Insanity and the Law, Part I: The Strange Case of Ezra Pound

Arnold & Porter Article

Another interesting case involving public attitudes toward the defense of insanity was the strange case of the noted poet Ezra Pound. When the United States entered the Second World War, Ezra Pound was living in Italy with his wife. He became obsessed with the grandiose idea that the entry of the United States into the war was a conspiracy between President Roosevelt and the Jews in violation of the United States Constitution, and that it was his duty to defend the Constitution. In this frame of mind he made a number of broadcasts during the war for the Italian government which were hostile to the United States in tone but generally unintelligible. Indeed, so unintelligible were they that the Italians took him off the air because they were afraid that he was giving signals to the American troops in some sort of poetic code. He was arrested when the Americans occupied Italy, and for a while, according to his story, he was put in an iron cage with a light shining on him day and night.

He was returned to this country and indicted for treason on November 26, 1945. In December a board of psychiatrists appointed by the court gave their unanimous opinion that the defendant was mentally unfit to advise properly with counsel or to participate intelligibly in his own defense. On the basis of this testimony the trial court held that Pound was mentally unfit, as of the date of the trial. No one could testify with any certainty as to what his mental condition was at the date of his alleged treason some years before. Pound was committed to the criminal ward of St. Elizabeths Hospital in Washington, D.C., to receive treatment until he might become mentally competent to stand trial.

It soon became apparent to the staff of St. Elizabeths that from a point of view of ability to co-operate with his counsel Pound was incurably insane. Had he been tried, he would have insisted on testifying that America's entry into the war was a conspiracy between Roosevelt and the Jews and that in opposing such a war over the Italian broadcasting system he was saving our Constitution. From the point of view of the philosophical morality of our judicial system, it would have been an injustice to Pound to try him until psychological therapy had cured him of these delusions so that he would not have insisted on testifying against himself.

Yet the philosophical morality that saved Pound from a criminal trial was of little advantage to him so far as confinement was concerned. Had he been tried, his testimony, together with the unintelligible nature of his broadcasts, might have convinced the jury that-insane or not-he did not have the requisite intent to commit treason. Or, if the jury did convict him under these peculiar circumstances, he certainly would not have been given the sentence that he actually served.

To the increasing horror of the literary world here and abroad, Pound was detained in the criminal ward of St. Elizabeths for thirteen years. I seriously doubt if anyone in the Department of Justice wanted to keep him there. But there seemed no way of getting him out. The fact that he was too mentally ill to be tried was not a reason for releasing him, because this had nothing to do with whether he was insane at the time of the offense. He could not be pardoned, because he was not convicted of any offense and there was nothing to pardon him for. He could not be tried and acquitted on the ground of insanity, because he refused to make that defense and, insane or not, the Supreme Court had held that he could not be forced to. It is my own opinion that had Mrs. Pound, acting as Pound's guardian, asked for habeas corpus on the ground that it was absurd to confine Pound for life because he could not be tried, she might have succeeded, though this had been tried once, and failed, in the lower court. So there was no way in conformity with the philosophical legal logic of the situation to release Pound except for the prosecution to dismiss the indictment.

But such voluntary action on the part of the Department of Justice involved the risk of damage to the image of the department. It might have been considered by the public as an attempt to release a traitor just because he happened to be a great poet. It would have been inconsistent with the policy of former attorneys general who had insisted on keeping Pound in confinement.

Pound's continued incarceration cast a stigma on the American system of justice in the eyes of the world. During his incarceration he won a distinguished prize, conferred on him by the Library of Congress, for a new volume of poetry. Many distinguished writers were of the opinion that he was one of the best American poets. Petitions were submitted by scores of well-known writers and poets, among them Ernest Hemingway, Archibald MacLeish, and Carl Sandburg. Dag Hammarskjöld, the late Secretary-General of the United Nations, petitioned for his release. Richard Rovere wrote: "The main thing about Ezra Pound is that he is a poet of towering gifts and attainments. . . ."

