For The Thrill Of It Part 13

Caverly conferred with the attorneys. He would begin the hearing on Darrow's motion-to consider evidence in mitigation of punishment-in two days, on Wednesday, 23 July.10 Benjamin Bachrach rose to speak. The psychiatrists for the defense-"men of science, of high standing, well known," he began-had investigated the mental condition of Nathan Leopold and Richard Loeb and would report their findings to the court as evidence in mitigation of the punishment. He understood that the prosecution had also hired psychiatrists to rebut and answer the defense presentation. Would it not be better, Bachrach asked, for defense and prosecution to present a joint report on the mental condition of the defendants?

Psychiatric evidence was typically submitted in a partisan manner, with the psychiatrists on one side contradicting those on the other side, and, as a consequence, "the ordinary hearing of insanity in criminal trials," Bachrach continued, "is much in the nature of a vaudeville show. It looks like high-cla.s.s arguments, bickerings, denials, one set of alienists say one thing, another set of alienists say another thing." It brought disrepute on everyone involved. Each set of psychiatrists impugned the honesty of the other; psychiatry was regarded by the public as a laughingstock, less a serious science than an exercise in charlatanism and buffoonery, and the attorneys-never reluctant to purchase testimony from expert witnesses to say whatever served their purpose-were d.a.m.ned in the public eye as corrupt and venal.

A joint report by both sets of psychiatrists not only would save everyone the customary embarra.s.sment that accompanied such proceedings but would ensure that the salacious details of the relations.h.i.+p between Nathan and Richard would not appear in the newspapers. Before the hearing begins, Bachrach explained, there must be "a joint conference of the alienists of the defendants and the state..."

"Now, just a minute," Robert Crowe interrupted.

"Well, before..."

"Just a moment," Crowe interrupted again. "Is there a plea of guilty entered here by two sane men or is the defense entering a plea of guilty by two insane men?..."

"Now, I ask counsel not to interrupt until I finish..."

"I know, but what I want to know is whether the contention is here the boys are sane or insane?"

Crowe's implication was obvious. The defendants had pleaded guilty. By their plea they admitted responsibility for their actions. If they admitted responsibility, they admitted their sanity. Why would the defense present evidence on their mental condition if the defendants had admitted their sanity?

"I am not to be sidetracked," Bachrach replied testily, glancing across the aisle to look at Crowe, "we ask counsel for the other side to a.s.sume that we are in good faith.... What we desire to do is to determine the degree of mental responsibility of the defendants. When the court hears all of the evidence it is his duty to fix the penalty. I think it comes with bad grace for the state's attorney to try to shut me off at this time.... What these alienists that we have talked to want to do is to meet with the alienists of the state and talk it over with them and see if they can iron out whatever differences there may be among them. Maybe our alienists will be won over to their side; maybe it will be the other way, but at any rate they want to present a joint matter."11 It seemed a futile proposal, which Crowe would certainly disdain. Crowe had nothing to gain and everything to lose. Any hint that the defendants were insane necessarily reduced their responsibility for the murder. And if the defense could argue that the defendants were insane, why, then they would be committed to the asylum. Crowe had boasted, again and again, that he had a hanging case. Why would he torpedo his own case by agreeing to a joint report on the defendants' mental condition and, by implication, conceding to the defense that Leopold and Loeb suffered from mental illness?

"Well, the court," Caverly interjected, "of course...has no power to require the state's attorney to do that."

And if anyone had any doubts about the matter, Crowe answered Bachrach's pet.i.tion with as definitive a statement as it was possible for him to make.

"The state's attorney," Crowe declared, "is in a position to prove by evidence beyond all reasonable doubt that these boys are not only guilty, but that they are absolutely sane under the law and should be hanged, and the state will introduce its evidence beginning Wednesday morning to that effect."

"All right," Caverly banged his gavel on the bench to conclude the proceedings. "We will suspend, gentlemen, then, until Wednesday morning at 10 o'clock. All be here promptly at ten."12

NATHAN AND R RICHARD, BACK INSIDE the Cook County jail, chatted with the reporters in an outside corridor. Richard was in a giddy mood. He had a sense of nervous relief, now that his first court appearance was behind him. How much coverage would they get in the evening newspapers, he wondered? Would they make the front page? the Cook County jail, chatted with the reporters in an outside corridor. Richard was in a giddy mood. He had a sense of nervous relief, now that his first court appearance was behind him. How much coverage would they get in the evening newspapers, he wondered? Would they make the front page?

