Lizzie

14: New Bedford —1893

“May it please the Court,” Robinson said, “it is not the question today whether in this court from time to time the proper and salutary rule may or may not have been departed from. Your Honors are to inquire today whether, if there have been any such departures, they have been rightly taken. I want to say that in a question of this great moment, where the life of this defendant is involved, this Court will not, I trust, take any possible chances resting upon passing decision made in the heat of a trial. We stand today upon the right of this defendant at this hour. And I should be unjust in my opinion of this Court if I did not know that whatever has been said or done upon so important a question as this one before us, that it would have no effect unless it had received the sanction of the highest judicial tribunal of the Commonwealth.

“Now, in order to ascertain where the defendant stands confronting the Commonwealth, we must not lose sight of the exact facts that are before this Court. I have taken the trouble to prepare a brief, a copy of which I now hand to the Court and to the counsel for the Government, presenting the facts — clearly, I hope, and correctly. Let us look those over, to see upon what ground we argue the question involved.

“First: these homicides were committed on August fourth, 1892.

“Second: the accusation of these crimes against the defendant was made by the Mayor and the City Marshal on August sixth, 1892, which was Saturday, the second day after the crimes were committed.

“Third: the defendant was kept under constant observation of the police during August sixth, 1892, and all days following until the conclusion of defendant’s testimony and arrest. And there I wish to amplify a little to say that the house was surrounded by the police of the city — we must assume, under the direction of the chief officer of the police force — and it appears also by the evidence that there was no time, day or night, when the eye of the police department was not on this defendant and on all other inmates of the house.

“Fourth: complaint was made and warrant placed in the hands of the city marshal on or before Monday, August eighth, 1892. Your Honors will see by the agreed statement of facts that complaint was duly made, charging her with the murder of these people, on the eighth of August, which was before she testified.

“Fifth: the defendant was summoned on or before August ninth, 1892, by subpoena, to appear and testify at the inquest.

“Sixth: before testifying, the defendant made request for counsel at the inquest, and said request was denied, and counsel were not present. Counsel for the Commonwealth — the district attorney — conducted her examination before the inquest. She alone, a woman three days unguided by her counsel, confronted with the district attorney, watched by the city marshal, surrounded by the police.

“Seventh: the defendant, before testifying, was not properly cautioned. That is agreed to.

“Eighth: before the defendant testified, it had been duly determined — by complaint made and warrant issued — that defendant had committed the crime of killing the two persons, the cause of whose death said inquest was held to ascertain. The significance of this is that, prior to her testifying, the fact was ascertained that a crime had been committed — in truth, that two crimes had been committed — so that the inquest was not to discover whether a crime had been committed or not, and its purpose was not to determine the fact of crime, but its use and power was devoted to extorting from this defendant something that could be used against her.

“See to what extent the Commonwealth, under the direction of the district attorney had gone. They had, under oath, sworn that she had done it and issued warrants for her arrest to the city marshal. And then, rather than to serve it and put her under the protection of the Constitution, they said, ‘We will take care of this in our pockets and we will find out what we can from this woman whom we have charged with committing murder. And if we can get anything from her, we will then put away that paper.’ Worse than burning a dress! ‘Put it away, and we will make up another paper later, against which proceeding the constitutional objection will not lie.’

“Now, I am aware that I am discussing a question of law now, and I am not talking to a jury. I trust that I may not have said more than I ought to say. If I do, it is the defendant that speaks to you, Your Honors, out of the fullness of her recognition and remembrance of what happened there in Fall River, out of a jealous regard for her right into which she was born.

“Ninth: the testimony of the defendant began on August ninth, 1892, and continued during August tenth and eleventh, 1892.

“Tenth: when the testimony of the defendant was concluded on the eleventh day of August, she was held, never allowed to depart, never free, always in fact a prisoner, and then arrested two hours later on a similar warrant. For convenience, somebody took care of the prior warrant — perhaps for the purpose of being able to say that she went later before the District Court upon a warrant which was issued subsequent to her testimony.

“I am bound to say, I hope with no unnecessary reflection, that this must have been with the knowledge of the law officer of the Commonwealth at that time in charge of the case. At all events, we must reasonably know that had the law officer advised against it, or directed otherwise, it would never have been done. So that, without its purpose being intended, it was in fact a colorable evasion of the law, and it might operate to deprive this defendant of the rights that are sacredly guaranteed to her in the constitution of this Commonwealth.

“We hear the Constitution of Massachusetts read, and it passes glibly over the tongue and in and out the ear, and until somebody finds necessity to plant his root upon that Constitution, he fails perhaps to recognize its strength and safety. Lizzie Borden stands upon that venerable instrument today, the Bill of Rights, and she reads in it, ‘No subject shall be compelled to accuse or furnish evidence against herself.’ What was written when Massachusetts was born. That was the instinct of the hour. That has been the spirit of our Commonwealth’s liberty ever since. Shall it be attempted by evasion to circumvent it or to overreach a defendant? And when the Constitution of the United States was drawn, in ran a similar phrase upon this point: ‘No person shall be compelled in any criminal case to be a witness against himself.’

“The shield of the state and the shield of the nation are her protection in this hour. If I have given the Court emphasis on it, it is hers rather than mine. I stand by these rights which are hers by the Constitution, and to depart from their preservation will be peril, not alone to her, but to everybody hereafter who may be placed in a similar position, and who may desire to find the Constitution his protection.”

He stared in silence at the bench for a moment, and then walked back to where Jennings and Adams sat at the defense table. Jennings nodded almost imperceptibly. At the table beside them, Moody studied a sheet of paper Knowlton handed him, put the paper down and then rose and approached the bench.

“May it please Your Honors,” he said, “I have very little to say in reply. I could not help being reminded — as I heard what my friend is pleased to term his argument — a remark of a French general on the charge of the Light Brigade, which I may make suitable to this occasion. I say of the argument generally, ‘It is magnificent, but it is not law.’

