Why didn't Lizzie and Emma move out?

[Harry]

This is from Wigmore's Treatise on the case (p839-840) and was pertaining to the admission of Lizzie's Inquest testimony at her trial:

"... That the accusation of crime was made against the defendant on Saturday, August 6, 1892, by the mayor and city marshal; that the defendant was kept under police surveillance from August 5 up to and during the inquest; that her testimony at the inquest began August 9 and continued through August 10 and 11, the subpoena to testify being duly served, that complaint was made and a warrant for her arrest issued August 8, but not served upon or communicated to her; that in due exercise of power given to the Court by the Public Statutes her counsel was not allowed to be present at the inquest on her behalf, and that she was not cautioned by the court as to her right not to criminate herself, but that her counsel was allowed to confer with her and did confer with her before she went upon the stand; and that at the conclusion of her testimony on August 11, she was detained and then arrested on a new warrant, the former one never being used. ..."

[Yooper]

Note there is a large difference between a "criminal defendant" and a suspect. I find it difficult to visualize she who said “no, I think I can
tell you all I know now, just as well as at any other time" to Harrington shortly after the murders as the victim of any questioner.

[Yooper]

If I remember correctly, Lizzie was only told that she was suspected of the murders, not accused of the crime by the mayor and city marshal. It was in answer to Lizzie's question about whether anyone in the Borden house was suspected. She was technically no more under surveillance than Emma, or Alice Russell, or John Morse before the inquest. If she had been accused of the crime, she would have been arrested and taken into custody, but there was no warrant until the 8th.

[DJ]

Thanks for the clarification and details, Harry!

Now, what is advisement of the right against "crimination"? Is that being advised of one's right to "plead the Fifth"?

So, it is on that technicality that her Inquest testimony was inadmissible, that omission?

[Yooper]

That's exactly what the right against self-incrimination is, the Fifth Amendment right. I don't know if it applies to an inquest, apparently the court had the right to exclude counsel, so the ordinary trial rules didn't necessarily apply. No one at that point had been formally charged with the murders. Part of the reasoning excluding the inquest testimony was that Lizzie was essentially under house arrest due to police surveillance on 92 Second Street. It had apparently been successfully argued that because there was an unserved warrant, Lizzie had been told she was a suspect, and the police had been watching the house, that they found Lizzie to have effectively been put under arrest and jailed. This had to be argued before they could contend that Lizzie's rights had been violated as to self-incrimination. It was necessary that she be formally charged and taken into custody for any wrongdoing to apply on the part of the authorities, and the defense managed to finagle that out of the circumstances. That is why Lizzie's inquest testimony was deemed inadmissible.

[Yooper]

The authorities made the mistake of writing the warrant for Lizzie's arrest on the 8th, the fact that it went unserved may or may not be a problem, but it was evidence that they were planning to formally charge Lizzie with the crimes. The fact that Lizzie had been told she was a suspect is of no importance, except it demonstrated the ineptness of the mayor and city marshal. The police are under no obligation to inform anyone that they are suspected of a crime, it would be incredibly stupid of them to do so. They have every right to monitor the movements of anyone suspected of a crime. I doubt that it could successfully be argued that Lizzie was explicitly under surveillance, the house was being watched for the safety of the occupants first and foremost. The police would have been present even if Lizzie wasn't a suspect. The best they could do was to argue that surveillance was possible as an adjunct to safety concerns.

I don't know why they would write a warrant on the 8th and not serve it, unless they needed it in the event Lizzie tried to leave town. There may have been other warrants sworn out against Morse and Bridget to cover the same eventuality, Lizzie wasn't necessarily the only suspect at that point, but she may have been the best.

I would really like to know why Lizzie and Bridget's inquest testimonies disappeared. If they were "lost" due to the inadmissibility of Lizzie's testimony, maybe the testimony was thought to be possible evidence of wrongdoing on the part of the legal system. If so, it implies that Bridget's testimony was obtained under the same false pretense as Lizzie's and they considered Bridget a suspect, too. Doesn't a law firm have those documents squirreled away somewhere? That may be what they're trying to protect by not releasing them, the legal system.

