Lizzie

16: New Bedford — 1893

“I desire to remind the jury,” Chief Justice Mason said, “that there is still a further word to be said before this cause will be finally committed to them. The charge to the jury will be read by Mr. Justice Dewey.”

The courtroom today was as crowded as it had been yesterday when Lizzie had listened to Robinson argue on her behalf that the state had failed to prove its case. She could not have imagined then that the courtroom could have held a single person more, but today it seemed as though the crowd, should it take in its breath collectively, might cause the walls to swell and collapse into the street below.

Yesterday morning Robinson had begun his closing argument to the jury at nine o’clock, had spoken until the recess and had resumed his argument at two-fifteen in the afternoon. There were some among her supporters who had felt his address was not quite as eloquent as might have been expected of him, but she had been deeply moved when, in conclusion, he had said to the jury, “Gentlemen, with great weariness on your part, but with abundant patience and intelligence and care, you have listened to what I have to offer. So far as you are concerned, it is the last word of the defendant to you. Take it; take good care of her as you have, and give us promptly your verdict ‘Not Guilty’ that she may go home and be Lizzie Andrew Borden of Fall River in that blood-stained and wrecked home where she has passed her life so many years.”

Knowlton had begun his closing argument yesterday afternoon, had spoken through the remainder of the court day, and had concluded this morning with the words, “Rise, gentlemen, rise to the altitude of your duty. Act as you would be reported to act when you stand before the Great White Throne at the last day. What shall be your reward? The ineffable consciousness of duty done. There is no strait so hard, there is no affliction so bitter that is not made light and easy by the consciousness that in times of trial you have done your duty and your whole duty. There is no applause in the world, there is no station of height, there is no seduction of fame that can compensate for the gnawings of an outraged conscience. Only he who hears the voice of his inner consciousness — it is the voice of God himself — saying to him, ‘Well done, good and faithful servant’, can enter into the reward and lay hold of eternal life.”

It had seemed to Lizzie, soberly listening to him, that the jury was profoundly impressed by his words. He had ended his address at twelve-fifteen this morning, and it was now two o’clock. The jurors, who had returned after recess to hear Chief Justice Mason’s brief opening remark, now turned their full attention to Justice Dewey. He looked uncomfortably hot in his black judicial garments. He consulted the papers before him, looked at the jury once to make certain they were settled and awaiting his words, and then began his charge.

“Mr. Foreman and gentlemen of the jury,” he said, “you have listened with attention to the evidence in this case, and to the arguments for the defendant’s counsel and of the district attorney. It now remains for me, acting in behalf of the Court, to give you such aid toward a proper performance of your duty as I may be able to give, within the limits for judicial action prescribed by law. And to prevent any erroneous impression, it may be well for me to bring to your attention, at the outset, that it is provided by a statute of this state that the Court shall not charge juries with respect to matters of fact, but may state the testimony and the law.

“I may perhaps illustrate this distinction in the course of my remarks. But, speaking comprehensively, I may now say to you that it will be your duty, in considering and deciding the matters of fact necessary to rendering your verdict, not to allow your judgment to be affected by what you may suppose or believe to be the opinion of the Court upon such matters of fact.

“The defendant is being tried before you on a written accusation, termed an indictment, which contains two charges or counts; one count by the use of the usual legal language in substance charges her with the murder of Andrew J. Borden and the other count charges her with the murder of Abby D. Borden in Fall River in this county on August fourth, 1892.

“The Government claims that the killing of Mr. and Mrs. Borden, by whomsoever done, was done with premeditated, deliberate malice aforethought within the meaning of the statute, and it was murder in the first degree. The statute nowhere defines murder itself, and for such definition we must resort to the common law, and according to that law ‘murder is the unlawful killing of a human being with malice aforethought’.

“The second main proposition in the case is that the killing of Mr. and Mrs. Borden was done by the defendant. In considering the evidence with regard to this issue, you will need to have certain legal principles in mind and to use them as guides. One such principle is the presumption of law that the defendant is innocent. This presumption begins with her at the outset of the trial, and continues with her through all its stages until you are compelled by the evidence to divest her of it.