A reporter for the Chicago Herald and Examiner Chicago Herald and Examiner asked if Darrow had surprised them by entering a guilty plea. Or had they known beforehand? asked if Darrow had surprised them by entering a guilty plea. Or had they known beforehand?

"We're not allowed to say," Nathan spoke rapidly, trying to cut Richard off before he said something foolish. "Ask us something else."

"I bet we're all over the front page," Richard gloated. His moment in the spotlight had left him light-headed-it had given him a sudden rush of adrenaline. "I wish I had the papers. There certainly was a commotion when Mr. Darrow moved to plead guilty..."

"Better not talk about that," Nathan interrupted, angrily.

"What is it that the judge says when it's all over," Richard continued. "The court finds you..."

"Shut up!"13

IN HIS OFFICE ON THE third floor of the Criminal Court Building, Robert Crowe insisted to the reporters that Darrow's plea would not save Nathan and Richard from the gallows. third floor of the Criminal Court Building, Robert Crowe insisted to the reporters that Darrow's plea would not save Nathan and Richard from the gallows.

"The fact that the two murderers have thrown themselves upon the mercy of the court does not in any way alleviate the enormity of the crime they committed."

Darrow's case was a contradiction in terms, Crowe argued. How could Darrow introduce psychiatric evidence showing insanity and simultaneously introduce a plea of guilty? An insane person did not know the difference between right and wrong, could not be responsible for his or her actions, and was therefore not guilty of the intent to commit a crime.

"The defense is not permitted to introduce any insanity testimony because the law states that a plea of guilty to a fact automatically presumes the defendant to be sane.... For the defense to say they attempt to introduce alienists to testify regarding the mental condition of the two slayers would be going clearly outside the rules of evidence. There can be no insanity for a person who pleads guilty.... There is but one punishment which will satisfy the prosecution," Crowe concluded. "We will demand they be hanged."14 Clarence Darrow was in a reflective mood when he, too, met with the Chicago reporters after the adjournment. "I think we did the best thing we could for these two boys.... We have thrown ourselves upon the mercy of the court because I firmly believe that nowhere in this broad land could there be gotten together a fair-minded and impartial jury to try the case." There was no trickery about it, he insisted; there was no intent to have them released into society again. Most certainly they would spend the rest of their days in prison. The reporters repeated Crowe's a.s.sertion that the defense could not introduce psychiatric testimony, but Darrow was not concerned. If Crowe tried to prevent their testimony, the judge would a.s.suredly rule in favor of the defense. "We can go as far as we want to go with insanity evidence, and we probably will."15 [image]

22. THE DEFENSE TEAM. THE DEFENSE TEAM. The defense attorneys confer together before court convenes. From left: Walter Bachrach, Benjamin Bachrach, and Clarence Darrow. The defense attorneys confer together before court convenes. From left: Walter Bachrach, Benjamin Bachrach, and Clarence Darrow.

CROWE HAD PROMISED TO SPARE no effort in his crusade to send Leopold and Loeb to the gallows, and on Wednesday, 23 July, at the opening of the hearing, he began to make good on his promise. A large steel filing cabinet, its drawers locked and sealed, stood close to the wall on the right-hand side of the courtroom; it contained exhibits that Crowe intended to show in evidence to the court. In other respects, the scene was a replica of the proceedings two days earlier. Darrow and Benjamin Bachrach sat at the defense table on the left; Crowe and his a.s.sistants sat on the right. no effort in his crusade to send Leopold and Loeb to the gallows, and on Wednesday, 23 July, at the opening of the hearing, he began to make good on his promise. A large steel filing cabinet, its drawers locked and sealed, stood close to the wall on the right-hand side of the courtroom; it contained exhibits that Crowe intended to show in evidence to the court. In other respects, the scene was a replica of the proceedings two days earlier. Darrow and Benjamin Bachrach sat at the defense table on the left; Crowe and his a.s.sistants sat on the right.16 The bailiffs had opened the twelve high windows, and the long white curtains stirred in the morning breeze. It promised to be another stiflingly humid day. The sheriff, Peter Hoffman, had thoughtfully placed a large metallic fan on the judge's desk, facing the audience. It stood still, for the moment, but soon one of the bailiffs would reach forward to turn the switch and send its loud hum into the well of the courtroom.17 Flora Franks-her mouth turned downward, her eyes red from weeping, her lips pressed tightly together-took the stand. She glanced occasionally toward her husband, seated on the right, among the spectators, but averted her gaze from the other side of the court where Leopold and Loeb sat two rows behind the defense attorneys.18 Sympathy for the victim's mother seemed almost tangible-it hung heavy over the silent courtroom. Even Richard Loeb seemed regretful. There was a sorrowful expression on his face, and his demeanor was attentive. Nathan Leopold stared at the floor; he seemed too ashamed even to look at the witness.

