Lawyer Tricks?

[irina]

Reading through trial testimony of Marshall Hilliard something jumped out at me about Lizzie's dress, the one that was turned over to authorities as the one she wore when the murders took place~~the one we all snicker about as not being the one she actually wore. What caught my eye can be illustrated with a very recent case which I covered as a journalist and I'll get to that in a bit.

It was established that Hilliard went to 92 Second on SATURDAY afternoon, two days after the crime.

Q: You referred to a dress which you took away. Will you state all that occurred with reference to that, excluding except with Mr. Jennings or with Miss Lizzie Borden?
A: Yes, sir. I asked Mr. Jennings where the dress was she wore that day... ...he went and when he came back he brought a dress.

Questioning further brings out that Hilliard rolled up the "dress, skirt and waste", plus a white underskirt, then rolled that roll in a green striped "lounge cover" from the dining room. This was then wrapped in paper and tied with string. For some reason it was given back to Jennings who eventually gave it back to Hilliard who turned it over to Dr. Dolan. With a chain of evidence like that, NO WONDER modern re-trials of Lizzie keep coming up not guilty, but that's not the point I want to offer.

Today we think of warrants and chain of evidence which were apparently unknown in Lizzie's day, however I have an idea evidence may only be as good as the warrant. I wonder specifically if the warrant is written sloppy does the suspect OR HIS ATTORNEY have any obligation to faithfully aid the prosecution or authorities? I think not, especially considering the constitutional right against self incrimination. Did Jennings have any duty to produce THE dress Lizzie wore on that day? Could he produce any dress that MAY have been worn by Lizzie on that day? Even if he believed Lizzie innocent, might he legally and in good conscience have turned over a dress that was safely in the closet during the murders, that not even one drop of transferred blood from a wall or the floor, be found on the actual dress Lizzie wore? Did this sort of thinking lead to her burning a dress the next day? Could Jennings have suggested she get rid of that dress or made some comment about any blood on Thursday's dress causing problems? I would certainly be concerned for my client, concerning forensic inability in those days.

The modern case I mentioned had to do with a shooting though NOT A MURDER. I detest the words "gun crime" for political reasons, but this was indeed a crime committed with a gun. I and a number of other people believed we heard the crime committed but nobody wrote down the time or date and the crime was unknown for about six weeks. No one was available to contradict scanty evidence turned over to authorities.

The criminal lawyered up sometime in those six weeks. When authorities began investigating, in my opinion because the guilty party was a prominent citizen, a weak search warrant was written which in my opinion resembled Hilliard asking Jennings for Lizzie's dress and not caring what was turned over. During a legal proceeding which I covered, it sounded to me that the warrant simply asked the suspect if he had any gun on his premises which might have been used to commit said crime. Suspect then turned over an old gun he probably wanted to get rid of anyway and said it MIGHT have been used in the crime, he couldn't remember. This was accepted because supposedly no bullets were found and no casings were found. Suspect said he didn't think he had any ammunition which matched the gun and this was accepted. In court it was said the suspect had "policed his brass", meaning he had picked up & gotten rid of empties.

The result of the shooting could not have been done with the single shot gun turned over to authorities. Those of us who believe we heard the gunfire and who have knowledge of firearms, believe a semi-automatic rifle was used. As one person put it, "that guy went berzerk with a semi-auto".

My point is, in the modern case there was an attorney who has a good track record for winning cases and does not to my knowledge have a history of impropriety. In court, even though the result of the shooting was known to be horrific and not able to be done with the single shot rifle turned over, there was no argument over this. The case did not go to trial. The attorney dragged it out for months till he got the plea bargain he wanted and the prominent citizen got off in my opinion.

We all pretty much know (even us Lizzie didn't do it folks) that the dress presented in court could not have been the dress Lizzie wore that day. Did Jennings intentially turn over the wrong dress just like the suspect in my tale turned over the wrong gun when presented with a weak search warrant? Did Jennings have any burden to make sure he presented the right dress? I doubt it. Lizzie certainly had no burden to tell the judge, "Your Honour, that isn't the right dress." When asked for the dress did Lizzie tell Emma or another lady present, it's the blue one in the clothes press and did they give the wrong one to Jennings? I have a feeling Jennings felt the best defense of his client was to turn over a dress with NO blood spots thereon, not even on the hem that might have dragged through gore on the sitting room floor as Lizzie went upstairs to her room. In Lizzie"s case there was NO warrant. What requirement was upon Jennings?

