1. "Andy's Last Stance"
Posted by rays on Oct-27th-02 at 3:37 PM

Photograph No. 5 shows Andy's body reclining on the sofa, his head near the dining room door. Some people have alleged that he was whacked in this position, while the murderer was shielded by standing in the doorway. This is totally wrong, and another example of theory driving facts, not the other way.

You can measure the blood spatters on the wall, and tell where his head was positioned. But you'll need access to the trial testimony, and a sheet of graph paper.

Simple common sense will tell you Andy was sitting up when struck, not reclining. You can sit on a sofa with your feet on the floor. Then lean over so your right side rests on the sofa. Uncomfortable? Feel the strain on your back? Those younger than 70 will find this a very uncomfortable position, either to nap or rest. (The shoes on his feet say the feet were not on the sofa.)

I concluded from this experiment that Andy was sitting up, facing his killer, when surprised and killed by the first chop. His body sagged to his right from the force of the blows.

Copy right 2002 by Raymond Stephanson. All Rights Reserved.

That was good.  A lot of people are beginning to believe that Andrew was sitting up or standing when attacked.  Personally, I can't make a determination based on blood spatter because I don't know enough about it.
So I have relied on all the doctors that were there at the time to interpret the wounds as to Andrew's Stance.
It's possible they are all wrong.
I would wonder where are his defense wounds?
Was there ANy struggle?  Because his clothes are not disarranged (That I can tell from photos).  His pocket watch chain is still in proper position.  His collar and tie are untwisted.
Anyway, does it Matter if he were sitting upright or lying down?
(Which 5th photo are we looking at?)

I never thought of that Ray, but you've got to be right! It sure seems a natural posture to fall into from sitting. To me Kat it means the difference from him getting killed while napping-and possibly not knowing who the killer was-to him being fully awake and seeing whoever it was (perhaps his own daughter)murdering him.

Another possibility is that Andrew was struck and THEN tried to get up, which would have placed his feet in that odd position.  We don't know the order in which the blows were struck, but most would not have been fatal wounds in and of themselves.  I know a poster on another board believed he was standing when the blows were delivered, but I think that scenario presents some problems that would be difficult to overcome.  If the killer was Lizzie (and that poster believed it was she), the height difference would have come into play.  I also thought Andrew would probably have reeled around trying to escape the killer and perhaps disarranged or even overturned furniture.  It seems unlikely to me that he would have wound up in that neat position on the settee, unless the killer dragged him there.  That would have disarranged his clothing and left more blood on the carpet, I would think.

I agree Edisto, and think its unlikely that he was standing-that the killer-especially if it was Lizzie-would have tried to kill him when he was on his feet. But sitting down, as Ray posits seems to me now the most likely scenario.

That is why I don't understand why they got rid of the clothes,
if he was hit sitting up it would probably show one pattern of
bloodstains and if he was laying down it would be another.
Laying down seems like it would have splattered & sitting up
it would have dripped down & got on the pants. The upper parts
would have been soaked eventually but the lower clothes would still have a pattern.

I think the doctors  pretty much agreed Andrew was hit by a person standing at the end of the sofa not in the dining room doorway, and they concluded that from the placement of the hatchet strikes.  I don't think Andrew was killed standing up because even a man of 69 who is not feeling very well has a lot of strength and it would have been easier to fight off an attacker while standing, especially one so many inches shorter than him as Lizzie was, if it was her.  So with Andrew sitting on the sofa the attacker had a better chance as his physical strength was lessened. Anyway, being hit with a hatchet so many times would tend to drive the person's head down and into the side of the sofa. Dr. Dolan said he might have moved him anyway. 

About the shoes, one policeman said Andrew had tie shoes on and I think someone thought his ankles were crossed so the placement of the feet were most likely changed in the course of the day. Perhaps he didn't have shoes on and someone put the congress shoes on him (?) possible but not probable. But I don't think the sofa was long enough for Andrew to have stretched out on fully even without his shoes unless his feet ended up draped over the other end, and that sounds peculiar a position than the one he was found in, uncomfortable.

Sometimes people who are sick or recovering from illnesses sit strangely on sofas.  My nephew recently put himself on the couch to rest in the same position Andrew was found in because he had just returned from the hospital and that position was best for him at the time.

Kim had mentioned previously that Andrew's SHOES would likely have blood on them if Andrew had been at least upright.  She wants those shoes!
I don't blame her.
We actually HAVE shoe testimony but Nothing about Blood on them  ("GRR" face here...)
If there was any messing around with Andrews shoes or feet I would HAVE to think it was either Lizzie or Bowen who moved them specifically, or else we would have testimony to that (other than Pette saying his feet were "crossed".)

