The Case of Sacco and Vanzetti

In 1921, Nicola Sacco and Bartolomeo Vanzetti, both Italian-Americans, were convicted of robbery and murder. Although the arguments brought against them were mostly disproven in court, the fact that the two men were known radicals (and that their trial took place during the height of the Red Scare) prejudiced the judge and jury against them. On April 9, 1927, Sacco and Vanzetti's final appeal was rejected, and the two were sentenced to death. Felix Frankfurter, then a professor at Harvard Law School, was considered to be the most prominent and respectable critic of the trial. He was appointed to the Supreme Court by Franklin Delano Roosevelt in 1939

For more than six years the Sacco-Vanzetti case has been before the courts of Massachusetts. In a state where ordinary murder trials are promptly dispatched such extraordinary delay in itself challenges attention. The fact is that a long succession of disclosures has aroused interest far beyond the boundaries of Massachusetts and even of the United States, until the case has become one of those rare causes célèbres which are of international concern. The aim of this paper is to give in the briefest compass an accurate résumé of the facts of the case from its earliest stages to its present posture.

I.

At about three o'clock in the afternoon of April 15, 1920, Parmenter, a paymaster, and Berardelli, his guard, were fired upon and killed by two men armed with pistols, as they were carrying two boxes containing the pay roll of the shoe factory of Slater and Morrill, amounting to $15,776.51, from the company's office building to the factory through the main street of South Braintree, Massachusetts. As the murder was being committed, a car containing several other men drew up to the spot. The murderers threw the two boxes into the car, jumped in themselves, and were driven away at high speed across some near-by railroad tracks. Two days later this car was found abandoned in woods at a distance from the scene of the crime.

At the time of the Braintree holdup the police were investigating a similar crime in the neighboring town of Bridgewater. In both cases a gang was involved. In both they made off in a car. In both eyewitnesses believed the criminals to be Italians. In the Bridgewater holdup the car had left the scene in the direction of Cochesett. Chief Stewart of Bridgewater was therefore, at the time of the Braintree murder, on the trail of an Italian owning or driving a car in Cochesett. He found his man in one Boda, whose car was in a garage awaiting repairs. Stewart instructed the garage proprietor to telephone to the police when anyone came to fetch it. Pursuing his theory, Stewart found that Boda had been living in Cochesett with a radical named Coacci. Now on April 16, 1920, which was the day after the Braintree murders, Stewart, at the instance of the Department of Justice, then engaged in the wholesale rounding up of Reds, had been to the house of Coacci to see why he had failed to appear at a hearing regarding his deportation. He found Coacci packing a trunk and apparently very anxious to leave. At the time, Coacci's trunk and his haste to depart for Italy were not connected in Chief Stewart's mind with the Braintree affair. But when, subsequently, the tracks of a smaller car were found near the murder car, he surmised that this car was Boda's; and in the light of his later discoveries he jumped to the conclusion that Coacci, Boda's pal, had "skipped with the swag." As a matter of fact, the contents of the trunk were found eventually to be wholly innocent. In the meantime, however, Chief Stewart continued to work on his theory that whosoever called for Boda's car at Johnson's garage would be suspect of the Braintree crime. On the night of May 5, Boda and three other Italians did in fact call. To explain how they came to do so we must go back a few days.

During the proceedings for the wholesale deportation of Reds under Attorney General Palmer in the spring of l920, one Salsedo was held incommunicado in a room in the New York offices of the Department of Justice, on the fourteenth floor of a Park Row building. This Salsedo was a radical friend of Boda and his companions. On May 4 these friends learned that Salsedo had been found dead on the sidewalk outside the Park Row building. Already frightened by the Red raids, they bestirred themselves to "hide the literature and notify the friends against the federal police." For this purpose an automobile was needed, and they turned to Boda.

Such were the circumstances under which the four Italians appeared on the evening of May 5 at the Johnson garage. Two of them were Sacco and Vanzetti. The car was not available and the Italians left, but the police were notified. Sacco and Vanzetti were arrested on a street car, Boda escaped, and the fourth, Orciani, was arrested the next day.

Chief Stewart at once sought to apply his theory of the commission of the two "jobs" by one gang. The theory, however, broke down. Orciani had been at work on the days of both crimes, so he was let go. Sacco, a shoe operative, in steady employment at a shoe factory in Stoughton, had taken a day off, and this was April 15. Hence, while he could not be charged with the Bridgewater crime, he was charged with the Braintree murder. Vanzetti, as a fish peddler at Plymouth and his own employer, could not give the same kind of alibi for either day and so he was held for both crimes. Stewart's theory that the crime was committed by these Italian radicals was not shared by the head of the state police, who always maintained that it was the work of professionals. [In this account of the joint trial of Sacco and Vanzetti the details of Vanzetti's separate trial cannot find a place. But Vanzetti's prosecution for the Bridgewater job was merely a phase of the South Braintree affair.].

Charged with the crime of murder on May 5, Sacco and Vanzetti were indicted on September 14, 1920, and put on trial May 21, 1921, at Dedham, Norfolk County. The setting of the trial, in the courthouse opposite the old home of Fisher Ames, furnished a striking contrast to the background and antecedents of the prisoners. Dedham is a quiet residential suburb, inhabited by well-to-do Bostonians, with a surviving element of New England small farmers. Part of the jury was specially selected by the sheriff's deputies from Masonic gatherings and from persons whom the deputies deemed "representative citizens," "substantial" and "intelligent." The presiding judge was Webster Thayer of Worcester. The chief counsel for these Italians was a Westerner, a radical and a professional defender of radicals. In opinion, as well as in fact, he was an outsider. Unfamiliar with the traditions of the Massachusetts bench, not even a member of the Massachusetts bar, the characteristics of Judge Thayer unknown to him, Fred H. Moore found neither professional nor personal sympathies between himself and the Judge. So far as the relations between court and counsel seriously, even if unconsciously, affect the current of a trial, Moore was a factor of irritation. Sacco and Vanzetti spoke very broken English and their testimony shows how often they misunderstood the questions put to them. In fact, an interpreter had to be used, whose conduct raised such doubts that the defendants brought their own interpreter to check his questions and answers. The trial lasted nearly seven weeks, and on July 14, 1921, Sacco and Vanzetti were found guilty of murder in the first degree.