“I have been trying to find out throughout this discussion precisely what the learned counsel means. And so far as I can understand his position, it is that Lizzie Borden’s testimony at the inquest is not admissible because it is not admissible. And that declaration is surrounded by a good many vocal gymnastics and fireworks, but so far as any statement of law or citation of opinion upon this question is concerned, I have not seen any. There is not, if I have followed the argument correctly, a single case cited anywhere of an exclusion of such declarations of this sort unless it was when a person testifying at the time was actually under arrest. Not a single case.

“Let us go back a moment to the date of this inquest in order to understand exactly the position of the facts. These two people, Mr. and Mrs. Borden, had been murdered in their house by someone. That, I agree, was a matter so clear that it did not require an inquest to determine. Our statutes then required certain things to be done.

“The first step was the view and personal inquiry of the medical examiner. If he then should be of opinion that the death was caused by violence, he has done his duty. Then the matter, by his report, is referred to the District Court or the district attorney for investigation. Not whether there was a death by violence — because the medical examiner determines that — but, assuming that to be true, how was that violence committed, and by whom? And all the eloquence that has been wasted upon that subject depends entirely upon a misunderstanding of the law.

“It was the duty of the Court to do that very thing, to inquire whether this was a death by violence, whether it was a death of violence by human design, when the death occurred, by whom it occurred. And in doing that very thing, the Court was performing the duty which was imposed upon it by the law of this Commonwealth.

“Now then, a step further. Lizzie Borden is summoned. She appears. She appears by counsel learned in the law — friend and counsel both, I may say. A counsel, at least, in whom she well might place great confidence. Counsel asks the privilege of being present at the inquest. It is entirely beyond precedent in this Commonwealth, and the district attorney and the Court — in accordance with almost unbroken precedent — declined that privilege. Declined it because the law expressly gives them the power to decline it. She is there. She is not cautioned before the magistrate, but her counsel is told before she goes in to testify that he may confer with her in respect to her rights as a witness, and the stipulation says that he then did confer with her.

“Now we are looking at the substance of the thing. At the common sense of the thing. And the substance and the common sense of the thing is, Your Honors, that a caution delivered by her friend and counsel without the surroundings of the Court, without her being in the presence of strangers, would be very much more effectual to inform her of her full rights than any caution by the magistrate or the district attorney could be. And Your Honors can have no doubt that the reason why the caution was omitted at the beginning of her testimony was because that subject had been thoroughly talked over between counsel and client, and she knew and understood her rights.

“And after she’d had the opportunity of talking with her counsel, after — and I think if we can presume some things about the district attorney, we can presume some things about as learned a lawyer as brother Jennings is. And we can presume that he informed her that she would have the right to decline to testify upon a single ground, otherwise she must be obliged to go in there and testify what she knew about the matter. She could only decline to testify upon the ground that it would incriminate herself.

“And can Your Honors have any doubt that after she had talked with Mr. Jennings in reference to her rights thereto, that she went in with a full consciousness that she had a right to decline at the beginning, at the middle, or at the end? And that when she went in there, she testified as a voluntary witness in every possible sense of the word, legal or otherwise?

“What, precisely, does this word voluntary mean? It means this: if a witness, having the privilege to decline to answer upon the constitutional ground that it will tend to incriminate him, does not exercise that right of declination, and testifies, then the testimony is voluntary within the meaning of the law. And in that point of view, there was nothing that occurred here that was not voluntary.

“I do not think there is anything else upon this subject in which in any respect I could aid Your Honors. I say that as there is no case to be found, none has been cited, anywhere over the length and breadth of this land or in England, as to an exclusion of the testimony Lizzie Andrew Borden gave at the inquest in Fall River, it should be admitted.”

Moody went back to sit beside Knowlton. The three justices carried on a hushed conversation for what seemed an extraordinarily long time. Robinson felt suddenly hotter than the heat of the day warranted.

He had been successful in convincing the judges that whatever Anna Borden planned to say about Lizzie’s chance com-merits on the voyage home from Europe should be excluded from the trial. He had been equally successful in arguing that Eli Bence, the druggist, should not be allowed to testify about her alleged attempt to buy poison on the day preceding the murders. But in comparison to the issue now before them, those other two were insignificant.

After scrutinizing the transcript made at the inquest, he had known for certain that Lizzie’s testimony — especially that concerning her whereabouts at the time of her father’s murder — was damaging in the extreme. He had carefully prepared the jury for the possible admission of the inquest testimony, questioning Dr. Bowen repeatedly about the drugs he had prescribed — morphine, no less! — for Lizzie in the days preceding the inquest. But he did not know whether this preparation would be enough to convince the jury that in her drugged state she had become confused by Knowlton’s questions, contradicting herself repeatedly, losing track of what she had earlier told him, spinning a web that would at best appear deceitful. He simply did not know. And so he waited nervously for the judges’ decision, hoping against hope that they would refuse to admit the inquest testimony, for if they did, he suspected all was lost.

Chief Justice Mason cleared his throat.

“The propriety of examining the prisoner at the inquest,” he said, “and of all that occurred in connection therewith, is entirely distinct from the question of the admissibility of her statements in that examination. It is with the latter question only that this Court has to deal.

“The common law regards this species of evidence with distrust. Statements made by one accused of crime are admissible against him only when it is affirmatively established that they were voluntarily made. It has been held that statements of an accused — as a witness under oath, at an inquest before he had been arrested or charged with the crime under investigation — may be voluntary and admissible against him in his subsequent trial. And the mere fact that, at the time of his testimony at the inquest, he was aware that he was suspected of the crime, does not make them otherwise.

“But we are of opinion, both upon principle and authority, that if the accused was at the time of such testimony under arrest, charged with the crime in question, the statements so made are not voluntary, and are inadmissible at the trial.

“The common law regards substance more than form. The principle involved cannot be evaded by avoiding the form of arrest if the witness at the time of such testimony is practically in custody. From the agreed facts and the facts otherwise in evidence, it is plain that Lizzie Borden at the time of her testimony was, so far as related to this question, as effectually in custody as if the formal precept had been served.

