Lizzie Borden Society Forum

Concerning the files and case research Lizzie's defense attorney Robinson locked away after the Borden trial, can the notes and correspondence from a trial for murder be used as evidence in a trial for accessory to murder? As I understand it, Lizzie might have been tried as an accessory to Abby and Andrew's murder as a separate matter and it would not fall within the double jeopardy definition. I think I can prove Lizzie guilty as an accessory to Abby and Andrew's murder using the existing testimony. There is no statute of limitations on murder, it should still be an open, unsolved case. In the interest of a partial solution to the Borden case, could the successor to Robinson be induced to release the information?

That’s a good question, Yooper. It would depend partly I think on what contemporary case law says regarding “like or similar transactions.”

The biggest roadblock though might well be the “absolute umbrella” construction of attorney-client privilege. But just to be clear, are we talking about memoranda and notes generated as a result of privileged communications, or “plain-vanilla” work product – if you know? The further out you get from privileged communications, the better the chances would be, at least theoretically.

I agree, the further from any privileged information, the better the odds of release. I fully support the attorney-client privilege, the notes may well be considered Lizzie's property since Robinson was paid for his services, and part of those services may be the files. The problem as I see it is that the files still remain after the client's death. Why not destroy the documents when the client dies if they don't pertain to anything? There must be a reason to retain them. If the reason is for the possible prosecution of the client as an accessory, well, maybe that can be arranged. The information in the files may either refute the charge or support the charge, and even if it supports the charge, the "damage" will have already been done by something other than the files, so maybe they would be released. Another possibility is that the files contain Lizzie and Bridget's missing Inquest testimony.

Yes, I believe it very unlikely those records will ever be unsealed. I sure would like to get a look at them. Surely, there must be new info contained therein that we could disect for years!

The Fresno Bee (Fresno, CA), June 29, 1998 pB4

LIZZIE BORDEN FILES WILL STAY CLOSED UNDER COURTRULING.

. . .The records fill a locked file drawer in a Springfield, Mass., law firm. And that's where they'll stay, protected by the Supreme Court ruling last week that the secret conversations of the late deputy White House counsel Vincent Foster and his lawyer should remain private, even after Foster's death. . . .

Hey, Kat! That certainly takes the bloom off of that rose. 8^)

Yes I'm a party pooper, sorry. But they are using the Supreme Court ruling to their advantage- so that's a very big obstacle. I remember we were all waiting for the ruling.
People have written letters to the law firm.
I had even called them to verify facts that were included in an article accepted to the Hatchet magazine, and talked to them about the ruling.

I was interested when that ruling came down, too. I contacted one of my attorneys, who told me "NO." I can't even remember all he said. The Supreme Court were three of his words.

Yooper, you are totally correct in that a murder case that is not solved is still open.

Remember when Professor Starrs wanted to exhume the victims to see if the hoodoo hatchet fit the wounds? At first, present-day Lizzie relatives said NO. He went to court, and the judge said NO. I think he said that, "Any suspect there could be is now long dead."

Call me nutz, but I think that if nobody is allowed to read those files, then how come more than one attorney at Robinson's present-day law firm did? They were not Lizzie's lawyer. If only Lizzie or Robinson could see them, why were those persons allowed to?

The ones that read them did say in an interview that, "There was no smoking gun". There was new information in the files, but nothing as to proof of guilt or innocence.

When Andrew Jennings' hip bath collection was donated, his family kept a red book to themselves. I've never read of anyone getting it yet. They felt that AJJ would not have wanted people to see it.

Jennings himself said that - and it sounds like you know this - he did not want some of his files seen, because it could do just what you said - cause Lizzie to be tried as an accessory, which would not be "double jeopardy".

You can google Professor Starrs Borden, Robinson files, and things like that to see articles on the web about it all. The Jennings parts, I read in a book. Sorry, I forgot which one.

If you are really ambitious (not saying you aren't if you don't do this) you could get hold of Jeff Feiger (sp?). He's on tv all the time with a commercial soliciting business, saying he will stand up for people's rights, like no matter what. There's a good argument there, in that the case is not closed and people who weren't Lizzie or her lawyer read them.

