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  In the middle of this circus, poor Christian Ross stopped eating, stopped working, and grew so weak that he was reported near death. Despite the efforts of the Ross family and those who tried to help them, no rendezvous with the kidnappers could ever be arranged.

  Judge Charles Van Brunt, a member of the New York Supreme Court, had been raised in a grand house in the Bay Ridge area of Long Island, and continued to use this house as a summer residence. After midnight on December 14, 1874, two men broke into the house, not realizing that it had been recently equipped with an invention of which they had probably never heard: a burglar alarm that sounded not there, but at the nearby house of Van Brunt’s brother, Holmes. Holmes Van Brunt, his son and a man who worked for them grabbed their pistols and went to the house. They could see lanterns moving about inside. They staked out the house, waiting for the burglars to emerge. It was very cold. After a couple of hours they grew tired of waiting, and decided to force the issue. Charging through the doors, they confronted the burglars. The intruders opened fire, and a gun battle ensued. Within moments one of the burglars was dead, and the other, a career criminal named Joe Douglas, was dying. He asked for whiskey, and said that he had something to say before he died. They had stolen Charlie Ross, he said—he and the other burglar, Bill Mosher. He had helped Mosher to kidnap Charlie Ross.

  The gunfire had awakened the neighborhood, and there were multiple witnesses to whatever else was said that night. Some people thought he said that only Mosher knew what had happened to the boy. Others thought he said that Mosher’s wife knew where he was, and he would be returned now, and others, that he had said that the boy was dead. Douglas didn’t live long enough to straighten this out, and he was less than cogent at the time of his confession.

  There was a New York City Police Inspector, Washington Walling, who was something of a publicity hound … somebody should write a book about him. He shows up in dozens of crime stories. A beautiful blonde woman found in a trunk; Inspector Walling is on the case. Anyway, one version of Douglas’ deathbed confession reported that he said Inspector Walling knew all about it. Apparently, Walling had suspected for months that Mosher and Douglas had committed the crime, and he and his men had been chasing them and harassing their relatives all along, trying to find them; this, at least, is the story Walling fed to the press in mid-December.

  There is no doubt that Mosher and Douglas did in fact commit the crime. They matched the description of the criminals given by Walter Ross and others. Mosher had a red, misshapen nose—the “monkey nose” that Walter had described. Shown pictures of the culprits, Walter confirmed that those were the men who had abducted him. An uncle and various other people in Germantown remembered that the pair had been hanging around in the days before the kidnapping.

  Mosher’s wife now went on the lam, and the next task of the investigation was to find her. Finally located, she could tell officers nothing about the fate of Charlie Ross. Mosher’s brother-in-law and criminal associate, William Westervelt, was arrested and put on trial on a charge of assisting in the kidnapping. He was convicted of unrelated crimes but there was no evidence that he had had anything to do with Charlie Ross.

  Christian Ross recovered, wrote a book about the experience, and searched for Charlie until he died in 1897. In February, 1878, he traveled to Baltimore to see a boy who was reported to look like Charlie. He told the New York Times that this was the 573rd boy that he had been called to see or had been written about. “My hundreds of failures to identify each waif as my own,” he said, “has taught me to entertain no sanguine hope. I suppose I shall continue going to see boys till I die, but I don’t expect to find Charlie in any of them.” Charlie’s mother also recovered from whatever was ailing her, lived until 1912, and she also hoped for Charlie’s return and searched for him as long as she lived. The spate of copycat crimes ceased after the deaths of Mosher and Douglas. There wasn’t another high-profile kidnapping for ransom in America during the rest of the 19th century (although there were some minor, local kidnapping stories in the 1890s). But for decades later, people would step out of the shadows claiming to be the little lost boy. None of them ever was.

  In all likelihood, Charles Brewster Ross was dead before nightfall on July 1, 1874. Later experience has shown that this is what most commonly happens in cases of this type. His abductors do not appear to have made any plans or provisions for his care. Mosher’s partner in crime, Joe Douglas, claimed or may have claimed that he did not know what had happened to the boy after the kidnapping. Although Ross’ father repeatedly offered to pay for the return of his son, and although money was raised for this purpose, the kidnappers never came through on an offer to return the boy. It is unclear whether the parents were in fact corresponding with the actual kidnappers, or whether the letters were sent by a con man trying to intervene in the crime.

  “The details of the abduction of Charlie Ross, and of the subsequent discovery of his kidnappers,” wrote the Chicago Tribune on December 19, 1874, “excel in romantic interest any story of crime yet conceived by romancer or playwright. The disappearance of the child, the alternations of hope and despair in the hearts of the afflicted parents, as news came from time to time that their boy had been discovered, the various threads of rumor that the officers unraveled only to find that they led to nothing, the pursuit of the real kidnappers for months by the detectives acting under the orders of Inspector Walling, of New York, and the manner in which they avoided them and finally put them off the scent altogether, and the tragical denouement a few days ago, which discovered them, and at the same time brought a swift and terrible revenge upon them, form a series of chapters in one of the most thrilling episodes of crime ever known in this country.”

