wrote The Counterfeit Man (1990) to justi- fy that conclusion, satisfied that Jesse’s sub- sequent confession in 1860 was correct.68 Should the Court have realized the fraud, if it did exist? We must take the question from the perspective of Chief Judge Chase, and decide whether the case should be given to the jury at the close of evidence. In 1844, English essayist Charles Spear
wrote that the Boorn murder trial “has been cited nearly all over the civilized world, and it has done much to modify our system of criminal jurisprudence.”69
It was done more
than that. It has served as a lesson, to be re- told and repeated, in various versions, to re- mind us of our fallibility and overreliance on the law as a mechanism for the revelation of truth. Mistakes will be made. Innocence will sometimes look like, and be found to be, guilt. It teaches us to be conservative and ignore public hysteria, and exercise the power of law with extraordinary caution. What a great Vermont story this is. Is
there any incident in our history that has been so well documented and discussed? Few offer such a rich look into the hearts of the people of 1819 in this country. This sto- ry will never die. It will be told and retold to generations of people to come. Part of its attraction is its characters and its language. There are so many memorable phrases in the story—that Stephen put Russell where potatoes won’t freeze; Russell’s statement in New Jersey, when first confronted by a visitor seeking his return, that “I used to be Russell Colvin, but I am no longer. I have be- come another man.” And the details, the wonderful details—the four physicians who can’t agree on whether a bone found at the barn is human, and how one sends some- one four or five miles north to Mr. Salis- bury’s, to dig up the leg he had amputated a few years ago and bring it to Manchester, where it quickly shows everyone the bone found at the barn isn’t human. That must be as much metaphor as background. And the characters: Sally Colvin, woman of passion; Stephen Colvin, angry and unhappy; Jesse, frightened and confused; Reverend Lemuel Haynes, their pastor, and the pastor of most of the villagers. The court, the lawyers, the jury: all still alive for us, through this won- derful, troubling, fascinating, dreadful story. History doesn’t teach lessons. It mocks us
with its rudeness. Here is a community act- ing together, through legal means, to an- swer a question that had to be asked and answered. What happened to Russell Col- vin? It couldn’t be ignored. People couldn’t sleep comfortably, fearing there was a mur- derer among them. Justice demanded ac- tion, and while it took seven years it came to Jesse and Stephen Boorn and to Man- chester Village, and so to the courthouse, where official inquiries are made and trials are held, where justice and truth are sought. Had Russell Colvin not returned at all to
www.vtbar.org THE VERMONT BAR JOURNAL • SUMMER 2012 15
Manchester, no one would have questioned the actions of the court. In hindsight, once the victim was found alive, the critics jumped on Chase, Doolittle, and Brayton for being party to a near tragedy, through alleged mistakes of evidence and control of the tri- al. Chief Justice Moulton’s defense has not ended the debate on those questions, but there are improvements. Today, confessions are treated with a greater suspicion than the Boorns’ were. Better evidence gathering techniques are available to protect against wrongful prosecution, conviction, and exe- cution. The jury’s authority does not extend to deciding questions of law. Circumstantial evidence is the antonym of
direct evidence. Direct evidence is evidence that proves a fact without any inference or presumption.70
The lack of a body does not
prevent a finding of guilty for murder. Cor- pus delicti does not mean “the dead body in a murder trial,” as one applicant once wrote on a bar examination; it means the “body of a crime,” and in a murder trial, the evidence of a death and a criminal agency as its cause.71 We cannot retry the Boorns, but we can try to understand what happened, and learn from it.
____________________ Paul S. Gillies, Esq., is a partner in the Montpelier firm of Tarrant, Gillies, Merriman & Richardson and is a regular contributor to the Vermont Bar Journal.
____________________ 1
Judicial History Society. 2
Seventeenth Annual Seminar of the Vermont There are many different sources of the
Boorn murder trial, including Chief Judge Dud-
ley Chase’s notes, witness by witness, in the 1819 Vermont House Journal, pp. 185-195; Rev. Lem- uel Haynes, Mystery Developed: or, Russell Col- vin, supposed to be murdered, in full life; and Stephen and Jesse Boorn (his convicted murder- ers), rescued from ignominious death by Wonder- ful Discoveries (first published in 1820), reprint- ed in TIMOTHY MATHER COOLEY, SKETCHES OF THE LIFE AND CHARACTER OF THE REV. LEMUEL HAYNES, A.M., 216-252 (1837); LEONARD DEMING, A COLLECTION OF USEFUL, INTERESTING, AND REMARKABLE EVENTS, ORIGINAL AND SELECTED, FROM ANCIENT AND MODERN AUTHORITIES 6-77 (1825); The Trial of Stephen and Jesse Boorn for the Murder of Russel Colvin, Bennington, Ver- mont, 1819, in AMERICAN STATE TRIALS 73-95 (John Davison Lawson ed., 1916); LEONARD SARGEANT, THE TRIAL, CONFESSIONS AND CONVICTION OF JESSE AND STE- PHEN BOORN FOR THE MURDER OF RUSSELL COLVIN, AND THE RETURN OF THE MAN SUPPOSED TO HAVE BEEN MUR- DERED (1873); SHERMAN ROBERTS MOULTON, THE BOORN MYSTERY (1937); JOHN SPARGO, THE RETURN OF RUSSELL
COLVIN (1945). 3
Colvin was brought back to Manchester by a man named Whelpley, acting on a contract made with the City of New York, following the publica- tion of a notice, originally conceived by Stephen while in jail following his conviction, asking for the whereabouts of Russell Colvin. Colvin was locat- ed in New Jersey, claiming to be somebody else, working at a farm that he believed he owned, and was lured to Vermont against his will. The story of the coincidences that led to his arrival in Man- chester is fully explained in Sargeant’s synopsis. SARGEANT, supra note 2, at 11-14. When Russell arrived in Manchester, there were
4
large crowds and loud cheering. A cannon was produced, with the honor of the first firing given to Stephen himself, still in chains as he was still of- ficially a prisoner, followed by forty-nine more dis-
charges. Id. at 14. 5
Id. at 14. 6 America’s First Wrongful Murder Conviction
Case, Center for Wrongful Convictions, North- western Law Bluhm Legal Clinic, at http://www.
law.northwestern.edu/wrongfulconvictions/exon-
SARGEANT, supra note 2, at 73.
Ruminations: The Trials of Jesse and Stephen Boorn
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