[shakiboo]

What possible difference could it make now? Every one concerned is gone, and even the relatives that are left can't be harmed by their being released, so why won't they? Unless of course they have really lost them, and just don't want to admit they have no idea where they're at.....

[Yooper]

I remember reading something about the testimony being in the hands of a law firm Jennings or one of the defense attorneys was a part of at one time. The only reason I can come up with is that something is being protected, either the legal system for wrongdoing, or possibly the outcome of the Borden trial if there was no wrongdoing in obtaining the testimony, but the court was wrong to exclude the testimony.

[Harry]

It's the law firm of Robinson, Donovan, Madden & Barry, the law firm that succeeded Governor Robinson's firm, in Springfield, MA that has the files.

Several forum members in the past, in jest, said they would be willing to don black clothes and hoods and have a midnight crack at those files.

Lizzie was said to have hand written a statement to Robinson before her trial. What would you give to read that? And Bridget's inquest testimony and who knows what else. My mouth waters.

Hopefully, I can attach this 1998 article. If it doesn't work I'll paste the entire thing in a new thread. That URL no longer works.

Needless to say the Court ruled against their release.

[Fargo]

I think it was decided that Lawyer - Client confidentiality continues after death. I have to agree that, this is the right decision, unless the client allowed for information to be released after they passed away.

Although in this case I wouldn't mind an exception to the rule.

It kind of makes you wonder if Lizzie got any of the files after the trial was over for fear that they might fall into the wrong hands. Obviously if she got any of them she never got all of them.

[Yooper]

Thanks for the article, Harry! It might be that the people of Massachusetts have an interest in the inquest transcripts if they are the only copy left. I don't know if the law firm might be compelled to turn at least that over to be copied. The correspondence would certainly be interesting, possibly more so than the transcripts. I'm afraid that curiosity would not be sufficient to get the material released, it would take a good deal more than that, unfortunately. It would take something like an allegation of wrongdoing on Robinson's part during the proceedings. Neither he nor Judge Dewey recused themselves from the case, and Dewey was appointed to his post as judge by Robinson while Robinson was Governor. Conflict of interest? Especially given Dewey's charge to the jury?

[Harry]

There was also this Boston Globe article of Oct. 17, 1999 after the Court's decision. I have pulled out only the interesting parts as it mainly retells the whole Borden saga which we have all read at least 40 or 41 times.

"Jeff McCormick has the sort of inside knowledge that other amateur historians might commit ax murder for.
That's his dilemma. Because McCormick also happens to be a lawyer and president of the state's largest bar association, he can never, ever, share what he knows about one of the most infamous crimes in New England's history.
The Springfield lawyer is one of the few living people to have read the entire defense case files of Lizzie Andrew Borden, she of the "forty whacks" rhyme and the 19th century's "Trial of the Century," in which she was acquitted of hacking her father and stepmother to death with a hatchet. McCormick's firm, Robinson Donovan Madden & Barry, was founded by a former Massachusetts governor and defense lawyer, George D. Robinson, and still has the 106-year-old defense papers in its files.
But courts have decided that the wall of privacy that protects a person's business with a lawyer survives the person's death. So the secrets about Lizzie that are hidden in the defense files cannot be revealed.
.........