  The New York City police were in a very different place in 1874 than they had been 33 years earlier, at the time of the Mary Rogers case. In 1841 the New York police went to crime scenes, responded to emergencies, kept order, sorted out disputes, arrested people, conducted investigations at the direction of the coroner or the prosecutors, and beat the truth out of people they suspected of wrongdoing. They weren’t organized to conduct an investigation into a mysterious death or disappearance. In 1841 the concept of a detective barely existed. To the best of my knowledge, the word “detective” never appeared in a New York newspaper until the late 1840s.

  By 1874 New York City had squads of detectives, including one which spent a lot of time investigating a crime that had happened in Philadelphia. But even in 1874 there was no police training of any kind for at least 99% of the nation’s police. You learned to be a policeman by being a policeman. In order to get Inspector Walling to investigate the abduction, Christian Ross had agreed to pay the expenses of the investigation, a common practice at the time. Further, and more shockingly, it was common, in this era, to hire ex-convicts as police officers. I’m not sure about New York, but throughout the West and in Philadelphia, certainly, there was no prohibition against hiring people with criminal records to work in law enforcement, nor was there any general feeling that this was improper. The police needed to be tough guys; you hired tough guys. If they had done things wrong in the past … well, I’d rather have them working for us than working against us.

  This policy was, in a narrow sense, enlightened. Modern society causes problems for itself by making it too hard for a young person who makes mistakes to get back into the pathways of success. Even in 19th century America, it was SOP to roust the ex-cons when a crime had been committed, to harass them, to make them the first suspects when you didn’t know who had done something. But if a man got out of jail, got a job, stayed clean a few years … well, you didn’t hold the past against him.

  I would argue that in a certain sense, that’s an appropriate policy, although obviously not for the police. Throughout the West, there were many cases in which people who had criminal records got hired as police officers, and continued their criminal careers under the protection of the badge. In the 1880s, when the frontier west ended, there was a ki
nd of a sea change, and it was realized then that this was improper.

  Jesse James was murdered in St. Joseph, Missouri, on April 3, 1882. Like Charlie Ross, people stepped forward for years afterward claiming to be Jesse James. The last and best-known of the Jesse James imposters, J. Frank Dalton, died in 1951, still claiming that he was Jesse.

  The judicial system treated the Wild West bandits with an unusual degree of understanding. Those who surrendered and survived—Frank James, Cole Younger, Emmett Dalton—served a few years in prison and then went on with their lives; people would not have run around claiming to be Jesse James if this was not true. The West was closing up. The cattle drives ended in the early 1880s. Reconstruction ended in the South. Automobiles and movies and telephones and record players and electric lights and unions washed the continent. The world in which these men had murdered and robbed and plundered no longer existed, and no one felt much need to punish them here and now for the crimes they had committed long ago and not merely far away, but in a place that wasn’t anywhere anymore.

  V

  If there’s a strange coincidence, you let it pass. If there are two, you can still let it go. When it gets to three, well, in the end you have to say that it’s no longer a coincidence.

  —ARTURO MINOLITI, QUOTED IN THE MONSTER OF FLORENCE

  On the morning of August 3, 1892, Abby Borden visited her doctor, who was also her neighbor, and complained that she thought she might have been poisoned. She was ill—so was her husband, for that matter, and the maid wasn’t feeling too hot, either. Somebody was trying to poison them. The doctor assured her that it was nothing serious, that nobody was trying to poison her, and she should go home and sleep it off.

  Later that morning, Lizzie Borden visited a local drug store, and tried to buy some poison. Lizzie was Abby Borden’s stepdaughter, and none too fond of the old woman. She had a sealskin cape, she told the druggist, and the insects were getting into it. She wanted to buy some prussic acid to treat the cape. The clerk refused to sell her the prussic acid without a prescription.

  On the following morning, Andrew and Abby Borden were murdered inside their home in Fall River, Massachusetts. To this point, I have avoided using the word “blood” in this book; also the words “angst,” “cuspidor,” “turquoise,” “disgusting,” “arachnid” and “rectal thermometer,” but you get my point. We can’t get past the Borden murders without blood; there was blood everywhere. It was a gruesome murder, each of the elder Bordens being struck in the head a dozen or more times with an axe or a hatchet of some kind. Lizzie discovered the body of her father a little after 11 o’clock in the morning. He was in a downstairs sitting room, probably dozing off at the time he was murdered. Lizzie yelled for the maid, Bridget Sullivan, told her that her father had been murdered, and sent her across the street to summon the doctor. The doctor was away, but she (Bridget) told the doctor’s wife what had happened, while Lizzie, waiting anxiously outside, alerted another neighbor. The neighbor and the maid discovered the body of Abby Borden in a room at the top of the stairs. By 11:30 the police, the doctor and an assortment of neighbors, relatives and passers-by were on the scene. By 11:45 they had been joined by seven more policemen and the medical examiner.

  The three essential facts about the Lizzie Borden case are:

  1) That it is almost impossible to see how Lizzie could have committed the crime,

  2) That it is very, very difficult to understand how anyone else could have committed the crime, and

  3) That Lizzie made a number of statements about the case that were self-contradictory and in conflict with the testimony of other persons.

