Jury Nullification?

[NancyDrew]

Does anyone think that the jury's rendering of "not guilty" could have been the result of jury nullification?

According to Wikipedia:

Jury nullification occurs in a trial when a jury acquits a defendant they believe to be guilty of the charges against them. This may occur when members of the jury disagree with the law the defendant has been charged with, or believe that the law should not be applied in that particular case.

Does anyone think that members of the jury might have known Andrew Borden and felt guilty for Lizzie and the life she had to endure? Maybe some of the jury "knew" that Andrew was rumored to have sexually abused his daughter, and felt he deserved to be killed?

Or...(I know i'm stretching here) that a charge of murder was inappropriate for a woman of her stature? A Sunday school teacher, a member of the Temperance movement, an upright spinster?

Finally...might any of the jury have thought that Lizzie was unbalanced? Mentally ill? Didn't know what she was doing at the time? Basically...insane, and therefore not responsible even if she DID wield the axe herself?

[Yooper]

I recommend Robert Sullivan's book "Goodbye Lizzie Borden", it deals with several of these questions directly. In 1892 there was no distinction between first and second degree murder, and the mandatory penalty for murder was death. Even if there was legal provision for a distinction by degrees, it was a double homicide. It certainly wasn't accidental (manslaughter), and unless Lizzie was in the habit of packing a hatchet, it wasn't spur of the moment (second degree). There was no way around a charge of premeditated murder. The trouble with this is that it was pretty much impossible to convict a woman of murder in Massachusetts because of the mandatory death penalty, probably a legacy of the Salem witch trials.

The jury had been chosen through a screening process, part of which usually includes questions about whether any of the people involved are known personally to the prospective juror. Some of them could certainly have suspected sexual abuse and thought that murder was somehow warranted, but Abby was also a victim. The jury in the case which was the basis for "Anatomy of a Murder" reached their conclusion of not guilty based largely on the idea that everyone involved got what they were asking for. The woman involved was a notorious "flirt" (a gross understatement), and the bar owner was a former state police officer who was implicated in using his employment status to rape women on at least two occasions, but he was never formally charged. For some oddly coincidental reason, he left the state police and went into the tavern business. So, juries can at times behave in an arbitrary manner.

There is a quotation in Sullivan's book to the effect that as the severity of the crime increases, the importance of good character references decreases. Being Mother Theresa doesn't help much when the charge is murder. Social status may have worked either way, some may have thought the upper classes incapable of murder, others thought that the upper classes believed they could get away with murder.

There really isn't much to indicate Lizzie was unbalanced, and the acquittal tends to indicate the jury didn't think so.

[NancyDrew]

I am familiar with Anatomy of a Murder, but I'm not sure how it compares to the Borden jury. Maybe I'm just missing an obvious point here...(Help me out!)

So there was no 1st or 2nd degree murder back then, huh? That is very interesting. Was there even jury nullification? Do you think if the jury had included women (if they had the right to vote in the 1800's; which of course, they didn't) that it would have rendered a different verdict?

Thanks for the reply, yooper!

[Yooper]

Juries can reach a conclusion based upon value judgments reaching beyond the evidence at times. I think this may have happened with both juries, the Borden jury and the Peterson jury. The last living member of the Peterson jury was interviewed and he stated the reasons for their conclusion. The Borden jury may have begun with the attitude that they were not going to sentence a woman to death under any circumstances. All they needed was "permission" for a not guilty ruling and Justice Dewey gave it to them in spades with his charge to the jury.

If the jury entered the courtroom with that attitude, or if they later adopted it, that is the definition of jury nullification. They would have believed that the law requiring the death penalty for murder did not apply to women. Even if they merely didn't want partial responsibility for a woman dying on the gallows, it amounts to the same thing.

I don't know if women would be any more in favor of a guilty verdict under the same circumstances, but I doubt it. I think women as police investigators might have made a difference, assuming there was something to find.

[Aamartin]

The length of deliberation times seems to indicate little discussion was had. They knew going back there they were going to vote not guilty. And whatever reasons they had for doing so were probably kept to themselves.

[DJ]

The trial had become a nationwide media circus, probably the first of its kind. Had Lizzie been tried more expediently-- say, soon after the Grand Jury indictment, with Alice Russell's revelation-- public sympathy may not have had time to take quite such a hold as it did in the six-plus months that followed.

