Lizzie Borden Society Forum

You guys raised a couple issues about the legal teams....figured it would make good fodder for a thread.

A few possible topics to explore:

Should the judge, whom former Governor Robinson appointed, have served as a judge in such a high profile case when his benefactor, Robinson, was serving in the role of lead defense attorney?

Were the judges final jury instructions appropriate?

Do you agree with the decision to exclude Lizzie's inquest testimony and the testimonies of Bence, Hart & Kilroy?

Was it pure coincidence that 'Brownie & Me's claims surfaced just as the trial was starting and they went to the defense attorney's to tell the story (and not law enforcement)?

Another defense witness irony....both Mark Chace and Hiram Lubinsky had substantive changes from their witness statements to when they testified. The changes took their respective testimonies from mundane to very advantageous for Lizzie. Did they just misspeak to the police and their memories honestly cleared up after talking to Phillips & Jennings?

I hope we can get a lawyer to join and give some experienced opinions of the first three questions, but my personal inexperienced opinions are:

1. I think either Robinson or the Judge he was responsible for appointing should have recused themselves. I would go with the Judge, since Lizzie is within her rights to choose her own lawyer, so I would make that Judge recuse himself.

2. I think he might have crossed the line, but I think Judges have a fairly wide leeway for instructions - I would probably let that slide unless we can get a lawyer's or judge's informed assessment.

3. I think the Inquest testimony should have been allowed for the following reasons:

a. Her lawyer was there with her just prior and it was his duty to advise her to testify or not. She didn't have a lawyer present in realtime to object, but she did not go into the proceedings without prior legal council.

b. She was not legally under arrest at the time. The law must apply equally to everyone, in every case. If we don't like the law, we change the law, but while the law exists, we follow it.

c. She declined to answer a question, so she knew that was her right for any of the questions.

d. She did not sound like she was mentally incapacitated from any drugs she may have been on, considering the detail in her answer about Andrew Borden's real estate holdings.

4. Absolutely they should have been allowed and the New Bedford pharmacists as well. The jury can decide if it shows premeditation and the defense team can attack credibility.

5. I have no idea about Brownie & Me - so please enlighten us.

6. I absolutely do not believe the testimony of the kid who said the pitched roof, sun blazing down hay loft was cool. I also am a bit suspicious of the ice cream man. If those are the two we are talking about.

Both Hosea Knowlton and George Robinson got pretty frustrated with various witnesses, but I would need a specific quote where one of them crossed the line. I didn't catch anything I really objected to except Robinson saying Bridget had firsthand knowledge of the note. If I were the judge when he said that, I would have immediately called him to the bench and had him give an apology to the jury.

Professor Wigmore, in his time considered the preeminent scholar on evidence, wrote a detailed thesis on the case. link below. Also a link to his wikipedia writeup.

https://www.stephenhicks.org/wp-content ... n-Case.pdf

https://en.wikipedia.org/wiki/John_Henry_Wigmore

The Wigmore chart analysis system is very interesting. Have you ever tried to map parts of the case using them? I'll try to do the dress burning testimony as a Wigmore chart this weekend if I have time.

For my actual job, I often work with Neo4j knowledge graphs. After trying to get a Wigmore chart with AI assistance, I think as a long-term project, I will try to map the sworn testimony to a Neo4j knowledge graph, rather than relying on Wigmore's method. His general idea seems solid, but I think there is a bit more capability with newer knowledge graph systems.

[P0] Burning the Bedford cord dress was incriminating destruction of evidence.

[SUPPORTED BY] [P1] Lizzie burned or began burning the dress Sunday.
[SUPPORTED BY] [E1] Alice saw Lizzie at stove with skirt.
[SUPPORTED BY] [E3] Lizzie said she was burning the old thing because it was covered with/in paint.
[SUPPORTED BY] [E7] Part of dress was on open cupboard shelf.

[SUPPORTED BY] [P2] The burning was suspicious in manner/timing.
[SUPPORTED BY] [E4] Alice warned: “I wouldn’t let anybody see me do that.”
[SUPPORTED BY] [E5] Lizzie made no answer.
[SUPPORTED BY] [E6] Lizzie moved farther toward cupboard door.
[LIMITED BY] [L2] Emma/Alice nearby; officers about premises.