None of this means Lizzie was innocent but is there a thought SHE deliberately turned over the wrong dress to hide guilt? Uh...yes, especially when she burned a dress the next day. Could it have been her attorney defending her to the best of his ability who, when a dress was requested without a specific warrant, turned over a spotless red herring that could neither be proved nor disproved? I think it is likely and probably legal. Could some of the witnesses who floundered in describing what she wore on August 4 have known of the deception? Possibly in my opinion. The modern case I site never went to trial. By the time Lizzie's case went to trial memories were hazy about things like color and pattern of the dress she wore that day.

Is it possible Jennings examined the correct dress before he undertook Lizzie's representation? Did he satisfy himself it didn't have incriminating bloodstains indicative of murder? Did he possibly find a bloody hem as I have previously suggested? Did Jennings then make a conscious decision to turn over a wrong dress knowing how bad evidence would be handled? I think so. None of this need be taken to "prove" Lizzie's innocence because she could have taken off her clothes or worn Abby's gossamer as has been suggested. It could however explain some mysteries about the dresses. I'b bet that Jennings DID examine the correct dress about as soon as Emma called him in. Perhaps that is a reason why he tenaciously defended Lizzie, either because he believed her innocent or because the evidence was even less than we think it was and he knew more than the prosecution ever would.

[Aamartin]

A lawyer friend of mine told me once to never say anything to a cop-- even if just a speeding ticket-- and he tells those he defends of felonies that they don't have to tell him if they are innocent or guilty. Just how they want to plead and if there are any skeletons to come out of the closet at trial.

I don't think he knowingly turned in the wrong dress. Lizzie told him it was the one-- he turned it over. He may never have asked.

[Curryong]

Jennings may never have asked, but if Emma was asked to turn the dress over to the authorities that Lizzie had worn that day she couldn't have done so anyway, as she knew Lizzie had burned it. (Emma knew, in my opinion, exactly what significance the paint-spattered dress held, at the time it was burned.)

It was probably Emma who picked out the dark blue silk anyway, I can't imagine Jennings rifling through ladies' clothing closets. It was remiss of the police not to take the dress for examination after Lizzie had changed into the pink wrapper on the Thursday, but then the police did and didn't do many things that police nowadays would.

Did Jennings have an obligation to assist the State in its case? Absolutely not! And I may say, he didn't! He told Lizzie's friend to refuse to show the police the letter Lizzie had sent joking about bringing a nice sharp axe to the Marion holiday. He was unco-operative about Knowlton's suggestion that Lizzie be examined by doctors for possible mental aberrations, saying he would 'discuss' that with the defence team. In both cases he was within his rights.

Counsels for the defence NEVER ask whether a client is guilty or not guilty. If, as famously happened in a 19th century case in England, the client loses his/her nerve and whispers "I'm guilty!" to him when in court, then they are at perfect liberty to withdraw from the case. It would probably mean aborting that trial and ordering a fresh one, but it could be done. In any case I feel that Jennings believed that Lizzie was not the murderer, so the feelings/suspicions of many defence lawyers that their clients are, in fact, as guilty as sin, wouldn't have occurred.

It would be an interesting thought if Jennings himself had done a search of No. 92 and, by some miracle, a bloodstained hatchet had fallen out of the back of a chair or something. Jennings would undoubtedly have had to hand such a vital piece of evidence over to the authorities, but probably not before a consultation with his client!

[irina]

The dress was turned over on Saturday afternoon. Didn't Lizzie burn the dress on Sunday? Maybe/surely Emma believed the dress that was burned didn't have guilty stains or she would have stood guard & made sure Alice Russel didn't come in. I think it's an interesting thought that Jennings may have done a Perry Mason type trick because he believed his client to be innocent.

[debbiediablo]

An officer of the court, and this includes lawyers, cannot suborn perjury which means they cannot lie to the court or knowingly allow their client to lie under oath including during interrogatory. To do so can result in disbarment. This is why Howard Weitzman withdrew from the OJ case; OJ told him he had committed the crimes and then intended to lie about it to the court. I count a number of lawyers as friends. To the last man and woman, they all understood when Weitzman quit that he knew for fact that OJ had killed Nicole and Ron Goldman.

It's not so much that an attorney will automatically recuse himself if the accused confesses to him/her, but that counsel cannot allow the client to lie while sworn if aware of it. So telling the truth if it's incriminating always limits the defense in strategic ways that make acquittal improbable.