I suggest you not post publicly regarding your theory, which sounds intriguing. GOOD LUCK!

I believe that Professor Starrs found what he thought to be Andrew's skull buried a slight bit shallower than the coffin, correct?

Well, what about Abby's? Do we know whatever became of hers?

Yes Augusta, there were comments published - it is in Phillip's History of Fall River (1946), in his "Borden" chapter. As for the interpretation of the comments, I leave it to the reader:

"The
Borden Murder
Mystery

In Defence of Lizzie Borden"

". . . I entered into a study of the evidential details and of defence preparation under the leadership and direction of Mr. Jennings with all that energy which youth possesses and with all the enthusiasm which exists when a man is released from his preparatory studies, has passed his admission tests, and attempts success in his chosen profession. Yet during all this period of over forty years, public consideration has been limited to such facts as were evidenced at the trial plus those disclosed by the prosecution and those revealed by press investigation. The mass of documents and other evidence collected by the defence have never been disclosed or discussed, due to the fact that until the recent death of Miss Borden their secrecy was, in the opinion of Mr. Jennings, important to her defence. He considered that reservation of such facts as would meet any new phase of police investigation was necessary, and that during her life it was improper to disclose or to discuss facts which were gathered in her interest, and which might by any possibility be important if crime should be reconsidered by the District Attorney.
Since Miss Borden’s death, I have been importuned from many sources to make public some of the photographs which I personally took and have privately shown, but which were not used at the trial, and also to point out the relevancy of certain facts which were then produced in evidence with relation to certain other facts which were never disclosed,-- in order that a better balanced criterion for public judgment might be furnished, even though thereby certain sensational features of the case might be mitigated and some of the mystery surrounding the case be removed."

Edited to give the link to the LABVM/L website:
http://lizzieandrewborden.com/Resources ... dBooks.htm
The chapter can be downloaded at the website- it's the last one on the page.

Jennings thought the documents were important to Lizzie's defense. It was necessary to retain them against the possibility of any new police investigation, and reconsideration of the (same) crime by the district attorney. It must be the same crime to be re-considered. Lizzie could not be tried a second time for the same crime on the same charges under double jeopardy rules. She could be tried as an accessory, which is a different charge. So, the documents must have been retained against the event of Lizzie being tried as an accessory.

At first glance, this might imply that someone else did the killing, but that may not be the case. If the murder charge failed to convict, the charge as an accessory might succeed. It wouldn't be necessary to solve the murder by identifying the perpetrator, only to prove Lizzie's involvement in the murder. Jennings must have thought that possibility existed for some reason, and existed for as long as the documents were retained.

Yes, Yooper. That has been told about Jennings in more than one book. I haven't read Phillips, tho I have The Borden Mystery Part. My finding it was from another book I acquired not too many years ago - it could be DeMille's Dance of Death, but I'm not certain. (Thanks for the superb post, Kat. I hadn't read that before.)

I'm remembering a red book being mentioned of his that his relatives decided not to give away because of his wishes. Where is the red book?
(But, first, am I correct or unknowingly remembering wrong?)

I wonder if now, should someone find Jennings' notes, if we could see them or if they'd be considered client/attorney privileged papers?

Interesting thought that one need not prove who the killer was to prove Lizzie an accessory. But it sounds impossible to do. Do you think that's possible?

I wonder if now, should someone find Jennings' notes, if we could see them or if they'd be considered client/attorney privileged papers?

Believe it or not, the answer to that question just might be yes - The Court did not address the "work product" question in the Swidler opinion.

(See http://supct.law.cornell.edu/supct/html/97-1192.ZO.html. Select the "Opinion" section. In the pdf version, if you open that, there should be a footnote, bottom of page 3.)

Of course the real question is: Who makes the distinction between privileged materials and "work product"??

I'm currently trying to figure out if the court ruling was "may" or "must" retain the records subject to attorney-client privilege. I keep coming back to the fact that the records still exist, why? What damage could they do to anyone's image or memory that hasn't already been done? Maybe the attorney?

