Title: The trial of Saco and Vanzetti : A summary of the outstanding testimony
Author: Bernheimer, Louis
Language: English
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  Transcriber’s Note
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  THE TRIAL

  _of_

  SACCO and VANZETTI

  A Summary of the Outstanding
  Testimony

  _by_

  LOUIS BERNHEIMER

  “_The Truth Shall Make You Free_”



FOREWORD


_Few murder cases have attracted the anxious attention of the
entire civilized world over so long a period of time as the case
of Nicola Sacco and Bartolomeo Vanzetti at Dedham, Norfolk County,
Massachusetts. These men, Italian radicals and aliens, were arrested
during the “Red Raids” carried out by the United States Department
of Justice in 1920, convicted of murder in connection with a payroll
hold-up, and on April 9th, 1927, seven years after their arrest,
sentenced to die in the electric chair._

_Agitation for the release of Sacco and Vanzetti has taken place in
every corner of the earth. Many celebrated men at home and abroad
have declared them to be innocent, their defense has fought a heroic
fight, while the machinery of the law has steadily brought them
closer to death day by day, until there now stands between them and
execution in the week of July 10th of this year, one man, Governor
Alvin T. Fuller of Massachusetts._

_Widespread ignorance on the part of the general public of the actual
testimony on which the conviction of Sacco and Vanzetti was secured
has made it advisable that a brief summary of the testimony of
outstanding importance at the trial should be made._

_The summary here offered, is based on the book by Professor Felix
Frankfurter, of the Harvard Law School, “The Case of Sacco and
Vanzetti,” itself based on the written record of the trial, published
by Little, Brown, and Company in association with the Atlantic
Monthly Company, Boston, Mass., and available at all bookstores._

  _L. B._

  New York,
  May 15, 1927.


Seven years ago, on the afternoon of April 15, 1920, in South
Braintree, Massachusetts, Parmenter and Berardelli, a paymaster
and his guard, while carrying in two boxes the payroll of the shoe
factory of Slater and Morrill, amounting to over $15,000, from the
office building to the factory of the company, a three minute walk,
were fired upon and killed by two men. As the paymaster and guard
fell, an automobile carrying several men drew up. The bandits seized
the boxes of money, threw them into the car, jumped in, and were off.

Charged with the murder on May 5, 1920, three weeks after the crime,
Nicola Sacco and Bartolomeo Vanzetti, the former an industrious
workman with a family, the latter a fish peddler, both extreme
radicals, were put on trial on May 31, 1921, at Dedham, Norfolk
County, Massachusetts. The presiding Judge was Webster Thayer, of
Worcester. Chief counsel for the Italians was Fred H. Moore, a
Westerner and a radical, later, Jeremiah and Thomas F. McAnarney, and
finally William G. Thompson, a former President of the Boston Bar
Association.

Three main lines of attack were followed by the Commonwealth in its
effort to secure a conviction, as follows:

  I. Identification of the defendants as the murderers by means of
  eyewitnesses and other witnesses.

  II. Identification of the defendants as the murderers by means of
  “consciousness of guilt.”

  III. Identification of the defendants as the murderers by means of
  testimony centering on the “mortal bullet.”

The trial lasted seven weeks, and Sacco and Vanzetti were found
guilty of murder in the first degree.

_Were Sacco and Vanzetti two of the assailants of Parmenter and
Berardelli, or were they not?_

That is the issue now, as it was then.

Let us examine the testimony.

[Sidenote: I.

Identification through eyewitnesses and other witnesses]

  On the issue of the identification of the defendants as the
  murderers through eyewitnesses and other witnesses, ninety-five
  witnesses testified for the defense and fifty-nine for the
  Commonwealth. Of the fifty-nine, five, Mary E. Splaine, Frances
  Devlin, Lola Andrews, Louis Pelzer, and Carlos E. Goodridge,
  definitely identified Sacco as in the automobile or at the spot.

Their testimony:

  AS TO SACCO:

1. Splaine, about _three weeks_[1] after the arrest, could not
identify Sacco. A _year later_[1] she testified that he had been in
the murder car, describing sixteen details of his personal appearance!