“Arid without dwelling on other circumstances which distinguish the facts of this case from those of cases on which the government relies, we are all of opinion that this consideration is decisive, and the evidence is excluded from this trial.”

Could she now begin to believe that what she read in the newspapers reflected a gradually changing tone? Could she further assume that this seemingly new bias in her favor was something shared by the jury? If experienced reporters from newspapers everywhere were beginning to be swayed by the inexorable flow of testimony in this courtroom, was it not possible that a jury composed largely of farmers, simple men all, were similarly being persuaded of her innocence?

The reporter for the New York Times had written:

Even (he Baltimore Sun, which had published that hateful word-portrait of her (or so it had seemed at the time), now appeared to have softened its posture somewhat. Only yesterday, she had read:

Could she now dare to hope?

“When did you next receive anything, Professor Wood?”

I received from Medical Examiner Dolan the claw-hammer hatchet — that large hatchet which has been known as the claw-hammer hatchet.

Those two axes which have already been seen.

A large envelope containing three small envelopes, one labeled “The hair of Mrs. A. J. Borden, 8/7/92, 12: 10 P. M.”; the other labeled “Hair from A. J. Borden, 8/7/92, 12: 14 P. M.”; and the third labeled “Hair taken from hatchet.”

The envelope marked “Hair taken from hatchet” contained when I opened it two pieces of paper. This one, which was sealed and which contained a short hair — it does not now, it is empty now, but that is the paper in which the hair was enclosed — contained a short hair one inch long and containing both the root and the point of the hair. And when they had been examined under the microscope, it was seen to consist almost entirely of the central medullary cavity, which is unlike human hair, and it had a red brown pigment, and it is more similar to a cow’s hair than any other animal hair I have ever examined. It is sealed between those two glasses and can be readily seen if the glass is placed on a piece of paper.

It is animal hair, there is no question of that, and probably cow hair.

The envelope also contained a piece of paper which I examined very carefully without removing it from the envelope, and then I have examined with a lens every part of the inside of the envelope without finding any hair. It is marked “Hair placed here 1:57 P. M., 8/7/92,” and it contains only a mucilage spot in the center. That is, I was unable to find any hair on it at all, and that cow’s hair is the only hair which I have had as coming from the hatchet.

I would state that on examination of that stain upon the edge of the hatchet, the cutting edge, I found a good deal of woolen fiber and cotton fiber. That is, in this rough stain right near the back part of the cutting edge, the beveled edge. It contained quite a number of fibers of cotton. Whether that was upon the other hair or not, I don’t know. I never saw but one hair, and that is the one sealed in the glass.

The hatchet had several stains upon it which appeared like bloodstains, both upon the handle and upon the side and upon the cutting edge.

I observed also that the handle of the hatchet did not set firmly or tightly into the hole of the head of the hatchet. That there was quite a large space, which can be seen now — as I have not disturbed the handle of the hatchet at all — can be seen at this part of the head. Quite a cavity between the handle and the iron of the head, both in front and at the back part.

Now all of the stains on the head of the hatchet were carefully tested.

There is one stain here which has been gotten on since, I see. It looks like an ink stain. That was not on. That was gotten on in court here, some way. It looks like an ink stain, I don’t know what it is, it wasn’t on before.

All of those stains I subjected to chemical tests and microscopic tests for the presence of blood, with absolutely negative results.

I was unable to detect any blood upon the claw-hammer hatchet.

Either on the handle or the blade.

The two axes I designated as ax A and ax B in order to distinguish them from each other, and marked those letters upon the end of the handle, so that I would know on referring to my notes which was which. The ax A had a good many stains which might, so far as appearance was concerned, or might not, have contained blood. This ax A has a large knothole in the front of the handle, which on examination with a glass contained some suspicious-looking spots, and it is easy to see a considerable amount of brownish-colored material staining the ax handle near the head.

Now that might or might not, so far as I could see or determine by inspection alone, have contained blood.

But the testing of the stains, both upon the head of the ax and the handle, showed them to be absolutely free of blood.

Precisely the same remarks may apply to the ax B. There was no blood upon either ax, and no blood on the claw-hammer hatchet.

Nor could the hatchet have been washed quickly so that traces of blood might not be found upon it. On account of those cavities in between the head and the handle. Also, the handle is quite rough and torn, ragged. And it will be noticed, too, that the handles of both these axes are exceedingly rough and do not fit into the iron head closely or accurately.

“Captain Desmond, upon the Monday following the murder, did you take part in any search at the Borden house?”

“I did, yes, sir.”

“Were you in command of the squad that went there to search?”

“I was, yes, sir.”

“What officers were present?”

“Connors, Medley, Quigley, Edson, myself and an outsider by the name of Charles H. Bryant, a mason.”

“You say, among others, Officer Medley was there?”

“He was.”

“I will call your attention to anything that Mr. Medley showed you during the process of the search in the cellar.”

“A small hatchet.”

“Did the hatchet which he brought you have any handle?”

“It had a small part in the iron. That is, it had been broken, and the wooden part had been left.”

“What do you say to this piece of iron and piece of wood?”

“I should say that it was the same thing that he showed me.”

“What did you do, Mr. Desmond, after he showed you this hatchet?”

“I looked it over, examined it quite closely.”

“Now will you describe everything about the hatchet? Take your own way of doing it, sir. Describe it as carefully as you can, as you saw it at the time.”

Well, it had been in some place which was not very clean. It was all dirty. That is, it was covered with a dust which was not of a fine nature. That is, it was too coarse to be called a fine — what I mean is, it wasn’t any sediment that might have collected on it from standing there any length of time. It was a loose, rough matter, which might be readily pushed off, or moved by pushing your finger on it.