Robert Crowe had decided to make it brief. He held up Bobby's brown shoes, then the black-and-white patterned sock that had fallen by the culvert. Flora Franks identified both items: yes, they had belonged to Bobby, and she also recognized the cla.s.s pin as well as the belt buckle that Crowe showed her.19 Later that morning, Jacob Franks took the stand. The old man stumbled slightly as he climbed the steps; he clasped and unclasped his hands nervously, gripping his fingers, as he waited for Joseph Savage, the a.s.sistant state's attorney, to begin asking questions. He, too, could identify Bobby's shoes, his stocking, belt buckle, and cla.s.s pin. He recalled his son's disappearance on May 21 and recounted waiting for the kidnapper to call with instructions for the ransom money.20 Thirteen more witnesses took the stand that day. Edwin Greshan, Bobby's uncle, described how he had identified the body at the morgue; Joseph Springer, the coroner's physician, explained the cause of death as asphyxiation and listed the bruises and scratches on Bobby's body. Employees at the Rent-A-Car Company told how Nathan took out the dark green w.i.l.l.ys-Knight; cas.h.i.+ers and tellers at the Hyde Park State Bank remembered Nathan opening a bank account in the name of Morton Ballard; and the clerks at the Morrison Hotel recalled that Richard Loeb had taken a room there.

In eight days, the state called eighty-two witnesses.

Clarence Darrow protested that this proceeding by the state was redundant: the facts were not in dispute; the defendants had confessed to the crime. Crowe had boasted of his intention to pile up the evidence to show the magnitude of the crime, its planning, and its premeditation; but, Darrow countered, there was only one reason to call so many witnesses. Crowe intended, Darrow continued, to whip up public opinion against the defendants and thus to create such a vengeful and vindictive atmosphere that Caverly would, despite himself, sentence Leopold and Loeb to death. Darrow appealed angrily to Caverly not to allow the state's attorney to proceed with his long list of witnesses: "the court should not permit for the pure purpose of rehearsing again to this community-to stir up anger and hatred-...details which have nothing to do with this case upon a plea of guilty and of which the community is already aware." It was, Darrow continued, nothing more than a "lurid painting in this courtroom...made for nothing excepting that a hoa.r.s.e cry of angry people may somehow reach these chambers."21 But even if Caverly had agreed with Darrow that Crowe intended to inflame the public with graphic testimony, he could not have done anything about it. The state had as much right as the defense to present its evidence. The state would present evidence in aggravation of punishment; the defense would then present evidence in mitigation.

WOULD THE DEFENSE CALL N NATHAN and Richard to the stand? The court had heard all the evidence from the state, and now, on Wednesday, 30 July, the defense was ready to present its witnesses. and Richard to the stand? The court had heard all the evidence from the state, and now, on Wednesday, 30 July, the defense was ready to present its witnesses.22 There was an air of expectation in the court. Either Nathan or Richard might sit in the witness box today; who could say? But the early-morning crowd gathered at the Criminal Court Building, waiting for the doors to open, knew that Clarence Darrow at least would be on the stage that day. Darrow had been largely silent during the presentation of the state's evidence during the past week. Since he did not dispute the facts and since he was reluctant to prolong the prosecution testimony any more than necessary, neither Darrow nor Benjamin Bachrach had bothered to cross-examine any of Crowe's witnesses. But now it was Darrow's turn and a throng of spectators had turned out to see the old lion perform.23 Darrow typically paid no attention to his wardrobe, but today he had made an effort. His hair no longer fell haphazardly across his forehead but had been slicked back into place. Ruby Darrow had sent out her husband's gray suit to be pressed; on this occasion there were no wrinkles or creases. She had also bought Clarence a new powder-blue s.h.i.+rt.24 Darrow was impatient to begin. He had listened to Crowe's witnesses for a week, occasionally grumbling at the redundancy of the proceedings, and now he was eager to present the defense testimony to the court.

