Popular Crime

by Bill James

  3) Lizzie stood to profit by the crime, by inheriting a substantial amount of money, or the accused stood to profit by the crime.

  Again, this is nothing in my view. Andrew Borden was a wealthy man, but few people are so greedy that they will kill their parents in order to inherit their parents’ money. Those who are that greedy usually give off pretty clear signals of unusual avarice. Lizzie was not in need. She did not have gambling debts or huge unpaid debts at the department store. She didn’t have a drug habit to support. She was going to inherit the money anyway. There is no record of her talking a lot about money in the days before the crime.

  To say that Lizzie Borden “profited” by the crime is to take a narrow view of the facts. The murders made Lizzie Borden’s life a living hell. She was ostracized, ridiculed, was imprisoned for the better part of a year, stood trial for murder and was a social pariah for the rest of her life. To assert that the money was a motive for murder, one must assume that she saw the money coming toward her and nothing else. Certainly some people (and most murderers) are so shortsighted that they do not foresee these “negative side-effects” of the murder, but the money provides a plausible motive for many other people as well. Borden may have been slain by someone who felt that Borden had cheated him in a business deal. On the board of several banks, he may have uncovered wrongdoing by someone involved in one of the banks, or in one of his other businesses. He may have been slain by someone who rented a house or an apartment from him. He may have been slain by some other relative with whom he was less than generous. The simple existence of this money does not indicate, to me, that Lizzie Borden committed the murders.

  4) Lizzie’s actions after the case show consciousness of guilt, or the actions of the accused, after the crime, reveal a consciousness of guilt. This consciousness of guilt is supposedly revealed in three ways:

  One) Her emotional affect was flat, and seemed to some people inappropriate to the situation.

  Two) She burned a dress on the following Sunday.

  Three) She made numerous statements about the case which were untrue or were at odds with the testimony of other persons.

  As to the untrue statements, we’ll deal with them in a separate category. On (one) above, people react to alarming and horrible events in all kinds of different ways. There are so few people who have an experience like “discovering your father’s horribly mutilated body in the moments after he has been murdered” that it is difficult to generalize as to how they behave, even assuming that they would have some general and predictable set of behaviors. It would take a great many facts of this nature to convince me that Lizzie committed the crime.

  Lizzie was an emotionally “flat” person by nature … that’s the way she always was. After the crime, people expected to see her distraught, and she was—sometimes. When she reported the murder to a neighbor she was crying and shaking. During the inquest, when she was read a description of the injuries suffered by her father, she wept until she vomited. During her trial, when the prosecutor carried toward her a hatchet and the skull of her father, she fainted dead away. At other times she seemed to some people to be unnaturally composed, but … you can’t dial your emotions to a certain tone and hold them there for weeks on end just because that’s what people are expecting to see. You go up and down, you go into shock, and you come out at some unpredictable point.

  Lizzie was given sedatives shortly after the murder, and was heavily sedated with morphine for several days following that. This can cause the appearance of an inappropriate emotional affect. The only things that a person can do after a crime that make them guilty of the crime are

  1) To reveal knowledge about the crime,

  2) To show consciousness of guilt, and

  3) To attempt to profit from the crime.

  That’s it; otherwise the crime is done. People have inappropriate emotional states all the time. People are depressed at parties. People act giddy and get silly during business meetings, get horny during job interviews and act bored during sex. An inappropriate emotional affect is not consciousness of guilt per se.

  The burning of the dress was the trigger that caused Lizzie to be arrested and brought to trial, absolutely and without question. The moment the judge and grand jury heard about the burning of the dress, they ordered Lizzie bound over for trial.

  But logically, this seems to be much ado about nothing. Lizzie’s sister (Emma) testified that the dress in question was faded, that it had been spotted with paint when the house was painted some months earlier, and that she—Emma—asked Lizzie to burn the dress after she was unable to find a nail on which to hang a newer dress. The dressmaker who made the dress confirmed that it had been spotted with paint not long after it was made.

  Further, the notion that the dress might have had small spots of blood on it because of the murders is fairly preposterous. It is clear that Lizzie Borden had virtually no blood on her in the minutes after the murders. All of the people who saw her at that time, without exception, stated that there were no bloodstains on her dress at that time. If Lizzie had been wearing that dress while she committed the murders, the dress would have been soaked with blood. She could perhaps, conceivably, have had a wrap of some kind around the dress, through which some little bit of blood had seeped, but the police had very thoroughly searched the house before the dress was burned, to the extent of tearing apart a woodpile log by log looking for a murder weapon, and had closely examined every garment in the house, looking for bloodstains. They found nothing. The police had extensive opportunity to seize this dress before Lizzie burned it. They did not do so. Lizzie’s burning of the dress is not unusual, is not consciousness of guilt, and had nothing to do with the murders.

  5) Many of Lizzie’s statements about the case are untrue, or the accused was not truthful in describing the events surrounding the crime. While this statement of evidence is in a sense redundant of consciousness of guilt, it appears so often in criminal cases that it probably needs to be treated separately.

