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1. "Lizzie and bail"
Posted by Harry on Mar-29th-02 at 12:19 PM

Lizzie was arrested on Aug. 11, 1892 and held without bail until the trial in June 1893. I was always under the impression bail was not available for capital crimes. The Constitution does not mention bail except for the fact that it shall not be excessive. The rules/laws are left to the individual states to determine.

I stumbled across a website which discusses Massachusetts bail laws and extracted the following section (page 7):

"The Revised Statutes of 1836 embody the basic structure of our present statutory scheme. See §§ 17 and 22 of c. 135, now §§ 42 and 57 of G.L. c. 276. Section 35 of c. 111 retained the power of the Supreme Judicial Court to admit to bail a prisoner "for whatever cause he may be committed or restrained." (See now G.L. c. 248, § 25). We have found nothing in the Revised Statutes which otherwise purported to define bailable offenses.

Coming down to the General Statutes of 1860, we find that § 54 of c. 170 provides that offences of treason, rape, and arson shall not be bailable. Rape and arson were specifically made bailable by St. 1871, c. 61, § 1, and this was continued in the Public Statutes of 1882 (Pub. Sts. c. 212, § 72), which provided only that treason was to be nonbailable. This last provision reappeared in R.L. c. 206, § 1 (1902), and now is embodied in G.L. c. 264, § 1. Thus, as far as statutory law is concerned, there seems to be no basis for holding that murder is a nonbailable offence."

I read elsewhere that bail was at the discretion of the judge and was not a right. Being a further danger to the community, the risk of flight and the violence of the crime charged were among the major factors. I don't think they thought of Lizzie as being a further danger or at risk to flee but the crimes themselves precluded bail.


(Message last edited Mar-29th-02  12:23 PM.)

Harry,
I guess I've always thought that Lizzie was "comfortable" in prison.  She went on walks, I recall, with her pastor(s), got visitors, decent food, read books, and probably could sleep as long as she wanted to in the morning.  Where more would she desire?  What would she rather do?
On the other hand, what prisoner would refuse bail if it were offered to them?
Joe

Joe, I look at it this way: If I was guilty, I would not want to be there and if I was not guilty I definitely would not want to be there.

I think she adapted since she had no choice. Much like basic training in the military.

Joe, an addition to my previous message. You may want to check David Kent's "Forty Whacks" pages 69-70 for a different view of how Lizzie said her time in Taunton was.

If you don't have it I'll be glad to e-mail those pages to you.

Harry: though I am not a member of the bar, the Massachusetts bar, I did once belong to O'Leary's bar but that is an entirely different story, my brother is a detective with our City Police Dept. and as he tells me, "bail is at the discretion of the magistrate or judge who hears the arraignment charges", further, "if in the opinion of the presiding justice he/she deems the accused to be a continued or greater risk to society if released or if there is a history of flight or the potential thereof, bail may not be granted". 

My brother continued to say that he and his colleagues have through the D.A.'s office or police prosecutor argued for higher than usual bail if the defendants history is known to them.  The presiding jurist tends to listen to the govenments agents. 

Of course many of you may or may not have heard of the recent episodes involving a Judge appointed to the New Bedford Superior Court who was releasing rapists and woman beaters because he felt they deserved a change.  After four weeks of severe public pressure he was reassigned to hear non-crimnal cases.  What a system.

In Lizzie's case I believe bail was denied because the government knew they had a weak case and rather than let her go home where she would have not been a threat to anyone it was the only punishment she would ever receive.  All's well that ends well, I suppose...bc

BC

BC:
That is so exactly what I always thought!
And I had to content myself with Lizzie's *being in jail for 10 months* as the only punishment she would ever receive at the hands of the State...

I was looking at the bail possibility strictly from a legal angle, whether it even was a possibility. The difficulty, without doing a massive research job, is to find the law in effect in 1892/1893. The article at least has the law in effect in 1882. Only the crime of treason was a non-bailable offense so unless there was a change in between, which I doubt, bail could have been requested.

Since the charge against her was a multiple homicide it was probably very unlikely it would have been granted. I can find no reference anywhere where it even was contemplated so it is a moot point.

Thanks for the info from your brother Bob. That ties in exactly with the information I had read elsewhere.

Thats an interesting point about her jailing being the only punishment, at least punishment from a  legal perspective.


(Message last edited Mar-29th-02  11:47 PM.)

I have little doubt that the written statues in effect in 1882 were also in effect a decade later.  Many laws in the many states will stay on the books until superceded by a new version or in many cases completely repealed and replaced with and entirely new perspective. 

Being a municipal employee for as many years I have had an onging interest in the Insurance Laws of the Commonwealth, particulary Chapter 32B.  As the various sections are amended or repealed notation is made in the next issued "Annotated" copy. 