Dr. Morton Prince, professor of abnormal and dynamic psychology at
Harvard University, comments 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 a 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, length
of his hair, as being between two and two and a half inches long,
and the shade of his eyebrows! Such perception and memory under such
conditions can be easily proved to be psychologically impossible.”


2. Devlin, a _month_[1] after the murders, testified: “He, (Sacco)
looks very much like the man that stood up in the back seat
shooting.” Q. “Do you say positively that he is the man?” A. “I don’t
say positively.”[1]

At the trial, _a year later_,[1] she had _no_[1] doubt, and when
asked: “Have you at any time had any doubt of your identification
of this man?” replied: “No.” She explained the circumstance of an
identification becoming sure after a lapse of time without additional
opportunity for verification, by saying: “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.”

Ferguson and Pierce, from a window above Splaine and Devlin, on the
next floor of the same factory, had substantially the same view as
the two women. 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 and saw the man who murdered Berardelli.
In the court room, in June, 1921, _a year after the crime_,[1] he
identified Sacco as that man. On cross-examination, Pelzer admitted
that _immediately after the arrest_[1] he was unable to make any
identification.

Of three workmen, who were at work in the same room, two testified
that instead of pulling up the window, he (Pelzer) took shelter under
a bench. The third was questioned thus: Q. “Did you hear him later
talk about the shooting?” A. “I think I did, but I am not sure.” Q.
“That day?” A. “Yes, sir.” Q. “What did you hear Pelzer say?” A.
“Well, I heard him say that he didn’t see anybody, that’s all.” Q.
“Is that all you recollect that you heard him say?” A. “Yes, sir.”


4. Lola Andrews, a woman of doubtful repute, testified that at about
11 a. m., the morning of the murders, with a Mrs. Campbell, she saw a
car standing outside the 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 associate the “dark complexioned man” with the
murder, which took place four hours later?

Q. (By the Commonwealth) “What came to your mind when you learned of
the shooting?” A. “Why the only thing I can answer that is this: When
I heard of the shooting I somehow associated that to the man I saw
under the car.”

Four reputable witnesses completely discredited the foregoing Andrews
testimony.

(a) Mrs. Campbell, an elderly woman, with Andrews throughout the
episode, testified that although they saw an automobile in front of
the factory, the man of whom they asked the way to another factory
was _not_[1] the man under the car, but a man in khaki clothes
standing near.

(b) Harry Kurlansky, a business man of Quincy, who had known Lola
Andrews seven or eight years, talked with her in February. “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. 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 any one.’”

(c) In February, 1921, Andrews complained to the police of an assault
on herself in her apartment in Quincy. To George W. Fay, a policeman
who investigated and who asked her if the man who assaulted her was
one of the men she saw at Braintree the day of the shooting. She
said she could not tell because _she didn’t see the faces_[1] of the
Braintree men.

(d) Alfred Lebrecque, a Quincy newspaper man, secretary of the
Quincy Chamber of Commerce, testified to a conversation with Andrews
substantially to the same effect as Fay’s.


5. Carlos E. Goodridge, (who, after the trial, was discovered to have
been 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 pool room in South Braintree; heard shots; stepped to
the door; saw the automobile coming toward him, and when he got to
the sidewalk a man in the automobile “poked a gun” over towards
him—whereupon he “went back into the pool room.”

About _seven months later_[1] he identified Sacco as that man _for
the first time_,[1] and identified him again at the trial.

Four witnesses squarely contradicted Goodridge’s belated
identification. (a) Andrew Manganaro, the employer of Goodridge,
told Goodridge, after the arrest of Sacco and Vanzetti, that he
(Goodridge) should go and see if he could recognize them and find out
if they were the murderers.

Q. “What did they say?” A. “He said he could not do it because when
he saw the gun he was so scared he run right in from where he was.
He could not possibly remember the faces.” Manganaro also testified,
without contradiction, that Goodridge’s reputation for veracity was
bad.

(b) Magazu, who ran the pool room, testified: “I says, ‘Did you see
the men?’ He says, ‘I seen the men, they pointed with the gun.’ I
says, ‘How did the man look?’ He says, ‘Young man, with _light hair,
light complexioned_,[1] and wore an army shirt.’” Q. “Which man?” A.
“One of the men pointing with the gun. I don’t know which.” Q. “Did
he say anything further about it to you?” A. “He says, ‘This job was
not pulled by any foreign people.’”