“It is competent for the Government to show that the defendant had motives to commit the crimes with which she is charged, and evidence has been introduced from which you are asked to find that she had unpleasant relations with her stepmother, the deceased, and also that her father, Andrew Jackson Borden, left an estate of the value of from $250,000 to $300,000, and that so far as is known to the defendant, he died without having made a will. If his wife died before him, it is not disputed that he left the defendant and her sister as his only heirs.

“It appears that Mr. Borden was sixty-nine years old, and Mrs. Borden more than sixty years of age at the time of their deaths. Taking the facts now, as you find them to be established by the evidence, and taking the defendant as you find her to be, and judging according to general experience and observation, was the defendant under a real and actually operating motive to kill her father and his wife?

“Imputing a motive to defendant does not prove that she had it. I understand the counsel for the Government to claim that defendant had toward her stepmother a strong feeling of ill will, nearly if not quite amounting to hatred. And Mrs. Gifford’s testimony as to a conversation with defendant in the early spring of 1892 is relied upon largely as a basis for that claim, supplemented by whatever evidence there is as to defendant’s conduct toward her stepmother.

“But take Mrs. Gifford’s just as she gave it, and consider whether or not it will fairly amount to the significance attached to it, remembering that it is the language of a young woman and not of a philosopher or a jurist. What you wish, of course, is a true conception — a true conception of the state of the mind of the defendant toward her stepmother, not years ago, but later and nearer the time of the homicides. And to get such a true conception, you must not separate Mrs. Gifford’s testimony from all the rest but consider also the evidence as to how they lived in the family.

“Whether, as Mrs. Raymond, I believe, said, they sewed together on each other’s dresses; whether they went to church together, sat together, returned together; in a word, the general tenor of their life. Weigh carefully all the testimony on the subject in connection with the suggestions of counsel, and then judge whether or not there is clearly proved such a permanent state of mind on the part of defendant toward her stepmother as to justify you in drawing against her, upon that ground, inferences unfavorable to her innocence.

“Now, gentlemen, the material charge in the first count of the indictment is that, at Fall River, in this county, the defendant killed Mrs. Borden, by striking, cutting, beating and bruising her on the head with some sharp cutting instrument. In the second count the same charges are made in regard to Mr. Borden. And the government claims that these acts were done with deliberately premeditated malice aforethought, and so were acts of murder in the first degree.

“Now you observe, gentlemen, that the Government submits this case to you upon circumstantial evidence. No witness testifies to seeing the defendant in the act of doing the crime charged, but the Government seeks to establish by proof a body of facts and circumstances from which you are asked to infer or conclude that the defendant killed Mr. and Mrs. Borden. This is a legal and not unusual way of proving a criminal case, and it is clearly competent for a jury to find a person guilty of murder upon circumstantial evidence alone. The principle that underlies circumstantial evidence, we are constantly acting on in our business; namely, the inferring of one fact from other facts proved.

“Sometimes the inference is direct, and almost certain. For instance, the noise of a pistol is heard from a certain room in a hotel. The door is unlocked or otherwise opened. A man is found, just dead, with a bullet hole in his temple. Near him is a revolver with one barrel discharged. In such a case, if no contradictory or controlling facts appeared, we should infer — with a very strong assurance — that the death was caused by the pistol. In other cases the facts from which the conclusion is sought to be drawn are numerous and complicated, and the conclusion not so closely connected with the facts or so easy to draw.

“This is illustrated by the case on trial here. You have got to go through a long and careful investigation to ascertain what facts are proved. Then, after you have determined what specific facts are proved, you have remaining the important duty of deciding whether or not you are justified in drawing, and will draw, from these facts the conclusion of guilt.

