“I do, therefore, in pursuance of the statute in such cases made and provided, hereby appoint Morgan J. O’Brien, Peter B. Olney and Leopold Putzel, M. D., three disinterested persons, a commission forthwith to examine into the mental condition of said Harry K. Thaw, and to report to the court with all convenient speed the facts and their opinion as to whether at the time of such examination the said Harry K. Thaw was in such a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of rightly understanding his own condition, the nature of the charges against him, and of conducting his defense in a rational manner.”
The task of announcing the decision of the court to Thaw was allotted to his wife, who tearfully accepted it. Messrs. Hartridge and O’Reilly went with Mrs. Evelyn Thaw to the Tombs and there in the hospital ward they met the prisoner. This ward had been placed at their disposal because of the crowd in the usual consultation room. Thaw was cheerful.
“It is all right, dearie,” he said to his wife, “I am not afraid of a commission. I am a sane man now; just as sane as the judge himself, and I am sure that any fair-minded commission will so declare me.”
The attorneys quickly withdrew from the conference and Thaw and his wife sat for a long time together discussing what the commission probably would do. When Mr. Hartridge came out he declared:
“The fortitude of the boy [meaning Thaw] astonishes me sometimes, and it certainly did today.”
Later in the afternoon Thaw sent out a statement, in which he said:
“Everything is perfectly satisfactory to me. I am sure I will be able to satisfy the commission that I am sane at the present time. Anything Justice Fitzgerald does is all right. He has always acted in a fair and impartial manner.”
The brothers of the defendant did not go to the Tombs, but hurried uptown with the news of the commission to their mother and sisters, who were waiting in their apartments. Thaw had divined the result of the conference with Justice Fitzgerald and was not in the least surprised.
The personnel of the commission lent a new distinction to the already notable case.
Morgan J. O’Brien, a former justice of the Appellate division of the Supreme Court, was one of the trustees, with Grover Cleveland, of the Hyde stock in the Equitable Life Assurance Society purchased by Thomas F. Ryan just prior to the insurance investigation. When he was a candidate for re-election to the bench in 1901 as a Democrat, Justice O’Brien was unopposed. President Roosevelt made a trip from Washington to Oyster Bay to cast his ballot for him.