There is some info in Proceedings, Barbara Ashton's article on the Hip-bath Collection. This is a link to the Privy:
viewtopic.php?t=37

[The author states that by sequestering all the evidence collected by Jennings in the defence of Lizzie Borden he] ". . .sealed Lizzie's fate with silence. But was she completely innocent? After reading the 3 inserts in the back of the little red leather notebook, I have come to believe that Lizzie Borden did not kill her stepmother and father but she knew who did. I believe Andrew Jennings believed so, too."

Then I believe there are news articles that state that the Waring family asked that an item or some items be returned to them, as they were donated in error...if the papers are right, I don't know. There's not much in De Mille about it. I think Walsh reportedly said that what they saw were not the right books of Jennings.

Yooper - Good point. If no one else can read them, why weren't they shredded?

I would think that they are so historically important, people are afraid to shred them, in case some day the decision is reversed.

I looked in deMille yesterday. There were things that Mrs. Waring decided their father wouldn't want the public to see. (Maybe it made him look like he was covering something up for Lizzie.) I understood deMille's book to say that she and her gentleman friend never got to touch the really hot stuff.

Also, de Mille describes that 'hip bath' as a child's. (Don't make me go back and find that sentence. )

Well, Dr. Oziel in the Menendez Brothers trial got to break patient/doctor(psychiatrist) confidentiality when the tapes he made of the brothers' conversations were accepted (I think). They argued, but to my memory they did let them out. But that was before the Vince Foster ruling.

Yup, I think Jennings' little red book would go the way of George Robinson's file on Lizzie. Why wouldn't it? It's attorney ... maybe not 'attorney/client privilege'. Maybe it's just attorney notes.

Geez, I wish deMille woulda pointed to a window facing the other way and said, "Look! My God - they're killing that man!" and taken the notebook and ran with it. Then it probably would have been made public. Ladies. Proper ladies. Grrrrrr ...

Please give to the Edwin Porter - first Lizzie book author - "The Fall River Tragedy" - grave marker fund.

Historical importance is about the only good reason to retain the documents. They are historically important enough to keep locked up, effectively giving them no historical value. The problem with the possibility of damage to someone's image or memory is that it can be perpetuated through the generations. If a person is afraid of damaging their image with the truth about having done something amiss, then they shouldn't have done whatever it was they did. They had a choice at the time, and they're only playing games with the truth.

This is the down side to the attorney-client privilege, it may allow the truth to be hidden or covered up.

That's just about the size of it, Yooper. The only other reason that makes any sense for retaining those files (and this is purely conjecture) is that there might have been some small wisp of concern on the part of the defense about a retrial - based on new evidence that was unavaliable or unknown at the time of the New Bedford proceedings.

It would be interesting to know whether Governor Robinson was made aware of the fact that Knowlton had retained his files on the Borden case, apparently to the exclusion of all others. If so, it might have been a simple matter of following precedent.

One of the more fascinating elements concerning the opinion in Swidler is the dissent, which brings up the point that the Court's upholding of perpetual priviliege might effectively chill the right of a criminal defendant to exculpatory evidence, where such evidence is contained in or available from no source other than the privileged materials. Justices Scalia and Thomas joined in the dissent - which in itself says something.

We don't really know how much Knowlton kept. The body of work called The Knowlton Papers was partly compiled by E. Pearson and Knowlton's son, Frank. They had a correspondence (1923) while Pearson was doing research and that spurred Frank Knowlton to write to everyone still alive who had known his father and they gathered papers and sent them to him. He also gave leads to Pearson who wrote his own letters garnering more.
One can read the process in the "Pearson-Knowlton Correspondence" which the LBQ published over several issues.
The first reply F. Knowlton makes to Pearson's query is partially:
". . .Unfortunately, my father never kept any private files of his official cases, but left all the files, records, reports of testimony and everything in the custody of his successors in office, and I have written to the present District Attorney for the Southern District to learn whether he has in his files a copy of the inquest testimony. I will later let you know what I hear from these sources." --LBQOctober 1997: 7-11

