Robinson, Donovan, Madden & Barry law firm

[NancyDrew]

This is the law firm founded in 1866 by George Dexter Robinson, former governor of Massachusetts (1884-1887) and defense attorney for Lizzie.

This article has been referenced before, but here it is, for sake of continuity: http://www.masslive.com/living/index.ss ... _case.html

They are still holding back the rest of the files from the Borden case...quoting the Board of Overseers "The duty to protect confidential information survives death in Massachusetts.”

Does anyone know for how long they can continue to do this? Indefinitely? I know Lizzie and Emma didn't have children, but there must be SOME surviving member of the Borden/Durfee lineage who might be able to request access to the materials?

I'm particularly interested in the 3 hours Robinson spent with Lizzie when he first met her in the Taunton jailhouse. What were his first impressions of Lizzie? How much coaching did she need regarding outward appearances during the trial? It has been speculated that he told her to dress appropriately (mourning clothes) but I also wonder if she was directed to swoon, faint, or ask to leave the room when the skulls of Abby and Andrew were brought out.

Would Robinson have known that Knowlton intended to do that? It's my understanding (I'm not a lawyer, but I've served on a Grand Jury before, both in a high-profile criminal case and a civil one) that the defense has the right to all discovery; that is, everything the prosecution has in terms of information, witnesses, etc. The defense can pull a few tricks out its hat, but not the State. Was this the case in 1894?

Finally, is this case still officially "open"? Couldn't an attorney petition that the files be released in order to re-open the investigation? Many artifacts still exist...bloody bed linens, the broken hatchet. Could they be studied for new forensic evidence? For example, I know the fake hairpiece Abby was wearing is still with the Fall River Historical society. Could THAT be studied for DNA? (Maybe the killer injured him/herself or left a hair, or flakes of skin, etc.)

As someone who is utterly fascinated with this case, I'm simply dying to know what is in those files of Robinson's. There must be a way to see the contents, (or at least I'd like to think there is) Anyone have ideas? Thanks!

PS Here is the website for the firm as it stands today: http://www.robinson-donovan.com/about-us/

[patsy]

Hi and Welcome, Nancy Drew.

From what I have read, probably at this site, is that someone from the firm said there is no smoking gun, but it would certainly fulfill the dream of many and give much joy to historians if only we could see what's in those files. I want to believe that if a relative could be found who would come forward with a request then they may be able to release those files.

It should still be an open murder case since there are no statutes of limitations for murder.

[Allen]

Here is a site I found that explains the rules of attorney client privilege in Massachusetts. The privilege survives the death of the client, and is still valid after the relationship has been terminated.


Section 502. Attorney-Client Privilege
http://www.mass.gov/courts/sjc/guide-to ... ce/502.htm

[snokkums]

I would have loved to have known what Robinsons first impression of Lizzie was. I bet it was something.

[John Watson]

The U. S. Supreme Court has ruled that the attorney-client privilege survives even after the death of the client and/or attorney, however it also has ruled that the privilege is not absolute and that in certain cases, postumous exception to the rule may be granted, for instance in cases involving disputes among the client's heirs or attorney fees. Courts have also revoked the privilege in cases where the information sought is considered pertinent in pending criminal litigation. While no Court has revoked the protection strictly for historical reasons, there remains hope that eventually some sharp attorney will convince some liberal Court to consider the matter, but until then, those Lizzie files will likely remain hidden. What I find curious is the fact that the Robinson firm still has the files! File retention requirements may be different in different states, but I know of no law requiring lawyers to retain client's files for more than 100 years. Yet the Robinson firm has continued to retain the Borden files long after the deaths of all concerned parties. If they have done so out of recognition of the documents' obvious historic value (which I suspect), why not take the next step and petition a Court for an exception to the rule under the theory that the historic value of the records far outweigh any potential harm to the reputations of the deceased client and/or attorney by their release. But don't hold your breath!

[Yooper]

I'm assuming these are the notes made by the attorney and not a matter of public record. If the private notes and records of other attorneys associated with the Borden case have been made public without repercussion, then that ceases to be an argument for the Robinson firm. If the notes are not a matter of public record, then it probably remains a voluntary decision.

[NancyDrew]

Thanks for the replies, guys, but I still wonder about remaining forensic evidence? What say you, my fellow Bordenologists? Do you think DNA could still be tested for on the bloody pillow shams?

[NancyDrew]

Hi and Welcome, Nancy Drew.

From what I have read, probably at this site, is that someone from the firm said there is no smoking gun, but it would certainly fulfill the dream of many and give much joy to historians if only we could see what's in those files. I want to believe that if a relative could be found who would come forward with a request then they may be able to release those files.

It should still be an open murder case since there are no statutes of limitations for murder.

I've read before that the firm has said there is nothing revealing in the unreleased notes, but I would think that is a matter of opinion, no? I wonder if the person who made that comment is a true "Bordenologist."

This forum is impressive, because every piece of evidence has been sifted through by the members here...discussed and dissected under a microscope; and I love it! It's hard for me to imagine that the unpublished notes would reveal NOTHING...surely the members here who have intimate knowledge of case details would be able to put 2 and 2 together and arrive at new conclusions...does anyone agree with me?

