The Trial of Lizzie Borden, page 16
Handleless or “hoodoo” hatchet, courtesy of Fall River Historical Society
After the prior day’s debacle for the prosecution, the defense was understandably in good humor. But the prosecution doggedly returned to the mystery of the handleless hatchet. As Julian Ralph commented, “The handleless hatchet, now generally known as ‘the hoodoo hatchet,’ continued its demonish pranks in the trial of Lizzie Borden for her life today. It chopped another great hole in the case.” Elizabeth Jordan theorized: “It was upon the three and a half-inch edge of this useful little household tool that the case for the commonwealth would split.”
Moody sent an officer to search for the missing piece of the handle. Lieutenant Francis Edson, seconded later by Officer Mahoney, testified that he went to the Borden house on Friday at 3:40 p.m. and was refused entrance. Charles J. Holmes, president of the Fall River 5 Cents Savings Bank and Lizzie’s éminence grise, had apparently been conducting his own fruitless search inside. During the original search, Edson, like the other officers, had been assigned areas to search: he was tasked with the areas in the cellar. He retrieved a small shingle hatchet and two wood axes from the cellar washroom as well as a claw-hammer hatchet from a shelf in the vegetable cellar. He delivered them to Marshal Hilliard on August 5. Robinson questioned him about the thoroughness of the search: “You were there to look, your business, was it not?” In addition to his search of the vegetable cellar, Edson looked in the water closet and saw nothing. But he had seen Officer Medley with the hatchet head, wrapped in paper.
William Medley offered a masculine counterpart to Adelaide Churchill. He was a bit of a chatterbox, delighted to have his moment to shine. Moody repeatedly interrupted him to remind him to stick to the facts and to answer the questions asked of him. Of his conversation with Lizzie in her room, Medley began, “The thought came to me.” Forestalling a soliloquy, the lawyer hastily replied, “Well, never mind.” At another point, Moody reminded his witness not to repeat conversations with other officers: “I don’t ask what was said.”
Medley’s testimony centered on his search of the barn and his discovery of the handleless hatchet in the cellar of the house. He described the barn loft as undisturbed and “very hot” before his search. Medley looked into the loft from the stairs, where, he said, he had seen no tracks or any sign that someone had been in the loft. But when he put his own hand down on the floor, the dust was so thick that his handprints left distinct impressions. In the cellar of the house, he found a small hatchet head in a box of odds and ends, sitting on a block about a foot and a half above the cellar floor. He noticed that the hatchet head was covered with a coarse substance that looked different than the fine dust he saw on the other items of “old rubbish” in the box. He showed the hatchet head to Captain Desmond and wrapped it up in brown paper to take to the city marshal. When Robinson asked him about the wrapping on cross examination, Medley admitted he was not “very tidy at such things.” Alluding to Harrington’s closely observed description of Lizzie’s dress, Robinson wryly observed, “Well, I am glad to find a man that is not on style.”
Captain Dennis Desmond confirmed Medley’s description of the handleless hatchet. He saw a small amount of wood in the eye of the hatchet where the handle had been broken off. He agreed that the hatchet head was covered with a coarse material, “a loose, rough matter” rather than ordinary dust found elsewhere in the cellar. Then he testified that he had wrapped the hatchet in a large newspaper, paper that was at hand in the water closet, rather than the brown paper Medley had mentioned. Robinson seized on this point—Medley had just testified that he had wrapped up the hatchet head. In Howard’s estimation, Robinson was “tremulous with excitement internally, but sweet as a day in June externally” as he let Desmond describe the wrapping “until the unsuspecting captain had cut off all possibility of retreat from his position.” By the end, even the officers’ descriptions of the package brought to Marshal Hilliard did not match. Not only was the outer covering different, but, as a reporter later explained, one officer described a package the size of a “five cent cut of pie” and the other described a parcel large enough for a “pair of longshoreman’s boots.”
Robinson tried to pin Desmond down about the purpose of his later searches. But Desmond dodged the question: “I cannot tell you what I was looking for. I was looking for anything that would throw any light.” He had already testified that he found no paint-stained dresses. Robinson did win one point: Desmond agreed that everyone in the house cooperated with the searches. In Robinson’s words, it was “an absolute, unrestrained, and complete search of everything in the house.”