II.

So far as the crime is concerned, we are dealing with a conventional case of payroll robbery. At the trial the killing of Parmenter and Berardelli was undisputed. The only issue was the identity of the murderers. Were Sacco and Vanzetti two of the assailants of Parmenter and Berardelli, or were they not?

On this issue there was at the trial a mass of conflicting evidence. Fifty-nine witnesses testified for the Commonwealth and ninety-nine for the defendants. The evidence offered by the Commonwealth was not the same against both defendants. The theory of the prosecution was that Sacco did the actual shooting while Vanzetti sat in the car as one of the collaborators in a conspiracy to murder. Witnesses testified to having seen both defendants in South Braintree on the morning of April l5; they claimed to recognize Sacco as the man who shot the guard Berardelli and to have seen him subsequently escape in the car. Expert testimony (the character of which, in the light of subsequent events, constitutes one of the most important features of the case and will be dealt with later) was offered seeking to connect one of four bullets removed from Berardelli's body with the Colt pistol found on Sacco at the time of his arrest. As to Vanzetti, the Commonwealth adduced evidence placing him at the murder car. Moreover, the Commonwealth introduced the conduct of the defendants, as evinced by pistols found on their persons and lies admittedly told by them when arrested, as further proof of identification, in that such conduct revealed "consciousness of guilt."

The defense met the Commonwealth's eyewitnesses by other eyewitnesses, slightly more numerous and at least as well circumstanced to observe the assailants, who testified that the defendants were not the men they saw. Their testimony was confirmed by witnesses who proved the presence of Sacco and Vanzetti elsewhere at the time of the murder. Other witnesses supported Sacco's testimony that on April l5—the day that he was away from work—he was in Boston seeing about a passport to Italy, whither he was planning shortly to return to visit his recently bereaved father. The truth of that statement was supported by an official of the Italian consulate in Boston who deposed that Sacco visited his consulate at an hour that made it impossible for him to have been one of the Braintree murder gang. The claim of Vanzetti that on April 15 he was pursuing his customary trade as fish peddler was sustained by a number of witnesses who had been his customers that day.

From this summary it must be evident that the trustworthiness of the testimony which placed Sacco and Vanzetti in South Braintree on April 15 is the foundation of the case.

I. As to Sacco:—

The character of the testimony of the five witnesses who definitely identified Sacco as in the car or on the spot at the time of the murders demands critical attention. These witnesses were Mary Splaine, Frances Devlin, Lola Andrews, Louis Pelzer, Carlos E. Goodridge.

1. Splaine and Devlin were working together on the second floor of the Slater and Morrill factory with windows giving on the railroad crossing about sixty feet away. Both heard the shot, ran to the window, and saw an automobile crossing the tracks. Splaine's identification of Sacco as one of the occupants of this escaping car was one of the chief reliances of the prosecution. Viewing the scene from a distance of from sixty to eighty feet, she saw a man previously unknown to her in a car traveling at the rate of from fifteen to eighteen miles per hour, and she saw him only for a distance of about thirty feet—that is to say, for from one and a half to three seconds. Yet after more than a year she testified:—

The man that appeared between the back of the front seat and the back seat was a man slightly taller than the witness. He weighed possibly from 140 to 145 pounds. He was muscular, an active-looking man. His left hand was a goodsized hand, a hand that denoted strength.

Q. So that the hand you said you saw where? A. The left hand, that was placed on the back of the front seat. He had a gray, what I thought was a shirt—had a grayish, like navy color, and the face was what we would call clear-cut, clean-cut face. Through here [indicating] was a little narrow, just a little narrow. The forehead was high. The hair was brushed back and it was between, I should think, two inches and two and one-half inches in length and had dark eyebrows, but the complexion was a white, peculiar white that looked greenish.

Q. Is that the same man you saw at Brockton?

A. It is.

Q. Are you sure?

A. Positive.

The startling acuity of Splaine's vision was, as a matter of fact, the product of a year's reflection. Immediately after Sacco's arrest the police, in violation of approved police methods for the identification of suspects, brought Sacco alone into Splaine's presence. Then followed in about three weeks the preliminary hearing at which Sacco and Vanzetti were bound over for the grand jury. At this hearing—only forty days after the crime—Splaine was unable to identify Sacco.

Q. You don't feel certain enough in your position to say he is the man?

A. I don't think my opportunity afforded me the right to say he is the man.

When confronted with this contradiction between her uncertainty a month after her observation and her certainty more than a year after her observation; she first took refuge in a claim of inaccuracy in the transcript of the stenographer's minutes. This charge she later withdrew and finally maintained:—

From the observation I had of him in the Quincy court and the comparison of the man I saw in the machine, on reflection I was sure he was the same man.

Then followed this cross-examination:—

Q. Your answer in the lower court was you didn't have opportunity to observe him. What did you mean when you said you didn't have opportunity sufficient, kindly tell us, you didn't have sufficient opportunity to observe him?