The dust that we found in general throughout the cellar was nothing at all such as was on that hatchet. It was of a much finer nature, such as any sediment that would form in any cellar. Not the kind of dirt that was on that. This was a much coarser nature. This was a rough dirt here. I could take my finger and rub it off. I gave the hatchet to Officer Medley. I gave it to him wrapped in a newspaper. I got the paper from the water closet there, to do it up with.

“Well,” Robinson said, “here’s the hatchet,” and handed it to him. He went to the defense table, picked up a copy of that day’s Boston Globe, and carried it back to the witness box. “Won’t you wrap it up in about as large a piece of paper?”

“I shall have to get a full-sized newspaper to do it. Much larger than that, sir.”

“You got a piece out of the water closet?”

“Yes, sir.”

“Brown paper?”

“No, sir, regular newspaper. But a larger paper than that.”

“You wrapped it in a newspaper?”

“Yes, sir.”

“A very large newspaper?”

“Yes, quite a big newspaper.”

“Well, we won’t explore for a big one. But as large as that?”

“I think larger.”

“Larger than this Boston Globe?”

“Yes.”

“Well, lake that and give us the way you wrapped it up.”

Desmond opened the newspaper in his lap. He placed the hatchet head at one edge of it, and then rolled it into two sheets of paper.

“I wrapped it up in some such form as that,” he said, “and passed it to Officer Medley.”

“That is the way you did it?”

“Yes, sir.”

“Rolled it up like that and passed it to him?”

“Yes, sir.”

“Made as big a bundle as that, did it?”

“No, sir. Not so large as that.”

“It was a bigger newspaper?”

“Yes, it was larger. I don’t think there was two sheets.”

“Oh, a single folio paper.”

“Yes, sir.”

“You don’t remember what the newspaper was?”

“No, I don’t.”

“Mr. Medley, how long do you think you were in the cellar before you left with this hatchet wrapped up in paper?”

“I don’t think over a half hour.”

“You went right off after showing it to Captain Desmond?”

“Yes, sir. I took it down to the city marshal’s office. After I wrapped it in paper.”

For a moment, Lizzie thought Robinson had missed this. His face showed no expression of surprise, his back did not stiffen the way it had earlier when he’d heard unexpected and conflicting testimony. She almost reached out involuntarily as if to touch Robinson — where he stood too far away to touch — nudge him, alert him to what Medley had just said. It was Officer Medley who had earlier testified that he had seen no footprints on the barn loft floor. If his testimony now could be shown to be in direct contradiction to what Desmond had said, would not his story about the barn seem untrustworthy as well? She kept watching Robinson. He had heard, she realized, he had heard.

“You wrapped it in paper,” he said softly. There was no emphasis on the “you”. He delivered his words not as a question but as a statement, a simple repetition of what Medley had just told him.

“Yes, sir.”

“Where did you get your paper?”

Again no emphasis, the word “your” simply flowing unobtrusively into the rest of the sentence.

“In the basement.”

“A piece of newspaper?” Robinson asked.

“I think it was a piece of brown paper. I wouldn’t be sure as to that. It was a piece of paper, and that was all I remember surely.”

“You wrapped it up in a paper and folded it up,” Robinson said, walking back again to the defense table. Again he picked up the Boston Globe. “Perhaps you will illustrate how you folded it up in the paper.” He handed him the newspaper. “You won’t need the piece of wood,” he said, “just the hatchet head.”

“This is only as near as I can remember doing it,” Medley said.

“Well, that’s quite right, that’s all I have a right to ask you.”

Medley set the hatchet head in the exact center of the newspaper spread in his lap. He folded the page over it.

“I’m not very tidy at such things,” he said.

He folded the page again. He turned the partially wrapped hatchet head sidewards in his lap, and folded the newspaper over it several more times.

“Now that,” he said, “as near as I can think, is about how I did it. Then I put it in my pocket.” He looked down at the package. “Nothing stylish about the manner of wrapping it up,” he said.

“Well, I’m glad to find a man that’s not in style,” Robinson said. “Then you carried it off down to the police station?”

“Yes, sir.”

“Did you show it to any other officer?”

“Yes, I showed it to one officer as I was passing out. I can’t think now who it was. I had it in my pocket.”

“Side pocket?”

“Yes.”

“Did you wear a sack coat at the time?”

“Yes, sir. A cotton summer sack coat. Not like this one. It was a light-colored coat. And I showed him the hatchet head. I think I tore enough of the paper off, or something, to let him see what it was.”

“Did you state that you were a patrolman last year?”

“Yes, sir.”

“And are you now?”

“No, sir.”

“You’ve been promoted?”

“Yes, sir.”

“When?”

“In December.”

“Now, Lieutenant Edson, you participated in the search of the Borden house on Monday, August eighth, did you not?”

“I did.”

“Did you or any other party, to your knowledge, on that Monday take anything away from the house?”

“Yes, sir.”

“What did you take?”

“Officer Medley had a hatchet head in his pocket.”

“Did you see it?”

“He showed it to me partly.”

“Do you know where he got it?”

“I do not.”

“When did he show it to you?”

“Just as he was about to leave, he came to me and pulled it out of his pocket. It was in a paper.”

“It was wrapped in a paper?”

“Yes, sir.”

“You didn’t see it before that?”

“No, sir.”

“Did you examine it?”

“No, sir. Glanced at it, that’s all.”

“What did he do with it?”

“Went off with it. Away from the building.”

“It was only the small hatchet? Had no handle?”

“No handle.”

“And he didn’t have any handle in his possession, did he? That he showed to you?”

“No, sir.”

“You didn’t see any loose handle around there?”

“No, sir.”

“And you didn’t find one yourself?”

“No, sir.”

“Well, I don’t care for anything else. You spoke of being now lieutenant of police, and last August acting sergeant of police?”

“Yes, sir.”

“That is a promotion, I take it.”

“Yes, sir.”

“When were you promoted?”

“February, this year.”

“Has Captain Harrington been promoted?”

“Yes, sir.”

“Mr. Doherty?”

