The Trial of Lizzie Borden(64)

Knowlton attempted to recall Dr. Dolan to testify about prussic acid, but the court decided the medical examiner was not qualified because he had not personally investigated a prussic acid poisoning. Knowlton then tried one last gambit. Perhaps he could at least show that sealskins were not susceptible to moths, undercutting the argument that Lizzie might have sought prussic acid to combat an infestation. He recalled Henry Tillson to ask whether sealskin was sold in its natural state. That was excluded. He had a final question for Henry Tillson: Were sealskin capes “subject to the actions of moths or other vermin”? That, too, was excluded. Knowlton then sought to recall Eli Bence, the Fall River pharmacist, so that he could describe his encounter with the woman who had asked for prussic acid. But he had come to the end of the line.

To the great relief of the defense, the court excluded the evidence on the grounds that “the preliminary proceedings have not been sufficient.” Robinson’s ingenuity in dealing with the poison testimony was widely credited. He had thwarted Knowlton’s every attempt to let his witnesses offer their opinions, objecting at every level, from the framing of the questions to the expertise of the witnesses.

According to a later commentator, this decision generated “almost universal surprise by the bar.” As the evidence scholar Wigmore later observed, “What a wonderful web of obscurity the legal mind can contrive to weave over the simplest matters! A woman of ordinary knowledge is alleged to have bought prussic acid for cleaning furs; but two men of technical accomplishments are not allowed to say that there is no such use known to their experience!” In his view, the judges should have permitted the evidence and let the defense make its argument about the innocent uses of prussic acid in front of the jury. He asked: “Why was it necessary to exclude all conceivable hypotheses except that of criminal use? If, as the medical man testified, that acid-vapor is the most poisonous known, and there is no ordinary commercial use for it, is not this enough? Admissibility does not require the exclusion of all other conceivable hypotheses but one; it lies on the opponent to demonstrate, after the admission on grounds of fair and ordinary probability, that certain other reasonable hypotheses exist.”

Wigmore’s rationale juxtaposed the “men of technical accomplishments” and “a woman of ordinary knowledge.” One of his students recalled: “He held forth the ideal of the expert, the individual who by mere knowledge would be in demand as an adviser, or an advocate.” His confidence in that professionalism was mirrored in the structure of the criminal trial itself. As Wigmore succinctly explained in a later work, “The judge for admissibility, the jury for weight—such is the orthodox and unflinching rule of the common law.” Legal professionals—one might call them “men of technical accomplishments”—determined what jurors, men of “ordinary knowledge,” could hear as evidence. Some things were thought too dangerous for them to know. Moody blithely insisted that Lizzie Borden’s alleged attempts to buy prussic acid merely showed her intent, but the judges knew that it would be difficult for the jury not to conclude that someone who tried to buy poison on Wednesday must have been Thursday’s hatchet-wielding assassin. There was another, unstated reason not to let this evidence in. Not only did these efforts to procure a deadly poison show murderous intent, but they also would have offered the jury a plausible explanation for the masculine brutality of the crime. If Lizzie had tried and failed to buy poison, that supremely feminine weapon, then she might well have turned in frustration to a readily available household implement to carry out her murderous design.

All of this assumes that the defense intended to accept the prosecution’s claim that Lizzie had indeed attempted to buy prussic acid at D. R. Smith’s on August 3. She herself had never acknowledged doing so. Rather, she denied being in the store. Robinson was perfectly capable of arguing in the alternative: that Lizzie had not, in fact, made any attempt to buy prussic acid, and even if she had done so, she would have had an innocent purpose in so doing. Jennings’s notebook contains an entry mentioning a pharmacist named Edward Cate who said that “old country people” often bought prussic acid for killing animals. In fact, prussic acid’s reputation as a poison for cats—as Robinson himself had pointed out—meant that physicians struggled to convince patients to take it for proper medicinal purposes. But that would have been a risky strategy in front of the jury.

The defense argument about prussic acid’s innocent uses also obfuscated a critical point: whoever asked for the prussic acid said she wanted it to clean her sealskin cape and Lizzie Borden owned a sealskin cape. (According to her inquest testimony, there were two sealskin sacks hanging in white bags in the attic.) Sealskin had become a fashionable fur, popular enough to spawn a faux version made out of muskrat, marketed as “Hudson Seal.” Owning a sealskin cape may not have been unusual for a woman like Lizzie, but cleaning furs in August was unheard of. Over the summer, furs were stored in homes or at furriers like Henry Tillson’s establishment. No one in a well-regulated household would be cleaning a cape in the summer by any method, let alone with prussic acid.

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After losing the point, Knowlton formally offered all plans and exhibits. Knowlton had intended the poison evidence as the dramatic finale. Instead, the prosecution rested at 10:30 a.m. Elizabeth Jordan said: “Knowlton, after another and final parade of the dismal paraphernalia of the crime, sat down in the ruins and rested his case.”