  It is difficult to see how Lizzie could have committed the crime because there simply was not time for her to have committed the crime, cleaned herself up, and disposed of the murder weapon. The time frame of the murders—we’ll spell it out in detail later—is very, very tight. Andrew Borden must have been attacked between 10:55 and 10:58 AM. Lizzie yelled for the maid just moments after 11 AM. These events are pinned in place by a long list of time-stamped observations.

  On the other hand, the alternative explanation seems equally improbable—and Lizzie did make a large number of apparently untrue statements about the crime. How do we figure it out?

  The police thought it was obvious that Lizzie had done it. After all, they said, only Lizzie had the motive, the means and the opportunity …

  As a framework for the logic of convincing evidence, the prosecutorial troika of motive, means and opportunity is as useless a set of concepts as anyone could conceivably come up with.

  Let us suppose that it was possible to make a mathematical system to evaluate the evidence against a person accused of a crime. I know, I know, I know; this is totally impossible, it’s ridiculous, it’s absurd, it can’t be done, logic doesn’t work that way; I understand all of that, I get it. I’m just saying … what if? If I could flap my arms and fly to San Jose, which way would I need to go?

  My first thought, in trying to puzzle out this problem, was to try to put a “weight” or “value” on each piece of evidence, and thus to weigh the evidence pointing to innocence against the evidence pointing toward guilt. The presumption of innocence, in that system, would be represented as a kind of dead weight that must always be overcome by the prosecution—a 50-point rock, let us say, that is always added to the defendant’s side of the scale.

  There are three problems with this concept. One is the unoriginal observation that it is often impossible to prove innocence. Suppose that you were required to prove that you didn’t murder Chandra Levy. Where were you when Chandra was murdered? Can you prove it? We all understand that you can’t prove a negative, and this premise underlies the judicial system.

  A more practical problem with that framework for “scoring” the balance of the evidence in a criminal case is that it is in many cases impossible to say where a piece of evidence fits on the scales. There are, in almost every criminal trial, numerous pieces of evidence that are claimed by both sides. How do you deal with these? Split them? Toss them out?

  It isn’t the evidence itself that forms an argument against the accused; it is the story told by the evidence. There is a different story in every case, and this is what makes it impossible to place numerical values on the evidence, or makes it seem impossible. The evidence is a sort of a map. What matters is not how big the pieces of evidence are, but how they are arranged.

  The third problem with the “scales of justice” mathematical model is that it provides no guidance as to what to do with cumulative evidence. A great deal of what is said in criminal trials, by both sides, is true and relevant evidence, but bears an uncertain relationship to proof beyond a reasonable doubt. The easiest example is in the O. J. Simpson case, where Marcia Clark opened the prosecution by proving that Simpson was an abusive husband—and then proved it again, and proved it again, and proved it again. The evidence was not irrelevant. It was certainly relevant to the case whether O.J. was or was not abusive. The evidence may not even have been cumulative in the legal sense of the term, that it proved a fact that had already been established. Since there were numerous incidents during which Simpson was abusive, the prosecutor was legally entitled to introduce evidence of several of these if she chose to do so. It was cumulative in a slightly different sense: that it proved a point that was already on the scoreboard.

  In a “scales of justice” point count system, each incident in which Simpson was abusive might be seen to carry a certain weight. The problem is, ten of these incidents don’t weigh significantly more than one. As the jury saw it, proving that O.J. was abusive was some small portion of what the prosecution needed to prove—5% maybe, or 10% at most. The rest of it was a waste of time. Clark thought that she could poison the jury’s mind toward O.J. by showing what a bad person he was, but it backfired on her. The jury saw instead a prosecutor who was insulting their intelligence by hammering for weeks on a point already proven, and they turned against her because of it.

&
nbsp; My second thought was that perhaps we could contain this “redundant weight” effect by breaking down what must be proven into the categories cited 47 times every day on truTV: motive, means and opportunity. Suppose that what must be proven is 33% motive, 33% means, 33% opportunity. O.J.’s abusive history goes to motive, I suppose, so the limit of the value given to that might be 33 points.

  But working with the actual evidence in criminal cases, what quickly becomes apparent is that the real evidence bears not the slightest resemblance to the so-often-cited structure of motive, means and opportunity. The problem with the concept of motive, means and opportunity is that hundreds of thousands of people every year have the motive, means and opportunity to commit crimes that they had absolutely nothing to do with. Suppose that you apply this concept of “proof” to some ordinary event. Let us suppose that the prosecution is trying to prove that you purchased a melon last Saturday. Did you have a motive to purchase a melon? Well, yeah … I was hungry and I like watermelon, so I guess I had a motive to purchase a watermelon. Did you have the opportunity to purchase a watermelon? Well … sure. There’s a grocery right next to my office, and they had watermelons on sale for 49 cents a pound. I guess I had the opportunity to purchase one. Did you have the means to purchase a watermelon? Well … sure. What’s a watermelon cost, five, six dollars? I certainly can’t deny that I did have the means to purchase a watermelon.