Editor’s note: To read Part I of this 3-part series, click here; to read part II, click here.
About Connections: Love it or hate it, history is a map. Those who hate history think it irrelevant; many who love history think it escapism. In truth, history is the clearest road map to how we got here: America in the twenty-first century.
The Verdict
Judge Stevens entered the courtroom a few minutes late. He sat and addressed the jury, “Mr. Foreman and gentlemen of the jury, a motion has been made to take this case from the jury.”
Once the prosecution rests its case, it is not unusual for the defense to ask the judge to dismiss a case on the grounds of insufficient evidence. The burden of proof rests on the prosecution. They must prove beyond a reasonable doubt that the defendant did it; only the defendant to the exclusion of all others. The defense motion generally states that “the state has not met its burden.”
The judge rarely grants the motion and usually lets the jury decide but not in the Fosburgh case.
“It has become my duty to say to you that in the opinion of the court the government has not furnished proof sufficient to sustain a verdict of guilty against the defendant and therefore under the direction of the court in the indictment against Robert S. Fosburgh for killing his sister, you will return a verdict of not guilty.”
It was a directed verdict. Unlike a dismissal or a hung jury, the charge could never be brought against Robert Fosburgh Jr. again. Even if additional evidence, the gun for instance, came to light, there was a trial and a verdict, and therefore, he could not be tried for the same crime again.
The judge based his decision upon the fact that the government did not prove that the answers to three questions were in the affirmative. “First, that she was not shot by burglars. Second, that she was shot by her brother to the exclusion of the possibility that she was shot by any other family member. Third, that the act was a criminal act.”
Eight minutes into the eighth day of trial, it was over. Some may have sat silently, but overall the courtroom erupted in applause. All the Fosburghs walked back across the park to The Wendell. In the hotel lobby, there was a celebration complete with music from the house orchestra. The Fosburgh family formed a receiving line. Bert and Amy thanked everyone they could think of and Fosburgh Sr. told the press how gratified he was. Then even the celebration was over.
The Fosburghs immediately left town. That night daughters Esther and Beatrice went to friends in Adams. Bert and Amy left for a trip to Nova Scotia. Mr. and Mrs. Robert Fosburgh Sr. with James went to Tyler Street to oversee the packing and then left. They stopped in Nahant on their way to Maynard where Fosburgh & Sons construction had another job. No Fosburgh would ever return to Pittsfield.
Looking Back
A reporter searched the record wondering how the D.A. could have brought a case on such flimsy evidence. He found a confluence of events that could have defeated anyone.
The Grand Jury indicted on a case that relied upon eye witness testimony and more forensic evidence than was commonly presented in trials in 1901. The case was presented by the Berkshire County District Attorney with Dr. Frank Paddock, Medical Examiner, as expert witness. So what happened?
The DA became dangerously ill and was replaced at the last moment. While DA Hammond from Hampshire County was probably equally competent, he was not as familiar with the case. The witnesses changed their stories with impunity.
The Medical Examiner became ill. Dr. Paddock’s testimony, delivered by a sick and breathless man, sounded weak. Furthermore, the Judge excluded pieces of the evidence that the Grand Jury heard. Paddock died shortly after testifying.
The case presented to the jury was radically different from the case presented to the Grand Jury in the following ways.
There were five women and three men in the house on August 20. May was dead; Bertha was gone; all three of the other women, Mrs. Robert Sr., Mrs. Robert Jr., and Beatrice testified that they did NOT see or hear burglars. James testified that he did NOT see or hear burglars.
There were two shots fired and two bullets recovered. Dr Paddock testified to the Grand Jury that the bullet was a .22, the type of bullet used in the gun Bert purchased. Further, the powder burns indicated the fatal shot was fired from close, if not point blank range, not from the distance that the Fosburgh men say the burglars shot. The jury did not hear that testimony. The Judge excluded it because the gun was not in evidence.
The second bullet was allegedly fired from Fosburgh’s .22 by the burglar as he fled. Bert testified he chased the burglars into a back bedroom. There one turned and fired at him as the others raised the window and escaped. Paddock testified the gun was not fired into the room from the window but toward the window from inside the room.
While the mother never said how she received the injury to her face she did tell Dr. Paddock that Bert made an “unfortunate marriage” [apparently Amy Sloan was a maid] and that his “domestic relations were unpleasant.” Mrs. Fosburgh added that she suggested to Amy she was not handling Bert correctly and should change her approach.
