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Moors, himself a banker, has called attention to the fact that "the hysteria against 'the reds' was so great, at the time when these men were convicted, that even the most substantial bankers in this city [Boston] were carried away to the extent of paying for full-page advertisements about the red peril. They were associates of leading radicals; they had for some time been on the list of suspects of the Department of Justice; and they were especially obnoxious because they were draft-dodgers.
The terrorizing methods of the Government had very specific meaning for the two Italians. Two of their friends had already been deported. The arrest of the New York radical Salsedo, and his detention incommunicado by the Department of Justice, had been for some weeks a source of great concern to them. Vanzetti was sent to New York to confer with a committee having charge of the case of Salsedo and other Italian political prisoners. On his return, May 2, he reported to his Boston friends the advice which had been given him: namely, to dispose of their radical literature and thus eliminate the most damaging evidence in the deportation proceedings they feared.
The urgency of acting on this advice was intensified by the tragic news of Salsedo's death after Vanzetti's return from New York. Though Salsedo's death was unexplained, to Sacco and Vanzetti it conveyed only one explanation. It was a symbol of their fears and an omen of their own fate. On the witness stand Sacco and Vanzetti accounted for their movements on April They also accounted for their ambiguous behavior on May 5. Up to the time that Sacco and Vanzetti testified to their radical activities, their pacifism, their flight to Mexico to avoid the draft, the trial was a trial for murder and banditry; with the cross-examination of Sacco and Vanzetti patriotism and radicalism became the dominant emotional issues.
Outside the courtroom the Red hysteria was rampant; it was allowed to dominate within. The prosecutor systematically played on the feelings of the jury by exploiting the unpatriotic and despised beliefs of Sacco and Vanzetti, and the judge allowed him thus to divert and pervert the jury's mind. The opening question in the cross-examination of Vanzetti by the District Attorney discloses a motif that he persistently played upon:—. In the Anglo-American system of criminal procedure the role of a public prosecutor is very different from that of an advocate in a private cause.
In the words of a leading New York case:—. In the temper of the times made it the special duty of a prosecutor and a court engaged in trying two Italian radicals before a jury of native New Englanders to keep the instruments of justice free from the infection of passion or prejudice. In the case of Sacco and Vanzetti no such restraints were respected. By systematic exploitation of the defendants' alien blood, their imperfect knowledge of English, their unpopular social views, and their opposition to the war, the District Attorney invoked against them a riot of political passion and patriotic sentiment; and the trial judge connived at—one had almost written, cooperated in—the process.
To quote the argument of Mr. William G. That the real purpose of this line of the prosecutor's cross-examination was to inflame the jury's passions is suggested by the professed ground on which, with the Court's sanction, it was conducted. The Commonwealth claimed that the alleged anxiety of Sacco and Vanzetti on the evening of their arrest and the lies they told could be explained only by the fact that they were the murderers of Parmenter and Berardelli.
The Case of Sacco and Vanzetti
The defense replied that their conduct was clearly accounted for by the fact that the men were Reds in terror of the Department of Justice. To test the credibility of this answer the District Attorney proposed to examine Sacco and Vanzetti to find out whether they were really radicals or only pretending to be. In effect the Commonwealth undertook to show that the defendants were impostors, that they were spurious Reds. This it made not the least attempt to do.
It never disputed their radicalism. Instead of undermining the claim of the defendants by which their conduct was explained, the District Attorney adopted their confession of radicalism, exaggerated and exploited it. He thereby wholly destroyed the basis of his original claim, for what reason was there any longer to suppose that the "consciousness of guilt" was consciousness of murder rather than of radicalism? The deliberate effort to excite the emotions of jurors still in the grip of war fever is not unparalleled in the legal history of the times.
During the year in the United States, forty-four convictions were reversed by appellate courts for misconduct of the trial judge or the public prosecutor; thirty-three of them for inflammatory appeals made by the district attorney on matters not properly before the jury.
