1. "If Lizzie was found guilty"
Posted by harry on Jul-5th-03 at 10:40 AM

If by some strange reason Lizzie had been found guilty it's interesting to speculate on what would have happened to her.

I can't imagine the state hanging her.  They had to screw up their courage to even bring her to trial. Imagine the public outrage of the various women's groups who had sided with Lizzie.  Even though women could not then vote, their husbands and sons could and  no politician would want to face that.

Lizzie would have not much of a case for an appeal.  All the major decisions went in her favor and Dewey's charge to the jury cannot be considered unfriendly to Lizzie.

Lizzie would have faced life imprisonment, a fate no doubt she would have considered worse then death. No house on the Hill, no money and only her sister that she could really turn to. She was only 32 so she would have faced a long bleak future.

Did they have appeal then?

Emma would have been happier I think.  All that money of her own.  I bet she would have turned more toward her extended family, the Morses, Harrington's  Fishes and Whiteheads.  She probably would have helped them all out financially, even if not of her own thought, but if they came to her and asked.
There was a LOT of $ that could have been passed around.  Even to the [Edit here: Giffords] and cousins.  It would be like winning the lottery to Emma.
That is every bit as good a use of it then giving it to *charity*.

If Lizzie hated domination over her by her father, she really would have hated domination over her by the State, in the form of prison.  She couldn't even be cordial to *I don't even know what your name is* Knowlton when her life was at stake at the Inquest!

(Message last edited Jul-12th-03  4:10 AM.)

John H. Wigmore in his article "The Borden Case" (1893), page 842, points out that during Lizzie's trial the defense was not allowed to show (through testimony by Emma) that it was customary for Lizzie to burn pieces of clothing and old dresses. Wigmore maintains that this exclusion of testimony might have been enough to overturn a guilty verdict if such verdict was appealed. He writes in part, "... the defense is not even allowed to show that another such reasonable hypothesis (to wit, the carrying out of a custom with reference to old dresses) exists and equally explains the act. ... It would seem that the exception to this ruling must certainly have overturned the verdict, had the latter been against the accused."

Thanks.  I guess that answers that.
I wonder if an appeal was mandatory (required) in all capital cases back then, or if Lizzie's attorney actually had to decide and file.
I don't expect anyone to know this or answer...just ruminating.

What if Lizzie was guilty, & was found guilty...do you guys think she would have *talked*?

I don't think Lizzie would have "talked" were she guilty and been found guilty. I don't believe it was in her nature to do so. And, I think her counsel would have advised her against saying anything. To her credit Lizzie (and Emma, too) was smart enough to follow the advice of her able and experienced attorneys.

(Message last edited Jul-6th-03  12:54 AM.)

That is very surprising to me.  From everything I've always read that what a person normally did in a given situation is not evidence. It is only the particular situation that counts.

Just because it was a custom to burn old dresses is not evidence that it was done that Sunday morning for that purpose.

I believe there are several other similar (though far less important incidents) where that type of evidence or testimony was not allowed. It's too late at night right now to try and find them and tomorrow I may try to see if I can locate them.

Harry, I think Wigmore is also taking into account what he perceives as inconsistency between the ruling which excluded the prussic acid testimony and the ruling excluding testimony showing that dress burning was a habit in the Borden household. See the entire section 3 of page 842 of Wigmore's article below.


Page 842
of conference. (1) Is there any lawyer in these United States who has a scintilla of a
doubt, not merely that her counsel fully informed the accused of her rights, but that they
talked over the expediencies, and that he allowed her to go on the stand because
he deliberately concluded that it was the best policy for her, by so doing, to avoid all
appearance of concealment or guilt? And yet the ruling of the Court allowed them to blow
hot and cold, --- to go on the stand when there was something to gain and to
remain silent when the testimony proved dangerous to use. It would seem that, as a
matter of law, the fact that an accused person, whether under arrest or not, has had the
benefit of counsel's advice ought to make subsequent statements competent as
far as regards the free will of the witness.
3. The family custom of burning old dresses,
If a habit is of any value at all to indicate the performance of an act, was not this
habit, if proved, of potent influence? Note a curious inconsistency between the prussicacid
ruling and the dress-burning ruling. The purchase of the acid cannot serve (it was
ruled) to show a general intention to destroy the victims' lives unless every hypothesis of
its adaptability to other purposes is first excluded by evidence; ergo, one would think,
the dress-burning would not be admissible to indicate a desire to destroy guilt-traces
unless every other hypothesis was excluded. But on the contrary, not only is no such
requirement laid down for its admissibility, but the defense is not even allowed to show
that another such reasonable hypothesis (to wit, the carrying out of a custom with
reference to old dresses) exists and equally explains the act. (2) It would seem that the
exception to this ruling must certainly have overturned the verdict, had the latter been
against the accused.
(1) "Miss Borden could decline to answer the questions put to her if she wished, 'by advice of counsel I
decline to answer' being sufficient. Lawyer Jennings is too astute a lawyer to order that, however, although
he threatened to yesterday. He knows that it would greatly prejudice his client's case and probably result in
an early arrest. --- Boston Herald, August 10, 1892."
(2) To Emma Borden: "What was the custom and habit of your sister in disposing of pieces of clothing or
old dresses?" Mr. Knowlton: "I object." Mason, C. J.: "Excluded."