I'm not far from Fall River (I live just outside of Providence, RI). Does anyone think it would be worthwhile to make a call to the firm and see what they say?

Finally, what is to prevent the law firm from destroying the notes? They obviously feel they have a duty to keep them unpublished...do they feel a similar obligation to preserve them forever?

[Yooper]

The DNA evidence might be petty well degraded by now, but I can't say for certain. What would we be looking for in the way of DNA evidence? We might discover that the blood came from Abby and Andrew Borden, but not much else. Without a control sample taken directly from both of them there would be nothing to compare blood DNA evidence to.

[NancyDrew]

Okay, let's see...I'm thinking (writing!) out loud. Are any of Andrew's clothes still in existence? The bloody ones? Because if they were, AND if they could be tested, AND the DNA weren't too degraded, then I'd like to see if any of Abby's blood is on them. I know, it's a lot of "AND's"!

If Lizzie killed Abby first and then kept the same clothes on, it's possible some of Abby's blood spattered onto Andrew. I know...I"m really reaching here.

Or reference DNA could be obtained from their exhumed bodies, assuming that there is still enough bone there from which to extract some (I'm completely out of my league here, just day dreaming.)

What I'd really like to know is if any of Lizzie's DNA was on any of the bloody clothes. A hair, fleck of skin, anything.

Question: I know fingerprinting was in it's infancy, but DID anyone take Lizzie's fingerprints? Ever?

[PossumPie]

The information on the cold case of Mr. and Mrs. Borden is located on the 16th floor of the law firm in a (locked) metal file cabinet. It will most likely never be released to the public owing to Client privilege precedent. I have heard that there is no 'smoking gun' in the material, but it certainly holds information not available to the public. There are also transcripts on file there, which were public knowledge at the time, but since lost. These should be disclosed owing to no client privilege. The law firm holds fast though not to make any of the information available, not even information they hold that used to be public knowledge.

[NancyDrew]

Thanks for the replies, guys.

Those of us here on this forum who are really interested in this case would, I am sure, LOVE to see those files in that metal cabinet (how do you know that, possum? just curious...)

I still don't understand the law here.. despite all the good folks here who have quoted it verbatim. The attorney/client privilege survives death. Whose death? The attorneys or the clients? Who is being protected here? Are there ANY surviving descendants of Lizzie or Emma's? Couldn't THEY ask the law firm to release those notes to them?

I think that the Borden murders is of enough historical important to warrant a petition asking the firm to release any and all source material. In fact, I'm so bugged by this, that I'm going to do some calling around. A good friend of mine who is an Executive Director of a social service agency in Massachusetts just passed the bar and is now a practicing attorney ONLY in Massachusetts (just an aside: she went back to law school at the age of 52, which i think is admirable!) I'm going to ask her if she'd be willing to get involved in making a request to Robinson, et al. She might even know some of the lawyers there..(long shot, but worth a try, don't you all agree?)

Finally...the statement by members of that firm that the papers contain "no smoking gun" means nothing to me. (In fact, it annoys me...who are they to say what those notes could reveal? Does whomever said that have intimate knowledge of the details of the murders as many of us do?) I quite understand that there is most likely no written confession of Lizzie throwing herself on the floor crying "I confess! I did it, Mr. Robinson...I killed them!" But there might be dozens of clues that inch us closer to the possible truth.

Is there anyone out there who would like to join me on this little side project? I feel confident about calling the firm on the phone, but first, I think I'd like to talk to my friend, the lawyer.

Thanks!!

[NancyDrew]

Okay, I'm replying to my own posts, but I just can't let this one go...

In talking to my pal, the attorney in Massachusetts, I once asked her, does a criminal defense attorney usually ASK their client "So did you do it?" (this conversation took place a year ago...I still haven't broached the subject of talking to her about reaching out to Robinson, et al about the Lizzie files)

In my naivete, I thought that this would be the first order of business for all lawyers...find out if their client is innocent or not.

I was really surprised by her answer..which was "Absolutely not." According to her, a good defense attorney NEVER asks their client if they committed the crime. It isn't their job to find out...their only role is to 1. provide alternate theories to the crime than the one the defendant is being charged with and 2. present enough evidence to instill reasonable doubt.

I then asked "So what if I retained you as my lawyer, and, in the course of our discussions, I blurted out that I was guilty. I then told you how i did it, why I did it, and confirmed that yes, I was indeed the perpetrator. What would you do?" Her answer shocked me. She said "It would be my responsibility to recuse myself from the case. I could not, in good conscience, continue to represent you."

Does anyone have any feedback or comments about this? Is this answer a surprise to anyone else besides me? Finally, are there are attorneys here that can confirm the accuracy of my friend's reply?

My point is, I guess, that if this is indeed true (an attorney has an ethical obligation to inform the court if their client confesses...OR...they must recuse themselves if they have knowledge of the crime which would hinder their ability to effectively represent and defend that person...I don't know one is correct, or both, or neither)...my point is...if Robinson gleaned any knowledge from his interview with Lizzie, that she was guilty...would he have shared his conclusions with anyone? Would he be obligated to tell the court? Where does ethical responsibility and client privilege begin and end? I"m really revealing here my staggeringly small knowledge of how the law works...