Lizzie Borden Society Forum

I'm not sure if this topic has been covered (so apologies if it has and i'm the loser who just caught up:)
but...
I just checked out a book from my university library called 'Wretched Sisters: Examining gender and Capital Punishment.
I opened to the introduction and came across this:

'Suppose Lizzie Borden had been Larry Borden. How would the story be different?...

'[Law] students ...agreed with the general popular sentiment that the legal system treated Miss Borden more leniently in part because the male lawyers, male judge, and all male jury could not face the prospect of convicting a female of a violent axe murder....if [she were Larry] she would have received the death penalty'

The introduction goes on, and looks at the judicial treatment of Lizzie Borden and that of the axe murders by Karla Faye Tucker (1983) who did receive the death penalty. The author looks at class and the idealised 'female'.

This is what i wanted to know:
Do you think that:
a) If Lizzie was 'Larry' that she would have been found guilty?
b) Had she been from a lower socio economic class she would have been found guilty?

My initial question was: Would 'Larry' Borden have to commit murder in the first place (if we take the argument that Lizzie did it because of financial situation, or that she felt oppressed etc) ?

Very interested in hearing your thoughts - i have a few theories myself...

I think if Lizzie was a Larry she would have had alot more opportunities to go out on his on & make his own life. He probably would have been in business for himself where as Lizzie I don't think had the chance.
She was suppose to marry & have babies. She never worked, didn't have to because her dad had money, even though he didn't spend it. This is even before the time women could vote.
If "Larry" were on trial he probably would have gotten preferential treatment because of who he way, that is only my own personal opinion.

SarahJay, I want to say that you are not a loser and all questions are welcome here on the forum. Everyone starts from somewhere so keep researching and keep giving us those questions.

Hi SarahJay, welcome to the forum!

Yes, there was a certain reluctance from the beginning to prosecute Lizzie because of her gender. Judge Blaisdell made that obvious in his statement at the end of the Preliminary hearing. This is from the New Bedford Evening Standard newspaper dated Sept. 2, 1892:

"Judge Blaisdell spoke low and indistinct. He said this is a case where sympathy must be laid aside---duty must be done. In view of the evidence presented, there seems to me only one thing for a magistrate to do. Suppose a moment, instead of the defendant being a woman it was a man and he was found close to the guest-chamber, that chamber of death, as it proved for Mrs. Borden, and that man was the last to see Mr. Borden alive and the first to see his dead body. And suppose the only explanation of his conduct in the interim was as unreasonable as saying that he was in the barn looking for some lead for sinkers. Is there any question what a magistrate would determine under such circumstances as environ this case? So it seems to me there is only one thing for a magistrate to do, and that is this: to announce that in the judgment of this court the accused is probably guilty, and order that she be held awaiting the action of the grand jury."

It's debatable whether a man would have been convicted based on the evidence although IMO it would have been more probable. I also believe if there had been a conviction, despite the penalty at the time, Lizzie would not have been executed. A man would almost certainly have been.

On a personal note let me offer my sympathy to the victims of the fires in Australia. A friend sent me a video of the beautiful Bruno Torfs art and sculpture garden which I understand suffered major damage.

I agree-- Larry would have probably been in business with his Father: "A. J. Borden & Son," or at least following in his Father's footsteps, with Andrew's help.
He probably would have been married and living someone other than no. 92. Abby would have been a different person, too, I'm sure.
As would have Andrew.

Harry - i was thinking the same thing. If Lizzie was found guilty, i honestly don't think they would have executed her. First, i think she would have had enough money for her lawyers to try and over turn the sentencing. Secondly, i think executing a 'lady' would have been controversial, particularly a woman who was active in the church.
Had she been from a working class family...maybe we would have a different outcome.
Many people still think that if a violent women 'acted' like a man in these types of case, she should therefore be executed like a man and serve as an example, not only to men who would commit murder, but to women who would 'dare' to be violent.
I wonder what would happen to Lizzie today?

Of course, if Lizzie were Larry, then perhaps Larry would've had a better relationship with Andrew and this little accident may not have happened.

i keep thinking that maybe somewhere in Bizzarro 92 Second Street World, Larry has just dropped his children off to be looked after by Grandma Abby. But there's still no electricity

One point which needs to be recognized is that first degree murder carried a mandatory death penalty in Massachusetts at the time Lizzie was tried. If they found her guilty, there was no choice, they had to execute her. They could not get second degree murder out of a double homicide, so she was tried for first degree murder. The logic then becomes because she would have been executed as a result of a conviction, the jury found her not guilty.

