Lizzie Borden gets off again

Axe murders retrial at Stanford draws
O’Connor, Rehnquist westward

by Kathleen O. Beitiks
Staff Writer


[Lizzie Borden]

The late afternoon heat brought to mind the summer of 1893 in the Massachusetts town of Fall River when Borden was acquitted of murdering her parents with a hatchet. The killings caused a sensation across the country, and the trial was covered with great relish by newspapers throughout the nation.

Borden went on trial again last month, with students and faculty of Stanford Law School re-enacting the case of the 32-year-old woman accused of hacking to death her stepmother and father.

There were mumblings in the audience about the uncanny similarities to the O.J. Simpson double murder trial in 1996, especially when the jury (audience members) decided there was enough reasonable doubt to hand down a "not guilty" verdict.

Johnnie Cochranisms

Defense attorney Barbara Babcock just couldn’t resist a few Johnnie Cochranisms ("If it doesn’t fit, you must acquit"), when she took a little literary license with lines like, "Without an axe or bloody dress, Lizzie’s not a murderess," and "Give us without a doubt and a worry, an honest verdict from an American jury."

In her summation, Babcock, a Stanford law professor, implored the jury not to be swayed by the popular rhyme of the day, "Lizzie Borden took an axe and gave her mother 40 whacks. And when she saw what she had done, she gave her father 41."

The re-trial of Borden was scheduled to celebrate the establishment of the new Judge John Crown Professorship in Law and to install Babcock as the inaugural Crown professor.

U.S. Supreme Court Justices Sandra Day O’Connor and William H. Rehnquist, both Stanford Law School alumni, presided over Borden’s re-trial. Rehnquist is the first Stanford graduate to be appointed to the Supreme Court, and O’Connor is the court’s first woman justice.

Prosecutor Charles J. Ogletree Jr. gave it the old college try, but it apparently wasn’t enough to convince the 700-member jury. Ogletree is a Stanford alum and law professor at Harvard University.

"This case is not about rhymes or gender," said Ogletree, "it’s about justice."

Only about justice

Ogletree then pointed out to the members of the jury that there was no forced entry, Borden later burned the dress she wore the day of the murders, there were rumors of Borden’s intense dislike of her stepmother, and her father was buried with the ring she gave him.

If the murders were committed the morning of Aug. 4, 1892, by an intruder, as Lizzie intimated, said Ogletree, then why did the doctor estimate Mr. Borden was killed 90 minutes after his wife’s death? "Did the burglar stick around for breakfast?" asked Ogletree.

Lizzie’s defense was bolstered by her older sister Emma’s testimony. Emma, who was out of town at the time of the murders, testified that Lizzie burned the new blue Bedford cord dress at her urging, because she ruined it earlier by rubbing against a freshly painted wall in the house.

Ogletree also brought up a conversation overheard by the jail matron in which Lizzie allegedly asked her sister if she had "given me away."

The hatchet head

Even the discovery of a hatchet head in a tool box in the basement didn’t sway the jury, despite a police officer’s testimony that the alleged weapon was covered with an ash-like dust on both sides of the blade. Other tools in the box were covered with a light dust, unlike that covering the hatchet.

The prosecution’s case was further hampered by two rulings from Justices O’Connor and Rehnquist.

Townspeople had testified that Lizzie allegedly attempted to purchase a poison, prussic acid, shortly before the murders. In fact, Lizzie’s mother consulted a doctor two days before the murder when the family suspiciously became sick after dinner.

However, Justice O’Connor ruled the evidence inadmissible.

"The prosecution has not been able to demonstrate that the acid could not be used for an innocent purpose," she said.

In addition, Justice Rehnquist ruled that Borden’s inquest testimony was inadmissible on the grounds that "the prisoner at the time, so far as relates to this question, was effectually in custody as if the formal precept had been served."

More than 30 defense witnesses

The defense called more than 30 witnesses on behalf of Lizzie, several who testified to seeing strangers lurking about the Borden house and barn.

The prosecution’s witnesses testified that the Borden family home was always locked securely and like an impenetrable fortress — and there were no signs of strange footprints near the barn or family home.

In the end, the Stanford audience apparently had some "reasonable doubts" about the case and, once again, vindicated Lizzie Borden.

Lest anyone (especially longtime Cal rivals) decide to do some sleuthing to find the real killer, Stanford President Caspar Gerhard jumped up immediately after the verdict and said, "I’d like to assure the jury that the Stanford axe was not involved in this unfortunate case. It was closely examined — and in any event, we almost never let go of it!"