The Trial of Lizzie Borden

I just finished a book with the above title, written by Edmund Pearson with an introduction by Alan Dershowitz. The attitude of both is that Lizzie was likely guilty and the trial judges (there were three) sabotaged the prosecution with erroneous evidentiary rulings. Dershowitz opines that "the heavy hand of a biased judiciary" resulted in a "miscarriage of justice".

Having been given this introduction to the case, I was prepared to start foaming at the mouth about how women are invariably given lenient treatment compared to men in our justice system. However after reading the entire account, I cannot agree with the conclusion reached by Pearson and Dershowitz. Let's examine why.

There are two evidentiary rulings the authors complain about. The first involved the judges' ruling that Lizzie's testimony at the inquest could not be used against her at the trial. The relevant facts on this issue are that the murders occurred on August 4th, she was placed under police observation August 6th, she was subpoenaed to appear at the inquest August 9th, and she then testified on the 9th through the 11th. The Mayor of the city accused her of the crime on the 6th, a warrant was issued for her arrest on the 8th, and then she was arrested two hours after her testimony on a similar warrant.

She had asked for legal counsel prior to her testimony, but was denied counsel and the DA was allowed to grill her unmercifully. At one point, the DA menaced her with "You will answer my question if I have to put it to you all day". He asked her to recount her every movement on the morning of the murders, where she was every minute, what she was doing, how long she did it, who else was in the vicinity, etc. If she ever gave the slightest deviation from the prior version, he pounced on it and in effect called her a liar and insisted she answer again. Thus, every detail was belabored ad nauseum. (And who among us could account in this detail for our actions on a given morning.)

What the DA relied on in prosecuting her based on this testimony were the alleged inconsistencies in her account of her movements that morning. There was *never* any direct evidence found to tie her to the murders. Rather, the case was entirely based on circumstantial evidence, the idea being that there was no evidence anybody else did it, therefore Lizzie must have committed these horrible crimes.

Obviously if Lizzie had been arrested and charged at the time t of the inquest, then she could not have been compelled to give testimony at that inquest. On the other hand, if she was a disinterested witness with no stake in the case, then obviously the subpoena power of the state could compel her testimony. If you read this testimony, there can be no doubt that she was under suspicion at the time. The DA grilled her like he was cross-examining a hostile witness; he was permitted to ask her the same questions over and over, and to attack her answers, with no restraint at all on him.

If this were a court proceeding, the Judge would have interrupted as soon as suspicion pointed towards the witness, and advised her of her right not to testify any further. As it was, there was no judicial intervention of any sort, and poor Lizzie patiently answered all questions, despite the brutal nature of them. The trial judges determined, correctly I think, that this coerced testimony, given without benefit of counsel, could not be used against her at the trial.

Dershowitz states that the ruling "would have surprised even the most fastidious adherent of modern-day Miranda-type exclusionary rules". How an able attorney like Dershowitz can reach this conclusion is beyond me. Perhaps the prior sentence gives some clue, wherein he states that "the judges kept from the jury a voluntary statement ... given by Lizzie prior to being charged". The key here is the word "voluntary"; in actual fact, Lizzie's testimony was compelled, not voluntary. Dershowitz may not have been careful enough in learning the facts of the case before writing this introduction. Further, suspicion had already settled on her, and the fact that she had not yet been formally charged seems irrelevant. She did have rights under the Constitution not to incriminate herself, and the Judges rightfully recognized this.

The other piece of evidence kept away from the jury was that a few days before the murders, Lizzie attempted to buy prussic acid at a pharmacy in an adjoining town. There was no evidence that prussic acid had anything to do with the deaths, and it seems legitimate to exclude this so-called "evidence". Prejudicial evidence against Lizzie *was* admitted, such as the fact that Lizzie insisted on calling her stepmother "Mrs. Borden" rather than "mother", indicating the cool relationship they had.

When a jury is not convinced of guilt, they properly acquit. (I had a jury tell me once that they wanted me to tell my client that "We didn't for a minute believe that ridiculous story he told on the stand". Yet, they acquitted him, even though they believed he had lied, because they didn't believe the prosecution had proven its case.) In Lizzie's case, the whole case was based on the idea that they could find no other suspect, so they made her the scapegoat. How these brutal murders could take place with no physical evidence linking the defendant to the crime is beyond me. The prosecution simply didn't prove its case, and for Dershowitz to be so shocked at the result is mystifying.