The Trial of Lizzie Borden(51)
Lizzie wept. Given the stakes, the reaction was understandable. Howard wrote: “She couldn’t help it. She was nervous, upset, tired out, strained with a tension that no man need hope to understand, and when this great, wide horizon of relief was unfolded to her, human nature asserted itself, and of course she broke down and of course she cried.” Elizabeth Jordan went beyond mere sympathy, slipping into sentimental caricature: “It would seem that she had become so accustomed to nothing but cruelty from the fates as to be almost callous to all other injuries they have in store for her, but that too much kindness on their part had been quite too much and the spark of relief had quite unstrung her.” Meanwhile, the jury returned to the courtroom. Howard wondered what the jury made of the scene: “The agitation of the counsel, the nervous condition of Miss Borden, the cheery look of popular satisfaction on everybody’s face, was all Greek to that branch of the court.”
All agreed that the defense had won a “signal victory” in excluding Lizzie Borden’s inquest testimony. But whether it was the right decision divided experts and laypeople. It was, according to Ralph, “a new point of law in the old Bay State.” Public opinion mostly followed the press in commending the judges’ ruling. Members of the legal profession took a contrary view. Judge Charles Davis of Boston mildly acknowledged that the question had not been authoritatively decided in Massachusetts, but concluded that “common sense dictated a contrary result.” More scathing was a young legal scholar named John Henry Wigmore, who would become the nation’s preeminent authority on the law of evidence. Wigmore pointedly inquired: “Is there any lawyer in these United States who has a scintilla of a doubt, not merely that her counsel fully informed the accused on her rights, but that they talked over the expediencies, and that he allowed her to go on the stand because he deliberately concluded that it was the best policy for her, by so doing, to avoid all appearance of concealment or guilt? And yet the ruling of the Court allowed them to blow hot and cold—to go on the stand when there was something to gain and to remain silent when the testimony proved dangerous to use.”
For the prosecution, it was a serious blow. Attorney General Pillsbury dropped everything to take the train from Boston to New Bedford on Monday night to discuss this setback with Knowlton and Moody. They met secretly at Knowlton’s house on Union Street. The Fall River Daily Herald observed, “Very few people knew of his being in town, and his appearance at this time is very significant.” Having lost their best evidence about Lizzie’s “motive,” they would need their medical experts to establish “exclusive opportunity.” Across town at the Parker House, the atmosphere among the defense counsel was festive. “It was,” according to one correspondent, “impossible to get them to talk seriously.” Robinson “retired at once to his room, but Mr. Jennings and Mr. Adams lingered in the corridors.” Jennings “puffed at his cigar and grinned.”
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Having lost the point, the prosecution regrouped as best as possible and proceeded to the medical experts. But first Joseph Hyde, the patrolman assigned to the Borden house until 11:00 p.m. on August 4, took the stand to describe something he witnessed on the night after the murders. While posted on sentry duty outside the house, he looked through the cellar window and saw Alice Russell and Lizzie Borden descend to the cellar about 8:45 p.m.: “Alice Russell was carrying a small hand lamp. Miss Lizzie had a toilet pail.” Alice lingered at the foot of the steps while Lizzie went first into the water closet to “empty the slops,” then to the sink to rinse the pail and turn on the water. Afterward, they went back upstairs together. Then, ten or fifteen minutes later, Lizzie made a solitary trip to the wash cellar. The cellar also housed the bloodstained clothes from the murder victims. Placing her lamp in the west end of the cellar (closest to the street), she bent down in front of the sink located on the east end of the cellar. Hyde testified: “What she did I don’t know.”
On cross-examination, Robinson explored the nocturnal visits in some detail, trying to establish the ordinariness of the procedure. Hyde agreed that, on the first visit, the women came down to the cellar “in a perfectly natural way,” but that Alice Russell nervously lingered by the stairs with the lamp “as though she would not go.” Hyde also agreed that he could see their actions clearly through the windows. As for the later visit, he said he could see Lizzie but could not see the sink or observe what she was doing as she stooped before it. Robinson emphasized that the procedure had taken less than a minute and that the pail containing the bloody towels was near the sink, leaving the jurors to make the obvious inference.
BOWERY CHAMBER OF HORRORS
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The prosecution moved on to its medical experts. All would testify, like the local physician Dr. Albert Dedrick, that Andrew and Abby were killed about at least an hour and a half apart and that Abby Borden had died first, her blood being of “a ropy consistency.” Julian Ralph pitied the jury: “Whoever knows how tedious and longwinded the average medical expert is will form an idea of what is in store for the unfortunate jury this week.” Most irritating to Ralph, “Their testimony bears little on the vital question” of Lizzie’s guilt or innocence, “it being settled that the stepmother was killed first.” For the prosecution, the testimony was critical to their case: the order of deaths and the exact interval between the murders established Lizzie’s exclusive opportunity.