Mary Elizabeth Naugleby Mary Elizabeth Naugle
First published in May/June, 2007, Volume 4, Issue 2, The Hatchet: Journal of Lizzie Borden Studies.
In the Borden drama, the victims, suspects, and key witnesses in the Borden case are supported by countless others—unknown before and soon after the trial. Were it a stage drama, they might not be given names: they would walk on, do their bit of business, and disappear. In a movie, if they didn’t end their brief lives on the cutting room floor, they would be given three seconds of face time and be listed in the credits just above Best Boy. But, of course, this was not a drama. It was real life, where otherwise inconsequential people might blaze or squirm in the limelight for pages upon pages of trial testimony. Much more than fifteen minutes of fame, but just as fleeting, and sometimes just as damaging.
Hyman Lubinsky appears in the trial transcripts in Volume II, page 1408-22. If this were vaudeville, it would rate as one of the funniest routines ever. It might stand between Chico’s “Why a duck?” with Groucho in Cocoanuts and Lou Costello’s flummoxed “Who’s on First?” exchange with Bud Abbott. It could have played from Peoria to Cucamonga for years. The only problem is that it’s real. Poor Lubinsky is a well-intentioned 19-year-old boy with limited English, and he is played for a sap. When I read it, I laugh in spite of myself, then kick myself for joining in the hundred year old hilarity at the expense of a kid just doing his best to be a good American.
Here, in a nutshell, is Lubinsky’s part in the case. Lubinsky, an ice cream peddler for Wilkinson’s store, claims to have seen a lady of interest while on his way to pick up ice cream for the day’s peddling. He is called by the Defense to testify that on 4 August 1892 at 5 to 10 minutes past 11 AM he saw an unidentified woman in a dark colored dress—a woman he can say definitely was not Bridget Sullivan—walking away from the barn towards the back door of 92 Second. That testimony was meant to bolster Lizzie’s alibi that she had been eating pears and hunting sinkers in the barn at the time of Andrew’s murder. The dark colored dress also suits the bengaline silk, not the Bedford cord. The statement could not provide a full alibi: he volunteers no information about how long she’d been there or what she’d been doing. Still, it’s a start. Any more and it would sound invented. It may be just enough to make a jury waver.
In cross-examination, Knowlton’s job is to show that Lubinsky is unqualified to testify to even that much. Lubinsky is not sure to the minute what time he saw the phantom lady. He does not know the house well enough to be certain he saw her in the yard of #92. He cannot even say she was a lady belonging to the house. It would be an easy mistake to make: a memory from another house connects with the crime on everybody’s lips, and any civic minded gent leaps to the conclusion, “I saw her leaving the barn, just as she said!”
So far so good. Knowlton could have made these points. Jennings could have tried to win back points through redirect or to cut his losses and move on. Fifteen minutes, maximum. But instead, poor Hiram Lubinsky would be made to wish he’d never come forward with his information. In fact, he probably would wish he’d taken his team down to Wilkinson’s store for ice cream at ten o’clock instead of eleven. And why? Because Knowlton’s strategy was to make Lubinsky out to be a fool who couldn’t follow the simplest question, let alone the simplest line of reasoning. The Lubinsky whom Knowlton creates on the stage of the courtroom doesn’t know how to tell time properly (if at all), doesn’t know if he fed his horse or himself dinner that day. If he is bright enough to know, he seems to lie clumsily to hide the fact that he is a lazy layabout. And how is the impression achieved? By the cheapest maneuver of all: taking advantage of the man’s poor command of the language. When Lubinsky answers a question clearly, Knowlton rephrases it and asks it again so that Lubinsky contradicts himself. A glaring example of this is a pointless line of questioning concerning Lubinsky’s movements after seeing the phantom lady. Lubinsky’s confusion seems to result from Knowlton’s use of the words dinner, lunch, before, forenoon—words that seem to shimmer and change shape with each use. (His confusion may be exacerbated by the passage of a year and the irrelevance of the questions.)
