The Trial of Lizzie Borden, page 22
THURSDAY, JUNE 15, 1893
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After a ten-minute break, the defense case officially opened at 10:50 a.m. with Andrew Jennings’s opening statement. Using a “low, measured, funereal tone of voice,” he spoke for an hour, averring his longstanding connection to the Borden family: Andrew Borden “was for many years my client and my personal friend. I had known him since my boyhood. I had known his oldest daughter for the same length of time, and I want to say right here and now, if I manifest more feeling than perhaps you think necessary in making an opening statement for the defence in this case, you will ascribe it to that cause. The counsel, Mr. Foreman and gentlemen, does not cease to be a man when he becomes a lawyer.”
Jennings emphasized Lizzie Borden’s excellent reputation, her good works, and her general demeanor: “We shall show you that this young woman had apparently led an honorable, spotless life; she was a member of the church; she was interested in church matters; she was connected with various organizations for charitable work; she was ever ready to help in any good thing, in any good deed.” Having established Lizzie’s good character, he turned the police and prosecutors into villains who “for some reason or other” sought “to fasten this crime upon her.” Carried away by his own rhetoric, Jennings alluded to the drama of Richelieu, especially “that most dramatic scene . . . when the king in the exercise of absolute authority, without right or justice . . . sends to drag the pure and virtuous ward of Richelieu from his arms, how the old Cardinal draws that circle around her, and no man dares to cross it.”
Jennings recovered himself and returned to the flawed legal case against his client. He continued, “Just so, Mr. Foreman and gentlemen, the law of Massachusetts today draws about every person accused of this crime, or any other, the circle of the presumption of his or her innocence, and . . . until it has been proved beyond a reasonable doubt that he or she is the guilty party, they are not allowed to cross the line and take the life of the party who is accused.” Reasonable doubt, he explained, was “a doubt for which one could give a reason.” For example, he continued, “[i]f you can conceive of any other hypothesis that will exclude the guilt of this prisoner and make it possible or probable that somebody else might have done this deed, then you have got a reasonable doubt in your mind.”
Having established this framework, he turned to the evidence against his client. The prosecution’s case was “wholly and absolutely circumstantial.” He warned: “[T]here is no class of evidence . . . so dangerous and misleading as circumstantial evidence. Our books are filled with cases where the accused has evidently been proven by circumstantial evidence to have committed the crime and subsequent investigations or confessions have shown that he did not.” Remember, he told the jury, “your task is not to unravel the mystery.” Instead, he said they must ask themselves: “Have they furnished the proof, the proof that the law requires, that Lizzie Andrew Borden did it, and that there is absolutely no opportunity for anybody else?”
Jennings permitted himself a note of triumph as he catalogued the prosecution’s deficiencies: “[T]here is not one particle of direct evidence against Lizzie A. Borden.” Not a spot of blood. No weapon. Just a parade of unrelated hatchets and axes all rejected as the actual murder weapon.
Howard applauded: “He ridiculed, with neat sarcasm, the futile efforts of the police” to link one weapon after another to the murders. As for Borden’s purported exclusive opportunity, Jennings countered that if Andrew Borden had not been seen on part of his morning walk, then surely the assassin could have evaded witnesses as well. And where was the motive? Even if Lizzie had a motive in the case of Abby Borden, would she have killed her “loved and loving father”?
Lizzie Borden wiped her eyes during his oration. According to Julian Ralph, Jennings “championed her cause with an ancient knight’s consideration for the sex and herself” and “his belief in her innocence shone in his words like a loving light in the forest.” Howard praised his performance as “brushing away the cobwebs of ingenuity, affirming, with emphatic clarity, the duty of the commonwealth to the living, as well as the dead.”
