Crime Library - Closing Robinson, Page 1

The Trial of Lizzie A. Borden. Upon an indictment charging her with the murders of Abby Durfee Borden and Andrew Jackson Borden. Before the Superior Court for the County of Bristol. Presiding, C. J. Mason, J. J. Blodgett, and J. J. Dewey. Official stenographic report by Frank H. Burt (New Bedford, MA., 1893, 2 volumes).

Twelfth Day

New Bedford, June 19, 1893

The Court came in at 9 o'clock, and Mr. Robinson addressed the Court as follows:

CLOSING ARGUMENT FOR DEFENDANT BY HON. GEO. D. ROBINSON

(courtesy of Harry Widdows)

          May it please your Honors, Mr. Foreman and gentlemen: One of the most dastardly and diabolical of crimes that was ever committed in Massachusetts was perpetrated in August, 1892, in the city of Fall River. The enormity and outrage startled everybody, and set all into the most diligent inquiry as to the perpetrator of such terrible acts. Our society is so constituted, gentlemen, that every man feels that the right must be done and the wrong punished, and the wicked doer brought to his account as promptly as due procedure of law will permit.
          Here then was a crime with all its horrors, and well may those who stood first to look at the victims have felt sickened and distressed at heart, and human nature be broken, so that the experiences of a life-time will never bring other such pictures. Who could have done such an act? says everybody. In the quiet of the home, in the broad day light of an August day, on the street of a popular city, with houses within a stone's throw, nay, almost within touch, who could have done it?
          Inspection of the victims disclosed that Mrs. Borden had been slain by the use of some sharp and terrible instrument, inflicting upon her head 18 blows, thirteen of them crushing through the skull; and below stairs, lying upon the sofa, was Mr. Borden's dead and mutilated body, with eleven strokes upon the head, four of them crushing the skull.
          The terrors of those scenes no language can portray. The horrors of that moment we can all fail to describe. And so we are challenged at once, at the outset, to find somebody that is equal to that enormity, whose heart is blackened with depravity, whose whole life is a tissue of crime, whose past is a prophecy of that present. A maniac or a fiend, we say. Not a man in his senses and with his heart right, but one of those abnormal productions that Deity creates or suffers, a lunatic or a devil. So do we measure up the degree of character, or want of it, that could possibly prompt a human being to such acts.
          They were well directed blows. They were not the result of blundering. They were aimed steadily and constantly, for a purpose, each one finding its place where it was aimed, and none going amiss on the one side or the other. Surely we are prompted to say at the outset, the perpetrator of that act knew how to handle the instrument, was experienced in its control, had directed it before or others like it, and it was not the careless, sudden, untrained doing of somebody who had been unfamiliar with such implements.
          Now, suspicion began to fall here and there. Everybody about there even called to account so far as could be. That is proper. That is right and necessary. Investigation proceeds. The police intervene. They form their theories. They proceed to act. They concern this one and that one. They follow out this and that clew with care to them. They are human only. And when once a theory possesses our minds you know how tenaciously it holds its place and how slow the mind is to find lodgment in something else.
          Now, no decent man complains of investigation. No one says there ought not to have been anything done. Everything ought to have been done. Nay, more, we say, everything was not done and that the proper pursuit was not taken. Now, proceed with this matter a little and let us see how we stand. A person is charged with a crime like this defendant. Suspicions surround her, investigations in regard to her proceed and inevitably, naturally, if the matter is deemed of consequence, she is brought before the Court---the District Court in that instance, to have an examination preliminarily into the probabilities of the crime on her part. Then, if she, having nothing to do with it, having no control of it, having no opportunity except to be heard that justice ought not to bind her and compel her to answer to this Court,---what then? Then the Grand Jury of the county is called together and sits by itself under the direction of the District Attorney, to investigate and see whether it ought to come before a Jury like yourselves. Now, remember at that time and when this indictment of last December was framed, this defendant had no voice,---it was purely one sided. They said, We make this charge, serious as it is, against the defendant. We will ask her to come to the Bristol County Court House and meet that charge, and if we cannot prove it against her in the ordinary way, she shall go free,---she is not guilty. Now that is one sided up to that point, practically, and so you are to draw no inference whatever, and I know you will not---you will draw no inference whatever as against this defendant until you have heard the evidence in this case, in this Court room at this time.
          You have nothing to do with what was done in Fall River, any more than you have with what is now proceeding in Australia. The finding of Judge Blaisdell of the District Court in Fall River, worthy man as he may be, is of no sort of consequence here and has no sort of influence or obligation over you. We would not be safe if in these great crises our lives hung upon the decision of a single man in a prejudiced and excited community. No, we walk away from Fall River, we come down to the broad seashore, we sniff the breezes of the sea: and here is freedom, here is right, here are you, gentlemen.
          I say, then, at the outset, as you begin to contemplate this crime and its possible perpetration by this defendant, you must conclude at the outset that such acts as those are morally and physically impossible for this young woman defendant. To foully murder her stepmother and then go straight away and slay her own father is a wreck of human morals: it is a contradiction of her physical capacity and certainty.
