1. "An Open Case"
Posted by augusta on Oct-11th-03 at 1:15 PM

While watching one of those "Forensic Files" shows last nite, one of the cops on there said the good thing about a murder case is there's no statute of limitations on it - it's open forever until it's considered solved.

So WHY aren't people like Professor Starrs allowed to try to solve the Borden case?

WHY are the Robinson Files not subpeonaed for a prosecuter's case?  (I know the Vince Foster case and the ruling on attorney/client privilege after death excuse.)

WHY does the "Borden Family" have ANY influence over deciding if the graves get exhumed or not if someone wants to do it to try to solve the crime?

Am I wrong here?  This IS an "OPEN CASE" - right?

WHO would it take to really OPEN this case?

As far as I know, the case is still opened.  I did a quick search, there may be more involved, but it seems as though if you can present some new evidence and get the District Attorney or Attorney General to agree, you can reopen a case.  I think you also must be a police officer to do this though and I think there may be something about notifying the family that the case will be reopened. 

That's very interesting.  Thanks, Susan. 
You said "reopen" the case.  The case was never closed, tho - or was it?  It couldn't have been.  So this wouldn't be re-opening a case.
I think they just didn't have another suspect.  (Why they didn't try Bridget afterwards, I'll never know.  I think they should have tried for it - at least grilled her till she blabbed all she knew.)
I think re-opening a case is to take a case where someone has been convicted and you're trying to prove otherwise.
Notifying the family, okay.  But letting the family tell you NO??? 
So Professor Starrs should have called himself Detective Starrs then.
I really think this is a valid point, and I don't see why no one has done anything about it.  To not go in with today's forensic miracles is criminal in itself.

Yes, Augusta, technically the case is still open.  But it's just that, a technicality.

Once the police are convinced they know who the killer is, and the case goes to court and fails, they rarely ever pursue it further.  In Lizzie's case since she was found not guilty any effort by the police to find further evidence against her is a wasted one. She can't be tried again so why expend the effort. 

Case in point (and I HATE to even mention it) the Simpson case. You can be sure any current attempts at resolving it are half-hearted public displays. There is also the problem that after so much effort and time have been expended the case has grown cold. Certainly the Borden case falls in that class.  Time is critical in murder cases, even more so in 1892.

You are perfectly right in wishing they had pursued Bridget more closely.  I feel the same way.  I don't think she was the killer but she knew a great deal more than what she was willing to state.  Oh, the stories she could have told of the relationships and incidents that went on in that house.

What would the bodies prove if dug up?
Does that need to happen, in your estimation?

BobCookBobCook's brother is a police detective, I believe.
Maybe he would have a Massachusetts answer.
Maybe Commonwealth laws are different?

Kat, you have an amazing amount of archival stuff floating around in your head. I was browsing Google to see if the statute of limitations varied from state to state and up popped a link to a March/02 thread where we discussed this before on the forum.  And there was Bob Cook's brother's answer!
http://lizzieandrewborden.com/Archive0602/LB/ArchiveLBOpen.htm

Thanks For the Memory!

We still don't know what Caplain reported as to that quote is true.
From my post, March 31st,02:
Mr. Caplain, in an LBQ issue, quoted a newspaper article from 1893 that said *in 6 more years someone could come foreward and confess* and he presumed that meant the *statute of limitations* would be UP by then..6 years plus the1 = 7."

I did read in Rebello that  monies set aside in Emma's trust was still being appropriated in the 1970s in Fall River. ..And maybe as late as 1996.  I think this is incredible, and now I don't discount the possibility that the Borden Reward is still on hold (Escrow?) (Just WHEN would those girls have the nerve to retract that reward?-- Public Relations-wise...)

(349)
"Restructuring Emma's Trust Funds"

"Petition Filed for Change In Will of Emma Borden," Fall River Herald News, August 29, 1974: 23.
"Court Grants Changes In Borden (Emma) Trust Fund," Fall River Herald News, October 3, 1974: 11.
"Petition Filed for Change in Will of Emma Borden," Fall River Herald News, August 29, 1974: 23.