The defense case began with a series of witnesses who testified about odd noises and strange characters heard and seen. Marthe Chagnon, the Bordens’ neighbor, and her stepmother, Marienne Chagnon, heard a noise about 11:00 p.m. the night before the murders. Prior to the trial, they speculated that someone was climbing over or walking along their fence. According to Marthe, it sounded like “pounding” and came from the direction of the Bordens’ house. She said: “I couldn’t describe the noise because I didn’t see.” They did not investigate, nor, they admitted, did their Newfoundland dog. Knowlton suggested, referring to Marthe’s testimony at the preliminary hearing, that the noise could have come from ice carts to the south. She doubted it came from the icehouse and denied ever saying that it had. When Knowlton pressed her on the point, quoting her prior statements, Marthe, “a very pretty and rather coquettish young French girl,” shrugged with apparent indifference.
After establishing that the windows in the sitting room were shut, he asked, “How could you tell the direction from which the sound came?”
Again the transcript recorded “(No answer).”
Knowlton surrendered: “I won’t press it any further if you don’t care to answer it.”
Knowlton encountered a similar lack of responsiveness in Marthe’s stepmother, Marienne Chagnon, but by this time Knowlton should have detected a language barrier. (Both of the Chagnons were born in Francophone Canada.) Their exchange devolved into an unwitting comedic performance. Knowlton asked her if the noise sounded like pounding.
She replied, “What is it?”
Knowlton repeated the question.
She replied, “Like—?”
He repeated, “Pounding?”
“I don’t understand the expression,” said Marienne. So he tried again in the time-honored Yankee tradition of shouting at foreigners.
“Pounding? . . . Don’t you understand what pounding is?”
“Pounding?” she queried.
“Yes,” he said.
“No,” she said, “I don’t understand it.”
“Don’t know that word? . . . You don’t understand the word pounding? . . . To pound.”
“Pounding,” she said, “No, sir.”
The reporters seemed to enjoy the parade of the less critical defense witnesses, a bit of leavening after the high tension of the poison testimony. Joe Howard described Mary Durfee as “a nice looking old lady, in black, rather short, with enormous high bows in her hat.” Durfee had been prepared to testify that she had seen a man arguing with Andrew Borden—“You have cheated me and I’ll fix you”—sometime before the end of October. But she could not remember exactly when. She explained: “Well, I lost my sister . . . and she died about the 27th of October.” The lawyers struggled to get her to pin down the date of the argument. She said: “[W]hat I heard I heard before then, because I went home and told it.” It could have been two months before that date. The judges decided it was too remote. She retired “with a graceful bow embracing the court, the jury, and the learned brothers.” In contrast, two neighbors were allowed to testify. Charles Gifford and Uriah Kirby, “a venerable white-haired old man of the frontier type,” lived just north of the Chagnon house. On the night before the murders, they saw a man on the side steps (on the sidewalk side of the gate). Gifford unsuccessfully attempted to rouse him. Kirby came by a few minutes later. He, too, tried to wake him, shaking him by the straw hat on top of his head.
This was all fairly tame stuff. But Mark Chase, a local hostler, introduced a new character to the mystery with his description of a man, wearing a brown hat and a black coat, sitting in an open buggy in front of the Borden house at about 11:00 a.m. the morning of the murders. The man he described may have been ordinary, but Chase himself made a physically impressive witness. “When he took the oath,” the six-foot-six-inch-tall Chase “elevated his arm and hand to their extremest length, as though he would touch the ceiling, sending another ripple of merriment through the audience.” Knowlton, however, undercut the impact of his testimony during cross-examination: perhaps the man, visible only from the rear and obscured by a high seat, might not have been a stranger. Wasn’t the buggy really parked at the boundary of the Kelly and Borden properties? Couldn’t it have been “somebody who was waiting for a call on the Doctor?” Chase also could not say how long the wagon had been parked there, nor how quickly it departed.