On the other hand, an attorney is charged to zealously represent all clients so long as they don't knowingly present perjured testimony. Needless to say, this can get damn confusing in that the defense needs to know enough about the facts to not be blindsided but not so much as to be in danger of knowingly allowing a client to lie under oath.

Regarding Jennings, he likely provided the dress his client said she wore that morning, so long as she didn't tell him that the real one got burned when she handed over the wrong one. The only reason Jennings might further look into it would be to strengthen Lizzie's case; he was under no obligation to make the State's case for them.

Another variant of this addresses why the defense was justifiably angry when prosecutors didn't turn over results from the skull boiling which showed traces of gilding in Abby's kettle. The U.S. court system (based on English common law except for Louisiana) requires that the defense be privy to claims made by the State and evidence supporting those claims so an adequate defense can be prepared.

[Curryong]

Yes, both sides should have received the information about the gilded pieces found in Abby's skull, and the police should have done a better job looking at nearby rooftops!

I had a feeling that defence counsel were not allowed to knowingly allow their clients to commit perjury. In the case I was referring to the young barrister was terribly shaken by this revelation and went up to the judge sitting on the bench and whispered what had happened. The judge gave him a blast "how dare you tell me that!" and basically told him to get on with doing his job! The client was found guilty anyway!

Irina, are you sure the Bengaline silk was handed over on the Saturday? The only reason I ask is that Saturday was a very busy and sad day for the sisters. The last viewing in the coffins, followed by the funeral, then by the visit from Marshall Hilliard and Mayor Coughlin at their home. (While they were at the funeral the police commenced another search of the house). Idiot Coughlin inferred during that evening meeting that Lizzie was 'a person of interest,' as we would say.

Following the dress burning the next day, Alice went to Detective Hanscolm and told him that she had uttered 'a falsehood' when she told him that all the dresses were in the closet just as they had been on the day of the murder. She was referring of course to the paint-stained dress which had been burned, but if the Bengaline silk had been already handed over, surely Alice would have mentioned that as well?

I know the inquest began on the Monday and I had a feeling that the silk dress, shoes and stockings were handed over on the day of Lizzie's arraignment on the Thursday or shortly before on the Wednesday, but I can't find the reference.

[irina]

Curryong: I'll re-check the testimony. Because I'm cyber-stupid I copy things into a notebook by hand & type them in. Because this is tedious I first took notes on this bit of testimony which was prefaced with Hilliard going to 92 Second, "Saturday afternoon about 3 o'clock". My next written note is, "personal exam of the one dress", followed by the Q & A above. It all flows together as Saturday activity but I will go over it again after awhile.

I still think without a specific warrant the suspect and/or defense is maybe under no obligation to be scrupulous about what they turn over. In the modern case I cited, a single shot rifle could not have done the damage which resulted, nor could that gun have done what the defense stipulated to. The search warrant was explained in court~I have not seen the original~by the deputy who served it, as asking for any gun that MAY have committed the crime. Of course the suspect wasn't sure but thought maybe...here, take this gun and p.s. there doesn't seem to be any ammo around that fits it. They got away with it.

If a gentle suggestion was made to for instance "try" to locate the dress Lizzie wore...? Words mean so much to lawyers. Without a warrant I don't see why any special effort need be put into accuracy two days after the fact. I always assumed the dress was handed over soon after Lizzie changed into the pink wrapper. Never really looked at it close.

[irina]

Pages 1113-1114, Volume II, trial transcrips, located using "Saturday" for a search term...

In questioning it was established that Hilliard went to 92 Second St. on Saturday morning but stayed only about half an hour.

When was the next time Hilliard went to the house? Answer, "Saturday afternoon."

Q: Before or after the funeral services?
A: After the funeral services.

Hilliard "looked into" Mr. and Mrs. Borden's room, also what was said to be Lizzie's room and Emma's room. There were other officers present and they were looking for nany type of weapon or bloody clothing.

Q: Did you personally on that morning make any examination of dresses?
A: No, sir, I did not.
Q: How long were you at the house on Saturday morning?
A: I should say some half hour.
Q: When did you next go, Mr. Hilliard?
A: I went there Saturday afternoon, about three o'clock in the afternoon.

The house was searched top to bottom at that time, partially in the cellar.