Appellate courts interfere reluctantly in such cases and only where there has been a flagrant abuse, so that we may safely assume the above figures indicate an even more widespread evil. What is unparalleled is that such an abuse should have succeeded in a Massachusetts court.
As things were, what wonder the jury convicted?
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The last words left with them by Mr. Katzmann were an appeal to their solidarity against the alien: "Gentlemen of the jury, do your duty. Do it like men. Stand together, you men of Norfolk. Although you knew that such service would be arduous, painful, and tiresome, yet you, like the true soldier, responded to that call in the spirit of supreme American loyalty. There is no better word in the English language than 'loyalty. The function of a judge's charge is to enable the jury to find its way through the maze of conflicting testimony, to sift the relevant from the irrelevant, to weigh wisely, and to judge dispassionately.
A trial judge is not expected to rehearse all the testimony; in Massachusetts he is not allowed to express his own opinion on it. But in drawing the disconnected threads of evidence and marshaling the claims on both sides he must exercise a scrupulous regard for relevance and proportion. Misplaced emphasis here and omission there may work more damage than any outspoken comment. By his summing up a judge reveals his estimate of relative importance. Judge Thayer's charge directs the emotions only too clearly.
What guidance does he give to the mind? The charge occupies twenty-four pages; of these, fourteen are consumed in abstract legal generalities and moral exhortations. Having allowed the minds of the jurors to be impregnated with war feeling, Judge Thayer now invited them to breathe "a purer atmosphere of unyielding impartiality and absolute fairness. Every experienced lawyer knows that it is idle to ask jurors to dismiss from their memory what has been deposited in their feelings.
In this case the vital issue was identification. That the whole mass of conflicting identification testimony is dismissed in two pages out of twenty-four is a fair measure of the distorted perspective in which the Judge placed the case. He dealt with identification in abstract terms and without mentioning the name of any witness on either side.
The alibi testimony he likewise dismissed in two paragraphs, again without reference to specific witnesses. In striking contrast to this sterile treatment of the issue whether or not Sacco and Vanzetti were in South Braintree on April 15 was his concrete and elaborate treatment of the inferences which might be drawn from the character of their conduct on the night of their arrest. Five pages of the charge are given over to "consciousness of guilt," set forth in great detail and with specific mention of the testimony given by the various police officials and by Mr.
The disproportionate consideration which Judge Thayer gave to this issue, in the light of his comments during the trial, must have left the impression that the case turned on "consciousness of guilt. As to motive, the Court expatiated for more than a page on his legal conception and the undisputed claim of the Commonwealth that the motive of the murder of Parmenter and Berardelli was robbery, but made no comment whatever on the complete failure of the Commonwealth to trace any of the stolen money to either defendant or to connect them with the art of robbery. Undoubtedly, great weight must have been attached by the jury, as it was by the Court, to the identification of the fatal bullet taken from Berardelli's body as having passed through Sacco's pistol.
The Court instructed the jury that Captain Proctor and another expert had testified that "it was his [Sacco's] pistol that fired the bullet that caused the death of Berardelli," when in fact that was not Captain Proctor's testimony. Of course, if the jury believed Proctor's testimony as interpreted by Judge Thayer, Sacco certainly was doomed.
In view of the temper of the times, the nature of the accusation, the opinions of the accused, the tactics of the prosecution, and the conduct of the Judge, no wonder the "men of Norfolk" convicted Sacco and Vanzetti! Hitherto the methods pursued by the prosecution, which explain the convictions, rested on inferences, however compelling. But recently facts have been disclosed, and not denied by the prosecution, to indicate that the case against these Italians for murder was part of a collusive effort between the District Attorney and agents of the Department of Justice to rid the country of Sacco and Vanzetti because of their Red activities.
In proof of this we have the affidavits of two former officers of the Government, one of whom served as post-office inspector for twenty-five years, and both of whom are now in honorable civil employment. Sacco's and Vanzetti's names were on the files of the Department of Justice "as radicals to be watched"; the Department was eager for their deportation, but had not evidence enough to secure it; and inasmuch as the United States District Court for Massachusetts had checked abuses in deportation proceedings, the Department had become chary of resorting to deportation without adequate legal basis.