  In my view, this type of evidence carries very little weight, perhaps a maximum of 20 points in some unusual case in which the accused made obvious misstatements clearly designed to avoid justice. The allegation that the accused has made untrue statements to the police or to others about the crime must appear, I would guess, in nearly 100% of murder cases. I have rarely known it to be convincing.

  What happens in murder cases—and what happened in spades in this case—is that the defendant is repeatedly asked questions designed to confuse her and designed to elicit inconsistent statements that can be used against her. A series of events happened that were, at the time, quite trivial—Abby Borden went out, or Lizzie thought she went out, the maid was washing some windows, Lizzie was ironing some handkerchiefs, Andrew came home, Lizzie went out to the barn to try to find some sinkers for a fishing trip. These are not the kinds of events that make you check the clock and take mental notes. All of a sudden, Lizzie returned to the house, found the screen door wide open and her father horribly murdered. Dazed, shocked, and heavily sedated, she was then questioned relentlessly, for days on end and without a lawyer, about this series of trivial events, which had occurred on the other side of the most horrific experience of her life. While undergoing this interrogation she was intermittently accused of the crime. It is virtually impossible to avoid making inconsistent and inaccurate statements under those conditions. Specifically:

  a. Lizzie said that she had gone out to the barn and to the hayloft of the barn to look for sinkers, and that she found her father murdered upon her return. Two police officers, however, said that there was a thick layer of dust in the hayloft of the barn, and it didn’t appear that anyone had been up there in weeks.

  However—second however—a young boy testified at Lizzie’s trial that, hearing about the murders, he and a friend ran to the house and attempted to see what was going on. Turned away by the police, they had gone out to the barn, and had watched the spectacle from the hayloft of the barn—within a
n hour of the murder, and before the police had looked into the hayloft. Thus, it appears to be not Lizzie but the police who were in error about this fact.

  b. The maid said that she heard Lizzie laugh from the second floor landing as she was unlocking the door to let Andrew Borden into the house about 10:45. However, Lizzie said that she was in the kitchen at that time, later that she was in her bedroom on the second floor, and later (again) that she was in the kitchen, ironing some handkerchiefs.

  The noise that the maid heard while unlocking the door was almost certainly some noise made by the murderer, be that Lizzie or someone else. However, if you think about it as evidence against Lizzie … Abby Borden was already dead by this time, probably had been dead for an hour. It is extremely difficult to imagine that Lizzie Borden murdered her stepmother at 9:45, was laughing maniacally ten feet from the body at 10:45, hacked her father to death at 10:55 and yet appeared stunned, pale and shaken when calling for help just after 11.

  A laugh, particularly coming from a different area of the house at a different elevation, is a relatively indistinct sound, easily mistaken for some other noise. The scratching of a cat, the creaking of a door, the rustling of cloth … any of these can, at times, be mistaken for laughter. The noise that the maid heard was a fairly trivial event at that time … she heard a sound, thought “what was that?” and concluded that it must have been Lizzie laughing about something. Maybe it was, but … it’s an odd circumstance to be laughing, even if she’s guilty.

  c. Lizzie said that on the morning of the murders Abby Borden had received a note asking her to visit someone who was ill. No such note was ever found. Lizzie said that perhaps she had burned it or perhaps Abby had burned it, but no one came forward to say that she had sent such a note, and it seems extremely unlikely that Abby Borden ever left the house on that morning.

  Lizzie’s answers on this issue are certainly troubling. Looking at it from Lizzie’s standpoint, she may have heard someone at the door, which may well have been Abby, admitting the murderer to the house, and she may have noticed shortly afterward that her stepmother did not seem to be about. She may have put two and two together wrong, and figured that Abby had been called away to visit someone. She did tell the maid, before the murders, that Abby had been called away on a sick visit. Questioned about this later in a dazed and confused state, she may have attempted to give an explanation that fit what she could remember, and may have filled in the gap with a nonexistent note.

  The judge at Lizzie’s trial, in the process of demonstrating profound bias in Lizzie’s favor, speculated that perhaps the note was written by the murderer, who took it with him when he left. However, neither of these is a very satisfying explanation, and Lizzie’s lack of forthrightness about this issue is troubling for her defense.

  d. A neighbor said that she sat before a window facing the Borden house with a clear view of the back door from 10:00 to 10:55, and saw no one come or go from that door. This conflicts with Lizzie’s testimony that she went out to the barn about 10:50, and many people assume that it also conflicts with the “intruder” theory, although in reality it doesn’t.

  However, an independent witness, a passing peddler, confirmed that he saw a woman crossing the yard, heading toward the barn, just before 11:00. It’s not really surprising, I think, that a neighbor would fail to take notice of Lizzie leaving her house and heading toward the barn.