I would purdently believe that at the time of "arrest and incarcation" the legal jargon applicable to her bail issue was that which you have already found.  Again I submit that whereas all parties involved know well that her case was a flat tire from the outset she had to "punished" by being sent to the Taunton jail, which many preceive as having been little more that a "down-scaled" hotel stay. (fresh air walks, meals on wheels, mornings in, etc)

Yet another humble theorum from yours truly...bc

BC

Judge Robert Sullivan,"Goodbye Lizzie Borden" page 48:

"Since murder in Massachusetts was not a bailable offense in 1892, after her arraignment Lizzie was led off to Taunton Jail."

As usual in all things Lizzie there are two or more answers to every question.

The article I cited was from The Massachusetts Police Chiefs Assoc. The URL for that site:  http://www.masschiefs.org/ARTICLES/1994/AUG-94.PDF

It is quite an interesting article and covers in part the history of bail.

William, It would be interesting to see what Wigmore has to say regarding bail.

Thanks to all who supplied info.

(Message last edited Mar-30th-02  11:03 AM.)

Correctomundo Sir William, in yet another series of dialogue with my bio-brother the "City Detective" he refered me to Chapter 276 Section 20D.Bail...of the General Laws of Massachusetts. 

Which states in part that, "Unless the offence (sic) with which a person arrested is charged is shown to be an offence (sic) punishable by death or life imprisonment under the laws of the state in which it was committed, such court or justice may admit such person to bail by or undertaking..."

So, in a nutshell the answer has been all along "no bail for any crime carrying death or life imprisonment" as final punishment.  The Detective believes that this Chapter and Section have been "on the books" since the Chartering of the Commonwealth.

Further evidence of this can be found in the spelling of the word "defense" or as I have indicated in its old English or Victorian form, "defence", spelled with a "c" verus a the modern "s".

As I looked at other sections of the M.G.L., I discovered that newer sections do in fact spell the word "defense" so I conclude that Chapter 276, Section 20D has been around for a long, long time.

Further as Sir William points out from the writing of the late Robert Sullivan, former Massachusetts Justice, murder in 1892 was not a bailable offence. Nor is it to this day.

For further investigation of Massachusetts General Laws (M.G.L.) see the following url:

http://www.state.ma.us/legis/laws/mgl


BC

Not to belabor the point, for it isn't that all important to me, but I checked another book, Kent's "Forty Whacks". Apparently Jennings tried to secure bail. This is from page 75:

"Lizzie was returned at once to the Taunton jail, and Jennings renewed his plea to Pillsbury that she be allowed to furnish bail; that there was no threat she might flee the country. Pillsbury dismissed the request and wrote Knowlton:  "Jennings spent the afternoon with me Friday on the question of bail, but I think I have quieted him." 

To the president of the Women's Christian Temperance Union, he sent, off a waspish response to her similar plea for bail: 

"I have received your request to have Lizzie A. Borden admitted to bail with full appreciation of your feelings and of all the suggestions which you make in support of the request, all of which, however, with many other circumstances, have already been carefully considered. I cannot properly make any further reply than to ask that you give the prosecuting officers credit for some knowledge of the circumstances of the case, and of their own duty; and that you will extend to them the consideration which is due to public servants who are trying faithfully and conscientiously to discharge their duty without fear or favor."

As the months ground on and no date was set for Lizzie's trial, Jennings repeatedly wrote Pillsbury asking that it be done. The best he received was a curt "I am not at present able to give you any information upon the subject."

Rather odd that the Attorney General of the state doesn't know that bail is not even allowable.

This also, a paragraph of Knowltons letter to Pillsbury:

"I confess, however, I cannot see my way clear to any disposition of the case other than a trial. Should it result in disagreement of the jury there would be no difficulty then in disposing of the case by admitting the defendant to bail, but a verdict either way would render such a course unnecessary."


(Message last edited Mar-30th-02  1:16 PM.)

In the short and long run of things I stick to my theory that Lizzie was kept in Taunton for those ten months as her "only punishment" and the principals of the case ie: Knowlton, Jennings, Pillsbury and such all know the score before the game began.

Given the era (Victorian), given her social position (Daddy on every other bank board), given her good Christian connections (Church, Hospital, etc), given the pre-trial publicity (more factual reporting from outside Fall River), given the mean age of the jury (all old enough to be her Father)---given all the givens I think she was destined to be the heroine/martyr of this case.



BC

Harry, what are the dates of those letters?
Is it possible That *the jury* he refers to is THE GRAND JURY?
If she was found "probably guilty, in the Prelim., and bound over for the Grand Jury, maybe AT THAT pOINT she could have been bailed, BEFORE the Formal Indictment of the Grand Jury, at which point she is under the law, no longer bailable?

Kat, The grand jury returned the 3 indictments on Dec 1, 1892.

It was in a letter of congratulations for the indictments that Pillsbury wrote Knowlton. The letter to the W.C.T.U. is somewhere around the same time. Lizzie had already been confined for over 3-1/2 months.

Knowltons letter to Pillsbury is dated April 24, 1893. She had then been confined 8 months. 

Since Lizzie was indicted, she was "on remand"; this is not convicted. As presumed innocent, she would be allowed privileges not given to convicts (send out for food, etc.)

Yes, money always talks, even in prison (they say). You could look up that story and movie about "Marie" in Tennessee.