'And he said, 'at the same time she threw something at him. He thought it was a book. He said when she threw that at him it made him mad and he took his knife and he rushed her. He says, 'I hit her'.'
Captain Hartnett's oral testimony on this point was supported by the notes that he made within two or three days after his interview with the defendant at the apartment house. His handwritten notes contain the following statement (Tr. 259):
'Then he got mad, pulled his knife and rushed her, struck her three or four times.'
It is clear that if he had had before him, or had heard the statements made by the defendant on this point to Dr. Owens and to Captain Hartnett, Dr. Cavanagh would not have been of the opinion that the murder occurred during an epileptic seizure, but on the contrary would have reached an opposite conclusion, -- that there was no connection between the murder and the defendant's mental condition (Tr. 832 and 861).
To recapitulate the expert psychiatric testimony, we find that all of the expert witnesses agreed that there was no causal connection between the housebreaking and the defendant's mental condition. All of them, except Dr. McIndoo and Dr. Cavanagh, agreed that there was no causal connection between the murder and the defendant's mental condition. The probative value of Dr. McIndoo's opinion to the contrary was adversely affected by her rapid and unexplained change of view. Dr. Cavanagh arrived at his conclusion because certain information, just summarized, was not available to him. On the basis of his own reasoning if he had been in possession of this data, he would have reached a contrary result, namely, that there was no causal connection between the murder and the defendant's mental condition.
The conclusion is inescapable that the Government has established beyond a reasonable doubt that none of the crimes charged in the indictment was the product of any mental disease or any mental defect, even if the defendant was afflicted with one.
Accordingly the court finds the defendant guilty of murder in the first degree on the first count of the indictment; guilty of murder in the second degree on the second count of the indictment; guilty of housebreaking on the third count of the indictment; and guilty of petit larceny on the fourth count of the indictment. As, in duty bound, the court will impose the sentence prescribed by the mandate of the Congress on the first count of the indictment. No discretion is reposed in the court in this matter. Sentence on counts 2, 3, and 4, will be held in abeyance for the time being.
I am strongly of the opinion, however, that in this case the extreme penalty of the law should not be carried out. Immediately upon imposition of sentence, I shall forward to the Attorney General a recommendation that the death sentence be commuted to life imprisonment. If deemed necessary for the protection of the public, the commutation can be accompanied by a provision that the defendant should not be eligible for parole. The reason for this recommendation is that while the evidence affirmatively establishes beyond a reasonable doubt that the defendant is mentally responsible for his criminal acts, nevertheless, it also demonstrates that the defendant is mentally below the average and is in fact subnormal. All psychiatrists agree that at least he has a personality disorder. On this point the lay testimony given by a benevolent, veteran school teacher, who for many years taught classes of atypical pupils; and by a kindly, understanding custodian of the school which the defendant attended as a boy, is very helpful. In my opinion dictates of reason and humanity bar the infliction of a death sentence on a person such as this defendant.
The subject of so called 'diminished responsibility' in cases of subnormal individuals has been discussed from time to time in recent years,
but can be adopted in this jurisdiction only by an Act of Congress. Nevertheless, it is a matter that in the exercise of discretion the Executive branch of the Government may and should consider in connection with the exercise of Executive clemency.
In making my recommendation to the Attorney General I shall urge that the question of Executive clemency be considered expeditiously at this time, instead of requiring the defendant first to exhaust his remedies by appeal. There are two reasons for this course: first, the ground on which my recommendation is based is not a matter that lies within the cognizance of an appellate court and cannot be considered by it; second, to require the defendant to spend many months in a death cell awaiting a final decision would in itself result in severe mental punishment and agonizing suspense.
As this is a capital case, the court will immediately grant leave to appeal in forma pauperis and will designate Mr. Charles B. Murray as counsel to prosecute the appeal and to prepare, present and prosecute an application for Executive clemency. The Court feels that it is good policy to designate trial counsel to act also as counsel for purposes of the appeal in view of his familiarity with the matter. Other counsel who did not participate in the trial, would be handicapped by that circumstance. The court will instruct Mr. Murray to file a notice of appeal in due time in order that appellate jurisdiction may attach, and to prepare and present an application for Executive clemency forthwith. The court suggests that an application may properly be made to the Court of Appeals to postpone further steps in connection with the appeal until after the disposition of the application for Executive clemency.