"Note: A petition to restructure the trust fund set up by Emma Borden was approved by Judge Ernest Rotenberg in Bristol County Probate Court. The judge's decision prevented the IRS from further taxing three of the trust's five beneficiaries. The petition was instituted by the B.M.C. Durfee Trust Co., executor and trustee for Emma Borden. The beneficiaries are the Fall River High School Alumni Scholarships, YMCA, Family Service Association, Animal Rescue League and Home for the Aged, all of Fall River. For years, the five beneficiaries were not taxed, but the 1969 Tax Reform Act was passed, allowing closer scrutiny of trust in the name of private foundations. The legislation called for separating public from private foundations and allowed the IRS to impose a 4% excise tax on the private organizations. The Animal Rescue League and the Home for the Aged were deemed, for highly technical reasons, private foundations and liable for the 4% tax. The terms of the trust remained the same but the IRS agreed to the separation of the beneficiaries.

The Emma Borden Trust was established in 1927 in the amount of $128,000. The present trust totals about $360,000. Additionally, it has contributed an estimated amount of $493,000 to the five beneficiaries who have shared equally in the money distribution."

" 'Legals,' Fall River Herald News, September 30, 1996: 13."

"A Notice of Fiduciary's Account of allowance for the benefit of the Boy Scout of Fall River was filed in Probate Court by The First National Bank of Boston."


--This also shows where Emma supported the "Y", which was the organization that had the news article posting the names of it's members, and of whom "Mrs. Andrew Borden" was one.
--Isn't it incredible that Emma's money is still funding charities and organizations in Fall River?!!




(Message last edited Oct-11th-03  11:28 PM.)

You're welcome, Augusta.  I believe that cases such as this that are technically still open, but, inactive are called cold cases.  I'm wondering exactly what kind of new evidence it would take to reopen the Borden case?  I'm pretty sure it would have to be something earth-shattering to do this. 

Thanks, Kat.  That is amazing that Emma's money is still working away!  Wouldn't it be great to get someone on the forum who's life has been changed due to Emma's generosity? 

I guess Fall River wanted to forget Lizzie Borden and the way she structured her will to distribute her money did pretty much that.
And yet *shy Emma* lives on in the fabric of Fall River because of her trusts!

Did she know she would not be forgotten because her father's money would live on?  Was that her bid for fame?
Tina-Kate, did Lizzie's will provide such a charitable dynasty?

(Message last edited Oct-12th-03  4:42 PM.)

The case may be open but not as regards Lizzie.  She was found not guilty and that is the end of it.  Even if a bloody axe (complete with her fingerprints and DNA samples) was found along with a written confession in the basement of her Second Street house, the case is closed.  For Lizzie, any continuation of the case, in any formal way, would amount to double jeopardy and that is not allowed in this country.  Nobody has any legal right to dig in the Borden family plot and the case is officially closed once a trial has been held and a verdict has been reached.  The jury, in their infinite wisdomin 1893, found Lizzie to be not guilty.  Therefore, she could not have done it even if she did. 

(Message last edited Oct-12th-03  10:54 PM.)

Commonwealth of Massachusetts VS. Lizzie A. Borden; The Knowlton Papers, 1892-1893. Eds. Michael Martins and Dennis A. Binette. Fall River, MA: Fall River Historical Society, 1994.

#HK093
"Letter, typewritten, with comments handwritten in ink.

ATTORNEY GENERAL'S DEPARTMENT,
COMMONWEALTH BUILDING,

Boston,   Nov. 21, 1892.
Dear Mr. Attorney:-

As under the Robinson doctrine, I see no possible doubt that the
whole transaction can be put in evidence in a trial for the killing of either,
I incline, on reflection, toward two indictments, if there are to be any.
Has it ever occurred to you to put in a count or counts as accessory before
& after? There is, to be sure, no affirmative evidence, at present, that any
other person was concerned, but a great many people believe that she was
in it, but that hers was not the hand that did it. I could easily believe this
if there were any evidence of it. Perhaps one indict for killing both & others
for killing each will be best of all.
      