The defense called William White to the stand. The psychiatrist took his place in the witness box. He carried a black leather briefcase in one hand, and as he sat down, he drew out some typewritten papers and placed the briefcase by his side. White wore a gray suit, tightly b.u.t.toned. He seemed aged, older than his fifty-four years; and his eyes burned with impatience-he was ready to begin.25 Walter Bachrach rose to his feet. Until now, he had deferred to Darrow and to his elder brother, Benjamin, but now, as the defense attorney with an expert knowledge of psychiatry and the law, he was about to take center stage.

"Will you please state your name?"

"Dr. William A. White."

"And your place of residence?"

"Was.h.i.+ngton, D.C."

"What is your profession?"

"Physician."

"What is your age, Doctor?"

"Fifty-four."

"Will you please state your professional connections, both present and past."

"Just a moment." Robert Crowe was on his feet, waving a paper in his hand. "I object to that, if your Honor please."

Caverly straightened his back and stiffened in his chair; he peered down from the bench at the state's attorney. "Why?"

"It is incompetent, irrelevant, and immaterial."

"Why?"

"The only purpose of it," Crowe explained, "would be to lay a foundation for him to testify as an expert on the question of the sanity or insanity of the defendants. On a plea of guilty your Honor has no right to go into that question. As soon as it appears in the trial, it is your Honor's duty to call a jury."26 Crowe had seen his chance, and now he was ready to take it. Clarence Darrow had decided not to offer a defense. Darrow's clients had pleaded guilty. Yet here was a psychiatrist on the witness stand, about to argue that Leopold and Loeb were mentally ill. It was illegitimate, Crowe believed, for the defense to introduce insanity into the hearing. How could they plead guilty and simultaneously offer an insanity defense?

And, Crowe continued, the law contained no ambiguity on the matter. The Illinois supreme court had ruled that any decision on the sanity of a defendant must be heard before a jury-it could not be decided by a judge acting alone. Therefore, just as soon as the defense introduced psychiatric testimony, Crowe argued, the judge should dissolve the hearing and call a jury to determine the defendants' sanity.

"I want to be heard on that, your Honor," Crowe insisted, "because if there is any testimony introduced in this trial as to the mental condition of these boys, any act or any order that your Honor enters in the case is a nullity. In other words, if your Honor, at the conclusion of this trial, after having gone into the sanity proposition, should sentence these boys to hang, your judgment would not be worth the paper that it was written on. The Supreme court would set it aside."

Suppose Caverly allowed the defense to present evidence on the boys' mental condition without calling a jury. Then if Caverly subsequently sentenced them to death, Clarence Darrow would appeal the judgment to the Illinois supreme court, contending that the psychiatric evidence should have been presented to a jury.

Crowe stepped forward. He rapped the doc.u.ments table angrily with his knuckles. "What is the purpose of entering a plea of guilty and then maintaining that you have a defense and you have a right to hear it, when the law says that that defense has got to be decided by twelve men? What is the defense trying to do here?"27 Crowe's intent was clear. If he could persuade Caverly to call a jury, then the state would certainly be able to hang Leopold and Loeb.

Caverly listened patiently as the state's attorney continued to argue his case. He was willing to hear Crowe out, he said, but where were Crowe's authorities on the matter? Had the Illinois supreme court ruled, in fact, that psychiatric evidence should be heard before a jury and not before a judge? Were there any precedents?

"Have you," Caverly inquired, "got any authorities sustaining your position?"

"I have got the Geary case, your Honor."

"The Geary case isn't in point," Caverly replied. "I know the Geary case.... But that is not on all fours with this case. That was a trial for insanity, in which counsel waived the const.i.tutional rights of the defendant to a trial by jury, and the Supreme Court said, 'you must go back and try the insanity case with a jury.' There was no question about that."28 Robert Crowe had good reason to remember the trial of Eugene Geary. In July 1920, as a judge on the Criminal Court, Crowe had presided over the arraignment of Geary for murder. It had been a notorious case. The trial and subsequent appeals of Geary, one of Chicago's most violent and dangerous gangsters, had scandalized the public and created important precedents under Illinois law regarding the insanity defense.

