of Sacco’s mother they had been planning to return to Italy. “That’s
why we were saving our money, because we wanted to go across in the
old country, but since the mother died, we hurried more because he
was sorry about his mother died without seeing him.” Sabino’s letter
telling of the mother’s death had arrived March 23 or 24. Thirteen
or fourteen days later Sacco had gone in to the consulate with his
photograph. Katzmann wanted to know how thirteen or fourteen days
after March 24 could make the date April 15. “Well, you count up from
the twenty-third or twenty-fourth of March,” she told him, “and going
to the fifteenth, I says thirteen or fourteen days, and I don’t think
it is much different, because it is over a year he is in prison,
and I don’t remember everything.” Katzmann asked her nothing more.
Sacco’s savings-bank book, introduced as evidence, showed that from
December 9, 1918, he had deposited amounts from $30 to $270 for a
total of about $1500.
The Milford shoe-worker Henry Iacovelli was the last defense witness.
In April 1920 he received a letter from Michael Kelley telling him
there was a job open in the Three-K factory. He had gone to Stoughton
on April 15, first seen George Kelley, then gone to Sacco’s bungalow.
Rosina told him that Sacco had gone to Boston, but this hearsay
evidence Jerry McAnarney could not bring out in court. On this fading
note the defense rested.
Among the residual rebuttal witnesses were Angelo Ricci, the foreman
of the railroad gang near the crossing; a Mary Gaines, who knew Lola
Andrews and Julia Campbell; Henry Hellyer, the Pinkerton agent; Chief
Stewart; Lieutenant Guerin; and a belated identification witness by
the name of Frank Hawley.
Ricci maintained that when the getaway car went over the tracks he
did not see any of his gang at the crossing, but he admitted under
cross-examination: “When you got to control twenty-four men, what to
hell, one fly away. I could not tie them up with string and hold them
all as one. If they went around, sneaked around the pile of dirt or
something like that, I could not hold them.”
Mary Gaines of Quincy was brought in to show that “the statement
Mrs. Andrews made about making inquiry of the man under the car is
not of recent contrivance.” She had visited Julia Campbell and her
sister and Lola Andrews in the Alhambra Block the week following the
shooting. Lola had then told them “she seen this man underneath the
automobile, and she taps this man on the shoulder, she asks him to
please direct her to the Rice and Hutchins shoe shop, and he got up
and directed her to it.”
Hellyer gave his altered account of what Jenny Novelli had told
him. As the existence of his written report was not then known, his
statements passed unchallenged. Lieutenant Guerin told of going to
Sacco’s house and picking up the gray cap with a rip in the lining
from the kitchen table. Moore objected to the cap being admitted
as an exhibit on the grounds of unlawful search and seizure. He
also objected to the jury’s seeing the Buick and demanded that
all references to it be struck out. As usual his objections were
overruled.
Hawley, a salesman and a former Brockton special police officer, said
that on April 15 he was driving his Ford in Brockton. In starting
to turn around on School Street to go to Whitman, he had forced a
Buick touring car to come to a stop. It was a dirty car with flapping
side-curtains and as it stopped the driver stuck his head out and
asked the way to Whitman. The man Hawley had seen sitting next to the
unidentified driver was Vanzetti.
Chief Stewart resumed the stand briefly to add a few more passages
of the Brockton interrogatory that he had previously omitted. There
followed a discussion about the admission as evidence of the books
found in Sacco’s house and whether they should be translated. Finally
both sides agreed to let them in as they were, Moore remarking that
the titles spoke for themselves. Shortly after lunch both sides
rested.
There was a pause, a rustle in the courtroom, as the lawyers gathered
up their documents and the spectators eyed Judge Thayer. He cleared
his throat, looked dryly at Moore, then turned to the jury.
“Well, gentlemen,” he said in his toneless voice, “the book of
fate in these cases has been closed. You will undoubtedly get
these cases for final determination Thursday forenoon, or Thursday
morning. During your absence quite a number of things have been
settled between counsel, one of which is that arguments will be
made tomorrow, beginning at nine o’clock. It has been agreed that
four hours shall be given to each side—that is four hours for the
defendants and four hours for the Commonwealth. They may run a little
over that time.
“I must again suggest to you to still keep your minds open. The
evidence has simply closed now. You have not heard the arguments of
both counsel. You have not heard the charge of the Court. You must
hear what the law is of the Commonwealth in order that you may apply
the law to established facts found by you to be true, and therefore
with this request, which is kindly made by the Court, I trust you
will do what you can to see to it that it is fully carried into
effect.”
Edmund Morgan, in his study of the trial published in 1948,
considered it an act of incomprehensible folly for the defense to
agree to any such four-hour limitation. But in agreeing to the
limitation, Moore and the McAnarneys were from long practical
experience aware of the dangers of taxing a jury’s patience. Jurymen
who had already sat through thirty uncomfortable days of testimony
might react against an argument running several days. Besides, it was
common bar knowledge that by the time the summations were reached, a
jury, despite any judge’s hortatory injunctions, had pretty well made
up its collective mind.
Moore and Jerry McAnarney agreed to divide their allotted morning,
with Moore appearing first. But the ingenious and aggressive general
counsel of the I.W.W., the victor of so many underdog courtroom
battles, was that Wednesday morning like a speaker who has lost
rapport with his audience. He rambled. The telling points escaped
him. Jerry McAnarney, tripping over his grammar, made a far better
follow-up.