I write these suggestions now as they occur to me, and as you will have
time to think of them. I wish the investigation just begun in the other
line to be thoroughly, and, if possible, exhaustive, chiefly for the satisfac-
tion of my own mind, as I doubt if it develops anything of consequence
for any other purpose.
Very truly yours,
Attorney General.
Hon. H. M. Knowlton"

..........

#HK097
"Letter, typewritten.

HOSEA M. KNOWLTON.      ARTHUR E. PERRY.
COUNSELLORS AT LAW.
OFFICE:
38 NORTH WATER STREET.
(Dictated.)
NEW BEDFORD, MASS., November 22, 1892.

Hon. A. E. Pillsbury,
Attorney General.
Dear Sir:- I see no need of account for accessory.
If she did not do the killing, but only instigated some one else to, it can
hardly be said that she was not so far present as to make her principal, for
she was certainly in the house, and in hearing of both murders.

It had occurred to me, however, since I saw you, that the jury should
be instructed as to the principles of law relating to principal and accesso-
ry; and, if you see no objection, I propose to state to them the law upon
that subject.
       
I have already written you about Jennings, and you have probably seen
him before this time.
Yours Truly,

H. M. Knowlton"

--I was under the impression that Lizzie could still be indicted as accessory before or/and after the crime, or aiding & abetting.
Now we have civil suits for reparation not gleaned from criminal court.
Might she still have been indicted in Civil court in 1893?

With the exceptions of about 50K (30K + stock shares) to the FR Animal Rescue League, 2K to the Washington DC Animal Rescue League...all of Lizzie's estate went to people.  Oh...$500 toward the perpetual care of the family plot.

Charity began @ home with Lizzie.

I do not know what Mass. law says as regards civil suits or when the laws were written.  I am not an attorney but I do teach history and government and as far as I understand, they had the option to charge ol' Lizzie on a number of counts and I would suspect that charging her as an accessory was an option at the time. That is what I gain by reading those two letters.  I suspect there was significant discussion as to what direction the state should go as regards charging Lizzie and having a good chance to win the case. 

In any event, the state took their shot and charged her with the crime of murder and she won in a state court in front of a jury of 12 men.  Unless Mass. has some unusual quirks in their law, I cannot see how Lizzie could be later charged with any other crime related to that particular case.  The state hit her with their best and biggest shot and the state lost.  Any lesser charges at a later date (after she won the case) would still amount to double jeopardy and the US Constitution absolutely forbids that. It would not matter what evidence might surface to implicate her or even absolutely incriminate her. No state law may ever contradict the Constitution of the United States.

The state brought the only charges they could bring and they were based on the belief they had the evidence to convice a jury that Lizzie was guilty.  The state lost and ran out of options.  

Therefore, as far as Lizzie is concerned and based on what I know about the Constitution and our civil liberties, the case is closed.  It is, I suppose, officially unsolved, but regards Lizzie's involvement, she was as free as a bird no matter what transpired after the jury rendered its verdict and she knew it.  She was teflon in life and remains so in death.

(Message last edited Oct-13th-03  6:06 PM.)

Thanks for your response.
I didn't think charging someome with *Murder,Period* also included lesser charges.  It's not a blanket finding absolving a person from never being charged as accessory, is it?  If those extra charges were contained in the indictment,  or the jury had been instructed they could find her guilty on second degree or say, manslaughter, or accessory or aiding&abetting as an option open to them, then I could understand that since all bases were covered, so to speak, all those charges would be dismissed when she won acquittal.

Arthur Phillips, her newly minted attorney who conducted some witness statements for Mr. Jennings, wrote, years later, in In Defence of Lizzie Borden, that:
"The mass of documents and other evidence collected by the defence have never been disclosed or discussed, due to the fact that until the  recent death of Miss Borden their secrecy was, in the opinion of Mr. Jennings, important to her defence.  He considered that reservation of such facts as would meet any new phase of police investigation was necessary, and that during her life it was improper to disclose or to discuss facts which were gathered in her interest, and which might by any possibilty be important if crime should be reconsidered by the District Attorney."

