The Trial of Lizzie Borden(75)

In his opening statement, Jennings had essentially vouched for Lizzie Borden, reminding the jurors that he was a personal friend of the dead; for his part, Adams had done his best to stretch out the timeline in some places and shrink it in others to make it seem just possible that an outsider might have committed the murders; and Robinson had undermined the prosecution’s depiction of strained domestic relations in the Borden household and forced the police to contradict each other’s testimony. Robinson now sought to weave these threads together, enfolding his client in a cloak of reasonable doubt.

Robinson began by acknowledging the special horror of the crimes. He described the Borden murder case as “one of the most dastardly and diabolical crimes known to the history of Massachusetts.” The shock felt by the police led them, Robinson argued, to cast about desperately for someone to arrest: “Policemen are human, made out of men, and nothing else.” The police were also under immense public pressure to arrest someone, and Robinson observed, “Suspicion began to fall here and there.” But when they had Lizzie in their sights, they became convinced they had their killer. Robinson explained: “Once a theory possesses our minds, you know how tenaciously it holds its place.” A policeman is even more susceptible to this bias because “he is possessed and saturated with the thoughts and experiences he has with bad people.” “And,” as Robinson reminded the jury, “you do not get the greatest ability in the world inside a policeman’s coat.” (The New-Bedford Mercury shared this sentiment: “Not one police officer in a thousand is possessed of acute sensibility or a trained habit of observation.” “Success,” the paper continued, “is more often a matter of chance, or luck, or the stupidity of the criminal than it is of any well-directed conduct of an investigation.”) What else but a fatal combination of overzealousness and ineptitude could explain the police’s focus on Lizzie Borden?

Rather than the obvious suspect fingered by the police, Robinson presented Lizzie Borden as the personification of beleaguered innocence. Recalling “a little scene that struck [him] forcibly,” Robinson said: “Right at the moment of transition she stood there waiting, between the Court and the jury; and waited, in her quietness and calmness, until it was time for her to properly come forward. It flashed through my mind in a minute. There she stands, protected, watched over, kept in charge by the judges of this court and by the jury who have her in charge. If the little sparrow does not fall unnoticed to the ground, indeed, in God’s great providence, this woman has not been alone in this courtroom, but ever shielded by His watchful Providence from above, and by the sympathy and watch[ful] care of those who have her to look after.” In his formulation, Lizzie Borden is an orphan in need of paternal guidance and protection, a ward of the court rather than a prisoner in custody. Robinson emphasized her respectful silence and her apparent helplessness, noting she “waited . . . until it was time for her [to] properly come forward.” Robinson allied the defense with the protection of God and the legal system, leaving the commonwealth, represented by the prosecution, somehow opposed to justice, both secular and divine. Like Robinson himself, the judges and jury become reassuring paternal figures who take the place of her deceased father. It was a neat rhetorical sleight of hand, considering that Borden was on trial for having created her own orphanhood.

After lulling the jury with that reassuring set piece, he lowered the boom, warning that any mistake would be irreparable. He admonished the jury: “You are trying a capital case, a case that involves her human life, a verdict which against her calls for the imposition of but one penalty, and that is that she shall walk to her death.” Against that background, Robinson argued that the prosecution’s case was entirely circumstantial and that “the proof must come up in your minds to a moral certainty . . . It must be beyond reasonable doubt.” Reasonable doubt, he explained, was the “reasonable doubt of reasonable men, confronted with the greatest crisis you have ever met in the world.” Robinson cautioned the jury to put out of mind any rumors or information about the case heard outside the courtroom. And he emphatically reminded jurors that it was not their responsibility “to unravel the mystery.”

Robinson then made a bold choice to discuss what was not in evidence. First, he suggested, slyly and without any basis, that Bridget had firsthand knowledge of the note or, at least, provided independent confirmation of Abby’s statement. This, Wigmore would later declare, was “the only blot on an otherwise nearly perfectly conducted trial.” Robinson did not explain its unaccountable disappearance; he merely remarked that such things happen. Second, he reminded the jury of Moody’s opening statement in which he declared that Lizzie Borden had tried to procure prussic acid the day before the murders. He remarked: “You have not heard any such evidence; it is not proved, the Court did not allow it to be proved and it is not in the case.” Third, he also discussed the roll of burned paper in the stove, a roll of paper laden with “dark insinuations.” Harrington had seen Dr. Bowen in front of the kitchen stove containing “what he said looked like the embers of a rolled up piece of paper, burned.” “That,” Robinson insisted, “was all.” But, he feared, “There was something in the manner that meanly intimated” that Dr. Bowen had some nefarious purpose in burning the paper. Robinson said he thought the prosecutors were going to argue that the missing hatchet handle had been in the fire, burned up somehow before the fire had finished reducing the paper to ashes. “Did you ever see such a funny fire in the world?” he asked. He professed to have been “troubled about it” himself until Fleet and Mullaly contradicted each other about whether the police found the hatchet handle in the cellar. He gleefully summarized: “Fleet didn’t see it and Mullaly did see it. Fleet didn’t take it out of the box and Mullaly saw him do it . . . So we rather think that the handle is still flying in the air, a poor orphan handle without a hatchet, flying around somewhere.”