(c) Arrogni, a barber in South Braintree, testified that Goodrich
told him, “But if I have got to say who the man was I can’t say.”

(d) Damato, Arrogni’s boss, swore to the same effect.

In addition, Goodridge’s testimony was tainted with self-interest.
At the time he was a witness for the Commonwealth he was facing jail
under indictment for larceny, to which he had pleaded guilty. The
case had been “filed;” that is, no sentence has been imposed, and
Goodridge had been placed on probation. Unquestionably, Goodridge’s
testimony was influenced by leniency previously shown to him by the
District Attorney in connection with the first charge of larceny and
by fear of losing his immunity.

       *       *       *       *       *

  AS TO VANZETTI:

Two witnesses claim to have identified Vanzetti as an occupant of the
murder car.

(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. Q. “There was nothing
that attracted your attention in this case except one man leaning
forward as though he was talking to another man?” A. “Yes, there
was.” But Mr. Dolbeare found it impossible to explain definitely what
attracted his attention to this particular man, and finally explained
that it was the appearance of the whole five that attracted his
attention.


(2) Le Vangie, gate-tender of the New Haven Railroad, was on duty
at the South Braintree grade crossing the day of the murder. He
testified that the murder car drove up to the crossing just as he
was lowering the gate. A man inside forced him, at the point of
a revolver, to let them through before the advancing train. He
identified Vanzetti as the man driving the car. His testimony was
discredited by the testimony of McCarthy, locomotive fireman of the
New Haven, who testified that three quarters of an hour after the
murder, “Le Vangie said, ‘There was a shooting affair going on.’ I
says, ‘Some one shot?’ I says, ‘Who?’ He says, ‘Some one—a fellow got
murdered.’ I said, ‘Who did it?’ He said he didn’t know... 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, Le Vangie 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 is middle-aged,
dark, with a black moustache.

On the whole, the alibi for Vanzetti was overwhelming. Thirty-one
eyewitnesses testified positively that none of the men that they
saw in the murder 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.

       *       *       *       *       *

Judge Thayer abandoned identification of Sacco and Vanzetti as the
grounds on which the jury’s verdict rested, in denying a motion
for a new trial. This motion was based on the discovery of a new
eyewitness with better opportunity for observation than any of the
other witnesses on either side, who 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 account and directed to the
same end, and in my judgment, would have no effect whatever on the
verdicts, for these verdicts _did not rest, in my judgment, upon the
testimony of eyewitnesses, for the defendants, as it was, called more
witnesses than the Commonwealth who testified that neither of the
defendants were in the bandit car_.[1]

“The evidence that affected the defendants, was circumstantial, and
was evidence that is known in law as ‘consciousness of guilt.’”

[Sidenote: II.

Identification through “consciousness of guilt”]

  By “consciousness of guilt” Judge Thayer inferred that the conduct
  of Sacco and Vanzetti, after the murder, was the conduct of
  murderers. This inference of guilt was drawn from their behavior on
  the night of May 5th, before and after their arrest, and also from
  their possession of firearms.

  What was their conduct on the night of May 5th, and how did they
  come to possess firearms?

  It will be remembered that as the murder was being committed a car
  containing several other men drew up. The murderers threw the two
  boxes containing the money into the car, jumped in and sped away
  at high speed across near-by railroad tracks. Two days later this
  car was found abandoned in woods a distance from the scene of the
  crime. Leading away from this spot were tracks of a smaller car.

  At the time of the Braintree hold-up the police were investigating
  a similar hold-up in a neighboring town, Bridgewater. In both
  hold-ups a gang was involved. In both they made off in a car. In
  both eyewitnesses believed the criminals to be Italians. In the
  Bridgewater hold-up, the car had left the scene _in the direction
  of Cochesett_.[1] Police Chief Stewart, of Bridgewater, at the time
  of the Braintree hold-up, was therefore on the trail of an Italian
  owning or driving a car in Cochesett. He thought he had found his
  man in one Boda, whose car was then in a garage awaiting repairs.
  Stewart instructed the garage proprietor, Johnson, to telephone the
  police when any one came to fetch it. Pursuing his investigation,
  Stewart found that Boda had been living in Cochesett with a radical
  named Coacci.