“Now let me illustrate. Take an essential fact. All would admit that the necessity of establishing the presence of the defendant in the house, when, for instance, her father was killed, is a necessary fact. The Government could not expect that you would find her guilty of the murder of her father by her own hand unless you are satisfied that she was where he was when he was murdered. And if the evidence left you in reasonable doubt as to that fact — so vital, so absolutely essential — the Government must fail of its case, whatever may be the force and significance of other facts; that is, so far as it is claimed that she did the murder with her own hands.

“Now, take the instance of a helpful fact. The question of the relation of this handleless hatchet to the murder. It may have an important bearing upon the case, upon your judgment of the relations of the defendant to these crimes — whether the crime was done by that particular hatchet or not — but it cannot be said, and is not claimed by the Government that it bears the same essential and necessary relation to the case that the matter of her presence in the house does. It is not claimed by the Government but what that killing might have been done with some other instrument.

“Take another illustration. I understand the Government to claim substantially that the alleged fact that the defendant made a false statement in regard to her stepmother’s having received a note or letter that morning bears an essential relation to the case, bears to it the relation of an essential fact, not merely the relation of a useful fact. Now what are the grounds on which the Government claims that that charge is false, knowingly false?

“There are three, as I understand them: one, that the man who wrote it has not been found; second, that the party who brought it has not been found; and third, that no letter has been found. And substantially, if I understand the position correctly, upon those three grounds you are asked to find that an essential fact — a deliberate falsehood on the part of the defendant has been established.

“Now what answer or reply is made to this charge? First, that the defendant had time to think of it; she was not put in a position upon the evidence where she was compelled to make that statement without any opportunity for reflection. If, as the Government claims, she had killed her stepmother some little time before, she had a period in which she could turn over the matter in her mind. She must naturally anticipate, if she knew the facts, that the question at no remote period would be asked her where Mrs. Borden was, or if she knew where she was. She might reasonably and naturally expect that that question would arise.

“Again, it will be urged in her behalf, what motive had she to invent a story like this? What motive? Would it not have answered every purpose to have her say — and would it not have been more natural for her to say — simply that her stepmother had gone out on an errand or to make a call? What motive had she to take upon herself the responsibility of giving utterance to this distinct and independent fact of a letter or note received with which she might be confronted and which might afterwards find it difficult to explain, if she knew that no such thing was true? Was it a natural thing to say — situated as they were, living as they did, taking the general tenor of their ordinary life — was it a natural thing for her to invent?

“Now gentlemen, you know that I am expressing no opinion as to what is proved. I am only trying to illustrate principles and rules of law and evidence. Referring to the present case let me use this illustration: suppose you were clearly satisfied upon the testimony that if defendant committed the homicides she could by no reasonable possibility have done so without receiving upon her person and clothing a considerable amount of bloodstain; that when Bridget Sullivan came to her upon call and not long after some of the other women, she had no bloodstains upon her person or clothing; that she had had no sufficient opportunity either to remove the stain from her person or clothing, or to change her clothing.

“If these supposed facts should be found by you to be real facts, you could not say upon the evidence that defendant’s guilt was to a moral certainty proved. So you see that in estimating the force of different facts, or portions of the evidence it is not enough to consider them as standing apart, for the force which they appear to have when looked at by themselves, may be controlled by some other single fact.

“When was Mrs. Borden killed? At what time was Mr. Borden killed? Did the same person kill both of them? Was defendant in the house when Mrs. Borden was killed? Was she in the house when Mr. Borden was killed? In this connection you will carefully consider any statements and explanations of defendant put in evidence by the Government and shown to have been made by defendant at the time or afterwards, as to where she was when either of them was killed, and all other evidence tending to sustain or disprove the truth and accuracy of these statements.

“Did other persons, known or unknown, have an equal or a practical and available opportunity to commit these crimes? Is there reason to believe that any such person had any motive to commit them? Is there anything in the way and manner of doing the acts of killing, the weapon used, whatever it was, or the force applied, which is significant as to the sex and strength of the doer of the acts?