--It would seem that the secrecy of Lizzie's defence file through the ages might be because she was not immune from any other charges.  (?)

i certainly agree with what you imply you believe about the constitution and double jeopardy.

i regret to say i am still at a loss as to explain at least two cases of double jeopardy in california during the past decade.

"double jeopardy" is a SIMPLE CONCEPT.  it's already been trampled on by legalistic lies.  the way is wide open.

i've always agreed with the borden verdict, even though i think she's guilty.

OK, I checked with an expert in the field of law and the concept of double jeopardy.  A retired attorney who now teaches a law and government course at a local community college, he has clearly stated that there is absolutely no way Lizzie could have been tried on any other charges related to the Borden murders once she was found not guilty by a jury in a court of law.  Even if she had waltzed out of that courtroom following that not guilty verdict shouting that she had, in truth, committed the crimes, there is nothing the police or the DA could do.  Even if precise and conclusive evidence was later found that implicated Lizzie, there is nothing the cops or the DA could do.

A not guilty jury decision in a court of law ends the case for that particular accused person--forever.  No lesser charges nor any additional charges based upon newly found evidence (or even an outright confession) will permit a new trial.  Lizzie, once the not guilty verdict was rendered, was a teflon princess.  Double jeopardy was her armour.

And I suspect she fully understood this reality.  Her only task was to appear to be a model citizen, a good soul, a benevolent matron devoted to helpless animals and as a patron of the arts.  She wanted to become "not guilty" in the court of public opinion.  In that court, she failed.  And I suspect she knew that as well.

Therefore, those letters have to be the ruminations of prosecutors desperate to find a way to nail Lizzie with something that a jury would accept--before they decided as to their best course for success in their endeavors.  They bagged the lesser charges and went for the big one--capital murder.  They lost their gamble and that was their only chance.

The case is unsolved.  For Lizzie, however, the case is closed and became so the moment she heard the words "not guilty." 

The result, today, is that the Borden graves in Fall River are the graves of two murder victims and the grave of one daughter who did not commit those murders--even if she did.  And nobody can touch them because they are private property and not the domain the state.

As I said--teflon.

(Message last edited Oct-14th-03  12:26 PM.)

There is still a great deal of confusion in my mind on this point. I checked the on-line 'Lectric Law Library and attach the URL:

http://www.lectlaw.com/def/d075.htm

There appears to me to be exceptions under certain conditions.  Whether any of those conditions apply to the Borden case is beyond my legal knowledge.

Each of the cases cited on the website listed in the previous post were decided in the mid to late Twentieth Century.  There are cases where, when the state courts fail to convict, the federal government has stepped in with DIFFERENT federal charges. Virtually all of these cases have to do with Civil Rights issues and violence committed against minority individuals or groups.  Federal court rulings viewed these crimes (generally murder cases) as not mere murders but crimes inspired by racial hatred and therefore a violation of new Federal laws. (Some of these rulings were in response to racially motivated murders that involved lynchings.) Therefore, different charges beyond various degrees of murder can be brought by Federal authorities--in rare circumstances.

The case of the murder of Civil Rights leader Medgar Evers comes to mind.  The accused was found not guilty in a state court and then the Feds stepped in, a number of years later, with Federal charges (different charges than those on which the original case was tried by the state).  There was a similar situation as regards the Rodney King case.  However, none of this was relevant to Lizzie.  Federal jurisdiction and Federal court decisions that might have allowed different Federal charges to be brought did not exist in 1892.  Nor would these rulings allowing different Federal charges to be brought exist for another fifty years or more (in some cases the rulings took another full century).  Furthermore, the crime of which Lizzie was accused was not racially motivated.  It does not fall under the above mentioned categories even if such Federal intervention had been possible in 1892-93.

