The Trial of Lizzie Borden(91)
More than ninety years ago, Pearson wondered, “Will the whole truth ever come out?” One untapped source remains but is stubbornly out of reach, shielded by an ancient Anglo-American legal privilege that survives the grave.
Coda
THE DEFENSE FILE
Lizzie Borden’s grave, Oak Grove Cemetery, courtesy of Fall River Historical Society
Lizzie Borden did not take all her secrets to her final resting place; some repose in an unlikely location. On the sixteenth floor of an unremarkable office building on Main Street in Springfield, Massachusetts, sits a file on Lizzie Borden, guarded by the law firm Governor George Robinson founded in 1866. Robinson died in 1896, yet he protects Lizzie still.
Robinson likely had no such master plan. He died unexpectedly, “stricken with paralysis” on his way home from the courthouse. His office and its files were intact. Andrew Jennings, by contrast, lived well into retirement and, for reasons of his own, deposited his Lizzie Borden files and memorabilia in an old hip bath, a small, shallow basin used to immerse the hips and the buttocks. His stash included the trial exhibits, books of clippings, and Jennings’s own handwritten trial notebooks. When he died in 1923, his family inherited the hip bath and its contents. In 1967, they donated part of the collection to the Fall River Historical Society; the remainder, including the trial journals, followed in 2012. Or so it was thought. The hip bath was not entirely drained. The power of attorney executed by Lizzie Borden at the time of her arrest in Fall River was auctioned off in 2016 (by a Jennings descendent) and it, too, is now on display at the Fall River Historical Society.
What is the distinction between the two caches—one locked away, the other open to public view? What is in the Robinson file on Lizzie Borden? Perhaps the lawyer’s trial diary or clippings akin to notebooks Jennings left in the hip bath, perhaps something even more tantalizing to the amateur sleuth. But the rationale for shielding Robinson’s file from scrutiny has nothing to do with any potential revelations in its contents. Robinson’s firm has concluded that it may not release any of its Lizzie Borden material—a position, it says, that was dictated by the Massachusetts Board of Bar Overseers.
The attorney-client privilege has a long history in Anglo-American jurisprudence. Originally, it ensured that a lawyer could not be called to testify against his client or to provide information that would assist in his client’s prosecution. As the preeminent evidence scholar (and Borden trial legal commentator) John Henry Wigmore explained: “In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisors must be removed; and hence the law must prohibit such disclosure except on the client’s consent.” But the attorney-client privilege has expanded to prevent not only the disclosure of any communications between lawyer and client, but also of any “work product” created in anticipation of litigation. It was feared that opposing counsel could use that “work product” against the client, a prosecution with “wits borrowed from the adversary.” Together, these components protect clients by preventing lawyers from being “called as a witness or otherwise required to produce evidence concerning a client.” But, irrespective of any anticipated or threatened litigation, professional ethics impose a broad duty of confidentiality, a duty that survives the client’s death. There is no expiration date.
Jennings took no special pains to secure his papers—his grandson later recalled that he had broken with Lizzie Borden over the alleged shoplifting at the Tilden-Thurber gallery—and his children were under no professional or ethical obligation to prevent their disclosure. Robinson’s Borden file, by contrast, has been lodged continuously in the possession of the law firm he founded, bound by the original attorney’s duty of confidentiality—even though both the original attorney and client are long past care.
Given that the law firm believes it can never disclose the contents of the file—the only one preserved from Robinson’s era—why keep it? Why not, as befits a Victorian murder mystery, consign the last documents to the flames or, less dramatically, to the office shredder? Current Robinson Donovan senior partner Jeffrey McCormick, who learned about the file when he arrived at the firm in 1977, said it would be “abhorrent” to dispose of something that has such historic value. So there, in Springfield, Massachusetts, locked in a five-drawer filing cabinet, the file languishes, more than 125 years after Lizzie Borden, gloved hand on Robinson’s arm, walked out of the New Bedford courtroom a free woman.