          Now before I pass, let me say that this defendant complains of no persecution on the part of the District Attorney of this district. He has only one duty, and that is as a gentlemen and a lawyer to conduct this investigation so that the truth as to her may be elicited. With his well earned reputation and his high standing at the bar, he would have no need to search for laurels for his fame, and he is one of the last men that would demean himself so as even to think of it. He stands above the misera le assertions that unthinking people will make, and he walks into this Court room only as the representative of the Commonwealth of Massachusetts, that is yours and mine and his, and says, "Gentlemen, all I have to show you is the case we have against this woman. And if the case I have brought to me by the Fall River police is not sufficient, or you have any doubt about it," he will say, if he speaks what his heart prompts him to utter---he will say, "for God's sake, say so like men, and Bristol County will be the happier and the securer afterwards."
          He is not here for blood, neither is he helped to such dishonorable work, if it were attempted, by our excellent friend, the District Attorney from the great county of Essex, one of our best and most reliable lawyers. So you will see no small play; you will see no mean tactics on the part of the Commonwealth here, but only a presentation not over strained in one jot or one tittle, a presentation of what has been proved here, and only that.
          So merciful is our provision of the law that a defendant shall have a decent chance that she becomes convinced how faithfully that is carried out, when she recalls the numerous kindnesses and considerations on the part of the sheriff of this county. He has done with her, not as a convicted criminal, but as a young woman of this county entitled to her rights guaranteed to her in the Constitution and laws of our State. And so she comes into this court, presided over by our best of the judiciary, clean, able, honorable gentlemen, who sit vigilantly by on the bench to guard against any possible wrong, who want the Commonwealth's case tried, but the defendant to pass without abuse or wrong, and taking the law into their hands as they will give it to you, you have to deal only with the facts.
          I said the case was brought to the District Attorney by the Fall River police. I have not time to go into any sarcasm or denunciation of those gentlemen. They are like a great many bodies of police that you find in all communities.
          Policemen are human, made out of men, and nothing else; and the blue coat and the brass buttons only cover the kind of a man that is inside.
          And you do not get the greatest ability in the world inside a policeman's coat. You may perhaps get what you want, and what is sufficient, but you must only call upon him for such service as he can render.
          Now when a police officer undertakes to investigate a crime he is possessed and saturated with the thoughts and experiences he has with bad people. He is drifting and turning in the way of finding the criminal, magnifying this, minimizing that, throwing himself on this side in order to catch somebody, standing before a community that demands the detection and punishment of the criminal, blamed if he does not get somebody into the lockup before morning. "What are the police doing?" say the newspapers; and the newspapers, you know, are not always right, mostly. Saying to him, "Look here, Mr. City Marshal, these murders were committed yesterday. Haven't you the murderer in the lockup? Get somebody in."
          Now they are sensitive to all those expressions---sensitive to it. Naturally, as men feeling the responsibility of their office, they must go there and do just such work as that, in that way. That can only be expected of them. And when they come upon the witness stand they reveal their weakness, do they not? They knock their own hands together. They make themselves, as a body of men, ridiculous, insisting that a defendant shall know everything that was done on a particular time, shall account for every moment of that time, shall tell it three or four times alike, shall never waver or quiver, shall have tears or not have tears, shall make no mistakes. But they stripped of their blue clothes and in their citizens garb, show themselves to be only men here, and liable to human infirmities and errors.
          Now I dismiss them, without any unpleasant reflection. I will talk about them a little later on; but I have nothing to say now any more than this, that you must not ask of them more than they ought to give, you must not be surprised that they fail even of the standard they set up for everybody else.
          So I say to you, as a distinguished advocate in a similar cause expressed himself to the jury "This defendant comes before you perfectly satisfied that the jury is the most refreshing prospect in the eye of accused innocence ever met in human tribunal."
          Who are you twelve men, and how come you here? Selected out of 150 that were drawn from the body of this county, passing the gauntlet of criticisms, questions, and objections put upon you by the Court or the attorneys, you are sworn here in this cause. Who are you? Men. Bristol County men. Men with hearts and men with heads and men with souls and men with rights. You come here in obedience to the law that we prescribe for the orderly administration of our courts. You come here because, in answer to the demand, you feel that you must render this great service, unpleasant and trying as it may be, exhaustive as are its labors; you come here because you are loyal men to the State. Nay, more. You are out of families, you come from firesides, you are members of households, you have wives and daughters and sisters and you have had mothers, you recognize the bond that unites and the flash that plays throughout the household. Now bring your hearts and your homes and your intellects here, and let us talk to you as men, not as unmeaning things.