George Seaver was the final police witness. Unlike the others, he was a member of the state district police in Taunton. He, too, went to the Borden house on August 4 and was part of the Saturday search of the house. He searched the garret with Captain Desmond. He also joined in the search of the cellar: he testified that the hatchet was covered with a coarse dust or ashes but that the break was a new one, “a very bright break.” He had been a carpenter; he knew about wood. Unfortunately, he could not identify the type of wood of the remaining part of the handle, a fact Robinson repeated with some relish. “Well, look—a carpenter!” remarked Robinson.
According to his testimony, Seaver joined Fleet in examining the dresses in the clothes closet. Seaver took the dresses off the hooks and passed them to Fleet who was positioned near the window so that he could examine them in the light. Fleet had earlier testified that he hardly looked at the dresses, yet it seemed that he had been able to examine them more thoroughly than Seaver. Moody asked if Seaver would have seen a paint-stained dress if it had been there, but Robinson quickly interjected and the question was struck. Seaver opined that he examined twelve to fifteen dresses but could not recall seeing a blue dress—even though Lizzie and Emma together owned ten blue dresses. And he had lost his memorandum about the dresses. Seaver also joined Dr. Dolan in measuring the blood splatter, yet it seemed he had mislaid that memorandum as well.
Unfortunately for the prosecution, its own witnesses contradicted each other about key facts in the discovery of the hatchet and the search of Lizzie’s dresses. Most important, it seemed that either Fleet or Mullaly had lied about finding the hatchet handle. Howard declared: “There has never been a trial so full of surprises, with such marvelous contradictions, given by witnesses called for a common purpose.” There were other serious discrepancies: First, Medley and Desmond gave vastly different descriptions of the wrapping of the hatchet head. Second, Fleet and Desmond appeared to differ on whether the search of the household was thorough. Finally, there was, in the eyes of some, “a conspicuousity” of Bridget Sullivan in the above events. It was Bridget, according to the officers, who led them to the box containing the hatchet in the basement. According to Mullaly, Bridget handed him the hatchet, though she had testified that she had never touched it. Bridget, too, had blue dresses that were not given the same scrutiny as those of Lizzie Borden’s. Howard also wondered about the daytime theft, tantalizingly mentioned but then struck from the record. “What does Bridget Sullivan know about the burglary of the Borden house?” But, for the moment, there would be no answers.
• • •
The court adjourned until Monday, June 12, at 9:00 a.m. Lizzie Borden returned to jail in a black coupe. To catch a glimpse of the famous prisoner on her short trip, spectators in carriages and wagons lined both sides of the street. According to Elizabeth Jordan, even “the sidewalks on both sides of the street were packed with people all the way down to the jail, standing as close together as they comfortably could.” But the curtains of Lizzie Borden’s conveyance were discreetly drawn to frustrate the gawkers. Once back at the jail, Lizzie ate “a New England dinner, with all the trimmings, apparently feeling 100 percent better than she did yesterday.” She would spend her weekend in the soothing company of David Copperfield. Julian Ralph approved: “The genius of Charles Dickens” served her better than “talking with visitors about the murders which she did or did not do.”
Chief Judge Mason and Judge Blodgett left town for the rest of the week, their eyes shining “with the gleam of domestic hope,” leaving their colleague Judge Dewey to prepare for the arguments on Monday. That afternoon, however, Judge Dewey took a break. He was spotted relaxing on a rock in nearby Buzzards Bay. By contrast, “The jurors were bundled into an omnibus . . . driven down to the Point and back again in less than an hour, given their suppers, and securely locked in their superheated heated rooms not only without spirituous refreshments, but without any possible enlivenments.” As Julian Ralph observed, “Queen Victoria might die, New York could burn up or Boston . . . but the jury would know nothing of it.” And in a worrying development, the jurors planned to attend church on Sunday but they disagreed on their preferred minister, “thereby preventing all hands from attending religious service of any kind.”