“Yes, sir.”

“What is Mr. Medley’s capacity now?”

“Inspector with rank of lieutenant.”

“Was he the same last year?”

“No, sir.”

“What was he last year?”

“Patrolman.”

“Anybody else of those that were around the Borden house that have been promoted?”

“Connors.”

“What was he, and what is he?”

“At that time, he was acting sergeant.”

“Now lieutenant?”

“Captain.”

“Go clear up by one promotion?”

“Yes, sir.”

“And of the others that you recall?”

“Desmond. Captain.”

“What was he last year?”

“At that time, he was acting captain.”

“Now he is captain?”

“Yes, sir.”

“Anybody else?”

“No, sir.”

“Has Mr. Mullaly been promoted?”

“No, sir.”

Lizzie smiled.

It was Mullaly who had surprised everyone earlier by testifying that he’d found a second piece of the hatchet handle in that box on the basement shelf.

My name is Francis W. Draper. I am by profession a physician. My medical education was in the Harvard Medical School in Boston. I have been in practice as a physician since 1869, now twenty-four years. I have been one of the medical examiners for Suffolk County since the office was created by the legislature in 1877. In that time, I have been called upon in a great many cases, nearly thirty-five hundred. All cases of suspicion, all cases of death, where a homicide was suspected or charged.

The first knowledge I had of this matter was the receipt of a dispatch at my home in Boston, which purported to be a telephone message from Dr. Dolan. I came down to Fall River the same day, but I did not at that time go with him to see the bodies. I arranged with him, and the next day — August eleventh — went to Oak Grove Cemetery and saw the bodies with him. At that time, I assisted at an autopsy of those bodies. I made an examination of the wounds upon the head of Mr. Borden, and I drew these marks upon the plaster cast as it is here. They are intended to be an accurate approximation of position and length. I will try to hold it, but I should like to refer to my notes as well.

“How many of the wounds,” Knowlton asked, “and which of them, penetrate the bone of the skull?”

“Four of them. The one which cut through the left eye, and the three in this vicinity, above and in front of the left ear.”

“How deep was the wound that went through the eye?”

“I don’t know, sir. Because it went through the bone behind the eye, and how deep it went into the brain, I don’t know.”

“How many of the others went into the bone of the skull, without going through?”

“Three of them, sir.”

“And which three of them?”

“These in the left temple.”

“The short one, and the two on each side there?”

“Yes, sir.”

“And the three that went through are the three there, and the one in the eye?”

“Yes, sir.”

“Is there anything in the nature or character of the wounds upon the head of Mrs. Borden that assists you in determining the size of the instrument or of the cutting edge of the instrument used to inflict the wounds?”

“No, sir.”

“Is there anything in the nature or character of the wounds upon the head of Mr. Borden which would so assist you?”

“There is.”

“Would the skull itself be of assistance in pointing out such things as occur to you to be important?”

“It would.”

“Then in that case, although I regret very much the necessity of doing it, I shall have to ask Dr. Dolan to produce it.”

He turned toward Robinson as the medical examiner came from the back of the courtroom, Andrew Borden’s skull in his hands.

“I understand it to be agreed,” he said, “without recalling Dr. Dolan to the stand, that this is the skull of Mr. Borden?”

Robinson nodded impatiently, lifting his hand and waggling it to assure agreement on this point. He was leaning over the back of his chair, in quiet conversation with his client. In a moment Knowlton saw Lizzie rise from her chair. The deputy sheriff rose at almost the same instant. There was a buzz in the courtroom as she made her way out, the deputy sheriff following. Knowlton turned back to the witness box.

“Now, Dr. Draper,” he said, “I will ask you whether from an examination of that skull, coupled with the observations of your autopsy, you are able to determine the length of the edge of the instrument which inflicted the wounds.”

“I believe I am, sir.”

“What do you say it is?”

“Three inches and one-half.”

“Will you tell us what it is that leads you to that conclusion?”

Draper reached into his bag and brought out a pie-shaped wedge. “This metallic plate of stiff tin,” he said, “is three and a half inches on its longer side.” He held the skull firmly in place on the railing of the witness box, and brought the piece of tin to it. “Adjusting it that way,” he said, “it fits in the wound in the base of the skull, cutting across the large arteries supplying the brain. It also rests against and cuts the surface of the upper portion, but takes in this edge and no more. I also found another wound in the skull which fits, but not so well. That shows, but not so well as the posterior wound, the same fact.”

“Are you able to say whether this hatchet head is capable of making those wounds?” Knowlton asked.

“I believe it is.”

“Have you attempted to fit that in the wounds?”

“I have seen the attempt made.”

“Will you do it yourself?”

“I will try.”

Knowlton handed him the hatchet head. The courtroom was suddenly quite still. The silence was not lost on Robinson. He turned immediately to the jury box.

“I shall have to ask you,” Knowlton said, “to point out to the jury — so that they can see it — the cutting edge to which you refer. And then, after you’ve done that, to show what you mean by the insertion of the three-and-a-half-inch piece of tin, and then by the insertion of the hatchet.”

“If I may go one step further in the demonstrations, I will say a four-inch plate does not go into either of those places.”

“Will you show us, so that the jury can see it, how that hatchet went in there?”

Robinson’s attention was on the jury. As Draper fitted the actual head of the hatchet into the wound he had earlier described, the eyes of each man in the jury box were fastened on that gleaming white skull.

“Now won’t you try the four-inch piece of tin?”

The attention of the jury was unwavering. Robinson turned to where Draper was now trying to insert the larger piece of tin into the same wound.

“I attempt to get this four-inch in,” Draper said, “and I cannot get it in, in any way, into that wound in the base. The same applies to the front, but not to the same degree.”

“Now, having shown what you desire to call attention to the jury, what do you say the cutting edge was of the instrument that caused the wound that you have described the borders of?”

“Three and a half inches.”

“Are there any other wounds, besides those, on which you can make any accurate determination as to the size of the cutting edge?”