As to Andrew's "stance" on the couch, I think The lying down, being hit the first time, then getting partially up, only to fall back again sounds interesting too.

We also need to keep in mind his hernia.

Isn't it just maddening that they did that sort of thing?
How stupid were they? This really wasn't all that long ago,
you think they would have better sense than to throw evidence
away.

http://www.lizzieandrewborden.com/BloodEvidence.htm

Preliminary
Dr. Dolan

Pg. 93-98:
"There was very little blood on his [Andrew Borden] clothing, except on his bosom, his shirt bosom, and of course the back where the blood ran down, that is, in the back of his cardigan, and his clothes were soaked, where it had run down from his face to the lounge, as it lay on the lounge.
...
[The principal flow of blood was] Through the lounge on to the floor, after going through the pillow and his coat.
...
There was not a great deal [of blood] on the floor. It was dropping when I was there, dropping from the lounge in two places on to the carpet.
...
. . . from the head of the sofa it was dripping down on to the carpet [under the sofa].
...
Yes, it was under, near the back wall.
...
[All the blood found] Taking first the wall behind the sofa, there were in one cluster of spots, as it were, radiating, describing the arc of a circle, there were seventy eight blood spots.
...
Those were immediately behind his head going and dropping towards the east on the wall [above the sofa].


--sounds like maybe he was lying down, at least at first, and eventually... for the blood to soak his chest and then onto the carpet under the head of the lounge?


(Message last edited Oct-29th-02  4:32 AM.)

As I remember it, didn't Engineer T Kieran measure the location of all the spots? That would be the best evidence from the Trial testimony.

The Doctor said the blood spatter was in an arc, from the dining room door to the kitchen door. That could only mean it was centered in the middle of the sofa.

I'm sorry if time constraints prevent me from spending much time on this now, or in the near future. But this is an example of how a present day example can be used to test the events of the past. There are NO cultural differences in the human body from a century ago.

[Wasn't Dr Dolan part of the prosecution? Could he have tempered his testimony that way? Remember the "prosecutorial perjury" of those Harvard witnesses for the prosecution: "that hatchet COULD have killed Andy" - when they knew the old rusty hatchet was NOT the murder weapon!!!]

(Message last edited Oct-29th-02  11:07 AM.)

Surely the first blow, penetrating his skull, would have killed him "instantly" (aside from any twitchings)? Were there any defensive wounds? Could a 5'4" Lizzie have successfully attacked a standing 6 footer man? I stand by my original statement.

Thanks for your considerations.

But do you have a picture of your nephew resting in such a position?
Or other proof? Have you tried this position yourself?
I don't believe your statement.

[Were these Doctors part of the Prosecution team? Does this make a difference?]

(Message last edited Oct-29th-02  11:13 AM.)

A picture of the nephew? Why would she lie about such a thing?

Do the test at home!!! Just sit on a sofa with your feet on the floor, then try lying down in that position. Feel a strain in your lower back? Uncomfortable? NOT a restful position.
Has ANYONE here tried this, and not just read about it?

[Her testimony is dismissed as "hearsay"; she did not witness this by doing it herself. Take careful note of what whe said. Andy did NOT "just return from the hospital", whatever that means.]

(Message last edited Oct-29th-02  11:48 AM.)

It says 'very little blood' except on his upper clothes,
but they didn't make a note of splatters if there were
any, did they? It seems like you would be able to tell if
there was much splattering or spurting to get on the killer
also by how much was on him. I'm just guessing.

I don't believe we know the order in which the various blows were struck.  I know the injuries were numbered during the testimony regarding the autopsy, but those numbers were for convenience.  They didn't pertain to the order in which the blows were struck.  The doctors were unable to determine the order and said so during the testimony. 

IMHO the sofa wasn't long enough for Andrew to stretch out on with his feet on the couch comfortably. I also doubt very much if he would put his feet up on the sofa with his shoes on. Even I don't do that. The testimony of Kieran from the trial, page 114:

Q.  Give us that. (Meaning the measurements.)
A.  Found the length to be seven feet and one inch over all; the width of it two feet, three inches. At each end of the sofa was a pillow or arm which was a cylindrical---just a roll.
Q.  A part of the sofa itself?
A.  Forming a part of the sofa itself, and between those two arms or pillows the sofa measured four feet, eleven inches. The seat of the sofa was 18 inches high, and the top of the arm 28 inches.

As for lying like that, I often do.  I'm the same height as Andy (5' 11") and I don't find it uncomfortable.  I find it more so with my feet up. I don't sink that far down but I also haven't been brained with a hatchet 10 times.  Some people doubt the last part of that sentence. 