Chapter 7
A SIGNAL VICTORY
The jury in its favorite position, Boston Globe
While Lizzie Borden lost herself in Dickens, journalists at the trial discussed the case on their hotel balconies “in an atmosphere like the exhaust from a mighty engine.” Elizabeth Jordan later wrote that she and most of her fellow out-of-town reporters believed Lizzie was innocent. Yet, they wondered: “If Miss Borden had not committed the murders, who had?” In the New York Sun, Julian Ralph had pointed out the inescapable paradox: it seemed impossible that Lizzie Borden had committed the murders, and equally impossible “to understand how anyone else could have worked such fearful havoc in the house in which she was stirring.” His colleagues proposed their own theories: “An escaped maniac? The crime seemed the work of one.” Elizabeth Jordan thought: “A gorilla? A gorilla was indicated, by the appearance of the rooms. The Murders in the Rue Morgue came cheerily to mind.” That night, Jordan dozed fitfully and woke at three o’clock in the morning to a terrifying sight: “a gorilla standing framed in the open French windows.” Her somnolent eyes had deceived her. It was not a murderous beast but rather the night watchman, demonstrating that the balcony was “easily reached from the street below.” According to Jordan, “He mentioned maniacs, and the fact that the Borden murderer might still be at large.” From then on, despite the heat, Jordan slept with the windows tightly shut.
MONDAY, JUNE 12, 1893
* * *
After the short break of the weekend, the crowds surged toward the small fence to the courthouse, impatient to claim any available seats. Even the lawyers had to fight their way “through the perpetual and swollen crowd of women idlers.” For those who managed to secure admittance, a grim relic awaited them. Just outside the courtroom itself stood the bloodstained sofa on which Andrew Borden was murdered. It was covered in sackcloth but gawkers lifted the covering to examine it for themselves. After passing that memento mori, Julian Ralph entered the courtroom to find “his favorite seat taken, although it was taken by a much handsomer person, and a woman at that.” She was the new illustrator from the New York World. Oblivious, she “calmly sketched on.” Joe Howard fared better: he had struck up a friendship with a beautiful young woman during the Saturday session and, Monday morning, “they drove up [to the courthouse] in style.”
Lizzie was wearing a new black silk dress with a delicate outer layer of black lace, “many times more expensive than the old one.” But, despite her new gown, she seemed unwell: “Her color was bad, her manner listless, and it seemed as though the demon of apprehension was dallying with her sensibilities.” This was understandable. Before the court adjourned on Saturday, the attorneys filed a stipulation that laid out the agreed facts about Lizzie Borden’s inquest testimony. This morning, out of the hearing of the jury, her lawyers would entreat the judges not to permit the prosecution to use that testimony as evidence against her.
THE COORDINATE BRANCHES
* * *
Why was the jury removed from the courtroom? Judges and juries have different roles in the legal system: judges explain the law and juries decide the facts. Or, put another way, the judges serve as gatekeepers who decide what evidence the jury can hear. As a general matter, all relevant evidence should be presented to the jury. Relevance, then and now, means the tendency for any piece of evidence to prove or disprove a proposition in the case. It is a broad concept based on reason alone: all facts having rational, probative value are admissible. This general rule comes with an important caveat: judges can exclude relevant evidence for a variety of reasons. There may be statutory or even constitutional prohibitions against admitting certain evidence. An involuntary confession is a classic example of relevant evidence that the jury may not hear. Other common grounds for excluding otherwise relevant evidence are unfair prejudice, confusion, or undue delay. For example, common-law precedent frowns on evidence of bad character on the theory that jurors might unfairly decide that a defendant was likely to act in ways consistent with negative character traits without giving appropriate attention to the actual evidence of guilt. This is often referred to as “propensity” evidence—the idea that a person who has done something in the past has a tendency to repeat the behavior. In such cases, the judges need to balance the importance of the evidence—its probative value—against the risk of unfair prejudice to the defendant who might be judged for who he is rather than what he had actually done. Judges, as legal professionals, are thought to be able to understand the pertinent distinctions involved and to safeguard the legal process from decisions based on bias or emotions.
