The Trial of Lizzie Borden(32)

After what may have seemed like an age but was only ten minutes, the crier announced the arrival of the court. In Massachusetts, capital cases (cases in which conviction could result in the imposition of the death penalty) were heard by a panel of three superior court judges, selected by the chief judge. The three judges were Chief Justice Albert Mason, Associate Justice Caleb Blodgett, and Associate Justice Justin Dewey. All had practiced law more than twenty years before ascending to their judicial offices; each had been admitted to the bar the year Lizzie Borden was born. At first glance, the bearded judges composed an “imposing bench . . . with the suggestion of unrelenting Puritan sternness about it, calculated to chill an evildoer to his very marrow.” Chief Justice Albert Mason was, in the words of one reporter, “a dignified old gentleman, with a benignant expression of countenance, silvered hair and beard, so cut as to emphasize his square built and significant under jaw.” His “large brown eyes,” thought Elizabeth Jordan, betrayed a “searching melancholy.” In Jordan’s view, Mason’s entire aspect radiated thoughtfulness. Like Judge Mason, Judge Justin Dewey was a silver-headed and gray-bearded eminence, “a scholarly looking man with a large head,” and a “massive face, lighted by kindly eyes.” Most thought him a “tender-hearted man.” Most important for the defense, he had been appointed to the bench by Lizzie Borden’s counsel, Governor George Robinson, yet he had a “reputation for wisdom and impartiality.” He took careful notes of the proceedings. Judge Caleb Blodgett, by contrast to the others, was a bit of a dandy. Though he was, in fact, the eldest of the three, he appeared to be “a younger and of a more modern type of individual, scrupulously careful as to the cut of his hair and beard, with an intellectual forehead, a piercing eye, a noticeably neat habit of attire, clad indeed à la mode from his white necktie to his well-polished boots.” Nonetheless, he oozed good nature. He was considered, if anything, “too merciful, even lenient.” All were married men with children; Mason had daughters Lizzie’s age. Judging by their countenances alone, the judges were, according to Joe Howard, “precisely the kind of trio an innocent man would like to be tried by.”

At the beginning of May, Chief Judge Mason met with his fellow judges Blodgett and Dewey to discuss procedural matters. Mason was concerned that one of the judges might fall ill during the trial; there was no precedent for determining whether the trial could continue with the remaining two. Prior to 1891, the Supreme Judicial Court of Massachusetts had jurisdiction over capital cases and the issue had simply not come up in superior court. In a letter to Pillsbury on the subject, he referred to Pillsbury’s own illness as “an illustration of the danger.” He questioned whether a legislative fix might be preferable, for “[t]o enter a trial of this character at the end of a hard years [sic] work and in hot weather is attended with considerable risk of a large expense coming to nought from disability of a single judge.” After thinking the matter over, however, Mason concluded that “the objections to attempting legislation at the present time outweigh the risk of going on with the statutes as they are. When the matter is considered it should be without haste and with no reference to any particular case.”

Chief Judge Albert Mason, Judge Caleb Blodgett, and Judge Justin Dewey, 1892, Boston Globe



The Reverend Julien of New Bedford, “a preacher of intense vitality and great aplomb,” offered a prayer, and jury selection began. Jurors were to be chosen from a panel of prospective jurors drawn from the county voting registers and summoned to appear at the courthouse on that day. The judges had determined that because of “the intense prejudice for and against the prisoner” in Fall River, the potential jurors would be drawn from other areas of the county. The 150 prospective jurors, all men, were solid New England characters, many of whom appeared anxious to resume their normal activities. (Women did not have the right to serve until 1950 and would not become jurors until 1951 in Massachusetts.) One newspaper speculated that it would be hard to find young men for the jury who had not already formed an opinion on the case. There was at least one African American among the prospective jurors—African American jurors had served on Massachusetts juries since 1860.

One by one, the men stood in front of the jury box to be questioned by Judge Mason. As Joe Howard explained: “The examination of jurors in a Massachusetts court is no joke. Instead of occupying a comfortable chair on the witness stand . . . the juror stands in an open space in front of the jury box exposed to the view of all concerned.” Unlike other jurisdictions in which lawyers ask questions, in Massachusetts “the judge does all the talking.” Chief Justice Mason handled the examinations gracefully: “He spoke very carefully, firmly, and distinctly, enunciating each syllable separately, and rolling his r’s a little.” His questions were “incisive, yet there is something so suave and reassuring in his manner” that he put the prospective jurors at ease.

The men were asked: Were they related to the prisoner or to the victims? One was an uncle by marriage; he was excused. This unexpected family reunion permitted a small moment of levity in the tense atmosphere. Uncle and niece smiled and saluted each other. Had they formed or expressed an opinion in relation to the case and were they aware of any bias or prejudice? Yes, said Mr. Baker, the first but not the last to do so. Thirty-five men had formed an unshakable conclusion about the case. Did they have an objection to the death penalty? Nineteen proclaimed scruples and were dismissed. Joe Howard observed that “this sentiment is spreading with noticeable strength throughout New England.” Ten were excused for other reasons. Those that the judge pronounced fit to serve (or “indifferent” in formal parlance) were still subject to challenge by the prosecution and defense. The defense challenged seventeen, the commonwealth fifteen.