The arrest of Sacco and Vanzetti, on the mistaken theory of Chief Stewart, furnished the agents of the Department their opportunity. Although the opinion of the agents working on the case was that "the South Braintree crime was the work of professionals," and that Sacco and Vanzetti, "although anarchists and agitators, were not highway robbers, and had nothing to do with the South Braintree crime," yet they collaborated with the District Attorney in the prosecution of Sacco and Vanzetti for murder.
For "it was the opinion of the Department agents here that a conviction of Sacco and Vanzetti for murder would be one way of disposing of these two men. But it is made by a man of long years of important service in the Government's employ. It is supported by the now admitted installation of a government spy in a cell adjoining Sacco's with a view to "obtaining whatever incriminating evidence he could Sacco's house; and by the supplying of information about the radical activities of Sacco and Vanzetti to the District Attorney by the agents of the Department of Justice.
These joint labors between Boston agents of the Department of Justice and the District Attorney led to a great deal of correspondence between the agent in charge and the District Attorney and to reports between the agents of the Department and Washington. These records have not been made available, nor has their absence been accounted for. West, the then agent in charge, "be authorized to talk with counsel for Sacco and Vanzetti and to disclose whatever documents and correspondence are on file in his office dealing with the investigation made by the Boston agents before, during, and after the trial of Sacco and Vanzetti.
West made no denial whatever and the District Attorney only emphasized his failure to deny the facts charged by the two former agents of the Department of Justice by an affidavit confined to a denial of some of the statements of a former government spy. The charge that the principal agent of the Department of Justice in Boston and the District Attorney collaborated to secure the conviction of Sacco and Vanzetti is denied neither by the agent nor by the District Attorney.
Chief Stewart of Bridgewater takes it upon himself to say that the officials of the Department "had nothing whatsoever to do with the preparation of this case for trial. Thompson rightly replies, "What are the secrets which they admit? A government which has come to value its own secrets more than it does the lives of its citizens has become a tyranny Secrets, secrets!
And he says you should abstain from touching this verdict of your jury because it is so sacred. Would they not have liked to know something about the secrets? The case is admitted by that inadvertent concession. There are, then, secrets to be admitted. Not less than twelve times Judge Thayer ridicules the charge of a conspiracy between "these two great Governments—that of the United States and the Commonwealth of Massachusetts"! He indulges in much patriotic protestation, but is wholly silent about the specific acts of wrongdoing and lawlessness connected with the Red raids of The historian who relied on this opinion would have to assume that the charge of lawlessness and misconduct in the deportations of outlawed radicals was the traitorous invention of a diseased mind.
The verdict of guilty was brought in on July 14, The exceptions which had been taken to rulings at the trial were made the basis of an application for a new trial, which Judge Thayer refused. Subsequently a great mass of new evidence was unearthed by the defense, and made the subject of other motions for a new trial, all heard before Judge Thayer and all denied by him.
The hearing on the later motions took place on October 1, l, and was the occasion of the entry into the case of Mr. Thompson, a powerful advocate bred in the traditions of the Massachusetts courts. The espousal of the Sacco-Vanzetti cause by a man of Mr. Thompson's professional prestige at once gave it a new complexion and has been its mainstay ever since. For he has brought to the case, not only his great ability as a lawyer, but the strength of his conviction that these two men are innocent and that their trial was not characterized by those high standards which are the pride of Massachusetts justice.
We have now reached a stage of the case the details of which shake one's confidence in the whole course of the proceedings and reveal a situation which undermines the respect usually to be accorded to a jury's verdict. By prearrangement the prosecution brought before the jury a piece of evidence apparently most damaging to the defendants, when in fact the full truth concerning this evidence was very favorable to them. Vital to the identification of Sacco and Vanzetti as the murderers was the identification of one of the fatal bullets as a bullet coming from Sacco's pistol.