          The clerk swore you to the performance of your duty, and perhaps you did not hear that oath so closely as I did. But I heard him say, "You shall well and truly try and true deliverance make between the Commonwealth and the defendant, whom you shall have in charge."
          In no case except a capital case is the oath framed in that way. "Whom you shall have in charge." And Lizzie Andrew Borden, from the day when we opened this trial until this hour, has been in your charge, gentlemen. That is the oath you took. And not alone with you, Mr. Foreman, or any one of you, but with each and all of you. You have her in charge. Now has come the time when not alone her lawyers are to speak for her, not alone the judges are to watch for her protection, not alone is the learned attorney of the Commonwealth to ask no more than he ought to have, but the twelve men who sit here to try this question take the woman in their charge, and the Commonwealth says, "We intrust her to you." Now that is your duty. She is not a horse, she is not a house, she is not a parcel of land, she is not the property of anybody, but she is a free, intelligent, thinking, innocent woman, in your charge.
          I noticed one day, as we were proceeding with this trial, a little scene that struck me forcibly. It was one morning as the court was about to open, when you were coming into your seats and standing there, and the judges were passing to the bench to take their positions, and the defendant was asked to pass around from the place where she now sits in order that she might come in so as to be near her counsel, and right at that moment of transition she stood here waiting, between the Court and the jury; and waited, in her quietness and calmness, until it was time for her properly to come forward. It flashed through my mind in a minute: There she stands, protected, watched over, kept in charge by the judges of this court and by the jury who have her in charge.
          If the little sparrow does not fall unnoticed to the ground, indeed, in God's great providence, this woman has not been alone in this court room, but ever shielded by His providence from above, and by the sympathy and watch(ful) care of those who have her to look after.
          You are trying a capital case, a case that involves her human life, a verdict in which against her calls for the imposition of but one penalty, and that is that she shall walk to her death.
          You are then to say, I will critically consider this question, and I will make no mistake, because if I do, no power on earth or in Heaven can right the wrong. You come here without prejudice or bias, I take it. You said you did. I believed you. I believe you now. You said that though you might have read about this transaction, you might have formed an opinion, might have expressed an opinion, as I think some of you with perfect honesty said, because in this intelligent age people do think and read and talk, and it is all right they should, but when a man is big enough to walk up and say in answer to the questions the Chief Justice put to him, I have read and thought and judged about it and I stand up here now and before my God and my people say I will find a true verdict on the evidence under the law,---that is a man we all want to see in the jury box. I would rather see him there than to have one of those miserable pieces of putty on whom the last man who stuck his finger into him can make an impression.
          You will need at the outset, gentlemen, to dismiss from you minds entirely---entirely---entirely---everything that the press ever said about this case, anything that your neighbors have ever said about it, anything that you have ever heard about it except in this Court room at this time. Every rumor that has run about, every idle tale or every true tale that has been told, you must banish from your minds absolutely and forever. Why, gentlemen, if we were to try the case on the street, we need not have spent these days and you would have been enjoying your entire freedom like the rest of us: you would not have been prisoners yourselves. But we are not trying the case this way. And so carefully, I believe, does the Court guard it, that you are shut off from reading the newspapers, from having communications, from indulging in conversations about the case during the progress of the trial. What use in taking these precautions if you are all coming in with your heads brimful of what you have heard before and will not give that up? Now every man of you is man enough to say, when you go to the jury room to deliberate on this thing and somebody presents an idea, "Well, that is not in this case." You have no right to consider any such thing. You have no more right to do it than you have to take a knife and cut this woman's throat---I mean under your duties as prescribed by the law.
Then you come here patiently day after day, and you will sit here again and again until this case is concluded, and then proceed with your deliberations with that calmness and fidelity that is guaranteed in the expression of your countenances, for:
          "When the life of man is in debate
          No time can be long, no care too great."
          Hear all, weigh all with caution.
          Now, gentlemen, it is not your business to unravel the mystery. You are not here to find out the solution of that problem. You are here not to find out who committed the murders. You are not here to pursue something else. You are simply and solely here to say, Is this woman defendant guilty? That is all, and though the real criminal shall never be found, better a million times that than that you find a verdict against this woman on insufficient evidence and against your human experience and contrary to the law, so that an unhealthy appetite may be satiated, and blood given that belongs to the owner of it beyond anybody's taking. Not, who did it? Not, how could it have been done, but, did she do it? That is all. And you have reflected I want to say, or it is not proven against her, because it is held in the law, and ought to be, you have done your whole duty, although you sit here as the Commonwealth, including the Court and the District Attorney, if you have not been able yet to bring that evidence with a certainty and a reasonable construction so that you as decent men can go to your homes and sit down and say, "We have done our whole duty. We have brought in a verdict against her." although perhaps within a week we wish we had not, when we think of it.