I would also note that the Supreme Court has often overturned guilty verdicts in murder cases.  This is never done based on whether an individual is guilty per se.  It is done when the high court believes that the civil and constitutional rights of the accused have been violated thus leading to a guilty verdict.  The case of the Scottsboro Boys (early 1930's) is a classisc example.  Nine young men were convicted of raping two white women in Alabama and found guilty.  The Supreme Court overturned the rulings because these young black men faced an all white jury.  That can no longer happen.  In a second SC ruling, it was determined that the convictions should be overturned because the young men had been denied access to an attorney.  And the story goes on from there.

Lizzie could not have even argued she did not face a jury of her peers in 1892 (if she had been found guilty) although the jury was all male, simply because women had virtually no legal rights at that time and were still some decades away from gaining those rights.  I would add that 1892--the year the Bordens were killed--was the same year the Supreme Court upheld a Louisiana law allowing racial segregation.  The case, Plessey vs. Ferguson, created the hateful "separate but equal" policy that would fuel legal racial discrimination until 1954. Lizzie did not live in a terribly enlightened world in 1892 and regardless of the verdict, she has no reason to expect the Federal courts to come to her aid whatever the verdict might have been.

All of this continues to be in response to the original post stating that this case remains open.  It does not.  It remains unsolved. There is an important legal difference in these two statements. And in Lizzie's day, she knew she was home free--in a legal sense--when the "not guilty" verdict was read.  Had she been found guilty, she could have appealed.  But the state blew the case and had no other suspects on the horizon.  Lizzie won and could never be tried again based on the nature of the crime and the laws of that time. Now, I will shut up.

(Message last edited Oct-14th-03  3:38 PM.)

Thanks for all that.
I 'm still a bit confused but that is not your fault.

Did they have appeal in 1893, Massachusetts?  Wasn't that a later (say 1906, 1926?) Scottish invention?
(Sorry, but I'm not sure how to look this up)

There's still some confusion on the final disposition of the Lizzie Borden murder trial.  Remember that there were 3 charges and that only one was judged "Not Guilty"?
The other 2 charges were "Nol Prosse", after the courtroom erupted.
Nol Prosse would mean *We will no longer persue this matter*, but that doesn't mean Forever, I don't think?

Obviously, it does.
...
Like "no true bill"?

(Message last edited Oct-15th-03  10:38 AM.)

It is not as open case as far as LAB is concerned. Once found "not guilty" you can never be charged again for the same crime. In recent times this has not prevented Federal charges from being applied, IMO.

There is one big difference between Lizzie and OJ.
Lizzie was on the scene at the time; she was "not guilty". But she must have known what happened.
OJ was in the airport at the time; he IS "innocent". (I'm pretty sure the murder was as big a surprise to him as to Nicole.)

This is why quoting Trial Transcripts or partial quotes from newspapers should not be done by those w/ little experience. Or making such comments?
The statue of limitations of 7 years (?) may apply to other felonies, like "obstruction of justice" etc. If they could prove you didn't tell all you knew, then maybe you could be convicted for this, if they wanted to prosecute you.
There is only so much money and time for any Prosecutor.

Why did Emma move as far away as possible from Fall River? Did she find the attitude of the ignorant unbearable?
As for Lizzie, after being shunned by FR, what else should she do?

Last Will: For all those who gossiped about me and bore me ill well, they can just kiss my assets goodbye.

Yes, being an accessory could explain the reference to the 7-year limit. Memories do fade, people die or move away, new DA and priorities, etc.

What about Jon Benet Ramsey today?

Absolutely TRUE!!! So charging her with Andy's murder (when she had an alibi of being seen outdoors) is ONE way to fix the trial w/o appearing to do so. IMO.
Maybe you can read the comments in AR Brown's book?

YES!!! They would've had a much better chance to convict Lizzie (and Uncle John) of "obstructing justice" (not telling all they knew). IMO
But if they did that, they would forever forfeit any chance of cooperation from these two witnesses, who were both rich and smart enough to get the best lawyer in town.

See John Douglas's book on the need for doing this if ever accused of a crime.

