Eugene Hoseyby Eugene Hosey
First published in August/September, 2008, Volume 5, Issue 3, The Hatchet: Journal of Lizzie Borden Studies.
Goodbye, Lizzie Borden does not present an original theory about the murders or an interesting perspective on the familiar story. It is not an entertaining or controversial book. Nevertheless, the work does reflect the professional experience of author Robert Sullivan, who was appointed a Justice of the Massachusetts Superior Court in 1958. His examination and critique of the Lizzie Borden case, which he calls an “autopsy of a murder trial,” was published in 1974.
Mr. Sullivan interviewed Abby (Whitehead) Potter, the niece of Abby Borden, in 1972. Mrs. Potter, nearly 90 years old, shared her remembrances with the author. According to Sullivan, Abby Borden’s namesake repeated a story about the time Lizzie beheaded Aunt Abby’s cat. It is as apocryphal-sounding as so many run-of-the-mill Lizzie Borden tales are. The lady remembered that Lizzie had sent to Mrs. Whitehead Abby’s personal effects, including Abby Borden’s wedding picture. Mr. Sullivan describes Abby’s image as smiling and cherubic-faced. However, this interview is a complete disappointment considering it was conducted with a close relation to the Borden family and yet revealed nothing compelling or provocative.
The author’s education in law, and particularly his experience with Massachusetts jurisprudence, provide Borden enthusiasts with some valuable information and legalistic clarification. For example, the three hearings that preceded the trial—their definitions and roles —are often unclear to the case student trying to understand the legal process that ensued after the murders. Sullivan explains at length the purpose of the inquest, the preliminary, and the grand jury hearings as they existed at the time of the Borden murders in Massachusetts.
Inquest—An investigative hearing held in cases of violent or mysterious deaths; at an earlier time the responsibility of a coroner and his jury, at this time under the jurisdiction of a judge in a lower district court. The law stipulated that the inquest could be held privately. The ultimate purpose of this hearing was to record facts gathered from witnesses and to determine how the court should proceed.
The Preliminary Hearing—A hearing in the lower court for determining if there is probable cause for charging a defendant with a crime that is under the jurisdiction of the Superior Court. This procedure weeds out frivolous charges. The defendant has the right to be present and represented by counsel. This hearing also serves as an opportunity for the defendant to learn the evidence in possession of the prosecution.
The Grand Jury Hearing—A hearing without a presiding judge, by a jury of thirteen to twenty-three persons; the word “grand” refers to the number of jurors. A majority, but not unanimity, is required for an indictment. Secrecy is clearly required by law. Legally inadmissible evidence may be heard. The prosecution only presents evidence and examines witnesses; however, an exception was made in the Borden case, and Lizzie’s lawyer Jennings was invited to participate for the defense. The result of this hearing was what actually brought the Borden case to trial, with three indictments against Lizzie: for the murder of Andrew Borden, the murder of Abby Borden, and for the murder of them both.
Robert Sullivan writes from a clear, singular viewpoint. He is convinced of Lizzie Borden’s guilt and further believes that the evidence against her was sufficient for a conviction. He believes the judges and jury were unfairly swayed in the defendant’s favor by Lizzie’s gender, social status, and by the terrible reality of the death penalty in the event of a guilty verdict. Sullivan does acknowledge one positive meaning inherent in Lizzie Borden’s acquittal:
In the Anglo-American world the lengthy and seemingly complicated procedures surrounding the preparation and trial of a criminal case are designed to guard zealously the rights of one who is criminally accused, and this dominating principle obtained in the circumstances surrounding the Borden case.
Sullivan does not present the trial by evidentiary topic or by the day-to-day occurrences in the courtroom. Instead, he presents the Prosecution’s case and then that by the Defense. This is not surprising considering the author’s legalistic frame of reference. The benefit of reading about the trial in this form is that one can more clearly see the strategy of each side.
The author praises the opening statement for the Prosecution by District Attorney Moody as an encapsulation of the basic propositions proving Lizzie Borden’s guilt—Lizzie’s predisposition to kill her parents, that she killed each of them with a significant period of time between the two murders, and that by words and deeds in the aftermath of the crimes Lizzie had demonstrated guilt. The crux of the Defense was to show that mysterious persons were about the area of the Borden house and that Lizzie herself did not have sole opportunity for committing the murders. In addition, the Defense asserted that due to Lizzie’s character and background it was not possible that she could do this. Sullivan strongly objects to the opening remarks by Jennings concerning the family lawyer’s personal views of the Bordens.
In further criticism of the Defense, the author finds serious fault with a statement by Jennings concerning proof of sole opportunity. The following is the portion of the opening remarks at issue, as actually stated by Jennings:
It is not for you to withhold your decision until you have satisfied your mind as to how it was done and just who did it. It is, have they furnished the proof, the proof that the law requires, that Lizzie Andrew Borden did it, and that there is absolutely no opportunity for anybody else? [T 1315]
Sullivan denounces Jennings’ assertion that part of proving Lizzie’s guilt would be to prove that no one else could have committed the murders. The author maintains that Jennings’ words amount to a misrepresentation of the law—that proving sole opportunity is absolutely not part of the criteria for finding a defendant guilty. However, Sullivan actually misquotes Jennings, possibly in an attempt to simplify the original syntax: “The proof that the law requires is that Lizzie Andrew Borden did it, and [that] there is absolutely no opportunity for anyone else to have done it.” Upon reflection, the importance of Sullivan’s point is less than clear and possibly vague and exaggerated. In other words, did Jennings literally misstate a legal definition—or was he defending his client by reminding the jury that sole opportunity on the part of Lizzie could not be proven?
Mr. Sullivan makes a major mistake in how he extracts testimony from the trial record. To save time and space, he eliminates the “question” part of the “Q&A” and quotes witness statements in the form of a continuous narrative. If this had been accomplished successfully, it might be a bright idea, but as it is the author has witnesses making statements they never made. This happens when context is removed by the elimination of the question. For example, in reading Bridget’s testimony as Sullivan supplies it, she gives a description of Lizzie’s dress on murder morning, when in fact this statement as actually made is in reference to Lizzie’s dress on a different day. This is enough inaccuracy to render Sullivan’s transcription as too flawed to be trusted at all. No reader should substitute this for the original trial record.
Sullivan’s most passionate complaint about the Borden judicial proceedings appears to concern Judge Dewey’s charge to the jury. The author asserts that it has been successfully argued by eminent legal professionals that what was, effectively, on the part of Justice Dewey, a direction to the jury for acquittal, was wholly wrong and legally indefensible even though it may have been well-intentioned. In Sullivan’s view, Dewey’s speech to the jury violated all legal precedence in its expressions of personal opinions regarding the evidence. Sullivan details his objections to specific assertions made by the Justice in his charge. They include Dewey’s statement that Lizzie’s positive public character should be considered strong evidence in her favor, and the Justice’s speculative scenarios offered to the jury about a hypothetical killer sending a note.
Sullivan describes the Borden trial as “unpropitious but irreclaimable” and states his hope that his book will help to end the public’s fascination with the case. There has been no sign of this happening, but Goodbye, Lizzie Borden is a forgettable book—a minor entry in the literature and nonessential reading.