In other words the standard by which Eli Bence and friends' testimonies were excluded was a different standard than that which allowed Alice Russell to testify about the dress-burning and which prevented Emma Borden from explaining that Lizzie's burning of the dress was in keeping with family custom. Were the rulings consistent with each other Alice probably would not have been allowed to testify about Lizzie burning the dress and Emma would have been allowed to testify about why it was not unusual for Lizzie to burn an old dress.

 

May I interject a question here?  To anyone.  Not specifically to Doug.
As to this *ruling* that is being bandied about in the Wigmore article to which we are referred:

I have read this trial section a few times, encompassing Eli Bence, Charles Lawton, Henry Tillson, Nathaniel Hathaway, then Dr. Dolan, and Henry Tillson again, and I don't find a *ruling*.  I find the court is willing to hear arguments, allows the testimony outside the jurys presence, hears all they have to say about the useages of prussic acid, and declares that They will hear no more and Knowlton wants Tillson recalled.
Mason says, "The court is of the opinion as the evidence now stands, the preliminary questions are not included.  I concluded that that testimony was finished.  The court did not desire to rule upon it piecemeal."
--T., pg. 1302
He is referring to Dolan's not being deemed qualified to answer expertly as to prussic acid when he says he does not want to rule *piecemeal*.
Tillson is recalled.  A question is asked by Knowlton, Robinson objects, Mason says, " I think you ought not to reopen that question."...and that's it.
Prosecution rests.  Defense starts.

I don't read any ruling.  I don't know why all these judges and armchair experts after the trial elevated this exchange to a *ruling* and then discussed the heck out of it.
If one just merely goes through this section looking for a Judges name and reads only what that judge says, one will find no *ruling*.

Thank you Doug for putting that altogether. I was too sleepy-eyed last night to do so myself.

It makes a lot more sense when it is put in that context. I was looking at the introduction of the custom of burning dresses in isolation. By itself the exlusion of the custom appears to me (a non lawyer, believe me) to be correct. It does appear to be inconsistent with the exlusion of the poison evidence.

Maybe the judges were trying to even the score by excluding the poison, a key prosecution item, and excluding the custom of dress burning, a key defense item. I say that only half kiddingly.

I believe one author of a book said Lizzie would have been the first woman to be electrocuted in Mass (if condemned to death).
The law was just changed.

You mean they also allowed in a "reversible error"?
Wasn't that done in Jack Ruby's trial to get him off if he lived?

Realistically, had Lizzie been found guilty, she would have been sentenced to life in prison. The state would never have hanged her. In the history of Massachusetts, they only hanged a few women and that was many years earlier. Being sentenced to life usually meant any where from 7 or 8 years to actually serving time until her death. She would have likely ended up at the state prison, separated from the male inmates, charged with domestic duties such as laundry. At some point she would been allowed to ask for a pardon, sighting circumstances that may have lead to the murders over which she had no control. If released, she would surely have left Fall River. No community had any patience for a convicted killer roaming around. Convicts never stayed around, they headed to parts unknown and started a new life. (At least that's the scenario that played out elsewhere in other cases.)

That's an interesting evaluation.
I wondered about the *pardon*.
It sounds like a person sort of has to admit to the crime and plead mitigating circumstances (like drug dependence) to finally be pardoned after a suitable amount of time?  Am I understanding this process correctly?
Because I also wondered how Jose Correiro got out and was deported after 1/2 his life in prison for the Bertha Manchester murder.