She hired Robinson, who won her acquittal after a two-week trial. Exactly what she told her lawyer remains one of the biggest mysteries of all.
"When legitimate historians ask about the papers, I try to graciously tell them `No.' I am sure there is frustration, knowing there are materials out there that can't be reviewed," McCormick said.
McCormick understands the frustration because he has felt it himself. A former teacher, McCormick describes himself as "a person who loves history and loves research." Both his children receive antiques as holiday gifts, and have won high honors in the National History Day competition.
When the 52-year-old Longmeadow resident was a young associate in the late 1970s, and as the firm prepared to move to new offices, the senior partners thought they were sticking the new guy with one of the worst jobs -- cleaning out the grime-filled old file room. Far from resenting the work, McCormick found himself engrossed in it, poring over hundreds of pages of Robinson's notes on Lizzie, old photos and exhibits.
So did she or didn't she?
"I have my thoughts on it," is as far as McCormick will go.
The legal standard keeping the Borden papers from public display was reaffirmed when prosecutors tried to access the legal secrets of White House counsel Vincent Foster and the Boston spouse-murderer Charles Stuart after each committed suicide.
They were rebuffed, respectively, by US Supreme Court and state Supreme Judicial Court rulings in the 1990s. Both courts affirmed that clients' secrets are to be kept secret even in death.
The privilege is founded on the idea that a client must be forthcoming if his lawyer is to be effective. But it is not absolute, said a Harvard Law School professor, Andrew L. Kaufman. It does not cover clients who say they intend to lie in court or who say they are about to cause bodily harm to a third party, he said.
But there is "nothing in the rules" about the privilege taking a back seat to the needs of history, Kaufman said.
In the context of Lizzie's case, it means that the legions of Borden buffs will probably never get to see the defense papers, since she died a spinster and has no known direct heirs, McCormick said.
If the Robinson firm someday disbands, the records may have to be destroyed.
That would be a tragedy, said Michael Martins, curator of the Fall River Historical Society, which has the largest collection of papers and artifacts relating to the Borden murder.
In 1994, the society published a book containing the recently donated papers of the prosecutor in the case, Hosea Knowlton.
The Robinson papers, Martins said, would have made the perfect counterpoint to Knowlton's, but the society -- unlike many Borden enthusiasts who have tried to have the Robinson papers released -- is resigned to never seeing them.
"Lizzie Borden hired George Robinson to head her defense and paid the unprecedented sum of $25,000," Martins said. "If that law firm wants to keep her defense a secret, since it was bought and paid for, we understand."
It may be sour grapes, but Martins said he likes to think "that if there was a confession, Robinson was smart enough to destroy the damn thing."
Not everyone wants to see the Robinson papers unsealed, even in Fall River, where the 107-year-old crime is very much a thriving cottage industry. ............"

Bold emphasizing is mine.

[Yooper]

Since the case was never resolved, does Massachusetts still consider the Borden murders an open case?

[Yooper]

Laws against double jeopardy prevented Lizzie from being retried for the murders, but she could have been tried as an accessory to the murders. That may have been the original reason for locking up the files while Lizzie was still alive. I wonder if that's still the case, if there's something in them which would prove Lizzie was at least an accessory. Attorney/client privilege may allow them to seal the files, but it may not be the real reason for it.

[Fargo]

The big difference between the more modern case of Foster and Stuart and the Lizzie case is the amount of time that has passed.
There is no one still living to be directly affected by the Borden files.

It would be nice if they had a limit of time of confidentiality, say 100 years after the trial.

I still kind of think if there was anything incriminating that Lizzie would have gotten rid of it if she could have.

I wonder if any of Lizzie's relatives could claim the files and then release them? There are no direct descendants but there are cousins that are the closest relatives.

[Harry]

Since the case was never resolved, does Massachusetts still consider the Borden murders an open case?

I would assume so. There is no statute of limitations in murder cases. But even if the case suddenly came solvable just how could they prosecute - everyone is dead.

[Yooper]

I'm trying to seek an equilibrium of sorts, retaining the documents seems awfully one-sided. By the same reasoning that there is no way to effectively prosecute the case, which I completely agree with, there is also no reason to disallow scrutiny of the documents because all of the principal parties are dead, and no one can come to any harm as a result. Attorney/client privilege is the means to accomplish retention of the documents, an excuse of sorts. The real question is; why would they want to? There may be more than a simple standard of the profession as the motivator. On the other hand, reputations might be at stake, but that implies wrongdoing of some magnitude. I can understand the principle involved, retaining the private matters of a client, even extending beyond the death of the client according the the recent legal precedent. However, that also implies a reason or a need to do that.