Yes I know it was mandatory but there isn't a law or penalty that can't be gotten around.

While the "mandatory" penalty was in effect there was not one woman executed in Massachusetts from 1789 to 1947, some 158 years.

See: http://www.deathpenaltyinfo.org/ESPYstate.pdf

After the Spooner execution, Massachusetts was highly reluctant to execute women. I think Lizzie would have been shipped off to the Taunton insane asylum or some similar institution.

I think that if lizzie had been a male, she probably would have been convicted. I think that the jury just couldn't believe that a lady and a well brought up lady could have done such a bad deed.

Then the question becomes how many women were tried for and found guilty of first degree murder between 1789 and 1947? The jury in the Borden case could not count on being able to side step the death penalty. Insanity was never a contention of the defense. All they knew for certain was what the law provided for. They had absolutely no guarantee that Lizzie would not be put to death if they found her guilty. If the prospect of executing a woman was the overriding consideration of the jury and they found that abhorrent, then they had to find her not guilty. Furthermore, if the jurors were not prepared to sentence a woman to death, then they had no business being jurors on a first degree murder case in Massachusetts.

The overriding element that worked in Lizzie's favor was the same one that benefited Simpson: Super-saturated media coverage that led a huge, oppressed group of the population to sympathize with the defendant in each case.
Lizzie had the suffragettes and the agitators for women's rights behind her. I daresay if she had been convicted, there would have been riots (not to mention locked bedroom doors) across the nation. I believe the jury in Lizzie's case certainly had this in mind, and erred in favor of "keeping the greater peace" at the time.
After all, a Court of Inquest had pointed a guilty finger at her, and a Grand Jury had indicted her. The Commonwealth had sent her a clear message: We believe you are guilty. Moreover, she was jailed for ten months, during which time no other viable suspect was determined.
For all intents and purposes, Lizzie's verdict might have read: "You seem to be guilty. You probably are. However, we the jury are not going to incite riots across America by convicting you. But, remember: From here on out, all eyes are upon you."
*************************************************************
Agreed, Yooper: It's not justice as the framers of the U.S. Constitution imagined it, nor the authors of the laws of the Commonwealth in 1892, for that matter.
By the same token, the Constitution does call for a jury of one's peers, and Lizzie's peers were more along the lines of the Marion group, not the group of bearded and be-whiskered men who pondered her fate.
There wasn't one woman on that jury, much less an agitator for women's rights. (Mr. Robinson would have skipped a jig, no doubt, had he been able to seat one.)
************************************************************* "Twilight Zone" episode scenario: If I were time-warped back to New Bedford in late June of 1893, and I found myself on that jury knowing everything I do now, I still would vote in favor of Lizzie's acquittal, for the above-stated reason of preserving the greater good.
Or, to paraphrase Justice Holmes, "not to yell, 'Fire,' in a crowded theatre."
Similarly, I would have voted in favor of Simpson's acquittal, lest Los Angeles and other cities have been burned to the ground.
Sometimes, it seems, it's best to loosen a principle in order to preserve the system.

I think if the evidence had been clearer the jury would have had no problem convicting Lizzy. They didn't have the inquest testimony, they didn't have a murder weapon, and they didn't have a witness to Lizzie's looking disheveled right right after she alerted Bridget. Lizzie's being who she was was secondary, IMHO.

Frankly, I think the police made up their minds and stopped looking until it was useless to try to pick up the cold trail.

I feel it would have been easier for the jury to convict a man than a woman but like Robyn said there wasn't any direct evidence of Lizzie's guilt. So if Lizzie had been a man she still wouldn't have been convicted in this case because of that lack of evidence. He would have walked.

-1bigsteve (o:

I think the court was just as reluctant to execute a woman as the jury. Maybe the Inquest testimony and Bence's testimony would not have been excluded if a man had been on trial. Perhaps Dewey's charge to the jury would have been a bit different. If we are to believe that people were reluctant to sentence a woman to death, why stop with the jury or the public at large? Why not include members of the legal profession?

My contention is that Lizzie was found not guilty in large part due to a resistance to the death penalty for women. If we consider past performance in Massachusetts, the court stood a better chance for conviction if Lizzie had been on trial for witchcraft!

