To the surprise of every one connected with the case, Justice Fitzgerald on March 26, suddenly called District Attorney Jerome and the lawyers for the defense into a conference and announced his decision to appoint a commission to pass upon the sanity or insanity of Harry Thaw.
Upon the verdict of the three disinterested men whom he selected was to depend whether Thaw would ever face the jury again, or go directly to the Matteawan asylum.
The decision was embodied in a written memorandum, prepared for the minutes of the court. The court based his decision on the conflict of affidavits as presented by the opposing sides, saying they were too diametrically at odds to permit of a decision other than in favor of an impartial inquiry. After citing the suggestion made in court by District Attorney Jerome and the various affidavits presented on both sides, Justice Fitzgerald’s memorandum reads:
“I do, therefore, in pursuance of the statute in such cases made and provided, hereby appoint Morgan J. O’Brien, Peter B. Olney and Leopold Putzel, M. D., three disinterested persons, a commission forthwith to examine into the mental condition of said Harry K. Thaw, and to report to the court with all convenient speed the facts and their opinion as to whether at the time of such examination the said Harry K. Thaw was in such a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of rightly understanding his own condition, the nature of the charges against him, and of conducting his defense in a rational manner.”
The task of announcing the decision of the court to Thaw was allotted to his wife, who tearfully accepted it. Messrs. Hartridge and O’Reilly went with Mrs. Evelyn Thaw to the Tombs and there in the hospital ward they met the prisoner. This ward had been placed at their disposal because of the crowd in the usual consultation room. Thaw was cheerful.
“It is all right, dearie,” he said to his wife, “I am not afraid of a commission. I am a sane man now; just as sane as the judge himself, and I am sure that any fair-minded commission will so declare me.”
The attorneys quickly withdrew from the conference and Thaw and his wife sat for a long time together discussing what the commission probably would do. When Mr. Hartridge came out he declared:
“The fortitude of the boy [meaning Thaw] astonishes me sometimes, and it certainly did today.”
Later in the afternoon Thaw sent out a statement, in which he said:
“Everything is perfectly satisfactory to me. I am sure I will be able to satisfy the commission that I am sane at the present time. Anything Justice Fitzgerald does is all right. He has always acted in a fair and impartial manner.”