Zackly-how can we presume that because a certain position is uncomfortable for someone that it will universally be uncomfortable for everybody else at all times?

(Message last edited Oct-29th-02  2:33 PM.)

Can't exactly Kash.  Just a general impression and IMHO.

Do you think its possible too that Andrew, given his age, was taken to just falling asleep where he was at?  Like I was thinking maybe he fell asleep sitting up, dropped off into a doze and either due to the slipperiness of the horsehair upholstery or along with the first whack of the hatchet slipped down into the position that he was found in?

It reminded me of an old friend that my husband and I had had back east, an elderly man who in mid-sentence would drop off into a light doze.  If he started to fall out of his seat he would wake-up immediately and begin talking right where he had left off. 

I just took the Andy Couch Test & it seems like a
normal position once you are there. I'm 5'4" and
it could be made more comfortable depending on the
pillow at my head and the way my hips were positioned
(that sounds dirty!). The feet on the floor aren't
what would make it uncomfortable, it is the way you
have your hips, it doesn't look like such an odd
napping position now.

"Inguinal hernia on right side." ...from the autopsy of Andrew.

He was positioned on the right hip somewhat...would this make a difference?

I guess I mean he could have as easily leaned over to rest on his left side if that right side was a problem?

Ray, there wasn't much blood left to measure when Kieran got there.  Dolan has the most accurate notes and was at the scene, on the day.  His is the information of record.  I think Kieran was there the following week.

(Message last edited Oct-30th-02  4:59 AM.)

Oh I agree Harry, was just noting after your posting that Andrew's position might very well have been comfortable for him and not so for others.

Anybody over 50 years and near to Andy's 6 feet of height can try to duplicate that position. It gave me a pain in the back! Note his feet are flat on the floor, and his right side flat on the couch. I felt stress in my lower back. (I also do NOT believe those who are contrary!)

A year or two ago someone said it was unlikely that the carfully folded coat would be used as a cushion. Most people who fold their coats and place them on a bed or couch do NOT use them as pillow.

Both of the above facts say that Andy was sitting up when struck. I do not have the Trial Transcript (Kieran's measurements?) to verify the "arc of blood splatters" was centered in the middle of the couch.

The only time it was uncomfortable was when I was tilted
a certain way, but I could straighten up a little & it did
indeed feel fine. I am not over 50, but my back sure feels
over 50.

He was moved before the picture was taken. He was lower on the couch then when Dr. Bowen seen him.  If Pettee is to be believed, and I have NO reason to doubt him, his feet were crossed when he seen him.  Who uncrossed them and what was his position then?  All this was hours before the photo being taken. I would not necessarily take the photo as absolute proof that that was the position he was found in.

I have NO problem with being comfortable in that position and I DO believe those who also say that.  That includes me and I hope I believe myself. You are free Rays, NOT to believe me.

IF Andy's feet (legs?) were crossed, he was certainly sitting up. I can't imaging anyone crossing their legs or feet in that position.

Speaking about Good Judgment: if only one person says something, but the others do not, why should we believe the one if there is no evidence for it?

And what about the record of the blood spatter? I do not have the time etc. to look it all up and trace a pattern on graph paper (X axis on the door frame or whatever reference, Y axis on the height from the floor, etc.).

I will continue to doubt those persons who seem motivated by compulsive contrariness or some other personal problem. If there be any like that here.

One should always look in the mirror before making comments about other people.  Good place to start.

But let me check Brown first to be sure.  Now where did I put that book?

(Message last edited Oct-31st-02  6:22 PM.)

What do compulsive contrariness and personal problems have to
do with the fact some people can lay over on the couch & be
perfectly comfortable? Is that really anything to lie about?
What is so hard to believe? People can sleep on airplanes and
front porch swings, why not a couch with your feet on the floor?

I don't see any reason to doubt this man Pettee either. It's possible that while Andrew was upstairs, he picked up his congress shoes, which to Lizzie might mean slippers, took them downstairs, and changed shoes.  It could be also that when Andrew got downstairs and Lizzie left the room and went outside, that the murderer came in while Andrew was in the process of lying down, but he straightened up, and put on his shoes while talking with this person, so while sitting up, he crossed his feet. Then the murderer produced the hatchet and started the foul deed. Andrew's upper body slumped down on the couch but his feet remained crossed. Then later someone came in, and moved him, being dead, perhaps his limbs were limp and his feet became uncrossed in the jostling.  Far fetched? 

I just tried it.  Finally.
I sat down and crossed my feet and lay toward the back right arm of the couch and my feet came up off the floor.
I'm 5'3'' and I couldn't touch the ground in that position, so I guess I can't comment from experience.
I do often fall asleep sitting up though, if I've slept badly the night before.
I also tried to pretend I had a HERNIA on the right side but all I could envision was a cramp...