A. Well, he was passing on the street.

Q. He was passing on the street and you didn't have sufficient opportunity to observe him to enable you to identify him?

A. That is what I meant.

Q. That is the only opportunity you had?

A. Yes, sir.

Q. You have had no other opportunity but that one meeting glance?

A. The remembrance of that.

Let Dr. Morton Prince, professor of dynamic psychology at Harvard University, comment on this testimony:—

I do not hesitate to say that the star witness for the government testified, honestly enough, no doubt, to what was psychologically impossible. Miss Splaine testified, though she had only seen Sacco at the time of the shooting from a distance of about sixty feet for from one and one-half to three seconds in a motor car going at an increasing rate of speed at about fifteen to eighteen miles an hour; that she saw and at the end of a year she remembered and described sixteen different details of his person, even to the size of his hand, the length of his hair as being between two and two and one-half inches long, and the shade of his eyebrows! Such perception and memory under such conditions can be easily proved to be psychologically impossible. Every psychologist knows that—so does Houdini. And what shall we think of the animus and honesty of the state that introduces such testimony to convict, knowing that the jury is too ignorant to disbelieve?

2. Devlin, at Quincy a month after the murder, merely said, "He [Sacco] looks very much like the man that stood up in the back seat shooting."

Q. Do you say positively he is the man?

A. I don't say positively.

At the trial, over a year later, she had no doubt and when asked, "Have you at any time had any doubt of your identification of this man?" replied, "No." The obvious discrepancy of an identification reaching certainty by lapse of time, without any additional opportunity for verification, she explained thus: "At the time there I had in my own mind that he was the man, but on account of the immensity of the crime and everything, I hated to say right out and out."

The inherent improbability of making any such accurate identification on the basis of a fleeting glimpse of an unknown man in the confusion of a sudden alarm is affirmed by the testimony of two other eyewitnesses. Ferguson and Pierce, from a window above Splaine and Devlin, on the next floor of the factory, had substantially the same view. They found it impossible to make any identification.

3. Pelzer, a young shoe-cutter, swore that when he heard the shooting he pulled up his window, took a glance at the scene, and saw the man who murdered Berardelli.

Q. How long did you stay in the window?

A. Oh, about—I would say about a minute....

Q. Then what did you do?

A. I seen everything happen about that time, about in a minute.

This was the foundation for the following identification:—

Q. Do you see in the courtroom the man you saw shooting Berardelli that day?

A. Well, I wouldn't say it was him, but he is a dead image of him.

Witness points out Mr. Sacco.

Q. Have you seen him since that time until you saw him in the courtroom?

A. No, sir.

Witness was shown picture of him by Mr. Williams to-day.

Q. You say you wouldn't say it is him, but he is the dead image of him? What do you mean by that?

A. Well, he has got the same appearance.

On cross-examination Pelzer admitted that immediately after Sacco's arrest, on May 6 or 7, he was unable to make any identification. His inability in May 1920 to make the identification which he made in June 1921 was confirmed by three fellow workmen. Two of them testified that instead of pulling up the window he took shelter under a bench, and the third in addition said: "I heard him say that he did not see anybody."

Pelzer's tergiversations and falsifications extracted from the District Attorney, Mr. Katzmann, the following eulogy:—

He was frank enough here, gentlemen, to own that he had twice falsified before to both sides, treating them equally and alike, and he gave you his reason. I think he added that he had never been in court before. If not, somebody has and I confused him. It is of little consequence. He is big enough and manly enough now to tell you of his prior falsehoods and his reasons for them. If you accept them, gentlemen, give such weight to his testimony as you say should be given.

4. Lola Andrews, a woman of doubtful reputation, testified that at about 11 A.M. on the day of the murders, while in company with a Mrs. Campbell, she saw an automobile standing outside the Slater and Morrill factory. She saw a "very light" man inside the car (concededly neither Sacco nor Vanzetti) and another man "bending over the hood of the car," whom she characterized as a "dark-complexioned man." She went into the factory in search of a job and at the time "had no talk with either of the men." When she came out "fifteen minutes later" the dark man "was down under the car like he was fixing something" and she asked him the way to another factory. He told her. That was the whole conversation between them. After Sacco's arrest she was taken to the Dedham jail and identified Sacco as the dark-complexioned man. She again identified him at the trial.

How came she to connect the dark man under the car with the murders which took place four hours later?

Q. Would you say that the man had a fuller or more slender face [than the man in a photograph shown to the witness]?

A. I don't know. He had a funny face....

Q. Meaning by that a face that was not a kindly face, a kind of brutal face?

A. He did not have a real good looking face.

Q. (by the District Attorney) What came to your mind, if anything, when you learned of the shooting?

A. Why, the only way I can answer that is this: When I heard of the shooting I somehow associated the man I saw at the car.

Four reputable witnesses completely discredited the Andrews testimony. The following sample must suffice. It is the testimony of a Quincy shopkeeper.

I said to her, 'Hello, Lola,' and she stopped and she answered me. While she answered me I said, 'You look kind of tired.' She says, 'Yes.' She says, 'They are bothering the life out of me.' I says, 'What?' She says, 'I just come from jail.' I says, 'What have you done in jail?' She says, 'The Government took me down and want me to recognize those men.' she says, 'and I don't know a thing about them. I have never seen them and I can't recognize them.' She says, 'Unfortunately I have been down there to get a job and I have seen many men that I don't know and I have never paid any attention to anyone.'

Yet the District Attorney not only offered the Andrews testimony for the consideration of the jury, but gave it the weightiest possible personal sponsorship:—

And then there is Lola Andrews. I have been in this office, gentlemen, for now more than eleven years. I cannot recall in that too long service for the Commonwealth that ever before I have laid eye or given ear to so convincing a witness as Lola Andrews.

5. Carlos E. Goodridge (who after the trial was discovered to be a fugitive from justice in another state and to have given evidence under a false name) swore that at the time of the shooting he was in a poolroom in South Braintree, heard shots, stepped to the door, and saw an automobile coming toward him, and that when he got to the sidewalk a man in the automobile "poked a gun over towards him," whereupon he "went back into the poolroom." About seven months later he identified Sacco as the man for the first time and identified him again at the trial.

