Miranda before Miranda: The real reason for the acquittal of Lizzie Borden

Lizzie Borden took an axe, gave her father 40 whacks

When she saw what she had done, gave her mother 41.

--Popular jump rope rhyme

‘Dammit, sir’ Judge Stevens said, ‘Will you accuse a lady to her face of smelling bad?’

--Town fathers declining to investigate the stench of decaying flesh coming from Miss Emily Grierson’s house, William Faulkner’s “A Rose for Emily”

I became interested in the story of accused ax murderer Lizzie Borden when I was a child. We girls sang the above rhyme while jumping rope, and the story came to life for us as we watched the 1975 ABC television movie “The Legend of Lizzie Borden.” I recently re-watched a portion of the movie and was surprised at its overall quality and faithful adherence to the facts—rare attributes for a 1970s-era made-for-TV movie. (My sister and I were attracted to it for a different reason: It starred our favorite actress, Elizabeth Montgomery, who was better-known as Samantha from “Bewitched.”)

There was a small flurry of media articles about the case recently when Lifetime premiered its TV docudrama, “Lizzie Borden Took an Ax.” This renewed interest also renewed my own interest in the case, and so I’ve been re-reading David Kent’s excellent The Lizzie Borden Sourcebook (Branden Books, Boston, 1992). Mr. Kent has reproduced newspaper clippings, the transcript of the inquest, and other key documents from the Borden case, and it’s one of the best resources I’ve read on any trial. It’s quite powerful to have all of this key information compiled into one volume with no commentary. One can absorb all of the information and make up one’s own mind. I wish I had such a book for every notorious legal action in history, because it frustrates me that one or two talking heads will advance a theory of the case—and then that theory will become the prevailing one even though it is wholly unsupported by the facts. For example, I had bought into the theory that Lizzie Borden was acquitted largely due to her sex, but in reading the case materials, I have discovered that I was wrong.

Facts of the case and procedural history

Lizzie Borden’s father and stepmother, Andrew and Abby Borden, were murdered in their home in Fall River, Mass., on the morning of August 4, 1892, by repeated crushing blows to the head from an axe, hatchet, or similar tool.

Also living in the home were Mr. Borden’s adult daughters Lizzie, who was home at the time, and Emma, who was visiting friends in a nearby town, and the family’s maid, Bridget Sullivan, who was also home at the time. John Morse, the brother of Abby’s and Emma’s dead mother, was an overnight guest and had gone into town all morning on business. John, Emma, and Bridget were not suspected. John and Emma had solid alibis, and Bridget had no motive.

Lizzie Borden was arrested on August 11, 1892. After a sensational trial, a jury found her “not guilty” on June 20, 1893. Even though Lizzie was acquitted of murder, public opinion has not been kind to her. Many people assume that she was guilty and got away with it. Indeed, when I mentioned that I was writing about the case, many people were surprised when I reminded them that she was found not guilty and in fact lived as a free woman until her death at age 67.

Motive for murder

By many accounts, relations were tense at the Borden home in the months leading up to the murder. Andrew was a frugal patriarch, which frustrated Lizzie and Emma, who wished to keep up with the other young ladies in town with new dresses, a more fashionable address, and vacations. Further, Lizzie and Emma did not have a warm relationship with their stepmother, taking their meals separately and referring to her as “Mrs. Borden” and not “mother” or “Abby.”

Further, Andrew recently had grown impatient with Lizzie’s pet pigeons that she kept in the barn and had hacked them to death with a hatchet, and there was ongoing tension over whether Andrew would leave his daughters a large share of his estate in his will, or whether the bulk of it would go to stepmother Abby. Andrew’s former brother-in-law John was there to talk business with Andrew, too, which may have added to the family tensions.

Outside the home, Mr. Borden was a shrewd and unyielding businessman. While he appears to have been respected in town, he is reported to have been frustratingly tight-fisted as a landlord and loan officer.

In other words, while Lizzie had some motive for killing her father, it’s equally likely that other people did, as well.

Opportunity

To me, this is where the case gets tricky.

Both Lizzie and Bridget were cleaning windows and doing other chores both inside and outside the three-story house that morning. Andrew Borden was napping on the couch in a parlor on the first floor of the house, while Mrs. Borden was upstairs tidying a guest bedroom. Bridget the maid went upstairs to lie down in her bedroom on the third floor of the house. (The entire family had fallen ill to apparent food poisoning, because cheapskate Andrew had insisted that the family gamely continue to eat a mutton stew that had languished in the kitchen for days.)

At some point during the morning, the killer attacked Mrs. Borden in the upstairs guest bedroom, disabling her with a blow above the ear and then finishing the job with 19 hacks to the back of the head as she lay on the floor. Later, the killer stood over Mr. Borden as he slept on the sofa and delivered 11 blows. (Everyone who comments on this case wryly notes at this point that it wasn’t 40 and 41 whacks, so I will, too.)