• • •
At the coroner’s inquest, Knowlton metaphorically returned Lizzie Borden to the scene of the crime to establish a chronology that made her the only possible killer. She had told different people a range of stories relating to her discovery of her father’s body: she told one officer she had heard a “scraping noise”; she told Bridget Sullivan she had heard “a groan.” Yet, she had also said she was in the barn looking for iron to make a sinker, or for a piece of iron or tin to fix a screen. The inquest forced her to explain herself under oath. It was not a success. As the New York Times observed, “The statements made by her at the inquest were of a contradictory character, extremely damaging to her interests.” Even Borden’s most fervent supporters acknowledged that her testimony had not gone well. Elizabeth Jordan, for example, wrote sympathetically: “On the confused stories and contradictions in matters for the most part trifling the District-Attorneys have built their strongest hopes of arousing the antagonism of the jury.”
In addition to showing her opportunity, Lizzie Borden’s inquest testimony also provided evidence of Lizzie’s motive for killing her stepmother (the property dispute that divided the family) and Lizzie’s “consciousness of guilt.” The prosecution was not required to offer a motive for the murders though it was hard to imagine any jury convicting an apparently sane daughter of killing her father and stepmother without some explanation, profound grievance, or dark purpose. By contrast, “consciousness of guilt” was considered strong evidence of underlying guilt of the crime. If Lizzie Borden did something an innocent person would not have done or failed to do something an innocent person would have done in the same circumstances, then that act or omission would demonstrate “consciousness of guilt.” More colorfully, a leading authority on evidence argued—in an apt metaphor for the Borden case—“As an axe leaves its mark in the speechless tree, so an evil deed leaves its mark in the evil doer’s consciousness.”
The prosecution believed that Lizzie Borden’s account of her actions that day suggested subterfuge. She had invented a note to her stepmother to prevent her father from looking for Abby, lying dead in the guest bedroom, and to explain why she herself did not think to look for Abby after she found her father’s body. Then she had also burned the dress allegedly worn on the day of the murders. The prosecutors believed that “the conduct of the accused after the killing was such that no conceivable hypothesis except that of guilt, will explain the inconsistencies and improbabilities that were asserted by her.”
Moody laid out the prosecution’s argument for admitting Borden’s inquest testimony. First, he reminded the judges of the breadth of legal relevance: “All facts that go either to sustain or impeach a hypothesis logically pertinent are admissible.” Acknowledging that there was a separate jurisprudence on the admissibility of confessions, one that might be harder for the prosecution to overcome, he declared that Borden’s inquest testimony was “clearly not in the nature of a confession, but rather in the nature of denials.” In other words, Lizzie had been trying to exonerate herself; therefore, the case law on compelled confessions was irrelevant. Then, from cases he culled from numerous jurisdictions, Moody derived a clear rule: “Declarations voluntarily given, no matter where or under what circumstances, are competent; declarations obtained by compulsion are never competent.” As principal support for these propositions, Moody discussed a series of cases from New York because of its settled law on the question. People v. Mondon, 103 N.Y. 211 (1886), the most recent case he cited, offered this bright line rule ostensibly drawn from previous cases: the testimony of a witness before a coroner’s inquest may be used against him at trial, regardless of whether he was suspected of being the perpetrator.
According to the prosecution, Lizzie Borden voluntarily testified at the inquest; therefore, her statements should be admitted into evidence. Moody explained that the state was required to hold an inquest about deaths in suspicious circumstances. There was nothing unusual—let alone sinister—in the procedure. Borden was not under arrest or charged with the murders at the time of the inquest, and she had consulted with her attorney before testifying. If Borden wanted to protect herself against the subsequent use of her statements, Moody argued, she should have claimed her privilege against self-incrimination as codified in the Massachusetts Constitution, which contained a correlate to the now familiar Fifth Amendment of the United States Constitution. Because the Constitution did not, at that time, apply to the states, Lizzie Borden could not seek federal constitutional protection—despite her attorneys’ reference to the most recent Supreme Court case on the subject.
