I wonder if examining our impressions of the legal teams influences our view of the case or vice-versa. There may be some insight to be gained here. I think once a lawyer loses our trust or gives us a negative impression, we may tend to discount their arguments and be suspicious of them going forward. Maybe it's the way they ask questions or try to steer the testimony that sets off alarm bells. I'll kick us off with an invite to Teenabee to talk about Knowlton. I'll start with George Robinson.
It is interesting the Knowlton gives Teenabee a bad impression - for me it's George Robinson - he literally gives me the heebiejeebies as one of the most dangerous personality types - a politician or CEO who views words as tools, his audience as fools, and has no moral guardrail to prevent him from saying something he absolutely knows is misleading or outright false. If you've read or seen the Harry Potter books/movies, to me he is Dolores Umbridge.
The Lawyers and Judges
Moderator: Adminlizzieborden
-
Lorcan
- Posts: 543
- Joined: Tue Aug 05, 2025 2:22 pm
- Real Name: Paul Murphy
-
Lorcan
- Posts: 543
- Joined: Tue Aug 05, 2025 2:22 pm
- Real Name: Paul Murphy
Re: The Lawyers and Judges
Take this with a grain of salt - there may be an error - I tried to reference everything properly.
The Robinson–Dewey relationship created an appearance problem, but not proof of corruption.
While governor in 1886, George D. Robinson appointed Justin Dewey to the Massachusetts Superior Court. Dewey was one of the three judges at Lizzie Borden’s trial and delivered the charge to the jury. The trial transcript expressly identifies the three judges and later states: “The charge to the jury was then delivered by Mr. Justice Dewey.” The appointment is reported consistently in multiple historical sources, although I have not located Robinson’s original 1886 appointment commission.
Today, Massachusetts Judicial Conduct Rule 2.11(A) requires disqualification when a judge’s “impartiality might reasonably be questioned.” The commentary applies an objective, fully informed observer standard.
That does not mean Dewey would automatically be disqualified merely because Robinson had appointed him seven years earlier. Governors appoint many judges, and an old appointment does not itself establish a continuing relationship. The modern concern would be disclosure and consideration of recusal, especially in a capital case in which the former governor appeared as lead defense counsel. The ethical duty would fall primarily upon Dewey, not Robinson. There is no evidence in the materials reviewed of collusion, ex parte communication, or a quid pro quo.
Robinson’s treatment of the alleged note is the strongest modern ethical problem.
Robinson told the jury:
“Both Bridget and Lizzie had learned from Mrs. Borden that she had had a note. Mrs. Borden had told Lizzie. Mrs. Borden had told Bridget.”
Trial of Lizzie Andrew Borden, Volume II, page 1653.
He even supplied supposed words for Abby:
“I have got a note to go out and see some one that was sick.”
Trial, Volume II, page 1653.
But Bridget’s actual testimony was:
“I never heard anything about a note, whether they got it or not. I don’t know.”
Trial, Volume I, page 290.
Adelaide Churchill did testify that Bridget spoke as though Abby had received a note:
“She said Mrs. Borden had a note to go to see some one that was sick, and she was dusting the sitting-room, and she hurried off, and says, ‘She didn’t tell me where she was going; she generally does.’”
Trial, Volume I, page 368.
The permissible inference was that Bridget repeated the note story as a presumed fact. Robinson went materially farther: he asserted that Abby personally told Bridget about the note. Bridget never testified to that, and her page 290 testimony contradicted it.
Knowlton correctly identified the problem in rebuttal:
“She was obviously telling the story as Lizzie had told it to her.”
Trial, Volume II, pages 1796–1797.
Current Massachusetts evidence guidance states:
“Closing argument must be based on the evidence and the fair inferences from the evidence.”
It permits forceful advocacy, but not a material transformation of the record.
Today, Robinson’s statement would provide strong grounds for an immediate objection and likely a curative instruction. Professional discipline would require something more—most importantly, proof that he knowingly made a false material representation rather than advancing an extremely strained interpretation. Massachusetts Rule of Professional Conduct 3.3 prohibits knowingly making “a false statement of fact or law to a tribunal.”
“Morally and physically impossible” was gendered advocacy, but not clearly a prohibited personal opinion.
Robinson said:
“You must conclude at the outset that such acts as those are morally and physically impossible for this young woman defendant.”
Trial, Volume II, page 1615.
Later he repeated:
“I said it was morally and physically impossible. Have I said too much?”
Trial, Volume II, page 1740.
Massachusetts Rule of Professional Conduct 3.4(e)(3) prohibits asserting a personal opinion about “the guilt or innocence of an accused,” but expressly allows a lawyer to argue conclusions based upon analysis of the evidence.
Robinson framed the first statement as something the jurors “must conclude,” rather than saying, “I personally know she is innocent.” Therefore, my previous description of this as a clear personal-opinion violation was too strong.
The more defensible criticism is that Robinson relied heavily on gender, social status, and presumed feminine incapacity rather than demonstrable physical evidence. A modern judge might permit some of this as advocacy, but could stop it if it became an invitation to decide the case through stereotypes rather than evidence.
Robinson made an overt religious and emotional appeal.
Robinson said:
“If the little sparrow does not fall unnoticed to the ground, indeed, in God’s great providence, this woman has not been alone in this court room, but ever shielded by His providence from above, and by the sympathy and watch[ful] care of those who have her to look after.”
He immediately continued:
“You are trying a capital case … a verdict in which against her calls for the imposition of but one penalty, and that is that she shall walk to her death.”
Trial, Volume II, pages 1621–1622.
A defense lawyer may properly emphasize reasonable doubt and the irreversible consequences of a wrongful conviction. Robinson went beyond that by invoking divine protection and expressly appealing to the jury’s “sympathy and watchful care.”
Today, a prosecutor would have a substantial basis to object that the argument asked the jury to act as Lizzie’s protectors and religious guardians rather than neutral factfinders. A judge might order Robinson to return to the evidence or give a curative instruction. It would not necessarily produce professional discipline by itself.
His attacks on the police were insulting, but probably within modern advocacy limits.
Robinson said:
“And you do not get the greatest ability in the world inside a policeman’s coat.”
Trial, Volume II, page 1618.
He continued:
“They make themselves, as a body of men, ridiculous.”
Trial, Volume II, page 1619.
Modern Massachusetts practice permits counsel to attack the adequacy of an investigation, expose contradictions among police witnesses, and argue that officers were mistaken or biased. The current evidence guide expressly permits “enthusiastic rhetoric, strong advocacy, and excusable hyperbole.”
A modern judge might stop generalized abuse of police officers as a class, but these remarks probably would not result in discipline standing alone. The legally stronger version of Robinson’s argument would identify particular investigative errors instead of suggesting that police officers generally lack ability.
His praise of the judges had especially poor optics because Dewey was his appointee.
Robinson described the court as:
“Our best of the judiciary, clean, able, honorable gentlemen, who sit vigilantly by on the bench to guard against any possible wrong.”
