Crowe boasted to the press that it would be "the most complete case ever presented to a grand or petit jury" and that the defendants would certainly hang. Leopold and Loeb had confessed and shown the police crucial evidence—the typewriter used for the ransom letter—that linked them to the crime.
The trial, Crowe quickly realized, would be a sensation. Nathan Leopold admitted they had murdered Bobby solely for the thrill of the experience. ("A thirst for knowledge is highly commendable, no matter what extreme pain or injury it may inflict upon others," Leopold had told a newspaper reporter. "A 6-year-old-boy is justified in pulling the wings from a fly, if by so doing he learns that without wings the fly is helpless.") The defendants' wealth, their intellectual ability, the high regard within Chicago for their families and the capricious nature of the homicide—everything combined to make the crime one of the most intriguing murders in the history of Cook County.
Crowe also realized that he could turn the case to his own advantage. He was 45 years old, yet already he had had an illustrious career as chief justice of the criminal court and, since 1920, as state's attorney of Cook County. Crowe was a leading figure in the Republican Party with a realistic chance of winning election as Chicago's next mayor. To send Leopold and Loeb to the gallows for their murder of a child would, no doubt, find favor with the public.
Indeed, the public's interest in the trial was driven by more than lurid fascination with the grisly details of the case. Sometime within the past few years the country had experienced a shift in public morality. Women now bobbed their hair, smoked cigarettes, drank gin and wore short skirts; sexuality was everywhere and young people were eagerly taking advantage of their new freedoms. The traditional ideals—centered on work, discipline and self-denial—had been replaced by a culture of self-indulgence. And what single event could better illustrate the dangers of such a transformation than the heinous murder of Bobby Franks? The evangelical preacher Billy Sunday, passing through Chicago on his way to Indiana, warned that the killing could be "traced to the moral miasma which contaminates some of our ‘young intellectuals.' It is now considered fashionable for higher education to scoff at God....Precocious brains, salacious books, infidel minds—all these helped to produce this murder."
But while Crowe could count on the support of an outraged public, he faced a daunting adversary in the courtroom. The families of the confessed murderers had hired Clarence Darrow as defense attorney. By 1894, Darrow had achieved notoriety within Cook County as a clever speaker, an astute lawyer and a champion of the weak and defenseless. One year later, he would become the most famous lawyer in the country, when he successfully defended Socialist labor leader Eugene Debs against conspiracy charges that grew out of a strike against the Pullman Palace Car Company. Crowe could attest firsthand to Darrow's skills. In 1923, Darrow had humiliated him in the corruption trial of Fred Lundin, a prominent Republican politician.
Like Crowe, Darrow knew that he might be able to play the trial of Leopold and Loeb to his advantage. Darrow was passionately opposed to the death penalty; he saw it as a barbaric and vengeful punishment that served no purpose except to satisfy the mob. The trial would provide him with the means to persuade the American public that the death penalty had no place in the modern judicial system.
Darrow's opposition to capital punishment found its greatest source of inspiration in the new scientific disciplines of the early 20th century. "Science and evolution teach us that man is an animal, a little higher than the other orders of animals; that he is governed by the same natural laws that govern the rest of the universe," he wrote in the magazine Everyman in 1915. Darrow saw confirmation of these views in the field of dynamic psychiatry, which emphasized infantile sexuality and unconscious impulses and denied that human actions were freely chosen and rationally arranged. Individuals acted less on the basis of free will and more as a consequence of childhood experiences that found their expression in adult life. How, therefore, Darrow reasoned, could any individual be responsible for his or her actions if they were predetermined?
Endocrinology—the study of the glandular system—was another emerging science that seemed to deny the existence of individual responsibility. Several recent scientific studies had demonstrated that an excess or deficiency of certain hormones produced mental and physical alterations in the afflicted person. Mental illness was closely correlated with physical symptoms that were a consequence of glandular action. Crime, Darrow believed, was a medical problem. The courts, guided by psychiatry, should abandon punishment as futile and in its place should determine the proper course of medical treatment for the prisoner.
Such views were anathema to Crowe. Could any philosophy be more destructive of social harmony than Darrow's? The murder rate in Chicago was higher than ever, yet Darrow would do away with punishment. Crime, Crowe believed, would decline only through the more rigorous application of the law. Criminals were fully responsible for their actions and should be treated as such. The stage was set for an epic courtroom battle.
Still, in terms of legal strategy, the burden fell heaviest on Darrow. How would he plead his clients? He could not plead them innocent, since both had confessed. There had been no indication that the state's attorney had obtained their statements under duress. Would Darrow plead them not guilty by reason of insanity? Here too was a dilemma, since both Leopold and Loeb appeared entirely lucid and coherent. The accepted test of insanity in the Illinois courts was the inability to distinguish right from wrong and, by this criterion, both boys were sane.
On July 21, 1924, the opening day of court, Judge John Caverly indicated that the attorneys for each side could present their motions. Darrow could ask the judge to appoint a special commission to determine if the defendants were insane. The results of an insanity hearing might abrogate the need for a trial; if the commission decided that Leopold and Loeb were insane, Caverly could, on his own initiative, send them to an asylum.
It was also possible that the defense would ask the court to try each defendant separately. Darrow, however, already had expressed his belief that the killing was a consequence of each defendant influencing the other. There was no indication, therefore, that the defense would argue for a severance.
Nor was it likely that Darrow would ask the judge to delay the start of the trial beyond August 4, its assigned date. Caverly's term as chief justice of the criminal court would expire at the end of August. If the defense requested a continuance, the new chief justice, Jacob Hopkins, might assign a different judge to hear the case. But Caverly was one of the more liberal justices on the court; he had never voluntarily sentenced a defendant to death; and it would be foolish for the defense to request a delay that might remove him from the case.
Darrow might also present a motion to remove the case from the Cook County Criminal Court. Almost immediately after the kidnapping, Leopold had driven the rental car across the state line into Indiana. Perhaps Bobby had died outside Illinois and therefore the murder did not fall within the jurisdiction of the Cook County court. But Darrow had already declared that he would not ask for a change of venue and Crowe, in any case, could still charge Leopold and Loeb with kidnapping, a capital offense in Illinois, and hope to obtain a hanging verdict.
Darrow chose none of these options. Nine years earlier, in an otherwise obscure case, Darrow had pleaded Russell Pethick guilty of the murder of a 27-year-old housewife and her infant son but had asked the court to mitigate the punishment on account of the defendant's mental illness. Now he would attempt the same strategy in the defense of Nathan Leopold and Richard Loeb. His clients were guilty of murdering Bobby Franks, he told Caverly. Nevertheless he wished the judge to consider three mitigating factors in determining their punishment: their age, their guilty plea and their mental condition.