  Now, on April 16, 1920, the day after the Braintree murders, Police
  Chief Stewart, at the instance of the Department of Justice, then
  engaged in the round-up of Reds, had been to the house of this
  same Coacci to see why he had failed to appear at the hearing
  regarding his deportation. He had found Coacci packing a trunk, and
  apparently very anxious to get back to Italy. Coacci’s trunk and
  his haste to depart for Italy were not connected in Stewart’s mind
  with the Braintree affair; but when, later, the tracks of a smaller
  car were found near the Braintree murder car, and he surmised that
  this murder car was Boda’s, and discovered that Boda had once been
  living with Coacci, he connected Coacci’s packing, his eagerness
  to depart, his actual departure, with the Braintree murders, and
  assumed that the trunk contained the booty. In the light of later
  discoveries, Stewart jumped to the conclusion that Coacci, Boda’s
  pal, had “skipped with the swag.” As a matter of fact, the contents
  of the trunk, when it was intercepted by the Italian police, on
  arrival, revealed nothing.

  In the meantime, however, Stewart continued to work on his theory,
  which centered around Boda: that whosoever called for Boda’s car,
  at Johnson’s garage, would be suspected of the Braintree crime. On
  the night of May 5th, Boda and three other Italians did in fact
  call, and two of them were Sacco and Vanzetti.

  To explain how they came to do so, let us recall here the
  proceedings for the wholesale deportation of radicals under
  Attorney-General Palmer, in the Spring of 1920. In particular, the
  case of one Salsedo must be borne in mind, a radical who was held
  incommunicado in the New York offices of the Department of Justice,
  on the 14th floor of a Park Row building. Boda and his companions
  were friends of Salsedo. On May 4th, the day before they called
  at Johnson’s garage, they had learned that Salsedo had been found
  dead on the sidewalk outside the Park Row building, to which he had
  been thrown or jumped from the 14th floor. 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 5th at the Johnson garage.

  Mrs. Johnson telephoned the police. The car, not being available,
  the Italians left, Sacco and Vanzetti to board a street-car for
  Brockton, Boda and the fourth member, Orciani, on a motorcycle.
  Sacco and Vanzetti were arrested on the street-car, Orciani was
  arrested the next day, and Boda was never heard of again.

  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, in continuous employment at a shoe factory in Stoughton,
  had taken one day off, on April 15th. Hence, while he could not
  be charged with the Bridgewater crime, he was charged with the
  Braintree murders. Vanzetti, 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.

The testimony concerning “consciousness of guilt:”

(1) Sacco and Vanzetti, as we have seen, were two of the four
Italians who called for Boda’s car at Johnson’s garage, on the
evening of May 5th. Following a prearranged plan, Mrs. Johnson went
to a neighbor’s (Bartlett’s) house to telephone the police. She
testified that the two defendants followed her back to the garage.
Thereafter, the men, having been advised by Mr. Johnson not to run
the car without the current year’s number plate, left without it.

Q. “Now, Boda came there to get his car, didn’t he?” A. “Yes, sir.”
Q. “There were no 1920 number plates on it.” A. “No.” Q. “You advised
him not to take the car and run it without 1920 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 1920 number plate on it,
or because they were conscious of or becoming 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 the sudden departure; but if
they left because they were consciously guilty[2] of what was being
done by Mrs. Johnson in the Bartlett house, then you may say that it
is evidence tending to prove consciousness of guilt on their part.”

(2) Following their departure from the Johnson House, Sacco and
Vanzetti were arrested by policemen who boarded their street-car as
it was coming into Brockton.

Three policemen testified as to their behavior after being taken into
custody. The testimony of the police that Sacco and Vanzetti were
about to draw pistols was emphatically denied by them.

(3) In statements made to the District Attorney and the chief
of police, at the police station after their arrest, both Sacco
and Vanzetti lied. By mis-statements 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.

The other evidence from which the “consciousness of guilt” was
drawn Sacco and Vanzetti admitted. They acknowledged that they
behaved in the way described by Mrs. Johnson, and freely stated that
when questioned at the police station they told lies. What is the
explanation of this conduct?