Q: Did you make any personal examination of dresses?
A: No, sir, I can't say that I did of dresses, with the exception of one.
Q: The one that you took away?
A: The one that I took away or that was brought away.

Questioning then goes to what I produced above. I see no other way to take it than that on Saturday afternoon, sometime after 3 o'clock, after the funeral service, Hilliard and Jennings procured the dress that was used as an exhibit. Am I correct then to remember that Lizzie burned the dress on Sunday? To me this adds a new dimension I have never seen discussed before.

[Curryong]

Thanks for that, irina. The way Hilliard says it is ambiguous but if we say that he took that dress away on Saturday it would have been because Lizzie always insisted that she wore a dark blue silk dress. There is no way a man would have taken one particular dark blue silk skirt and blouse otherwise.

No-one could remember what she wore on that Thursday morning , of course, but they, and Lizzie, knew it wasn't the Bengaline silk. That makes the burning of the paint-spattered dress on the Sunday even more suspicious. The police were becoming very thorough in their searching and Lizzie knew she would probably be arrested in the next few days. She had hidden that paint-spattered dress somewhere and burnt it immediately. Her stockings had been washed and her shoes cleaned.

[Curryong]

The grave-side ceremonies commenced at 12:20pm on the Saturday after a short service at the house and all the mourners in carriages going in procession to the cemetery. As was customary, the ladies remained in their carriages and only John Morse accompanied the clergy and pall-bearers to the graveside. Even if the whole thing had taken an hour, which it wouldn't, the sisters and Morse would have been back at No 92 by 2pm at the latest.

I suppose, for the sake of decency, there was no funeral supper, which often happened in the 19th century. Refreshments for the mourners, a bit of a chat etc.

[debbiediablo]

Curryong: I'll re-check the testimony. Because I'm cyber-stupid I copy things into a notebook by hand & type them in. Because this is tedious I first took notes on this bit of testimony which was prefaced with Hilliard going to 92 Second, "Saturday afternoon about 3 o'clock". My next written note is, "personal exam of the one dress", followed by the Q & A above. It all flows together as Saturday activity but I will go over it again after awhile.

I still think without a specific warrant the suspect and/or defense is maybe under no obligation to be scrupulous about what they turn over. In the modern case I cited, a single shot rifle could not have done the damage which resulted, nor could that gun have done what the defense stipulated to. The search warrant was explained in court~I have not seen the original~by the deputy who served it, as asking for any gun that MAY have committed the crime. Of course the suspect wasn't sure but thought maybe...here, take this gun and p.s. there doesn't seem to be any ammo around that fits it. They got away with it.

If a gentle suggestion was made to for instance "try" to locate the dress Lizzie wore...? Words mean so much to lawyers. Without a warrant I don't see why any special effort need be put into accuracy two days after the fact. I always assumed the dress was handed over soon after Lizzie changed into the pink wrapper. Never really looked at it close.

The difference between Jennings being asked for the dress Lizzie wore and the suspect being served a warrant for a gun that may have been used in the crime is huge. First, the police serving the warrant shouldn't have relied on the suspect to do their job...they should've searched the house and removed any and all guns that were possible weapons. The reason for the vague wording is so the warrant will cover every potential weapon, otherwise police could remove a .357 and then later realize the weapon was a .38. With a less than specific warrant, they can take both and test them. As for the dress, no one seemed to recall what Lizzie was wearing except maybe Harrington and Lizzie herself. I doubt that Jennings had a clue...he handed over what Lizzie gave him, and she knew damn well the real dress wasn't going to surface because it was reduced to ashes by that time.

[irina]

There are similarities and perhaps similar results in the Lizzie case and the modern one. As you so succinctly say Debbie, the police should have done their jobs, not allow the suspect to turn over whatever he (she) wanted.

In Dr. Dolan's testimony, pp. 884-885, there is a bit more:

Q: Any other clothing besides that did you have anything to do with, doctor?
A: Yes, sir.
Q: What?
A: A dressswaist, a dress skirt and an under white skirt.
Q: And where did you first see them?
A: During the search of the house the Saturday following the tragedy; that would have to be the sixth.
Q: Where were they when you first saw them?
A: Mr. Jennings handed them to me.
Q: Where?
A: At the house in the guest chamber.
Q: Do you recall if the defendant was there or in the vicinity at the time?
A: I think she was definitely in the vicinity; yes, sir.
Q: ...did you also take a lounge cover?
A: I didn't take it myself, I told them to take it with the rest of the clothing.

