The Trial of Lizzie Borden, page 26
Whether or not he realized the danger, Robinson pivoted back to safer ground. He had another ready explanation for Lizzie’s prescience when she told Alice Russell that she feared “someone would do something.” He pointed out “a good many people . . . believe in premonitions, and things will happen sometime for which we see no adequate cause . . . but an event will so happen as to seem to furnish a connection.” He said, “I do not say it is one way or another.”
As if ticking off events involving Alice Russell, Robinson discussed two incidents that the prosecution believed showed Lizzie’s subterfuge after the murders: Lizzie’s second visit to the cellar on the night of August 4 and her burning of the dress the next Sunday. Robinson remarked on the ordinariness of the visit, alluding to Lizzie’s “monthly sickness” and the location of the pail. He also noted Lizzie’s lack of concealment, insisting that “a person who is going to do anything to cover up a crime will not carry an electric light with him.” He then turned to the most damning piece of evidence: Lizzie’s burning of her dress after the murders. Robinson sowed confusion about what Lizzie was wearing on the morning of the murders: “It was not a time for examining colors and afterwards they recollected as well as they could.” “So,” he admitted, “there has been a conflict of testimony” about Lizzie’s dress. But he reminded the jury: “They had all seen her and every one says there was not a spot of blood on it.” As for the burned Bedford cord dress, both the dressmaker and the painter agreed that it had been stained with paint. Moreover, the police had already conducted a comprehensive search of Lizzie’s wardrobe. So what if Lizzie burned a paint-stained dress at Emma’s suggestion? Ridiculing the prosecution’s theory that she used the missing dress as a sort of coverall, he said: “I would not wonder if they are going to claim that this woman denuded herself and did not have any dress on at all when she committed either murder.” There was, in fact, a persistent rumor that the prosecution would argue that Lizzie Borden committed the murders in the nude, a suggestion almost as shocking as the killings themselves, but the prosecution never made that argument. (Ralph dismissed the notion as a “peculiarly French” theory.)
Robinson reserved his sharpest humor for the array of hatchets and axes offered into evidence, a collection he described as “all the armory of the Borden house.” According to Robinson, “The government has a theory about it, or at least seems to have a theory, and then does not seem to have a theory.” Robinson methodically described the hatchets and axes, picking them up and putting them down as he explained they had been “declared innocent.” Robinson asked: “Is the Government trying a case of may-have-beens[?] . . . And if they cannot tell you that that is the implement that committed the crimes, where is it?” Echoing the imagery used by the preacher Jonathan Edwards in his most famous and terrifying sermon, “Sinners in the Hands of an Angry God,” Robinson warned the jury: “Gentlemen, you walk upon the edge of a precipice. You think you feel the hand of the Commonwealth guiding but . . . [i]t is a fraud, it is a theory, born in an emergency at a time of disaster.” Had the trial been held any earlier, Lizzie might have been mistakenly convicted on the basis of “cow’s hair and the appearance of blood” on the hatchets “now declared to be innocent.” Relying upon shifting explanations of the medical authorities, they risked “murder at the hands of theorizing experts.”
Robinson then turned to the prosecution’s most important point: Lizzie Borden’s exclusive opportunity. He countered: “Exclusive opportunity is nothing but an anticipation that was not realized.” He reminded the jury that the side door was unfastened in the morning: “There is nothing to show that Bridget was in a position so she could control the inside of the house, for she was not.” He reminded the jury of the strange man spotted on Second Street the morning of the murders. Robinson compared the apparent invisibility of the assassin with the absence of eyewitnesses to parts of Andrew Borden’s walk from the house to the bank the last morning of his life: “You cannot see everybody.”
Robinson returned to his theme of Lizzie as hapless female victim, again bringing his point literally home to the members of the jury. Comparing Lizzie Borden’s story of her activities with one their wives might tell, he cautioned: “I am taking you into the house just as I would go into your house, for instance, and say, What are your wives doing now? Well, doing the ordinary work around the house, getting the dinner.” His message to the jurors was clear: any respectable woman, perhaps one of their own wives or even daughters, could be sitting in the dock. And he asked them to empathize with her ordeal, his language freighted with innuendo: “How would your wife or mine act if taken by an officer, investigated and crowded and pushed and then bound over to lie in the jail of this county for ten months, being scanned by everybody?”