Here's a link to the LBQ issues 7 listings, at the LABVM/L website:

http://lizzieandrewborden.com/Resources ... BQAuth.htm

The mere fact that the files were retained really doesn't imply much. They might have been kept out of vanity, the lawyers were part of a rather spectacular case. Keeping them does not imply there was a likelihood of Lizzie being re-tried as an accessory. That might have taken place at any time while Lizzie was alive, and the records were kept individually. I would expect that the defense team would recognize that one or more of them might not be around if and when Lizzie was re-tried on a different charge. There would be some merit in keeping all the individual attorney's files together so any surviving members of the defense team could lay hands on all the notes at one time, if they expected a re-trial was likely. I expect they were kept as a simple precautionary measure while Lizzie was alive, either with or without agreement amongst themselves.

It was such an infamous case, too, that I would think none of the attorneys would destroy his notes.

Personally, I think some day the Supreme Court is going to reverse that ruling. Didn't it come about because of the suicide of William Foster, and the Clintons were instrumental in getting this passed? They didn't want any of Foster's papers made public?

If Lizzie's case is closed, and it's so famous and it's just sitting there, it's ridiculous. Knowlton knew how famous the trial was. His files wouldn't be attorney/client privilege material. Has anyone heard of where those files he left are? Or read them?

Who was Attorney General after Knowlton?

Knowlton had wished to just keep his private office going in New Beford. He just was, or soon would be, asked to be a member of the Supreme Court. His last partner was Arthur E. Perry.

There's a copy of the Preliminary hearing that was xeroxed right from Andrew Jennings' copy, and still retains his hand-written notes on the pages. I have a copy. It's a thrill to see his jottings and ideas. Nothing earth-shattering, tho.

Jennings and/or his family wanted to protect Andrew Jennings' reputation, too. There is surely something in them that points to Lizzie knowing who did it. And in some way assisting, even if it was to turn her back and be a lookout for him.

You've got things slightly backwards, augusta. The Swidler ruling came about largely thanks to the Office of the Independent Counsel. See details at http://supct.law.cornell.edu/supct/html/97-1192.ZS.html

I think that in the interest of fairness that not making the Robinson files public would be the right thing to do. If any of us stood trial and did not want the files on our case ever made public, then that would seem right. We might be concerned about what others might think of us even, after we are gone, if something like that was made public.

In any case of course, it would depend on what was in the files. It could be that releasing whatever is in the robinson files might actually make Lizzie look more innocent. If that is the case then if Lizzie could decide today she might have wanted them released.

Do not get me wrong, I want the Robinson files released as much as anyone else here does. I am just saying that the fair thing to do might be to keep them from the public.

It makes you wonder why Lizzie never took possesion of the files. Then again if she had them in her possesion when she passed away she would have no way of knowing for sure that the public would not get their hands on them. In the lawyers office the files are out of public hands.

About the only other exception that I could see happening is if they come up with some kind of a time limit about the client - lawyer confidentiality. Like say so many years after the trial and or so many years after the client has passed away. It might also depend if there are decendants who could be emotionally hurt by the release of such files. In Lizzie's case there are no decendants, not even from one of her siblings.

Privacy while one is living, is the way it should be. But all involved are long gone, and beyond any possible harm. It seems today that if your famous, you give up any kind of privacy, and can be exploited to the grave. If that murder had happend today we'd have pictures of Lizzie to the point of being made ill.........here's Lizzie feeding the birds, here's lizzie getting in the car,.....etc. So, I can't see why they can't be opened up and given a good look see! It's the price ya pay for being famous! lol

It would be good to know who actually owns the files, the attorney or the client. Who knows, maybe there's something there the attorneys don't want publicized which has more to do with them than with Lizzie. I expect the most damaging information would be if the attorneys knew they were defending a guilty client.

The Swidler case had good arguments from both sides, the dissent argued that exculpatory evidence could be withheld, and the support argued that clients would tend to be less forthcoming with all of the facts in a case if they thought the attorney's notes might be disclosed. Exceptions are made concerning exculpatory evidence on a case by case basis rather than making the disclosure compulsory.

