Moody went back to sit beside Knowlton. The three justices carried on a hushed conversation for what seemed an extraordinarily long time. Robinson felt suddenly hotter than the heat of the day warranted.
He had been successful in convincing the judges that whatever Anna Borden planned to say about Lizzie’s chance com-merits on the voyage home from Europe should be excluded from the trial. He had been equally successful in arguing that Eli Bence, the druggist, should not be allowed to testify about her alleged attempt to buy poison on the day preceding the murders. But in comparison to the issue now before them, those other two were insignificant.
After scrutinizing the transcript made at the inquest, he had known for certain that Lizzie’s testimony — especially that concerning her whereabouts at the time of her father’s murder — was damaging in the extreme. He had carefully prepared the jury for the possible admission of the inquest testimony, questioning Dr. Bowen repeatedly about the drugs he had prescribed — morphine, no less! — for Lizzie in the days preceding the inquest. But he did not know whether this preparation would be enough to convince the jury that in her drugged state she had become confused by Knowlton’s questions, contradicting herself repeatedly, losing track of what she had earlier told him, spinning a web that would at best appear deceitful. He simply did not know. And so he waited nervously for the judges’ decision, hoping against hope that they would refuse to admit the inquest testimony, for if they did, he suspected all was lost.
Chief Justice Mason cleared his throat.
“The propriety of examining the prisoner at the inquest,” he said, “and of all that occurred in connection therewith, is entirely distinct from the question of the admissibility of her statements in that examination. It is with the latter question only that this Court has to deal.
“The common law regards this species of evidence with distrust. Statements made by one accused of crime are admissible against him only when it is affirmatively established that they were voluntarily made. It has been held that statements of an accused — as a witness under oath, at an inquest before he had been arrested or charged with the crime under investigation — may be voluntary and admissible against him in his subsequent trial. And the mere fact that, at the time of his testimony at the inquest, he was aware that he was suspected of the crime, does not make them otherwise.
“But we are of opinion, both upon principle and authority, that if the accused was at the time of such testimony under arrest, charged with the crime in question, the statements so made are not voluntary, and are inadmissible at the trial.
“The common law regards substance more than form. The principle involved cannot be evaded by avoiding the form of arrest if the witness at the time of such testimony is practically in custody. From the agreed facts and the facts otherwise in evidence, it is plain that Lizzie Borden at the time of her testimony was, so far as related to this question, as effectually in custody as if the formal precept had been served.
“Arid without dwelling on other circumstances which distinguish the facts of this case from those of cases on which the government relies, we are all of opinion that this consideration is decisive, and the evidence is excluded from this trial.”
Could she now begin to believe that what she read in the newspapers reflected a gradually changing tone? Could she further assume that this seemingly new bias in her favor was something shared by the jury? If experienced reporters from newspapers everywhere were beginning to be swayed by the inexorable flow of testimony in this courtroom, was it not possible that a jury composed largely of farmers, simple men all, were similarly being persuaded of her innocence?
The reporter for the New York Times had written:
The women who crowd the courtroom and who have been so much annoyed because Lizzie Borden does not cry, possibly felt better when — at the close of the reading of Judge Mason’s decision yesterday pronouncing in her favor on the question of the admissibility of certain evidence given by her at the coroner’s inquest — she bowed her head to the back of ex-Governor Robinson’s chair and wept.
It was not the kind of weeping that would probably satisfy the kind of women who have been criticizing her firm and almost stolid demeanor. There were no sobs, no wild gestures. Probably, indeed, only those who were close to her and who were watching her intently knew that she was crying. But they, if they looked closely, saw that her face was hidden and that it remained low-bent against the back of the chair for as many as ten minutes; that her handkerchief was at her eyes, and that when she lifted her face again her eyes were very red.
Even (he Baltimore Sun, which had published that hateful word-portrait of her (or so it had seemed at the time), now appeared to have softened its posture somewhat. Only yesterday, she had read:
Inside the courtroom, the center of all this melancholy business, sits a wretched woman borne down with the weight of an accusation than which in all the record of crime there is none more horrible. A woman of refinement, whose manner and bearing from the moment she took her seat in the prisoner’s dock until now have been exemplary. There has not been a look or a gesture, a word or an attitude suggestive of the qualities which she must possess, not vaguely or in small measure but developed in an abnormal and hideous degree, if she is the deplorable creature charged by the state.
Could she now dare to hope?
“When did you next receive anything, Professor Wood?”
I received from Medical Examiner Dolan the claw-hammer hatchet — that large hatchet which has been known as the claw-hammer hatchet.
Those two axes which have already been seen.
A large envelope containing three small envelopes, one labeled “The hair of Mrs. A. J. Borden, 8/7/92, 12: 10 P. M.”; the other labeled “Hair from A. J. Borden, 8/7/92, 12: 14 P. M.”; and the third labeled “Hair taken from hatchet.”
The envelope marked “Hair taken from hatchet” contained when I opened it two pieces of paper. This one, which was sealed and which contained a short hair — it does not now, it is empty now, but that is the paper in which the hair was enclosed — contained a short hair one inch long and containing both the root and the point of the hair. And when they had been examined under the microscope, it was seen to consist almost entirely of the central medullary cavity, which is unlike human hair, and it had a red brown pigment, and it is more similar to a cow’s hair than any other animal hair I have ever examined. It is sealed between those two glasses and can be readily seen if the glass is placed on a piece of paper.
It is animal hair, there is no question of that, and probably cow hair.
The envelope also contained a piece of paper which I examined very carefully without removing it from the envelope, and then I have examined with a lens every part of the inside of the envelope without finding any hair. It is marked “Hair placed here 1:57 P. M., 8/7/92,” and it contains only a mucilage spot in the center. That is, I was unable to find any hair on it at all, and that cow’s hair is the only hair which I have had as coming from the hatchet.
I would state that on examination of that stain upon the edge of the hatchet, the cutting edge, I found a good deal of woolen fiber and cotton fiber. That is, in this rough stain right near the back part of the cutting edge, the beveled edge. It contained quite a number of fibers of cotton. Whether that was upon the other hair or not, I don’t know. I never saw but one hair, and that is the one sealed in the glass.