Warming to his theme, Robinson painted the police investigation as highly improper. He asked them to visualize Assistant Marshal Fleet, “the set of that mustache and the firmness of those lips,” interrogating Lizzie Borden in her bedroom: “And there he was, up in this young woman’s room in the afternoon, attended with some other officers, plying her with all sorts of questions in a pretty direct and peremptory way.” “Is that the way,” he asked, “for an officer of the law to deal with a woman in her own house? What would you do with a man . . . that got into your house and was talking to your wife or your daughter in that way?”
After enjoining the jurors to see Lizzie as their own wife or daughter, Robinson advanced the key defense proposition: a woman like Lizzie could not have committed these murders. He reminded the jury of the singular brutality of the murders. The murderer stood astride Abby and leaned over Andrew’s head to deliver the blows—some of which crushed their skulls—so that “the person of the assailant in both cases must have been thoroughly covered and spattered.” “Such acts as those,” he insisted, “are morally and physically impossible for this young woman defendant.” Though he urged the jury to accept the discredited notion that Lizzie could not physically have committed the murders, he was primarily concerned with the moral impossibility of her having done so. But as if suddenly recalling a weak point in his argument, he urged the jury to suspend judgment about his client’s notable composure, even quoting a maudlin song for the proposition that her lack of tears belied a deep reservoir of feeling: “The eyes that cannot weep / Are the saddest eyes of all.” (He all but promised the jury that she would have her overdue nervous collapse in private once the trial was over.)
Having dispensed with Lizzie’s self-possession, he returned to a variation of his theme that she simply could not have committed the murders. He evoked Lizzie Borden’s life before the murders, a life that exemplified respectable feminine virtue. An active church member outside the home and a dutiful daughter within its boundaries, she was a credit to her sex and class. How could such a woman be a murderer? Robinson insisted: “It is not impossible that a good person may go wrong . . . but our human experience teaches us that if a daughter grows up in one of our homes to be 32 years old, educated in our schools, walking in our streets, associating with the best people and devoted to the service of God and man . . . it is not within human experience to find her suddenly come out into the rankest and baldest murderess.”
Here, as he had done many times previously, Robinson played upon the incongruity between the image of a raving maniac who perpetrated the murders and the prim embodiment of femininity accused of the crime. He juxtaposed the two contradictory images of Lizzie Borden: “Gentlemen, as you look upon her you will pass your judgment that she is not insane. To find her guilty you must believe she is a fiend. Does she look it? . . . [H]ave you seen anything that shows the lack of human feeling and womanly bearing?” Robinson’s formulation left the jury with no rational, scientific explanation for Lizzie Borden’s guilt. He had foreclosed a medical diagnosis that would deny Lizzie Borden’s responsibility even as it affirmed her guilt. Therefore, she either sanely butchered her stepmother and her father or she was an unjustly accused and persecuted young woman. After presenting the jury with a stark choice—daughter or fiend—he concluded his argument with a warning: “There must be no mistake, gentlemen.” Alluding to the mandatory death sentence, he reminded the jury that any error would be “irreparable.” This warning morphed into a curse: a guilty verdict in the face of reasonable doubt would be so “deplorable an evil that tongues can never speak of its wickedness.” Setting Lizzie free, by contrast, would be “sanctioned and commended.” Lizzie, he reminded them—partly as encouragement, partly as a threat—was “not without sympathy in this world.” After letting that register, Robinson shifted his tone again, thanking the jurors for their patience and conferring on them, almost as a benediction, the role of paternalistic guardians. He urged them “to take care of her as you have and give us promptly our verdict of not guilty.” It was just after 3:00 p.m.
The Fall River Daily Evening News declared: It was an “acute and adroit unmasking of the weakness of the case of the prosecution. One by one his sledge hammer seemed to knock the props out from under the case for the prosecution till it hardly seemed as though the state’s attorneys had a leg left to stand upon.” The Boston Post concluded: “As an appeal to the common sense the speech is a mastery.” Another reporter explained: “Robinson indulged in no flights, but in a matter of fact way talked to the hardheaded, cool old farmers in the jury.” Robinson’s simplicity and clarity had already won him “universal admiration.” “The argument,” another noted, “was worthy of the occasion and of the man.”