[SUPPORTED BY] [P3] Emma’s Sunday question undermines her prior-advice story.
[SUPPORTED BY] [E2] Emma asked: “What are you going to do?”
[SUPPORTED BY] [W2] Prior advice makes surprise less natural.
[ATTACKED BY] [E10] Emma: “You have not destroyed that old dress yet; why don’t you?”
[LIMITED BY] [L3] Emma may have meant “what are you doing right now?”

[SUPPORTED BY] [P4] Dress was not seen in searched clothes press.
[SUPPORTED BY] [E9] Emma placed it in front-entry clothes press Saturday night.
[SUPPORTED BY] [E13/E14] Seaver examined dresses and did not see such a dress.
[SUPPORTED BY] [E17] Fleet, as quoted, saw no paint-marked dress.
[LIMITED BY] [E15/E16] Search limits; sufficiency conclusion struck.
[LIMITED BY] [L4] Concealment is inference, not direct testimony.

[SUPPORTED BY] [P5] Burned dress may have been Thursday-morning dress.
[SUPPORTED BY] [E18] Churchill: light blue/white groundwork, dark navy-blue diamond.
[SUPPORTED BY] [E19] Churchill rejected shown dark-blue dress.
[ATTACKED BY] [A5] Robinson: witness color recollections conflicted.
[LIMITED BY] [L6] Burned dress unavailable for direct comparison.

[ATTACKED BY] [C1] Innocent disposal.
[SUPPORTED BY] [E3] Lizzie said paint was the reason.
[SUPPORTED BY] [E10/E11/E12] Emma: old, dirty, faded, useless, already advised destruction.
[SUPPORTED BY] [A4] Robinson: old clothes/rags commonly burned.

I believe the judges instructions to the jury were very one sided and obvious for me to think he was pulling for the defense.
It’s been years since I’ve read it, but from memory it was like a continuation of the defense.
I have read in many books that the popular consensus among legal experts is not positive for its bias.
Judge Dewey pointed out the prosecution’s shortcomings, and this was frowned upon by the general public as well.

One of the reasons I enjoyed Robert Sullivan’s book was due to his legal knowledge, and I enjoyed hearing from an experienced judge on the case.

Eli Bence’s testimony—yes should be allowed.

The attorney/judge relationship could have had a lot to do with the instructions to the jury and inadmissible testimony.

Oh I do have fun with your questions Camgarsky! They always make me think about what I think :) And I have been pretty transparent about what I think of the performance of both the prosecution (dreadful) and the defense (compelling to me at least). But you have very particular questions.

1. There were three judges, so if one stepped down and was replaced it probably wouln't have made a difference, they all three seemed to lean toward her innnocence. Regardless, YES, I think Judge Dewey should have recused himself from the case once it was learned Lizzie chose Robinsons to represent her. Clear conflict of interest to me. Which leads to --

2. Dewey's instructions to the jury were absolutely non-objective and inappropriate. I am not sure of the final legal points, but it doesn't take a law degree to see he was undercutting of the prosecution's case and boosting to the defense's case. That might be in some part because he was pandering the governor who appointed him. But I have always wondered if the judges took note of Knowlton's egregious excesses in pushing his case against Lizzie beyond fact and into opinion, and so Dewey felt he had to provice a little balance in the interest of fairness and justice? Just a thought.

3. I absolutely do not believe the Bence/prussic acid testimony should have been excluded, on legal terms (mystifying to me because it did speak to intent.) But also because I very much wish it had been allowed so I could see what Robinson and team would have done with it. Robinson may have helped her in the short-term getting it excluded, but it was terrible for Lizzie in the long term, because now it's accepted as undisputed fact that she tried to buy that poison, but I think there is a decent chance it was a case of mistaken identity for a number of reasons that probably don't belong in this thread.

4. But I do believe it was legally right to exclude her inquest testimony. I do think they played a dirty trick on her, having an arrest warrant already signed, but then giving her a subpoena to testify and not letting her counsel be there with her. Knowlton didn't question her like he did the others, he grilled her like a suspect without allowing her the legal protections that were her right as a suspect. And yes, she could have refused to answer questions, but they put her in a bind of damned if you do, damned if you don't. Legally it was coerced testimony, and coerced testimony is unreliable testimony, as Cara Robertson pointed out. I think there were a lot of other mitigating factors that made her testimony a messy disaster, but I will save that rant for some other time.