Well, for everything you wanted and didn't want to know about Inguinal Hernias is here.  Apparently anyone can get them, but, men are more susceptible.  Heres the link to the site:

http://www.mindspring.com/~videosur/inhercau.html

I don't think I'd be lying on my right side then.
That was awful..
Oh & thanks Susan.

Andrew wore a truss but I don't know if that was a lot of help.
(Hint here:  please no helpful photos...I have a vivid imagination.  You know who you are!)
I wonder if he was always in some pain.  That excessive vomitting Tuesday into Wednesday morning must have exacerbated the condition.  That pre-existing condition, coupled with vomitting and probably diarrhea would leave poor Andrew one unhappy camper!  No wonder he didn't want to go to the farm with Morse on Wednesday.

Maybe he was MADE ill so he WOULDN'T go to the farm on Wednesday...we only have Morse's say so as to what-all he did on that trip.  He was gone a long time...like 5 hours?

My question would be is the truss there to try and push the intestinal protrusion back in, or is the protrusion pushed in by hand and the truss is there to hold it in place so that it doesn't pop back out again? 

Oh, please, just one teeny-tiny truss photo? 

(Message last edited Nov-1st-02  11:55 AM.)

I dare you! I want to see it!

In deference to Kat, I won't post a picture, but, will provide a link for Images From The Heber Chase's
The Final Report of the Committee of the Philadelphia Medical Society on the Construction of Instruments, and their Mode of Action, in the Radical Cure of Hernia, 1837

Just a warning, there is one picture which is a rather graphic depiction of a man wearing a truss!

http://images.umdl.umich.edu/w/wantz/chsf1.htm

Ugggh! That was nasty!

Well, I don't know about the rest of you, but I found that quite a turn-on!

  So, men wearing truss' do it for you Edisto?  That conjures up images for me of Andrew Borden wearing nothing but his truss and a smile dancing and singing Rod Stewart's song, If you want my body and you think I'm sexy, c'mon sugar let me know. 

Anyway...
I wouldn't expect Andrew to be lying toward his right side, putting pressure on that weakness.  I think he would be leaning the other way, toward the left.
Maybe he WAS sitting up, looking up, to be slashed in the face like that.  You'd think a MAN, tho, and a Butcher at that, would have aimed somewhere different on Andrew's body, like his heart...more area to hit without missing.  He would be approached from his left (kitchen) to have his body driven right, into the lounge?
A person who aims for the face usually knows the victim and is trying to obliterate their identity. (pop. profiling bks)

Susan, I had the same reaction as before:
Ugggh! That was nasty!

The question that comes to my mind is a inguinal hernia necessarily painful?  Never having known anyone that has had one, who can we ask?  It certainly doesn't look comfortable! 

I believe it can be made worse or cause the discomfort to flare up by coughing, vomiting, and bowel irregularities.  That's what your site said.  Andrew had most of these happening Tuesday night into Wednesday.  I would think he would be VERY uncomfortable all the way around.
It could be another valid reason for if he did fall asleep on the couch Thursday in what-ever-position-we-may-never- know---lack of sleep and the physical strain of being ill.

During Sunday afternoon's rain I napped. Then I retried to rest on the couch as Andy did. This time, I had no lower back pain. So it does come and go, like the weather. My lower back pain was very real at the time, so please excuse me IF I snapped at anyone. So it is very possible for others to have no pain. But it is STILL and uncomfortable position to rest in!

Once you have this condition, you'll know what its like.

Sorry for your condition Ray.
I did try that position and it was very uncomfortable to me.  The crossing of the feet is what did it.
If Pettee was correct that Andrew's feet were crossed then that sounds like a lot of back strain!

Wasn't there testimony that Andy's body had been moved?
If this is so, than the position of the body in the photograph could lend itself to various interpretations, none of which would have any real significance.

There sure was William.  I believe Walsh began taking pictures sometime around 3 in the afternoon.

If Pettee is correct, someone uncrossed his feet.  He sure didn't do it by himself.

Bowen thought he was higher on the sofa when he first saw him.  Again he didn't move by himself.

It would be normal for doctors to look at the body for other wounds. The police may have also moved him looking for evidence.  We'll never know for sure for neither of them would want to own up to changing his position.

In any case, the photo may or may not be the way he was directly after his murder.

Hearing about Andrew's crossed feet leads me to believe that he was sitting up on the lounge when attacked.  Whether awake or, as I have supposed before, that he fell into an old man's doze sitting up, I guess we will never know.  If we knew how many whacks it took of the hatchet to do Andrew in, we might have an answer.  If awake and suddenly cracked with a hatchet and not killed immediately, he would have retaliated in some way I think.  If dozing and suddenly cracked with the hatchet, it would take a bit more time to orient himself to realize what was going on and the killer would have more time to get at Andrew if the first strike didn't kill him.