It’s just a guess on my part but I’d think that papers/files generated in any case would ultimately belong to the client and/or his or her estate. My thinking there is based on the fact that (regardless of content) they’re in effect work product generated as the result of a contractual agreement between the client and the attorney in question. But I dunno for sure.

I would think, that after the lawyers were paid in full, the defense paperwork generated on her behalf would belong to Lizzie, the client. Oh but then Emma paid for 1/2. Maybe Emma made some stipulation that the law firm retain the records? Personally, my feelings were, at the time, that the law firm was lookiing for a reason to sequester the records, and latched onto the Vince Foster ruling, tho it might have been possible to interpret the ruling either way they wanted to. Why, I do not know.

Anything’s possible really. But given the nature of the relationship between the Borden sisters for close to the final quarter century of their lives, it’s hard to imagine that Emma cared much. In a sense it points to another “did she or didn’t she?” question surrounding that 1913 newspaper report. Then too, Governor Robinson had passed away, Knowlton was gone. Of the principal attorneys involved, by 1905 – the year that Emma departed French Street – only Jennings and soon-to-be Mr. Justice Moody remained, and they most likely already knew what was in Robinson’s files.

The fact of Governor Robinson’s decease, however, might well have settled the question in the minds of all parties concerned.

I had the same impression of the Swidler opinion, too. The legal custodians of Robinson’s papers simply don’t want to play ball, and (philosophy aside) hung their hats on the first available peg that effectively said “I don’t want to – and you can’t make me!” It solved their problem for free.

That's my guess too, the client owns the notes because they wouldn't exist if the client hadn't necessitated them and paid the attorney for the effort. The arguments in the Swidler opinion could be from either perspective.

Maybe the whole affair was a colossal embarrassment for Emma. The only thing that would have cast her in a worse light is for her to have been aware of Lizzie's guilt and she tolerated it, or at least to have other people realize that. I think Emma was suspicious of Lizzie early on and she did her best to help cover for her. Emma's trial testimony seems coached at times and I really don't buy the idea that Emma suggested to Lizzie that she burn the dress. There is a possibility Emma had a horse in the race.

If the client does own the notes, then at this late date would there be any possibility of the people who Lizzie's estate was left to, or thier decendants claiming the files ? Perhaps a distant cousin of Lizzie's claiming them ?

I don't know if a descendant could claim the notes or not, assuming the client is the owner. The estate is closed at some point and I'm not sure what happens to unclaimed property. The law firm which kept the records might be entitled to a storage fee.

Say, Doug-Oh, defense attny Arthur Phillips was still around and outlived all of them. His memory wasn't so good either, when he finally wrote his chapter!

Well, that's true. But Arthur S. Phillips - the reason I left him off the list was because he was a junior defense counsel, second-tier to Jennings, Governor Robinson, Knowlton, and Moody, who were the principal attorneys in the case.

A thought just came to mind, if Bridget's Inquest testimony is in the Robinson Files, then would it be considered client - lawyer confidentiality since it is part of the Inquest? Bridget didn't give her Inquest testimony to aid Lizzie's defence team, she gave it for the Inquest.

Of course we don't know if its there but if it is there, I would think it could be released because of what it is and that it would not have to be kept private because of where it is.

I have been trying to figure out the best way to attack this issue---approaching the firm with the request for a specific document that has historical value.

However, if the Bridget inquest is there, and if Robinson wrote marginalia in it, like the Jennings copy of the Preliminary, then they could once again claim attorney/client privilege.

But at least we might know if it is in there!

BUT, also, if the Bridget inquest is there, wouldn't it be a public document that they then could redact and release? It was made with public funds and might be releasable on those grounds.

However, the trial transcript was always something one had to request a copy of through the Superior Court of the Commonwealth of Massachusetts for some reason. You could go look at it in the Boston Public Library, but couldn't get a copy of it without permission of the court.