Trial, Volume II, page 1617.
Flattering a court is not ordinarily misconduct. In this case, however, one of those “clean, able, honorable gentlemen” had been appointed to the bench by Robinson and would later deliver the jury charge. That combination would attract attention today.
Without evidence that Robinson was invoking a private relationship, seeking improper influence, or communicating outside court, the statement would remain poor optics rather than a disciplinary violation.
CONCLUSION
The strongest modern criticisms are:
Robinson materially distorted Bridget’s testimony by converting her repetition of Lizzie’s note story into independent confirmation from Abby.
Dewey’s participation created a legitimate appearance-of-impartiality question because Robinson had appointed him to the bench, although the appointment alone would not establish disqualification or corruption.
Robinson relied heavily on gender stereotypes, religious imagery, sympathy, and the prospect of execution.
The weaker claims are that his “morally and physically impossible” statement was necessarily an impermissible personal opinion, or that insulting the police would automatically lead to sanctions. Current rules give lawyers substantial freedom to argue forcefully and even hyperbolically.
REFERENCES
Trial of Lizzie Andrew Borden, Volume I:
Bridget Sullivan testimony, page 290.
Adelaide Churchill testimony, page 368.
Trial of Lizzie Andrew Borden, Volume II:
George D. Robinson’s closing argument, pages 1615, 1617–1622, 1653–1660 and 1738–1741.
Hosea M. Knowlton’s closing argument, pages 1795–1797.
Justice Dewey’s jury charge beginning at page 1885.
Massachusetts Guide to Evidence, Section 1113:
Opening Statement and Closing Argument; current version dated February 1, 2026.
Massachusetts Rules of Professional Conduct:
Rule 3.3, Candor Toward the Tribunal.
Rule 3.4(e), Fairness to Opposing Party and Counsel.
Massachusetts Code of Judicial Conduct:
Rule 2.11, Disqualification.
Historical appointment references:
“Cast of Characters,” Lizzie Andrew Borden Virtual Museum.
“Who Was Governor Robinson?” The Hatchet: Journal of Lizzie Borden Studies.
Professional and Industrial History of Suffolk County, Massachusetts, listing Justin Dewey as appointed to the Superior Court in 1886.
The Robinson–Dewey relationship created an appearance problem, but not proof of corruption.
While governor in 1886, George D. Robinson appointed Justin Dewey to the Massachusetts Superior Court. Dewey was one of the three judges at Lizzie Borden’s trial and delivered the charge to the jury. The trial transcript expressly identifies the three judges and later states: “The charge to the jury was then delivered by Mr. Justice Dewey.” The appointment is reported consistently in multiple historical sources, although I have not located Robinson’s original 1886 appointment commission.
Today, Massachusetts Judicial Conduct Rule 2.11(A) requires disqualification when a judge’s “impartiality might reasonably be questioned.” The commentary applies an objective, fully informed observer standard.
That does not mean Dewey would automatically be disqualified merely because Robinson had appointed him seven years earlier. Governors appoint many judges, and an old appointment does not itself establish a continuing relationship. The modern concern would be disclosure and consideration of recusal, especially in a capital case in which the former governor appeared as lead defense counsel. The ethical duty would fall primarily upon Dewey, not Robinson. There is no evidence in the materials reviewed of collusion, ex parte communication, or a quid pro quo.
Robinson’s treatment of the alleged note is the strongest modern ethical problem.
Robinson told the jury:
“Both Bridget and Lizzie had learned from Mrs. Borden that she had had a note. Mrs. Borden had told Lizzie. Mrs. Borden had told Bridget.”
Trial of Lizzie Andrew Borden, Volume II, page 1653.
He even supplied supposed words for Abby:
“I have got a note to go out and see some one that was sick.”
Trial, Volume II, page 1653.
But Bridget’s actual testimony was:
“I never heard anything about a note, whether they got it or not. I don’t know.”
Trial, Volume I, page 290.
Adelaide Churchill did testify that Bridget spoke as though Abby had received a note:
“She said Mrs. Borden had a note to go to see some one that was sick, and she was dusting the sitting-room, and she hurried off, and says, ‘She didn’t tell me where she was going; she generally does.’”
Trial, Volume I, page 368.
The permissible inference was that Bridget repeated the note story as a presumed fact. Robinson went materially farther: he asserted that Abby personally told Bridget about the note. Bridget never testified to that, and her page 290 testimony contradicted it.
Knowlton correctly identified the problem in rebuttal:
“She was obviously telling the story as Lizzie had told it to her.”
Trial, Volume II, pages 1796–1797.
Current Massachusetts evidence guidance states:
“Closing argument must be based on the evidence and the fair inferences from the evidence.”
It permits forceful advocacy, but not a material transformation of the record.
Today, Robinson’s statement would provide strong grounds for an immediate objection and likely a curative instruction. Professional discipline would require something more—most importantly, proof that he knowingly made a false material representation rather than advancing an extremely strained interpretation. Massachusetts Rule of Professional Conduct 3.3 prohibits knowingly making “a false statement of fact or law to a tribunal.”
“Morally and physically impossible” was gendered advocacy, but not clearly a prohibited personal opinion.
Robinson said:
“You must conclude at the outset that such acts as those are morally and physically impossible for this young woman defendant.”
Trial, Volume II, page 1615.
Later he repeated:
“I said it was morally and physically impossible. Have I said too much?”
Trial, Volume II, page 1740.
Massachusetts Rule of Professional Conduct 3.4(e)(3) prohibits asserting a personal opinion about “the guilt or innocence of an accused,” but expressly allows a lawyer to argue conclusions based upon analysis of the evidence.
Robinson framed the first statement as something the jurors “must conclude,” rather than saying, “I personally know she is innocent.” Therefore, my previous description of this as a clear personal-opinion violation was too strong.
The more defensible criticism is that Robinson relied heavily on gender, social status, and presumed feminine incapacity rather than demonstrable physical evidence. A modern judge might permit some of this as advocacy, but could stop it if it became an invitation to decide the case through stereotypes rather than evidence.
Robinson made an overt religious and emotional appeal.
Robinson said:
“If the little sparrow does not fall unnoticed to the ground, indeed, in God’s great providence, this woman has not been alone in this court room, but ever shielded by His providence from above, and by the sympathy and watch[ful] care of those who have her to look after.”
He immediately continued:
“You are trying a capital case … a verdict in which against her calls for the imposition of but one penalty, and that is that she shall walk to her death.”
Trial, Volume II, pages 1621–1622.
A defense lawyer may properly emphasize reasonable doubt and the irreversible consequences of a wrongful conviction. Robinson went beyond that by invoking divine protection and expressly appealing to the jury’s “sympathy and watchful care.”
Today, a prosecutor would have a substantial basis to object that the argument asked the jury to act as Lizzie’s protectors and religious guardians rather than neutral factfinders. A judge might order Robinson to return to the evidence or give a curative instruction. It would not necessarily produce professional discipline by itself.
His attacks on the police were insulting, but probably within modern advocacy limits.
