Could the prosecution have done a better job?

[NancyDrew]

This board has brought up some excellent points, and frankly, I don't understand why the prosecution didn't use them.

1. Yelling for Bridget, but not for Abby. Why didn't Abby hear Lizzie yelling? (This was't even my idea; I think PossumPie put it all together for me)
2. The whole "I'm positive I heard her come in." Why didn't the prosecution HAMMER Lizzie on this point? When did you think you heard Mrs. Borden come in? Did you hear her go upstairs? Where WERE you when you were "positive" you heard her come in? Why didn't she see her dead husband? Did you speak to her when you thought you heard her come in?
3. Why did Lizzie send folks up the front stairs to look for Abby? Wouldn't she have been in her room? If she were in the front part of the house, surely she would have heard all the commotion; the people in HER house...

There are a million questions about Abby and the discovery of her body... and I'd like to know WHY the prosecution essentially ignored them?

[Aamartin]

They should have been able to--- but mock trials-- years later-- with the same evidence has come up with not guilty verdicts as well.

But even if they had-- her inquest testimony was admissible.

[Darrowfan]

My thinking has always been along the same lines as Nancy's, but Aamartin raises a good point. Also, I get the impression that the prosecution made the fatal error of assuming they had a "slam-dunk" case. In other words, it was obvious to the investigators that Lizzie was guilty, and the prosecution assumed that it would be just as obvious to a jury.

[Allen]

I don't believe that the prosecution believed they had a slam dunk case. Quite the contrary. There is a letter written by Hosea Knowlton before the trial even began in which he stated he had no illusions what so ever that the verdict would be one of guilty. During the trial I don't think these questions were touched on because the only person who could answer them was Lizzie. And she didn't testify.

[Allen]

During the inquest some of these questions were touched on. And once again Lizzie lied through her teeth. She stated she never said she heard Abby come in to anyone. I think during the trial since Lizzie did not testify, they were stuck with many people who said that Lizzie told them she thought she heard Abby came in, but no way to resolve the unanswered questions or show that she lied because Lizzie never took the stand. So all they could do is establish that she had said it.

Lizzie's inquest testimony:

Q. Did you make any search for your mother?
A. No, sir.

Q. Why not?
A. I thought she was out of the house; I thought she had gone out. I called Maggie to go to Dr. Bowen's. When they came I said "I don't know where Mrs. Borden is." I thought she had gone out.

Q. Did you tell Maggie you thought your mother had come in?
A. No, sir.

Q. That you thought you heard her come in?
A. No, sir.

Q. Did you say to anybody that you thought she was killed upstairs?
A. No, sir.

Q. To anybody?
A. No, sir.

Q. You made no effort to find your mother at all?
A. No, sir.

[Allen]

Inqest testimony Lizzie Borden:

Q. Did you make any effort to notify Mrs. Borden of your father being killed?
A. No, sir, when I found him I rushed right to the foot of the stairs for Maggie. I supposed Mrs. Borden was out. I did not think anything about her at the time. I was so --

Q. At any time did you say anything about her to anybody?
A. No sir.

Q. To the effect she was out?
A. I told father when he came in.

Q. After your father was killed?
A. No sir.

Q. Did you say you thought she was upstairs?
A. No sir.

Q. Did you ask them to look upstairs?
A. No sir.

Q. Did you suggest to anybody to search upstairs?
A. No sir.

Q. You did not make any yourself?
A. No sir.

Q. I want you to give me all that you did, by way of word or deed, to see whether your mother was dead or not, after you found your father was dead.
A. I did not do anything, except what I said to Mrs. Churchill. "I don't know where Mrs. Borden is. I think she is out, but I wish you would look."

Q. You did ask her to look?
A. I said that to Mrs. Churchill.

Q. Where did you intend for her to look?
A. In Mrs. Borden's room.

[PossumPie]

We have come to some wonderful conclusions, BUT I would have to vote "Not guilty" also...The prosecution just botched it. Do I think Lizzie did it? I am almost certain she did. Would I vote "Guilty"? no. They didn't ask the right questions, they didn't pursue the right lines of questioning, they botched it.

[Allen]

I'm not sure since Lizzie never took the stand to be questioned, and her inquest testimony was inadmissible, what lines of questioning they could have established that would have made a difference in the outcome. They had no way to question her directly. All they could do was establish through other witnesses the things Lizzie said. And then could not even follow up with why they were trying to establish these facts because they couldn't question Lizzie. They could establish that she said she thought she heard Abby came in. But they couldn't question her as to when she heard her come in, where she thought she went, and why she didn't look for her. They could not ask her what she was doing up in the barn. They could only establish through other witnesses that she said she was in the barn and why she was there and for how long. Lizzie never took the stand. They couldn't show she lied in her inquest because they were not allowed to admit it into evidence. No other witnesses could answer these questions, so there were no questions to be asked. It would be useless to ask the questions to anyone else but Lizzie because nobody else had the answers. I think they did the best with what they had to work with.

