Sacco and Vanzetti:
Was the Trial Fair?
FRANCIS
THATSACCO AND VANZETTI were innocent
philosophical anarchists done to death for
their radical beliefs by a fear-ridden reactionary society has long been a liberalist
dogma. H. G. Wells summed it up in 1927
when a few weeks before the two men’s execution he wrote in the London Sunday Express that “Sacco and Vanzetti are as innocent of the Braintree murders, for which
they are now awaiting death, as Julius Caesar, or-a better name in this connectionKarl Marx.” For the next thirty years it remained intellectually contemptible to think
otherwise, like joining the Ku Klux Klan
or endorsing laws forbidding the teaching
of evolution or believing in the literalness
of the Bible. In 1948 Professor G. Louis
Joughin could write in The Legacy of Sacco and Vanzetti :
the literary verdict is unanimously sympathetic to the two executed men. Prosecution, judges and the hostile Massachusetts public majority have not in
twenty years found a single literary defender of their p0sition.l
,
I
RUSSELL
The first competent challenge came in
1960 with the publication of Sacco and
Vanzetti-The Murder and the Myth by
Robert Montgomery, a conservative Boston
lawyer.’ Montgomery subjected the trial
record to a minute and searching analysis,
and in the process undermined most of the
long and tenaciouslyheld assumptions of
the Sacco-Vanzetti dogmatists. But in spite
of his devastating logic, Montgomery
marred his own credentials through his
membership in the John Birch Society. His
insularity was apparent in his view of the
two anarchists as no more than a pair of
sleazy criminals. For whatever else Sacco
and Vanzetti may or may not have been,
they were interesting individuals, as I think
anyone who reads their letters will agree
(in spite of the fact that these letters were
doctored and prettified by Gardner Jackson
and Marion Frankfurter). Nevertheless, as
James Rorty, an earlier Sacco-Vanzetti
street demonstrator and poet of the cause,
wrote in a New Leader review, Montgomery’s book stands like a lion in the path of
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the fixated dogmatists of innocence. Two
years after its publication a liberal New
York lawyer, James Grossman, in an article
in Commentary, carefully analyzed the Sacco-Vanzetti trial record and came to the
same conclusion, that the two were indeed
guilty.3 Then three years later a New York
professor, David Felix, published a study
of the role and attitudes of the intellectuals
in the case.4 He too felt forced to conclude
that Sacco and Vanzetti were guilty. In my
own book Tragedy in Dedham, I released
the report of a 1961 ballistics test made in
the Massachusetts State Police laboratory.s
This test, conducted by Jac Weller, the
honorary curator of the West Point Museum, and Colonel Frank Jury, a former head
of the Firearms Laboratory of the New Jersey State Police, demonstrated again what
previous tests had shown, that one of the
bullets found in the body of the murdered
Braintree payroll guard and one of the several shells found at the scene of the crime
had been fired in the 32-caliber Colt automatic found on Sacco at the time of his arrest. To the last-ditch argument that the
mortal bullet and shell might have been
fraudulently substituted by the prosecution,
one need only point out that at the time of
the trial the science of forensic ballistics
was so elementary that no one realized the
significance of breech-block markings on
a shell, although these are as unique and
indicative as the barrel-markings on a bullet. Even if one assumes for the sake of argument that the mortal bullet was substituted, no one would have known enough at the
time to have switched shells.
Not until the early sixties did it become
generally known that the chief defense
counsel at the Sacco-Vanzetti trial, Fred
Moore, had come to the private conclusion
that “Sacco was probably, Vanzetti was
possibly guilty.’ys The radical Moore, a former general counsel for the I.W.W., was
the one man responsible for taking the ob-
scure trial of two Italian immigrants and
making it into an international issue that
Stalin in 1927 could call the most important event since the October Revolution. As
Eugene Lyons-a
publicist for the SaccoVanzetti Defense Committee-later wrote
of him,
[Moorelwas at heart an artist. Instinctively he recognized the materials
of a world issue in what appeared to
others a routine matter. A socialist newspaper-man spent a few days in Boston
and returned to New York to report that
“there’s no story in it . . just a couple
of wops in a jam.” Not one of the members of the defense committee formed
immediately after the men’s arrest suspected that the affair was anything
larger than it seemed. When the case
grew into an historical tussle these men
were utterly bewildered. But Moore saw
its magnitude from the first. His legal
tactics have been the subject of dispute
and recrimination. I think there is some
color of truth, indeed, to the charge that
he sometimes subordinated the literal
needs of legalistic procedure to the l a r g
er needs of the case as a symbol of the
class struggle. If he had not! done so,
Sacco and Vmzetti would have died six
years earlier, without the solace of martyrdom.