The evidence excluded the possibility that five other bullets found in the dead bodies were fired by either Sacco or Vanzetti. When Judge Thayer placed the case in the jury's hands for judgment he charged them that the Commonwealth had introduced the testimony of two experts, Proctor and Van Amburgh, to the effect that the fatal bullet went through Sacco's Pistol.
Such was not the belief of Proctor; he refused to accede to this view in the course of the preparation of the case, and the District Attorney knew that such was not intended to be his testimony. These startling statements call for detailed proof. Proctor at the time of his testimony was head of the state police and had been in the Department of Public Safety for twenty-three years.
On the witness stand he was qualified at length as an expert who had for twenty years been making examination of, and experiments with, bullets and revolvers and had testified in over a hundred capital cases. His testimony was thus offered by the State as entitled to the greatest weight. If the jury could be convinced that the bullet found in Berardelli's body came out of Sacco's pistol, the State's case was invincible.
On this crucial issue Captain Proctor testified as follows at the trial:—. The Government placed chief reliance on his expert testimony. In his closing argument the District Attorney told the jury, "You might disregard all the identification testimony, and base your verdict on the testimony of these experts. In simple English he interpreted the evidence to mean that. Naturally the Court's interpretation became the jury's. By their silence the District Attorney and the counsel for the defense acquiesced in the Court's interpretation, showing that counsel for both sides apparently attached the same meaning to this testimony.
After the conviction Proctor in an affidavit swore to the following account of his true views and the manner in which they were phrased for purposes of the trial. After giving his experience and the fact that he had had the custody of the bullets, cartridges, shells, and pistols in the case, he swore that one of the bullets. This affidavit of Proctor was made the basis of Mr. Thompson's motion for a new trial before Judge Thayer. Here was a charge going to the vitals of the case, made by a high official of the police agencies of the state.
How did the District Attorney meet it? Katzmann and his assistant, Mr. Williams, filed affidavits in reply. Did they contradict Proctor? They could not deny his testimony or the weight that the prosecution and the Court had attached to it. These were matters of record. Did they deny the prearrangement which he charged? Did they deny that he told them he was unable to identify the mortal bullet as Sacco's bullet?
Williams's affidavit, after setting forth that Captain Proctor told him before the trial that comparisons of the mortal bullet with bullets "pushed by him through various types of pistols" showed that "the mortal bullet had been fired in a Colt automatic pistol," proceeded:—. Proctor's disclosures remain uncontradicted: he was unable to identify the murder bullet as Sacco's bullet; he told Katzmann and Williams that he was unable to do it; he told them if he were asked the question on the witness stand he would have to testify that he could not make the identification; a form of words was therefore found by which, without committing perjury, he could convey the impression that he had testified to the identification.
The only contradiction by Katzmann and Williams of Proctor's account affects the number of times that he told them that he was unable to make the identification, he having sworn that he told them "repeatedly" and they denying that he told them "repeatedly. And why? The Judge quotes the Proctor questions and answers and argues that the questions were clear and must have been perfectly understood by Captain Proctor.
Of course the questions were clear and clearly understood by Proctor. The whole meaning of Captain Proctor's affidavit was that the questions and answers were prearranged and that by this prearrangement court and jury were misled with terrible harm to the defendants. The Judge is extraordinarily versatile in misinterpreting the true purport of the Proctor affidavit.
Thus he seriously asks why, if Captain Proctor at the trial was "desirous of expressing his true opinion," he used the phrase "consistent with," language selected by himself. The crux of the matter is that Captain Proctor at the trial was not "desirous of expressing his true opinion," that the District Attorney was very desirous that he should not do so, and that between them they agreed on a form of words to avoid it.
The Judge next attempts to belittle the weight of Proctor's testimony two years after he was offered by the Commonwealth with elaborate reliance as a most important expert. We must dwell on one amazing statement of the Court. Why did the Judge charge the jury that Captain Proctor did testify that the mortal bullet passed through Sacco's pistol?