In short, the Borden case was bad PR for Massachusetts, exactly 200 years after the Salem Witch Trials.

Women's Groups were agitating for the vote and other "equal rights," and Lizzie became a sort of poster-child for them. I think the jurors wanted to put the whole ugly affair behind them-- that is, the Commonwealth as a whole-- and move forward and away from the whole sorry affair.

Nevertheless, remember the expediency with which Lizzie was whisked off to jail! And, the police never arrested another suspect. Such facts speak volumes.

Furthermore, Lizzie has never been exonerated in the court of public opinion, either in her own time, or during the decades that have followed. Most people with a passing knowledge of her name assume she was guilty. Indeed, no one has offered a convincing scenario-- certainly not the accused herself, in her Inquest testimony-- in which Lizzie didn't do it.

That, too, speaks volumes.

[Allen]

I'm not sure why the jury acquitted Lizzie. The circumstantial evidence was very strong. The lack of physical evidence makes it harder to prove a case, but definitely not impossible. And a trial does not hinge on the finding of physical evidence. There have been trials won where the body of the victim was never even found. Many defendants have been found guilty on circumstantial evidence alone. Finding someone guilty of a crime beyond all reasonable doubt does not mean proving a case beyond all possible doubt. It simply means that a reasonable person can come to no other logical conclusion based on the evidence presented in a case than the defendant being guilty or innocent of the crime. If there is an unwavering belief on the part of a juror that a person is guilty of a crime, whether there is physical evidence to provide to them or not, that case is proven beyond a reasonable doubt and the guilty finding would be upheld. I think many juries do not understand this concept well enough and believe that the prosecution must prove their case beyond any and all possible doubt, and provide tons of physical evidence. The Borden case was indeed a media circus. But I'm not sure it can be called the first of it's kind. By 1892 there were a lot of well publicized murder trials in the United States and abroad. Even those with women as the defendant. Mary Surratt was hung by the neck as being a co-conspirator in the death of Lincoln. Many believe she was wrongly convicted. In 1889 Florence Maybrick was convicted of poisoning her husband James Maybrick with arsenic and was at first sentenced to death.

[Franz]

Yes Allen. Landru was one of them. The bodies of his victims had never been found, but he was convicted and decapitated.

[Yooper]

Robert Sullivan held the same position, Justice of the Massachusetts Superior Court, as the judges at the Borden trial. The following may explain part of why the jury acquitted Lizzie.

"Goodbye Lizzie Borden", Robert Sullivan, p. 172.:
"It has been strongly and authoritatively stated that Associate Justice Justin Dewey in the Borden case charged the jury upon the facts. Despite his use of rhetorical questions to disguise it, his opinion that the jury should acquit Lizzie shone unmistakably through the words of his instructions. A judicial direction to find Lizzie Borden Not Guilty marked Justice Dewey's charge from beginning to end."
"Writing in 1893, Judge Charles G. Davis, a distinguished leader of the Massachusetts Bench and Bar, called Judge Dewey's charge a better and more effective argument upon the facts in favor of Lizzie Borden than that delivered by Lizzie's own counsel, George D. Robinson."

In an earlier post I stated that there was no provision for second degree murder in 1892, and this is incorrect. The second degree provision was passed in Massachusetts in 1858, the direct result of the impossibility of convicting females of first degree murder regardless of the evidence.

[Allen]

Dewey's instruction to the jury was very powerful, and very likely did have an effect on the outcome. And I believe his instructions were misleading in what their duty was in examining the facts. It's really just a matter of using common sense and logic. When something was broken in a room where only my child was present and had access to the object, they in all likelihood would claim they did not do it. I had not seen them do it, and outside of taking it to a forensic lab to have it tested and dusted for prints, I had no proof. But did I know in my heart the child did it based on the facts? Yes I did. That is the simplest definition of being proven beyond a reasonable doubt.

[Yooper]

I guess it may boil down to what each person considers reasonable. There is a fair amount of wiggle room for definitions. The Borden jury didn't take long to reach a verdict, they were all of one mind when they retired to the jury room. I think Dewey defined the term "reasonable" for them, and they bought it.