With the deliberation of a composer
evolving the details of a symphony
which he senses in its rounded entirety,
Moore proceeded to clarify and deepen
the elements implicit in the case.’
.
Yet before Moore left the case he had
come to doubt his cause, expressing his
doubts to, among others, Roger Baldwin
and (later) Upton Sinclair. Then in 1961
Max Eastman revealed that the anarchist
leader Carlo Tresca had admitted to him
in 1943--shortly before he was murdered
in New York by the Italian-born Soviet
agent Vittorio Vidali-that
“Sacco was
guilty, but Vanzetti was not.”* At the time
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of the trial Tresca was the leading anarchist
in the United States, the one to whom other
anarchists turned when they were in trouble, who knew their innermost secrets. He
it was who had brought Moore into the Sacco-Vanzetti case, sending him on to Boston
to take charge after local comrades had
bungled the preliminary defense. Tresca also told the same story at greater length to
Professor John Roche of Brandeis who in
1941 at Norman Thomas’ house, as a member of the Young People’s Socialist League,
heard Tresca declare angrily that “Sacco
murdered a good comrade, Vanzetti, because he thought they could beat the rap.
Sacco was involved and refused to plead
guilty and save Van~etti.”~
Roche did not
make this public, however, until 1972.
Half a dozen witnesses had testified at
the trial that they had seen Sacco in Boston
on the afternoon of the crime, an “iron-clad
alibi” according to the bombastic assertion
of the late Justice Musmanno. This alibi became paper-thin in 1962 when the labor
writer Paul Jacobs stated that his late close
friend, the former anarchist Anthony Ramuglia, admitted that he had been asked
by the Boston anarchists to appear in court
and swear he had seen Sacco in Boston on
that day. Ramuglia was willing, until he remembered just in time that he had then actually been in jail in St. LOuis.lo
Other bits of evidence indicating Sacco’s
guilt loomed larger after these revelations:
the fact that Sacco had been absent from
work on the day of the crime; that at least
two Italian workmen who knew him admitted in private that they had recognized
him as one of the hold-up men but had been
too frightened to come forward and say so
to the police ; that a hair taken from inside
a cap found at the scene of the crime when
examined under a microscope exactly
matched a hair taken from Sacco’s head;
that the mortal shell was from an obsolete
Winchester cartridge and that six such ob-
solete cartridges were found on Sacco aher
his arrest. Also, there was the singular silence of the Sacco family over the years, ae
if they were harboring-in !Upton Sinclair’s
words-“some
deep, dark secret.” Shortly
before their execution Sacco and Vanzetti
each wrote a long and moving letter to Sacco’s son Dante. Vanzetti wrote: “the documents of our case, which you and other
ones will collect and preserve, will prove
that your father, your mother, yourself,
Inez, I and my family are sacrificed by and
to a State Reason of American Plutocratic
Reaction.” Dante died in 1971, a respected
member of a small-town community, usher
at the Congregational church, member of
his local chamber of commerce and businessmen’s bowling league. But he collected
no documents, and never once would he
make any public statement about the case,
not even the simple assertion that he believed his father innocent. His only reply
was silence. Privately he was much angered
at the renewed publicity in 1959 when the
aging Sacco-Vanzetti clique persuaded an
Italian-American legislator to introduce a
bill in the Massachusetts Legislature granting a posthumous pardon to the two
anarchists.
That Sacco was guilty, that Vanzetti was
at least an accessory after the fact is a
straightforward Copernican solution to the
Braintree crime. To continue to maintain
their absolute innocence in the light of the
revisionism of the last decade requires, as
David Felix points out, a Ptolemaic ingenuity in dealing with obdurate facts. Yet if
the first line of defense, the myth of innocence betrayed, has been breached, the second line remains: Whether guilty or innocent, Sacco and Vanzetti did not have a fair
trial. Certainly this has been accepted ex
cathedra by those who followed in the footsteps of Frankfurter’s special pleading in
1927, The Care of Sacco and Vanzetti, and
this has continued through the years down
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to the recent television and film fantasies.
In a 1973 address to the Italian-American Historical Society, Professor Joughin
admitted-indeed a handsome admissionthat it could never be definitely determined
whether or not Sacco and Vanzetti had
committed the murders for which they were
convicted and executed. The fundamental
question, he maintained, was not that of
guilt or innocence but of the trial’s fairness.