Trial transcripts actually, if I am not mistaken, belong to the person who was the one who typed them---the clerk or court stenographer who created them. Is this right? Anyone?

To this minute I’m honestly not – wait a minute, this is interesting. I started to say that the last I knew, trial transcripts were the property of the stenographer. This claim was made to a Mr. Jack Walraven either by or on behalf of one of the two stenographers hired to produce a transcript of State of California vs. O.J. Simpson.

Mr. Walraven had collected the daily transcriptions of trial testimony (presumably from news organs such as CNN) and put them onto his website where they were available free to anyone who wished to read them. (I collected a set myself back in 1994-1995 as Mr. Walraven posted them.)

At some point – 2004 if I remember correctly – I lost the transcripts in a computer crash. When I went to the site again to retrieve a new set, there was a statement from Mr. Walreaven saying that he had in effect been advised to cease and desist – one (or both) of the stenographers had asserted intellectual property rights to the court transcripts if I recall correctly. Mr. Walraven complied, naturally, and the Simpson criminal trial transcripts on his site were removed and unavailable for several years.

That’s where it gets interesting, because I just went to the site again (at http://walraven.org/simpson/#transcripts ) and the transcripts appear to have been restored – all of the January, 1995 testimony is there anyway.

What you might do, Stefani, is send him an email at [email protected] and inquire about his own experiences in regard to the Simpson transcripts. (It may not help, but it couldn't hurt.)

It certainly appears that the intellectual property claim was deemed hogwash by someone in the know.

Yooper @ Tue Feb 12, 2008 9:55 am wrote:Concerning the files and case research Lizzie's defense attorney Robinson locked away after the Borden trial, can the notes and correspondence from a trial for murder be used as evidence in a trial for accessory to murder? As I understand it, Lizzie might have been tried as an accessory to Abby and Andrew's murder as a separate matter and it would not fall within the double jeopardy definition. I think I can prove Lizzie guilty as an accessory to Abby and Andrew's murder using the existing testimony. There is no statute of limitations on murder, it should still be an open, unsolved case. In the interest of a partial solution to the Borden case, could the successor to Robinson be induced to release the information?

If she was an accesory to the murders, then who did the murders? If she was an accesory then I think it might have been either Morse Or Dr Bowen.

at the borden conference in 1992, a reporter for the providence journal (i can't think of her name-sorry!) held a seminar on the hip bath collection. i attended. the reporter was present when it was donated to the FRHS. as they were going through it, jenning's daughter pulled 2 red journals from the collection and kept them without sharing the contents.
at this seminar there was an older man sitting near me. when i asked the reporter what had happened to the journals after that, she said "you should ask him!" and pointed to the older man. "who are you"?, i asked. d"dwight waring", he replied.
he went on to say that he had the journals but would not reveal the contents. when i asked him WHY NOT????? he said he was planning on writing his own book on the subject. i suggested if he just wanted to make some money, he could just reprint the journals and his fortune could be made!
he was not a young man in 1992. i don't know whether or not he is still alive (does anyone?). to the best of my knowledge he never published anything.

The book, "Proceedings" which covers the 1992 Conference has a detailed listing of the "Hip Bath" collection, pages 211-221.

The article is by Barbara Ashton who had seen the collection in 1968.

One of the red books is described as "thick" the other "thin". According to Ashton the thick book contained mainly newspaper articles from different papers. The thin one contained Jennings' notes of interviews he conducted and his hand written comments on the case.

Mr. Dwight Waring was Jennings' son-in-law. I don't believe he ever wrote a book.

thanks, harry

barbara ashton! i am too lazy to look at my "proceedings".
i was prompted to ask at the seminar because i was interested in the pinkerton report. i have researched the pinkerton agency but they don't have any records that remain. i was hoping that jennings would. all i know is that ms. ashton told me afterwards that i had "opened a
whole can of worms" when i asked the question. and dwight waring just sat there, recalcitrant!
do you know is dwight waring still alive? is ms. ashton?

The concept of who actualy owns the paperwork and such generated in a case is interesting and I wonder if there is a clear cut legal answer.