[Allen]

True. He also more or less instructed them on what to regard or disregard as evidence.

[Yooper]

There is also a point to be made in that George Robinson, Lizzie's defense attorney, had appointed Justin Dewey to the bench while Robinson was Governor!

[Allen]

That's definitely a good point to consider there. I would have considered that a conflict of interest.

[Yooper]

In my opinion, if we consider that the jury was predisposed to find a woman not guilty of first degree murder despite the evidence, and the judge who had been appointed by the lead attorney for the defense charged the jury upon the facts, which he was absolutely prohibited from doing, I don't know how the outcome could have been anything other than not guilty no matter what evidence had been presented.

The Massachusetts law was revised in 1858 to include a provision for second degree murder because of jury nullification. People didn't want women hanged in Massachusetts no matter how obvious their guilt. The public attitude hadn't changed by 1892, but it was impossible to charge anything other than first degree murder in the Borden case. Maybe if there had been a way to contort the process to allow Lizzie to be charged with second degree murder with a life imprisonment sentence the outcome might have been different.

[NancyDrew]

I'm not sure why the jury acquitted Lizzie. The circumstantial evidence was very strong. The lack of physical evidence makes it harder to prove a case, but definitely not impossible. And a trial does not hinge on the finding of physical evidence. There have been trials won where the body of the victim was never even found. Many defendants have been found guilty on circumstantial evidence alone. Finding someone guilty of a crime beyond all reasonable doubt does not mean proving a case beyond all possible doubt. It simply means that a reasonable person can come to no other logical conclusion based on the evidence presented in a case than the defendant being guilty or innocent of the crime. If there is an unwavering belief on the part of a juror that a person is guilty of a crime, whether there is physical evidence to provide to them or not, that case is proven beyond a reasonable doubt and the guilty finding would be upheld. I think many juries do not understand this concept well enough and believe that the prosecution must prove their case beyond any and all possible doubt, and provide tons of physical evidence. The Borden case was indeed a media circus. But I'm not sure it can be called the first of it's kind. By 1892 there were a lot of well publicized murder trials in the United States and abroad. Even those with women as the defendant. Mary Surratt was hung by the neck as being a co-conspirator in the death of Lincoln. Many believe she was wrongly convicted. In 1889 Florence Maybrick was convicted of poisoning her husband James Maybrick with arsenic and was at first sentenced to death.

Dear Allen:

Hi...I had to look up some definitions again of what constitutes guilt in criminal vs. civil trials. In civil trials, guilt is supposed to be arrived at by juries due to a preponderance of evidence. All it means is that one side has more evidence than the other. Even by a teeny bit. In criminal trials, the burden of proof is much higher, "The standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty."* The "beyond a resonable doubt"..and the reason, I as understand it, that the burden is so much higher is because the subsequent punishment in a criminal conviction is so much more serious (loss of liberty or life.)

The Borden case has been compared to the OJ trial. Okay, let's look at that. The lack of blood evidence, the glove that wouldn't fit, the timeline, all of it produced reasonable doubt in the jurors minds and he was pronounced "not guilty" at the criminal trial.

BUT. He was convicted during a civil suit brought by Ron Goldmans' family.

And so I have a several comments/questions for anyone who wishes to reply:

1. Given the fact that there was a. no bloody clothes b. no murder weapon found c. no blood on the defendant, anywhere, not even a speck. and d. a really tight timeline for removing the castoff of not one, but TWO gory murders, in my opinion, that would place reasonable doubt in my mind. Do you agree?

2. I should probably move this to a new topic, but let's see if anyone is interested in this angle: Why wasn't there a civil suit brought against Lizzie? Possible plaintiffs: Emma, John Morse, Mrs. Whitehead... I put the last name in italics because I think she is the only likely candidate for this possibility.

