After the conviction Judge Thayer himself abandoned the identification of Sacco and Vanzetti as the ground on which the jury's verdict rested. In denying a motion for a new trial, based on the discovery of a new eyewitness with better opportunities for observation than any of the other witnesses on either side, who, in his affidavit, swore that Sacco was not the man in the car, Judge Thayer ruled that this evidence
would simply mean one more piece of evidence of the same kind and directed to the same end, and in my judgment would have no effect whatever upon the verdicts. These verdicts did not rest, in my judgment, upon the testimony of the eyewitnesses, for the defendants, as it was, called more witnesses than the Commonwealth to testify that neither of the defendants were in the bandit car.
The evidence that convicted these defendants was circumstantial and was evidence that is known in law as 'consciousness of guilt.'
"Consciousness of guilt" meant that the conduct of Sacco and Vanzetti after April 15 was the conduct of murderers. This inference of guilt was drawn from their behavior on the night of May 5, before and after arrest, and also from their possession of firearms. It is vital to keep in mind the evidence on which, according to Judge Thayer, these two men are to be sentenced to death. There was no claim whatever at the trial, and none has ever been suggested since, that Sacco and Vanzetti had any prior experience in holdups or any previous association with bandits; no claim that the sixteen thousand dollars taken from the victims ever found its way into their pockets; no claim that their financial condition or that of Sacco's family (he had a wife and child, and another child was soon to be born) was in any way changed after April 15; no claim that after the murder either Sacco or Vanzetti changed his manner of living or employment. Neither of these men had ever been accused of crime before their arrest. Nor did they during the three weeks between the murder and their arrest behave like men who were concealing the crime of murder. They did not go into hiding; they did not abscond with the spoils; they did not live under assumed names. They maintained their old lodgings; they pursued openly their callings within a few miles of the town where they were supposed to have committed murder in broad daylight; and when arrested Sacco was found to have in his pocket an announcement of a forthcoming meeting at which Vanzetti was to speak. Was this the behavior of men eluding identification?
What, then, was the evidence of guilty conduct against them?
1. Sacco and Vanzetti, as we have already explained, were two of four Italians who called for Boda's car at Johnson's garage on the evening of May 5. Mrs. Johnson gave the pretext of having to fetch some milk and went to a neighbor's house to telephone the police. She testified that the two defendants followed her to the house on the opposite side of the street, and when, after telephoning, she reappeared they followed her back. The men then left without taking the car, having been advised by Mr. Johnson not to run it without the current year's number plate.
Q. Now, Boda came there to get his car, didn't he?
Q. There were no 1920 number plates on it?
Q. You advised him not to take the car and run it without the 1920 number plates, didn't you?
Q. And he accepted your view?
A. He seemed to.
Q. He seemed to. And after some conversation went away?
This was the whole of the testimony on the strength of which Judge Thayer put the following question to the jury:—
Did the defendants, in company with Orciani and Boda, leave the Johnson house because the automobile had no l920 number plate on it, or because they were conscious of or became suspicious of what Mrs. Johnson did in the Bartlett house? If they left because they had no 1920 number plates on the automobile, then you may say there was no consciousness of guilt in consequence of their sudden departure, but if they left because they were consciously guilty of what was being done by Mrs. Johnson in the Bartlett house, then you may say that is evidence tending to prove consciousness of guilt.
2. Following their departure from the Johnson house, Sacco and Vanzetti were arrested by a policeman who boarded their street car as it was coming into Brockton. Three policemen testified as to their behavior after being taken into custody. The following will serve as a sample:—
I told them when we started that the first false move I would put a bullet in them. On the way up to the station Sacco reached his hand to put under his overcoat and I told him to keep his hands outside of his clothes and on his lap.
Q. Will you illustrate to the jury how he placed his hands?
A. He was sitting down with his hands that way [indicating] and he moved his hand up to put it in under his overcoat.
Q. At what point?
A. Just about the stomach there, across his waistband, and I says to him, 'Have you got a gun there?' He says, 'No.' He says, 'I ain't got no gun.' 'Well,' I says, 'keep your hands outside of your clothes.' We went along a little further and he done the same thing. I gets up on my knees on the front seat and I reaches over and I puts my hand under his coat, but I did not see any gun. 'Now,' I says, Mister, if you put your hand in there again, you are going to get into trouble.' He says, 'I don't want no trouble.'