5. I don't know about the "coincidence" of the Brownie and Me boys, I would like to know what you are referring to, from what source. Do you believe their testimony was untrustworthy? I read it and it sounds convincing to me, but whether they were telling the truth or not, there were other witnesses who made it clear others had been in the barn loft before Medley. Clarkson I remember was one. As for them saying it was cooler up in the barn, well they were fairly young, the young are less concerned with discomfort, and it was indeed said to be cooler that day than it had been previously (or so say our mythbusters), so maybe it's all relative.

6. Difference between witness statements and testimony. Well I don't think Chase and Lubinsky were the only ones, I recall running into that a lot in my reading, where I say, wait a minute, and then go searching through transcripts. It happened quite a bit between preliminary hearing and trail too, which is why they kept calling the stenographer to the stand to read prelimin testimony and then challenging witnesses with their own words. I think the differences are just likely to be the police officer hearing wrong or transcribing wrong or misunderstanding something as they take down their notes. (Ironically, Dewey in his charge to the jury made just such a point). I would be more inclined to rely on what the witness says while on the stand after swearing an oath with a stenographer there to take down exact words. Lubinsky's testimony was pretty clear, he had two people to corroborate the timing of what he said he saw, and Robinson's cross of Mullaly made it seem as if Mullaly simply misunderstood what Lubinsky, who didn't speak English well, was trying to tell him.

But honestly, in regards to that, even if Mullaly beleived Lubinsky said he saw a woman in the Borden yard at 10:30 instead of after 11 am, he spoke to a witness who someone in that yard in between they knew two horrific murders had been committed -- is it not police malpractice that they didn't follow that up and try to find out who that woman was and what she saw? They just blew off what he said. So if I have to choose between thinking Lubinsky misspoke or had his memory cleared up by Jennings -- or thinking a police officer who was already convinced they had the culprit under house arrest and then mishandled the immigrant witness who didn't speak English very well, well I am going with Lubinsky

TeenaBee - could you give us a few quotes where you think Knowlton crossed the line? I end up disagreeing with almost all objections from both sides because I think a trial should be a search for truth, but that is not what a trial is, it's what can be legally proven within a limited framework.

I generally agree that leading questions and hearsay should never be allowed, but the whole series of objections about the scientific and biological properties of prussic acid and furs really, really, gets me riled up. That should absolutely be allowed and let the jury decide if it is relevant, but that is simply factual information to allow the jury to make an informed decision.

We forgot one - should Judge Blaisdell have been allowed to preside over the Preliminary Hearing when he had already heard the Inquest testimony and the Inquest was still in progress?

On this one, I think there are two problems:

1. The Inquest was still ongoing. What if new evidence is discovered? Finish the Inquest before starting the Preliminary Hearing.

2. Judge Blaisdell had heard testimony that may or may not be allowed in the Hearing. I think a fresh judge should have been used to prevent claims of bias from either side.

Lorcan -- I have presumed the inquest ended on August 13 and then they arrested Lizzie. You mention that it overlapped with the preliminary hearing. What are you referencing?

It's in the book The Fall River Murders and the Trial of Lizzie Borden vol 1 and 2 by Jim D. Jordan audiobook narrated by W.B. Ward. Listening to it in the car. Here is a bit more background:

While the Lizzie Borden case is famous for its legal battles, the specific argument regarding **Judge Josiah Blaisdell’s** disqualification due to the overlapping inquest and preliminary hearing is a nuanced detail often overshadowed by the later trial.

The record of this argument exists in the contemporaneous newspaper coverage and the legal transcripts of the **preliminary hearing** (held August 22–September 1, 1892).