According to this second-line dogma, it was
not possible in the anti-Red hysteria of the
times for Sacco and Vanzetti to have received a fair trial in hostile Dedham, especially before an all-Yankee jury and a prejudiced judge. This is a stem claim that persists after the question of guilt or innocence
has become blurred and that more than
ever requires an exact analysis, section by
section.
The Temper of the Times
1
When on the last day of May 1921, Sacco
and Vanzetti went on trial, Attorney General A. Mitchell Palmer’s Red raids had
been over for a year and a half and Palmer
himself left as a rather ridiculous figure after his ominously erroneous predictions of
“the slaughter of high officials” on May
Day, 1920. A year later, with Harding restoring “Normalcy” and Harry Daugherty
replacing Palmer, the Red Scare-not
without its justifications at the time, despite
the Palmer excesses-had
vanished from
the public’s brief memory, no longer a matter of interest or concern. Even at the time
of the Braintree hold-up-murders on April
15, 1920, there was little or none of the
claimed atmosphere of terror and repression, nor had there been at any time in the
small Massachusetts towns. As Robert Murray in his even-handed study, Red Scare,
pointed out, “by the fall of 1920 the Great
Red Scare was dying. Hysteria, as such,
had all but disappeared before the spring
had passed.”ll Sacco and Vanzetti on the
night of their arrest had gone with two
anarchist comrades, Boda and Orciani, to
a garage to daim an Overland belonging
to Boda. Suspicious of this night visit and
refusing to hand over the car, the garage
owner notified the police. Sacco and Vanzetti, their names still unknown, were arrested on a streetcar ,fifteen minutes later.
Orciani, picked up next day as a murder
suspect, was released when he furnished a
time-card alibi for himself on April 15.
Boda, who eventually made his way to
Italy, was never seen again. A fifth comrade with whom Boda roomed, Coacci, had
already been deported on April 16. Coacci
-a probable Braintree suspect-had been
arrested shortly after the passage of the
1918 Deportation Act and charged with
spreading literature advocating the overthrow of the government. Marked down for
deportation, he had been released on bail
on condition that he marry his common-law
wife and support his children. For two
years he had been allowed his freedom.
Then early in April of 1920 he had received a notice to report at the immigration
station in East Boston. The day after he was
supposed to report he telephoned the Immigration Service to say that his wife was
sick and he needed a few more days. An inspector was sent to investigate. Coacci told
him his wife was now all right and he was
willing to leave at once. The inspector offered to postpone the deportation for
another week, but Coacci said he wanted
to get back to Italy as soon as possible.
He left his house cheerfully, declining the
inspector’s suggestion that he leave his wife
some money since, he said, she didn’t need
any. These are hardly the actions or manner of a persecuted man sick with fear of
authority.
Sacco and Vanzetti were both carrying
pistols when they were arrested and at their
trial claimed they did so for protection b e
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cause as anarchists they were alarmed at
the prevailing anti-Red mood. Yet Vanzetti had in his pocket a pencilled announcement he was preparing to have
printed for the following Sunday that read:
r
,
Proletarians, you have fought all the
wars. You have worked for all the owners. You have wandered over all the
countries. Have you harvested the fruits
of your labors? Thecprice of your victories? Does the past comfort you? Does
the present smile on you? Does the future promise you anything? Have you
found , a piece of land where you can
live like a human being and die like a
human being? On these questions, on
this argument, and on this theme, the
struggle for existence, Bartolomeo Vanzetti will,speak. Hour - Day Hall - Admission free. Freedom of
discussion to all. Take the ladies with
you?2
He planned to post these notices publicly.
Such announcements of open meetings at
which he would speak are not consonant
with a hunted man waiting for the fateful
knock on the door, cowering in terror .of
arbitrary arrest and police brutality. Obviously when Vanzetti , wrote this on the
night of his arrest he felt he had nothing
to fear.
The Iury
I
I
That a Yankee jury in Norfolk County
would react with unfailing and unreasonable harshness to a radical alien defendant
was disproved a year before Sacco’s and
Vanzetti’s trial, in the very courtroom in
which they were convicted and with the
same judge, Webster Thayer, presiding. In
April 1920 a foreign anarchist, Segris
Zagroff, appeared before Judge Thayer
charged with anarchism and advocating the
overthrow of the government by violence.