Q. Whereabouts on Rock Street did you go?
A. Peddled on the streets.
Q. You went along holloaing ice cream?
A. I don’t do any holloaing.
Q. Did you go from house to house?
A. I went to the house and looked in the windows and see people and I sell the cream.
Q. Where did you go then?
A. I went to the stable to give my horse dinner.
Q. Whereabouts was the stable?
A. Up Second Street.
Q. How long did you peddle?
A. In that day?
Q. Yes, that forenoon, before you went to dinner?
A. I was peddling to half-past four.
Q. Before dinner?
A. Before dinner I was peddling till between one and half-past one.
Q. Before dinner?
A. Before dinner.
Q. Hadn’t you peddled any before one o’clock?
This question sounds startlingly confrontational. It almost makes me jump when I read it. What must have Lubinsky have felt when it pounced upon him on the stand? Yet his answer is firm, clear, and reasonable.
A. I peddled all the time from that time when I left the store,–I peddled until half past four and went to dinner.
But Knowlton can’t leave Lubinsky sounding firm, clear, or reasonable. Instead he must make him irresolute, confusing, and incapable of reason or veracity. Watch how he does it.
Q. You said you peddled till one or half past one?
A. Not half past one; I said it was that time when I left the store.
Q. What time did you leave the store?
A. I could not tell you the right time.
Here Lubinsky contradicts himself. He is supposed to have left the store after loading up on ice cream about eleven-thirty, peddled till one-thirty, broken for lunch, then gone on until four-thirty. But by contradicting the four–thirty quit time, Knowlton trips up his witness and makes him turn unreliable.
Q. How long were you peddling before dinner?
A. I don’t stop my business at twelve, I stop from one to half-past one.
Q. Did you eat dinner?
A. No, sir.
Knowlton seems to be talking about the evening meal now, and Lubinsky rises to the bait.
Q. Did you put your horse up for dinner?
A. No, sir.
Q. Did you say a little while ago that you did put your horse up to dinner?
A. I didn’t say I put him up then. I told you I put my horse up.
Q. Did you put your horse up, or didn’t you put your horse up?
A. You ask me too fast. I put my horse up for dinner.
Lubinsky is thoroughly confused now over the difference between a lunch break and quitting time. See the result.
Q. What time did you put your horse up for dinner?
A. Between one and half-past one.
Q. How long had you been peddling before that?
A. It might have been two and one half hours.
Q. Two hours before that time?
A. Yes, sir.
Q. Are you pretty sure of that?
A. What do you mean by sure?
Q. Sure, -? I mean sure.
A. I don’t know what you mean, -sure —that I put my horse up for dinner?
Q. Are you sure you were peddling two hours?
A. I could not tell you, sir.
Q. That you peddled three hours?
A. I don’t know.
Q. Were you peddling four hours?
A. No, sir.
Q. Might have been peddling three hours?
A. Might have been two hours.
Lubinsky just wants to make it stop! Fat chance, though. Knowlton keeps going.
Q. Would you be sure it was not three hours?
A. I am sure it was not three hours.
Q. Although you have just told me it might be three hours?
A. No, sir, I said two hours.
And Lubinsky is right, he did. Besides, he wonders, what does all this have to do with the lady from the barn?
Q. When did you look at the clock,–at any time during that day?
A. I looked at my watch that time when I left the stable.
Q. When was that?
A. A few minutes after eleven.
Q. How many?
A. I could not tell you whether five or ten minutes, but a few minutes after eleven.
Q. Didn’t you look to see how much after eleven?
A. It was a little after eleven.
Q. You didn’t look to see?
A. I could not tell whether it was five or ten minutes after eleven.
Considering the fact that Lubinsky is recalling the time from nearly a year ago, a margin of five minutes is pretty good. “I could not tell,” probably means “I don’t remember, and I don’t want to make something up.” Knowlton drops the matter for four pages, then suddenly lugs it in by the ears again:
Q. Was she on the side steps,–was she toward the street or from the street?
A. She was the other side, not next to the street.
Q. On the other side. How come you to look at your watch when you left?
A. Because I was busy that time. I was late and I was very busy and that made me look at my watch.
Q. If you looked at the watch, why didn’t you find out what time it was?
A. Didn’t I tell you it was after eleven?
Q. That is all you found out, it was after eleven?
A. Yes, sir.
Q. Have you that watch on now?
A. Yes, sir.
My palms are sweating now, and I’m not on the stand!
