On the witness stand Sacco and Vanzetti accounted for their movements on April 15. 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:—
Q. (by Mr. Katzmann) So you left Plymouth, Mr. Vanzetti, in May, 1917, to dodge the draft, did you?
A. Yes, sir.
Q. When this country was at war, you ran away, so you would not have to fight as a soldier?
This method was elaborated when Sacco took the stand:—
Q. (by Mr. Katzmann) Did you say yesterday you love a free country?
A. Yes, sir.
Q. Did you love this country in the month of May, 1917?
A. I did not say—I don't want to say I did not love this country.
Q. Did you go to Mexico to avoid being a soldier for this country that you loved?
Q. And would it be your idea of showing your love for your wife that, when she needed you, you ran away from her?
A. I did not run away from her.
Q. Don't you think going away from your country is a vulgar thing to do when she needs you?
A. I don't believe in war.
Q. You don't believe in war?
A. No, sir.
Q. Do you think it is a cowardly thing to do what you did?
A. No, sir.
Q. Do you think it is a brave thing to do what you did?
A. Yes, sir.
Q. Do you think it would be a brave thing to go away from your own wife?
Q. When she needed you?
THE COURT. All I ask is this one question, and it will simplify matters very much. Is it your claim that in the collection of the literature and the books and papers that that was done in the interest of the United States?
MR. JEREMIAH MCANARNEY. I make no such broad claim as that....
MR. KATZMANN. Well, he [Sacco] stated in his direct examination yesterday that he loved a free country, and I offer it to attack that statement made in his examination by his own counsel.
THE COURT. That is what I supposed, and that is what I supposed that remark meant when it was introduced in this cross-examination, but counsel now say they don't make that claim.
MR. KATZMANN. They say they don't make the claim that gathering up the literature on May 5 at West Bridgewater was for the purpose of helping the country, but that is a different matter, not released [sic] to May 5.
THE COURT. I will let you inquire further first as to what he meant by the expression.
Q. What did you mean when you said yesterday you loved a free country?
A. Give me a chance to explain.
Q. I am asking you to explain now.
A. When I was in Italy, a boy, I was a Republican, so I always thinking Republican has more chance to manage education, develop, to build some day his family, to raise the child and education, if you could. But that was my opinion; so when I came to this country I saw there was not what I was thinking before, but there was all the difference, because I been working in Italy not so hard as I been work in this country. I could live free there just as well. Work in the same condition but not so hard, about seven or eight hours a day, better food. I mean genuine. Of course, over here is good food, because it is bigger country, to any those who got money to spend, not for the working and laboring class, and in Italy is more opportunity to laborer to eat vegetable, more fresh, and I came in this country. When I been started work here very hard and been work thirteen years, hard worker, I could not been afford much a family the way I did have the idea before. I could not put any money in the bank; I could no push my boy some to go to school and other things. I teach over here men who is with me. The free idea gives any man a chance to profess his own idea, not the supreme idea, not to give any person, not to be like Spain in position, yes, about twenty centuries ago, but to give a chance to print and education, literature, free speech, that I see it was all wrong. I could see the best men, intelligent, education, they been arrested and sent to prison and died in prison for years and years without getting them out, and Debs, one of the great men in his country, he is in prison, still away in prison, because he is a Socialist. He wanted the laboring class to have better conditions and better living, more education, give a push his son if he could have a chance some day, but they him in prison. Why? Because the capitalist class, they know, they are against that, because the capitalist class, they don't want our child to go to high school or college or Harvard College. There would be no chance, there would not be no—they don't want the working class educationed; they want the working class to be a low all the times, be underfoot, and not to be up with the head. So, sometimes, you see, the Rockefellers, Morgans, they give fifty—I mean they give five hundred thousand dollars to Harvard College, they give a million dollars for another school. Every day say, 'Well, D . Rockefeller is a great man, the best man in the country.' I want to ask him who is going to Harvard College? What benefit the working class they will get by those million dollars they give by Rockefeller, D. Rockefellers. They won't get, the poor class, they won't have no chance to go to Harvard College because men who is getting $21 a week or $30 a week, I don't care if he gets $80 a week, if he gets a family of five children he can't live and send his child and go to Harvard College if he wants to eat everything nature will give him. If he wants to eat like a cow, and that is the best thing, but I want men to live like men. I like men to get everything that nature will give best, because they belong—we are not the friend of any other place, but we are belong to nations. So that is why my idea has been changed. So that is why I love people who labor and work and see better conditions every day develop, makes no more war. We no want fight by the gun, and we don't want to destroy young men. The mother has been suffering for building the young man. Some day need a little more bread, so when the time the mother get some bread or profit out of that boy, the Rockefellers, Morgans, and some of the peoples, high class, they send to war. Why? What is war? The war is not shoots like Abraham Lincoln's and Abe Jefferson, to fight for the free country, for the better education to give chance to any other peoples, not the white people but the black and the others, because they believe and know they are mens like the rest, but they are war for the great millionaire. No war for the civilization of men. They are war for business, million dollars come on the side. What right we have to kill each other? I been work for the Irish. I have been working with the German fellow, with the French, many other peoples. I love them people just as I could love my wife, and my people for that did receive me. Why should I go kill them men? What he done to me? He never done anything, so I don't believe in no war. I want to destroy those guns. All I can say, the Government put the literature, give us educations. I remember in Italy, a long time ago, about sixty years ago, I should say, yes, about sixty years ago, the Government they could not control very much those two—devilment went on, and robbery, so one of the government in the cabinet he says, 'If you want to destroy those devilments, if you want to take off all those criminals, you ought to give a chance to Socialist literature, education of people, emancipation. That is why I destroy governments, boys.' That is why my idea I love Socialists. That is why I like people who want education and living, building, who is good, just as much as they could. That is all.