          Nor must you think for a moment that this defendant is set to the business of finding out who did it. If she cannot find out and tell you who perpetrated these acts, somebody says, "Go, hang her." She is not a detective, and the Commonwealth has put her in a place for the last ten months so she could not be very vigilant or active if she had all the ability in the world. She has been in the jail of this county; she has been under constant control of the police from the very time, from Thursday, August 4th, as you know from all these facts, and do not ask her to do things that are impossible. Pray not load upon her the responsibility of setting her to go when she cannot go or do when she cannot do, or else hold her to account for it with the severest penalty known in the law.
          The Commonwealth does not want any victim either. In the old days they had sacrifices of lambs and goats, and even human beings were offered in expiation and in sacrifice. But we have got all over that. We do not even burn witches now in Massachusetts. The Commonwealth wants no victim; and so, gentlemen, I have attempted in this way to array before you what I consider in my own manner, the duties that lie upon you, and the limitations under which you act.
          And what is the call upon you? Why simply to be true to yourselves.
"          To thine own self be true,
          And it must follow, as the night the day,
          Thou canst not then be false to any man."
          Now, there always goes with any person the presumption of innocence of crime. I stand here at this moment addressing you, and I am clad all over with that presumption of innocence of every crime; so is each one of you. That is your bulwark; that is born with you, nay, rather it is given to you out of the great consent of all the people, and you say, "Guilty? Why, I think not. I am innocent," and the Court will tell you that that started with this prisoner on the 4th day of August and has been with her by night and by day. When you had her in charge that presumption of innocence has been in her favor, and it never leaves her until by the verdict of a jury that presumption is overcome and she is declared guilty. It is true that people who heretofore been innocent commit crime, and so the law says, "We will not demand the unreasonable and impossible thing, but you the defendant, shall have that presumption go with you until it is entirely overturned, and it says that you are of a criminal heart and criminal act."
          Now, bear that in mind, if it comes to any question in the discussion of the evidence of a doubtful consideration, then that presumption is all the time in the scale. The beam of the scale does not stand level to start with. We say the scales of justice hang even, but there is always with a defendant the presumption of innocence that tips the scale in her favor, and the Commonwealth must begin and load in on the other side facts until they shall overcome that presumption, nay, more, and over-balance the facts that the defendant shall produce.
          I shall not attempt to talk to you at length about the different kinds of evidence, direct evidence and circumstantial evidence. The learned Court will explain those different features to you, and the lines have been drawn so clearly in the many cases that have been tried that is wholly unnecessary for me to take your time and your patience. You know, or will know when his Honor has uttered to you the charge in the best way, what we mean by direct evidence and what we mean by circumstantial evidence. Direct evidence, testimony from actual observation and actual knowledge, is what we very frequently rely upon, but that is not always certain, I am bound to say to you, not always sure, because the man who gives the direct evidence may be a miserable liar, and you would not believe him under oath, unless you kept your hand on him. Now, that is direct evidence, and then sometimes facts are found out by circumstances. You reason from the hearing a noise or from seeing a person in a given place. You see a man going in somewhere, and you say, "He has gone in there for that particular business, because they do that business there," whether it is banking or insurance or grocery. Well, you may be right or you may be wrong.
          You have given different circumstances to try to draw out a reasonable conclusion, but I am not going to enlarge upon that, because I deem it unnecessary, and because I have other things in my mind which are more important. But if you try to convict anybody, or if you are asked to convict anybody, because you do not start in here to try to convict anybody,---other people may, but you do not---if you are asked to convict upon any evidence, whether that is direct or circumstantial, you will, of course, bring to it your clearest perception and your strictest honesty, and look to see whether it fits in, whether it is all right, and whether it has not run against this corner and that corner and knocked itself to pieces; whether the circumstances are all in, and whether something has not been left out; whether the chain is not broken with which it is sought to bind the defendant. Look it over, search it through and through, as I will in the argument as I proceed, and discover whether there is any claim that is insufficiently proved. Then too the Court will tell you that by whichever method you proceed as to this defendant, the proof must come up in your minds to a moral certainty, not a mathematical certainty, but a moral certainty. It must be beyond a reasonable doubt.

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