It is almost impossible to prove a negative. Difficult to prove there were not burglars, but the prosecution could prove that there was no evidence burglars or anyone entered or left the house from the places the Fosburgh men indicated. In the attic there was undisturbed dust and unbroken cob webs. The window at the back of the house was jammed and would not open far enough for a man to slip through.
That is what the Grand Jury heard. They indicted. Because the Judge disallowed certain evidence, and the witnesses changed their testimony that is not what the jury heard 11 months later.
Chief of Police Nicholson was alerted the night before that there would be a directed verdict. At the courthouse that morning, the Chief told the press: he heard there might be some music to be faced so he better show up and face it. He dressed in full uniform, went to court, and stood behind the prosecutors as the Judge began to speak. Judge Stevens, however, said Chief Nicholson diligently sought the truth. The people of Pittsfield loved their Chief, and even the Fosburgh detective Hazen said Nicholson was a good man. It was said, however, that the Fosburgh family was bitter against him. Hazen did add a mild dig: the hope that now Nicholson would investigate thoroughly and find the perpetrators.
Nicholson did not investigate further. He never made a statement publicly, but his behavior indicated that he thought he had his man and no further investigation was necessary.
The Aftermath
Other jurisdictions did investigate. Deputy Sheriff Charles E. Corey from Taunton Massachusetts said. “I obtained a warrant and I will arrest the leader of the ‘Wire Gang’ on sight for the Fosburgh murder.” Corey said Dick Quinn alias “Dirty Dick” of the famous “wire gang” was the man. He based his certainty on a conversation he overheard between Dirty Dick and a relative shortly after the murder.
Corey heard Dick say, “I better keep out of the way for awhile. I know too much.”
Corey did tell the prosecutors in the Fosburgh case what he heard but they said they had enough evidence. Corey felt he had been dismissed. Now, Corey said, he will arrest Quinn and then everyone will see him prove him theory. The record does not show any further action by Corey.
In New York, police sought another burglar. William Lewis Gray was accused by his girlfriend of involvement in the Fosburgh murder.
When Gray heard of the accusation, he surrendered voluntarily to Chief of Detectives Titus in order to tell his side of the story.
His affidavit states: “Olive Handyside, otherwise known as Olive Gray…I have heard the statement made by this woman to Captain Titus and the truth is this: the statement is partly true.
“I did tell her that I committed a robbery and had to get away but I was stringing her and fooling her… She was a woman who worshipped a man who appeared to be desperate and I was getting money from her…She also gave me her watch…There was absolutely no truth in the statements I made to her. I was stringing her.”
No one else was ever accused or arrested for the murder of May Fosburgh. The murder remains unsolved.
Final Chapter
The Grand Forks North Dakota Daily Herald, June 12, 1909: “Amy Sloan Fosburgh sued for divorce alleging cruelty.” Was Bert physically abusive or was the allegation a convenience or a legal necessity? Los Angeles California January 29, 1916: Robert S. Fosburgh dies. He was only 44.
My theory
Nicholson had it partly right: there was a family fight. There is no evidence that it was between father and son. On the contrary, the disturbed furniture, including a broken bed, were in Bert and Amy’s bedroom. The torn garment was Amy’s and the marks and bruises were on Amy’s body. Further, it is less likely that May would intervene between the two men in her family and more likely that she would step in (literally) if Bert were beating Amy.
If there were no burglars, who disposed of the .22 caliber gun? The only possibility is a member of the family.
Why dispose of the gun: only if it could implicate a member of the family.
When was the gun disposed of? During the 30 minutes before they called the police or even as the medical examiner and patrolman stood outside at Fosburgh Sr.’s request. Why did Nicholson think time elapsed before they called police: testimony that a disturbance was heard earlier than 1 a.m., and the fact that everyone was dressed when the police entered the house.
Where did whoever dispose of the gun? Not in the house because the house was now a crime scene and could be searched by police. Most likely, it was hidden at The Stanley Works by James when he went to make the call. If fact why, if a patrolman was nearby, why telephone at all?
It was rumored that Amy left Bert later in the day of August 20, 1900. If that is true she was persuaded to return and to attend the trial but no one could prevail upon her to testify. She did not and she was not in court during the presentation of the case for the defense.
So … Bert was fighting violently with Amy. May intervened. She was shot at close range with a gun owned by Bert, held by Bert, and May died. He may have caught his sister as she fell; she certainly died by his hand and at his feet.