“Not so far as I have studied the materials.”

“What in your opinion, doctor, was the cause of these wounds?”

“Blows upon the head with an edged instrument or weapon of considerable weight, supplied with a handle.”

“Would a hatchet be consistent with the description that you have given?”

“Yes, sir.”

“In your opinion, could the results you found have been produced by the use of an ordinary hatchet in the hands of a woman of ordinary strength?”

“In my opinion, they could, sir?”

Professor Wood was on the stand again when Lizzie came back into the courtroom, the deputy sheriff following her. Robinson turned to her as she took her customary seat behind him. Their eyes met. She could read nothing in those eyes.

“And who handed the hatchet head to you, professor?” Knowlton asked.

“City Marshal Hilliard.”

“Where?”

“In his office.”

“Is that the hatchet head?”

“Yes, sir...”

... it has been in my possession about all the time since. When I received this hatchet, this piece of handle was in the head in its proper position, this fractured end of the handle being close up to the iron. That is, it was in — in that relative position — so far as the upper and the lower end of the eye of the hatchet was concerned. This fractured end was just underneath or flush with the lower edge of the hole in the hatchet, of the eye of the hatchet as I have heard it called here.

When I received this hatchet, it contained more of a white film upon both sides than it does now. But it still contains — adherent tightly in little cavities here in the rusty surface, which can easily be seen with a small magnifying glass — white dirt, like ashes, which is tightly adherent and which have resisted all of the rubbing which this hatchet has had since it came into the courtroom. And it is still visible there and gives the side of the hatchet, as you can see, a very slight grayish appearance here in this round part.

That was far more marked on the hatchet on both sides when I first received it than it is at the present time.

And that coating there looks as if it might be ashes.

I don’t know.

I haven’t tested it to see whether it is ashes or not. I couldn’t do that. It might be any white dirt, so far as I could see, so far as I know.

The fractured ends of this bit of handle, the rough end, had a perfectly white, fresh look, and it was not stained as it is now. And these chips here, these two large chips from the side of this piece, and a little chip from this side also, had not been removed when I had it. When I drove the handle out from the eye, I placed the hatchet in a vise and drove this wood out.

And upon examination with a magnifying glass, that fractured end of the handle was perfectly clean. There was no dust or dirt, no fragments of dirt which could be seen in the angles in this fractured end by means of a magnifying glass. And they cannot be seen there today. It is as clean now, so far as coarse dirt is concerned, as it was then.

In soaking — in order to determine whether there had been any blood upon this handle between the hatchet head and the handle — I placed this to soak in water containing a little bit of iodide of potassium, which removes blood pigment in my experience better than water itself, and allowed it to soak there for several days.

But soaking that bit of wood in that solution darkened the fractured end somewhat so that it came out a darker color than it had been when I placed it in the solution. That’s probably due to some of the discoloring matter being soaked off from the outside and absorbed by the wood.

Then I tested that solution — after taking this piece of wood out of it — tested that solution for blood pigment by chemical tests which I need not detail, and found that there was no blood removed from the handle.

Both sides of the hatchet were uniformly rusty, as they are now. And it will be noticed that on the cutting edge here, there are a few smooth pieces in the rust, which I made myself by scraping the rust from the beveled edge. Those smooth spots were done by me in scraping the material with my knife for chemical testing, in order to determine whether there was any blood mixed with the iron rust or not.

There were also several suspicious spots upon the underside of the hatchet, one of which is plainly perceptible here, three-fourths of an inch from this little notch in the lower edge of the head.

That is a shiny spot which can be easily seen now, and which is not a bloodstain.

It is a stain of some varnish of some kind. There were several other reddish spots upon the side of the hatchet which might or might not contain blood, so far as I could determine by inspection, and which I proved not to be bloodstains.

“Professor Wood,” Knowlton asked, “what is your opinion as to the question whether this hatchet could have been used to inflict the wounds which you have heard described, and then subjected to any cleaning process to remove the traces of blood? As to whether or not you would be able to find them upon the hatchet?”

“We object to that question,” Adams said.

“He may answer.”

“Before the handle was broken,” Wood said. “Not after.”

“I think the question must be answered as put,” Adams said. “If it can be answered.”

“If by the question is meant the hatchet head as it is...”

“I beg pardon, Professor Wood,” Knowlton said. “I don’t think my brother has the right to catechize the witness yet.”

“I haven’t catechized him,” Adams said.

“Yes, but you were getting into a colloquy with him, which I do not think is proper. Mr. Stenographer, will you read the answer?”

“ ‘Before the handle was broken. Not after’.”

“That is to say,” Knowlton said, “the conditions I named could have existed before the handle was broken off. Why do you make that difference, professor?”

“All this goes in under objection,” Adams said. “May it please Your Honors.”

“Because it would be very hard to wash blood off that broken end,” Wood said. “It would be almost impossible to quickly wash blood out of that broken end. It might have been done by thorough cleansing, but that would also stain the fracture.”

“Mr. Seaver, in your capacity as a member of the State District Police Force, did you again go to the Borden house after your visit of Saturday, August sixth?”

“Yes, sir. With Dr. Dolan, the medical examiner.”

“When was that, Mr. Seaver?”

“My impression was it was the thirteenth.”

“Have you a memorandum of your observations?”

“Yes, sir.”

“When was it made?”

“It was made at that time. I made it on a paper at that house, at that day, and afterwards copied it into a book.”

“Would the memorandum assist you upon a matter of this sort?”

“Yes, sir.”

“Please consult it, and then state in your own way, without any questioning, what you found in reference to blood spots.”

“There were, on the mop board behind the head of the lounge in the sitting room, five small spots of blood. On the wall just above the head of the lounge, a little toward the kitchen door, we found a cluster of small blood spots, eighty-six in all, within a radius of eighteen inches in length by ten inches in width. On a frame and glass of a picture that hung over the lounge, there were forty blood spots, the highest spot being four feet and ten inches from the floor. The highest spot we found in the room...”