So, how many whacks did it take?  Sounds kind of like that old Tootsie Pop commercial; How many licks does it take to get to the center of a Tootsie Pop?  The world may never know. 

It seems like one would be enough to stun him, even if he
wasn't hit really hard he was cut & it seems like being cut across
the face would leave you reeling even if it wasn't with an
axe or hatchet.

I believe the first wound was finally determined to be a cut through the eyebrow area, nicking the bone there, and then the second cut was through the whole face and eye.  I read this last night, but didn't make a note of it.
Please correct me if this is wrong.

(Message last edited Nov-8th-02  3:21 AM.)

Maybe the visual I got from the comparison of a hatchet mutilation to licking candy will go away.

I'm not saying you are wrong because if you read the information last night it is fresher in your mind, but from what I remember none of the doctors could agree which blow was struck first, second, etc. on either body.  They just used the artificial skull in evidence with the numbers of blows marked out on it to trace how many blows there were. The doctor made a point of saying that. The number sequence referred to the number of blows not when they occurred.

This was unusual, that is why I noticed it.
Dr. Dolan finally admits a determination as to sequence of wounds, at least to the first two.  It does make sense that there is a glancing wound, firstly, the same as there was to Mrs. Borden.

Page 988 / i1014

Q.  When one feels the eye in life, there is a sort of cushion or elasticity behind the eye?
A.  Yes, sir.

Q.  Notwithstanding the anatomy of the eye and its situation and its action in life, and that head upon a yielding cushion, you think a blow which cuts through these three outer coverings and the humor inside,---that this injury could have been done by a hatchet?
A.  I do, yes, sir.

Q.  And did it in reference to Mr. Borden, have to go through the bone over the eye?
A.  That is not the one that did it; that is the glancing blow. That was done first and chipped out the bone, which left the second blow that came down into the eye free from this bony contact.

--They immediately switch the testimony to digestion after this.


(Message last edited Nov-8th-02  8:18 PM.)

Are you sure that this sequence doesn't just refer to the eye sequence rather than that these two blows were the very first Andrew received of the entire 10 blows?  The doctor could tell that with relation to the two eye wounds one came first and one second, but maybe those eye wounds came after or before other wounds?

I thought of that and I read it in context and I read it again, and I decided that if Dr. Dolan wants to call those blows one  and "second", then that's what he meant.  He was pretty literal in all his testimony...sometimes smugly so.
There HAS to BE a first blow sooner or later, why not this one?

I don't believe the doctors or police had the forensic knowledge that would enable them to determine the sequence of the various blows.

I do believe that Andrew did not anticipate that first blow. If he had he would have defensive marks/wounds on his hands and arms.
After the first unexpected blow he was non compos mentis and completely oblivious to the balance of the attack. I believe this scenario also fits the assault on Abby.

I disagree with my learned colleague. Nowadays, expert witnesses do testify according to their knowledge. As Judge Dewey said 11 decades ago, "it usually supports the lawyers who hired them". It is up to the jury to decide. Yes, being a non-expert I also find it hard to believe, but an expert should be able to explain why.

For example, the flesh may indicate which blow came first when one overlaps the other, etc. Weren't those strikes evenly spaced across Andy's face?

I expected a glancing blow to be a blow that would stun and not kill outright...
I supposed that, after reading this determination, that Andrew and Abby both sustained a glancing blow and that since Abby's was deemed first and the description here was as one and second, that Andrew's first wound was the eyebrow wound.
As I asked before, is there a reason that these 2 blows Not be deemed first and second?  Does it foil a theory?  It seems to me to fit the requirements of a sitting -up Andrew sustaining this chink to the area above the eye and falling sideways then is gashed full face.
I understand the reasoning of semantics, but there has to be a first wound.
If one were to pick from the autopsy, first wound, which would it be?

I don't think the doctors of the time had the forensic knowledge either which is why they said they didn't know the sequence of the l0 blows. 

Maybe the famous Henry Lee I think his name is, who is on all the television shows now about the present day cases regarding blood spatter, etc., will get interested in this old case and he could shed some more light on it.

In the case of a few stab wounds, the amount of blood found on the clothes could tell you what was the first wound. Unless one hit an artery! But would this make any difference as to which of the ten (?) whacks was first? Unless there were more than one person there?

