The prosecution's strange request

[Harry]

There are 3 paragraphs in Justice Dewey's charge to the jury that would appear that the prosecution wanted Lizzie as an accomplice to be included in the jury's decision. Page 1914-1915 of the trial:

"Now, gentlemen, I have been asked by the counsel for the Commonwealth to give you instruction upon another view of this case, 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. And yet the evidence is of such a nature that it seems to us that, as a matter of law, the Government is entitled to have some instruction given you on this point; as a matter of fact, it would be entirely for you to consider whether the claim of the Government upon the matter to which I am going to refer is consistent with the claim which it has argued to you; whether the Government has not put this case to you, practically, upon the idea that the defendant did these acts with her own hands.

But it is a principle of law that a person may be indicted in just the form in which this defendant is indicted, that is, indicted as if she were charged with doing the act herself, and yet she may be convicted upon evidence which satisfies a jury beyond reasonable doubt that the act was done personally by another party, and that her relation to it was that of being present, aiding, abetting, sustaining, encouraging. If she stood in such a relation as that to the act, the act was done by some other person and she aided him, encouraged him, abetted him, was present somewhere, by virtue of an understanding with him, where she could render him assistance, and for the purpose of rendering assistance, then she would be a principal in the act just as much as the other party who might be acting.

But you notice the essential element. There must have been an understanding between her and her and this third party, if there was one, an agreement together for the commission of these crimes. She must have given her assent to it. She must have encouraged it. She must have been in a position where she could render assistance to the perpetrator, with his knowledge, by virtue of an understanding with him, and for the purpose of giving assistance either in the way of watching against some person's coining or furnishing him facilities for escape or in some other manner. The central idea of this proposition is that she must have been present by virtue of an agreement with the actor where she could render assistance of some kind, and for the purpose of rendering assistance. And if there was another party in this crime, and if she is proved beyond reasonable doubt to have sustained the relation to him in committing that crime which I have expressed to you, then she might be held under this indictment, because under such circumstances in the eye of the law, they both being in the sense of the law present, the act of one is the act of both."

To my knowledge the jury is to decide guilt or innocence only on the charge(s) contained in the indictment. There is no such charge in the indictment. For Lizzie to be tried as an accomplice it would require a new indictment and trial.

I'd be interested to hear your thoughts on why the prosecution requested this.

[Yooper]

I expect the prosecution wanted to be absolutely finished with the case. They didn't want to retry Lizzie as an accomplice at some time after the trial. The prosecution was unable to present the case as they wanted, Bence's testimony and Lizzie's inquest testimony were excluded, so for them to request the additional charge be introduced and included in the deliberations looks to me like they wanted to wash their hands of the case once and for all.

Another possibility might have been to give the jury a "lesser" charge to convict Lizzie of, assuming the death penalty could be avoided by conviction as an accomplice. I don't know how the law read at the time, but anything they could do to avoid the death penalty for a woman would have been agreeable to everyone.

The first possibility suggested implies that the prosecution thought they had lost the case. The second possibility implies the prosecution thought they won the case, but the jury would balk at the death penalty. The $64,000 question is whether the prosecution thought they had won or lost after the closing arguments.

The other possibility which comes to mind is that Dewey was as delusional in this part of his charge as he was in the rest of it.

[mbhenty]

YES HARRY: The Prosecution was more than strange, they were down right damming. A desperate ploy to lead the jury. Paramount to kangaroo court tactics. Unheard of today. Unbelievable!!!

It's amazing that not more was made of this. How can you consider an argument that was not deliberated in the courtroom. The fact that such an instruction could be given would be enough to throw the jury decision out and hang the court.

Of course this was a desperate tactic by a prosecution who knew they had nothing. No weapon, no blood evidence. They had nothing. No doubt that the rumor in the court was that Lizzie would walk. I believe that even the prosecution knew Lizzie did not do the murders. In the end they were stretching for straws. The fact that there may have been a 3rd party was a very real one and the prosecution knew it. But, they had nothing. They were so obsessed with hanging Lizzie that their arrogance got the best of them.

It's proof for my argument of "who did it".

Of course we all have our own smug solution to who did the murders.......and mine is no different.

I have always believed that Lizzie did not do it. Unless the maid was in on it the time line just does not fit.

I have always believed that a 3rd party, with the knowledge or consent of Lizzie, did it.

[nbcatlover]

Yea, mbhenty!

I've always believed someone else was in the house and our gal, Lizzie, was innocent.

But that charge of accomplice Dewey made is part of the reason Robinson's law firm won't open their files. Darn that Dewey!

[augusta]

I was studying a death penalty case in Tennessee some years ago, and in that state their law states that even tho you didn't pull the trigger, if you were with the person that did, you are as guilty as the actual killer.