I used to encounter the same situation when I used to run my ex-husband's medical practice...patients would demand their medical records and assert that they actually belonged to THEM, since it was information about them personally. Legally, however, medical records belong to the physician and/or medical practice. Patients are entitled to a COPY, but the original records belong solely to the doctor. IF the doctor dies, or the practice closes entirely, the patient can actually claim the original records if he or she wishes.

I wonder if legal records follow similar rules.

I'm getting the impression that the owner of the paperwork or records is actually the entity responsible for creating them and using them. A patient might go to a doctor with a malady of some sort, but the doctor determines whether an x-ray or some other test is necessary and uses the results to make a diagnosis.

I expect trial transcripts would probably be the property of the state or commonwealth which necessitated their existence. A jury might need them or a higher court in the case of an appeal. I don't know for sure, but if copies of the trial transcripts for the Borden case had to be obtained with permission of the Superior Court of Massachusetts, then they were not likely the personal property of the stenographer. He or she may have charge of them, but when that person vacates the position of stenographer, do the transcripts go with them, or does the next stenographer take charge of them? I tend to think the transcripts are the property of the people of Massachusetts.

The same principle may well hold for notes with respect to the attorney/client relationship, but the big question is whether that extends beyond that particular attorney and that particular client. In the case of a perpetuating law firm, there could be a consideration of reputation. However, if they have the only known copy of transcripts belonging to the people of Massachusetts, maybe they could be compelled to share the information.

I don't think either Ashton or Waring are still alive.

then where are those journals??!!!

Yes, I too, believe the Trial transcripts belong to the taxpayers. They paid for them. However, there is some correspondence in the Knowlton papers between Atty. General Pillsbury and Knowlton regarding the transcripts which makes it a little less clear.

In May 1893 Pillsbury writes to Knowlton (HK171, p175):

"... Mr. Burt, the stenographer here, has applied to me to take charge of that department of the trial. He has been in other cases, and is one of the most competent and efficient of our court stenographers. Their prices are abominable, but I found, after a desperate attempt, that they could not be cut, even for large quantities. ..."

Burt's first bid is 35 cents per page. Pillsbury is a little reluctant. Burt then makes another offer (HK196, p202) of 30 cents per page provided he can sell a copy to the Associated Press.

Knowlton agrees and he hires Burt. Pillsbury then writes Burt on June 1st, 4 days before the trial (HK209, p225):

"Dear Sir:- I understand that Mr. Knowlton concludes to employ you in the Borden case at 30 cents per folio, with the privilege of furnishing the Associated Press a copy; this [is] not to interfere in any respect with the quality or efficiency of the government work. ..."

If the owner is the one who pays for their creation then in effect the Associated Press owns a copy as well.

Yes, the Associated Press would own a copy of the transcripts under those conditions, as would anyone else willing to pay for a copy. The difference is that the Associated Press had nothing to do with the creation of the transcripts. They would have been written with or without the AP and regardless of the price, there really isn't a choice involved. Trust the legal system to make a contorted mess out of a simple concept!

I think who owns the transcripts is the office of the court who hired the stenographer to record the proceedings. Unless the court seals the documents, they would ultimately become public domain.

A similar example would be someone hired as a software developer who develops a program on company time for which he/she was paid. The company owns the program (unless the person had a written contract stating otherwise).

In 1893, I'm not sure there were precedents in handling transcripts, and like today, if someone has access to information, they want to profit from it.

bob_m_ryan @ Wed Feb 13, 2008 6:39 pm wrote:Yes, I believe it very unlikely those records will ever be unsealed. I sure would like to get a look at them. Surely, there must be new info contained therein that we could disect for years!

I would love to look at those files too. I bet it makes for some interesting reading. It could almost be like what Jeffery Mcdonalds father in law did when he got inquest transcripts and found some differences in Mcdonalds story.

Hey Snokkums, I just read your response. May I ask why you brought up Jeffery McDonald? Just last week I did a Google search and finally saw the bodies and crime scene photos online. I don't know why I was looking for the material, even...I hadn't read anything on the crime in years.