Q. And that is why you love the United States of America?
Q. She is back more than twenty centuries like Spain, is she?
A. At the time of the war they do it.
Q. So without the light of knowledge on that subject, you are condemning even Harvard University, are you, as being a place for rich men?....
Q. Did you intend to condemn Harvard College? (Objection overruled.)
A. No, sir.
Q. Were you ready to say none but the rich could go there without knowing about offering scholarships? (Objection overruled.)
Q. The question is this: As far as you understood Fruzetti's views, were yours the same? (Objection overruled.)
Q. Answer, please.
A. (through the interpreter) I cannot say yes or no.
Q. Is it because you can't or because you don't want to?
A. (through the interpreter) Because it is a very delicate question.
Q. It is very delicate, isn't it, because he was deported for his views?
Q. Do you know why Fruzetti was deported?
A. (through the interpreter) Yes.
Q. Was it because he was of anarchistic opinions?
THE INTERPRETER. He says he understands it now.
Q. Was it because Fruzetti entertained anarchistic opinions?
A. One reason, he was an anarchist. Another reason, Fruzetti been writing all the time on the newspapers, and I am not sure why the reason he been deported.
Q. And the books which you intended to collect were books relating to anarchy, weren't they?
A. Not all of them.
Q. How many of them?
A. Well, all together. We are Socialists, democratic, any other socialistic information, Socialists, Syndicalists, Anarchists, any paper.
A. I do not know what Bolshevism means.
A. I do not know what Soviet means.
A. Yes. I got some on astronomy, too.
Q. You weren't going to destroy them?
A. I was going to keep them.
Q. You were going to keep them and when the time was over, you were going to bring them out again, weren't you?
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:—
Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the people of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy, or resentment.
In 1921 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. Thompson:—
The persistent attempt of the Court in the presence of the jury to suggest that the defendants were claiming that the suppression of the Socialist literature was 'in the interest of the United States,' to which exception was taken, was even more objectionable and prejudicial. It seems incredible that the Court could have believed from any testimony that had been given by Vanzetti or Sacco that their purpose in collecting and suppressing the Socialist literature had anything to do with the interest of the United States. If anything had been made plain, it was that they were actuated by personal fear of sharing the fate of Salsedo, not merely deportation, but death by violence while awaiting deportation. Yet the Court eight times, in the face of as many explicit disclaimers from Mr. McAnarney, suggested that that was the defendants' claim. Had that claim been made it would, of course, have been the grossest hypocrisy, and might well have sealed the fate of both defendants with the jury. The repeated suggestion of the Court in the presence of the jury that that was the claim amounted to a violation by the Court of the defendants' elementary constitutional right to a fair and impartial trial. It was not cured by the Court's disclaimer made immediately after the exception was taken to the effect that he did not intend 'to prejudice the rights of either of these defendants.' Whatever the Court intended, he had fatally prejudiced their right to a fair trial, and no general disclaimer could undo the harm.
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 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 1918-19 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? 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." The first words of Judge Thayer's charge revived their memories of the war and sharpened their indignation against the two draft-dodgers whose fate lay in their hands: "The Commonwealth of Massachusetts called upon you to render a most important service. 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.'" It had been to the accompaniment of this same war motif that the jurors were first initiated into the case: by the license allowed to the prosecution it had remained continuously in their ears throughout the trial; and now by the final and authoritative voice of the Court it was a soldier's loyalty which was made the measure of their duty.
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." Unfortunately the passion and prejudice instilled during the course of a long trial cannot be exorcised by the general, placid language of a charge after the mischief is done. 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. and Mrs. Johnson. 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 we have seen, Judge Thayer himself did in fact so interpret the jury's verdict afterward.
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." Here, to be sure, is a startling allegation. 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...after winning his confidence"; by the insinuation of an "under-cover man" into the councils of the Sacco-Vanzetti Defense Committee; by the proposed placement of another spy as a lodger in Mrs. 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. An appeal to Attorney-General Sargent proved fruitless, although supported by Senator Butler of Massachusetts, requesting that Mr. 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." The facts upon which this appeal was made stand uncontradicted. 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." Instead of making a full disclosure of the facts, the representative of the Commonwealth indulged in vituperation against the former officers of the Department of Justice as men who were guilty of "a breach of loyalty" because they violated the watch word of the Department of Justice, "Do not betray the secrets of your departments." To which Mr. 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." Yet Judge Thayer found in these circumstances only opportunity to make innuendo against a former official of the Government well known for his long and honorable service, and an elaborate denial of a claim that was never made. 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 1920. 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, 1921. 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, l923, and was the occasion of the entry into the case of Mr. William G. 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:—
Q. Have you an opinion as to whether bullet Number 3 (Exhibit 18) was fired from the Colt automatic, which is in evidence?
A. I have.
Q. And what is your opinion?
A. My opinion is that it is consistent with being fired from that pistol.
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." It weighed heavily in the Court's charge. In simple English he interpreted the evidence to mean that
it was his [Sacco's] pistol that fired the bullet that caused the death of Berardelli. To this effect the Commonwealth introduced the testimony of two witnesses, Messrs. Proctor and Van Amburgh.