"Double Jeopardy" goes back to the Magna Carta, if not Roman Law. A scholar could look this up. The power and wealth of the state is so immense compared to the average subject or citizen, that recurring prosecutions are just political oppression. Like the civil suit against OJ Simpson.

Was it AR Brown's book who hints that Arthur Phillips was the author of that "Rubinsky" letter sent to Emma? THAT could get somebody disparred; and could be explained by Lawyer Jennings's use of an expendable resource for this.
"Fall on your sword" in Johnny Cochran's book?

NO. The Supreme Court in any state is there for just such appeals.
A jury decides questions of fact. Only a legal problem can serve for an appeal.
EG suppose OJ was convicted. Then we found out it was a mob murder. This fact of innocence is NOT GROUNDS for a new trial. Like those cases in the news where rape and murder convicts were later found to be innocent by the DNA evidence. In fact, some states are trying to prevent their release!!! (They need the payoffs from government contracts to suppliers to prisons, etc.?) I do not know the grounds for their release. F Lee Bailey's "Defense Never Rests" may address this question.

I suspect that when the jury verdict is perverse, against the facts, a Supreme Court interested in JUSTICE will find a way to overturn the verdict, maybe with a new trial. But the changed political situation may make a new trial impossible.
You can look this up; you will find it educational.

Thanks for the link to the archive, Diana.  I laughed when I saw I started THAT thread, that I called "Open or Closed" (March, 2002).

I have no disagreement with Jeff at all.  Lizzie was covered by the 'double jeopardy' rule. 

But someone else could have been tried, had they discovered or charged them.  And that never happened, of course.  And now everyone involved in the case is dead.  Sometimes that's used as a basis for not re-opening a case:  "Everybody is dead.  What's the point?"

The point is, this can't be legal.  I know, I know - things that should be often are not.  But this is a famous, famous case.  And there's no statute of limitations on murder.  The 7-year thing isn't for that. 

Other famous cases where all the people were dead have been opened.  Is there a source where I think Kat posted that the burial plots are private property and can't be touched cause the family says so? 

I've read that piece from Jennings, about sealing Lizzie's papers in the event the case is looked at again.  That should tell us that there is important stuff in those Robinson files.  One of the spokesmen for Robinson's office did admit the papers were historically important.  "No smoking gun", but historically important.  (And why did THAT guy get to read the papers?  He wasn't her attorney!  Hey, let's all send resumes in to Robinson's law office.  And if one of us gets hired, we can try to see the papers.  Then, of course, post all we know.  I mean, really, what could they do to us? ... I wonder if any of the people who read them can be bribed ...)

I think 'the girls' reward expired with the last time it was published, within a 'reasonable' time period. 

I've read of the cops following lots of leads before Lizzie was convicted.  But are there any sources stating leads followed (officially) afterwards? 

 

The only clue I recall being folowed up after the trial was one by Jennings, Lizzie's long-suffering lawyer.
Rebello, 296:
" 'Lawyer Jennings Still Unable to Solve the Borden Mystery,' Fall River Daily Herald, June 6, 1894: 8.

'A dispatch from Washington [D.C.] to the Boston Post says: Andrew J. Jennings of Fall River, being interviewed about the Borden case, is quoted as saying:

"To this day it is a puzzling mystery, I have never yet been able to solve it. Superintendent Brynes of the New York police force said to me that it was a case altogether unprecedented in the annals of crime. I have never been able to form a satisfactory theory as to the murderer of Mr. and Mrs. Borden. I thought after the acquittal of Miss Borden that I had found a clue that promised to reveal all, but after working diligently on it for two months realized that it solved nothing. Miss Lizzie Borden and her sister live very quietly in a house bought after the tragedy. The former is not seen very much." ' "

----
Ray, notice how Augusta responded to all sorts of items with one post and it still makes sense?
One post covering everything is easier to archive than 12 posts, do you see?



(Message last edited Oct-15th-03  9:08 PM.)