She knew she would faint again.

She had absented herself from the courtroom when they were about to show her father’s skull, but this now, this gruesome recitation...

“... kitchen door, a quarter of an inch from the south side of the...”

Her fingers tightened on the closed fan in her lap. The knuckles showed white where she gripped it. She kept her head bent, staring at the fan and at her own hand clutching it as Seaver went on and on, telling now of the blood he’d found in the room upstairs...

“... marble slab and dressing case, there were fifteen blood spots. On the upper drawer of the dressing case, we found four blood spots...”

She took a deep breath. She raised her eyes. One of the newspaper artists was observing her, his pencil moving busily.

“... faceboard of the bed was besmeared with blood...”

She loosened her fierce grip on the fan. She turned her attention to the witness. She would not faint again. She would not.

“... two blood spots between the dressing case and the window...”

Soon, it would be over.

Soon.

“Dr. Draper, if blood, fresh blood, were put upon metal similar to the head of a hatchet, in August, in our climate, on a hot day — would it dry quickly?”

“If it is a thin smear, it will dry quickly. If it is in any considerable quantity, it will take a very much longer time.”

“Does blood readily and quickly intermingle with the meshes of clothing and coarse substances like dirt or rust, or anything of that sort?”

“Certain kinds of clothing will absorb blood readily. Clothing of wool or felt will not.”

“Cotton clothing?”

“Cotton clothing will absorb the blood readily.”

“What do you say in respect to an instrument having rust upon it, and blood striking it and drying on? Would the blood readily intermingle with the rust?”

“I suppose it would.”

“And if it intermingled with the rust, would it easily wash off?”

“It would wash off less easily than if it were on a keen, dry blade.”

“Assuming that a metallic instrument like the head of one of these hatchets, in August, in our climate, and on a hot day in August, was smeared with blood at ten o’clock, and that the instrument had rust upon it at that time, and that it remained in that condition exposed to the air for an hour — would you expect that the blood would be well dried in with the rust upon that instrument?”

“I should think it likely in a dry day. In a day that was not as moist as today is.”

“A hot day, I put into my question.”

“A hot day, yes, sir.”

“And under those circumstances, it could not have been readily washed off, could it?”

“Answering as I did before, not so readily as with a bright surface or metallic, polished surface.”

“But I will ask you, whether under those circumstances, you would expect to get the blood off unless you got the rust off?”

“I think the blood would come off before the rust.”

“Before the rust?”

“Yes, sir.”

“Do you think it could be effectively removed so that there would be no trace that could be exposed by a subsequent chemical test?”

“I think so.”

“You have heard the testimony as to the position in which the body of Mrs. Borden was found?”

“I have, sir.”

“And taking that testimony, and the wounds as you observed them, did you form any opinion as to the position of the woman when she was assaulted?”

“I did, sir. I believe that the assailant in the case stood astride of the prostrate body of Mrs. Borden, as she was lying face downward on the floor.”

“As to all of the wounds?”

“As to all except the flat wound in the scalp on the left side of the head. I think that was given while Mrs. Borden was standing and facing her assailant.”

“From what you have heard of the testimony of how Mr. Borden’s body was found, are you able to state what his position was when assaulted?”

“I have an opinion on it, sir.”

“What is that?”

“That the assailant stood above the head of the sofa, above the head of Mr. Borden, and struck downward upon his head and face. I think he was lying on the sofa on his right side, with the face turned well toward the right, and the right cheek concealed in the pillow. I think all the blows could have been received with the body lying in that manner.”

“Can you tell what probable effect would be as to the diffusion or scatter of blood from the wounds of Mr. Borden?”

“Mere guess work, sir, in my mind.”

“Why so?”

“Because of the nature of the wounds.”

“Assuming that spots were seen upon the wall immediately over the head and a little to the front of Mr. Borden, in large number, eighty to a hundred; that spots were seen upon a picture upon the wall midway over the body to the extent of forty or fifty; that spots were seen upon the door which was in the general direction beyond his feet; and that other spots were seen upon the door which was in a general direction behind his head and between him and beyond the space where the assailant stood; in your opinion, would the assailant of necessity receive some spatters of blood upon his clothes or person?”

“I should think so.”

“What part of the person would have been spattered?”

“The part that was exposed, that was not covered either by furniture or by other protecting substances.”

“You have concurred, I believe, in the opinion expressed that the assailant of Mrs. Borden stood astride of her, or over her, when she was lying down.”

“That is to my mind the most natural position in which those blows were given.”

“And you have heard the testimony about the blood spots. That is to say, that there were many blood spots upon the drawers and the edges of the bureau to her left; that there were a few spots on the sham to her right and upon the upper part of the spread; and that there were some spots upon the mirror of the bureau and the marble of the bureau, quite large numbers. You have heard that?”

“I have heard it, yes, sir.”

“Taking into account those spots and the number of injuries that she received, and the appearances of the flowing of the blood there from these injuries, would not of necessity the assailant have been spattered with blood?”

“I should think so.”

“What portion of the body of the assailant, in your opinion, would have received those spatters?”

“I should think the front of the dress. Possibly the face. Possibly the hair.”

“When you say ‘dress’, you speak of the clothing worn by all sexes?”

“Yes.”

“Any other portion of the body?”

“Well, it is not incredible — it is not inconceivable — that some may have gone into the air and come down upon the back.”

“If the injuries had been made with a hatchet similar to the handleless hatchet, having a handle substantially a foot long, would not the assailant, standing in that position, of necessity, in giving the blows, been very near the head in bending over to the head of the assaulted?”

“That would be the natural position.”

“And in that situation, giving repeated blows, would not you expect it would follow that the upper portion — the head, the face, the hair of the assailant, assuming that it was not covered — would be spattered with blood?”

“That is reasonable.”