Q. Let me see it, will you? (Watch shown) Could not you tell what time it was by that watch?
A. I could tell now.
Q. What time is it now?
A. About thirteen minutes to four.
Q. Why could you not tell at the time, what time it was?
A. I did not take notice.
Q. Did you take notice enough to notice whether it was after eleven?
A. I know it was.
Q. Is the little hand that you told that with?
A. Who? I say it was after eleven. Nobody didn’t tell me.
The general merriment in the courtroom over this answer goes unrecorded, but you may rest assured it was there. Apparently, no one worried much about badgering the witness in those days, because the point clearly goes to Knowlton here.
Before this cross examination by Knowlton, Jennings actually started the ball rolling, anticipating Knowlton’s line of questioning by pressing Lubinsky’s use of word right, which might mean near to or to the right. The possible ambiguity eludes Lubinsky, but Jennings makes the point often enough to make a clear path for Knowlton. Here is how:
Q. Whom did you see?
A. I saw a lady come out the way from the barn right to the stairs back of the house– , the north side stairs, from the back of the house.
If only Jennings could quit while he’s ahead. The statement makes sense, and the direction is even correct, but he presses his hand, and it’s not a hand that can take pressing.
Q. Right side of what?
A. I saw a lady come out the way from the barn right to the stairs from the back of the house.
Q. Can you tell how she was dressed?
A. She had on a dark colored dress.
Q. Could you give the color of it?
A. I can’t tell what kind of color it was.
Q. Did she have anything on her head?
A. No, sir.
Q. What was she doing?
A. She was walking.
Q. In which direction?
A. She was walking very slow.
Q. Which way towards the steps or away from them?
A. She was going down on the stairs toward the house.
Q. Toward the steps?
A. Towards the steps.
Q. Did you see her go in the house?
A. I don’t know; I couldn’t tell this.
Q. Where were you when you saw her?
A. I was in the team.
Q. Did you stop your team?
A. No, sir; I just trotted a little: not fast.
Q. Had you ever seen the servant who worked in that house?
A. Yes, sir.
Q. Had you ever delivered any ice cream to her?
A. Yes, sir.
Q. How long before this?
A. Oh, two or three weeks before the murder.
Q. Was the woman you saw the servant?
A. I saw the servant and the woman too.
Q. Was the woman you saw the day of the murder the same woman as the servant?
A. No, sir.
Q. Are you sure about that?
A. I am sure about it.
Lubinsky is highly credible here. He does not wager a guess at the color of the dress, nor does he identify the woman as Lizzie—simply as someone who is not Bridget. The only problem is that Lubinsky is a stumbling witness, due to the language barrier. Jennings has not helped him in the matter. He has his own witness flustered even before the prosecution can get to him. No wonder Knowlton has a field day with him in Cross Examination. He seizes upon Lubinsky’s weaknesses, the same problems any second language speaker will have, mostly trouble with prepositions and idioms. But, minor and irrelevant as Lubinsky’s errors are, Knowlton manages to magnify them, and, in so doing, creates a straw man a mild breeze could knock over. Points not at all germane to Lubinsky’s testimony are made to look important through extensive questioning, which at best only puzzles the witness, and at worst makes him contradict himself. Let’s see how Lubinsky fares on the same points put by Knowlton on 1413 of the testimony:
Q. Did you look at any other yards beside the Borden yard?
A. I looked all over the yard.
Q. What were you looking round for?
A. Because I am aquainted with looking around.
Q. Were you looking in any other yard beside the Borden’s?
A. I don’t think there is any more yards,—no other yards more. I looked all over yards.
It’s a wonder Knowlton doesn’t push this button. There were lots of other yards—most immediately, the Kellys’, the Bowens’, the Millers’, and the Churchills’. For some reason, however, he does not. Skipping ahead a few lines, we find the question of vantage point and identification.
Q. Where were you when you saw this woman that you speak of?
A. I was in the team.
Q. Whereabouts was the team?
A. What part of the team?
Q. Where was the team?
A. The team was on the street.
Q. Whereabouts on the street was the team?
A. Well, not very far from the sidewalk.
Knowlton loses his cool at this point, and Lubinsky does his best to appease him:
Q. What part of the street was it on? Don’t you understand these questions I put now? Don’t you understand all I am saying? Don’t you understand I am asking what part of the street your team was on?
