Lizzie Borden, Bathsheba Spooner and the Death PenaltyAuthor(s): Robert SullivanSource: Litigation, Vol. 2, No. 3 (Spring 1976), pp. 33-34, 44-45Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758258 .

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Legal

Lore

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Lizzie Horden,Bathsheba

Spooner and the Death Penalty7 by Robert Sullivan

Currently, as this is written, there are

18,000 murders committed annually in the United States. This shocking statistic means that every half-hour of every average day someone in this

country falls victim to the most ag? gravated heinousness, to that ulti? mate crime?murder.

It is perplexing that the American

public, swimming as it is in a sea of

contemporary violence, still finds the trial of Lizzie Borden in the early 1890s the most continually absorbing case in the annals of this nation's homicides. Many sensational murder trials of the 20th century have re? ceived extensive press notice, and a few have been given saturation news

coverage. It is unlikely, however, that

any capital crime has held such a firm

purchase on public attention and so completely engrossed the nation's

press as did the savage butchery of Andrew Jackson Borden and his wife, Abby, in Fall River, Massachusetts, in 1892, and the trial of their daugh? ter Lizzie in nearby New Bedford the

following year. Since 1893 to today it appears

that the memory of the murders, the

memory of the principals, and the

memory of the deadly hatchet simply will not erode from the American consciousness. This enduring public obsession is fed by the whimsical and

numerically inaccurate jingle which, in celebrating the crime and its char?

acters, has become this country's

The author is a Justice of the Massachu? setts Superior Court. His most recent book is

Goodbye Lizzie Borden, published by The

Stephen Greene Press. He is also the author

of The Disappearance of Dr. Parkman.

best-known quatrain: Lizzie Borden took an axe And gave her mother forty

whacks; And when she saw what she had

done,

She gave her father forty-one. This little rhyme, with its measured

pulsation, is as popularly recited to?

day as it was at the turn of the century and has done much to make the

incomparable Lizzie Borden a part of the nation's folklore.

Like any other member of the

public interested in our American criminal history, initially I experi? enced the confusion compounded by this welter of reportage, which is so

notably marked by its lack of unani?

mity as to what actually happened at the Borden home the morning of

August 4, 1892, and as to what

actually transpired in the New Bed? ford courthouse in June 1893 when Lizzie Andrew Borden was placed at the bar to be tried for the ferocious

murders of her father and step? mother.

I turned to the official 2,000-page verbatim transcript of all the testi?

mony at her trial. Because the actual evidence adduced at the trial is the

only accurate disclosure of the cir? cumstances surrounding the deaths of the victims and the fate of the defendant, it would seem therefore to be the only completely satisfactory source in resolving the Borden case.

I think it appropriate to note here that I am, and for 18 years have been, a Justice of the Massachusetts Supe? rior Court, the same tribunal before which Lizzie Borden was tried for her

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life in 1893, some 83 years ago. Quite naturally I am extremely

proud of our court, its great record of

accomplishments, its traditions, and

my colleagues who serve with me

presently and who have served with me in the past. Nonetheless, this must be said: the trial of Lizzie Borden in the Massachusetts Superior Court in 1893 was no shining hour in the

glorious history of Massachusetts

jurisprudence. The Borden trial was, in fact, from beginning to end, a

travesty of justice and it reflected credit upon no one or upon no insti? tution.

Lizzie Borden was found not guilty of both murders, but a careful exam? ination of the official trial transcript, an evaluation of the exhibits, and an examination of the contemporary accounts of events which surrounded the trial compels any reasonable

person to reach a very different con? clusion.

Lizzie Borden slaughtered her

stepmother on August 4, 1892 and, one and one-half hours later on the same day, she committed the grossly savage murder of her father.

Erroneous Rulings She was, at her trial in 1893,

proven guilty of both of these crimes

beyond a reasonable doubt. Indeed, were it not for two erroneous ev?

identiary rulings by the court ex?

cluding prosecution's evidence, the

degree of proof of guilt of Lizzie Bor? den would have approached the legal millennium, proof of guilt beyond all

possibility of innocence. How had this unpleasant spinster

so barbarously committed double

parricide and then won an unreal verdict of acquittal?

As a member of one of New En?

gland's most prominent families, she had the benefit of an extremely favor? able pre-trial press. The inverse of the

concept of pre-trial prejudicial pub? licity, so often complained of by criminal defendants, had occurred in the Borden case. The pre-trial publicity had been all favorable to the defendant. It is likely that one type of unobjective pre-trial publicity is as effective as the other in misguiding the hand of justice in celebrated murder trials.