Robinson said:
“And you do not get the greatest ability in the world inside a policeman’s coat.”
Trial, Volume II, page 1618.
He continued:
“They make themselves, as a body of men, ridiculous.”
Trial, Volume II, page 1619.
Modern Massachusetts practice permits counsel to attack the adequacy of an investigation, expose contradictions among police witnesses, and argue that officers were mistaken or biased. The current evidence guide expressly permits “enthusiastic rhetoric, strong advocacy, and excusable hyperbole.”
A modern judge might stop generalized abuse of police officers as a class, but these remarks probably would not result in discipline standing alone. The legally stronger version of Robinson’s argument would identify particular investigative errors instead of suggesting that police officers generally lack ability.
His praise of the judges had especially poor optics because Dewey was his appointee.
Robinson described the court as:
“Our best of the judiciary, clean, able, honorable gentlemen, who sit vigilantly by on the bench to guard against any possible wrong.”
Trial, Volume II, page 1617.
Flattering a court is not ordinarily misconduct. In this case, however, one of those “clean, able, honorable gentlemen” had been appointed to the bench by Robinson and would later deliver the jury charge. That combination would attract attention today.
Without evidence that Robinson was invoking a private relationship, seeking improper influence, or communicating outside court, the statement would remain poor optics rather than a disciplinary violation.
CONCLUSION
The strongest modern criticisms are:
Robinson materially distorted Bridget’s testimony by converting her repetition of Lizzie’s note story into independent confirmation from Abby.
Dewey’s participation created a legitimate appearance-of-impartiality question because Robinson had appointed him to the bench, although the appointment alone would not establish disqualification or corruption.
Robinson relied heavily on gender stereotypes, religious imagery, sympathy, and the prospect of execution.
The weaker claims are that his “morally and physically impossible” statement was necessarily an impermissible personal opinion, or that insulting the police would automatically lead to sanctions. Current rules give lawyers substantial freedom to argue forcefully and even hyperbolically.
REFERENCES
Trial of Lizzie Andrew Borden, Volume I:
Bridget Sullivan testimony, page 290.
Adelaide Churchill testimony, page 368.
Trial of Lizzie Andrew Borden, Volume II:
George D. Robinson’s closing argument, pages 1615, 1617–1622, 1653–1660 and 1738–1741.
Hosea M. Knowlton’s closing argument, pages 1795–1797.
Justice Dewey’s jury charge beginning at page 1885.
Massachusetts Guide to Evidence, Section 1113:
Opening Statement and Closing Argument; current version dated February 1, 2026.
Massachusetts Rules of Professional Conduct:
Rule 3.3, Candor Toward the Tribunal.
Rule 3.4(e), Fairness to Opposing Party and Counsel.
Massachusetts Code of Judicial Conduct:
Rule 2.11, Disqualification.
Historical appointment references:
“Cast of Characters,” Lizzie Andrew Borden Virtual Museum.
“Who Was Governor Robinson?” The Hatchet: Journal of Lizzie Borden Studies.
Professional and Industrial History of Suffolk County, Massachusetts, listing Justin Dewey as appointed to the Superior Court in 1886.
-
Lorcan
- Posts: 543
- Joined: Tue Aug 05, 2025 2:22 pm
- Real Name: Paul Murphy
Re: The Lawyers and Judges
Dewey’s charge would create several substantial problems today. The principal issue is not that it was old-fashioned; it is that substantial portions read like a second defense closing argument rather than neutral instructions from the court.
The charge also contains at least one apparent legal misstatement serious enough to require immediate correction.
1. Dewey repeatedly argued the facts for the defense
Dewey began by accurately stating the governing Massachusetts rule:
“The Court shall not charge juries with respect to matters of fact, but may state the testimony and the law.”
He further explained that the statute was intended to prevent judges from expressing opinions concerning “the credibility of witnesses or the strength of evidence.” Trial, Volume II, pp. 1885–1887.
That statutory rule remains essentially unchanged today:
“The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.”
Massachusetts General Laws, c. 231, § 81. ([Massachusetts Legislature][1])
But Dewey then repeatedly directed the jury toward defense-favorable interpretations of disputed evidence.
On Lizzie’s remarks to Alice Russell, he asked:
“Would he naturally, probably, predict, a day or two before hand, that anything of the nature of that crime would occur?”
He then framed the alternatives:
“Is the reasonable construction to be put upon that conversation that of evil premeditation, dwelt upon, intended, or only of evil fears and apprehensions?”
Trial, Volume II, p. 1923.
That is not merely summarizing the testimony. It supplies a defense argument: that a person contemplating murder would probably not predict trouble beforehand, and therefore Lizzie’s statements were more naturally expressions of fear.
On the dress evidence, Dewey asked whether the witnesses’ descriptions were sufficiently consistent to identify any particular dress. On the Reagan controversy, he suggested that respectable men and clergymen probably would not have sought a retraction unless they had first satisfied themselves that the published claim was false. Trial, Volume II, pp. 1923–1925.
The cumulative problem is considerable. The judge was not simply identifying issues; he was providing the jury with defense-favorable reasoning about how those issues should be resolved.
Modern Massachusetts judges must perform judicial duties impartially and without words or conduct manifesting bias or prejudice. ([Massachusetts Government][2])
Today, the prosecution would have strong grounds to object that the judge was commenting improperly on the weight of the evidence and effectively advocating for the defense.
2. The instruction on deliberate premeditation contains an apparent reversal of the law
The published transcript says:
“The killing must be the result of a plan or purpose to kill unlawfully, formed without reflection and deliberation by the guilty party.”
Trial, Volume II, p. 1889.
The word “without” makes the sentence internally contradictory. Deliberately premeditated murder requires the intention to kill to be formed through at least some process of deliberation, even though that process may occur rapidly. “Formed without reflection and deliberation” describes something closer to an impulsive intent.
Dewey immediately surrounded that sentence with substantially correct language:
“The words ‘deliberately premeditated’ mean that the wrongful intention to kill must have been formed before the act of killing.”
And:
“It is enough if there was a clear intent to kill formed before the act of killing.”
He concluded that premeditation meant “the design to do it was first formed and after that was carried out.” Trial, Volume II, pp. 1889–1890.
Therefore, the charge as a whole partly corrects the defective sentence. But the published transcript unquestionably contains “without reflection and deliberation.”
There are two possible explanations:
A. Dewey actually misspoke.
If so, a modern prosecutor should request an immediate correction. Failure to correct it could become a serious appellate issue after a conviction because the mistake concerns an element distinguishing deliberate-premeditation murder from other forms of homicide.
B. The word “without” is a stenographic or transcription error.
That is plausible given the surrounding sentences, but it cannot be established from this transcript alone. It should therefore be described as an apparent error in the published record, not automatically attributed to Dewey’s intended instruction.