A. On Second Street, my team was on. That is what I answered you.
(If this were the Three Stooges, Moe would have muttered, “Why you—”and be twisting Curly’s nose about this time.)
Q. What part of the street was your team on when you saw the woman?
A. Between the Borden house and Dr. Bowen’s house.
Q. In front of the Borden house?
A. Little in front of the Borden house. (Illustrating) This was the Borden house and this my team.
Q. Did you know the woman?
A. No, sir.
Q. Had you got by the house when you saw her?
A. When I went with my team?
Q. Yes.
A. I was passing by the house.
Q. Had you got by the house when you saw her?
A. Certainly, went by the house.
Q. Had you got by the house when you saw the woman?
A. I don’t know what you mean.
Q. Why?
A. Because not educated in the English language.
Q. Had you passed the house when you saw the woman?
A. Certainly, I had.
Coitanly.
Q. How far had you passed the house when you saw the woman?
A. I could not say how much.
Q. Where was the woman when you saw her?
A. She was coming down the way from the barn.
Q. Had she got as far as the house?
A. Out near the barn, near the house, she was.
Q. Which was she nearest to?
A. Nearest to the house.
Q. How near was she?
A. I could not tell you.
Now, Knowlton begins to lead the witness in circles until no one is sure what they are talking about. But so long as Knowlton stays calm and collected, Lubinsky will appear to be the boob.
Q. Can you give me an idea.
A. Not that I know of.
Q. What?
A. Might be four or five feet from the house.
Q. Was she walking?
A. Walking.
Q. Was she walking towards the house?
A. Towards the stairs from the house.
Q. Walking towards the stairs?
A. Yes, sir.
Q. How near the stairs was she?
A. I don’t know.
Q. Can you give me an idea?
A. Three or four feet.
Q. Three or four feet from the stairs?
A. Yes, sir.
Q. Then if she was three or four feet from the stairs, she was right beside the house, wasn’t she?
A. Right beside the house?
Q. That is what I asked you.
A. She was three or four feet from the stairs.
Q. Then she was right on the side of the house, wasn’t she?
A. By the side of the house.
Q. On the side of the house walking towards the house?
A. Towards the steps.
Q. Was she on that walk there, do you remember, or don’t you know whether there is a walk there or not?
A. She was coming—I don’t understand what you mean.
Don’t worry, Hyman, neither do we. But Knowlton seems so self assured that it must mean something we can’t grasp.
Q. Then she was as near the steps as from you to where,- that pile of books is there?
A. From me?
Q. No, I don’t mean that,–I don’t mean where you were then, but where you are now to that pile of books there?
A. I don’t know.
Q. Did you see her go up the steps?
A. I don’t know.
Q. What?
A. I don’t know.
Q. Don’t know whether you saw her go up the steps or not?
A. No, sir.
What? How did we get from a pile of books to whether she went up the stairs? Blow the whistle! Foul!
Q. Why don’t you know that?
A. I did not take notice.
Knowlton may get a dirty look from the judge here, because his next line is more charitable:
Q. You mean you don’t know whether she did go up the steps or not?
A. I don’t know whether she went up the stairs or not. I saw her go towards the house.
Q. Then where she came from, you don’t know?
A. No,—away from the barn.
Q. What makes you say that, away from the barn?
A. The barn is not far from the house.
Q. How do you know she came from the barn?
A. Already I told you she come from the barn.
Q. You have said that several times.
A. No, sir,–I said away from the barn.
Q. Then you did not see her come from the barn? Whether she came from the barn, you don’t know?
A. I don’t know.
Q. Or away from the barn?
A. I know she came from the barn.
Q. Her back was toward the barn, that is all you know?
A. That is what I know, sir.
And that is about all we learn from Hyman Lubinsky. There was no reason to spin this out so long, except that it seems to have been such damn good entertainment. The weather was miserable during the trial. The heat wilted those in the courtroom, and doubtless put many to sleep. Ridiculing an Eastern European immigrant seems a cheap way to regain an audience. In fact, it makes of Hyman Lubinsky just one more victim in the Borden case.