[Aamartin]

I'm not sure since Lizzie never took the stand to be questioned, and her inquest testimony was inadmissible, what lines of questioning they could have established that would have made a difference in the outcome. They had no way to question her directly. All they could do was establish through other witnesses the things Lizzie said. And then could not even follow up with why they were trying to establish these facts because they couldn't question Lizzie. They could establish that she said she thought she heard Abby came in. But they couldn't question her as to when she heard her come in, where she thought she went, and why she didn't look for her. They could not ask her what she was doing up in the barn. They could only establish through other witnesses that she said she was in the barn and why she was there and for how long. Lizzie never took the stand. They couldn't show she lied in her inquest because they were not allowed to admit it into evidence. No other witnesses could answer these questions, so there were no questions to be asked. It would be useless to ask the questions to anyone else but Lizzie because nobody else had the answers. I think they did the best with what they had to work with.

Without that inquest testimony they were dead in the water.

[Darrowfan]

Allen, Possumpie, and AAmartin have all made very good points. I think the problem with getting a conviction in a homicide case of this kind is that, without a witness actually seeing the accused commit the crime, and without any direct physical evidence against the accused, juries just don't want to risk sending an innocent person to prison, or the gallows.

I feel very confident that Lizzie, and no one else, committed these two homicides. But am I confident enough to have voted for conviction, and see Lizzie hang? Now that is a question I honestly cannot answer. It's a situation where I have to say, "I know she committed the crime, but I cannot prove it."

[NancyDrew]

Good answers. I keep forgetting that Lizzie couldn't be forced to take the stand, and that her inquest testimony was inadmissable. If I had been on the jury, this would been difficult for me, because while I cannot see ANYONE else committing the crime (not in a house with that many locks, not in that time period, etc) except Lizzie herself, there truly wasn't any good evidence produced during the trial.

What's sad is no justice for the deaths of 2 innocent people. We are living in a civilized society, within a nation of laws. The justice system failed Andrew and Abby.

[Darrowfan]

The justice system failed Andrew and Abby.

That is one way of looking at it, Nancy. On the more positive side, it could be said that the justice system worked for Lizzie, and by extension, for you, and for me, and for every American. Because our law says that no citizen can be punished unless the State proves, beyond a reasonable doubt, that they are guilty.

[Curryong]

This is a rather interesting little thread on posters' opinions of the Prosecution case against Lizzie.

[irina]

Some of the prosecution's questioning was very tedious. Question upon question of minutiae. Then there are other places where it looks like the prosecution backed away just when they could have made a decisive point. This is why I believe the prosecution did not want to win, for whatever reason.

We need look no farther than the question of what did Lizzie wear on August 4? That whole subject is a farce as witness after witness fumbles with words like "drab", light ground with small blue darker pattern, etc. Seems the way to handle this would be to admit the dark blue silk into evidence first. Question the witnesses. Let them mumble and twist. Then bring out the dark silk and ask, "Are you trying to describe this dress?" "Have you ever seen Miss Borden wear this dress?" "Was this the dress Miss Borden was wearing when you first saw her on August 4?" You get my point.

That the prosecution did not do this to me is glaring evidence that they did not want to win. Even I who believe in Lizzie's innocence at some level, think I see through the whole farce about the dress. Why was this allowed to happen? I don't know. Either the prosecution didn't want to face the problems if she was found guilty, they knew she was probably not guilty or they knew there were extenuating circumstances that made the murders understandable if not acceptable. Which was it?

[Curryong]

I don't think it was either, of course. I think the mores of the time were uppermost. As I've said before countless times these males (and they were all men) had great difficulty in putting a lady of Lizzie's background in the role of murderess. Being a'lady' meant so much in those days. It encompassed ideals we don't even think about nowadays, when we are used to celebrities and the elite being in the dock for all sorts of crimes.

There's nothing in the Knowlton Papers to show that Hosea thought she was innocent or that there were extenuating circumstances, as far as I know. There's no hint in any letters that he knew there was something untoward going on in the Borden household that would excuse Lizzie.

He simply knew the jury would be unlikely to convict her because of her gender and background. He knew the chief judge was sympathetic to this 'lady'. For instance, in his charge to the jury he dismissed Mrs Gifford the dressmaker's testimony as that of an overwrought female yet stated that there must have been a note to Abby that Thursday because Lizzie would have been too cool-headed to make up such a stupid lie!

The prosecution were immensely hampered by Lizzie's Inquest testimony being disallowed. The pharmacy clerk was not allowed to testify. Another blow! Yes, the prosecution's circumstantial case was weak. It was hog-tied by these factors and others which played into the defence's hands. And Yes, a great deal more should have been made of the silk obviously not being THE one.

[irina]

I can accept your analysis also, Curryong. Even if that was the way it was and no other way I still say the prosecution pulled its punches on the dark silk dress. That would have been such an easy way for testimony to scream out, "Lizzie lied"! You don't suppose that was glossed over because Jennings passed the dress from Lizzie to whoever to whoever who passed it to whoever who passed it to Professor Wood and back again, do you? I mean, Jennings was kind of in the middle of what was more or less a fraud perpetrated on the court.

[Aamartin]

Mock trials today acquit her. It wasn't so much the prosecution, IMO as it was/is the evidence they had to work with.