The staff at St. Elizabeths was becoming increasingly sensitive to the situation. Pound had reached the age of seventy-two, and they thought with dismay of the world-wide protest that would occur if he died in confinement. In such a case a great poet accused of a serious crime would have served a life sentence simply because he was too insane to be tried. In addition, Pound was becoming an intolerable nuisance at St. Elizabeths, though this was hardly his fault. Since he was perfectly harmless, no security measures needed to be taken. He was permitted to hold court for his admirers from all over the world. At such sessions people with a reputation for hating Jews were particularly welcome. The situation had become ridiculous during the last six or seven years of his confinement.

Then Robert Frost stepped in. He was probably the only American poet who could have accomplished what he did. He was universally admired. He was a rock-ribbed conservative. He had come to be a great literary figure of the United States. His espousal of Pound's cause gave it a dignity sufficient to protect the government if it permitted him to be freed. Such protection could be afforded by few other distinguished authors or poets. In the eyes of a great many of the American public, authors and poets are queer ducks apt to be tainted with radicalism and not to be trusted with serious decisions involving the punishment for treason. Hammarskjöld did not make it any easier for the Department of Justice by his intervention. What right had a foreigner to interfere with our domestic affairs? But with Robert Frost it was different.

Frost instinctively knew the right political action to take. Instead of circulating another petition, he went directly to Sherman Adams, who had been his close friend for many years and who was at the time the most powerful figure in government next to the President of the United States. He convinced Adams that something had to be done about Pound. Adams was a man of courage and integrity, and I assert this in spite of the fact that he later became a victim of his own injudicious conduct. He conveyed Frost's views about Pound to the Attorney General.

When Frost was assured that something could and would be done, he asked Will Shafroth, then Deputy Director of the Administrative Office of the United States Courts, to get him an attorney.

Shafroth chose me, and I agreed. But there was a procedural difficulty that had not been cleared away. Mrs. Pound was Ezra Pound's guardian. I did not know whether she had an attorney, or whether she would desire my services. The agreement with Frost had been made on a weekend, and, before I could see her, Frost had, in good faith, told reporters, and the Sunday newspapers had carried the story, that I was representing Pound in the matter of his release from St. Elizabeths. I was worried that Mrs. Pound might consider it a deprivation of her constitutional right to be permitted to select her own attorney. But Mrs. Pound came to my office on Monday and expressed herself pleased with the arrangement for counsel Frost had made, though she did admit she was a bit startled when she learned for the first time through the press that I was representing her.

As I have indicated, the only way to liberate Pound without offending the logic of the law was to dismiss the indictment. This the Attorney General declined to do, for understandable reasons. To take affirmative action liberating a man who had broadcast against the United States in time of war, and who in addition was a notorious anti-Semite, would have put the Department of Justice under sharp attack. But I had gathered from Frost that while the Attorney General would not affirmatively dismiss the indictment, he would not oppose a motion to dismiss it if I made it.

The difficulty was that Mrs. Pound, as the guardian of her husband, had no standing to move to dismiss the indictment on any other ground than that the document itself was defective, which, of course, it was not. In fact, defendant Pound's motion to dismiss his own indictment was not based on any legal ground, but only on the general principle that the situation had become ridiculous. The court had no jurisdiction over such a motion. Therefore, I asked the Department of Justice what position it would take if I filed a motion to dismiss. The department said it was not in a position to give me any information. Though I was not given its reason for refusing to state what would be done with respect to my motion, it was easy to figure it out. The case was too well known for the department to put itself in the position of making advance deals or doing anything that looked like an advance deal. Yet it would be most embarrassing to me if I filed a motion to dismiss and the department objected. The court would instantly deny the motion on the ground of lack of jurisdiction, and I would appear before the public as ignorant of ordinary criminal procedure. Still, I had to take the chance and file my motion.