### The Defense’s Argument
At the opening of the preliminary hearing, Lizzie’s defense attorney, **Andrew J. Jennings**, raised a formal objection. The core of his argument was:

1. **Impropriety of Concurrent Proceedings:** Jennings argued that it was legally irregular and prejudicial to hold a preliminary hearing while the **Inquest** (which had begun on August 9) was technically still open or its results were not yet finalized.
2. **Judicial Bias:** Since Judge Blaisdell had presided over the inquest—where Lizzie was forced to testify without counsel and was ultimately arrested—the defense argued he had already formed a biased opinion. They contended he had essentially acted as an "investigator" or "prosecutor" during the inquest and could not now act as an impartial "judge" to determine if there was probable cause to hold her for the Grand Jury.
3. **Jurisdictional Conflict:** The defense suggested that the proceedings were being rushed to secure a commitment before the defense could properly challenge the evidence gathered during the secretive inquest process.

---

### Judge Blaisdell’s Ruling
Judge Blaisdell overruled the objection. He maintained that:
* The **Inquest** and the **Preliminary Hearing** were distinct legal functions.
* An inquest is a fact-finding mission for the state to determine the cause of death.
* A preliminary hearing is a specific judicial proceeding to determine if there is enough evidence to hold a specific defendant (Lizzie) for trial.

### Significance of the Record
You can find the specifics of this exchange in:
* **The Fall River Daily Herald (August 22, 1892):** This paper provided a near-verbatim report of the opening statements and the defense's "protest" against Blaisdell presiding.
* **The Preliminary Hearing Transcript:** While the full 1893 *trial* transcript is most common, specialized archives (like the Fall River Historical Society) hold the records of the 1892 preliminary proceedings where this procedural "skirmish" is documented.

> **Note:** The defense’s instinct was correct—Judge Blaisdell eventually found her "probably guilty" at the end of this hearing. However, their earlier objection laid the groundwork for their successful attempt at the actual trial to have her inquest testimony **thrown out**, arguing it was obtained under duress while she was effectively a suspect without the benefit of counsel.

The best direct record of the objection itself is Pearson’s summary of the preliminary-hearing opening: Jennings objected to Blaisdell as presiding magistrate because Blaisdell had already been “sitting on the case in another capacity” at the inquest. Knowlton answered that the practice was legal and customary, that he had known it to be followed more than twenty times, that the inquest was “an action against nobody,” and that Blaisdell was not acting in a double capacity. Blaisdell overruled Jennings’s objection and ordered the proceedings to continue.

There is also a contemporary newspaper/legal-opinion record in the New Bedford Evening Standard, September 3, 1892, under the heading “LEGAL OPINIONS. Regarding the Action of Judge Blaisdell. Presiding at Inquest and at Miss Borden’s Examination.” That article says Blaisdell’s presiding at both proceedings caused “a good deal of discussion” among laypeople and an even more pronounced feeling among members of the bar.
The legal opinions were mixed. Walter Clifford said Blaisdell’s action was legal under the recent statute, but he understood why people felt the accused’s rights were being violated because the procedure conflicted with common-law criminal-trial expectations. Wendell H. Cobb thought it was “unprecedented, if not improper,” and said that after hearing all the inquest evidence it would be impossible for Blaisdell to approach the preliminary hearing wholly unbiased, though Cobb conceded the action was legal.

Other lawyers defended Blaisdell’s legal right to sit. L. LeBaron Holmes said Blaisdell had “a perfect right to sit,” leaving the rest to his “sense of judicial propriety.” William C. Parker said it would have been better, as a matter of propriety, for Blaisdell not to preside after hearing the inquest evidence, but he had “no doubt” as to Blaisdell’s legal right. Judge Borden reportedly said the law made no other provision and that Blaisdell was justified in presiding at both the inquest and examination.

One correction to your phrasing: the “inquest was still going on” point appears in the arraignment/continuance context, not as the main Blaisdell-disqualification argument. The Standard reports that after Jennings moved for an immediate trial, Knowlton objected because “an inquest was still going on,” and the case was continued to Monday, August 22. The Blaisdell objection proper was that he had already presided over the inquest and heard evidence there, not simply that the inquest was still pending.

The uploaded Preliminary Hearing edition confirms the structural fact behind the objection: the hearing was before Josiah Coleman Blaisdell, “the same judge that had officiated at the Inquest.” It also warns that the surviving Jennings copy was incomplete and missing important preliminary-hearing material, including some proceedings and arguments. So, for the actual objection, Pearson/newspaper accounts are more useful than the surviving preliminary transcript text.