Robinson and Dewey

[Harry]

There is an interesting letter to Knowlton (page 320+ of the Knowlton papers, HK315) by a female doctor, Sarah W. Devoll. It is a lengthy letter, some 3 plus pages, in which she congratulates Knowlton on his handling of the case and goes into many aspects of the case.

The letter is dated 6/24/1893, some 4 days after the trial. These few lines caught my attention:

"... I think. Ex Gov. R. made much of the Police promotion. & now the fact comes out that Judge Dewey was made such by him - who made the unique charge - to acquit the prisoner - I had supposed "the charge should be absolutely unbiased. ..."

The appointment of Dewey to the bench was made by Gov. Robinson in 1886.

I have examined a great many newspapers preceding the trial and could find no mention of Dewey's appointment by Robinson. Obviously I haven't access to all the papers and undoubtedly it was reported in 1886.
It would be hard to believe Knowlton and Moody were not aware of it as the legal community is normally a close-knit group.

One has to wonder why Knowlton and Moody didn't object and if the public was aware prior to the trial as to how Dewey received his appointment.

[doug65oh]

A fascinating find, Harry. It would appear that Dr. Devoll likely read the Associated Press dispatch quoting Mr. Justice Dewey post-trial and pondered the same question we’ve occasionally kicked around here more than a century later –
drawing the same conclusion as we do. If a contemporary layperson could recognize the proverbial do’s and don’ts of properly charging a jury…?

The only answer I can come up with that makes any sense at all is that both Moody & Knowlton were aware of the connection, but didn’t press it for the simple reason of perception. That is to say a judge ought be above reproach, trustworthy, fair and equitable to all parties in all matters. It’s the perceived nature of the beast, so to speak. In terms of public perception there wasn’t much difference between a judge and a priest or minister, if that makes sense.

Of course this is only conjecture on my part, but I do think the answer is grounded as much in sociology as it is the law.

[Yooper]

There really is no good reason for Knowlton to not object to Dewey's presence on the bench. There are a few remote possibilities, but they are relatively weak.

Knowlton may have thought that Dewey would be held in check by the two senior judges, Dewey was only one out of three. This would be pretty naive on Knowlton's part.

Knowlton might have thought Dewey would conduct himself in a manner beyond reproach, in a manner befitting his station, as Doug outlined. This was taking a long chance.

Knowlton may have thought his evidence from Lizzie's Inquest testimony and Eli Bence's testimony was so compelling it would overcome a stacked bench, so to speak. This is more likely, although Knowlton was probably aware of the possibility for their exclusion.

None of these reasons, taken singly or in combination, constitutes good reason to not object to Dewey's presence on the bench. For Knowlton to have Dewey removed does not compromise his case, so why not do it?

I don't think Knowlton wanted the position of lead prosecutor to begin with. There was not likely any shame involved in losing a case of capital murder involving a female perpetrator, especially when the evidence is circumstantial. Winning such a case might have been a mixed blessing, and certainly if the death penalty was invoked. Since the evidence was circumstantial, it was less likely to end with a death sentence, in my opinion. Knowlton might have used Dewey's charge to the jury as grounds for a mistrial, but he didn't, for whatever reason. I get the impression Kowlton was just glad to be done with it when it was over. In my opinion, Knowlton simply didn't care enough, one way or the other, to object.

From the perspective of posterity, maybe Knowlton just got to the point where he was better off to just let the travesty stand on its own merit. Here's the transcript, complete with names, judge it and them for yourself.

[Harry]

Good points, Yooper.

The Boston Globe reported on December 4, 1892:

"... The Superior Court usually informs the attorney-general of the dates which the court considers are open for the trial of capital cases, and if the government and the defence are both ready an assignment of a case is made for the most convenient date, and the trial usually proceeds. Capital cases are tried before three judges of the Superior Court, who are, as a general rule, for the sake of convenience, assigned by the chief justice. No special rule or practice is followed in assigning the judges, the time of the trial and the condition of public business within the jurisdiction of the various judges being very important factors in determining who shall preside. ..."

