The Birmingham age-herald., 1924-08-01
.DARROW ARGUES ]. FOR MITIGATION OF PUNISHMENT Youths Counsel Departs From Legal Aspects
 Of Case DISEASED MINDS,
 IS BASIS OF PLEA State Maintains Illegality Of Use Of Alienist's
 Testimony
Rv Associated Press. ]

CHICAGO, July o@.-MlClgaClon' not of crime but of punishment; !; mercy of judgment, founded not upon the cold letter of the law, but upon considerations of humani- ty; these were the points empha- sized today by the defense in the proceedings which are to determine the penalty that Nathan Leopold, IT,, and Richard Loeb are to pay for the Kidnapping and murder of Robert ranks.
 Clarence S. Darrow, 67-year-old veteran of court battles, put square ly before Judge John R. Caverly the issue whether considerations of this character are to be written into the jurisprudence of Illinois.
 "The state's attorneys office seemed to feel the universe will crumble unless these boys hang," he said. He argued in response to a lengthy contention by Robert B. Grove, states attorney, backed by a legal lore of Thomas Marshall, indictment expert.
 Through a day and a half of court procedure the prosecutor had maintain
 
 by the defense as to the degree of men tal responsibility of the youthful mur- derers was incompetent, irrelevant and immaterial after plea of guilty had been entered.
 Seek Mitigation
 "We seek not mitigation of the crime, but only mitigation of the punishment because of a diseased condition of the al,a Gfo hut nk amounting to legal insanity" was the keynote of the defense,
 "A showing of mental disease con- stitutes showing of insanity the ex- istence of which must be determined by jury It can be brought in here only if the defendants withdraw their plea Of guilty and rely upon insanity aa q dle Q the crinle itself f,H s' fes sp0ntled tile state
 Throughout the four-h8uk session of the court the question was debated by the attorneys. Occasionally three or four of them would be on their feet talking at the same time, but for the most part Mfr. Marshall held the floor for the state and Mr. Darrow and Wal ter Bachraeh for the defense. Hundreds of citations from decisions given in this country and England some of them a century old, were of fered by MT. Marshall and Mir. Bach raeh had not finished his analysis and comparison of these when court ad- .journed for the day. q Expect Ruling
 Tomorrow will see renewal of the legal engagement but it was predicted Judge Carerly would rule after an hour or two more of arguing.
 The court, who is holding in reserve "a decision against the state which he gave yesterday interrupted Mir. Mar shall seve9al times to ask him to point out specifically how some of the diyi- sions he was reading affected the pres ent proceedings. -.--- At the very outset of the day's pro ceedings Judge Caverly told the prose- cHtion that among all the cases cited yesterday he had found none applica- ble to conditions which faced him. e Mr. Darr0w found several oppQrtuni- ties to interieet side remarks disparag- ing the relevancy of the states argu- ment. Twice he cited instances from Mir. Crowe's previous activities, which, he said, showed that the states at torney had, while a udge, admitted evidence as to mentality in mitigation of punishment: In one of these cases Mr. Grove pointed out, the defendant had been hanged. 5
 Yes, but you sentenced him." re- torted Mfr. Darrow.
 Again, in n formal address to the court this afternoon Mir. Darrow point ed out that Mir. Grove was chairman Of a committee which backed bill in the Illinois legislature designed to provide incarceration fOt persons of defective will. intelligence or emotions
 Il have never seen the same enthu- siasm for the death penalty as that which has appeared in this case,'| Mir. Darrow said in his argument. He de- clared the prosecution. had halted at nothing 'to gain its end.
 Mr. Darrow admitted that in Hi
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