I wonder if the "old families hanging together" thing would've helped a man as much as it helped Lizzie. It seemed very much as though most of Fall River gathered behind Lizzie during the trial, and then just as quickly backed away from her after the verdict, when they could stop having to face that something hideous could happen in their town.

There might have been some bias with respect to the son of one of the leading families in Fall River, but there would also likely be a gender bias when it comes to a violent crime. An upper class man would likely have benefited from being tried by his social peers rather than working class people. There may well have been some bias against the upper class by the working class.

There seemed to be more people supporting Lizzie during the trial than after it. That tends to support the concept of people being against the death penalty, but in favor of a guilty verdict.

Yooper observed: "There seemed to be more people supporting Lizzie during the trial than after it. That tends to support the concept of people being against the death penalty, but in favor of a guilty verdict."

The folks you're referring to - do you think they supported Lizzie out of faith in her innocence, or for some other purpose, perhaps - a purpose which had little or nothing at all to do with the death penalty?

There were those who supported Lizzie during and after the trial who probably believed in her innocence. Those who changed their tune, who supported Lizzie during the trial but ostracized her afterward, likely believed in her guilt but not in the death penalty. Any number of the latter group might well have based their support for Lizzie on media coverage. Perhaps they had a chance to really think about the case afterward as the media moved on to other things.

Come to think of it, maybe the public got exactly what they wanted. Since the death penalty was avoided, they didn't have to live with the idea they had executed a woman. By ostracizing Lizzie they made her live with the idea that they thought she was guilty. It was the best life-in-prison sentence they could muster while avoiding her execution.

It would have been more straightforward to change the statutes to reflect public sentiment, but they would have had to confront their own gender bias by doing that. Eliminating the death penalty would have affected men convicted of murder as well as women, and maybe they weren't ready to do that.

I think the jury thought Lizzie was not guilty and so that was their verdict.
They got their picture taken and presented it to her. They were like gentlemen to her.
They had such a memorable time they planned on meeting again on the anniversary date of the ruling.

I don't think the death penalty entered into it- they were decided early on.
And have you read the trial part where the jurors are given voire dire? Very interesting reading, that is.

Maybe so, they "deliberated" for about an hour, wasn't it? That was quite a different group from the one which made up the grand jury, I imagine.

Yooper, partial:

Come to think of it, maybe the public got exactly what they wanted. Since the death penalty was avoided, they didn't have to live with the idea they had executed a woman. By ostracizing Lizzie they made her live with the idea that they thought she was guilty. It was the best life-in-prison sentence they could muster while avoiding her execution.

I think the jury got carried away with chivalry, believe it or not. Somehow they gauged public sentiment in support of the rich man's daughter.
But after, as you say, I agree that public sentiment turned - after the first giddy days of the aftermath of the trial and verdict. I wondered, if later, those jurymen, who had to return to their ho-hum jobs and back to family life, thought twice down the road, that they might have made a poor decision? I wonder what their coworkers and family thought around 1897 when the scandal of the Tilden-Thurber affair hit the papers?

I get the idea that the jury was far more pragmatic than altruistic in their motivations. Three legal proceedings had preceded the trial, in two Lizzie was found probably guilty by an individual and twenty three people thought the prosecution had a strong enough case against her to go to trial. The grand jury had the unprecedented opportunity to hear the defense's case at the same time. This was tantamount to holding a pre-trial trial without a judge.

The grand jury had the benefit of Bence's testimony and Lizzie's Inquest testimony to consider, the prosecution's case had not yet been eviscerated by the court. When all of the evidence is considered, the verdict seems to be guilty. The trial jury was aware that the Inquest and Bence's testimony was being disallowed and this sent a message as to bias by the court. This was further underscored, italicized, and capitalized in bold type by Dewey's charge to the jury. It was clear what was expected of them, and they had not heard the case in its entirety.