“For instance, the medical experts have testified as to the way in which they think the blows were inflicted on Mrs. Borden, and as to what they think was the position of the assailant. Are those views correct? If so, are they favorable to the contention that a person of defendant’s sex and size was the assailant? Is it reasonable and credible that she could have killed Mrs. Borden at or about the time claimed by the Government, and then with the purpose in her mind to kill her father at a later hour, have gone about her household affairs with no change of manner to excite attention?

“Several witnesses called by the Government have testified to statements said to have been made by defendant in reply to questions asked, I believe in each instance, as to where she was when her father was killed, and considerable importance is attached by the Government to the language which it claims was used by her as showing that she professed not only to have been in the barn, but upstairs in the barn. And the Government further claims it is not worthy of belief that she was in the upper part of the barn, as she says, because of the extreme heat there and because one of the officers testifies that on examination they found no tracks in the dust on the stairs and flooring. Now what statements on the subject the defendant did make and their significance and effect is wholly for you upon the evidence, and there is no rule of law to control your judgment in weighing that evidence.

“But here, gentlemen, I may repeat to you the language of a thoughtful writer on the law, not as binding upon you, but as containing suggestions useful to be borne in mind in dealing with this class of evidence. He says, ‘With respect to all verbal admissions it may be observed that they ought to be received with great caution. The evidence, consisting as it does, in the mere repetition of oral statements, is subject to much imperfection and mistake.’

“Gentlemen, it will be for you to judge whether that extract which I read — which I say I give to you in the way of suggestion and not as a binding authority — expresses a reasonable principle, a principle that is wise and safe and prudent to be acted upon in such a case as this. Whether there is not more danger of some misunderstanding, some inaccuracy, some error creeping into evidence when it relates to statements than there is when it relates to acts. Would you not hold that it was a just and reasonable view to take that if a party is to be held responsible in a case like this largely upon statements, that those statements should be most carefully and thoroughly proved?

“Now the Government has called as witnesses some gentlemen of scientific and medical knowledge and experience, who are termed experts, and there has been put into the case considerable testimony from them. I think I may say to you that expert testimony constitutes a class of evidence which the law requires you to subject to careful scrutiny.

“It often happens that experts testify to what is in substance a matter of fact rather than of opinion. A surveyor called to prove the distance between two points may express his opinions founded on his observation, or he may say, ‘I have actually applied my measuring chain and found the distance’. So, for instance, Professor Wood may say, ‘There are, in science, tests of the presence of blood as fixed and certain as the surveyor’s chain is of distance. I have applied those tests to supposed bloodstains on a hatchet, and I find no blood’. This testimony may be regarded as little a matter of opinion as the testimony of a surveyor.

“On the other hand, if Professor Wood shall be asked to testify as to the length of time between the deaths of Mr. and Mrs. Borden, from his examination of the contents of the stomachs, his testimony must perhaps be to some extent a matter of opinion, depending possibly on the health and vigor of the two persons and constitutional differences; upon whether they were physically active after eating, or at rest; upon whether one or the other was mentally worried and anxious, or otherwise.

“Now his knowledge and skill may enable him to form an opinion upon the subject with greater or less correctness; but the question to be dealt with is by its essential nature different from the other. If you should accept his testimony as correct and satisfactory on the first subject, it would not necessarily follow that you should on the second.

“So as to whether certain wounds in the skull were caused by a particular hatchet head or could have been caused by that hatchet head only, if you have the hatchet head and the skull you may think you can apply them to each other and judge as well as the expert. I call your attention to the subject in this way to make clear to you, first, that you are not concluded on any subject by the testimony of the experts, and, second, that it is important to apply to their testimony an intelligent and discriminating judgment.

“Gentlemen, we have given our attention to particular aspects of this case and of the evidence. Let us look at it broadly. The Government charges the defendant with the murder of Mr. and Mrs. Borden. The defendant denies the charges. The law puts on the Government the burden of proving beyond reasonable doubt every fact necessary to establish guilt. The defendant is bound to prove nothing. The law presumes she is innocent.