I think people worry about firmly establishing a sequence of wounds because that might denote Andrew's position on the sofa before the first was received.
THAT would then (maybe) show whether he was reclining, asleep, or sitting up, or standing.
And you know what that would mean.  Whether he knew his attacker.
Was Andrew ever personally acquainted with Wm. Davis?

i've yet to reach a conclusion, but to solve the mystery of his position on the couch when first struck, it seems to me that the only reliable evidence for this are the blood stains.  if he was sitting up when struck across the brow, shouldn't there be blood stains further down on his shirt -- possibly on a leg, or somewhere on that part of the sofa?  someone made the point that the first blow would not have been as bloody as the others -- but surely at least a drop or two as the ax drew back.

Yes that was Kimberly and myself.
Kimberly questioned where is there blood?
Pants, SHOES.?

I had read in those FBI books on forensics that the first blow is "free".  Not enough blood to fling around, from the first wound.
I wonder if we really examined the blood spatter we could figure this out?
A problem might be that we don't know of ALL the blood found, or that they even found or documented all the blood.

Another poster wanted to know why there were no drips leaving the room etc. when we know that doctors had transfer blood on THem, so that wasn't recorded.  Makes one wonder.

Have you ever seen what they do on those forensics shows when there is some sort of discrepancy in the person's death?  They take a piece of string from each blood stain and splash, I guess they can tell the direction it came from, and once all the strings are in place there will be one area that they all overlap in or a few places.  Those areas of overlaps are where the victim was when the wound was caused that created those particular blood spots or stains, its really interesting how they do it.  The show I had seen them do this on was one where the husband had shot his wife in the ear and then said that she had committed suicide, they both were gun owners.  But, from the string and blood evidence they were able to tell where the wife was exactly and about what position, just sitting up off the floor when he shot her. 

They do that on CSI thursday nights.
Now they do that with laser light AND with an animated graphic movie.  People are getting convicted with these animated computer movies of sequence of events.

I found, in Knowlton Papers today, Dr. Cheever (226) and Dr. Draper (211), gave their experienced opinion that the assailant of Andrew was right-handed, and Cheever says Mr. Borden was lying down head turned on right cheek="position of deceased when attacked."

Another doctor's opinion, I believe it was Dolan, was that the assailant was left-handed or at least had their left hand in front of their right on the hatchet handle.

Do you have Knowlton Papers?  I may have asked that...
Pg. 227 says just that about placement of hands on weapon, but no one doctor says the assailant was left-handed (if you think so would you please give reference? Thanks)

Cheever:
"...or if with both hands, with left hand forward - weight of evidence is of right handed blows..."

Dr. Draper's quote from his letter to Knowlton, where he states he and Cheever are "in entire accord...":

"6.  That the assailant was right handed and used his right hand, or, if using both hands, that the left hand was foremost, or in front of the right hand, on the handle." [speaking of the attack on Mr. Borden]

-There was a question at some point, I recall, whether a woman could have killed one-handed, and that's why they specifically cite the position of Both Hands if both were used.  It has been implied that a woman would probably use two hands to handle the weapon.

Dr Dolan was a prosecution witness, and testified to the benefit of those who paid him. We know they withheld the fact of gilt paint on the weapon. The Brady Rule didn't come about until the late 1960s?

[Note the spread of times for the deaths. Each "expert witness" gave a different time that covered ALL the possibilities! David Kent's book may highlight this.]

(Message last edited Nov-19th-02  1:10 PM.)

Didn't Jedge Justin Dewey tell the facts about "expert witnesses"? Their testimony may only be what the prosecution asked for.

(Message last edited Nov-19th-02  1:11 PM.)

What's the Brady Rule?

Dolan was the M.E. for the county.
He was also involved deeply in the Manchester murder, which came at a really bad time for the authoriities...in that they now had another huge forensic case coming on demanding attention just prior to the start of the Borden trial.

We have to keep in mind that Other things were going on in the lives of these police officials and prosecutor's and lawyers...the world didn't stop and wait for the Borden trial.

BTW:  Ray, if Dolan testified for the State in the Borden case against their suspect does he then always, by inference, throw all his cases away like that one, just for his regular paycheck?
Or Do You think THIS case was different?
Did he do it in the Manchester case, too?

I'm not a lawyer, I just watch the shows on TV. The 'Brady Rule' says the prosecution must turn over exculpatory evidence to the defense.

Judge Justin Dewey's charge to the jury said that. Didn't F Lee Bailey's 1970 book say that the judge in any case is basically part of the state? I'm sure no ME will give false evidence, but will shade the facts as the prosecutor request. See Dr Michael Baden's book on this. Do you doubt all this?

Yea, I guess I watched too much "QUINCY", where the M.E. was trying to get at the truth, no matter what it was.
So maybe I doubt that what you infer goes on ALL the time.
I wonder what You were watching?

