he bar at his first trial the State had never
had any opportunity, through an examination by its physicians, to learn
what his present condition was or past mental condition had been. The
accused, on the other hand, had had over six months to prepare his
defence and had fully availed himself of the time to submit to the most
exhaustive examinations on the part of his own experts. The defendant's
physicians came to court brimming with facts to which they could
testify; while the State's experts had only the barren opportunity for
determining the defendant's condition afforded by observing him daily in
the court room and hearing what Thaw's own doctors claimed that they
had discovered. There was no chance to rebut anything which the latter
alleged that they had observed, and their testimony, save in so far as
it was inconsistent or contradictory in itself, remained irrefutable.

There is probably no procedure which would be held constitutional
whereby a compulsory examination of the accused could be had upon the
mere application of the prosecuting authorities; but as a commission may
generally be appointed at any time after an accused has been indicted
if he "appears" to the court to be "insane," and as it is usually within
the power of the District Attorney where such is the case to bring
sufficient evidence of it to the attention of the court before the
prisoner is brought to trial, little time is actually lost and justice
is rarely defeated except in those cases (such as Thaw's) where an
attempt is to be made to prove the accused insane at the time of the
alleged crime although sane at the time of trial. Even here it would be
the simplest thing in the world to remedy the difficulty and the proper
legal steps in all jurisdictions should be taken immediately.

The two chief objects of such reforms should be, first, to relieve the
ordinary jury in as many cases as possible from the necessity of passing
upon the delicate issue of a defendant's mental condition at a previous
time, and second, where this may not be avoided, to make their task as
easy as possible by providing (a) a more scientific and definite test of
legal responsibility and (b) an opportunity for adequate examination of
defendants availing themselves of this defence.

This last and most practical reform can be easily secured by a slight
alteration in the New York Code of Criminal Procedure, which already
provides both for the entering of the specific plea