Because the family religiously kept the doors locked and because the house sat on a busy street where a man fleeing the scene and covered in blood would be noticed, most of the suspicion focused on Lizzie, who was the only person in that part of the house and who had a motive, however tenuous. Nothing was missing from the home, although cash and other valuables were at hand. Further, Lizzie gave several contradictory statements to the police and generally acted suspicious, for example burning a dress that she said was ruined because she had accidentally brushed up against wet paint while wearing it.

Did Lizzie do it?

I think it’s impossible to say. While her disdain of the elder Bordens, unique access to the murder scene, and suspicious behavior make her the likely culprit, it seems equally unlikely that a relatively sane woman who wasn’t violent before or since hacked to death her parents in cold blood for no good reason. Further, it’s not easy to use an axe. If you’ve ever tried to chop wood for the first time, you know how much practice and upper body strength it requires. It’s hard to imagine that a woman who had never or rarely used hand tools and who wasn’t very large or strong could carry out these murders. Also, Lizzie wouldn’t have had time to leave the house or change clothes, so why wasn’t she covered in blood, and where did she stash the murder weapon?

While it seems hard to believe that an outside party could have committed these crimes, it’s equally hard to make the facts of the case fit Lizzie, too. This ambiguity, coupled with the lack of forensic technology of the day, means that we’ll never know.

Just because I’m a woman

Without fail, whenever I bring up this case, someone will remark: “She was clearly guilty, but I think she was acquitted simply because the jury couldn’t fathom that an upper class lady of the day could commit such a crime.” I used to agree, but now I’m not so sure.

First, Lizzie was arrested and tried for the crime—and was judged guilty in the court of public opinion—so it was apparently easy for Lizzie’s community to imagine that a lady could hack her parents to death in cold blood. Also, while it was somewhat rare, women were of course convicted of crimes in the 19th century. Notably, in 1865 Mary Surratt was convicted of conspiring with John Wilkes Booth and others to assassinate President Lincoln, and she became the first woman to be executed by the federal government.

While it’s likely that the jury were uncomfortable with the idea that one of the town’s daughters was guilty of these gruesome crimes, I think the real problem here was one of evidence.

Body of evidence

First, police were unable to find a murder weapon. They found two hatchets in the home’s basement, but neither tool could be definitively shown to be connected to the murder. (With today’s forensic science, the crime lab would test for traces of blood and tissue and would determine whether the cutting edge of either hatchet matched the victims’ wounds, but this level of analysis wasn’t available at the time.) Secondly, while police tested stomach contents and attempted to determine the time of death based on the date at which the victims’ blood congealed, they were unable to pinpoint the time of death with any certainty as they might be today. This perhaps would have been helpful in establishing Lizzie’s degree of opportunity to commit the crimes. Further crime scene analysis might have inquired into whether Lizzie possessed the necessary height and weight to deliver the blows at that angle.

The most damning evidentiary deficiency, however, was one of admissible testimony, and it’s fascinating to me that the misstep here can and does happen today.

Under arrest

Thanks to TV cop shows, we’re all familiar with “you have the right to remain silent… anything you say can and will be used against you in a court of law… you have the right to talk to a lawyer.” This is a restatement of your Fifth Amendment right to not testify against yourself when you’re a criminal defendant and Sixth Amendment right to be represented by a lawyer. The 1966 case Miranda v. Arizona prescribed the familiar words that we know today, but the underlying requirement has always been the same: When a person is under arrest, he or she cannot be compelled to answer questions and must be given the opportunity to have the assistance of counsel.

Between the date of the murders (Aug. 4) and Lizzie’s being locked up (Aug. 11), police questioned Lizzie at length, and the state held a three-day inquest at which Lizzie was called to testify. She made plenty of damning and contradictory statements during this period. Even though she wasn’t in jail, she was not “free to leave” and was therefore technically under arrest. The State of Massachusetts, in the form of the police questioning and the inquest, violated Lizzie Borden’s Fifth and Sixth Amendment rights by compelling her to answer questions against her own self-interest even though she was to become a criminal defendant, and they did it while denying her the right to an attorney.

When the prosecution tried to admit this testimony at her trial, the defense objected, and the judge sustained. The prosecution was left with its case of flimsy circumstantial evidence and no murder weapon, and I argue that this is the primary reason that the jury (correctly) acquitted Lizzie Borden.

Crime, no punishment

Lizzie Borden inherited her portion of her father’s estate and bought a better house in the nicer section of town. She lived a quiet life and died at age 67. After her acquittal, the State didn’t seriously pursue another suspect. Lizzie left a large portion of her estate to the local animal rescue league—to prevent cruelty to living creatures.