My name is David W. Cheever. I reside in Boston. I am a physician and surgeon, educated in the Harvard Medical School. I was also in Europe a little while, at the Medical School of Paris. I’ve been practicing for thirty-five years and have given attention a good deal of that time to surgery. I was also a demonstrator of anatomy in the Harvard Medical School, and have been a professor of surgery there since 1882. I am a member of the Massachusetts Medical Society, and have been connected with the City Hospital, as one of the surgeons, since 1864. I have been called upon to give my opinion in court in matters in my profession only moderately.

I have heard the testimony with references to the position and surroundings of the bodies as they were found, and the character and color of the blood and the heat of the bodies.

I have also heard Profesor Wood’s testimony, and that of Dr. Draper and Dr. Dolan.

As far as my own observations go, they have nothing at all to do with the plaster casts or the cuts, for I never saw the bodies. I was shown the skulls of Mr. and Mrs. Borden, and since then I have made a study of both of them. My own observation was confined to the injuries to the bones.

These indicated that they were made by a heavy, metallic weapon with a cutting edge beveled, with a sharp angle, and with the cutting edge not exceeding three and a half inches in length, and that it was attached to a lever or handle like a hatchet, or some such instrument as that.

I have also examined this hatchet head, and I think it could have caused the wounds I found.

The wounds do not require that the cutting edge should be any longer than three and a half inches — because the wounds could be made by slashing through the flesh — but most of the cuts would seem to show that the edge must have been nearly that length.

I do not think a very narrow hatchet would make them.

I say that it was a cutting edge of not more than three and a half inches because on examining the skull of Mr. Borden, I found that no wider edge than that would reach the carotid wound in the artery, or reach the later wound in the jaw.

Regarding Mrs. Borden’s body, I think all the wounds except three were inflicted when she was flat upon her face upon the floor.

I think this scalp wound was inflicted when the assailant was face to face with the victim. It seems to cut from the front; it failed to come out on the other side. My supposition is that when that blow was given, the victim started back, and the hatchet failed to go through, and it glanced.

The other two wounds could have been given in an awkward way, with the head in this position. They would have been more easily given with the person standing up.

Judging from the nature of the skull wounds, the sharpness of the instrument, the weight of it, the wounds of both Mr. Borden and Mrs. Borden, all the wounds could have been inflicted by a hatchet of ordinary size, wielded by a woman of ordinary strength. With a handle of sufficiently long leverage. I should think not less than twelve or fourteen inches.

“You would agree that there would be a great deal of effusion of blood in consequence of cutting the carotid artery?”

“It would depend upon the date of that blow with reference to the other injuries. If it was one of the last, or the last blow that was given, the victim might have been already nearly dead, and the circulation may have been very feeble, and the amount of blood poured out by the heart there may have been small compared to what it would have been if it had been first. It would depend somewhat on that. Usually, the blood from the internal carotid artery is very large and instantaneous.”

“Comes with a gush, doesn’t it?”

“Yes, sir.”

“And there are arteries in the head that spurt, are there not?”

“When they are cut into the air on the surface, they spurt.”

“And how much in distance do they spurt?”

“Four to six feet.”

“Is there in the head a temporal artery somewhere in the region where these injuries were disclosed upon the head of Mr. Borden?”

“Yes, sir. Two of the cuts there would go through it.”

“Would you expect a spurting from such cuts?”

“Yes, sir.”

“And a spurting of how much distance?”

“Extending several feet.”

“Would it throw drops?”

“A spray.”

“A spray of drops?”

“Yes, sir.”

“Do you perform any surgical operations in the course of your practice, doctor?”

“Yes, I have a good many.”

“And you perform many operations upon the head?”

“Yes, sir.”

“And when you perform an operation, do you ordinarily put on different outer clothing?”

“Yes, I do.”

“What does that consist of?”

“Usually a white linen jacket or a white linen gown, something of that kind.”

“Like a duster?”

“Like a long apron.”

“Anything else?”

“Sometimes an Indian-rubber apron also.”

“And what are those things put on for?”

“Partly to insure absolute cleanliness, and partly to protect my clothes.”

“From what?”

“From blood.”

“Miss Emma, did any of the members of your family have waterproofs?”

“Yes, we all had them.”

“What kind were they?”

“Mrs. Borden’s was a gossamer. Rubber.”

“That is, you mean rubber on the outside?”

“Yes, sir.”

“And black?”

“Yes, sir.”

“Where was that hanging?”

“I think she kept it in the little press at the foot of the front stairs. In the front hall.”

“Did Miss Lizzie have one, too?”

“Yes, sir.”

“Where did she keep hers?”

“In the clothespress at the top of the stairs.”

“Do you know where this waterproof of Miss Lizzie’s was on the day of the search?”

“Hanging in the clothespress that has been spoken of so often.”

“Do you know where it is now?”

“It is there now.”

“Been there ever since.”

“Every day since.”

Every day since, Lizzie thought. Every day since the day of the search and yet before then to the day of the murders themselves, for there had been little rain that August, and no need for a waterproof, no need at all. Every day since that day in August, when the nightmare began, to this sixteenth day of June, ten months and more later, when all was still in the courtroom now as the Government attorneys conferred at their table.

At last, Moody rose.

“As I suggested to Your Honors,” he said, “there is one witness on the way from Fall River. His testimony does not relate to a vital part of the case, and we will not insist upon a delay for the expected witness, but will close our evidence at this point.”

“The evidence is closed on both sides,” Robinson said.

“I desire to say to the jury,” Mason said, “that the testimony in this case is now all in. Lizzie Andrew Borden...”

She was startled to hear the Chief Justice addressing her. She had expected more — was this all? Yet he had just informed the jury that the testimony had all been heard, and now he was staring at her from behind the bench as she got to her feet.

“Although you have now been fully heard by counsel,” he said, “it is your privilege to add any word which you may desire to say in person to the jury. You now have the opportunity.”

Lizzie turned to face the twelve men in the jury box. Her head high, her posture erect, her voice clear and unwavering, she said, “I am innocent.”