Yes, for Jennings to hang onto those papers long afterward thinking they may be needed, there must be something very interesting in Robinson's papers.  I wonder what it would take to see them or to make them public?  Everyone involved with the case is long dead.  *sigh*  We can dream, I guess. 

Recall when you were asking about Jennings' notes in the Preliminary Hearing hard copy?
Augusta is pretty good at deciphering those.
I'll help if she can start.  She's better at it than me.
I wonder if anyone has transcribed all those.
Some on one side of the page just repeat testimony that he wants to emphasize to himself.
On the other page there are actual comments.

Sure, I would love to see whats there.  Might clue us in on whats in Robinson's files?    If I can help, let me know. 

Lawyer Jennings MAY have used new lawyer Phillips to create a false trail w/ that Rubinsky letter, according to AR Brown.
Doesn't that sound reasonable? Re-read his analysis.

Well, I think if we can contemplate that Jennings was possibly corrupt, and corrupted Phillips fresh out of law school, we can contemplate that Lizzie committed the murders, or even Bridget.
Personally, I think it is Brown who was fabricating things.

Kat, I submitted the "Nol prossed" question to a legal newsgroup, "Misc.legal.moderated".  I won't list the entirety of what I asked but suffice to say it covered what we have been discussing in this thread. Here is the heart of it:

Q. On December 1, 1892 the Grand Jury issued 3 indictments, one for the murder of her father, one for the murder of her step-mother and one for the murder of both.

At her trial, in June 1893, only one indictment was read to the jury, the one for the murder of both. She was found not guilty and after the verdict was announced the prosecution rose and stated:

"There are pending two indictments against the same defendant, one charging the murder which is charged in this indictment on the first count, and the other charging the murder which is charged in this
indictment on the second count. An entry should be made in those cases of nol prossed by reason of the verdict in this case. "

My question is this. Can the indictments which were nol prossed ever be pursued again? And if not, why would the prosecution have to even make such a request?

Their reply:

"Basically, the prosecution was dropping the charge because she'd already been acquitted of the same charge.  It wouldn't be decided by the Supreme Court until a few years later, but the 5th Amendment is clear, acquittal forever bars that government from retrying the person on the same offense.

"If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed, and the government cannot. U.S. v. Sanges, 144 U.S. 310. A verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offense." Ball v. U.S., 163 U.S. 662, 671, 672 (1896)"

It's basically what we already knew but it's interestring that the Supreme Court didn't rule on it until 1896. 

Thanks, I get it now.
Only one Indictment was read and only one was considered by the court.  That is a distinction I didn't know.
That makes sense now that the other 2 were put aside.

I don't get why they would hit her with 3 and only try her on 1, except if they had wanted to reserve the right to try her again on the other(s).

But that strategy was not open to them, so maybe it was to make her look more guilty?
......

I was reading a book "Victorian Murderesses", Mary S. Hartman, 1976, Schocken Books, NY.:
_About Florence Maybrick, who was tried for the arsenical murder of her husband, in England.  Her trial was in August, 1889, and she was convicted to hang.  In the footnote #1, p336, for Chapter6:
"My account also relies on newspaper reports, especially from the Liverpool press, and on documents and information in a book edited by J. H. Levy, entitled The Necessity for Criminal Appeal as Illustrated by the Maybrick Case (London: King, 1899. )"

--We had been trying to figure out when appeals came into our justice system, and I believe we were behind England and Scotland at that time, and so it seems appeal was still being argued as a valid form of review in 1899, and too late for Lizzie's trial.

(Message last edited Nov-11th-03  6:28 PM.)

December 31st, around 9 p.m. there was an investigative program called "48 Hours Mystery", CBS, and it was on a story of a man acquitted of hiring his brother to kill his wife.  The brother wrote a suicide note exhonorating the suspect, while in jail and committed suicide.
The suicde's note was ruled hearsay and disallowed.
The husband (the suicide's brother) got off and then about 2 years later Federal charges were going to be brought against the acquitted husband for Conspiracy To Commit Murder and he fled the country to Amsterdam.
He was a rich Texan bookie.
I don't know if the Federal government in 1900 or whenever, could do that in the Lizzie Borden case?
I'm not sure why they could overide the not guilty verdict by a state, by the Federal govenment.