Current Massachusetts homicide instructions require the Commonwealth to prove deliberate premeditation and the other elements beyond a reasonable doubt. ([Massachusetts Government][3])
3. Dewey treated the presumption of innocence as variable evidence
Dewey told the jury:
“This legal presumption of innocence is to be regarded by the jury in every case as matter of evidence to the benefit of which the party is entitled.”
He then continued:
“The law does not undertake to fix or measure the force of this presumption in this case by any formal or arbitrary rule, but leaves it to your just and intelligent judgment. It may vary in different cases, its force being strengthened amongst other things by the character and previous way of life of the defendant.”
Trial, Volume II, pp. 1890–1891.
That is not how the presumption is ordinarily explained today. The current Massachusetts model states:
“The presumption of innocence stays with the defendant unless and until the evidence convinces you unanimously as a jury that the defendant is guilty beyond a reasonable doubt.”
The presumption is a fixed legal protection. Its “force” is not weighed and increased or decreased according to the defendant’s character. Admissible character evidence may separately contribute to reasonable doubt, but it does not enlarge the legal presumption itself. ([Massachusetts Government][4])
Dewey’s formulation was highly favorable to Lizzie because he connected her religious and charitable reputation directly to the strength of the presumption. Today, that portion would almost certainly be rewritten, and the prosecution could reasonably object to it.
4. His treatment of circumstantial evidence imposed an unusually heavy burden on the prosecution
Dewey instructed:
“Every fact which in your judgment is so important and essential that without it the conclusion of guilt could not be reached must itself be proved beyond reasonable doubt, must be proved by the same weight and force of evidence as if it were the main fact in issue.”
Trial, Volume II, p. 1900.
He also said that circumstantial evidence must produce “a reasonable and moral certainty that the defendant and no one else did commit” the crimes. Trial, Volume II, p. 1907.
Modern Massachusetts law focuses the beyond-reasonable-doubt requirement on the elements of the offense and the ultimate conclusion of guilt. It does not generally require every subsidiary fact or every inference in the evidentiary chain to be proved independently beyond a reasonable doubt. Current instructions also emphasize that direct and circumstantial evidence are both permissible forms of proof. ([Massachusetts Government][5])
Part of Dewey’s instruction can be defended: if a particular fact truly is logically indispensable to proving an element, reasonable doubt about that fact would necessarily produce reasonable doubt about guilt. But his categorical language could cause jurors to demand proof beyond reasonable doubt for individual pieces of evidence rather than evaluating whether the complete evidence proves each required element.
Today, the instruction would at least require clarification and probably correction.
5. He supplied possible exculpatory explanations that were not evidence
The note discussion is particularly conspicuous. Dewey asked the jury to consider whether an unknown murderer might have used a note to lure Abby and then removed it:
“Might it not be a part of the plan or scheme of such a person by such a document or paper to withdraw Mrs. Borden from the house?”
And:
“Might he not have found the letter or note with her, if there was one already in the room? Might he not have a reasonable and natural wish to remove that as one possible link in tracing himself?”
Trial, Volume II, pp. 1903–1904.
That theory was possible in an abstract sense, but there was no evidence that an outsider wrote the note, used it to lure Abby, found it on her, or removed it after killing her.
A defense lawyer could argue that possibility, subject to the permissible boundaries of inference. It is considerably more problematic for the trial judge to originate or reinforce it while instructing the jury. The judge’s institutional authority gives the hypothetical a weight that counsel’s advocacy does not possess.
This would be one of the strongest grounds for a modern prosecution objection.
6. The instruction on Lizzie’s failure to testify began correctly, then became advocacy
The legally sound core was emphatic:
“Any argument, any implication, any suggestion, any consideration in your minds, unfavorable to defendant based on her failure to testify is unwarranted in law.”
Trial, Volume II, p. 1916.
That principle remains correct. The current Massachusetts model prefers the precise phrase “no adverse inference.” ([Massachusetts Government][6])
The problems are what Dewey added.
He described Lizzie as:
“A witness incompetent.”
And instructed the jurors to consider the case:
“As if the defendant had no right whatever to testify.”
That reflected the technical structure of the 1892 statute: an accused became competent only by requesting to testify. It would be inaccurate today because a defendant is legally competent to testify but possesses the constitutional right not to do so.
More significantly, Dewey effectively supplied an imagined explanation in Lizzie’s voice:
“The defendant may say, ‘I have already told to the officers all that I know about this case, and my statements have been put in evidence; whatever is mysterious to others is also a mystery to me. I have no knowledge more than others have. I have never professed to be able to explain how or by whom these homicides were committed.’”
Trial, Volume II, p. 1917.
That is far beyond a neutral no-adverse-inference instruction. Dewey put before the jury a first-person exculpatory narrative that Lizzie had not delivered under oath and could not be cross-examined about.
Today, the judge would normally say only that the defendant had an absolute right not to testify, that the jury must not discuss or consider that decision, and that no adverse inference may be drawn from it. Dewey’s imaginary statement would be highly objectionable.
7. The gender stereotyping would be inappropriate today
In discussing Lizzie’s alleged remarks about Abby, Dewey said:
“Remembering that it is the language of a young woman and not of a philosopher or a jurist.”
He then asked:
“What, according to common observation, is the habit of young women in the use of language? Is it not rather that of intense expression, whether that of admiration or dislike?”
Trial, Volume II, p. 1894.
This told the jury that young women characteristically exaggerate and therefore that Lizzie’s hostile statements should perhaps not be taken literally.
That is a generalized sex-based stereotype supplied by the judge. It was favorable to Lizzie, but its direction does not cure the problem. Modern judicial-conduct rules prohibit judges from manifesting bias or prejudice through words or conduct, including prejudice connected with sex or gender. ([Massachusetts Government][7])
Dewey also asked whether the manner and force of the killings were:
“Favorable to the contention that a person of the defendant’s sex and size was the assailant.”
Trial, Volume II, p. 1908.
Size, strength, reach, and physical capability can be legitimate evidentiary questions. “Sex” as a generalized proxy for incapacity is considerably more questionable. A modern instruction would focus on the actual physical evidence and the defendant’s demonstrated characteristics, not assumptions about women.
8. The joint-participant instruction was legally possible but procedurally awkward
Dewey introduced joint liability by saying that it was:
“A view, so far as I remember, not suggested in the opening, or in the evidence, or hardly in the closing argument for the Commonwealth.”
Trial, Volume II, p. 1914.
He nevertheless instructed that Lizzie could be convicted if another person committed the killings while she knowingly aided, encouraged, or stood ready to assist under an agreement. Trial, Volume II, pp. 1914–1915.
The legal doctrine itself was not improper. A defendant charged as a principal may generally be convicted on a properly supported joint-venture theory.
The problem is Dewey’s own acknowledgment that the theory had scarcely been presented and apparently lacked a clear evidentiary basis. Today, a judge should not instruct on a theory unsupported by the evidence. A late and materially different theory can also create notice and fairness concerns.
This portion was one of the few parts of the charge potentially favorable to the prosecution, but Dewey immediately weakened it by emphasizing that the Commonwealth had essentially tried the case on the theory that Lizzie personally wielded the weapon.
