The Trial of Lizzie Borden(68)

Two boys, Everett Brown and Thomas Barlow, testified that they had also been in the barn, again casting doubt on earlier police testimony. When they arrived on the scene, they tried unsuccessfully to get into the house, guarded by Charles Sawyer. They then dared each other to go into the barn. Hoping to catch the murderer, they looked in the loft, which they said they found cooler than the outdoors. Assistant Marshal Fleet chased them off. But they hung around the street with the other gawkers until their 5:00 p.m. supper hour. After they had eaten, they returned to their spot in front of the Borden house until midnight. Their testimony was a serious attack on the police account of finding the barn undisturbed, an account that had called into question Lizzie’s own story about being in the barn before finding her father’s body. Knowlton questioned whether they really had been there as early as they testified: “So your usual time for eating dinner was before eleven o’clock?” As for their testimony about the barn loft, he asked, incredulously, “It really struck you as being a cool place, up in the barn?” He continued sarcastically: “A nice, comfortable, cool place?”

The next witness, Joseph Lemay, required a French interpreter to testify. A farmer, he lived about four miles north of City Hall in Steep Brook. He was to testify that, on August 16, he saw a man sitting on a rock, muttering “poor Mrs. Borden.” Lemay noticed the man had what seemed to be blood spots on his shirt. He spoke to the man twice in French. The man stood up, lifting a hatchet from the ground by his side, and shook it at him. Lemay brandished his own defensively. After a few minutes, the man “turned, leaped over a wall, and disappeared in the woods.”

But before Lemay could tell his story, Knowlton objected to his testimony and the jury left the courtroom. Knowlton said that the memorandum he had prepared was at his house, as he “had not any idea of this matter coming up at this time.” Nonetheless, he cogently explained his objection. Given that the prosecution contended that Lizzie Borden had exclusive opportunity, he agreed that the defense could bring in evidence “which would have some tendency to show that some other person was there or that some other person was seen” near the Borden house at the relevant time. But he argued this was different: “This has no relation whatever in time to the occurrence; it has no relation in place to the occurrence; it has no connection with the occurrence excepting some talk had by the person himself.” Insofar as the defense wished to use the statements supposedly made by the man Lemay had seen, Knowlton observed that such statements were hearsay and “may well be taken to be the mutterings of some person who had been brooding upon the crime.” Hearsay is an out-of-court statement offered for the truth of what it asserts; the rule against admitting hearsay evidence was well established. Indeed, Wigmore called it “that most characteristic rule of the Anglo-American Law of Evidence—a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system.” Warming to his theme, Knowlton continued, “Four miles away from this town, twelve days afterward” put this incident in the same class as the “wild and imaginative stories” in false confessions that are “either the results of disordered imagination or the creation of some persons undertaking, for reasons unknown, to obstruct the natural and orderly course of justice.” There would be no way for the jury to assess whether the mysterious man seen by Lemay was crazy or a crank and no opportunity for the prosecution to cross-examine him about his statement. In short, this was exactly the kind of evidence that sowed confusion and ran the risk of turning “the jury away from the question in hand.”

Jennings countered that the site of the encounter was in “easy communication with the centre of the city; the electric cars run every ten minutes to Steep Brook,” that the commonwealth took Lemay’s report seriously enough to search for the man, and that the man’s comments were not hearsay (“in the nature of conversations or in the nature of declarations”). Jennings instead argued that the man’s comments were analogous to “exclamations of pain or suffering” and were more like “an act” than a confession, two examples of out-of-court statements that are not considered hearsay and are therefore generally admissible. Jennings argued that Lemay should be able to testify about what he had seen and heard so that the jury could give it “such consideration as they think it deserves.” In his later article on the trial, Wigmore agreed with the defense’s position, considering it analogous to the prussic acid question. The judges, however, took the matter under advisement to rule on the next day.

? ? ?

The suspense did little to affect the mood among Borden partisans. The day had been “a burst of sunshine for the imprisoned woman.” The witnesses who had seen strange men in the neighborhood or contradicted police testimony undermined the prosecution’s theory of Lizzie Borden’s exclusive opportunity. But it was the judges’ decision to exclude the prussic acid evidence that set the tone for the day. Then came Jennings’s opening statement, pointing out the prosecution’s weaknesses and averring his client’s innocence. As Joe Howard put it, “The entire day has been one of cheer, laughter, good looking witnesses, bright sayings, and general upliftment along the line of defense.”





FRIDAY, JUNE 16, 1893




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On Thursday afternoon, as the defense was putting on its case in the New Bedford courthouse, a group of boys were playing baseball on Third Street in Fall River. A boy named Potter hauled himself up to the roof of John Crowe’s barn, situated to the rear of the Borden property next to the Chagnon orchard, to retrieve a lost baseball. There, he found something far more interesting: he found a weather-beaten shingle hatchet with a three-and-a-half-inch blade—exactly the size thought to have killed the Bordens. “The discovery has created a genuine sensation,” reported the Fall River Daily Herald. The hatchet retained “a slight coloring of gilt . . . indicat[ing] that the hatchet was at one time used as an ornament or was quite new when lost or discarded.” Significantly, Dr. Draper had found such “gilt” in one of Abby’s wounds. After conferring with Dr. Cheever before the trial, he told Knowlton he had found “a very small but unmistakable deposit of the gilt metal with which hatchets are ornamented when they leave the factory; this deposit . . . means that the hatchet used in killing Mrs. Borden was a new hatchet, not long out of the store.” Those unaware of that fact nonetheless considered the location deeply significant: “If the murderer of Andrew J. Borden and his wife escaped from the Borden premises by the rear . . . he could easily have thrown the hatchet to the place where it was found.” Others were more skeptical. Even Elizabeth Jordan, by now an avowed Borden partisan, reported: “The general impression is that it was thrown to the place where it was found by the boys for the purpose of creating a sensation.” The Fall River Daily Herald tracked down a carpenter who had lost a hatchet after working at Dr. Chagnon’s house, but nothing definite was proven. The Fall River Daily Globe sarcastically suggested that a search of the roof might also reveal “that note which Mrs. Borden is alleged to have received from a sick friend.”