I expect it could be argued that the public at the time was insufficiently motivated to pursue the matter further, which tends to imply they were satisfied with the outcome of the trial, but why then was Lizzie ostracized? No one was actively pursued as the perpetrator by the police after the trial and the police didn't seem to be taken to task by the public to find the murderer. If the public believed there was still a homicidal maniac on the loose, they had an interest in having that person brought to justice. What I get out of all that is the public took the attitude of "shut up and live with it, at least we didn't have to execute a woman". Maybe if they were content with that at the time, it ought to be respected. However, history doesn't seem content with the outcome, hence, this forum. I imagine only close scrutiny of all available documentation would elevate the case from folklore to history.

[shakiboo]

Well, it's too bad, it'd be interesting to read! But I doubt Lizzie would even admit to her lawyer that she was guilty. I know I wouldn't, not ever, to anyone!!! You'd think some one who had seen those paper's over the years would have loose lips!

[snokkums]

Since the case was never resolved, does Massachusetts still consider the Borden murders an open case?

I would assume so. There is no statute of limitations in murder cases. But even if the case suddenly came solvable just how could they prosecute - everyone is dead.

Yes, that would be kind of hard to prosecute someone who is dead, but it would great to actually come with some one who did it. But even that would be hard because as you said Harry, everyone is dead. There would really be no way of finding out one way or the other. The only evidence and clues that we have is what they came up with and found back in 1892. There is really nothing left of 1892. Except of course, the house, it's a Bed and Breakfast.

[Yooper]

I wonder how much of the trial outcome was due to marginal judgments on the part of the trial court? The elimination of Bence's testimony when it clearly demonstrated predisposition to kill is one example. It took place the day before the murders, hardly remote in time. There was no innocent reason to purchase ten cents worth of prussic acid. If the intent was to fumigate a sealskin cape and the prussic acid purchase was denied, why didn't Lizzie ask for another alternative recommendation to kill moths which could be purchased legally? Another example is the exclusion of Lizzie's inquest testimony. This enabled Lizzie to testify when a refusal to testify would have incriminated her, then have the testimony squelched when its inclusion would have incriminated her. It should have been either one way or the other, not both. Why was Jennings not called on the carpet when he attempted to get Hannah Reagan to sign a formal recantation as the source for the newspaper articles about the "you have given me away" story? Why would a newspaper story warrant a signed statement? There was a great deal of misreporting taking place and this was ultimately between Hannah Reagan and the newspapers if it wasn't true. Reagan never signed the paper and she testified to the story as true in court. The following is awfully puzzling if the story was untrue, Hannah Reagan, Trial, p.1232:

Q. Just say what he said to you when he brought the paper?
A. The Court was going on in the afternoon and Mr. Buck came in and said, "Mrs.
Reagan, there is a report going round," he says, "that there has been trouble between Miss
Emma Borden and her sister." I said, "where did you hear it?" He says, "it has come from
the papers." I said, "you can't believe all you read in the paper." He went away and came
back again and called me out of my room on to the landing and all the reporters were
standing there and he turned round and he says, "Mrs. Reagan, I want you to sign this
paper." Said I, "for what, sir?" He says, "if you will sign this paper it will make
everything all right between Miss Lizzie Borden and her sister." I said, "will you give me
that paper and I will take it to Marshal Hilliard?" He says, "no, I can't give it to you, but I
will go down stairs with you," and I went down stairs with him.

This was Moody questioning Hannah Reagan about Reverend Buck asking her to sign the paper Jennings had drawn up. If the story was untrue, why would it cause any trouble between Lizzie and Emma? Wouldn't it rather tend to bring them together? Why would signing it bring Lizzie and Emma together? This makes absolutely no sense, it was a blatant attempt at witness tampering by the defense, and Jennings should have been accountable for it. Marshal Hilliard quite correctly advised Reagan to not sign the paper and tell her story in court!