“Now his knowledge and skill may enable him to form an opinion upon the subject with greater or less correctness; but the question to be dealt with is by its essential nature different from the other. If you should accept his testimony as correct and satisfactory on the first subject, it would not necessarily follow that you should on the second.
“So as to whether certain wounds in the skull were caused by a particular hatchet head or could have been caused by that hatchet head only, if you have the hatchet head and the skull you may think you can apply them to each other and judge as well as the expert. I call your attention to the subject in this way to make clear to you, first, that you are not concluded on any subject by the testimony of the experts, and, second, that it is important to apply to their testimony an intelligent and discriminating judgment.
“Gentlemen, we have given our attention to particular aspects of this case and of the evidence. Let us look at it broadly. The Government charges the defendant with the murder of Mr. and Mrs. Borden. The defendant denies the charges. The law puts on the Government the burden of proving beyond reasonable doubt every fact necessary to establish guilt. The defendant is bound to prove nothing. The law presumes she is innocent.
“The case is said to be mysterious. If so, the defendant cannot be required to clear up the mystery. There is no way, under the law, by which the burden of proof as to any essential matter can be transferred to her. The Government offers evidence. She may rest on the insufficiency of that evidence to prove her guilt, or she may also offer evidence partially to meet or rebut it, or raise a reasonable doubt as to any part of the Government’s case. You are not to deal with the evidence in a captious spirit, but to allow it to produce on your minds its natural and proper effect.
“In such a case as this, or in any case, you cannot be absolutely certain of the correctness of your conclusions. The law does not require you to be so. If, proceeding with due caution and observant of the principles which have been stated, you are convinced beyond reasonable doubt of the defendant’s guilt, it will be your plain duty to declare that conviction by your verdict. If the evidence falls short of producing such conviction in your mind, it would be your plain duty to return a verdict of not guilty. If not legally proved to be guilty, the defendant is entitled to a verdict of not guilty. The law contemplates no middle course.
“Gentlemen, I want to refer at this point briefly to one or two matters, not in a connected way, where it seems proper to me that a brief suggestion should be made. Something was said in regard to evidence tending to show the defendant had made statements in regard to presentiments of some disaster to come upon the household. And you were asked to look upon those statements — which were testified to by one of the witnesses — as evidence tending to show that the defendant might have been harboring in her mind purposes of evil with reference to the household. Statements made only, I believe, the day before this calamity fell on the household, only the day before the deed was done by the defendant, if she did it.
“Now, in considering that evidence, you should not necessarily go off in your view of it upon the suggestion of counsel, but, so far as you deem it important, hold it before your minds, look at it in all its lights and bearings, and see whether it seems to you reasonable and probable that a person meditating the perpetration of a great crime, would, the day before, predict to a friend, either in form or in substance, the happening of that disaster.
“Suppose some person in New Bedford contemplated the perpetration of a great crime upon the person or family of another citizen in New Bedford, contemplated doing it soon. Would he naturally, probably, predict a day or two beforehand that anything of the nature of that crime would occur? Is the reasonable construction to be put upon that conversation that of evil premeditation, dwelt upon, intended, or only of evil fears and apprehensions?
“Take this matter of the dress, of which so much has been said, that she had on that morning. Take all the evidence in this case, Bridget Sullivan’s, the testimony of these ladies, Dr. Bowen’s. Taking the evidence of these several witnesses, considering that evidence carefully, comparing part with part, can you gentlemen extract from that testimony such a description of a dress as would enable you from the testimony to identify the dress?
“Is there such an agreement among these witnesses — to whom no wrong intention is imputed by anybody — is there such an agreement in their accounts and in their memory and recollection, and in the description which they are able to give from the observation that they had in that time of confusion and excitement, that you could put their statements together, and from those statements say that any given dress was accurately described?
“Gentlemen, I know not what views you may take of the case, but it is of the gravest importance that it should be decided. If decided at all it must be decided by a jury. I know of no reason to expect that any other jury could be supplied with more evidence or be better assisted by the efforts of counsel. The case on both sides has been conducted by counsel with great fairness, industry and ability. You are to confer together; and this implies that each of you, in recollecting and weighing the evidence, may be aided by the memory and judgment of his associates. The law requires that the jury shall be unanimous in their verdict, and it is their duty to agree if they can conscientiously do so.
“And now, gentlemen, the case is committed into your hands. And, entering on your deliberations with no pride of opinion, with impartial and thoughtful minds, seeking only for the truth, you will lift the case above the range of passion and prejudice and excited feeling, into the clear atmosphere of reason and law. If you shall be able to do this, we can hope that, in some high sense, this trial may be adopted into the order of Providence, and may express in its results somewhat of that justice with which God governs the world.”
It was now twenty-eight minutes before five o’clock.
The jury had been out of the courtroom since twenty-four minutes past three. Among the articles they had taken with them to assist in their deliberation were the plans and photographs marked as exhibits in the case, the skulls of her father and Mrs. Borden, the bedspread and pillow shams from the guest room, a piece of doorframe taken from inside the dining room, a piece of molding taken from the guest room, the two axes, the claw-hammer hatchet, the handleless hatchet and bit of wood, Lizzie’s blue blouse and dress skirt, her white skirt — and a magnifying glass.
Only moments before, Robinson had assured her that there was no need for concern, so convinced was he that upon the evidence submitted to the jury they would never return a conviction. She had said nothing. Nodding, she had merely listened, cognizant of the very real possibility that the jury would not share Robinson’s views on the matter before them.
They were coming back into the courtroom now.
Solemnly they filed into the jury box.
“Gentlemen of the jury will answer as their names are called,” Chief Justice Mason said. “The crier will count as they respond.”
The court crier intoned their names, one after the other.
“George Potter.”
“Present.”
“William F. Dean.”
“Present.”
“John Wilbur.”
“Present.”
“Frederic C. Wilbar.”
“Present.”
As each man responded in turn, Lizzie studied his face for some clue to the verdict.
“Lemuel K. Wilber.”
“ Present.”
“William Westcott.”