Four witnesses, including his employer, squarely contradicted Goodridge's belated identification. Even when completely disinterested, identification testimony runs all the grave hazards due to the frailties and fallibilities of human observation and memory. But Goodridge's testimony, in addition to everything else, was tainted with self-interest. At the time he was a witness for the Commonwealth, he was facing jail under an indictment for larceny to which he had pleaded guilty. The case "had been filed,"—that is, no sentence had been imposed,—and Goodridge had been placed on probation. The Judge did not allow the defense to show that Goodridge's testimony on behalf of the Commonwealth was influenced by leniency previously shown to him by the District Attorney in connection with the confessed charge of larceny and by fear of losing his immunity. In the light of settled principles of the law of evidence, this ruling, though later sustained by the Supreme Court of Massachusetts, is indefensible.

II. As to Vanzetti:—

The Commonwealth offered two witnesses who claimed to identify Vanzetti as an occupant of the murder car. Of these one, Dolbeare, claimed to have seen him hours before the murder, leaving only a single individual, LeVangie, who claimed to have seen him on the spot. The Commonwealth sought to piece out the tenuous testimony by the evidence of two other witnesses who claimed to have seen Vanzetti during the day of the murder elsewhere than at Plymouth, but not at South Braintree. One witness, Faulkner, testified to recollecting a fellow passenger on a train going from Cochesett to Boston who got out at East Braintree at 9.54, and identified Vanzetti as that passenger. The basis of Faulkner's recollection was so frail, and was so fully destroyed by three railroad officials, that further recital of his testimony is superfluous. Finally Reed, a crossing tender, purported to recognize Vanzetti as the man sitting on the front seat of a car which he claimed to identify as the murder car. This was at some distance from Braintree, more than an hour after the murders. Reed's testimony placing Vanzetti on the front seat of the car ran counter to the theory of the Commonwealth that Vanzetti was at the rear. Moreover, Reed testified that "the quality of the English [of Vanzetti] was unmistakable and clear," while at the trial Vanzetti's English was found to be so imperfect that an interpreter had to be employed.

1. Harry E. Dolbeare testified that somewhere between 10 and 12 A.M. he saw a car going past him in South Braintree with five people in it, one of whom he identified as Vanzetti:—

I felt it was a tough-looking bunch. That is the very feeling that came to my mind at the time....I guess that is all. That is all I recall now.

There is nothing other than what he has already given by which he characterizes these men as a tough-looking bunch. He does not know whether the other two men who sat on the back seat had moustaches or beards of any kind. He does not know what kind of a hat or cap the man in the middle, who leaned forward to speak, wore. He does not know whether this man had a cap with a visor projecting out or whether he had on a slouch hat.

2. LeVangie, the gate tender of the New Haven railroad, was on duty at the South Braintree grade crossing on the day of the murder. According to his testimony, the murder car drove up to the crossing just as he was lowering the gate, and a man inside forced him at the point of a revolver to let the car through before the advancing train. LeVangie identified Vanzetti as the man who was driving the car. LeVangie's testimony was discredited by the testimony of McCarthy, a locomotive fireman of the New Haven, who testified that three quarters of an hour after the murders he had the following conversation with LeVangie:—

LeVangie said, 'There was a shooting affair going on.' I says, 'Someone shot?' I says, 'who?' 'Someone, a fellow got murdered.' I said, 'who did it?' He said he did not know. He said there was some fellows went by in an automobile and he heard the shots, and he started to put down the gates, and as he started to put them down one of them pointed a gun at him and he left the gates alone and ducked in the shanty. I asked him if he knew them. He said, no, he did not. I asked him if he would know them again if he saw them. He said, 'No.' He said all he could see was the gun and he ducked.

Moreover, LeVangie was discredited by all the other identification witnesses on both sides, who insisted that the driver of the car was a young, small, light-haired man, whereas Vanzetti was middle-aged, dark, with a black moustache. But, though the District Attorney had to repudiate LeVangie, he characteristically held on to LeVangie's identification. The following quotation from the District Attorney's summing up reveals the worthlessness of LeVangie's testimony; it throws no less light on the guiding attitude of the prosecution:—

They find fault, gentlemen, with LeVangie. They say that LeVangie is wrong in saying that Vanzetti was driving that car. I agree with them, gentlemen. I would not be trying to do justice to these defendants if I pretended that personally so far as you are concerned about my personal belief on that, that Vanzetti drove that car over the crossing. I do not believe any such thing. You must be overwhelmed with the testimony that when the car started it was driven by a light-haired man who showed every indication of being sickly.

We cannot mould the testimony of witnesses, gentlemen. We have got to take them as they testify on their oath, and we put LeVangie on because necessarily he must have been there. He saw something. He described a light-haired man to some of the witnesses. They produced Carter, the first witness they put on, to say that he said the light-haired man—the driver was a light-haired man. That is true. I believe my brothers will agree with me on that proposition, but he saw the face of Vanzetti in that car, and is his testimony to be rejected if it disagrees with everybody else if you are satisfied he honestly meant to tell the truth?

And can't you reconcile it with the possibility, no, the likelihood, or, more than that, the probability that at that time Vanzetti was directly behind the driver in the quick glance this man LeVangie had of the car going over when they were going up over the crossing?...

Right or wrong, we have to take it as it is. And I agree if it depends on the accuracy of the statement that Vanzetti was driving, then it isn't right, because I would have to reject personally the testimony of witnesses for the defense as well as for the Commonwealth who testified to the contrary. I ask you to find as a matter of common sense he was, in the light of other witnesses, in the car, and if on the left side that he may well have been immediately behind the driver.