Plainly, their arrest meant to Sacco and Vanzetti arrest for
radicalism, for when apprehended they were not confronted with the
charge of murder. They were told they were arrested as “suspicious
characters.” But why did that scare them into telling lies?

  The early winter of 1919-20 saw the beginning of the infamous
  campaign by the Department of Justice, under Attorney General
  Mitchell Palmer, for the wholesale arrest and deportation of Reds.
  The details of these raids, their brutality and their lawlessness,
  are set forth authoritatively in decisions of the United States
  courts, condemning the misconduct of the Department of Justice.

  Boston was one of the worst centers of lawlessness. One of the
  leading citizens of Boston, 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 were carried away
  to the extent of paying for full page advertisements about the Red
  peril.”

  Now, 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 were especially
  obnoxious because they had evaded the draft. Not only were they
  living in an overwhelming atmosphere of apprehension, but also
  the terrorizing methods of the Government had a very real meaning
  to them. For, as mentioned above, two of their friends had been
  deported, and one, Salsedo had, they had learned the day before,
  after having been detained incommunicado by the Department of
  Justice for a long period of time, been thrown or jumped from a
  window of a building on Park Row, New York. Sacco and Vanzetti had
  been urged by their friends to dispose of their radical literature
  and thus eliminate the most damaging evidence in the deportation
  proceedings they feared. It was to carry out this advice that
  Vanzetti and his friends were trying to get Boda’s car from
  Johnson’s garage on May 5th. And we cannot avoid concluding that
  Sacco and Vanzetti’s actions after their arrest were dictated, not
  by fear of arrest for murder, but by fear of deportation, or worse,
  for radicalism.

  We have seen the Commonwealth abandon its first line of attack. It
  now abandons its second, and finally we shall see how, depending
  entirely upon its third line, it succeeds, through the cooperation
  of Judge, District Attorney, and firearms expert, in bamboozling
  the jury, already eager to convict these Reds, into believing that
  the “mortal bullet” actually passed through Sacco’s pistol.

  [Sidenote: III.

  Identification through the “mortal bullet.”]

  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 either
  by 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
so-called fatal bullet _went through Sacco’s pistol_.[1] Such was
neither the belief nor the testimony of Proctor, who refused to
accede to this view. In the course of the preparation of the case,
District Attorney Katzmann 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_[1] 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 (Sacco’s
pistol)?” A. “I have.” Q. “What is your opinion?” A. “My opinion is
that it is _consistent with_[1] being fired from that pistol.”

At the trial, 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._”[1]

In the Court’s charge to the jury, Judge Thayer 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._”[1]

Naturally, the court’s _misleading_[1] interpretation became the
jury’s....

After the conviction, Proctor, in an affidavit, swore that one of
the bullets “was, as I then testified and still believe, fired from
a Colt automatic pistol of 32 calibre.... 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 number 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.... At the
trial the District Attorney didn’t 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
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.’” In the affidavit he then proceeded to state that he was
still of the same opinion. “But I didn’t 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
or not 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._”[1]

       *       *       *       *       *

  This affidavit of Proctor’s was made the basis of a motion for a
  new trial before Judge Thayer. Judge Thayer found _no warrant_[1]
  in the Proctor incident for directing a new trial.

  The arguments of Judge Thayer in denying the motion for a new
  trial cannot be set forth here because of lack of space. In them,
  however, he shows himself as unworthy of the responsibilities
  placed upon him by the Commonwealth of Massachusetts. His rigid
  partiality, his seeking to reduce Proctor’s qualifications and
  authority as an expert two years after he was offered by the
  Commonwealth with elaborate reliance as a most important expert,
  in order to minimize the importance of his affidavit, his later
  changing of the testimony of Proctor to read “_perfectly_[1]
  consistent with” instead of “consistent with” when it suited his
  purposes to do so, and so on, through numerous instances, certainly
  violated every standard of right judicial conduct.

  On appeal, the Massachusetts Supreme Judicial Court, May 2, 1926,
  found “no error” in any of the rulings of Judge Thayer. The guilt
  or innocence of the defendants was not, however, in question before
  the Supreme Judicial Court of Massachusetts. That court could not
  inquire as a matter of independent judgment, whether the facts
  as set forth in the printed record of the trial justified the
  verdict. What was reviewed was, in effect, the conduct of the trial
  judge, Thayer, which was found to have shown “no abuse of judicial
  discretion.”