On Thursday, 27 May 1920, at ten o'clock in the evening, Eugene (Gene) Geary, a gangland enforcer working for Maurice (Mossy) Enright, entered the Horn Palace Saloon at 4165 South Halsted Street. As he walked up to the bar, Geary almost collided with another man, Harry Reckas, who had been about to leave the saloon. Reckas had never seen Geary before, but as they pa.s.sed each other, their eyes met and they stared each other down. Reckas caught the smell of whiskey on the other man's breath-he was obviously drunk.

Geary spoke first; his voice was coldly menacing. "Who are you looking for?"

"n.o.body." Reckas gestured toward a friend standing by his side: "We are going home."

The bartender, David Ruse, sensed trouble; he moved cautiously up behind Geary and spoke quietly into his ear: "Gene, these men are friends.... You're not looking for them."

It was too late. Geary's hand reached for his weapon, the bartender ducked for cover, and the loud report of the gun echoed around the saloon as Reckas fell dead with a bullet through his left side.29 Geary had killed Reckas on behalf of Rex Bain, leader of a South Side whiskey ring. Geary had a notorious reputation as a hired gun: only six months earlier, he had killed a cabdriver, Leonard Tripple, in the Cadillac Cafe at 2134 South Wabash Avenue and had been charged with murder, but he had been acquitted.30 One week after the murder of Harry Reckas, detectives from the office of the state's attorney captured Geary in an apartment on the South Side. At his trial, later that year, the plea was not guilty by reason of insanity and his lawyers, Thomas Nash and Michael Ahern, spoke of his paranoia. He was syphilitic-he had had syphilis for nineteen years-and was an alcoholic who consumed copious quant.i.ties of gin and whiskey. Geary suffered from hallucinations: he saw sand flies and bugs crawling on his food. He never allowed anyone to turn off the lights if he was in the room, and he believed that drivers of yellow cabs were out to kill him.31 The jury was unmoved by his lawyers' plea and sentenced Geary to hang.

But Illinois law gave particular consideration to the const.i.tutional rights of the insane. The criminal code stipulated that if after conviction and a sentence of hanging, the prisoner were to become insane, the court should then postpone the punishment until the prisoner had regained his or her sanity.32 Since his conviction and sentencing, Geary had become ever more violent, fighting with other prisoners, threatening the guards, setting his mattress on fire, and attempting suicide.33 His lawyers pet.i.tioned for a sanity hearing. Geary had become insane, they argued, since his sentencing. He was ent.i.tled to a hearing to determine his mental condition. If he was indeed insane, the court should commit him to an asylum.34 Their pet.i.tion for a hearing was successful. On 19 May 1921, Charles McDonald, chief justice of the Criminal Court, announced the appointment of a commission of three psychiatrists-Archibald Church, Hugh Patrick, and Douglas Singer-to examine Geary to decide if he had become insane. Ten days later, the psychiatrists returned their verdict: Geary was sane. He would face the hangman's noose on 17 June.35 But now the Illinois supreme court intervened. It had not been legitimate, the court decided, for McDonald to have impaneled a commission of psychiatrists to decide on Geary's sanity. The statute was unambiguous: only a jury could rule whether a prisoner was sane or insane. McDonald's commission of three psychiatrists had no provision in law and therefore violated the prisoner's const.i.tutional right to appear before a jury: "he was ent.i.tled to a trial by a jury of the question whether or not he had become insane or lunatic after the original sentence of death.... A jury trial in such cases is imperative.... Such question, when so raised, cannot be legally tried otherwise."36 Geary was fortunate to have such resourceful lawyers. On 23 September 1921, a jury deliberated for less than an hour and declared that he was insane. Amazingly, he had escaped the hangman. The court committed him to the Illinois Asylum for Insane Criminals at Chester.37 The decision provoked outrage. The Illinois criminal code, with its many safeguards against the punishment of the insane, seemed to favor the murderer.