In other words, obliged to repudiate the testimony of LeVangie that Vanzetti was on the front seat, the Commonwealth urged the jury to find that, although LeVangie said Vanzetti was on the front seat, he meant he was on the back seat.

At the time that he urged on the jury this testimony of LeVangie, the District Attorney had held interviews with, and had in his possession written statements of, the only two persons, Kelly and Kennedy, who had an extended opportunity to observe the driver of the car. The detailed description given by them absolutely excluded Vanzetti. The reliability of these observers and of their statements has not been challenged. Yet they were not called by the District Attorney; instead he called LeVangie. Unfortunately the existence of Kelly and Kennedy was until very recently unknown to the defense, and of course, therefore, their testimony was unavailable for Sacco and Vanzetti at the trial.

The alibi for Vanzetti was overwhelming. Thirty-one eyewitnesses testified positively that no one of the men that they saw in the murder car was Vanzetti. Thirteen witnesses either testified directly that Vanzetti was in Plymouth selling fish on the day of the murder or furnished corroboration of such testimony.

What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of this type of testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent—not due to the brutalities of ancient criminal procedure.

In the Sacco-Vanzetti case the elements of uncertainty were intensified. All the identifying witnesses were speaking from casual observation of men they had never seen before, men of foreign race, under circumstances of unusual confusion. Thus, one witness, Cole, "thought at the first glance that the man was a Portuguese fellow named Tony that he knew." Afterward he was sure it was Vanzetti. Nor can we abstain from comment on the methods pursued by the police in eliciting subsequent identification. The recognized procedure is to line up the suspect with others, and so far as possible with individuals of the same race and class, so as not to provoke identification through accentuation. In defiance of these necessary safeguards, Sacco and Vanzetti after their arrest were shown singly to persons brought there for the purposes of identification, not as part of a "parade." Moreover, Sacco and Vanzetti were not even allowed to be their natural selves; they were compelled to simulate the behavior of the Braintree bandits. Under such conditions identification of foreigners is a farce.

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.'

III.

"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?

A Yes.

Q. There were no 1920 number plates on it?

A. No.

Q. You advised him not to take the car and run it without the 1920 number plates, didn't you?

A. Yes.

Q. And he accepted your view?

A. He seemed to.

Q. He seemed to. And after some conversation went away?

A. Yes.

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?

A. No.

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?

A. No.

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.

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?

A. Yes.

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?

A. Yes.

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?

A. No.

Q. When she needed you?

A. No.

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?

A. Yes.

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.

Q. Bolshevist?

A. I do not know what Bolshevism means.

Q. Soviet?

A. I do not know what Soviet means.

Q. Communism?

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?

A. Yes.

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?

IV.

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.

V.

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.

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

was, as I then testified and still believe, fired from a Colt automatic pistol of 32 calibre. During the preparation for the trial, my attention was repeatedly called by the District Attorney and his assistants to the question: whether I could find any evidence which would justify the opinion that the particular bullet taken from the body of Berardelli, which came from a Colt automatic pistol, came from the particular Colt automatic pistol taken from Sacco. I used every means available to me for forming an opinion on this subject. I conducted, with Captain Van Amburgh, certain tests at Lowell, about which I testified, consisting in firing certain cartridges through Sacco's pistol. At no time was I able to find any evidence whatever which tended to convince me that the particular model bullet found in Berardelli's body, which came from a Colt automatic pistol, which I think was numbered 3 and had some other exhibit number, came from Sacco's pistol and I so informed the District Attorney and his assistant before the trial. This bullet was what is commonly called a full metal-patch bullet and although I repeatedly talked over with Captain Van Amburgh the scratch or scratches which he claimed tended to identify this bullet as one that must have gone through Sacco's pistol, his statements concerning the identifying marks seemed to me entirely unconvincing.

At the trial, the District Attorney did not ask me whether I had found any evidence that the so-called mortal bullet which I have referred to as Number 3 passed through Sacco's pistol, nor was I asked that question on cross-examination. The District Attorney desired to ask me that question, but I had repeatedly told him that if he did I should be obliged to answer in the negative; consequently, he put to me this question: Q. Have you an opinion as to whether bullet Number 3 was fired from the Colt automatic which is in evidence? To which I answered, "I have." He then proceeded. Q. And what is your opinion? A. My opinion is that it is consistent with being fired by that pistol.

He proceeded to state that he is still of the same opinion:—

But I do not intend by that answer to imply that I had found any evidence that the so-called mortal bullet had passed through this particular Colt automatic pistol and the District Attorney well knew that I did not so intend and framed his question accordingly. Had I been asked the direct question: Whether I had found any affirmative evidence whatever that this so-called mortal bullet had passed through this particular Sacco's pistol, I should have answered then, as I do now without hesitation, in the negative.

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? Mr. 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?

Katzmann's affidavit stated that

prior to his testifying, Captain Proctor told me that he was prepared to testify that the mortal bullet was consistent with having been fired from the Sacco pistol; that I did not repeatedly ask him whether he had found any evidence that the mortal bullet had passed through the Sacco pistol, nor did he repeatedly tell me that if I did ask him that question he would be obliged to reply in the negative. [Italics ours].

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:—

He said that all he could do was to determine the width of the landmarks upon the bullet. His attention was not repeatedly called to the question, whether he could find any evidence which would justify the opinion that this bullet came from the Sacco pistol. I conducted the direct examination of Captain Proctor at the trial and asked him the question quoted in his affidavit, "Have you an opinion as to whether bullet Number 3 was fired from the Colt automatic which is in evidence?

This question was suggested by Captain Proctor himself as best calculated to give him an opportunity to tell what opinion he had respecting the mortal bullet and its connection with the Sacco pistol. His answer in court was the same answer he had given me personally before.