On April 29, 1893 the Boston Globe reported this:

"There is not the slightest foundation for the despatch from Fall River, published in a Boston paper to the effect that the judges to preside at the trial of Lizzie Borden have been selected, and that the duty will be performed by Chief Justice Mason and Judges Blodgett and Dunbar. No assignment of the judges has yet been made, nor has the date of the trial even been set. This THE GLOBE is enabled to state on the very highest authority. The case has not been brought before the judges of the Superior Court up to the present time for the purpose of having a date set for the trial, and until that is done no time can be positively fixed for the hearing, nor is it possible to say who the judges are who will preside at the trial. ..."

On May 6 they reported "... Chief Justice Mason will preside at the trial, and his associates will probably be Judges Blodgett and Dewey."

Then on May 22, the Evening Standard reported: "It has been definitely decided that Chief Justice Mason and Judges Blodgett and Dewey are to preside at the trial of Lizzie Borden at New Bedford, next month."

No mention in any of the articles of the Robinson/Dewey relationship.

Jennings protested quite vigorously against Judge Blaisdell presiding at the Preliminary hearing and even filed an exception to the Judge's over-ruling of his protest. And as far as Jennings knew at the time he would have had to practice before Blaisdell again in some future case.
Jennings' protest was taken up by some newspaper editorials and many lawyers agreed with him although all to no avail.

[Yooper]

Apparently the identities of all three judges weren't known until very shortly before the trial, although the prosecution may have had a bit more lead time. I don't know when it was known by Knowlton that Robinson had been hired by the defense. He would have to be aware of both before he could make a correlation.

I think you're right about the intimidation factor, Harry, it really shouldn't exist. There was only so long an attorney could expect to make a living if he thought he had to tiptoe around judges. Jennings' exception to Blaisdell presiding at the Preliminary was a good example of what Knowlton should have done.

We can't lay all the blame at Knowlton's doorstep, both Robinson and Dewey were aware of the other's presence in the courtroom. Either one could have recused himself from the case, and Dewey probably should have. My guess is that Dewey was guilty of the greater impropriety, especially when his charge to the jury went on record. He was really sticking his neck out with that! There was absolutely no impartiality evident in his instructions, and that would have certainly been an excellent time for Knowlton to raise hell. But, by then Knowlton was probably thoroughly discouraged by the exclusion of his two strongest points against Lizzie, the Bence and Inquest testimonies. It was still wrong to allow the trial to progress to that point without protest. The excluded testimonies may never have been excluded if Dewey had been removed, who knows?

[Yooper]

Does anyone else think that the actions, or more properly inactions, of Robinson, Dewey, and Knowlton tend to suggest corruption? Could Robinson have been partially or solely responsible for Dewey's appointment to preside in the Borden case?

[Grace]

Ever since I read up on all the particulars of this case, I have felt that the whole thing reeks of corruption. And I can tell you as a life-long resident of Mass, it's not at all surprising in any way.

[Yooper]

I think we have to consider the times when it comes to the possibility for corruption. I don't think people are any more tempted nowadays to become corrupt, nor do I think they are more clever or intelligent now than they were then.

People now are more aware of their rights and the rights of others, and more inclined to insist upon them. This does not make them any smarter, just more aware. Mass media has played a large part in this, there was no radio, television, or internet years ago.

There were fewer specific laws dealing with situations allowing for corruption back then. It didn't take as much intelligence or imagination to create a scenario where corruption was fostered and perpetuated. As the laws caught up with the demand for them, the necessary level of intelligence needed to circumvent the laws had to increase to deal with the greater complexity. If the average intelligence level has remained static, then a smaller percentage of the population is capable of dealing with the greater complexity. The penalties may have been less years ago, and it would have been easier for someone to move from an area and continue along the same path in another community before his past caught up with him.

The average person was less aware back then and perhaps less inclined to raise a fuss about corruption, probably just shrugging it off as a necessary evil. Making a living and getting by day-to-day required more energy then than it does now.

I think it was easier to be corrupt years ago for these reasons: The average citizen was less aware and more inclined to be apathetic about it. It was easier to squirm between the existing laws, and took less imagination.