In Knowlton's April 24th, 1893 letter to Pillsbury, (the one where he expresses little hope of convicting Lizzie) he makes this statement:
"... 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
defendent to bail: but a verdict either way would render such a course
unnecessary. ..."
Does he mean by "disposing" not having a second trial and dropping the charges against her? If so, then why the bail?
Or does he mean the "disposing" is only temporary? If so, how could she be released on bail since the indictment is still in effect?
Gotta stop reading this stuff!
I know I ask perfection of a quite imperfect world
And fool enough to think that's what I'll find
The best I can come up with is perhaps Knowlton was arguing for more time to develop the case. He uses the term "disposition" in the sentence previous to the bold type. It is remotely possible he meant there was no other way to handle the current situation (case) other than to go to trial with what they had at that time.
If the jury disagreed and reached no decision, there would be a retrial. Lizzie might have been released on bail pending that, but I'm not sure if that is allowable if she had been held without bail for the first trial.
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
My understanding is that a hung jury does not automatically result in a re-trial as the prosecution can dismiss the charges, offer a plea bargain or decide to go forward with a new trial. Whether the same situation existed in 1893 I don't know.
My leaning is that Knowlton wanted the trial but not necessarily a re-trial in the case of a hung jury. It's the bail part that has me stumped.
Judge Davis in his essay on the case says that the only crime not bailable is treason.
I know I ask perfection of a quite imperfect world
And fool enough to think that's what I'll find
If a retrial was not automatic, then there are several possibilities, but, as you say, what does bail have to do with them? Maybe Lizzie could have been immediately released on bail pending a decision on whether to drop the case or go to retrial. Maybe Lizzie would have had some recourse if the jury could not reach a decision, she would have gone through one trial at that point. How does the law read with respect to multiple trials in the case of a hung jury? Can a defendant be incarcerated without time limit? Maybe a release on bail is automatic under the circumstances, I have no idea what the law provided for.
I have serious doubts whether Knowlton wanted the case to begin with, it was a political hot potato. I don't think he was totally committed to it. I think he would have been happy to dispose of the responsibility regardless of the justification.
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
If Knowlton was writing to Pillsbury about the likelihood of a conviction for first degree murder, maybe it makes some sense. They both knew perfectly well there wasn't much chance of a conviction with a mandatory death sentence, Massachusetts hadn't executed a woman for murder since 1789. Since there was clearly premeditation, they couldn't go for second degree murder which would have carried a mandatory life in prison sentence. There were three possibilities for an outcome, guilty, not guilty, or no decision. Maybe they were hoping for a hung jury with perhaps a possibility of reducing the charge. I don't know if they could get away with that, but assuming they could, then they would have gone through the motions of a first degree murder trial and met their obligation. A hung jury might have been the justification they needed. Knowlton might have been expressing his doubts about a conviction under the present "disposition" of the case, which was an attempt at a first degree murder conviction.
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
I think maybe he might have meant that he wasn't going to pursue another trial. He was probably thinking that the jury wasn't going to convict a well brought up woman.
Suicide is painless It brings on many changes and I will take my leave when I please.
The prosecution had written each other about Accessory, I think. Since they did throw 3 Capital indictments at Lizzie, I think they might have thought one might stick. Or else they threw them allowing for none to stick and thus no future trial? This may go back to the Nol Prosse (sp?)
I'm not sure about the procedure, but they did indict Lizzie of three crimes; the murder of Andrew, the murder of Abby, and the murder of both Andrew and Abby. Since there was a time lapse between the murders, maybe they would be considered separate crimes ordinarily and require separate trials. It could be that the indictment for both murders negated the necessity of a separate trial. There was an additional burden of proof for the murder of both, and that was to prove that the murders were related. I expect proving the same perpetrator would be sufficient. All of the indictments were for first degree murder, so if any one of the three proved premeditation, Lizzie would have been executed. For instance, if they found Abby's murder wasn't premeditated and Andrew's was, it still carried the death sentence.
If Knowlton and Pillsbury were discussing an accessory to murder charge, then maybe bail makes sense. Lizzie would be charged with a "separate" crime which she could essentially be re-tried for, and would likely be allowed to go free on bail.
I think they would have had an air tight case for accessory, but it would have helped to have Lizzie's Inquest testimony to do it. Why they didn't make an attempt, I don't know. Lizzie was found probably guilty three times, twice by Blaisdell, and once by the grand jury. These people had the same inhibitions about convicting a woman of first degree murder as the trial jury had. The trial jury returned a not guilty verdict in an hour, forty-five minutes of which was unnecessary. The only explanation for the difference in verdicts is the exclusion of the Bence and Inquest testimonies and Dewey's infamous charge to the jury. Maybe the legal system proved it would not cooperate with the prosecution of an accessory to murder charge.
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
As under the Robinson doctrine, I see no possible doubt that the whole transaction can be put in evidence in a trial for the killing of either, I incline, on reflection, toward two indictments, if there are to be any.