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." Yet Judge Thayer found no warrant in the Proctor incident for directing a new trial. 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. "With his limited knowledge," says Judge Thayer, "Captain Proctor did not testify that the mortal bullet did pass through Sacco's pistol, but that from his examination of the facts it was simply consistent with it." Why did not Judge Thayer say this to the jury when he charged them with determining the guilt or innocence of Sacco? 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 1924, 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:—

The power of a district attorney under our laws are very extensive. They affect to a high degree the liberty of the individual, the good order of society, and the safety of the community. His natural influence with the grand jury, and the confidence commonly reposed in his recommendations by judges, afford to the unscrupulous, the weak or the wicked incumbent of the office vast opportunity to oppress the innocent and to shield the guilty, to trouble his enemies and to protect his friends, and to make the interest of the public subservient to his personal desires, his individual ambitions, and his private advantage....Powers so great impose responsibilities correspondingly grave. They demand character incorruptible, reputation unsullied, a high standard of professional ethics, and sound judgment of no mean order.

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.

VI.

On May 12, 1926, the Supreme Court of Massachusetts found 'no error' in any of the rulings of Judge Thayer. 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. Such would have been the scope of judicial review had the case come before the New York Court of Appeals or the English Court of Criminal Appeal. 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.

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:—

Discretion in this connection means a sound judicial discretion, enlighted by intelligence and learning, controlled by sound principles of law. Of firm courage combined with 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. It may be assumed that conduct manifesting abuse of judicial discretion will be reviewed and some relief afforded.

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 !

VII.

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 1925 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:—

I hear by confess to being in the South Braintree shoe company crime and Sacco and Vanzetti was not in said crime.

—CELESTINO F. MADEIROS

The confession of a criminal assuming guilt for a crime laid at another's door is always suspect and rightly so. But, as we cannot too strongly insist, the new evidence is not contained in the Madeiros confession. His note to Sacco was only the starting point which enabled the defense to weave the network of independent evidence implicating the Morelli gang of Providence.

As soon as Sacco's counsel was apprized of this note he began a searching investigation of Madeiros's claim. It then appeared that Madeiros had tried several times previously to tell Sacco that he knew the real perpetrators of the Braintree job, but Sacco, fearing he was a spy, had disregarded what he said. An interview with Madeiros revealed such circumstantiality of detail that an examination of Madeiros, both by the defense and by the Commonwealth, was plainly called for. The various affidavits given by Madeiros and the deposition of one hundred pages, in which he was cross-examined by the District Attorney, tell the following story.

In 1920 Madeiros, then eighteen years old, was living in Providence. He already had a criminal record and was associated with a gang of Italians engaged in robbing freight cars. One evening, when they were talking together in a saloon in Providence, some members of the gang invited him to join them in a pay-roll robbery at South Braintree. A holdup was a new form of criminal enterprise for him, but they told him "they had done lots of jobs of this kind" and persuaded him to come along. As an eighteen-year-old novice he was to be given only a subordinate part. He was to sit in the back of a car with a revolver and "help hold back the crowd in case they made a rush." Accordingly a few days later, on April 15, 1920, the plan was carried into execution. In the party, besides Madeiros, were three Italians and a "kind of a slim fellow with light hair," who drove the car. In order to prevent identification they adopted the familiar device of using two cars. They started out in a Hudson, driving to some woods near Randolph. They then exchanged the Hudson for a Buick brought them by another member of the gang. In the Buick they proceeded to South Braintree, arriving there about noon. When the time came the actual shooting was done by the oldest of the Italians, a man about forty, and one other. The rest of the party remained near by in the automobile. As the crime was being committed they drove up, took aboard the murderers and the money, and made off. They drove back to the Randolph woods, exchanged the Buick again for the Hudson, and returned to Providence. The arrangement was that Madeiros should meet the others in a saloon at Providence the following night to divide the spoils. Whether this arrangement was kept and whether he got any of the Braintree loot Madeiros persistently refused to say. This refusal was in pursuance of Madeiros's avowed policy. From the outset he announced his determination not to reveal the identity of his associates in the Braintree job, while holding back nothing which seemed to implicate himself alone. To shield them he obstinately declined to answer questions and, if necessary, frankly resorted to lies. Thus, examination could not extort from him the surnames of the gang, and he further sought to cover up their identity by giving some of them false Christian names. Madeiros showed considerable astuteness in evading what he wanted to conceal. But in undertaking to tell the story of the crime without revealing the criminals he set himself an impossible task. In spite of his efforts, a lawyer as resourceful as Mr. Thompson was able to elicit facts which, when followed up, established the identity of the gang and also strongly corroborated the story of Madeiros.

Madeiros said that the gang "had been engaged in robbing freight cars in Providence." Was there such a gang? There was the Morelli gang, well known to the police of Providence and New Bedford as professional criminals, several of whom at the time of the Braintree murders were actually under indictment in the United States District Court for Rhode Island for stealing from freight cars. Five out of nine indictments charging shoe thefts were for stealing consignments from Slater and Morrill at South Braintree and from Rice and Hutchins, the factory next door. In view of their method of operations, the gang must have had a confederate at South Braintree to spot shipments for them. The Slater and Morrill factory was about one hundred yards from the South Braintree railroad station and an accomplice spotting shipments would be passed by the paymaster on his weekly trip. It will be recalled that the pay roll was that of the Slater and Morrill factory and that the murder and the robbery occurred in front of these two factories. The Morellis under indictment were out of jail awaiting trial. They needed money for their defense; their only source of income was crime. They were at large until May 25, when they were convicted and sent to Atlanta.