  Lizzie was accused by the prosecutors of lying or giving inconsistent statements about dozens of other issues—for example, at one point she said that she had been home all day the previous day, and at another time that she had been out, at one point that she had visited her sister in Fairhaven and at another point that she had not, at one point that she had overheard a conversation between her father and uncle and at another point that she had not, at one point that she had eaten a meal with the family and another point that she had not, at one point that a door was locked and at another point that it was not, and one point that she had gone out to the barn at about 10 o’clock and had stayed for a half-hour and at another point that she had gone to the barn just before 11 o’clock and had stayed only a few minutes. These conflicts, in my view, can only be characterized as normal confusion, in many cases centered on immaterial facts. Lizzie is accused of contradicting herself, for example, because at one point she said she went to the barn looking for a flatiron, and at other times looking for fishing sinkers. But Lizzie, like many people at that time, used the term “irons” for fishing sinkers. The accusation that she had changed her story was, in reality, just a misunderstanding based on the use of an unfamiliar expression.

  I will give the prosecution 5 points out of the possible 20 here because Lizzie did make a number of statements that appear to be inconsistent with other testimony. It is my opinion that

  1. Evidence which can be created in any case is not real evidence, and

  2. These types of conflicts can be and are generated by the police and prosecutors in every murder case.

  A favorite police and lawyer’s trick in these circumstances is to ask the accused to characterize something which has no precise description—and then later, in different words, ask them to characterize it again. One day Lizzie might say that relations between her and her stepmother were “cordial,” another day that they were “distant.” What do you mean, they were “distant”? Didn’t you say yesterday that your relationship was cordial? Was it cordial, or was it distant?

  The $64,000 question is, was she lying? Do these mistakes reflect consciousness of guilt? Lizzie Borden was questioned for many, many hours, without a lawyer and under the influence of morphine, by police and by highly trained lawyers who were convinced that she had committed the crime. She never confessed to the crime, she never came close to confessing to the crime, and she never found herself trapped in a maze of lies. She made no truly damaging admissions. She answered every question. She said nothing, in my opinion, which could be described as a clear and deliberate falsehood. If she was hiding something, she was damned good at it. The facts, taken as a whole, are much more suggestive of a consciousness of innocence than of a consciousness of guilt.

  By this time it must be apparent that the evidence presented against Lizzie Borden, in my opinion, falls far short of what could be described as proof beyond a reasonable doubt. If 100 points are proof beyond a reasonable doubt, the available evidence against Lizzie is about 20. This was also the judgment of the jury, which acquitted Lizzie after a very brief deliberation, and it was the judgment of most of the press that attended the trial. This is the common judgment of most people who write about the case today—that the case presented against Lizzie was obviously inadequate to sustain a conviction. A 1997 mock trial of Lizzie at Stanford, presided over by William Rehnquist and Sandra Day O’Connor, again led to her acquittal.

  The much harder question is, was she innocent in fact? Many people know more about this than I do, many people have studied it more than I have, and I would urge you to give more weight to the opinions of the experts than to mine. But if you want my opinion, I think she was innocent.

  First, the scenario by which some outsider may have come into the house and committed the crime is difficult. To believe that, you have to believe seven things:

  1) That the intruder entered the house unseen,

  2) That he murdered Abby Borden in a gruesome and excessively violent manner without making any loud noises and without attracting any attention from the two other women in the house,

  3) That Abby Borden then lay dead in the house for an hour without anyone being aware of it,

  4) That the murderer remained hidden in the house for that hour without anyone becoming aware of his presence,

  5) That he then attacked and murdered Andrew Borden with equal violence, again without anyone being aware that this was happening,

  6) That he then left the house unseen and unnoticed through the busy neighborhood when he was virtually a walking bloodstain, and

  7) That he avoid
ed the attention of police and avoided being associated with the crime for the rest of his life.

  No one element of that package is all that hard to believe, but the package, taken as a whole, is almost inconceivable:

  1) That the intruder entered the house unseen is not hard to believe, since there are many possible explanations for this. A door may have been left open for a few minutes as Andrew Borden or John Morse departed that morning (Morse was Borden’s brother-in-law, who spent the night with the family). He could have entered the house while Bridget was going in and out, washing windows. He could have been admitted to the house by Abby Borden—in my opinion the most likely scenario. He could have broken into the house during the night by jimmying a door or a window. He could have broken into the house that morning through the basement. The murderer entering the house unseen is really not an obstacle.

  2) That he murdered Abby Borden in a gruesome and excessively violent manner without making any loud noises and without attracting any attention from the two other women in the house is difficult to believe but is possible, since the time frame of Abby’s murder cannot be precisely pinned down. She may have been murdered not long after 9:00; she may have been murdered as late as 10:30. The doctors thought that she had been dead an hour or so before Andrew was killed because her blood had coagulated by the time her body was found, but this is a very imprecise way of timing the death. Since Lizzie and Bridget were moving about throughout the house, there may well have been some few minutes when neither of them was in position to hear the assault or to hear the body hit the floor.