You've got to love woman axe murderers! A couple of cases that come to mind where the woman was convicted on which I based the above scenario;

The 1861 axe murder in Watertown Connecticut, the Irish housekeeper was found guilty of second degree murder and sentenced to life. About 7 years later she petitioned the state's general assembly and got a pardon although, as in the Manchester case, she was apparently deported. I guess it's better to be free in the old country than be in prison in New England. To get the pardon, she claimed the old man who she murdered, had threatened her and came at her several times with a knife. During her trial however, she insisted she was innocent.

In another 19th century Connecticut case, this one in New Haven, a woman walked up behind her husband while he was eating breakfast and killed him with an axe. Found guilty, she remained in prison until she died.

Certainly there would be variations in the state laws but I'm pretty convinced that's how it would have played out. Execution would not have been an option. By the way, the first use of an electric chair was in 1890 in New York and it was a really messy, unprofessional affair. Things didn't go as planned and the condemned man was burned to death to the point that he was smoking. I don't know when Mass. got it's first electric chair but it took a long time for some other states to catch on as hanging was the preferred method in some states well into the 20th century.

That first electic chair victim, by the way, had killed a woman with, you guessed it, an axe.

(Message last edited Jul-15th-03  11:41 AM.)

Wow, that was great.  Thanks for the info, Charlie, very interesting read.  Have you ever read Women Who Kill by Ann Jones?  In her book she explains why they stopped hanging women in New England. 

Actually, there is a book out this year about the first electrocution. A William Kemmler, who did drink and get violent. Temperate, he was a pleasant person.
I thought RL Stevenson's "Jekyll & Hyde" was a symbolic anti-alcohol tract. A good man drinks something and turns into a violent criminal.
...
Richard Moran is the author of "Executioner's Current". Electrocution was NOT introduced as a "humane" punishment, but due to the business conflict between Thomas Edison (DC) and George Westinghouse (AC). Edison wanted to prove that high voltage AC was more dangerous than low voltage DC by using it to kill people. Condmned convicts were the most likely test animals.

(Message last edited Jul-16th-03  12:48 PM.)

Yes Charlie, thank you, always welcome here.

If Lizzie was convicted, then this message board would not exist.
Except for a very few who would now claim she was innocent! IMO

Thanks Kat, I drop in from time to time and add my two cents worth.

And Rays, you're so right. If Lizzie had been convicted, no mystery, just another of the thousands of murders committed in 1892. Even the Manchester murder is only remembered because of it's attachment to the Borden case. I wonder what they would be calling the case of the century then?

Isn't it the trend to dub the biggest, most sensational murders, as Case of the Century, which happen closest to the End of the century?
If so, And Lizzie no longer counted, I'd think here in this country it would be HHHolmes and in England it would be Jack the Ripper.

Actually, the "Case of the Century" occurs about every ten years. People's memories fade away. Small towns excepted, of course.
Does anyone here follow the crime news in NY city? Now that's a full-time job!

don't you think that lizzie's fame has much to do with the issue of parricide?

In my opinion her fame is due to the fact she was found not guilty; a puzzle that was never solved in her lifetime. Parricide is very rare in this country; that's also what made the Menendez Brothers famous.
E Pearson's writings (he researched and recycled old stories) in 1927 and 1937 made her famous. Who remembers Bertha Manchester or Jose Correia today? (Present members excepted.)

Wasn't the Boston Brinks job (circa 1950) then called the "crime of the century". Do not trust newspaper headlines!
You may want to look up "The Torso Murders" that occurred in 1930s Cleveland Ohio. A bigger body count than Jack the Ripper?
HH Holmes (copying Sherlock's name?) did have more bodies than either. Probably caught due to insurance claims; Jack the R didn't have that exposure.

That's a good point about Pearson contributing to Lizzie's infamy throught the 20th century.
He did keep her name in the public eye, at least to those who savoured true-crime stories, a new genre at the time.
He wrote in 1924, 1927, 1928, 1930, and 1937, and then he died.

I don't know if the fact that Lizzie was found not guilty contributed to her fame, as most people I have asked, didn't know she got off.  That didn't seem relevant to them.  They could recite the ditty, tho.

I also believe the annual articles which appeared locally in the papers about the unsolved case kept Lizzie in the forefront of the public preception, and that was probably the most widely read and effective form of rumor and defamation by keeping this case open and seemingly mysterious