Burden of proof is different here...no "beyond a reasonable doubt"...instead it is a "tallying up" of evidence from one side vs. another. And so, If I may (I'm positive I will leave something out, so please, anyone feel free to add, remove, or correct me)

Evidence She was Civilly Liable for Abby's murder:

1. History of animosity: Stopped calling her mother, told friends on her European trip that she hated her, burglarized her room (this is a stretch since there was no actual conviction), refusal to break bread with her, never seen in public with her, anger at Abby's receipt of property from her husband, etc. Actually, when you think about it. Abby only had 2 enemies in her whole world, and one was in Fairhaven at the time of her murder.
2. Lizzie was the ONLY person in the house during Abby's murder.
3. No evidence of a break-in anywhere that would have allowed for an intruder to enter the premises.
4. A fictitious note, seen only by LIzzie and the victim, that gave Lizzie an excuse NOT to look for her step- mother once she discovered her father had met with violence.
5. Bizarre, near-confession the previous evening to Alice Russell that "something was going to happen."
6. Lack of mourning (refusal to wear traditional garb, lack of emotion, etc.)
7. Burning red-stained dress one day after learning she was to be arrested.
8. (referring to #2) Lizzie's very improbable claim that while 200 lb-plus Abby was being hacked to death in a room directly above her, Lizzie nonetheless heard nothing.
9. L's claim that guestroom door was closed (and therefore the sight of her slain body from underneath the bed impossible to see)...proven to be a lie, as numerous witnesses saw door plainly opened.
10. Credibility: I don't know if this would be considered "evidence" but I think it is. Lizzie has a BIG credibility problem. When I started adding up all the lies she told, it actually surprised me...just to throw one out there: the fact that she told Eli Bence she had bought prussic acid before (she hadn't.)


Evidence she was INNOCENT of Abby's murder:

1. Lack of bloody clothes
2. Lack of murder weapon

I'm running into a mental block here.

Just for the record, in case I haven't said it before, I think Lizzie was guilty...but I think she had help. The Dave Anthony story is compelling, and I still re-read (from the archives) Gramma's posts about it.

Lizzie had Means (plenty of axes all over the house, and she knew how to chop wood) Motive (she hated Abby) and Opportunity (all alone with her in the house.)

And of course, I end all my posts (most anyways) with another question: did anyone ever try and re-try Lizzie? Was there such a think as 'double jeopard' in 1892?

THANKS!



*source: http://www.legal-dictionary.thefreedictionary.com

[NancyDrew]

Yooper: Does that mean you agree that the verdict was the result of jury nullification? Thanks! I'm really enjoying this discussion!

[Yooper]

Yes, in my opinion the verdict was the result of jury nullification. That was also the reason for the second degree murder classification in 1858, people simply did not want women executed in Massachusetts regardless of the evidence. I see no reason why public attitude would have changed to favor execution between 1858 and 1892, so it follows that the Borden jury was predisposed to a not guilty verdict, regardless of the evidence.

My best guess as to a reason for the public attitude against execution for women is the legacy of the Salem witch trials. People were thoroughly ashamed of that and perhaps went overboard in the opposite way to somehow make up for it. The more the case and trial were publicized, the greater their resolve to not execute Lizzie.

Carefully consider the evidence for the contention that there was no blood on Lizzie. People who couldn't describe the dress said they didn't notice blood on the dress. Nobody came out and said "no, there was no blood on Lizzie's dress", they said they didn't notice any which means it might have been there, but they didn't see it. The only person who made any attempt to identify Lizzie's dress was Mrs. Churchill, who described the Bedford cord dress. Mrs. Bowen said she really didn't look closely but she attempted to describe her impression of the dress, which might fit the Bedford cord as described by Mrs. Churchill. Why would anyone look for blood on Lizzie at the time immediately after the murders? She was considered a victim at that moment, not the perpetrator. To top it off, Lizzie changed her dress not long after the murders and burned the Bedford cord dress a few days later! WHATACOINCIDENCE!

Lizzie could have been re-tried as an accessory to murder without running afoul of the double jeopardy law.

[twinsrwe]

I agree, Jeff - You put it very well!