Madeiros did not name the gang, but described the men who were with him at South Braintree. How did his descriptions fit the Morelli gang? The leader of the gang was Joe, aged thirty-nine. His brothers were Mike, Patsy, Butsy, and Fred. Other members were Bibba Barone, Gyp the Blood, Mancini, and Steve the Pole. Bibba Barone and Fred Morelli were in jail on April 15, 1920. According to Madeiros there were five, including himself, in the murder car, three of whom were Italians, and the driver "Polish or Finland or something northern Europe." The shooting was done by the oldest of the Italians, a man of about forty, and another called Bill. A fourth Italian brought up the Buick car for exchange at Randolph. As far as his descriptions carry, Madeiros's party fits the members of the Morelli Gang. But the testimony of independent witnesses corroborates Madeiros and makes the identification decisive. One of the gravest difficulties of the prosecution's case against Sacco and Vanzetti was the collapse of the Government's attempt to identify the driver of the murder car as Vanzetti. The District Attorney told the jury that "they must be overwhelmed with the testimony that when the car started it was driven by a light-haired man, who gave every appearance of being sickly." Steve the Pole satisfies Madeiros's description of the driver as well as the testimony at the trial. To set the matter beyond a doubt, two women who were working in the Slater and Morrill factory identified Steve the Pole as the man they saw standing for half an hour by a car outside their window on that day. Two witnesses who testified at the trial identified Joe Morelli as one of the men who did the shooting and another identified Mancini. The Morellis were American-born, which will explain the testimony at the trial that one of the bandits spoke clear and unmistakable English, a thing impossible to Sacco and Vanzetti.

Plainly the personnel of the Morelli gang fits the Braintree crime. What of other details? The mortal bullet came out of a 32 Colt; Joe Morelli had a 32 Colt at this time. Mancini's pistol was of a type and calibre to account for the other five bullets found in the victims. The "murder car" at the trial was a Buick. Madeiros said a Buick was used; and Mike Morelli, according to the New Bedford police, at this time was driving a Buick, which disappeared immediately after April 15, 1920. In fact, the police of New Bedford, where the Morelli gang had been operating, suspected them of the Braintree crime, but dropped the matter after the arrest of Sacco and Vanzetti. Shortly after the Braintree job, Madeiros was imprisoned for five months for larceny of an amount less than $100. But immediately after his release he had about $2800 in bank, which enabled him to go on a pleasure trip to the West and Mexico. The $2800 is unaccounted for otherwise than as his share of the Braintree booty. Joe Morelli, as we know, was sent to Atlanta for his share in the robbery of the Slater and Morrill shoes. While confined he made an arrangement with a fellow prisoner whereby the latter was to furnish him with an alibi, in case of need, for April 15, 1920, placing Morelli in New York.

Even so compressed a precis of the evidence of many witnesses will have made it clear that the defense has built up a powerful case, without the resources at the command of the State in criminal investigations. The witnesses other than Madeiros of themselves afford strong probability of the guilt of the Morellis. What of the intrinsic credibility of Madeiros's confession, which, if believed, settles the matter? A criminal's confession, as we have noted, must be scrutinized with the utmost skepticism. A man who assumes guilt for one crime while about to undergo the penalty of death for another does not carry the least conviction. The circumstances of Madeiros's confession, however, free it from suspicion and furnish assurances of its trustworthiness. Far from having nothing to lose by making the confession, Madeiros stood to jeopardize his life. For while, to be sure, at the time of his confession he was under sentence for another murder, an appeal from this conviction was pending, which was in fact successful in getting him a new trial. Could anything be more prejudicial to an effort to reverse conviction for one crime than to admit guilt for another? So clearly prejudicial, in fact, was his confession that by arrangement with the District Attorney it was kept secret until after the outcome of his appeal and the new trial which followed it. Moreover, the note of confession sent by Madeiros to Sacco on November 18 was not, as we have seen, his first communication to Sacco. Nor was it his first explicit confession. The murder for which he had been convicted, together with a man named Weeks,—the Wrentham bank crime,—was a holdup like the Braintree job. Weeks, under life sentence in another jail, when questioned revealed that in planning the Wrentham job Madeiros drew on his experience at South Braintree. During their partnership Madeiros had frequently referred to the Braintree job, saying it was arranged by the Morelli gang (whom Weeks knew), and at one time identifying a speak-easy in which they found themselves as the one the gang visited before the Braintree holdup. In planning the Wrentham job Madeiros further told Weeks that he "had had enough of the Buick in the South Braintree job." Before the Wrentham crime he had talked to the couple who kept the roadhouse where for a time he was a "bouncer" of his part in the Braintree crime and said "that he would like to save Sacco and Vanzetti because he knew they were perfectly innocent."

These earlier disclosures by Madeiros completely refute the theory that he was led to make his latest confession in 1925 by the hope of getting money. It is suggested that in November 1925 he had seen the financial statement of the Sacco-Vanzetti Defense Committee. But, in the first place there is no proof that Madeiros saw this statement before he made the confession. Secondly, he could not have had knowledge of this statement before he talked to Weeks and the others and when he attempted the prior communications to Sacco, because it was not then in existence. It is incredible that a man fighting for his life on a charge for one murder would, in the hope of getting money, falsely accuse himself of another murder. Madeiros knew the danger of a confession, for his conviction in the Wrentham case largely rested upon confessions made by him. Why should he be believed and suffer death when he confesses one crime and not be believed when he confesses another of the same character? Is not his own statement in accordance with the motives even of murderer?

I seen Sacco's wife come up here with the kids and I felt sorry for the kids.