=======>Various other discussion, then back to the dress:

Q: Were those the articles handed to you by Mr. Jennings?
A: That is the dress and skirt.
Q: Dress and waist?
A: Yes...
Q: ...what did you do with the dresswaist, skirt and petticoat that you received from Mr. Jennings?
A: Gave it to Prof. Wood.
Q: The same that you received it?
A: Yes, sir.

______________

Guess the clothes migrated from the guest bedroom to Hilliard in Abby and Andrew's bedroom and back to Jennings who returned them to Hilliard who gave them to Prof. Wood? Complicated. No wonder they had no idea what was going on after the fact.

Whatever it all means Lizzie was obviously well lawyered up from the beginning.

[Curryong]

I think Hilliard was getting mixed up with bedrooms, lawyers, clothing! I've always thought that Lizzie's winter clothing (and Emma's few things) were kept in that upstairs lobby closet. Jennings would have attended the funeral, returned to No 92, where he knew or guessed a search had been or was to be conducted. He had probably asked Lizzie previously what she had worn on the morning of the murders. I don't think Jennings was playing a trick do you, on taking garments pointed out to him by his client as the ones she'd worn on Thursday, and handing them to the authorities.?

The men present probably felt a bit awkward. Males in those days had little to do with women's clothing apart perhaps from sometimes lending a hand with the lacing of their wives' corsets. I've always said it's a pity Officer Harrington didn't come to the Borden house that Thursday, at say 11:20am. He would have been able to describe what Lizzie was wearing and I'll stake a million on it that it wasn't a cold-weather walking-out dress of silk.

[irina]

I would like to know what Jennings' responsibility was in this matter. Was it absolutely legitimate for an attorney to turn over what has been called a "silk winter party dress" for a dress worn at home on a warm August day? Was it sufficient for Lizzie, possibly partially drugged, to tell a woman friend to get the blue dress in the closet? How was it for Jennings that he turned over the dark dress only to have a number of witnesses at trial try to describe a light blue cotton dress with small dark print? Did he so believe in Lizzie's innocence that it didn't matter? Was he duped? Is that why he called in other lawyer?

I don't think Jennings was dishonest nor do I think he was stupid. How did he feel when he heard Lizzie had burned a dress the day after he gave the dark one to Dolan/Hilliard/Draper/Wood~~However that worked out? If he thought she was guilty & burned a blood stained dress the next day, why didn't he quietly withdraw from the case very soon afterward? Of all the people who should have dropped Lizzie Borden ASAP, if she seemed overtly guilty to people involved in the case, Jennings should be number one if a fraud was perpetrated upon the court via his agency.

[Curryong]

As I've said, I don't think many males knew anything about fashion in those days. I think Lizzie would have pointed out the waister garments to her lawyer as the ones she had worn on that Thursday morning (and don't forget she backed that up with testimony in court) and Jennings would have trusted that she was telling the truth.

They would have known later, of course, that Alice Russell was going to be a very large fly in the ointment, as she had seen the other dress being burned. But backing Lizzie in the burning of the dress was the ultra-respectable Emma who provided the scenario in court that she had agreed to the burning of the spoiled garment, had urged it even. Lizzie was clad in the red striped wrapper by the time Emma came home so she was spared any anguish about lying under oath. She could say with a clear conscience to Jennings, Robinson and co. that she didn't know which dress Lizzie had been wearing that morning.

I've no doubt that the jury believed Alice's story and they probably shook their heads in the jury room about the foolish young woman (Lizzie) burning garments at such a time. However, they were all middleaged farmers and small tradesmen. They knew less than nothing about fashion, I think. If there had been a sprinkling of women on the jury then the problem of the Bengaline silk might have gained greater prominence. As it was, the jury didn't join the dots.

[irina]

I still think the whole thing put Jennings in a jam. Either he 100% believed in his client and felt she was unfairly prosecuted or he knew wool had been pulled over his eyes and that would not have supported his client's innocence. I need to look at more testimony. Fortunately for everyone I'm going away on a trip for about a week. Probably can't look into all this for awhile.

[Curryong]

Enjoy yourself, irina!

[debbiediablo]

Have fun!

[twinsrwe]

Have a safe trip; we're looking forward to when you return.

[irina]

I'm going camping and doing some photography for maybe a week. Maybe less.

Prepared some meat scraps for pet food today, using my hatchet. Thought of everyone here.