Zagroff had been picked up in a radical
club the walls of which were hung with pic-
tures of the new Bolshevik leaders. He freely and volubly admitted that he was an
anarchist and that he did not approve of
the American form of government. Never:
theless the jury freed him because, according to the foreman, “the jurors understood
the definition of ‘advocating anarchy,’ as
given by the court, to be the act of a person
who actually used force in bringing about
his aims and not just the advocacy of those
aims when he talked on the subject.”
Norfolk County juries were predominantly Yankee. This lay rather in the ethnic
composition of the county rather than in
any conscious selection process. There was
an Italian colony down by the river in East
Dedham, but these Italians were aliens who
had brought with them a well-formed distrust of all governments. Once here they
showed no eagerness to become citizens and
carefully avoided having themselves listed
in the census or in any other public records. Not until the New Deal arrived with
its cornucopia of welfare projects were they
persuaded to emerge and identify themselves. There would have been no question
of their serving on a jury in 1921. They
were not eligible.
Never in the county’s history had so
many veniremen been rounded up for a single case as that of Sacco and Vanzetti. Yet
when the jury was completed, the youngest
juror, John Dever, turned out to be an Irish
Catholic clothing salesmen from Brookline
who had been brought up among the
Italian-and
often anarchist-stonecutters
of Barre, Vermont. Later Dever wrote an
autobiographical fragment about the trial.
There is no prejudice in his description of
his first glimpse of Sacco and Vanzetti. He
thought they
did not look like criminals. Sacco appeared to be an alert, bright and rather
clean-cut young fellow. Every time I
looked at Vanzetti he seemed to be
thinking with an impassive look on his
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*
face or listening intently to whatever
was taking place at the time. . . . My
sympathies were with the men on trial
and I was hoping that the evidence
would not be sufficient to establish their
guilt “beyond a reasonable doubt.”lS
At the trial’s end as the jurors retired to
reach their verdict, according to Dever “we
started discussing things, reviewed the very
important evidence about the bullets, and
everybody had a chance to speak his piece.
There never was any argument, though. We
just were all convinced that Sacco and Vanzetti had done what the prosecution had
charged them with.”14 The bullet taken
from the guard‘s body had, they felt, been
fired from Sacco’s pistol. And the same
three varieties of shells that had been
picked up at the scene of the crime-including the obsolete shell-had been found
in Sacco’s pocket at his arrest. Another
juror recalled that you couldn’t depend on
witnesses-“but the bullets, there’s no way
of getting round that.” In 1950 Edward B.
Simmons, a reporter for the New Bedford
Standard-Times, interviewed Dever, who
told him: “it is nonsense to say we were
prejudiced against Sacco and Vanzetti because they were Italian anarchists.” The
verdict resulted from the study of all the
hard evidence. “Various pieces fitted into
chains of evidence, which to my mind, not
having a weak link, were pretty strong.”
Dever admitted that “I was a defendants’
man all the way through the trial. I don’t
mean I was determined to vote for their innocence regardless, but I was going to find
them not guilty until the facts proved otherwise, to my definite ati is faction."^'
In 1961 David Felix interviewed one of
the last surviving jurors, Harry E. King,
a welfare agent living near Boston. “I know
there was a lot of talk about it afterward,
radicalism and all that,” King told Felix.
“The jury didn’t mention it when we dism s e d the evidence
I’m a church
....
member. I was a deacon then. I ivouldn’ti
make a decision on a man’s life unless I
was sure I was doing right.
Well, I
have no regrets about the decision-only
that I was picked to make it.”16
...
The Judge
I
.
Like many small-statured men Judge Thay.
er was edgy, on the whole an average
superior-court judge, conscientious, somewhat too talkative, with a naive and uncritical patriotism and a dislike of radicals. Until the Sacco-Vanzetti trial he had never
been criticized for his conduct on the
bench. A reading of the trial transcript indicates no apparent bias on his part.
Six months before the trial Moore, as
part of his general tactics, was reiterating
the claim, sensationally and vociferously,
that Sacco and Vanzetti would not and
could not get a fair hearing. As former
counsel for the I.W.W. he had an extended
network of radical connections both in the
United States and abroad, and through
them he was able to turn on the propaganda spigot. Thanks to his efforts Judge
Thayer in the months before the trial began
was receiving seven or eight hundred
vituperative letters a week, many of them
threatening his life. Their cumulative effect unnerved him to a degree, as they
might many a stronger man.