And why, having in October , for the purpose of denying the Proctor motion, minimized the Proctor testimony by saying that Proctor testified that the passing of the mortal bullet through Sacco's pistol was "simply consistent with" the facts, does he two years later, in order to show how strong the case was at the original trial, state that the "experts testified in their judgment it [the mortal bullet] was perfectly consistent with" having been fired through the Sacco pistol?
In charging the jury Judge Thayer misled them by maximizing the Proctor testimony as the prearrangement intended that it should be maximized. When the prearrangement was discovered and made the basis of a motion for a new trial, Judge Thayer depreciated Proctor's qualifications as an expert and minimized Proctor's actual testimony. Finally, when confronted with new evidence pointing seriously to guilt for the Berardelli murder, not only away from Sacco and Vanzetti, but positively in another direction, in order to give the appearance of impressiveness to the facts before the jury Judge Thayer again relies upon the weightiness of Proctor's expert testimony and maximizes Proctor's evidence at the trial, but not to the extent that he did in charging the jury because Proctor's affidavit now prevents him from doing so!
This is the attitude of mind which has guided the conduct of this case from the beginning; this is the judge who has for all practical purposes sat in judgment upon his own conduct. English criminal justice is constantly held up to us, and rightly so, as an example. One ventures confidently to say that conduct like that revealed by the Proctor incident is inconceivable in an English prosecution. But if it did take place, there is no possible doubt that the corrective resources of the English courts would not allow a verdict secured by such means to stand.
Such behavior surely violates the standards which the Massachusetts Supreme Judicial Court has laid down for district attorneys:—. If the Proctor situation does not come within the condemnation of these requirements, language certainly has strange meaning. Yet the Massachusetts Supreme Court held that Judge Thayer's decision could not "as a matter of law" be reversed.
The guilt or innocence of the defendants was not retried in the Supreme Court. That court could not inquire whether the facts as set forth in the printed record justified the verdict. In those jurisdictions a judgment upon the facts as well as upon the law is open, and their courts decide whether convictions should stand in view of the whole record. A much more limited scope in reviewing connections prevails in Massachusetts. What is reviewed in effect is the conduct of the trial judge; only so called questions of law are open.
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The merits of the legal questions raised by the exceptions cannot be discussed here. Suffice it to say, with deference, that some of the Supreme Court rulings are puzzling in the extreme. One question of law, however, can be explained within small compass, and that is the question which is the crux of the case: Did Judge Thayer observe the standards of Anglo-American justice?
In legal parlance, was there abuse of "judicial discretion" by Judge Thayer? What, then, is "judicial discretion"? Is it a legal abracadabra, or does it imply standards of conduct within the comprehension of the laity in whose interests they are enforced?
The present Chief Justice of Massachusetts has given an authoritative definition:—. This is the test by which Judge Thayer's conduct must be measured. The Supreme Court found no abuse of judicial discretion on the record presented at the first hearing before it. In other words, the Court was satisfied that throughout the conduct of the trial and the proceedings that followed it Judge Thayer was governed by "the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just.
The reader has now had placed before him fairly, it is hoped, however briefly, the means of forming a judgment. Let him judge for himself! Hitherto the defense has maintained that the circumstances of the case all pointed away from Sacco and Vanzetti.
But the deaths of Parmenter and Berardelli have remained unexplained. Now the defense has adduced new proof, not only that Sacco and Vanzetti did not commit the murders, but also, positively, that a well-known gang of professional criminals did commit them. Hitherto a new trial has been pressed because of the character of the original trial. Now a new trial has been demanded because an impressive body of evidence tends to establish the guilt of others.
Celestino F. Madeiros, a young Portuguese with a bad criminal record, was in confined in the same prison with Sacco. On November 18, while his appeal from a conviction of murder committed in an attempt at bank robbery was pending in the Supreme Court, he sent to Sacco through a jail messenger the following note:—. The confession of a criminal assuming guilt for a crime laid at another's door is always suspect and rightly so. Daily, weekly, monthly, and all-time leaderboards so you can see how you stack up against other players.
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