Anyway, is that the "Brady" that was shot with Reagan?
I thought that deal where the prosecution had to share with the defence was around a Lot longer than that?

Obviously not around before the 1960s, as I read about it. Else Lizzie's defense would have learned about the gilt in the skull.

The TRUTH in "Quincy" is this: whenever he wants to do something beyond the bare necessities, his mgr says "there's no money in the budget". How many times have you heard this? Most TV shows present a reality where there are no budgetary restraints. (Altho the "Hunter" show once said this.)

Do read Dr Michael Baden's book where he talks about the control by the Prosecutor. Where an innocent man trying to calm a crowd was arrested and choked to death by police officers (in a frantic situation) "suffocation thru insanity" or something like that; a "natural cause".

[He was kicked out of office because of an unofficial comment about the cause of Nelson Rockefeller's death.]

(Message last edited Nov-21st-02  5:36 PM.)

Well, I didn't necessarily assume that the prosecution's mandate to release info & evidence to the defense went back as far as 1893...
But, forgive me if I'm being dense here...Do we know that Lizzie's defense team didn't know about the gilt?
And isn't a Preliminary Hearing the time and place where the prosecution shows much of it's case, mandatory or not?

Stef & I have read Baden...I'm just not sure which one you mean.

And You and I & my mom all watched Hunter and Quincy!  Cool.

(Message last edited Nov-22nd-02  1:49 AM.)

You ask if Lizzie's defense team knew about the gilt deposit on one of Abby's head wounds. Maybe someone else knows more but the letter from Dr. Draper to Knowlton is dated May 31, 1893, that is before trial.  In it he says "I write especially to inform you of two discoveries which I made upon a careful examination of the two skulls."  One discovery was that the carotid artery in Mr. B. was severed.  The other discovery was the gilt in the wound near the right ear of Abby and that it must have been made with a hatchet new from the factory.

What is interesting is in this letter a little ways down in that same paragraph he says, "Perhaps this is not new information either to you or Dr. Dolan...."

So Dr. Draper is not confident that this information is new to Knowlton, he is just making sure he tells Knowlton about it now. The letter confirms both he and Dr. Cheever confirm this information.

So, if the Knowlton team did tell the defense about the gilt, what reason would the defense have for also withholding it from the court?
I would suspect they did not know. 

It was worth it for the defense to cast doubt upon the prosecutions case that the Handleless Hatchet "might" have been the murder weapon. There was no hatchet with gilt on it, and the prosecution chose to withhold that information therefore they didn't think it would help their case to say a new hatchet had done it. The Crowe roof hatchet was not considered to be this weapon as the police didn't see fit to even submit it to a blood test.

So if the defense had known about the gilt they might have had more evidence against the defense's position that the HH was the weapon. It would bolster their case that an intruder had come in and killed the Borden's and taken away the weapon as well.

 

Very interesting look at the possible logic behind this question.

But I think it works both ways.  The prosecution didn't say in the indictment that the HH was the weapon.  I believe it was ambigiously stated as a "sharp, cutting instrument....unknown...".
That took the onus Off the state to provide The weapon, but of course it also weakened it's case.
If the gilt were known to both sides, the finding of the Crowe's roof hatchet would complicate everything, for prosecution & defense.  As you say, here is the "gilt" letter May 31, 1893  which is awfully close to trial, June 5th.  (thanks for sending me back to Knowlton, 211-2..because...)...There is another letter dated the 28th of May (205) by Draper where he states to Knowlton that the defense doctors/experts had been examining the skulls (Dwight & Richardson) at his office while he was in a room nearby "within easy call, but not where I could hear conversation when their door was shut."
Then he counsels Knowlton to get more experts on the side of the State and to stay away from certain medical testimony and certain general questions at trial, as it would tend to confuse the main issues as to cause of death and who is guilty.
It's interesting to note that the gilt was found and reported by Draper AFTER these Harvard doctors finished with their study and had left the evidence there without asking any questions.
This seems to get Draper in a tizzy because he asks for more medico-legal help on their side but also has that conference with Cheever, whose letter dated May 31st, is the "gilt" letter.  It almost seems as if they studied the evidence of the skulls and photographs (which he admits they just did) in the light of looking through *new* eyes, and found the "gilt."

As you say, he doesn't know if this evidence was known before, but it was new to him.

I could see that the defense would not want Any weapon found in the vicinity, within flinging distance of the Borden yard, for obvious reasons.

Did you notice in that May 28 letter from Dr. Draper to Knowlton that he asks Knowlton to put him in touch with a host or hostess in New Bedford to "take care of my animal wants as to eating and sleeping during my visit to your city?" What a strange way for a doctor to talk..."animal" wants? That makes me think he was bringing along his dog.