Among the spectators at the opening of
the trial was the conservative Boston
lawyer, William G. Thompson, a Harvard
man of fairly broad horizons, contemptuous
of the provincial Thayer. Thompson was to
become counsel for Sacco and Vanzetti in
the last days of the case and he would in
the end embrace their cause with the uncritical fervor of a religious convert. He it
was who five-and-a-half years after the trial
first made a formal issue of Judge Thayer’s
prejudice. In July, 1927, appearing before
the Lowell Committee, then reviewing the
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case at Governor Fuller’s request, he testi-
fied:
Katzmann [the district attorney]
would say something and Moore would
object to it. He was jumping up all the
time. He would make objection after objection. Judge Thayer would sit there
and look at Moore with the fiercest expression on his face, moving his head
a little. Moore would say “I object to
that” and Judge Thayer
would sit
back and say “Objection overruled.” It
wasn’t what he said, it was his manner
of saying it. It looked perfectly straight
on the record; he was too clever to do
otherwise. I sat there for a while and I
told John McAnarney [one of the assistant defense lawyers], “Your goose
is cooked. You will never in this world
get these men acquitted, the judge is
going to convict these two men and see
that nothing gets in the record; he is
going to keep his records straight and
you have no chance.”17
...
Even by Thompson’s admission it seems
an impalpable sort of bias that leaves no
trace of itself in the record, that consists
merely of nods of the head and tones of
voice. Hardly the basis for a new trial. Yet
Thompson’s fervor for his clients and his
dislike of Thayer distorted the accuracy of
his recollections. For Thompson was in the
courtroom only on the trial’s first morning
while Judge Thayer was examining
prospective jurors. There was no question
of Moore’s jumping up and objecting or
even opening his mouth, since in a Massachusetts court it is the trial judge who in
the examination of jurors asks ad the questions, including those suggested by counsel.
The formal Thayer and the bohemian
Moore were often at odds-Moore at one
point outraged the judge by appearing in
his stocking feet-yet at the trial’s end, before the jury had brought in its verdict,
Moore told Judge Thayer that, whatever
the jury decided, no one could say that the
defendants had not had a fair trial. It was
not a remark that a former I.W.W. counsel
would feel constrained to make out of
politeness. Moore in his various motions for
a new trial never raised the question of
Thayer’s prejudice, and he remained stubbornly silent when Thompson belatedly
made an issue of it.
Jerry McAnarney, brother of John, and
a junior defense counsel during the trial,
never left the case formally and never lost
the confidence of the defendants and the
Defense Committee as did Moore. Yet in
his closing arguments at the trial’s end he
said to Judge Thayer:
I want to say on behalf of these menI say it to those men and to their
friends-that
they have had every op.
portunity here, they have had every
patience, every consideration. I want
them to know that we have don-that
everything has been done as Massachusetts takes pride in doing, granting to
any man, however lowly his station, the
fullest rights to our Massachusetts Commonwealth laws.
Perhaps the whole issue of fairness was
best summed up by Justice Oliver Wendell
Holmes, to whom everything had been presented that the defense could produce from
the record and elsewhere relevant to Judge
Thayer’s conduct. He wrote to Harold Laski
in 1930 that “I doubt if those two suffered
anything more from the conduct of the
judge than would be a matter of course in
England.”18
The Prosecution
Frederick Katzmann, the chief prosecutor,
has been maligned as a trickster who
viciously maneuvered two innocent radicals
to their doom. To that charge one can only
ask: Why would he bother; What would
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be his motivation for such extended
knavery? Katzmann at the trial was just
another district attorney given a case that
under the adversary system he hoped to
win. If he had lost, it would have been of
no great concern to him, would not have affected his career. He had done his best
and had failed to convince the jury. Just
part of the game! Then and subsequently
Katzmann had an honorable local career
as a lawyer. He and Jerry McAnamey, in
spite of having taken opposite sides on
the Sacco-Vanzetti case, remained good
friends. Shortly before McAnarney died,
after Katzmann had suffered through years
of slander, Jerry told him: “No matter
what anyone said about you, you were all
right, Fred.”lB
Assistant District Attorney Harold Williams as Katzmann’s chief aide took as active a part in the prosecution as did the
district attorney himself. Williams was later
to become a justice of the Massachusetts
Supreme Court. A man of the highest
integrity, so generally honored and respected on the bench that even the last living Sacco-Vanzetti defense counsel, Herbert
Ehrmann, could not bring himself to say
a word against him (except that his views
on Sacco and Vanzetti had been wrong).
It is unthinkable that Williams would have
connived to send two innocent men to their
deaths because he did not like their political beliefs.