[Curryong]

I agree with both of you. I think the fact that the darned weapon couldn't be produced was a huge setback. Most murder cases are circumstantial, of course. Few sane people stand in front of others and kill someone. However, again in most cases, there is some kind of evidence pointing directly to the murderer, locale, weapon, motive, bloodstained clothing etc.

The weapon was missing and the jury didn't buy the story of the handleless hatchet, and the defence managed to blunt any criticism that the parent/child relationship between Lizzie and Abby was anything out of the normal. The evidence of the bengaline silk didn't have the impact it might because, well, middleaged farmers on the jury didn't know or care about ladies dresses.

It's strange that most writers on the case today come down (usually) on the side of Lizzie's guilt, yet mock trials, as Anthony says, inevitably seem to bring in not guilty verdicts. A whole thesis for a Masters degree could be written on the subject! MysteryReader!

[irina]

Criminal cases are beyond a reasonable doubt. Civil cases are by preponderance of evidence. For a writer it's a preponderance of what sells good.

I can understand why all trials, even modern mock trials, have found her innocent, but after that verdict there comes the question of who else did it. That's when things get difficult and evidence circles back on itself.

[Aamartin]

The main thing I think about with the mock trials is that they are basically stuck to the questions and answers given.... Who knows what might happen if different questions can be answered. Likewise, visuals. ie- whiteboards of timelines, etc

[Curryong]

Yes, the illustration of timelines would be extremely useful. There's the demeanor of witnesses at the time of the original trial, too. That's very important, always. Hannah Gifford the dressmaker may have come across to the all-male jury as being a bit scatter-brained or something and not very convincing. Although Lizzie did not testify, her calm persona throughout her trial may have impressed the jury. Who knows! Sometimes weeping in the dock did the trick at other 19th century trials, sometimes it would have been "Hysterical females! Ugh!"

[taosjohn]

Then bring out the dark silk and ask, "Are you trying to describe this dress?" "Have you ever seen Miss Borden wear this dress?" "Was this the dress Miss Borden was wearing when you first saw her on August 4?"

No defense attorney and no judge would allow that form of questioning would they? Leading the witness.

[irina]

TJ: With proper foundation a lot of things can be asked. It all has to do with the foundation. So after the witness had mumbled and stumbled around for awhile and settled on "light blue ground with a small dark pattern", a good question would be: Calling your attention to exhibit number ----, have you ever seen this dress before, to the best of your knowledge?

Some of the questioning was awful long winded. They could have gotten the job done one way or another.

[BOBO]

I have written proof from the Grein family, that Mary Grein went to the authorities in 1892, stating that she needed to speak with them. She was NEVER interviewed.

[Curryong]

That sounds very remiss of them.
I presume you mean after Lizzie's arrest, BOBO? Was Mary in another part of the US at that time, or back in Ireland? Who was it she saw, a police chief or a lawyer, and did she ever inquire about why they weren't listening?

[snokkums]

This board has brought up some excellent points, and frankly, I don't understand why the prosecution didn't use them.

1. Yelling for Bridget, but not for Abby. Why didn't Abby hear Lizzie yelling? (This was't even my idea; I think PossumPie put it all together for me)
2. The whole "I'm positive I heard her come in." Why didn't the prosecution HAMMER Lizzie on this point? When did you think you heard Mrs. Borden come in? Did you hear her go upstairs? Where WERE you when you were "positive" you heard her come in? Why didn't she see her dead husband? Did you speak to her when you thought you heard her come in?
3. Why did Lizzie send folks up the front stairs to look for Abby? Wouldn't she have been in her room? If she were in the front part of the house, surely she would have heard all the commotion; the people in HER house...

There are a million questions about Abby and the discovery of her body... and I'd like to know WHY the prosecution essentially ignored them?

I think they could done a better job too. Maybe the prosecution was inexperiienced in terms of a murder trial? They might have had experience in other kinds of trials but not murder.

[Curryong]

The trial was a bit of a hot potato in terms of public opinion running Lizzie's way before the trial. Knowlton wasn't even first choice as prosecuting counsel. It was dropped in his lap, and although he was experienced I don't think he had any enthusiasm for the entire thing.

[irina]

Those things that Nancy Drew mentioned are some of the reasons this case is a mystery. We are left wondering why the prosecution and investigators didn't look deeply at the things we look at. Some of us think there were reasonable explanations and perhaps these things were non-issues or explainable at the time. But then there is the dress Lizzie turned over via Jennings. THAT is a huge thing, the proverbial elephant in the room.

Did the prosecution think she was REALLY, REALLY guilty but they didn't want her to be hanged, or was the case un-provable even back then? If they thought she was likely not guilty why didn't they scratch up another suspect? One problem with suspects in those days, it was hard to prove or disprove alibis. Because of that I'm not satisfied that other suspects were completely exonerated.

[Curryong]

I wonder whether you could please tell us any more about Mary Grein's response to Lizzie being arrested, BOBO? That would have been a huge shock and the fact that she went to the authorities and got no response must have been very disheartening.