The right to be not prosecuted after being found not guilty goes back to the Magna Carta, 1215 or so. You can look it up.
The 1896 Supreme Court ruling only applies existing law; it did not create it. That's why some of the legal transcripts in this or other cases should not be read by those w/o any background.


(I had a short vacation.)

The thing you should all get is the one count by which Lizzie was tried was the weakest, IMO. Because of the general lack of evidence, the demeanor of the accused, and the fact of being seen outside around the time of death. IF they tried her for "obstruction of justice" (not telling who was hidden away in that house) I think she would have been convicted. The lesser charge. Sometimes juries will convict on a lesser charge.

I don't wish to drag this subject up again but I was watching an old B/W movie on TV yesterday.  It starred Cary Grant and there was a scene in it that involved double jeopardy. The details are a little fuzzy but in essence it was this:

Two men and a woman went mountain climbing. The woman didn't wish to go any further and the men continued on. After climbing awhile longer they got into an argument and a bloody encounter took place. I believe one man (call him "A", and the other "B") was knocked out and when he awoke "B" was gone.  In his struggle with B, A had blood all over his pants.

Returning, the woman saw all the blood on him, and not seeing B accused him of killing B.  The police arrested him and he was tried and convicted and sentenced to 15 years. The low sentence was because they could not find a body.

One day after finishing his sentence A spots B alive in a restaurant. Furious that he served all that time for a crime that never happened he attacks B and kills him. In the movie A is sentenced to death the second time.

I know it's a movie but it just struck me as interesting.

(Message last edited Jan-19th-04  4:07 PM.)

http://www.arborwood.com/awforums/show-topic-1.php?start=41&fid=27&taid=1&topid=1641

See my post #43.

I saw a real-life example of this and I'm still stumped at it.

What does anyone think?

(Message last edited Jan-19th-04  8:43 PM.)

Wouldn't this be a case of double jeopardy?

I sure thought so Bill. Of course it was just a movie in this case but I wonder if anything ever happened similar to that in real life.

Probably not as it certainly creates an interesting legal situation. You can't just say "Oops, sorry about that first conviction."

The wording is important here. The 5th amendment to the U.S. constitution reads in part:  "..... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;..."

The question becomes is this the same offence or a new one? It's not the same incident but it is the same outcome that he was convicted of. Also since his conviction in the first place did not subject him to "jeopardy of life or limb" (in that he received a 15 year sentence) does the clause apply?

This is just looking at the uninterpreted Constitution as it is written. Obviously there have been over the years further rulings clarifying it's intent and meaning.

It becomes too legal for me. The more laws I read the more confused I get. 

(Message last edited Jan-20th-04  8:01 AM.)

I think it largely depends upon the charge.  If he was originally charged with murder one, was found guilty but given leniency because of the circumstances you outlined, then I don't think they could try him again on the same charge.

Just an opinion, I'm not a legal eagle either!

How about getting Bob G. involved? He's surrounded with a lot of legal talent in his office.

How about this. In the case of the mountain climbers the first man is found guilty of killing the second man and sentenced to fifteen years for that crime which he did not commit. Then after release the first man really does murder the second man. Can the first man be tried for the real murder of the second man because he was found guilty, not acquitted, the first time even though no murder was commited then? In other words, "double jeopardy" protects the "innocent" not the "guilty." Or, could the first man be tried for the real murder of the second man whether guilty or not guilty at the first trial because the facts of the two cases are different, they are not the same crime?

There is still this real life case which no one has addressed.
This man was acquitted of hiring a hit man and now they are after him for Conspiracy to commit murder.  Seems like the first charge would have included that.
Maybe it does depend on the exact charge,after all?

The movie "Double Jeopardy" (?) was on CBS tv Sunday night. The basic same plot. Plus elements of "The Fugitive" thrown in as well.
Thanks to all those creative TV drama writers!