Dr. Benjamin Handy, a Fall River physician, testified that he passed by the Borden house at about 10:30 a.m. on August 4 and saw a “medium sized young man of very pale complexion, with his eyes fixed upon the sidewalk, passing slowly towards the south.” Over Knowlton’s objection, he declared the man “was acting strangely” and walked very slowly. Knowlton pressed him to describe what made the man so noticeable. Dr. Handy replied, “I can’t put it into words, sir. He was acting differently than I ever saw any individual on the street in my life. He seemed to be either agitated or extremely weak, staggering, or confused, or something of the kind.” In response to Knowlton’s repeated prodding about the man’s appearance, Handy added: “He didn’t see me, his eyes were fixed upon the ground.” He ventured that he might have seen him on an earlier occasion, but he was not certain.
Knowlton summarized sarcastically: “And all you can put into words was that he was looking down toward the sidewalk, and didn’t notice anything that was going on around [him], and walked slowly?” Pausing for effect, he continued: “You cannot express that agitation any more than that?” In the course of his questioning, Knowlton also reminded the jury that he owned the cottage at Marion at which Lizzie had been expected, marking him as Lizzie Borden’s supporter.
Delia Manley may have seen the same man, a stranger also dressed in light clothing. She also lived on Second Street: she knew the Kelly house well because she had often visited her sister-in-law (Alice Russell’s mother), who had lived there. She happened to be walking down the street, accompanied by her sister (Mrs. Sarah Hart of Tiverton), when she stopped between the Borden and Churchill houses to see “pond lilies that a young fellow had in a carriage.” The man was “standing in the gateway, leaning his left arm on the gatepost.” But that was almost an hour earlier, about 9:50 a.m., and, as Knowlton suggested on cross-examination, he was “standing there quietly . . . in full view of everybody . . . where anybody could see him that was on the sidewalk.” Sarah Hart would later confirm her sister’s testimony. In her telling, the pale young man took on a sinister aspect. He seemed to look at the street “as though he were uneasy, trying to pry into my business.” During cross-examination, Knowlton tried to undermine her perspicacity. He pointed out that she had not recognized the man in the carriage, her own nephew, until he spoke to her.
Another set of witnesses demonstrated how easy it was to get into the house after the murders and contradicted the accounts of police witnesses. The day after the murders, Jerome Borden, Andrew Borden’s cousin and future pallbearer, stopped by at 2:00 p.m. and walked right in the front door. This suggested that the spring lock on the front door was not secure—an innocent explanation for the bolted front door on the day of the murders.
Walter P. Stevens, reporter for the Fall River Daily Evening News, arrived with Officer Mullaly. He also tried to open the rear cellar door, but he found it fastened. Then he went into the house via the kitchen and saw Lizzie Borden and Bridget Sullivan. He also spoke with Mrs. Churchill. After nosing around the house, he walked through the yard, already well trampled, along with John Manning, reporter for the Fall River Daily Herald. He then went into the barn, where he saw at least three other people going up the barn stairs, contradicting Fleet’s account of a barn loft undisturbed before his visit. Alfred Clarkson, an engineer who happened to be in the neighborhood, said he arrived at the Borden house about 11:30 a.m. He, too, looked around the barn (in the company of Officer Wixon), including the upper story, where he saw three other men. Critically, he, too, had arrived before Fleet. Knowlton worked to undermine his certainty about his arrival time. At the preliminary hearing, he had testified he had arrived closer to 11:40 a.m. Knowlton questioned how many minutes he had spent chatting with Charles Sawyer, the seconded civilian sentry, before going into the barn. He estimated seven or eight minutes. Knowlton inquired: “Would you swear it wasn’t nine? . . . ten?”
