New-York tribune., 1910-01-22
DEPLORE THAW CASE
STATE LAWYERS ACT.
Bar association FaUOrs Only
One Habeas Corpus Writ.

Rochester. Jan. 21--In a report which
Harry K. Thaw from the Matteawan Asy-
lrm the special committee on the commit
ment and discharge of the criminal insane
to-day recommended to the thirty-third an
nual meeting of the New York State Bar
Association the amendment OF the habeas
corpus law. 1t was suggested that the law
be so amended that a person confined in
private asylum might ask for a writ of
habeas corpus at any time and without
supporting afffdavits. but that a person
confined in any state hospital for the in
sane or a state hospital for insane Grim
inals. or state hospital for insane con-
victs, might make an application for a writ
OF habeas corpus only on q written certified
petition accompa lied by a certificate made
under oath by two qualified medical ex-
aminers in lunacy. These examiners must
make affidavit that the person was sane
and give their reasons, and then the ap-
rlication for a writ might be made to any
court having jurisdiction. After that the
case takes its usual course The report
continues in part:
To emphasize the need for this remedy
reference should be made to a well known
case which has been in the public eye for
long, where a murderer, having escaped
the consequences of his crime by the plea
OF insanity, is trying to escape the cOnse-
quences of his plea by means OF contin-
uous performance in habeas corpus. No
stronger illustration of the abuses in our
system of criminal Jurisprudence, can be
had than by recalling the circumstances OF
this case. Sympathy for an unfortunate
and misguided family ought not to deter
US from the recital
A youthful debauchee of great wealth,
trained to believe that his money gave him
n pnr11 oil &C RI I'M
whether imposed by law the rules of de-
Sency' lnheriting an abnormality of mind
ilkeiy to develop into homicidal acts, lead
ing debased and ignoble life, without
thought of the responsibilities which wealth
imposes upon Its owner, commits foul
and cowardly murder in public resort. If
ne were sane, there could be no escape
from the penalty of death. His only de-
fence is insanity. After a long and seem
ingly needless delay-and delays in haling
murderers to the bar for trial bring the
administration of the criminal law into dis
repute-he Is brought 10 a trial which, by
reason of the manner in which it is con-
Quoted degenerates into a disgraceful farce
and a confused jury finds itself unable to
agree.
THAW'S SECOND TRIAL.
The report, after referring to the second
trial which resulted in a verdict of &C
quittal on the ground of insanity and the
prisoner being sent TO a state asylum for
criminal insane, continues:
From this he plans to get free upon sue
cesslve writs of habeas corpus, which he
VIII enable him to pay jealous counsel and
uhscrupulouS experts. We say unscru-
pulous experts; For, 10 the shame of the
medical profession be Il spoken, the expert
VINO at one time swears him out of Jail
on an opinion OF insanity attempts at an
other time to swear him out of the asylum
by an opinion OF sanity. So forgetful are
the murderer's family of their duty to So
clety, their obligation to uphold the law,
that they aid and abet the plot and in
stead OF leaving him TO his fate, as it is
thelr duty as citizens to do, they claim,
1orsooth, that he is an object of persecu-
tion Among the numerous judges of the
supreme Court of this state, the chances
are that there is at least one whose head
is not able to control his heart and the
only problem in this muTderers quest for
freedom is to discover who that particular
Judge is. There may be a number of pro-
then, upon petition to him, presented by
counsel persona grata, and backed up by
favorable opinions be bought for cash,
the path to freedom will be cleared of all
anstaGs a eer II when IL THIS mere aHestGn of time
will be set free to direct his homicidal in
clinations against some other citizen who
has already fallen or may hereafter come
under his displeasure. And everything
done according to the forms of lawl
they be prevented without doing Injustice
to an unhappy individual whose criminal
tendencies show him TO be victim of
man does not commit crime. The commits
sion of crime is evidence of abnormality.
Such is the modern view. But the logic of
the law makes sad slip when it permits
the conclusion that the man who has done
foul deed must be acquitted as innocent
if his mind was not working on what we
call sane lines.
Has not the time come in the develop
ment of our system of penoIogy to ree-
gate to the realm of the obsolete the
assumption that an insane man cannot
commit crime? In other words. ought we
not to abolish the defence of insanity and
leave the one issue TO the petit jury:
Did the accused do the forbidden deed? If
guilty. and with the state of his mind at
that time the jury has nothing to do. The
point make here is that, however
legally right under existing legal concepts
it is really wrong-sociologically wrong-to
find man not guilty on the ground of in
No one will contend that the insane muir
derer should forfeit his life. The ques-
ton we put is, Why should he not for
felt his liberty? Why should he be acauit-
be allowed to go at large the ground
of his sanity? He has proved himself to
be dangeroHs man Society must pro
tect itself against the danger of repeti-
ton of his homicidal tendencies.
If these views be sound they could be
put into effect with but little change of
the statute law. Replace Section 20 of
the Penal Code by the following words:
Insanity or other mental deficiency shall
longer be a defence against charge
of crime; shall At prevent a trial of
the accused unless his mental condition is
such as to satisfy the court upon its own
inquiry that he is unable by reason there
Of 20 make proper preparation for hfs
defence"
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