The New York correspondents were less impressed. Robinson may have been a peerless cross-examiner, an unrivaled “seducer into unwitting admissions,” but, in Howard’s estimation, his closing argument “fell short of the anticipation in both matter and manner.” Ralph went further: “It never reached up to eloquence and it never reached into the heart of the hearer.” “Worse yet,” he continued, “it was conceived in the wrong spirit . . . There was never a note of triumph in four hours of talking, nor was there one bold declaration of the woman’s innocence. Instead of adopting this manner, Mr. Robinson took the defensive.”
District Attorney Knowlton for the government, Boston Globe
When Hosea Knowlton rose to give his closing argument, he knew he faced a formidable challenge. Knowlton had lost the two most important rulings on evidence, rulings excluding Lizzie’s inquest testimony and her alleged attempts to buy prussic acid. He now stood before a jury that had just heard Robinson’s summation, a summation that was as much sentimental narrative as legal argument. And it was so hot in the courtroom that “the crowd inside was one vast fan.” But, as Howard put it, “[h]is strong personality, his firm New England temperament, his devotion to duty, but above all his matchless skill in forcible statement, his incisive and logical mind combined with his long experience in prosecuting legal offenders were all at his command.”
Knowlton immediately acknowledged the special horror of the crimes: “In the midst of the largest city of this County, in the midst of his household, surrounded by houses and people and teams and civilization in the midst of the day . . . an aged man and an aged woman are suddenly and brutally assassinated. It was a terrible crime. It was an impossible crime. But it was committed.” The sense of “impossibility” did not end with the crime. If anything, the identity of the accused increased it. “If you had read the account of these cold and heartless facts in any tale of fiction,” Knowlton admitted, “you would have said . . . That will do for a story, but such things never happen.” Knowlton acknowledged: “It is no ordinary criminal that we are trying today. It is one of the rank of lady, the equal of your wife and mine . . . of whom such things have never been suspected or dreamed before.” This fact, above all others, gave the case its “terrible significance.” He explained: “We are trying a crime that would have been deemed impossible but for the fact that it was, and are charging with the commission of it a woman whom we could have believed incapable of doing it but for the evidence that it is my duty, my painful duty, to call to your attention.”
Before specifically linking Lizzie Borden to the crimes, Knowlton provided well-known examples of unlikely criminals. First, Knowlton argued that “no station in life is a pledge or security against the commission of crime.” Knowlton described ostensibly respectable gentlemen who absconded with funds, particularly those of widows and orphans. For example, in a notorious episode from the 1870s, two socially prominent Fall River businessmen were tried for embezzling bank funds. Knowlton explained: “They were Christian men, they were devout men.” Yet, he added, “When the crash came it was found they were rotten to the core.” Second, he argued even the “sacred robes of the church are not exempt,” for even ministers “have found themselves to be foul as hell inside.” Knowlton was referring to the Reverend Ephraim Avery, a Methodist minister tried for the 1832 murder of pregnant factory worker Sarah Cornell, once Fall River’s most notorious killing. Third, he argued that youth was no protection against crime, citing the case of Jesse Pomeroy, “a boy of tender years” who was “the most fiendish murderer that the Commonwealth ever knew.” Finally, he asked the most important question: “Is sex a protection of crime?” Knowlton reminded the jury of a notorious murder case “within the remembrance of every man I am talking to,” involving a woman known as “the Borgia of Somerville.” Sarah Jane Robinson’s well-insured family died with a suspicious regularity; she was convicted of one poisoning (and suspected of six others) in 1888.
Although he implied that he had intended to theorize a criminal lady, he had not. Instead he separated out the four most disturbing factors—class, religion, youth, and sex—from Lizzie’s identity to argue that none of them was, in and of itself, a barrier to criminal behavior. He could easily have ignored youth. But instead of pointing out that Lizzie Borden was, after all, an adult of thirty-two years, Knowlton colluded in the defense’s presentation of Borden as a young girl. It seemed that Knowlton could not see past her designated minority as an unmarried daughter living in her father’s house. The other factors were even more difficult to dismiss. Class, religion, and sex together formed a potent cocktail. Knowlton’s only example of a female murderer was not of Borden’s class, nor was she a member of the Christian Endeavor Society. She had also used poison, the quintessential tool of the female murderer.