3. In statements made to the District Attorney and to the Chief of Police at the police station after their arrest, both Sacco and Vanzetti lied. By misstatements they tried to conceal their movements on the day of their arrest, the friends they had been to see, the places they had visited. For instance, Vanzetti denied that he knew Boda.
What of this evidence of "consciousness of guilt"? The testimony of the police that Sacco and Vanzetti were about to draw pistols was emphatically denied by them. These denials, it was urged, were confirmed by the inherent probabilities of the situation. Did Sacco and Vanzetti upon arrest reveal the qualities of the perpetrators of the Braintree murders? Would the ready and ruthless gunmen at Braintree have surrendered themselves so quietly into custody on a capital charge of which they knew themselves to be guilty? If Sacco and Vanzetti were the holdup men of Braintree, why did they not draw upon their expert skill and attempt to make their escape by scattering shots? But, not being gunmen, why should Sacco and Vanzetti have carried guns? The possession of firearms in this country has not at all the significance that it would have, say, in England. The extensive carrying of guns by people who are not "gunmen" is a matter of common knowledge. Sacco acquired the habit of carrying a pistol while a night watchman in the shoe factory, because, as his employer testified, "night watchmen protecting property do have guns." Vanzetti carried a revolver "because it was a very bad time, and I like to have a revolver for self-defense."
Q. How much money did you use to carry around with you?
A. When I went to Boston for fish, I can carry eighty, one hundred dollars, one hundred and twenty dollars.
There were many crimes, many holdups, many robberies at that time.
The other evidence from which "consciousness of guilt" was drawn the two Italians admitted. They acknowledged that they behaved in the way described by Mrs. Johnson; and freely conceded that when questioned at the police station they told lies. What was their explanation of this conduct? To exculpate themselves of the crime of murder they had to disclose elaborately their guilt of radicalism. In order to meet the significance which the prosecution attached to the incidents at the Johnson house and those following, it became necessary for the defendants to advertise to the jury their offensive radicalism, and thereby to excite the deepest prejudices of a Norfolk County jury picked for its respectability and sitting in judgment upon two men of alien blood and abhorrent philosophy.
Innocent men, it is suggested, do not lie when picked up by the police. But Sacco and Vanzetti knew they were not innocent of the charge on which they supposed themselves arrested, and about which the police interrogated them. For, when apprehended, Sacco and Vanzetti were not confronted with the charge of murder; they were not accused of banditry; they were not given the remotest intimation that the murders of Parmenter and Berardelli were laid at their door. They were told they were arrested as "suspicious characters," and the meaning which that carried to their minds was rendered concrete by the questions that were put to them.
Q. Tell us all you recall that Stewart, the chief, asked of you?
A. He asked me why we were in Bridgewater, how long I knew Sacco, if I am a radical, if I am an anarchist or Communist, and he asked me if I believe in the government of the United States.
Q. Did either Chief Stewart at the Brockton police station or Mr. Katzmann tell you that you were suspected of robberies and murder?
Q. Was there any question asked of you or any statement made to you to indicate to you that you were charged with that crime on April 15?
Q. What did you understand, in view of the questions asked of you, what did you understand you were being detained for at the Brockton police station?
A. I understand they arrested me for a political matter....
Q....Why did you feel you were being detained for political opinions?
A. Because I was asked if I was a Socialist. I said, 'Well—'
Q. You mean by reason of the questions asked of you?
A. Because I was asked if I am a Socialist, if I am I.W.W., if I am a Communist, if I am a Radical, if I am a Black Hand.
Plainly their arrest meant to Sacco and Vanzetti arrest for radicalism.
Boston was one of the worst centres of the lawlessness and hysteria that characterized the campaign of the Department of Justice for the wholesale arrest and deportation of Reds. Its proximity to industrial communities having a large proportion of foreign labor and a history of past industrial conflicts lent to the lawless activities of the government officials the widespread support of influential public opinion. Mr. John F. 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." Sacco and Vanzetti were notorious Reds. 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.