Lizzie's cause was not hurt by her

retaining as her principal defense trial attorney, Massachusetts ex

Governor, George Robinson, who,

during his term as Governor several

years before the trial, had appointed Judge Justin Dewey to his lifetime

position upon the Superior Court bench. Judge Dewey presided at the Borden trial, and it was said by the

contemporary bench and bar that

Judge Dewey* s charge to the jury was a more effective argument for the

acquittal of Lizzie than ex-Governor Robinson's closing remarks on behalf of his client.

Imponderables No reasonable person would at?

tempt to single out any one of the

many imponderables surrounding the Borden trial and declare that it alone produced the verdict of acquit? tal. Nonetheless, it is my view that,

strangely enough, the very influence which affected the press in their pre trial handling of the Borden case

probably had more impact than any other factor on the minds of the

public and thus the minds of the

jurors in Lizzie Borden's favor. I am

referring to the great reluctance to convict a female defendant of a crime

requiring the imposition of the death

penalty. In 1893, at the time of the Borden

trial, there were two degrees of murder defined by law in the Com? monwealth of Massachusetts, and it was for the jury to determine the

degree within the statutory defini? tions. Nevertheless, on any reading of the facts of these murders, Lizzie Borden could not possibly have been found guilty of murder in the second

degree within the definition of that crime. The Borden jury had one alter? native and one alone?send her to her death or set her free. Ex-governor Robinson had recognized this and stressed it time and again in his

closing argument for the defendant. Research into the subject allows

this statement to be made with reasonable certainty of its accuracy: No female criminal defendant has been executed in the Commonwealth

of Massachusetts since the Revolu?

tionary War. The last female put to death by the state was Bathsheba

Spooner, publicly hanged in the courthouse square in Worcester in

1778, and the chilling sequelae to her

hanging were to have a deterring ef? fect long felt in Massachusetts. Here in brief is that sad saga.

Like Lizzie Borden, Bathsheba was a member of a well-known and dis?

tinguished family. Her father, General Timothy Ruggles, was, by an odd coincidence, Chief Justice of the Court of Common Pleas. The

Massachusetts Superior Court is the lineal successor to Chief Justice Rug gles's Court of the Massachusetts Bay Colony.

Because he owed his judicial ap? pointment to the Crown and because he had been a British general in the

army of Jeffery Lord Amherst, Rug? gles, a confirmed Tory, was forced to flee to Nova Scotia at the outbreak of the Revolution. Before leaving, he

arranged a marriage of convenience for his beautiful daughter Bathsheba with Joshua Spooner, an elderly can? tankerous merchant of Brookfleld, a town near Worcester. The marriage was a great failure and the embittered

young wife soon sought surcease from her aging spouse and unhappy state.

Remarkably Effective Ezra Ross, a seventeen-year-old

veteran of the Battle of Bunker Hill, invalided from Washington's army,

passed through Brookfield en route home from New York State and met

Bathsheba, who undertook to nurse him back to health. Her nursing ministrations, though protracted, were yet so remarkably effective that the end result was glowing health for Ezra and pregnancy for Bathsheba

Spooner.

Gauging correctly that her hus? band might be suspicious of her preg? nancy and adopt a dim view of it, Bathsheba joined her lover in a plan to murder Joshua, and engaged, to

help her, two freebooting British soldiers who were passing her way.

On March 1, 1778, the task was

quickly done, and shortly thereafter Joshua's body, badly beaten, was found head down in his own well. The

discovery came too soon to allow the British soldiers to escape, for they had tarried to celebrate in a Wor? cester tavern, wearing Joshua's

clothes and toasting Bathsheba's health with the fee she had paid them. At the time of their arrest they im

(Please turn to page 44)

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pirical Analysis, 60 Calif. L. Rev. 275 (1972). No lawyer has long been involved in the defense of school

desegregation litigation without de?

veloping a large sense of professional frustration that, no matter how hard he practices his well-developed skills, he probably will contribute very little to the educational processes of the schools, and may, through the exer? cise of his professional competence, set in motion forces that inevitably will harm the community that the schools serve. The frustrating fact is that this is true whether he wins or loses the case.

Legal Lore

(Continued from page 34)

plicated Bathsheba and Ezra. Almost

immediately all four confessed, and

they were put to trial together on

April 21, 1778.

