The Trial of Lizzie Borden(62)

Ever the master of succinct doctrinal analysis, Moody stated the common-law rule: “Where a given intent is in question . . . any act near in point of time and significant in character is competent, no matter whether it tends to prove the commission of another crime or not.” Massachusetts law, as outlined in Commonwealth v. Bradford, 126 Mass. 42 (1878), was particularly clear on this point: “When a previous act indicates an existing purpose which, from known rules of human conduct, may be fairly presumed to continue and control the defendant in the doing of the act in question, it is admissible as evidence.” Cases from other jurisdictions presented a wide range of factual situations, but each, according to Moody, bore on the central question in the Borden trial: “Was she deliberating mischief towards somebody?” Most important for the prosecution were cases in which the defendant “prepared” to commit a crime with one weapon, but then used a different one. That the defendant in an 1882 New York case, Walsh v. People of the State of New York, for example, sharpened a knife on the morning of a stabbing murder posed no great interpretative dilemma. But the court also permitted the state to offer evidence that the defendant asked whether throwing pepper in someone’s eyes would cause blindness. Whether the evidence showing intent constituted an independent crime or whether the other acts might be considered innocent in other circumstances did not matter as long as the state offered sufficient evidence of intent in the case at the bar. And, in such cases, the jury should be allowed to draw its own inferences, giving the evidence whatever weight it deserved. To the prosecution, the parallel to the Borden case was indisputable.

Robinson, ignoring Moody’s barrage of common-law precedent, disputed the fundamental issue. First and most important, he was not prepared to concede that Lizzie could only have wanted prussic acid for illicit reasons. If the prussic acid had an innocent use, then the attempted purchase did not reveal anything about Lizzie’s state of mind. Second, he pointed out that, even assuming she had murder on her mind, “There is nothing to show to whom she meditated the malice.” What if she had bought poison to kill Bridget Sullivan? In Robinson’s view, the prosecution wanted to introduce the evidence only “to throw some sort of prejudice on the minds of men who are to pass on these facts.”

With Lizzie’s hostility to her stepmother in mind, Moody coolly responded: “There is a tendency to show to whom the malice is directed.” But Robinson argued that the prosecution was bootstrapping, relying upon the murders to give sinister import to earlier inconsequential statements or actions. Taken together, the prosecution’s entire showing of malice hinged on Lizzie’s comment to the dressmaker in March 1892 and her terse correction of Assistant Marshal Fleet (who had referred to Abby as Lizzie’s mother). Robinson pointed out that there was nothing in Lizzie’s comment to the dressmaker “that anyone can say manifests a murderous intent, or an intent to injure, to harm physically.” And, as for her comment to Assistant Marshal Fleet, Robinson blithely observed: “That was a statement of a truth in either case.” He continued: “Now can that statement made by herself to the policeman, which was subsequent to the crime, or the statement made to Mrs. Gifford antecedent to the tragedy, be raised into the force of a declaration indicating any personal violence to Mrs. Borden?” Prior cases, he insisted, involved “an open, absolute, plain declaration of a criminal purpose.” “But here,” he continued, “there is nothing of that.” Without a showing of murderous intent toward the victims, “This evidence ought not to go in so as to operate to the prejudice of this defendant before the jury, unless it is legally, logically and fairly competent to prove the act with which she stands charged.”

Perhaps recognizing the weight of authority against his position, Robinson redoubled his efforts to provide innocent explanations for the prussic acid, “an article a person may legitimately buy.” Almost in desperation, he asserted that “people buy prussic acid to kill animals—it may be the cat.” (There was no cat.) He insisted: “That is innocent. It is not a crime, at any rate.” Robinson made several attempts to distinguish the facts in the key cases even though the line of cases seemed uncomfortably on point.

Moody interrupted five times, correcting misstatements of fact. At one point, he simply said, “You mistook my point of illustration.” In a rare show of temper, Robinson retorted that, if so, his error came from Moody’s reference to something he had heard at a grand jury as one of his examples. Robinson tried again: “Take the Kansas case, which I never saw, but have just read in part.” However inelegant his argument, Robinson hewed to his line that “an act which is itself innocent” must be assessed differently from one with “a felonious purpose.” He concluded hopefully, “I must say I have said all the Court desires to hear, and I have made my meaning plain.”

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The judges retired for nearly an hour to consider the matter. Meanwhile, those in the courtroom fanned themselves and waited. “The heat tonight is something fearful,” Howard lamented. “I don’t see but what a charge of premeditated manslaughter might be suggested in case the jurors melt in their seats or the prisoner goes mad.” When the judges returned, Chief Justice Mason asked the prosecution to restate the “purpose for which the testimony is offered.” Moody responded that he was offering the testimony as “bearing on the state of mind of the defendant prior to the homicide; the intent, the deliberation and the preparation.” The judges then pronounced the evidence competent, assuming “the preliminary evidence comes up to the proffer.” In other words, if the actual testimony of the witnesses showed “intent,” then the prosecution would have a chance to put Lizzie Borden’s alleged attempt to buy poison in front of the jury.