The editor of the Chicago Daily Tribune Chicago Daily Tribune denounced Geary as "one of the worst men who ever lived in Chicago and one of the most dangerous who possibly could be allowed at large." It was, he continued, a travesty of justice that such a notorious, cold-blooded killer should escape punishment: "Geary is not a gibbering idiot or a raving maniac.... Gene Geary should be hanged." denounced Geary as "one of the worst men who ever lived in Chicago and one of the most dangerous who possibly could be allowed at large." It was, he continued, a travesty of justice that such a notorious, cold-blooded killer should escape punishment: "Geary is not a gibbering idiot or a raving maniac.... Gene Geary should be hanged."38

The Geary case, Crowe explained, had established the precedent. Only a jury could decide the sanity or insanity of a defendant. If Caverly were to allow psychiatrists to testify to the mental condition of Leopold and Loeb, he would be usurping the role properly allotted to a jury. had established the precedent. Only a jury could decide the sanity or insanity of a defendant. If Caverly were to allow psychiatrists to testify to the mental condition of Leopold and Loeb, he would be usurping the role properly allotted to a jury.

Crowe had now finished giving the court the details of the Geary case and had completed reading the decision of the Illinois supreme court.

"Can language be more explicit, more mandatory and more direct than the language that I have just read?"

Crowe turned slightly, to his left, to indicate the defendants seated behind their attorneys. "But here is a cold-blooded murder, without a defense in fact, and they attempt, on a plea of guilty, to introduce an insanity defense before your Honor, and the statute says that is a matter that must be tried by a jury."

Caverly leaned forward to interrupt, gesturing toward the defense attorneys: "Has anybody said that they are going to introduce an insanity defense?"

"Well," Crowe answered, "what is the purpose of putting an expert on the stand?"

"They have a right to, in my opinion."

"Aren't they going into his mental condition?"

"Well, suppose they do?"

The court had not yet heard the psychiatric testimony, Caverly explained. Were the psychiatrists on the stand to show that Leopold and Loeb were insane? The court had not yet heard a single word of White's testimony, and until he heard the testimony, he could not determine what it would be. "The defense hasn't said they are going to put on alienists to show that these men are insane, and I don't think that they are going to attempt to show that they are insane."

"Well then what is the evidence for, what are they going to show?"

"You will have to listen to it."

Crowe remained obdurate. He intended to push his point as far as it would go. He repeated his contention: only a jury could hear testimony regarding mental illness.

"Will you cite one authority?" Caverly asked.

"I have cited, Your Honor, and I believe they are in point."

"The Geary case?"

"The Geary case and the statute itself, your Honor."

"If you are relying on the Geary case you might as well end the argument. The Court will overrule you...."

"Your Honor misses the real point. You have not the power to determine whether the evidence that has been introduced const.i.tutes insanity or not. Just as soon as evidence of a mental condition is brought in the case, that is a question, as the Courts have stated, peculiarly for a Jury."

"They never said it."

"We just read it to you," Crowe replied, exasperated that Caverly could be so obtuse.39 Caverly shrugged. He was not convinced, he answered. Clarence Darrow was not introducing psychiatric testimony in order to show that the defendants could not distinguish right from wrong and were thus insane; he was presenting the testimony to demonstrate that Leopold and Loeb suffered from a medical condition. The defense asked for mitigation on account of that medical condition.

And, in any case, Caverly asked, suppose he were to exclude the psychiatric testimony. Would the defense not then have grounds for appeal? The statutes mandated a judge to hear evidence from both sides, one in aggravation of the punishment, the other in mitigation.

Caverly indicated to the clerk of the court to pa.s.s him a copy of the Illinois statutes and began thumbing through the pages. He started reading from the criminal code.

"'It shall be the duty of the Court to examine witnesses as to the aggravation or mitigation of the offense.'" Caverly paused in his reading; he looked up from the book to address the state's attorney. "Now, then, under that wording of the statute...the Court permitted eighty witnesses to testify to every detail to show an aggravated murder; and after the State is through the defense come in and...they wish to put on certain evidence to show a mitigation of the crime. Now then, supposing I were to say no, and then should impose the extreme penalty. Would not the Supreme Court say that if the Court had listened to mitigating circ.u.mstances then he would not have imposed the death penalty?...Would not the Supreme Court say that I should have listened to what the defendants had to say rather than have made an arbitrary ruling and sentenced them to whatever it might be?"

Crowe had been hoist with his own petard. He had insisted on presenting testimony from eighty witnesses to persuade the judge to send the defendants to the gallows. How could he deny the defense the right to produce evidence that might reduce the punishment?