The two letters, May 28 and May 31 do seem to indicate to me the doctors were looking over the "skulls" as they say, but the skulls with the flesh still on, otherwise wouldn't it have to mean that the gilt stayed on the head through the cleaning process which meant it wasn't only in the wound but in the bone as well?  I think that odd, but I am no medical examiner, that those skulls could have been preserved for that long with the flesh on and not examined closely until within a couple weeks of trial. The real Borden skulls were at the trial, minus flesh, so that would mean they were cleaned up just shortly before the trial.

I think that is something maybe the undisclosed Robinson papers might hold the answer to.  They might say what those two medical examiners for the defense came up with and whether they knew about the gilt.
I think that if the defense knew of the gilt though, they would have said something at trial.  It would have been another bomb against the medical experts and attorneys for the prosecution for not bringing it up themselves.

Am not sure by the wording of the letter whether the gilt was found before or after the defense experts looked at the skulls. They really just report that gilt was discovered not when.  But then again, maybe, since the doctors agreed, Cheever and Draper, and Cheever wasn't brought in until later, that it was Cheever who found it. I wonder if it was possible that the prosecution doctors could have removed the gilt before the defense experts looked at the skulls but I wouldn't be so bold as to even suggest that.

Definitely David Kent was of the opinion that there was some sort of cover-up regarding the gilt.  In his book, 'Forty Whacks', he refers to the letter of May 31, 1893 from Draper to Knowlton:

"All well and good, Knowlton must have thought as he read this summary. Nothing unexpected. Then came the bombshell: 'The other discovery is still more important. On one of the cuts in Mrs. Borden's skull near the right ear, there is a very small but unmistakable deposit of the gilt metal with which hatchets are ornamented when they leave the factory; this deposit  (Dr. Cheever confirmed the observation fully)  means that the hatchet used in killing Mrs. Borden was a new hatchet, not long out of the store.

'The shining deposit,  he continued, could be seen with a magnifying glass or, for that matter, with the naked eye.

This must have been to Knowlton, the proverbial last straw. As he had written Attorney General Pillsbury, the case against Lizzie was fatally weak, and he had no hope of convicting her. Now, at the last minute, here came a letter from two unimpeachable authorities, his own expert witnesses, saying the hatchet on which the police and the prosecution had built their case was not the murder weapon at all---old, dull, and rusty as it was!

If Drs. Draper and Cheever were allowed to state their findings from the witness box, there would be no purpose in even continuing the trial." (Kent, 136)

Kent then goes on to say:

"We can never know, so there is no profit in speculating, what arguments Knowlton had used to persuade Draper to change his testimony that the murder weapon had been a new hatchet with gilt metal that had come off when the first blow had been struck. That his contradictory testimony was a cover-up is obvious. Knowlton put it squarely to him:

Q.   [Showing him the handleless hatchet head] Are you able to say whether that hatchet head is capable of making those wounds?
A.   I believe it is.

And later, in re-direct examination, Knowlton pressed the point as to "whether in your opinion those wounds that you found could have been inflicted by that hatchet?" Draper's response: "In my opinion they could."

Dr. Cheever, who followed Draper to the stand, was asked the same question. He replied, "This hatchet [holding the handleless hatchet head] could have caused the wounds."

It might be argued that neither doctor had, technically, perjured himself. In response to Knowlton's two questions, Draper had said it "could" have made the wounds in the skull. He had not said that it "had." The same is true of Dr. Cheever's testimony. Knowlton may have found a way to frame his questions so that neither respondent would have to perjure himself when replying. If that was, indeed, Knowlton's solution to his dilemma, it did nothing to protect the Harvard professors from an equally serious charge, a sin of omission rather than commission, that of withholding evidence known to them. In either event, it was a manipulation that brought no credit to revered Harvard University or the Commonwealth Knowlton represented."(Kent, 141,142)

I think David Kent properly calls this "prosecutorial perjury" or the "Harvard perjury" since they posed as "experts in science", not as paid witnesses that supported the prosecution. Re-read Justice Dewey's remark on expert witnesses saying what those who paid them want. It is still true today, if you ever get to do jury duty.

Example. The victime testified that the attacker was 5'7" to 5'8" "the size of my boyfriend", and, had a scar on his forehead. Is the accused 6'1" in height and has no scar on his forehead?
"If he was crouching down, and the light was dim, she could have been mistaken the mole for a scar." BUT it happened at 9AM on a sunny Memorial Day!

You can read "Tainting Evidence: Inside the FBI Crime Laboratory Scandals" for a pile of better examples.


[The average juror may not understand the difference between "could" and "did".]


(Message last edited Nov-25th-02  6:23 PM.)