The trial was remarkable for the

speed with which it was carried out:

beginning very early, and ending very late, in one day all four were tried by a

jury, convicted, and sentenced to

hang. After the death sentence was

pronounced upon all four defen? dants, it was protested that to execute Bathsheba would take the life of her unborn child.

A body of two male midwives and twelve "discreet and lawful matrons" was appointed to examine Bathsheba

physically, and they pronounced that her assertion of pregnancy was with? out foundation. A second examina? tion by a group of five midwives resulted, unhappily for Bathsheba, in a split decision.

The entire matter was resolved by marching the three men to the gal? lows erected in the square in front of the Worcester courthouse and hang? ing them. Shortly thereafter Bath? sheba was conveyed to the gallows in an elegant carriage, accompanied by the local minister. This delicacy in

allowing a suitable interval between the hanging of the three men and the

hanging of Bathsheba Spooner, together with the thoughtfulness in

allowing Bathsheba to ride to her

death in a fine carriage, added a chivalrous touch to the day's events for the howling throng gathered in the

square to witness the hangman's skill.

Almost immediately after Bethshe ba's swaying body was cut down from the gallows, an autopsy was perform? ed. It revealed the presence of a well formed, well-nourished five-month

fetus.

The self-guilt of the people of Wor? cester County was not soon erased.

No female was ever again executed in that county. Further, my research has been unable to discover that any fe? male was ever again executed in any county of the Commonwealth of

Massachusetts. In the early 19th cen?

tury, however, executions were per?

formed, and records of them were

kept, only by the county officers of the 14 counties of the state; thus it is dif? ficult to assert with finality that no female was hanged during that per? iod. Yet all indications point to the truth of this assertion.

In 1857, a female charged with

murdering her husband by arsenic

poisoning was tried in Plymouth County. The evidence against her was

overwhelming, but the jury resisted conviction and was unable to reach a verdict.

Months later, in 1858, the state leg? islature enacted the so-called "mur? der statute" for the first time distin?

guishing murder in the first degree and murder in the second degree, defining both and requiring a manda?

tory sentence of life imprisonment and not the death penalty for persons convicted of murder in the second

degree. It had been argued to the

legislature that regardless of the evidence, it was impossible to convict female defendants in murder cases because of the mandatory death pen? alty.

New Trial Immediately after the new murder

statute was enacted, the Plymouth County female defendant just men? tioned was re-tried and, after a dis? cussion of abandonment of purpose to kill and some flimsy evidence of lack of deliberate premeditation, she

was convicted by the jury of second

degree murder and sentenced to life

imprisonment.

Some 30 years later, and only a few

years before Lizzie Borden came to trial, Sarah Jane Robinson, accused of six murders, was convicted of first degree murder and sentenced to death. Shortly thereafter, on the sole

ground that she was a woman, her sentence was commuted to life im?

prisonment. Incongruously, militant

equal-rights-for-women groups ex?

erted considerable pressure upon the

governor to obtain this commutation.

We should note here that no sec?

ond-degree escape hatch was open to the prosecution or the jury in the Borden case. Among many reasons,

there were two separate murders in?

volved, committed with some time interval. The facts of the Borden case

simply did not accommodate any? thing but a first-degree murder conviction.

In 1900, the method of execution in Massachusetts was changed from

hanging to electrocution. Since then the electric chair has been used 65 times. All 65 persons who were put to death by the Commonwealth by elec? trocution were males. The last was executed in 1947.

It is said that scientific scholars have urged that the reluctance to execute female criminals has its psy? chological genesis in the evolution of an early misogyny on through to the male attitude which we know as

chivalry, and that chivalrous forces extend to protection of the female from all recognizable harm, includ?

ing the hangman's noose. In the facts of the Borden case with specificity, students of psychology urge that a

guilty verdict would have also been an acknowledgment by the male jury that Lizzie had the mental and phy? sical strength and capacity to commit the gruesome acts, thus negating the

universally preconceived image of the weak and helpless female of the nine? teenth century. Whatever the psychological ex?

planation of the Borden verdict may be, the law, if it is a science, is a prac? tical science, and it deals in hard facts. The hard facts are, first, that there is a clearly recognizable pattern of reluctance to convict females of murder when the death penalty is in?

volved, and, second, that Lizzie Bor? den was guilty of double parricide? and despite the evidence she was ac

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quitted. One wonders how many persons

have escaped punishment for murder

solely because the death penalty was the jury's only alternative to acquit? tal. And one wonders why this com?

pelling, if inverted, argument was not more forcefully advanced by the or?

ganized opponents to capital pun? ishment in their long, untiring, and fruitful campaign to re-orient the nation's views on criminal punish? ment?a re-orientation that is re?

flected in the 1972 Furman opinion of the Supreme Court of the United States, equivocally abolishing capital punishment in the nation.