Has it ever occurred to you to put in a count or counts as accessory before & after? There is, to be sure, no affirmative evidence, at present, that any other person was concerned, but a great many people believe that she was in it, but that hers was not the hand that did it. I could easily believe this
if there were any evidence of it. Perhaps one indict for killing both & others for killing each will be best of all.
I write these suggestions now as they occur to me, and as you will have time to think of them. I wish the investigation just begun in the other line to be thoroughly, and, if possible, exhaustive, chiefly for the satisfaction of my own mind, as I doubt if it develops anything of consequence for any other purpose.
Very truly yours,
Attorney General.
Hon. H. M. Knowlton,
--Commonwealth of Massachusetts VS. Lizzie A. Borden; The Knowlton Papers, 1892-1893. Eds. Michael Martins and Dennis A. Binette. Fall River, MA: Fall River Historical Society, 1994.
HOSEA M. KNOWLTON. ARTHUR E. PERRY.
COUNSELLORS AT LAW.
OFFICE:
38 NORTH WATER STREET.
{Dictated.}
NEW BEDFORD, MASS., November 22, 1892.
Hon. A. E. Pillsbury,
Attorney General.
Dear Sir:- I see no need of account for accessory.
If she did not do the killing, but only instigated some one else to, it can hardly be said that she was not so far present as to make her principal, for she was certainly in the house, and in hearing of both murders.
It had occurred to me, however, since I saw you, that the jury should be instructed as to the principles of law relating to principal and accessory; and, if you see no objection, I propose to state to them the law upon that subject.
I have already written you about Jennings, and you have probably seen him before this time.
Yours Truly,
H. M. Knowlton
--Commonwealth of Massachusetts VS. Lizzie A. Borden; The Knowlton Papers, 1892-1893. Eds. Michael Martins and Dennis A. Binette. Fall River, MA: Fall River Historical Society, 1994.
So, Pillsbury specifically asked Knowlton about adding an accessory charge, if I'm reading the quotations correctly. Knowlton thought it unwarranted due to the fact that Lizzie's presence in the house when Abby's murder took place would have made her aware of Abby's murder. I realize he states "...in the house, and in hearing of both murders", but he had to prove she wasn't in the barn first before he could correctly make that assumption. Essentially what he is saying is that Lizzie was aware of a murderer's presence in the house up to the time she allegedly went to the barn, a considerable time span, and she did nothing about it. This makes her guilty as a principal rather than as an accessory because the murderer was acting with her full knowledge and support. This makes sense, and it makes absolutely no sense for Lizzie to have tolerated the presence of a random intruder. Apparently Knowlton thought it unreasonable for Lizzie to be unaware of a random intruder and of Abby's murder for a couple of hours, and I have to agree with that. Especially when she directed a search for Abby upstairs to the guest room (by default) after squelching a search for her elsewhere. She was absolutely aware of Abby's murder and of where Abby could be found.
If Pillsbury suggested that a charge for accessory be added to the existing murder charges, they might have tried Lizzie for both scenarios. I don't know if accessory carried the same mandatory death penalty as first degree murder. If it didn't, then it might have given the jury an excuse to find her guilty of a lesser charge, no matter how unreasonable it might seem given the evidence. Juries can be unpredictable, and they are not always logical. Their focus probably wasn't on the crime but on the sentence the way it was! They might have thought her guilty as hell, but simply would not let her be executed for the crimes.
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
You're welcome.
I was thinking maybe they are talking about the grand jury rather than a trial jury, mainly only because of the dates of these 2 letters, don't you think?
When you say Lizzie sort of directed the search for Abbie to the front upstairs, and by "default" you maybe are assuming that Lizzie knew about the first foray of Bridget and Mrs. Churchill to Abbie's room to get a sheet? What if we assume Lizzie was unaware of that visit? Does anyone say Lizzie knew they were going up there, or had gone up there? Someone should maybe check that?
They were probably talking about the grand jury because Knowlton wrote about instructing the jury "as to the principles of the law", which is usually the province of the judge in a jury trial, not the attorneys. The dates do in fact tend to verify this. The grand jury was to decide if the prosecution's case was sufficient to go to trial, and they would have certainly needed to know all of the charges. I doubt if the prosecution was allowed to slip a few in before the jury trial! If they were going to add an accessory charge, it would have to be before or during the grand jury hearing.
I'll have to do some checking as to whether Lizzie was unaware of the errand to Abby's room for sheets. I don't recall any specific testimony as to Lizzie's awareness at any time, though. If she was in the kitchen at the time, she would certainly be aware of the errand, she would have seen them go up the stairs. Dr. Bowen had gotten the wrong key at first and had to get the correct one, so there was some protracted activity associated with it. Someone came downstairs carrying bedsheets, something else to notice, and handed them to Dr. Bowen. Lizzie testified at the Inquest that she had intended for Mrs. Churchill and Bridget to look for Abby in Abby's room. She prevented Bridget from going to the Whitehead residence to look for Abby, why did she not prevent the women from going up the front stairs to look for Abby if her intent was for them to look in Abby's room?
To do is to be. ~Socrates
To be is to do. ~Kant
Do be do be do. ~Sinatra