“The case is said to be mysterious. If so, the defendant cannot be required to clear up the mystery. There is no way, under the law, by which the burden of proof as to any essential matter can be transferred to her. The Government offers evidence. She may rest on the insufficiency of that evidence to prove her guilt, or she may also offer evidence partially to meet or rebut it, or raise a reasonable doubt as to any part of the Government’s case. You are not to deal with the evidence in a captious spirit, but to allow it to produce on your minds its natural and proper effect.

“In such a case as this, or in any case, you cannot be absolutely certain of the correctness of your conclusions. The law does not require you to be so. If, proceeding with due caution and observant of the principles which have been stated, you are convinced beyond reasonable doubt of the defendant’s guilt, it will be your plain duty to declare that conviction by your verdict. If the evidence falls short of producing such conviction in your mind, it would be your plain duty to return a verdict of not guilty. If not legally proved to be guilty, the defendant is entitled to a verdict of not guilty. The law contemplates no middle course.

“Gentlemen, I want to refer at this point briefly to one or two matters, not in a connected way, where it seems proper to me that a brief suggestion should be made. Something was said in regard to evidence tending to show the defendant had made statements in regard to presentiments of some disaster to come upon the household. And you were asked to look upon those statements — which were testified to by one of the witnesses — as evidence tending to show that the defendant might have been harboring in her mind purposes of evil with reference to the household. Statements made only, I believe, the day before this calamity fell on the household, only the day before the deed was done by the defendant, if she did it.

“Now, in considering that evidence, you should not necessarily go off in your view of it upon the suggestion of counsel, but, so far as you deem it important, hold it before your minds, look at it in all its lights and bearings, and see whether it seems to you reasonable and probable that a person meditating the perpetration of a great crime, would, the day before, predict to a friend, either in form or in substance, the happening of that disaster.

“Suppose some person in New Bedford contemplated the perpetration of a great crime upon the person or family of another citizen in New Bedford, contemplated doing it soon. Would he naturally, probably, predict a day or two beforehand that anything of the nature of that crime would occur? Is the reasonable construction to be put upon that conversation that of evil premeditation, dwelt upon, intended, or only of evil fears and apprehensions?

“Take this matter of the dress, of which so much has been said, that she had on that morning. Take all the evidence in this case, Bridget Sullivan’s, the testimony of these ladies, Dr. Bowen’s. Taking the evidence of these several witnesses, considering that evidence carefully, comparing part with part, can you gentlemen extract from that testimony such a description of a dress as would enable you from the testimony to identify the dress?

“Is there such an agreement among these witnesses — to whom no wrong intention is imputed by anybody — is there such an agreement in their accounts and in their memory and recollection, and in the description which they are able to give from the observation that they had in that time of confusion and excitement, that you could put their statements together, and from those statements say that any given dress was accurately described?

“Gentlemen, I know not what views you may take of the case, but it is of the gravest importance that it should be decided. If decided at all it must be decided by a jury. I know of no reason to expect that any other jury could be supplied with more evidence or be better assisted by the efforts of counsel. The case on both sides has been conducted by counsel with great fairness, industry and ability. You are to confer together; and this implies that each of you, in recollecting and weighing the evidence, may be aided by the memory and judgment of his associates. The law requires that the jury shall be unanimous in their verdict, and it is their duty to agree if they can conscientiously do so.

“And now, gentlemen, the case is committed into your hands. And, entering on your deliberations with no pride of opinion, with impartial and thoughtful minds, seeking only for the truth, you will lift the case above the range of passion and prejudice and excited feeling, into the clear atmosphere of reason and law. If you shall be able to do this, we can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world.”

It was now twenty-eight minutes before five o’clock.

The jury had been out of the courtroom since twenty-four minutes past three. Among the articles they had taken with them to assist in their deliberation were the plans and photographs marked as exhibits in the case, the skulls of her father and Mrs. Borden, the bedspread and pillow shams from the guest room, a piece of doorframe taken from inside the dining room, a piece of molding taken from the guest room, the two axes, the claw-hammer hatchet, the handleless hatchet and bit of wood, Lizzie’s blue blouse and dress skirt, her white skirt — and a magnifying glass.