I supported the motion with an affidavit from Dr. Winfred Overholser, Superintendent of St. Elizabeths, saying that Pound was insane and could never be in a position to stand trial, and that he would not be dangerous if released. I also prepared a statement for Robert Frost. Frost read it and said he wanted to do his own. He then quickly wrote out the following, which I consider a gem:

I am here to register my admiration for a government that can rouse in conscience to a case like this. Relief seems in sight for many of us besides the Ezra Pound in question and his faithful wife. He has countless admirers the world over who will rejoice in the news that he has hopes of freedom. I append a page or so of what they have been saying lately about him and his predicament. I myself speak as much in the general interest as in his. And I feel authorized to speak very specially for my friends, Archibald MacLeish, Ernest Hemingway and T. S. Eliot. None of us can bear the disgrace of our letting Ezra Pound come to his end where he is. It would leave too woeful a story in American literature. He went very wrong-headed in his egotism, but he insists it was from patriotism--love of America. He has never admitted that he went over to the enemy any more than the writers at home who have despaired of the Republic. I hate such nonsense and can only listen to it as an evidence of mental disorder. But mental disorder is what we are considering. I rest the case on Dr. Overholser's pronouncement that Ezra Pound is not too dangerous to go free in his wife's care, and too insane ever to be tried-a very nice discrimination.

Mr. Thurman Arnold admirably put this problem of a sick man being held too long in prison to see if he won't get well enough to be tried for a prison offense. There is probably legal precedent to help toward a solution of the problem. But I should think it would have to be reached more by magnanimity than by logic and it is chiefly on magnanimity I am counting. I can see how the Department of Justice would hesitate in the matter from fear of looking more just to a great poet than it would be to a mere nobody. The bigger the Department the longer it might have to take thinking things through.

In addition to these, I filed statements from a large number of men of literary prominence to the effect that Pound was a great poet and it would be a national disgrace if he were to die in confinement. Technically, none of these laudatory remarks or appeals to the sympathy of the court could properly be put in evidence. Had counsel for the Department of Justice objected, they could not have been read.

Judge Bolitha Laws heard the motion. Since it was a criminal proceeding, it was necessary for Pound to be in the courtroom. I was afraid that he might rise and object to an order releasing him on the ground that he was incurably insane. But he was so pleased by the complimentary statements of the leading literary figures at home and abroad that I do not believe he paid any attention to anything else that went on. When I had completed my statement, the attorney for the Department of Justice rose and announced that he did not oppose the motion. Judge Laws was troubled about his jurisdiction in the absence of an affirmative motion on the part of the Attorney General. He said, "Failure to oppose is not enough. Do you consent?" Counsel for the department thereupon consented. Thus my motion to dismiss became in a backhanded way a motion to dismiss by the prosecution, and the court granted it.

Pound and his wife left the courtroom with his confidence in his own sanity undiminished and happy in the belief that he was being released on the sole ground that he was a great poet.

By this curious procedure the conflicting political, moral, and logical values that the case represented were resolved by a public ceremony. The Department of Justice escaped the charge that it had taken affirmative action to release a traitor on the ground that he was a great poet. The proceeding had the blessing of that admired literary figure Robert Frost. At the same time, it had the judicial sanction of a decision by a judge on the evidence. A simple motion to dismiss on the part of the Department of Justice would not have embodied these values. And as for Pound himself, the tribute of internationally known artists and writers and the editorials acclaiming his release were perhaps worth waiting for, although he declined to admit it at the time.

The case illustrates how many important moral values are symbolized by the miracle play of a criminal trial. There is the idea that if crime is the result of mental illness the defendant should be sent to a hospital to be cured rather than to a penitentiary to be punished. There is the notion that even if a man is insane, he cannot be forced into hospital confinement if he refuses to plead insanity, even if his refusal is a result of mental disease. There is the idea that psychiatrists can study mental symptoms and determine whether a crime is the result of insanity or the result of the exercise of free will on the part of a mentally disturbed person.

From a realistic point of view a trial cannot be a product of exact logical analysis, but the dignity of the law requires that it appear to be.

This article is taken from Thurman Arnold's memoirs, entitled Fair Fights and Foul.

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