9. The religious conclusion would be avoided today
Dewey ended:
“We can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world.”
Trial, Volume II, p. 1927.
That language was conventional in many nineteenth-century courtrooms. Today it would be regarded as unnecessary and potentially inappropriate. A judicial charge should direct jurors to the law and evidence, not suggest that their verdict participates in divine governance.
Standing alone, it probably would not invalidate a verdict. It contributes, however, to the general impression that Dewey’s charge was rhetorical and moralistic rather than restrained and juridically neutral.
What was acceptable in the charge
Several major parts were legally sound or substantially consistent with modern practice:
Dewey correctly instructed that the Commonwealth carried the burden of proof and that Lizzie had no burden to explain the mystery.
He correctly stated that mere suspicion or even a strong probability was insufficient.
He correctly required separate findings on the two murder counts.
He correctly instructed that the verdict must be unanimous.
He correctly instructed that no adverse inference could be drawn from Lizzie’s failure to testify.
His use of “moral certainty” would not automatically make the charge defective in Massachusetts when read in the full context of a proper reasonable-doubt explanation. Modern language is generally clearer and less archaic, but the phrase itself is not necessarily fatal.
Bottom line
The charge would be a serious problem today, chiefly because Dewey repeatedly crossed from explaining the law into arguing disputed facts for Lizzie.
The most consequential passages are:
1. The apparent statement that premeditation could be “formed without reflection and deliberation.”
2. The repeated defense-favorable rhetorical questions about the note, presentiment, dress, police cooperation, and Reagan statement.
3. The imaginary first-person explanation Dewey supplied for Lizzie’s failure to testify.
4. The treatment of the presumption of innocence as variable “evidence” strengthened by Lizzie’s character.
5. The sex-based generalizations about “young women.”
A modern prosecutor would likely make repeated objections and request corrective instructions before deliberations. If similar instructions contributed to a conviction, they could create substantial appellate issues for the defendant. Here, however, the errors overwhelmingly favored Lizzie, and the jury acquitted her; an acquittal ordinarily cannot be overturned and retried merely because the judge’s instructions favored the accused.
[1]: https://malegislature.gov/Laws/GeneralL ... hatgpt.com "General Law - Part III, Title II, Chapter 231, Section 81"
[2]: https://www.mass.gov/lists/supreme-judi ... hatgpt.com "Supreme Judicial Court Rule 3:09: Code of Judicial Conduct"
[3]: https://www.mass.gov/doc/superior-court ... hatgpt.com "SUPREME JUDICIAL COURT MODEL JURY ..."
[4]: https://www.mass.gov/doc/2160-presumpti ... hatgpt.com "2.160 Presumption of Innocence; Burden of Proof; Unanimity"
[5]: https://www.mass.gov/doc/2240-direct-an ... hatgpt.com "2.240 Direct and Circumstantial Evidence"
[6]: https://www.mass.gov/doc/3600-defendant ... hatgpt.com "3.600 Defendant Does Not Testify"
[7]: https://www.mass.gov/supreme-judicial-c ... hatgpt.com "Rule 2.3 Bias, prejudice, and harassment"
The charge also contains at least one apparent legal misstatement serious enough to require immediate correction.
1. Dewey repeatedly argued the facts for the defense
Dewey began by accurately stating the governing Massachusetts rule:
“The Court shall not charge juries with respect to matters of fact, but may state the testimony and the law.”
He further explained that the statute was intended to prevent judges from expressing opinions concerning “the credibility of witnesses or the strength of evidence.” Trial, Volume II, pp. 1885–1887.
That statutory rule remains essentially unchanged today:
“The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.”
Massachusetts General Laws, c. 231, § 81. ([Massachusetts Legislature][1])
But Dewey then repeatedly directed the jury toward defense-favorable interpretations of disputed evidence.
On Lizzie’s remarks to Alice Russell, he asked:
“Would he naturally, probably, predict, a day or two before hand, that anything of the nature of that crime would occur?”
He then framed the alternatives:
“Is the reasonable construction to be put upon that conversation that of evil premeditation, dwelt upon, intended, or only of evil fears and apprehensions?”
Trial, Volume II, p. 1923.
That is not merely summarizing the testimony. It supplies a defense argument: that a person contemplating murder would probably not predict trouble beforehand, and therefore Lizzie’s statements were more naturally expressions of fear.
On the dress evidence, Dewey asked whether the witnesses’ descriptions were sufficiently consistent to identify any particular dress. On the Reagan controversy, he suggested that respectable men and clergymen probably would not have sought a retraction unless they had first satisfied themselves that the published claim was false. Trial, Volume II, pp. 1923–1925.
The cumulative problem is considerable. The judge was not simply identifying issues; he was providing the jury with defense-favorable reasoning about how those issues should be resolved.
Modern Massachusetts judges must perform judicial duties impartially and without words or conduct manifesting bias or prejudice. ([Massachusetts Government][2])
Today, the prosecution would have strong grounds to object that the judge was commenting improperly on the weight of the evidence and effectively advocating for the defense.
2. The instruction on deliberate premeditation contains an apparent reversal of the law
The published transcript says:
“The killing must be the result of a plan or purpose to kill unlawfully, formed without reflection and deliberation by the guilty party.”
Trial, Volume II, p. 1889.
The word “without” makes the sentence internally contradictory. Deliberately premeditated murder requires the intention to kill to be formed through at least some process of deliberation, even though that process may occur rapidly. “Formed without reflection and deliberation” describes something closer to an impulsive intent.
Dewey immediately surrounded that sentence with substantially correct language:
“The words ‘deliberately premeditated’ mean that the wrongful intention to kill must have been formed before the act of killing.”
And:
“It is enough if there was a clear intent to kill formed before the act of killing.”
He concluded that premeditation meant “the design to do it was first formed and after that was carried out.” Trial, Volume II, pp. 1889–1890.
Therefore, the charge as a whole partly corrects the defective sentence. But the published transcript unquestionably contains “without reflection and deliberation.”
There are two possible explanations:
A. Dewey actually misspoke.
If so, a modern prosecutor should request an immediate correction. Failure to correct it could become a serious appellate issue after a conviction because the mistake concerns an element distinguishing deliberate-premeditation murder from other forms of homicide.
B. The word “without” is a stenographic or transcription error.
That is plausible given the surrounding sentences, but it cannot be established from this transcript alone. It should therefore be described as an apparent error in the published record, not automatically attributed to Dewey’s intended instruction.
Current Massachusetts homicide instructions require the Commonwealth to prove deliberate premeditation and the other elements beyond a reasonable doubt. ([Massachusetts Government][3])
3. Dewey treated the presumption of innocence as variable evidence
Dewey told the jury:
“This legal presumption of innocence is to be regarded by the jury in every case as matter of evidence to the benefit of which the party is entitled.”
He then continued:
“The law does not undertake to fix or measure the force of this presumption in this case by any formal or arbitrary rule, but leaves it to your just and intelligent judgment. It may vary in different cases, its force being strengthened amongst other things by the character and previous way of life of the defendant.”
