The Trial of Lizzie Borden(85)

After a recess for lunch, the court resumed proceedings. Chief Judge Mason informed Lizzie Borden, “It is your privilege to add any word which you may desire to say in person to the jury.” Lizzie stood erect and responded in a clear voice: “I am innocent. I leave it to my counsel to speak for me.” Ralph thought that, in speaking those words, “she added to her extraordinary gracefulness a surprising dignity.”

Judge Dewey delivered the charge to the jury, the formal instructions on the law meant to guide their deliberation. Dewey looked like “a college professor” and was reputed to be both a “clear-headed logician” and “a tender-hearted man.” Here, he favored the latter. First, he explained: “Your decision can properly rest only on the law and the evidence given you, together with those matters of common knowledge and experience relating to the ordinary affairs of life, and the common qualities of human nature and motive of action . . . which, as jurors, you are expected to bring with you.” But the jury must not consider any of the prior proceedings—the inquest, the preliminary hearing, or the grand jury—as evidence. The jury must weigh all the evidence presented at this trial and decide if there was reasonable doubt. Dewey defined the concept: “Proof beyond reasonable doubt . . . is proof to a moral certainty, as distinguished from absolute certainty.”

Turning to the specifics of the case, he reminded the jurors that “the defendant’s character has been good . . . one of positive, of active benevolence in religious and charitable work.” “You are not,” he warned the jury, “inquiring into the action of some imaginary being, but into the action of a real person, the defendant, with her character, with her habits, with her education, with her ways of life.” He also explained that the government need not prove a motive. But what he seemed to give to the prosecution, he took away with his subsequent observation that “imputing a motive to the defendant does not prove she had it.” He asked: “Unless the child be destitute of natural affection, will the desire to come into possession of the inheritance be likely to constitute an active, efficient inducement for the child to take the parent’s life?” Judge Dewey then characterized Borden’s notorious comment to the dressmaker Mrs. Gifford as merely the “intense expression” of a “young woman, not of a philosopher or a jurist.” He instructed jurors to “[C]onsider whether or not they do not often use words, which, strictly taken, go far beyond their real meaning. Would it be a just mode of reasoning to make use of the alleged subsequent murder to put enmity into the words and then use the words, thus charged with hostile meaning, as evidence the defendant committed the murder?” Of Borden’s predictions of doom, which Robinson dismissed as a side effect of her “monthly illness,” Judge Dewey offered another rationale for disregarding them: “Suppose some person in New Bedford contemplated the perpetration of a great crime . . . [and] contemplated doing it soon. Would he naturally, probably, predict, a day or two beforehand, that anything of the nature of that crime would occur?”

As for the note, Dewey rebutted the prosecution’s claim that Lizzie lied about the note. “What motive,” he asked, “had she to invent a story like this? What motive? Would it not have been more natural for her to say simply, that her stepmother had gone out?” She need not have pointed to something tangible. Instead, he suggested that, if we “contemplate the possibility of there being another assassin than herself,” it could have been part of his plan to write the note and then remove it himself.

He then turned to the biggest stumbling block for the prosecution: the gruesome nature of the hatchet blows. “Is there anything in the way and manner of doing the acts of killing, the weapon used, whatever it was, or the force applied, which is significant as to the sex and strength of the doer of the acts?” he asked. He reminded the jurors of how the medical experts had testified “as to the way in which they think the blows were inflicted on Mrs. Borden” (wood-chopping-style), and “as to the position of the assailant” (astride her body). Dewey asked a series of questions that seemed rhetorical: “Are these views correct? If so, are they favorable to the contention that a person of the defendant’s sex and size was the assailant? Is it reasonable and credible that she could have killed Mrs. Borden at or about the time claimed by the Government, and then, with the purpose in her mind to kill her father at a later hour, have gone about her household affairs with no change of manner to excite attention?” He reminded the jury: “You have a right to reason and judge from what you know of the laws and property of human nature and action; and if it is suggested to you that the killing of Mr. Borden was not part of the original plan . . . it will be for you to consider . . . whether that suggestion to you seems to be reasonable.”

Judge Dewey explained the law in Massachusetts about defendants testifying at their own trials. He drew their attention to “the guarded language of the statute,” providing that a person charged with commission of a crime “shall, at his own request, but not otherwise, be deemed a competent witness; and his neglect or refusal to testify shall not create any presumption against him.” The law derived from the common-law practice of not permitting defendants to testify on their own behalf and from the Massachusetts Bill of Rights protecting against self-incrimination. In plain language, unless she herself decided to testify, it was as if she had no right to testify. No negative inference could be drawn about her failure to testify. But Dewey went further. He offered reasons she might not wish to testify: “If she were required to explain, others might think the explanation insufficient”; she would also be subject to cross-examination like any other witness. He explained: “She may be asked questions that are legally competent which she is not able to answer, or she may answer questions truly and yet it may be argued against her that her answers were untrue, and her neglect to answer perverse.”