Proving Punitive

Damages (Continued from page 30)

Cal. Rptr. 412, 417 (1974). Finally, the effective trial advocate

should consider the question of ter?

minology in referring to the subject of punitive damages. The expressions "punitive" and "exemplary" have been used to describe the award. The

following language of Lord Hailsham of St. Marylebone L.C. in the case of Broomev. Cassell & Co. (H.L. (?.)), (1972) A. C. 1027, 1073, provides some guidance:

As between 'punitive* or 'exem?

plary,' one should, I would sup? pose, choose one to the exclusion of the other, since it is never wise to use two quite interchangeable terms to denote the same thing. Speaking for myself, I prefer 'exemplary,' not because 'puni? tive' is necessarily inaccurate, but 'exemplary' better expresses the policy of the law as expressed in the cases. It is intended to teach the defendant and others that 'tort does not pay' by de?

monstrating what consequences the law inflicts rather than sim?

ply to make the defendant suffer an extra penalty for what he has done, although that does, of course, precisely describe its ef

feet.

Whatever terminology is adopted, however, you will not maximize the

recovery for your client if, in the ap? propriate business tort setting, you do not gear your trial preparation for

seeking "punitive" or "exemplary" damages against the defendant.

Attorney Client

Privilege (Continued from page 20) client's possession?both favorable and unfavorable. Only if he is fully informed can he devise the most ef? fective strategy and tactics to pro? mote the client's goals.

Understandably, both attorney and client will attempt to cloak the unfavorable data with the attorney client privilege. Others, recognizing that this kind of data will be in the

attorney's possession, will attempt to have it disclosed on the record. Some of these contests may well end up in the courts. The result will be a further evolution of the attorney-client priv? ilege.

It is too early to predict the direc? tion of that evolution. There are forceful arguments in both direc? tions. The very fact that there are per? suasive reasons to deny the privilege, indicates that we may well soon see

attorneys forced to make full dis? closure of all data in their possession when the issue at stake is in the legis? lative arena.

Litigation

Ethics (Continued from page 36) curate but objectively false."

An interesting illustration of the

tendency to eliminate situational am?

biguities in remembering was pro? vided in the Senate Watergate hear?

ings. John Dean was testifying regarding a meeting with Herbert

Kalmbach. Dean had no incentive whatsoever to lie about that partic? ular incident. In fact, it was extreme?

ly important to him to state the facts with as much exactness as possible. He testified that he had met Kalm bach in the coffee shop of the May? flower Hotel in Washington, D.C., and that they had gone directly upstairs to Kalmbach's room in the same hotel. Dean was pressed several times on that point, in a way that im?

plied that his questioners had reason to believe that he was lying as to whether the meeting had taken place at all. Each time, Dean confidently reaffirmed his clear recollection about the incident. Finally, it was revealed that the register of the May? flower Hotel indicated that Kalm? bach had not been staying at the hotel at the time in question. Dean never? theless remained certain of the occur?

rence, putting forth the unlikely theory that Kalmbach had been using an alias. The difficulty was cleared

up when someone realized that there is a Mayflower Doughnut Coffee

Shop in the Statler Hilton Hotel in

Washington?and Kalmbach was found to have been registered there, under his own name, on the day in

question. Thus, Dean's basic story was confirmed. Without realizing it, however, Dean had inaccurately re? solved the ambiguity created by the coincidence of the two names by con?

fidently "remembering" the wrong hotel, and by inventing the use of an alias by Kalmbach, despite the fact that he had had every incentive to

report those details correctly and had come close to being seriously dis? credited because of his unconscious error.

Leading Questions

Questioning is, of course, an essen?

tial part of interviewing and pre? paring a witness for trial. It is partic? ularly noteworthy, therefore, that

questions, even * Straightforward

questions of fact," may play a very

strong part in inducing "importa? tion of detail" into the process of re?

membering, and that leading ques? tions, when purposefully used to in? duce error, succeed in doing so to a

startling degree. A recent study by Elizabeth Loftus showed that wit? nesses' estimates of the speed of an

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