion that the defendant was not capable of instructing his counsel. I was much concerned, and with my assistant and Drs. MacDonald and Mabon held a long conference. I then called in other alienists, and after submitting to them all the evidence I had in my possession they joined with the others in declaring Thaw a paranoiac.
“I am convinced Harry Thaw should be tried for his life.”