Trial, Volume II, pp. 1890–1891.
That is not how the presumption is ordinarily explained today. The current Massachusetts model states:
“The presumption of innocence stays with the defendant unless and until the evidence convinces you unanimously as a jury that the defendant is guilty beyond a reasonable doubt.”
The presumption is a fixed legal protection. Its “force” is not weighed and increased or decreased according to the defendant’s character. Admissible character evidence may separately contribute to reasonable doubt, but it does not enlarge the legal presumption itself. ([Massachusetts Government][4])
Dewey’s formulation was highly favorable to Lizzie because he connected her religious and charitable reputation directly to the strength of the presumption. Today, that portion would almost certainly be rewritten, and the prosecution could reasonably object to it.
4. His treatment of circumstantial evidence imposed an unusually heavy burden on the prosecution
Dewey instructed:
“Every fact which in your judgment is so important and essential that without it the conclusion of guilt could not be reached must itself be proved beyond reasonable doubt, must be proved by the same weight and force of evidence as if it were the main fact in issue.”
Trial, Volume II, p. 1900.
He also said that circumstantial evidence must produce “a reasonable and moral certainty that the defendant and no one else did commit” the crimes. Trial, Volume II, p. 1907.
Modern Massachusetts law focuses the beyond-reasonable-doubt requirement on the elements of the offense and the ultimate conclusion of guilt. It does not generally require every subsidiary fact or every inference in the evidentiary chain to be proved independently beyond a reasonable doubt. Current instructions also emphasize that direct and circumstantial evidence are both permissible forms of proof. ([Massachusetts Government][5])
Part of Dewey’s instruction can be defended: if a particular fact truly is logically indispensable to proving an element, reasonable doubt about that fact would necessarily produce reasonable doubt about guilt. But his categorical language could cause jurors to demand proof beyond reasonable doubt for individual pieces of evidence rather than evaluating whether the complete evidence proves each required element.
Today, the instruction would at least require clarification and probably correction.
5. He supplied possible exculpatory explanations that were not evidence
The note discussion is particularly conspicuous. Dewey asked the jury to consider whether an unknown murderer might have used a note to lure Abby and then removed it:
“Might it not be a part of the plan or scheme of such a person by such a document or paper to withdraw Mrs. Borden from the house?”
And:
“Might he not have found the letter or note with her, if there was one already in the room? Might he not have a reasonable and natural wish to remove that as one possible link in tracing himself?”
Trial, Volume II, pp. 1903–1904.
That theory was possible in an abstract sense, but there was no evidence that an outsider wrote the note, used it to lure Abby, found it on her, or removed it after killing her.
A defense lawyer could argue that possibility, subject to the permissible boundaries of inference. It is considerably more problematic for the trial judge to originate or reinforce it while instructing the jury. The judge’s institutional authority gives the hypothetical a weight that counsel’s advocacy does not possess.
This would be one of the strongest grounds for a modern prosecution objection.
6. The instruction on Lizzie’s failure to testify began correctly, then became advocacy
The legally sound core was emphatic:
“Any argument, any implication, any suggestion, any consideration in your minds, unfavorable to defendant based on her failure to testify is unwarranted in law.”
Trial, Volume II, p. 1916.
That principle remains correct. The current Massachusetts model prefers the precise phrase “no adverse inference.” ([Massachusetts Government][6])
The problems are what Dewey added.
He described Lizzie as:
“A witness incompetent.”
And instructed the jurors to consider the case:
“As if the defendant had no right whatever to testify.”
That reflected the technical structure of the 1892 statute: an accused became competent only by requesting to testify. It would be inaccurate today because a defendant is legally competent to testify but possesses the constitutional right not to do so.
More significantly, Dewey effectively supplied an imagined explanation in Lizzie’s voice:
“The defendant may say, ‘I have already told to the officers all that I know about this case, and my statements have been put in evidence; whatever is mysterious to others is also a mystery to me. I have no knowledge more than others have. I have never professed to be able to explain how or by whom these homicides were committed.’”
Trial, Volume II, p. 1917.
That is far beyond a neutral no-adverse-inference instruction. Dewey put before the jury a first-person exculpatory narrative that Lizzie had not delivered under oath and could not be cross-examined about.
Today, the judge would normally say only that the defendant had an absolute right not to testify, that the jury must not discuss or consider that decision, and that no adverse inference may be drawn from it. Dewey’s imaginary statement would be highly objectionable.
7. The gender stereotyping would be inappropriate today
In discussing Lizzie’s alleged remarks about Abby, Dewey said:
“Remembering that it is the language of a young woman and not of a philosopher or a jurist.”
He then asked:
“What, according to common observation, is the habit of young women in the use of language? Is it not rather that of intense expression, whether that of admiration or dislike?”
Trial, Volume II, p. 1894.
This told the jury that young women characteristically exaggerate and therefore that Lizzie’s hostile statements should perhaps not be taken literally.
That is a generalized sex-based stereotype supplied by the judge. It was favorable to Lizzie, but its direction does not cure the problem. Modern judicial-conduct rules prohibit judges from manifesting bias or prejudice through words or conduct, including prejudice connected with sex or gender. ([Massachusetts Government][7])
Dewey also asked whether the manner and force of the killings were:
“Favorable to the contention that a person of the defendant’s sex and size was the assailant.”
Trial, Volume II, p. 1908.
Size, strength, reach, and physical capability can be legitimate evidentiary questions. “Sex” as a generalized proxy for incapacity is considerably more questionable. A modern instruction would focus on the actual physical evidence and the defendant’s demonstrated characteristics, not assumptions about women.
8. The joint-participant instruction was legally possible but procedurally awkward
Dewey introduced joint liability by saying that it was:
“A view, so far as I remember, not suggested in the opening, or in the evidence, or hardly in the closing argument for the Commonwealth.”
Trial, Volume II, p. 1914.
He nevertheless instructed that Lizzie could be convicted if another person committed the killings while she knowingly aided, encouraged, or stood ready to assist under an agreement. Trial, Volume II, pp. 1914–1915.
The legal doctrine itself was not improper. A defendant charged as a principal may generally be convicted on a properly supported joint-venture theory.
The problem is Dewey’s own acknowledgment that the theory had scarcely been presented and apparently lacked a clear evidentiary basis. Today, a judge should not instruct on a theory unsupported by the evidence. A late and materially different theory can also create notice and fairness concerns.
This portion was one of the few parts of the charge potentially favorable to the prosecution, but Dewey immediately weakened it by emphasizing that the Commonwealth had essentially tried the case on the theory that Lizzie personally wielded the weapon.
9. The religious conclusion would be avoided today
Dewey ended:
“We can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world.”
Trial, Volume II, p. 1927.
That language was conventional in many nineteenth-century courtrooms. Today it would be regarded as unnecessary and potentially inappropriate. A judicial charge should direct jurors to the law and evidence, not suggest that their verdict participates in divine governance.