The Trial
At the opening of the Sacco-Vanzetti trial
a heavy police guard had been thrown
about the Dedham Courthouse. Police and
deputies guarded the entrances, the stairs,
the corridors. The atmosphere has been
called one of oppression and intimidation
in which the defendants had no chance of
receiving a fair trial. Yet this demonstra-
tion of authority was really the result of
Moore’s agitation that had resulted in
Judge Thayer’s receiving over 3,000
threatening letters a month. That these
threats were never wholly idle was demonstrated after the trial when one of the
prosecution witnesses had his house d e
molished by a bomb. Shortly before the
execution of Sacco and Vanzetti another
bomb destroyed the house of one of their
jurors. Following the executions Judge
Thayer’s house and that of the official
executioner were also bombed.
After the first few days of the trial, the
extraordinary protective measures were
relaxed. The trial became humdrum as the
voices of witnesses droned on through two
summer months. During most of this time
the courtroom was rarely more than halffilled and spectators could come and go
casually at will. Only in the last day or two
did attendance pick up. Dedham had again
relapsed into the rather sleepy, rather e l e
gant town on the Boston road to Providence.
Before the trail Katzmann had offered
to agree with Moore not to try to prove that
any particular bullet had come from any
particular weapon-specifically that the socalled mortal bullet had been fired from
Sacco’s Colt. Hardly the action of a man
who had instigated a fraudulent bullet substitution. Moore refused. He also refused
Katzmann’s offer not to bring up the sub.
ject of the defendants’ radical political beliefs, claiming melodramatically that by so
doing he would be yielding up his “shield
and buckler.”
The prosecution claimed that the armed
defendants had been acting suspiciously on
the night of their arrest, had lied afterward about their actions, because of their
consciousness of guilt in the Braintree
murders. Moore claimed that they were conscious only of being radicals, that they
had gone to get Boda’s Overland in order
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I
to collect incriminating anarchist documents from the homes of various vague and
unspecified comrades. Yet Sacco’s bungalow was found to have an accumulation of
such literature, even though Sacco and
Vanzetti had spent an idle afternoon there
before setting off to pick up the Overland.
Katzmann’s cross-examination was hardWilliams thought afterward that it might
have been too hard-but he succeeded in
pulverizing the radical alibis of both defendants. In the case of Vanzetti the district
attorney so punctured the alibi of collecting
anarchist literature from friends that
Vanzetti was forced to admit it was not so.
According to the trial record Katzmann
twice asked: “Was it your intention then
not to take any literature on the night of
May 5th?” Pinned down by his own contradictions, Vanzetti was finally forced to
answer: L‘No.’’
Two ballistics experts appeared for the
prosecution during the trial, Captain William Proctor, head of the Massachusetts
State Police, and Captain Charles Van Amburgh of the ballistics department of the
Remington U.M.C. Company. The b d e t and-weapon evidence offered was primitive
and in fact almost worthless since at that
early date the comparison microscopethe
only accurate method of determining
whether a given bullet has been fired from
a given weapon-was not in use. Referring
to the mortal bullet and Sacco’s Colt, the
two experts testified :
Proctor: My opinion is that it is consistent with being fired from that pistol.
Van Amburgh: I am inclined to believe
that the bullet was fired from this Colt
automatic, pistol20
Two defense experts contradicted this testimony:
1
Defense Expert Burns (on the bullet
being fired from Sacco’s Colt) : Not in
my opinion.21 ’
Defense Expert Fitzgerald: My OpinioB
is that the bullet was not fired from the
!Colt given me22
‘‘Consistent’’ and “inclined to believe”
are scarcely the definite opinions upon
which a jury could decide “beyond a reasonable doubt” that Sacco’s Colt had fired
the mortal bullet. In fact the experts cancelled each other out. The jury was impressed by the obsoleteness of the bullet,
not by this ambivalent testimony. Dever in
his 1950 interview insisted that “Sacco and
Vanzetti were not convicted on a basis of
Proctor’s evidence.”
Later the defense was to claim that
Proctor’s reply had been framed to mask
his true belief that Sacco’s .€olt had not
fired the bullet. Moore based one of his
supplementary motions on a post-trial affidavit by Proctor. Since then the more
legalistically-minded Sacco-Vanzetti defendereamong them Professor Joughinhave raised this to a key issue, maintaining
that it alone was such a grave perversion of
justice that it should have resulted in a new
trial.
Proctor’s knowledge of ballistics was inadequate and, on the advice of the local
medical examiner, Williams had brought
in Van Amburgh from Connecticut. Proctor resented this outside expert. After his
testimony he sent Katzmann a bill for $500.