That's well put, Yooper.
There were prospective jurors dismissed during the voir dire because they admitted to having formed an opinion in the case.
My overriding concern as Commonwealth attorney or defense counsel would have been: How could a juror *not* have formed an opinion by the time the case came to trial? He would had to have been living under a rock. Even if he did not read the papers, the chat had been ongoing for almost a year, when the murders were committed. He would have been pretty slow-witted not to have formed an opinion.
*************************************************************
Again, and I stressed this in an earlier post under this topic, I believe the presence and intense scrutiny of the media-- the drama and pageantry of having the eyes of the nation trained on the event-- contributed heavily to the outcome of the trial.
As with a drama-- a piece of grand theatre-- everyone was coached, rehearsed, and hopefully ready to play his/her part. The rambling Lizzie of the Inquest was replaced by the brave young woman, pleading for her life, fanning herself to keep from fainting, yet still succumbing to a swoon.
Surely this paragon of female gentility could never have buried a hatchet in anyone's skull!
*************************************************************
The Grand Jury proceedings were not subject to inside-the-courtroom media coverage and centered on the explosion resulting from Alice Russell's dropping her bomb.
Back in August, right after the murders, when the Inquest occurred: No one had had time to rehearse their parts adequately. Lizzie hadn't been coached to keep her mouth shut. The more she answered detectives' questions, and Mr. Knowlton's questions, the guiltier she seemed.
I still maintain that if Lizzie had swooned the a.m. of the murders, had been unable to answer questions because she was too emotionally distraught-- and, if she had pleaded emotional distraught and inability to answer questions at the Inquest-- that the light of suspicion would not have glared so brightly upon her.
However, she apparently had much to "stage-manage" the a.m. and p.m. of the murders. She couldn't pretend to be swooning. She had to know what was transpiring. She had to make sure the clothes press was locked when detectives weren't demanding a search.
************************************************************* By June 1893, the "She is not my Mother" Lizzie had been transformed into "Little Orphan Lizzie."
(And Little Orphan Lizzie was about to inherit a great big pile of Daddy Warbucks' cash.)

Let me correct an earlier statement, the one about Lizzie being found probably guilty in two instances. The first, the Inquest, was never concluded, so there was no actual ruling in that case. This was what allowed Judge Blaisdell to preside over the Preliminary hearing. If he had allowed the Inquest to conclude, he might have had to recuse himself from the Preliminary. The fact that the Inquest progressed to a Preliminary hearing amounts to the same thing but without a formal ruling.

Those are some interesting points about media involvement, DJ. While it could be argued that the grand jury members were subject to the media also, the trial jury had been subjected to it for a longer time. This would also have included any shift in media opinion one way or the other.

I also agree that statements made early, before anyone knew what anyone else had said seem a bit more valid.

To further explicate my point: because of ongoing media coverage, between the conclusion of the G.J. proceedings and the commencement of the trial in New Bedford (more than six months), the public perception of Lizzie began to mellow-- nay, even to reverse-- so that she was seen in much softer focus.
By the time the drama played out at trial the thrust (at least via a large amount of the press coverage) was less a matter of vindicating two horrific deaths than-- "Will Lizzie go free, or will she be sent to the gallows?"
Victorians loved high sentimental drama with a heroine in peril. Picture the proverbial villain tying a damsel to the railroad tracks. In a large sense, the drama of the trial-- again, owing to public perceptions generated by reportage-- turned into Lizzie's Fight for Her Life. The deaths of Abby and Andrew appeared to assume more of a "pretext status" for "The Perils of Miss Lizzie."
*************************************************************
When the Inquest, Preliminary Hearing, and even Grand Jury proceedings transpired, the public (and, especially, the locals) were still enraged about two unavenged deaths. If the trial had been held in December 1892-- one has to wonder what the outcome would have been?
Time, media coverage, and the snowballing accumulation of public sympathy certainly played to Lizzie's advantage.

Yooper @ Thu Apr 02, 2009 12:02 pm wrote:. . . twenty three people thought the prosecution had a strong enough case against her to go to trial. The grand jury had the unprecedented opportunity to hear the defense's case at the same time. This was tantamount to holding a pre-trial trial without a judge.

--partial

I don't think all of the grand jury voted the same. I mean, wasn't it 21 of 23, or something like that? Technically, I don't think even that info was supposed to come out.

Here's a question, tho- Altho it was said the defence was invited to present a case to the grand jury, did they?

Yooper @ Thu Apr 02, 2009 2:01 pm wrote:Let me correct an earlier statement, the one about Lizzie being found probably guilty in two instances. The first, the Inquest, was never concluded, so there was no actual ruling in that case. This was what allowed Judge Blaisdell to preside over the Preliminary hearing. If he had allowed the Inquest to conclude, he might have had to recuse himself from the Preliminary. The fact that the Inquest progressed to a Preliminary hearing amounts to the same thing but without a formal ruling.

I'm not quite sure what you mean here? Can you explain? And from where do we get this info that the inquest had not concluded and this is why Blasidell could sit as a judge at the prelim?