The Trial of Lizzie Borden(50)

Juggling with a woman’s life, courtesy of Fall River Historical Society



But, he acknowledged, “I am not talking to the jury.” So he pivoted to questions of law. Robinson’s line of argument set out two threshold questions: First, was it obvious that there had been a crime? Second, was the defendant then under suspicion? According to Robinson, the inquest was set up to “extort . . . from the defendant something that could be used against her” when she inevitably came to trial. Robinson asked: “What did they want this woman for? To find out if there had been a felonious homicide? No. To find out something, to see if they could not catch her some way.” The inquest was little more than a trap. Seventy-three years before the Supreme Court’s Miranda decision, Robinson argued that the district attorney or the magistrate should have cautioned her, informing her “that she ought not to testify to anything that would criminate herself.” However blistering his critique of the procedure, Robinson presented his argument in his typical “agreeable, confidential manner, pooh-poohing the quotations submitted by Mr. Moody.”

It is intriguing that Robinson failed to exploit the powerful rationale of the case law on this point—the psychological insight that involuntary statements are often unreliable. As an earlier case explained, innocent people who know they are suspected may try to conceal damaging facts or concoct stories. “The mind, confused and agitated by the apprehension of danger, cannot reason with coolness,” said the court in State v. Gilman, “and it resorts to falsehood when the truth would be safer.” But Robinson did not need to run the risk of suggesting that Borden might have lied because she felt endangered. Instead he kept the judges focused on the assumption that, as a woman, Lizzie was inherently vulnerable to confusion. He even insisted that the officials had an affirmative duty to protect her and prevent her from testifying. Grief-stricken at the violent death of her father, unsettled by unjust suspicion, and incapacitated by morphine, a woman like Lizzie Borden could not testify clearly. Robinson exclaimed: “Denied counsel . . . she stood alone, a defenseless woman . . . If that is freedom, God save the Commonwealth of Massachusetts!”

In his reply, Moody retorted by paraphrasing a French officer on the Charge of the Light Brigade: “It is magnificent but it is not law.” Moody pretended to struggle as he summarized Robinson’s argument: “So far as I can understand his position, it is that this testimony is not admissible because it is not.” He characterized Robinson’s argument as mere “vocal gymnastics and fireworks,” an argument unsupported by a single case. Moody insisted that there were no cases in which a person’s statements were excluded if that person had not been under arrest at the time of making the statements. He denied that the “absence of the magistrate’s caution somehow changed the equation. He reminded the judges that Lizzie’s lawyer Andrew Jennings had accompanied her to the inquest. Yes, he was denied permission to be in the room with her, but that was entirely within the commonwealth’s discretion. Moody asked, incredulously: “Can your Honors have any doubt, can your Honors have a particle of doubt, that after she had talked with Mr. Jennings . . . that she went in with a full consciousness that she had a right to decline?” Moody could not understand how “an undisclosed warrant, of which she had no suspicion whatever, could bear in any degree upon the exercise of her will.”

Joe Howard professed shock that Moody seemed to miss Robinson’s larger point that it was “not a question of whether such and such a course was the practice, but whether the practice was right.” Moody’s “quick intuitions must have told him,” Howard continued, “that the learned judges must of necessity decide against him.”

While Moody displayed a commanding knowledge of legal doctrine, Robinson’s success at depicting an atmosphere of coercion at the inquest depended upon—and exploited—particular notions of late-nineteenth-century femininity. Julian Ralph explained that, at the inquest, Lizzie was “in the hands of Mr. Knowlton, whose manner toward her . . . led her to fear him and to shrink from him as perhaps any woman so placed would fear a powerful man whom she regarded as her enemy and her persecutor.” Joe Howard remarked of Lizzie’s treatment: “If that is not the equivalent of being under arrest, I do not understand the English language.” He continued: “Pushed, examined, cross-questioned, surrounded by hostile officials, she was badgered [and] confused . . . to such an extent that during those long, tedious three days of inquisition she contradicted herself time and time again.” For him, Borden’s inconsistent testimony was proof she was a woman, not proof she was a murderer. Moreover, there was her “befogged condition as a result of the morphine.” As the New York Times reported: “Even if Miss Borden had testified without coercion, she was in such a condition that she hardly knew what she was about.”

As the judges deliberated in private for over an hour, the tension in the courtroom suggested that the outcome was far from obvious. “Paler than a sheet, her cheeks puffy, her eyes strained, her lips shut tight,” Lizzie Borden radiated her distress. When the judges returned, Lizzie Borden “fastened a look upon the chief justice as though she would read his very soul.” Chief Justice Mason delivered the court’s ruling “in a voice as clear as a bell, with enunciation as distinct as that of [famed actor] Edwin Booth.” Though Borden had not been under arrest, he explained, she was “as effectually in custody as if the formal precept had been served.” Although he noted that the mere fact of suspicion does not automatically make a defendant’s statements under oath involuntary, he concluded: “[B]oth upon principle and authority . . . if the accused was at the time of such testimony under arrest, charged with the crime in question, the statements he made are not voluntary and are inadmissible at the trial.” Implying that the investigators strategically held off serving the arrest warrant, the judges issued a firm rebuke: “The common law regards substance more than form. The principle involved cannot be evaded by avoiding the form of arrest if the witness at the time of such testimony is practically in custody.”