Standing alone, it probably would not invalidate a verdict. It contributes, however, to the general impression that Dewey’s charge was rhetorical and moralistic rather than restrained and juridically neutral.
What was acceptable in the charge
Several major parts were legally sound or substantially consistent with modern practice:
Dewey correctly instructed that the Commonwealth carried the burden of proof and that Lizzie had no burden to explain the mystery.
He correctly stated that mere suspicion or even a strong probability was insufficient.
He correctly required separate findings on the two murder counts.
He correctly instructed that the verdict must be unanimous.
He correctly instructed that no adverse inference could be drawn from Lizzie’s failure to testify.
His use of “moral certainty” would not automatically make the charge defective in Massachusetts when read in the full context of a proper reasonable-doubt explanation. Modern language is generally clearer and less archaic, but the phrase itself is not necessarily fatal.
Bottom line
The charge would be a serious problem today, chiefly because Dewey repeatedly crossed from explaining the law into arguing disputed facts for Lizzie.
The most consequential passages are:
1. The apparent statement that premeditation could be “formed without reflection and deliberation.”
2. The repeated defense-favorable rhetorical questions about the note, presentiment, dress, police cooperation, and Reagan statement.
3. The imaginary first-person explanation Dewey supplied for Lizzie’s failure to testify.
4. The treatment of the presumption of innocence as variable “evidence” strengthened by Lizzie’s character.
5. The sex-based generalizations about “young women.”
A modern prosecutor would likely make repeated objections and request corrective instructions before deliberations. If similar instructions contributed to a conviction, they could create substantial appellate issues for the defendant. Here, however, the errors overwhelmingly favored Lizzie, and the jury acquitted her; an acquittal ordinarily cannot be overturned and retried merely because the judge’s instructions favored the accused.
[1]: https://malegislature.gov/Laws/GeneralL ... hatgpt.com "General Law - Part III, Title II, Chapter 231, Section 81"
[2]: https://www.mass.gov/lists/supreme-judi ... hatgpt.com "Supreme Judicial Court Rule 3:09: Code of Judicial Conduct"
[3]: https://www.mass.gov/doc/superior-court ... hatgpt.com "SUPREME JUDICIAL COURT MODEL JURY ..."
[4]: https://www.mass.gov/doc/2160-presumpti ... hatgpt.com "2.160 Presumption of Innocence; Burden of Proof; Unanimity"
[5]: https://www.mass.gov/doc/2240-direct-an ... hatgpt.com "2.240 Direct and Circumstantial Evidence"
[6]: https://www.mass.gov/doc/3600-defendant ... hatgpt.com "3.600 Defendant Does Not Testify"
[7]: https://www.mass.gov/supreme-judicial-c ... hatgpt.com "Rule 2.3 Bias, prejudice, and harassment"
-
camgarsky4
- Posts: 2056
- Joined: Sat Aug 01, 2020 8:05 pm
- Real Name: George Schuster
Re: The Lawyers and Judges
That was quite the write up....I'm still digesting it!
-
Inspector
- Posts: 651
- Joined: Tue Mar 04, 2025 7:27 am
- Real Name: Star Johns
Re: The Lawyers and Judges
Wow, me too. Nice.
I mentioned in a post the other day that Bridget never learned about the note from Abby, does that count for anything?.,,lol
At times , perhaps most of the time, Dewey sounded like one of the defense attorneys, and according to one of the courtroom reporters, he cried at the verdict.
I mentioned in a post the other day that Bridget never learned about the note from Abby, does that count for anything?.,,lol
At times , perhaps most of the time, Dewey sounded like one of the defense attorneys, and according to one of the courtroom reporters, he cried at the verdict.
-
TeenaBee
- Posts: 70
- Joined: Tue Apr 29, 2025 2:32 pm
- Gender: Female
- Real Name: Teena Booth
Re: The Lawyers and Judges
Well you are right Lorcan in that I have (mostly) admiration for Robinson and antipathy for Knowlton. I do acknowledget that Robinson trying to paint Bridget as knowing about the note from Abby SEEMS to be a cheap politician's trick. He was criticized for it, rightly so. Although as that didn't seem to be his regular M.O. I am willing to give him the benefit of the doubt of forgetting Bridget's clearing it up testimony, or somehow missing it. But maybe I shouldn't, maybe he was eager to spin Mrs. Churchill's testimony his way. Although I don't think he usually called other witnesses a liar.
In my reading, that was Knowlton's strategy, one reason I don't respect him.
Maybe I have said these things before, but Knowlton implied that Emma was a liar for saying she saw the Bedford Cord in the clothes press. Mrs. Bowen was a liar for saying Lizzie was wearing a dark dress. Hyman Lubinsky was lying about the time he believed he saw Lizzie, the guys going up to the barn before Medley were lying (or just wrong). Hannah Reagan however, who was thoroughly discredited, he defended as truthful! When your case depends on just about every defense witness being a liar or wrong, and only your witnesses are right and truthful, then your case is built on sand.
But to me the most egregious strategy of Knowlton was the way he EXAGGERATED literally everything. He would take a small true fact (Lizzie told Hannah Gifford that she thought Abby was a mean good-for-nothing) and blow it up into a huge thing (Lizzie hated her so much she had to kill her). In my opinion, this was one reason for Judge Dewey's what seems to be prejudicial instruction to the jury. Knowlton conjured up so much BS with his much celebrated oratorical skills that Dewey felt he had to ask the jury to really think -- Did the district attorney PROVE what he was asserting? Is there actual proof that Lizzie hated Abby enough to kill her beyond Mrs. Gifford's fairly tame story? (For the record I do think Dewey should have recused himself).
Here are snippets from Knowlton's closing. “It is useless to tell you that there was peace and harmony in that family. We know better. The remark that was made to Mrs. Gifford, the dressmaker, was not a petulant outburst that might come and go.” Okay, but at the inquest Alice Russell had told him that the problem between Abby and Lizzie was “the same as any family," and that seems to have been exactly what most who knew of Lizzie’s feelings toward her stepmother believed, that Lizzie complained about Abby on occasion (petulant outbursts yes), as stepchildren do, but not to an unusual degree.
When police went to speak to Mrs. Augusta Tripp, one of Lizzie’s friends since childhood, Mrs. Tripp told them Lizzie had said nothing to her about Abby recently, and couldn’t remember her saying anything overtly negative about Abby ever; however, Mrs. Tripp had formed her own “impression’ that Lizzie believed Abby was two-faced, pretending to be one thing to her face and another thing behind her back. These are not exactly words that foreshadow murder. Overall, as far as I can see, Lizzie and Abby seemed to tolerate each other well enough, having perfected the art of staying out of each other’s way over the decades they lived together. Yet, Knowlton believed he knew differently and considered Lizzie stripping from Abby the title of mother to be a particularly “wicked” act.