Katzmann consulted Judge Thayer who in
turn consulted the chief justice of the Superior Court. The chief justice advised that
the bill should not be paid since Proctor’s
testimony was one of his official duties as
head of the State Police. From then on
Proctor huffily refused to speak to the district attorney.
Proctor continued to bear his grudge. In
1923 he was willing to swear in an
&davit that although the mortal bullet
had come from a Colt, he had at no time
been able to find evidence that it came
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from Sacco’s Colt, and h e had so told
Katzmann. In consequence the district attorney had cunningly framed the question
at the trial: “Have you an opinion as to
whether the bullet was fired from the Colt
automatic which is in evidence?” And he
had replied that it was “consistent” with
being fired from it.
That is still my opinion [he stated in his
affidavit] for the reason that the bullet
in my judgment passed through some
Colt automatic pistol, 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 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.z3
Proctor was countered in affidavits by
Katzmann and Williams. Williams replied :
I asked him [Proctor] if he could tell
in what pistol this so-called mortal bullet was fired and he said he could not
although the marks upon it were consistent with its having been fired in 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 the bullet was fired from
the Colt automatic which is in evidence?”
This question was suggested by C a p
tain 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 personal-
...
I
I
I
iy.z4
Proctor may indeed have felt he found
no affirmative evidence that the mortal
bullet had passed through Sacco’s pistol,
but he certainly found no evidence to
show that it had not. In brief, all he was
prepared to say was that the mortal bullet
had passed through a Colt. Williams explained later that he felt he had to put
Proctor on to identify the exhibits because
he was the head of the State Police. “He
knew very little about bullets,” Williams
added “and he used the word ‘consistent’
because he wasn’t competent to testify to
more than that-he wasn’t saying that this
particular bullet came from that particular
-Sacco’s pistol. He hadn’t made the actual
tests-didn’t know how.” That this incident
was blown up to an issue of such magnitude is in itself a demonstration of. the
fanaticism of the Sacco-Vanzetti defenders.
As David Felix points out, Proctor’s affidavit was “a hair-splitting exercise by a
man who gives no evidence that he knew
his subject. . His &davit offers too little
substance for serious considerati~n.”~~
That the working press generally considered the trial unfair was an impression
created and sponsored by the voluble and
eccentric Globe reporter, Frank Sibley. It
is-as the writer has found in his own experience-very difficult to attend a murder
trial without developing feelings of sympathy or antipathy toward the defendant. Sibley, during that part of the trial he attended, became a Sacco-Vanzetti partisan.
Other more professionally balanced reporters did not. Sibley’s Globe colleague, Lucian Thayer, attended every day of the trial.
“I always liked Frank,” he told me in his
old age. “But he got very emotional about
this case until he couldn’t see it clearly.
As far as I was concerned I never could
see the least thing wrong with the trial. The
judge was fair, the trial was proper. Most
of the reporters there I talked to felt the
same way.” Dorothy Wayman, another re-
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I
,
porter who attended the whole trial, interviewed the prisoners and knew the counsel
for both sides. She considered the trial fair
and maintained, despite Sibley, that her
colleagues felt the same way. All that Sibley
could muster up for the Lowell Committee
six years later was a complaint about
Judge Thayer’s manner, though “it is nothing that you can read into the record.”
None of the jurors ever changed their
opinions about the trial. “The outstanding
thi,ng about the trial was the judge,” Juror
George A. Gerard told Simmons in his 1950
Standard-Times interview. “The fairest
judge I ever saw or heard of.” Juror Frank
Marden, interviewed that same year, also
praised Judge Thayer’s fairness. “I have
never had a bit of reason to think the trial
was anything but fair,” he continued. “I
don’t think we jurors thought of the defendants in any way except as two persons accused of murder.” The last juror
chosen, Seward Parker, asked:
Why should we want to pick up two
Reds and try to convict them for murder? We did not know if they were Reds
and we did not care. To my mind, and
I really think this, the judge tried to
help the defendants. He was square with
us too.
I had no difficulty in my
own mind arriving at the verdict.
.
If I remember anything with absolute
clarity, it was the judge’s fairness.
.. .
..
One of the two official court stenographers,
Edwin S. Hauser, told Simmons then:
You can’t put it too strongly, my belief
in the justice of the verdict and guilt of
the men and fairness of the trial.
Of course, I’ve seen a lot of murder
trials, and other trials in 40-odd years
and I think I’m in a position to be a
pretty good judge. At the time of the
Sacco-Vanzetti trial there was not a single person I ran across in the courtroom who thought they were innocent.