  But what is judicial discretion?

  The present Chief Justice of Massachusetts has given an
  authoritative definition:

  “Discretion in this connection means a sound judicial discretion,
  enlightened 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.”

       *       *       *       *       *

Since the chief purpose of the writer is to expose to the scrutiny
of the public the principal evidence upon which the defendants were
convicted of murder, events since the conviction have not had their
proper share of attention.

With the confession of a young Portuguese, Celestino F. Madeiros,
himself convicted of murder, who swore that he had been one of the
hold-up men, and that Sacco and Vanzetti had not participated in the
hold-up, as a starting point, the defense has built up a strong case
for the identification of a gang of professional bandits in Rhode
Island as the murderers of Parmenter and Berardelli.

In October, 1926, Judge Thayer, in an opinion of 25,000 words, a mass
of misquotations, misrepresentations, suppressions and mutilations,
denied a motion for a new trial, based on the confession of Madeiros
and subsequent evidence.

A few weeks ago the Supreme Judicial Court of Massachusetts barred
further appeal in the Massachusetts courts. It did not, however,
itself pass on the worth of the new evidence.

On April 9th, Judge Thayer sentenced Nicola Sacco and Bartolomeo
Vanzetti to die in the electric chair in the week of July 10, 1927.

       *       *       *       *       *

Power now rests in the hands of the Hon. Alvin T. Fuller, Governor
of Massachusetts, to commute their sentence to life imprisonment, or
grant a pardon.

  SHALL SACCO AND VANZETTI BE KILLED IN THE ELECTRIC CHAIR OR, THEIR
  SENTENCE COMMUTED TO IMPRISONMENT FOR LIFE, PERISH IN PRISON, ON A
  CONVICTION SECURED AT A MANIFESTLY UNJUST TRIAL?

  NO! GOVERNOR FULLER MUST SET THEM FREE!

       *       *       *       *       *

Write or telegraph Governor Alvin T. Fuller, State House, Boston,
Mass., petitioning for their release.

       *       *       *       *       *

Among those American men and women who have petitioned Governor
Fuller for a review of the case by an impartial committee are:

  Bishop Lawrence,
  Dr. Harry Emerson Fosdick,
  John Hays Hammond,
  Roscoe Pound, Dean of the Harvard Law School;
  Robert M. Hutchins, Dean of the Yale Law School;
  Huger W. Jervey, Dean of the Columbia Law School;
  Christian Gauss, Dean of Princeton College;
  Sherwood Eddy,
  Dr. Richard C. Cabot,
  Bliss Perry,
  Charles C. Burlingham,
  Edgar Lee Masters,
  Morton Prince,
  Margaret Deland,
  Henry S. Canby,
  John Haynes Holmes,
  William Lyon Phelps,
  Charles P. Curtiss, Jr.,
  Dr. Stephen S. Wise,
  Frank W. Taussig,
  Prof. E. M. Borchard,
  Roland W. Boyden,
  Francis B. Sayre,
  Dr. Frank G. Goodnow,
  John Graham Brooks,
  Bishop Chauncey C. Brewster,
  Fabian Franklin,
  President Mary E. Woolley of Mount Holyoke College,
  Alexander M. Bing,
  George Gordon Battle,
  James Myers, Industrial Secretary, Federated Churches of Christ.

These men and women are only a few dozen of many thousands of
petitioners. The list goes on to include thirteen members of the
Columbia Law School faculty, nine members of the Yale Law School
faculty, six members of the Kansas Law School faculty, six members
of the Missouri Law School faculty, five members of the Illinois
Law School faculty, the entire faculty of the Minnesota Law school,
twenty-five members of the faculty of Clark University, 123 members
of the faculty of Smith College, members of the faculty and 650
students of the University of California.

Of those in Europe who have petitioned either President Coolidge or
Governor Fuller are Romain Roland, Albert Einstein, Henri Barbusse,
Anatole France.

Footnotes:

[1] Italics mine.

[2] These are Judge Thayer’s words. He must have meant “guiltily
conscious.”



  Transcriber’s Notes

  pg 16 Changed: men and women who have petioned
             to: men and women who have petitioned



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