He actually suggested that Lizzie’s refusal to call her mother was MORE harmful to Abby than murder. “The assassin’s blade cuts deep. That wicked hatchet went deep down into the brain of that old woman, but Mr. Foreman, it never went so deep into Abby Durfee Borden as did the contemptuous refusal of this girl to call her by the name of mother. It was a living insult to that woman, a living expression of contempt… repeated day in and day out.”
He next topped himself in hyperbole by declaring that he himself would rather be killed by his own daughter than to have his daughter “live with me for years and taunt me with ingratitude, deny me the title I had earned by years of patient devotion.” He continued: “The malice was all before the fact. The wickedness was all before the fourth day of August. The ingratitude, the poisoning, the hate, the stabbing of the mind, which is worse than the stabbing of the body, had gone on under that roof for many, many months.” In Knowlton’s telling, Lizzie hated Abby so much that she tortured her stepmother with base ingratitude for years before finally killing her.
There was, of course, no way Knowlton could know any of this, he was spinning a story for a jury as lawyers in courtrooms do. And, at one point, he gave brief acknowledgement of this by asking, “Am I exaggerating this thing? She [Lizzie] kept her own counsel.” For that one moment, anyway, he admitted he didn’t truly know how Lizzie felt. He certainly didn’t know whether Abby had earned the right to be called mother in Lizzie’s estimation. (As you can probably guess, I have my own thoughts on that.)
Knowlton did this over and over on different subjects, ascribing to Lizzie intentions and feelings and actions he could not possibly know and for which he had no proof. His closing seemed to me maybe 25 pecent fact and 75 percent stuff he made up. And that's why I don't much respect him. It's curious to me why he got such accolades for such a closing. In my mind, Robinson's closing was much more grounded in reality, a simple appeal to common sense. Well except for that one trick/mistake about Bridget's testimony....
And don't even get me started on the legal chicanery Knowlton pulled in summoning the primary suspect of a murder to an inquest under the premise of having her "help" him catch the murderer. Whatever you think of the value of her inquest testimony as evidence, he clearly violated her right against self-incrimination... If you need to employ such dirty tricks to get your defendant indicted then, again, your case is built on sand. Go find some concrete!
Okay that's my Knowlton rant, sorry about that, didn't mean to come off snarky, I know these are complex things, and he had good reasons to believe her guilty, but he does rile me up!
In my reading, that was Knowlton's strategy, one reason I don't respect him.
Maybe I have said these things before, but Knowlton implied that Emma was a liar for saying she saw the Bedford Cord in the clothes press. Mrs. Bowen was a liar for saying Lizzie was wearing a dark dress. Hyman Lubinsky was lying about the time he believed he saw Lizzie, the guys going up to the barn before Medley were lying (or just wrong). Hannah Reagan however, who was thoroughly discredited, he defended as truthful! When your case depends on just about every defense witness being a liar or wrong, and only your witnesses are right and truthful, then your case is built on sand.
But to me the most egregious strategy of Knowlton was the way he EXAGGERATED literally everything. He would take a small true fact (Lizzie told Hannah Gifford that she thought Abby was a mean good-for-nothing) and blow it up into a huge thing (Lizzie hated her so much she had to kill her). In my opinion, this was one reason for Judge Dewey's what seems to be prejudicial instruction to the jury. Knowlton conjured up so much BS with his much celebrated oratorical skills that Dewey felt he had to ask the jury to really think -- Did the district attorney PROVE what he was asserting? Is there actual proof that Lizzie hated Abby enough to kill her beyond Mrs. Gifford's fairly tame story? (For the record I do think Dewey should have recused himself).
Here are snippets from Knowlton's closing. “It is useless to tell you that there was peace and harmony in that family. We know better. The remark that was made to Mrs. Gifford, the dressmaker, was not a petulant outburst that might come and go.” Okay, but at the inquest Alice Russell had told him that the problem between Abby and Lizzie was “the same as any family," and that seems to have been exactly what most who knew of Lizzie’s feelings toward her stepmother believed, that Lizzie complained about Abby on occasion (petulant outbursts yes), as stepchildren do, but not to an unusual degree.
When police went to speak to Mrs. Augusta Tripp, one of Lizzie’s friends since childhood, Mrs. Tripp told them Lizzie had said nothing to her about Abby recently, and couldn’t remember her saying anything overtly negative about Abby ever; however, Mrs. Tripp had formed her own “impression’ that Lizzie believed Abby was two-faced, pretending to be one thing to her face and another thing behind her back. These are not exactly words that foreshadow murder. Overall, as far as I can see, Lizzie and Abby seemed to tolerate each other well enough, having perfected the art of staying out of each other’s way over the decades they lived together. Yet, Knowlton believed he knew differently and considered Lizzie stripping from Abby the title of mother to be a particularly “wicked” act.
He actually suggested that Lizzie’s refusal to call her mother was MORE harmful to Abby than murder. “The assassin’s blade cuts deep. That wicked hatchet went deep down into the brain of that old woman, but Mr. Foreman, it never went so deep into Abby Durfee Borden as did the contemptuous refusal of this girl to call her by the name of mother. It was a living insult to that woman, a living expression of contempt… repeated day in and day out.”
He next topped himself in hyperbole by declaring that he himself would rather be killed by his own daughter than to have his daughter “live with me for years and taunt me with ingratitude, deny me the title I had earned by years of patient devotion.” He continued: “The malice was all before the fact. The wickedness was all before the fourth day of August. The ingratitude, the poisoning, the hate, the stabbing of the mind, which is worse than the stabbing of the body, had gone on under that roof for many, many months.” In Knowlton’s telling, Lizzie hated Abby so much that she tortured her stepmother with base ingratitude for years before finally killing her.
There was, of course, no way Knowlton could know any of this, he was spinning a story for a jury as lawyers in courtrooms do. And, at one point, he gave brief acknowledgement of this by asking, “Am I exaggerating this thing? She [Lizzie] kept her own counsel.” For that one moment, anyway, he admitted he didn’t truly know how Lizzie felt. He certainly didn’t know whether Abby had earned the right to be called mother in Lizzie’s estimation. (As you can probably guess, I have my own thoughts on that.)
Knowlton did this over and over on different subjects, ascribing to Lizzie intentions and feelings and actions he could not possibly know and for which he had no proof. His closing seemed to me maybe 25 pecent fact and 75 percent stuff he made up. And that's why I don't much respect him. It's curious to me why he got such accolades for such a closing. In my mind, Robinson's closing was much more grounded in reality, a simple appeal to common sense. Well except for that one trick/mistake about Bridget's testimony....
And don't even get me started on the legal chicanery Knowlton pulled in summoning the primary suspect of a murder to an inquest under the premise of having her "help" him catch the murderer. Whatever you think of the value of her inquest testimony as evidence, he clearly violated her right against self-incrimination... If you need to employ such dirty tricks to get your defendant indicted then, again, your case is built on sand. Go find some concrete!
Okay that's my Knowlton rant, sorry about that, didn't mean to come off snarky, I know these are complex things, and he had good reasons to believe her guilty, but he does rile me up!