I don't know if they had to specifically write that up in the charges against the "accomplice" or not.

Maybe Massachusetts had/does have the same law. Maybe the prosecution wanted the jury reminded of that in the judge's address. Dewey makes it sound like he hates to say it, which he probably did. If it wasn't true, I think Dewey would have not mentioned it.

I wonder if it's in Knowlton's closing statement.

[Yooper]

I'm inclined to think that a charge of accessory to murder would tend to carry the same penalty as murder. The more I think about it, the more it looks like the legal community wanting to be rid of the case once and for all. Consider the tone of the rest of "Dewey's Charge", he was WAY out of bounds! To mention the accessory charge in the same breath as the rest of his charge to the jury makes it subject to the same legal liberties he had been taking. He probably just thought he would dispense with the eventuality of an accessory charge at the same time, no worries about that being brought up in the future that way.

[DJ]

I think the prosecution believed as many of us do: That, if Lizzie didn't do it, she certainly knew who did, and was thus an accessory to murder.

Even more, because Lizzie had so much to gain, the prosecution no doubt believed that she played an active part in aiding a possible conspirator.

She and Bridget were the only ones on the premises all a.m., that we know of, and it's really a wonder that Bridget didn't get dragged into the whole ugly mess, or was accused herself.

(Going back to the "Sociopath" post-- if Lizzie were a true sociopath, she probably would have accused Bridget!)

*** Anyway, I think the prosecution wanted some sort of conviction for Lizzie, so that-- if she were an accomplice and not the the actual murderer-- she would then "sing," give away the true story. Not go down alone.***

[irina]

For those considering the Morse conspiracy angle this is interesting.

I can't understand how the prosecution got away with this as I don't think there was any testimony brought forth implicating an accomplice. In modern courts it seems the additional options would be second degree murder or manslaughter. This is very interesting even though it is probably the 1893 version of a lesser degree of murder~or not.

[Curryong]

It's certainly very strange law, or legalese. Dewey was completely wrong, and if the case had gone to Appeal (if Lizzie had been found guilty) I believe he would have been severely rapped over the knuckles for it.

Did Dewey himself believe that Morse say, or Emma, could have been a conspirator with Lizzie? It's bizarre, really!

[irina]

I have a feeling it was generally thought that she was only an accomplice. I am pretty sure in modern courts stuff can't be put into closing that weren't brought up in court. The defense attorney wrote that they didn't suggest other suspects because they couldn't prove it and it would have risked convicting Lizzie. Yet that is what the prosecution did in a way, and they lost. It seems to me that if people REALLY believed Lizzie did it with her own hands with pure greed as the motive, that she would have been worse than ostracized in Fall River. I don't think she would have had ANY genteel people and relatives for friends except Emma. It always seemed like something was known but never spoken.

[Curryong]

Ooh, a lynching, or a tarring and feathering! Apparently the latter did actually occur in some frontier towns before the miscreant was run out of town!

I've always thought that the social attitudes of the time was a great influence, vis. no well-brought up young woman of the middle classes could ever do such a brutal thing, especially to her own father! Parricide by daughters (especially with a hatchet) is extremely rare, I will admit.

In the days following the murders John Morse was followed to the Post Office and had to be saved from the curious mob by a police officer.

On a strictly practical note, how DID the Borden household manage when supplies were running low in the days after the murders, considering they were all advised to remain indoors? Did Alice run to the nearby store under cover of darkness? Did Mrs Churchill or Mrs Bowen donate a casserole or two? So many questions....Smile.

[irina]

I would suppose neighbors did bring food. There were probably some staples in the house such as flour, sugar, etc. Milk was delivered. The eggs would have been delivered except Morse brought them in from the country.

Yes, tarring & feathering happened and sometimes they used molasses. A good description of it is what was done to Mormon Prophet Joseph Smith who was tarred and feathered a couple times. Fawn Brodie's "No Man Knows My Name" which is an older book, has a very detailed description.

[Curryong]

Well, at least you can lick molasses off (between the feathers)! Oh, I am very silly on occasions!!

[RichardX]

My guess is that the prosecution understood that a bias existed against the theory that a woman could inflict such violence on her own father and step-mother. Many jurors might not accept that conclusion regardless of the evidence against Lizzie. The circumstances of the murders, however, lend themselves to accepting that if Lizzie was not herself the murderer she likely was aware of what was happening in the house. And she covered it up because she was involved in some way. As a result, even though there was no direct evidence of the involvement on any third party, it might be reasonable for the jury to surmise that Lizzie had conspired with someone else to have her parents killed. Basically the prosecution is giving the jury as many options as possible to convict her.