[Allen]

The absence of blood on Lizzie for me doesn't raise a doubt. She may not have had much blood to clean up if she covered herself to keep her clothing from becoming blood spattered, and if most of the spatter was directed away from her in the first place. I also take into account there was no blood trail in the home. There were no footprints, no dripping blood from the murder weapon as it was carried to it's eventual hiding spot, no transfer blood from bloody clothing or hands brushing against walls, no blood from hands touching doorknobs to get away from the crime scene, clean up, or hide the weapon. No blood anywhere but on the bodies and at the crime scenes themselves. The absence of blood leads me to believe there was some attempt at keeping blood from being on the killer's person and trailing through the house, or there simply was not that much blood spatter on the killer to begin with. If the killer was not Lizzie, how did he not leave a trail when he had no time to clean a trail up? Think about it, a trail of blood dripping from the weapon would have given away the hiding spot. Bloody footprints leading anywhere in the house would have been followed to see where they lead, and who could have made those prints. The weapon could have been wiped down to keep it from dripping blood through the house. But where were these bloody rags that wiped down the weapon? In a bucket down in the cellar maybe? This is another factor that leads me to believe that Lizzie did some planning prior to these murders. I think the 'clothing' she supposedly carried upstairs to put away concealed the murder weapon, and very well could have been what she used to wipe herself and the weapon down. People knew murders could be bloody affairs. The reporting of such crimes in the newspapers were rampant with details of blood and gore. Common sense dictates if you cut someone you are going to spill blood. I think even if there had been blood on Lizzie it could have been argued by the defense that she became blood stained when she found her father's body. The absence or presence of blood on Lizzie would make no difference to me.

[Allen]

"Preponderance of evidence" doesn't mean having more evidence. It means you decide who had the more convincing argument. Preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. If you believe that the argument presented by the prosecution was more convincing, and more than likely correct, you can vote to convict.

[NancyDrew]

Allen, yes, I agree with you regarding preponderance of evidence. I don't know why I wrote that (except I"m not feeling well..ugh..nothing worse than swollen glands and a sore throat in the summer). In civil trials, it is which side the jury (or judge) feels has the more convincing evidence. This overlaps with reasonable doubt, imo. If you feel the prosecution's evidence is more convincing than the defendant's, then wouldn't it follow that you would be convinced beyond a reasonable doubt? Do you agree that the line between the two is a bit fuzzy?

Regarding your post previous to the last one, about lack of blood. Do you think its odd that there WASN'T more blood found? It would have expected there to be a mess, and it was almost as if the crime scene were carefully staged. I agree with you, I would have expected blood transfer on Lizzie...I think it would not have been odd or surprising for a daughter to run to her wounded father and come into contact with the bloodied corpse (but she didn't know it was a corpse at the time, no?)

I'd like to continue this line of thought, but I think I'll put it under a different thread than "jury nullification." See you there, hopefully!

[Yooper]

I agree, the absence of blood on Lizzie does not exonerate her. It might cut down on the amount of time needed to commit Andrew's murder if little or no cleanup was required. If someone held a towel or rag or pillowcase between themselves and the victim while using the hatchet, it would prevent blood spatter from reaching the murderer. It would also provide a way to prevent the hatchet from dripping and leaving a trail. It could be rolled up and burned in the stove, with the ashes possibly resembling rolled up papers in the firebox.

[Allen]

I wouldn't say the line between reasonable doubt and preponderance of evidence are that fuzzy. Beyond a reasonable doubt means you are sure to a moral certainty that there is no other logical conclusion. I've heard it said that even if you are 51% percent sure the defendant did it that is good enough to find someone guilty for preponderance of evidence.

[snokkums]

"Finally, might any of the jury have thought that Lizzie was unbalance? Mentally ill? didn't know what she was doing at the time of the murders. Basically insane.

I think that maybe they just couldn't believe that a woman of her stature would do something like that. A double murder. I think they just couldn't believe it. A woman of her placement in society. I also think that people back then didn't believe ladies could kill in that manner; after all she was a lady.

[Franz]

Hello Allen, in judging a murder case (not something without importance in the every day life), how one could be sure that he / she is 51%, instead of 49%, sure that the accused is guilty?

[Yooper]

Hello Allen, in judging a murder case (not something without importance in the every day life), how one could be sure that he / she is 51%, instead of 49%, sure that the accused is guilty?

I realize this is directed to Allen, but try this out:

A preponderance of evidence means the greater weight of evidence rather than the quantity of evidence. It takes any number (thousands, millions?) of empty cardboard boxes to equal the weight of one battleship anchor, but eventually we might accumulate enough. While both are equal in weight, the fact that one item carries the weight of an untold number of items makes me 51% certain it is the better choice.