Hymon Lubinsky, an ice cream peddler, offered significant evidence and unintentional comic relief. Howard saw only the latter, writing that Lubinsky “gave some unimportant testimony at great length, the grain of wheat in the chaff being that . . . when he was on his ice cream route he saw Miss Lizzie Borden coming from the barn toward the house.” His account corroborated Lizzie’s claim to have been in the barn during her father’s murder. Lubinsky knew that the woman he saw was not Bridget Sullivan; he sold her ice cream “two or three weeks” before the murders. Lubinsky said he had been on Second Street in front of the Borden house shortly after 11:00 a.m. Lubinsky might have been sent as a personal trial for the normally even-keeled Knowlton. Trying to pin him down on the exact location, Knowlton fired off an exasperated series of questions: “What part of the street was it on? Don’t you understand these questions I put now? Don’t you understand all I am saying? Don’t you understand I am asking what part of the street your team was on?” As with the Francophone Chagnons, Knowlton seemed to think that Lubinsky might better understand repetition and a raised voice, shouting his questions as he walked back and forth between his desk and the witness stand. Lubinsky, for his part, managed a dignified response, pointing out that he was not “educated in the English language.” Knowlton also found Lubinsky maddeningly imprecise about when he had begun his route. Lubinsky said he had looked at his watch because he was running late, but he did not note the exact time. Knowlton asked: “Why could you not tell the time? . . . You did not take notice of the big hand, but you took notice of the little hand?” But Charles Gardner, the owner of the stable where Lubinsky’s horses were kept, corroborated Lubinsky’s estimate that he had left about ten minutes after 11:00 a.m.
Two boys, Everett Brown and Thomas Barlow, testified that they had also been in the barn, again casting doubt on earlier police testimony. When they arrived on the scene, they tried unsuccessfully to get into the house, guarded by Charles Sawyer. They then dared each other to go into the barn. Hoping to catch the murderer, they looked in the loft, which they said they found cooler than the outdoors. Assistant Marshal Fleet chased them off. But they hung around the street with the other gawkers until their 5:00 p.m. supper hour. After they had eaten, they returned to their spot in front of the Borden house until midnight. Their testimony was a serious attack on the police account of finding the barn undisturbed, an account that had called into question Lizzie’s own story about being in the barn before finding her father’s body. Knowlton questioned whether they really had been there as early as they testified: “So your usual time for eating dinner was before eleven o’clock?” As for their testimony about the barn loft, he asked, incredulously, “It really struck you as being a cool place, up in the barn?” He continued sarcastically: “A nice, comfortable, cool place?”
The next witness, Joseph Lemay, required a French interpreter to testify. A farmer, he lived about four miles north of City Hall in Steep Brook. He was to testify that, on August 16, he saw a man sitting on a rock, muttering “poor Mrs. Borden.” Lemay noticed the man had what seemed to be blood spots on his shirt. He spoke to the man twice in French. The man stood up, lifting a hatchet from the ground by his side, and shook it at him. Lemay brandished his own defensively. After a few minutes, the man “turned, leaped over a wall, and disappeared in the woods.”
But before Lemay could tell his story, Knowlton objected to his testimony and the jury left the courtroom. Knowlton said that the memorandum he had prepared was at his house, as he “had not any idea of this matter coming up at this time.” Nonetheless, he cogently explained his objection. Given that the prosecution contended that Lizzie Borden had exclusive opportunity, he agreed that the defense could bring in evidence “which would have some tendency to show that some other person was there or that some other person was seen” near the Borden house at the relevant time. But he argued this was different: “This has no relation whatever in time to the occurrence; it has no relation in place to the occurrence; it has no connection with the occurrence excepting some talk had by the person himself.” Insofar as the defense wished to use the statements supposedly made by the man Lemay had seen, Knowlton observed that such statements were hearsay and “may well be taken to be the mutterings of some person who had been brooding upon the crime.” Hearsay is an out-of-court statement offered for the truth of what it asserts; the rule against admitting hearsay evidence was well established. Indeed, Wigmore called it “that most characteristic rule of the Anglo-American Law of Evidence—a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system.” Warming to his theme, Knowlton continued, “Four miles away from this town, twelve days afterward” put this incident in the same class as the “wild and imaginative stories” in false confessions that are “either the results of disordered imagination or the creation of some persons undertaking, for reasons unknown, to obstruct the natural and orderly course of justice.” There would be no way for the jury to assess whether the mysterious man seen by Lemay was crazy or a crank and no opportunity for the prosecution to cross-examine him about his statement. In short, this was exactly the kind of evidence that sowed confusion and ran the risk of turning “the jury away from the question in hand.”