Knowlton returned to the sex of the accused. He acknowledged that “it is hard . . . to conceive that women can be guilty of crime.” But he enjoined the jurors to remember that women “are human like unto us. They are no better than we; they are no worse than we.” Despite this nod to equality, Knowlton then drew a picture of the female criminal illustrated by Shakespeare and Dickens (the two “great master[s] of human nature”) and supported by prevailing attitudes about women’s nature. Contending that “many of the most famous criminals have been women,” he alluded to the character of Lady Macbeth, implying that a woman might strike down a sleeping king, the nation’s father, when a strong man would, in the same position, lose his nerve. Similarly, he described Tulkinghorn’s murder in Bleak House as “the most dastardly, the most desperate, the most absolutely brutal crime” in Dickens’s oeuvre. Knowlton was a better lawyer than a literary critic: Lady Macbeth, he failed to observe, had not actually delivered any of the blows; and Sikes’s bludgeoning of Nancy in Oliver Twist was far more brutal than the maid Hortense’s shooting of the sinister lawyer Tulkinghorn. After running through these dubious literary examples and failing to produce historical precedents, he fell back upon ancient tropes about female nature: what women “lack in strength and coarseness and vigor,” Knowlton contended, “they make up for . . . in cunning, in dispatch, in celerity, in ferocity. If their loves are stronger and more enduring than those of men, am I saying too much that, on the other hand, their hates are more undying, more unyielding, more persistent?” For that reason, he enjoined the jurors to “face this case as men, not as gallants.”
As he spoke, Knowlton “time and time again left his place behind the bar, walked around to the jury, stood at their side or immediately in front of them, and spoke with marked earnestness, distinctness, and emphasis.” While he moved around the court, Lizzie’s gaze never wavered. She craned her head to one side or the other so that her view remained unobscured. According to Howard, “She lost no word, no inflection, no gesture, but looked at him as though with a pitying amazement at the whole procedure.”
In a tonal pirouette, Knowlton defended himself and his colleagues. He admitted that he had personally been stung by “slanderous tongues” imputing unworthy motives to his prosecution. Nothing but the sheer weight of evidence could have persuaded him to proceed. “Gentlemen,” he said, “it is the saddest duty of my life.” In the same vein, he defended the police, the objects of his opposing counsel’s sarcasm: “A blue coat does not make a man any better; it ought not to make him any worse.” He admitted the police made mistakes but contended that they did their work “honestly, faithfully.” As for the medical experts, whatever cavils they might hear from the defense, the scientific testimony was uncontroverted. He noted: “You will find that their conclusions are accurate because those who could have disputed them have not done so.” The most important point of agreement, the evidence that made it seemingly impossible for an outside intruder to have committed the crimes, was the medical judgment that more than an hour separated the two murders, a point to which he would return with great emphasis.
To prepare the jury to understand the cumulative effect of the evidence introduced at trial, he carefully outlined the value of circumstantial evidence. First, he explained the simple distinction between direct and circumstantial evidence: “Direct evidence is the evidence of a man who sees and hears: circumstantial evidence is all other kinds of evidence.” He refuted the defense argument that circumstantial evidence was an inferior class of evidence, something calling for special skepticism. If anything, “Men will not tell the truth always: facts cannot tell but one story.” “Murder is the work of stealth and craft,” he reminded the jury, “in which there are not only no witnesses, but the traces are attempted to be obliterated.” Lest anyone still question the reliability of circumstantial evidence, he turned again to classic literature. He alluded to Robinson Crusoe’s famous discovery of another set of footprints on his apparently uninhabited island. Knowlton explained: “It was circumstantial: It was nothing but circumstantial evidence but it satisfied him.” After all, Knowlton continued, “[H]e had no lawyer to tell him that there was nothing but circumstance.” For the nonliterary juror, he provided a natural metaphor: “It is like refuse that floats upon the surface of the stream. You stand upon the banks of the river and you see a chip go by. That is only a circumstance. You see another chip go by. That is another circumstance.” Yet, “You would not hesitate,” after viewing those chips travel by, “to say you knew which way the current of that river was.”