Let us compare the two hypotheses. The Morelli theory accounts for all members of the Braintree murder gang; the Sacco-Vanzetti theory for only two, for it is conceded that, if Madeiros was there, Sacco and Vanzetti were not. The Morelli theory accounts for all the bullets found in the dead men; the Sacco-Vanzetti theory for only one out of six. The Morelli explanation settles the motive, for the Morelli gang were criminals desperately in need of money for legal expenses pending their trial for felonies, whereas the Sacco-Vanzetti theory is unsupported by any motive. Moreover, Madeiros's possession of $2800 accounts for his share of the booty, whereas not a penny has ever been traced to anybody or accounted for on the Sacco-Vanzetti theory. The Morelli story is not subject to the absurd premise that professional holdup men who stole automobiles at will and who had recently made a haul of nearly $16,000 would devote an evening, as did Sacco and Vanzetti the night of their arrest, to riding around on suburban street cars to borrow a friend's six-year-old Overland. The character of the Morelli gang fits the opinion of police investigators and the inherent facts of the situation, which tended to prove that the crime was the work of professionals, whereas the past character and record of Sacco and Vanzetti have always made it inherently incredible that they should spontaneously become perpetrators of a bold murder, executed with the utmost expertness. A good mechanic, regularly employed at his trade, but away from work on a particular day which is clearly accounted for, and a dreamy fish peddler, openly engaged in political propaganda, neither do nor can suddenly commit an isolated job of highly professional banditry.

Can the situation be put more conservatively than this? Every reasonable probability points away from Sacco and Vanzetti; every reasonable probability points toward the Morelli gang.

How did these facts appear to Judge Thayer?

VIII.

At the outset the scope of Judge Thayer's duty toward the motion for a new trial based upon this new evidence must be kept in mind. It was not for him to determine the guilt of the Morellis or the innocence of Sacco and Vanzetti; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. Judge Thayer's duty was the very narrow one of ascertaining whether here was new material fit for a new jury's judgment. May honest minds, capable of dealing with evidence, reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Could another jury, conscious of its oath and conscientiously obedient to it, be sufficiently impressed with the new evidence to reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adduceable by the defense at the time of the original trial? To all these questions Judge Thayer says, "No." This amazing conclusion he reached after studying the motion "for several weeks without interruption" and set forth in an opinion of 25,000 words! We wish for nothing more than that every reader who has proceeded thus far should study the full text of this latest Thayer opinion. Space precludes its detailed treatment here. To quote it, to analyze it, adequately to comment upon it would require a book. Having now put the materials for detailed judgment at the disposal of readers, we are compelled to confine ourselves to a few brief observations. By what is left out and by what is put in, the uninformed reader of Judge Thayer's opinion would be wholly misled as to the real facts of the case. Speaking from a considerable experience as a prosecuting officer, whose special task for a time it was to sustain on appeal convictions for the Government, and whose scientific duties since have led to the examination of a great number of records and the opinions based thereon, I assert with deep regret, but without the slightest fear of disproof, that certainly in modern times Judge Thayer's opinion stands unmatched for discrepancies between what the record discloses and what the opinion conveys. His 25,000-word document cannot accurately be described otherwise than as a farrago of misquotations, misrepresentations, suppressions, and mutilations. The disinterested inquirer could not possibly derive from it a true knowledge of the new evidence that was submitted to him as the basis for a new trial. The opinion is literally honeycombed with demonstrable errors, and a spirit alien to judicial utterance permeates the whole. A study of the opinion in the light of the record led the conservative Boston Herald, which long held the view that the sentence against these men should be carried out, to a frank reversal of its position.

Dr. Morton Prince writes that any expert psychologist reading the Thayer opinion "could not fail to find evidences that portray strong personal feeling, poorly concealed, that should have no place in a judicial document." One or two illustrations must suffice. William G. Thompson is one of the leaders of the Boston bar. Yet Judge Thayer thus characterized Mr. Thompson's activities in behalf of these two Italians:—

Since the trial before the jury of these cases a new type of disease would seem to have developed. It might be called 'lego-psychic neurosis' or hysteria, which means: 'A belief in the existence of something which in fact and truth has no such existence.

And this from a judge who gives meretricious authority to his self-justification by speaking of the verdict which convicted these men as "approved by the Supreme Judicial Court of this Commonwealth." The Supreme Court never approved the verdict; nor did it pretend to do so. The Supreme Court passed on technical claims of error, and, "finding no error, the verdicts are to stand." Judge Thayer knows this, but laymen may not. Yet Judge Thayer refers to the verdict as "approved by the Supreme Judicial Court."

No wonder that Judge Thayer's opinion has confirmed old doubts as to the guilt of these two Italians and aroused new anxieties concerning the resources of our law to avoid grave miscarriage of justice. The courageous stand taken by the Boston Herald has enlisted the support of some of the most distinguished citizens of Massachusetts. The Independent has thus epitomized this demand:—

"Because of the increasing doubt that surrounds the question of the guilt of these men, springing from the intrinsic character of Judge Thayer's decision, and instanced by the judgment of the herald editorial writer and other observers whose impartiality is unquestioned, we strongly hope that a new trial will be granted. It is important to note that the appeal is being made on the basis of new evidence never passed on before the Supreme Court."

No narrow, merely technical, question is thus presented. The Supreme Court of Massachusetts will be called upon to search the whole record in order to determine whether Judge Thayer duly observed the traditional standards of fairness and reason which govern the conduct of an Anglo-American judge, particularly in a capital case. This court has given us the requirements by which Judge Thayer's decision is to be measured and the tests which it will use in determining whether a new trial shall be granted:—

The various statements of the extent of the power and of limitations upon the right to grant new trials...must yield to the fundamental test, in aid of which most rules have been formulated, that such motions ought not to be granted unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result.

Nor must a new trial be withheld where in justice it is called for because thereby encouragement will be given to improper demands for a new trial. For, as the Chief Justice of Massachusetts has announced, courts cannot close "their eyes to injustice on account of facility of abuse."

With these legal canons as a guide, the outcome ought not to be in doubt.

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