Only moments before, Robinson had assured her that there was no need for concern, so convinced was he that upon the evidence submitted to the jury they would never return a conviction. She had said nothing. Nodding, she had merely listened, cognizant of the very real possibility that the jury would not share Robinson’s views on the matter before them.

They were coming back into the courtroom now.

Solemnly they filed into the jury box.

“Gentlemen of the jury will answer as their names are called,” Chief Justice Mason said. “The crier will count as they respond.”

The court crier intoned their names, one after the other.

“George Potter.”

“Present.”

“William F. Dean.”

“Present.”

“John Wilbur.”

“Present.”

“Frederic C. Wilbar.”

“Present.”

As each man responded in turn, Lizzie studied his face for some clue to the verdict.

“Lemuel K. Wilber.”

“ Present.”

“William Westcott.”

“Present.”

“Louis B. Hodges.”

“Present.”

“August Swift.”

“Present.”

She could read nothing on any of the faces.

“Frank G. Cole.”

“Present.”

“John C. Finn.”

“Present.”

Nothing whatever.

“Charles I. Richards.”

“Present.”

“Allen H. Wordell.”

“Present.”

“Lizzie Andrew Borden, stand up,” the clerk said.

She rose unsteadily, her lips compressed, a rush of blood coloring her face, her eyes vacant. Her heart was pounding furiously.

“Gentlemen of the jury, have you agreed upon a verdict?”

“We have,” the foreman said.

She felt her knees weakening. She put one hand on the back of Robinson’s chair, supporting herself.

“Please return the papers to the Court,” the clerk said. “Lizzie Andrew Borden, hold up your right hand.”

She lifted her hand from where it had been resting on the chair back. She had difficulty keeping it from trembling.

“Mr. Foreman, look upon the prisoner.”

His eyes met hers.

“Prisoner, look upon the foreman.”

She returned his steady gaze.

“What say you, Mr. Fore—”

“Not guilty,” he said.

There arose from the spectators’ benches behind her a cheer that might have been heard in Fall River itself. Her legs suddenly gave beneath her. She sank heavily into the chair, covered her face with her hands, and began sobbing. Robinson came to her and put his arm about her. She looked up into his face. Beyond him she saw the three justices staring implacably out over the courtroom as if totally oblivious to the pandemonium. The sheriff, tears in his eyes, made no move to lift his gavel, although the cheering showed no sign of abatement. Moved, she turned to look toward the spectators’ benches. People there were waving handkerchiefs in cadence to their rising and falling voices. She turned back to Robinson again. He was looking at the jury, nodding at the jury, smiling at them, his eyes glowing with what appeared to be almost fatherly pride. Jennings’s eyes were moist as he put his hand out to Adams, sitting next to him. “Thank God,” he said, his voice breaking, and Adams took his hand and held it tightly, nodding his head speechlessly, his ridiculous mustache bobbing. A full minute must have passed, perhaps more, before there was silence again, and then only because the clerk asked, in a loud, clear voice, “Gentlemen of the jury, you upon your oaths do say that Lizzie Andrew Borden, the prisoner at the bar, is not guilty?”

“We do.”

Not guilty, she thought, and covered her face again, and wept into her hands. Oh, dear God, innocent.

“So say you, Mr. Foreman? So say all of you gentlemen?”

“We do.”

“May it please the Court,” Knowlton said, rising. “There are pending two indictments against the same defendant, one charging the murder which is charged in this indictment on the first count, and the other charging the murder which is charged in this indictment on the second count. An entry should be made in those cases of nol-prossed by reason of the verdict in this case. Now, congratulating the defendant and the counsel for the defendant upon the result of the trial, I believe the duties are concluded.”

He was smiling, Lizzie noticed. As though in relief.

“The jurors may be seated,” Mason said.

“Lizzie Andrew Borden,” the clerk said.

She rose again, though she did not know whether she was supposed to or not. Tears were streaming down her cheeks.

“The Court orders that you be discharged of this indictment and go thereof without delay.”