With one exception, a newspaperman.
.
There was no question about his
[Thayer’s] fairness. There was no ques
tion about his courage, either. . .
..
.
Radicalism, Hauser felt, played no part in
the verdict:
We, the other stenographer and I,
heard every word said, we heard every
consultation between judge and counsel
and prosecution. There was not a single
word relating to that trial i,nvolving the
court that we did not hear. And in my
mind there was no question that Sacco
and Vanzetti were guilty as charged.26
The last word on the trial was spoken by
Moore himself. After the verdict, after the
defendants had been taken away and the
courtroom emptied, he had gone to a lunchroom across the street and was sitting at a
comer table by himself drinking a cup of
coffee. Lieutenant Daniel Guerin of the
Brockton Police, a minor technical witness,
came in, noticed him sitting there and
nodded with the professional aplomb of one
law man to another. “Tough luck,” he said
amiably. “What could you expect,” Moore
replied, “with the case I had?”27
In the full Platonic sense the SaccoVanzetti trial was not an ideal trial, with
a judge above the passions and prejudices
of this world, a prosecution and a defense
intent solely on and equally eager to bring
out the truth, a jury of disinterested yet
highly intelligent men who had nevertheless never heard of the crime or the defendants, witnesses with total recall, impelled only by a sense of civic duty, experts
who were really experts. Such ideal trials
are not granted to ordinary fallible mortals.
In the Sacco-Vanzetti case the district attorney did stress the patriotic motif with a
heavy hand when he bore down on the accused for having fled their adopted country
to avoid military service in 1917. But no
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reasonable man can accuse the prosecution
of having tampered with the evidence
to secure a conviction. Judge Thayer,
though he conducted himself with decorum
on the bench, did make unfortunate references to anarchists in private conversations.
It is at least understandable that a man’s
nerves might occasionally give way after
having been subject to such a continued
stream of threats and vituperation. The
jurors spoke for themselves.
No trial has ever been ideal. Yet care
fully examined the Sacco-Vanzetti trial is
seen to be fairer than most, more decorous
than most, relatively free from bias and
prejudice. So examined, the second line of
Sacco-Vanzetti defense is more easily
breached than the first. The revision of
the tenaciously-held myth of the unfair trial
is long overdue.
‘G. Louis Joughlin and Edmund M . Morgan,
The Legacy of Sacco and Vanzetti, (Harcourt,
Brace, 1948).
aevin-Adair, 1960.
‘“The Sacco-Vanzetti Case Reconsidered,” Cornmentary, January, 1962.
‘Protest: Sacco-Vanzetti and the Intellectwls
(Indiana University Press, 1965).
‘Tragedy in Dedham, fiftieth anniversary edition (McGraw-Hill, 19711, pp. 464466. Also note
illustrations.
Wpton Sinclair, “The Fishpeddler and the
Shoemaker,” Institute of Social Studies Bulletin,
Summer, 1953.
‘Eugene Lyons, Assignment in Utopia (Harcourt, Brace, 1937).
W a x Eastman, “Is This the Truth about Sacco
and Vanzetti?” National Review, October 21,
1961.
’Francis Russell, “Son of Sacco,“ National Review, August 17, 1973.
“Letter to the author.
=Red Scare; A Study in National Hysteria
(University of Minnesota Press, 1955).
*Transcript of the Record of the Triol of Ni-
cola Sacco and Bartolomeo Vanzetti in Courts of
Massachusetts and Subsequent Proceedings, 1920
4 9 2 7 (Henry Holt, 1928-19291,p. 2120.
“Tragedy in Dedham, p. 143. Taken from Dever’s unpublished autobiography.
I‘lbid., p. 212.
mStandard-Times,November 12,1950.
“Protest, p. 154.
”Transcript of the Trial, p. 4982.
Wolmes-Laski Letters, edited by Mark DeWolfe Howe (Harvard University Press, 1954).
-Tragedy in Dedham, p. 26.
”Transcript of the Trial, p. 896.
=Some years after the trial, Bums, after studying microphotographs of the shell and bullet and
comparing them with test shells and bullets, repudiated his testimony.
?bid., pp. 1414,1466.
I b i d . , p. 3642.
7 b i d . , p. 3682.
zaProtest, p. 156.
“Simmons interviewed Hauser, seven of the.
eight living jurors and the children of four who
had died.
”Guerin related this to me in an interview a t
his home in 1961.
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