Moore opened by remarking wryly that in the six weeks of the trial,
he, as a Californian, had felt almost an alien in the Dedham
court. He then went on to develop his argument, claiming that the
primary—in fact the only—issue was one of identification. Taking
the Commonwealth’s witnesses in order, he asked why it was that
the expressman Neal, when he felt his life was in danger, had not
bothered to look at the number of the threatening car directly in
front of his door? How was it that Faulkner, on the train, could
remember the man he said was Vanzetti leaning over from the rear seat
and yet could not remember the man in the seat beside him? Moore
recalled to the jury the Italian railroad worker, Nicola Gatti, the
one witness who had known Sacco before the crime, and begged them not
to be prejudiced by the fact that the man was an Italian. He pointed
out that Mary Splaine’s elaborate identification must have derived
from the times she saw Sacco at the police station and not from the
fleeting glimpse she had had from the upper window of the Hampton
House, and he brought up again her indecisive statements in Quincy,
so opposed to her Dedham positiveness. As for Lola Andrews, “even
though we had not offered a single witness against her, she killed
herself on the witness stand by her own personality, but Campbell,
Fay, La Brecque finished her up.” Pelser was unemployed when he told
defense investigator Robert Reid that he had seen nothing of the
shooting, but a few months after he got a job with Rice & Hutchins he
was willing to testify for the Commonwealth. Goodridge, the poolroom
man, was in the courtroom for some other purpose when he identified
Sacco. Why?
“Gentlemen,” Moore summed up, “there isn’t a single witness called by
the government who had an unqualified opportunity of observation who
gives an identification. Bostock had the opportunity and wouldn’t.
McGlone had the opportunity and wouldn’t. So on down the line. But
it is the Lola Andrews, the Goodridges, the Pelsers that made the
identification. Miss Splaine and Miss Devlin I reject, because their
testimony is utterly unreasonable. They did not have the opportunity.
They could not. You know it and I know it.”
Moore asked the jury to consider again whether or not the defendants
believed on the night of May 5 they were in fear of deportation or
that they believed their lives or liberties were in danger, and
whether Stewart’s questions about anarchism had not inflamed Sacco’s
suspicions. There were, too, Sacco’s alibi witnesses for April
15—Bosco, Dentamore, Williams, Affe, Kelley, Hayes. Had all these men
committed perjury?
Only in passing did Moore mention the guns and bullets. “If,” he
said, “the time has come when a microscope must be used to determine
whether a human life is going to function or not and when the users
of the microscope themselves can’t agree, when experts called by the
Commonwealth and experts called by the defense are sharply defined in
their disagreements, then I take it that ordinary men such as you and
I should well hesitate to take a human life. You are the responsible
men,” he concluded. “You are the judges of the facts.” And he stood
there a moment staring somberly at the jurors.
“Take a recess of five minutes,” Judge Thayer told the courtroom,
then nodding curtly to the Californian, added, “You ran over your
time twenty minutes, Mr. Moore.”
Jerry McAnarney, in his two hours, did not confine himself to his
ostensible client, Vanzetti, but proceeded to go over the same
ground that Moore had just covered. He criticized the Splaine-Devlin
contradictions, he asked why Sacco and Vanzetti had not been shown
to witnesses in Brockton in a lineup, he speculated as to what
Goodridge had been doing in Dedham when he first identified Sacco.
Then he asked why Sacco, already recognizable in South Braintree as
Mosmacotelli, would have spent a morning standing in front of the
drugstore or hanging around the depot or finally leaning on the fence
under the window of the very factory where he had once worked.
The testy little lawyer warned the jurors about Katzmann: “He can
stand up to this rail and say to you gentlemen ‘What have we
been here for six weeks for, for two slackers, for two men who
did not think enough of their country but what they would go to
Mexico—murderers, slackers, anarchists?’ Ring the changes, gentlemen,
and you can play any tune you want to on that. And you have got to be
very careful that you don’t vibrate in unison with those words. They
are fearful, they are potent, they are laden to the limit.”
McAnarney poked fun at the bravado of the Brockton officer, Connolly,
“listening to the sweetest music of his young life, the sound of
Connolly’s voice when he was telling you what he did.” But when
McAnarney mentioned Levangie, the man he had interviewed and who
two weeks later had denied under oath talking with him, his face
reddened. Captain Van Amburgh he referred to as the “circles” man,
but he had obviously not grasped the implications of his testimony,
for he reminded the jury: “Van Amburgh said that that number three
shell, the fatal bullet that killed Berardelli, came from ...
the Colt revolver that was found on Sacco.” In the question of
Berardelli’s revolver McAnarney pointed out that if the defense had
planned to falsify evidence, it would not have been too difficult
to have the various witnesses memorize the number of Vanzetti’s
Harrington & Richardson and afterward recite it on the witness stand.
McAnarney asserted, as had Moore, that the primary fact was in the
end identification, and that there was not sufficient evidence to
prove beyond a reasonable doubt that the two men had been in South
Braintree that day. “I want every man on this panel to treat these
two defendants as if they were your own individual brother,” he
concluded with sincere irrelevance. “Take that as the text, not the
other that we feel and what this evidence would make them out, treat
them as though, as your brother. He came to this world by the same
power that created you, and may he go from this world by the same
power that takes you. I thank you, gentlemen.”
* * * * *
After the lunch hour Katzmann approached the jury box for his final
argument. As usual his debonair appearance was unaffected by the
heat. Confident of the game he was playing, sure of his arguments,
he faced the jury in the floridity of his top form. But though his
verbiage was lush, his mind was sharp.
He began with provincial urbanity by complimenting the jury, the
defending lawyers, and the judge. Then he covered the case point by
point, missing none of the discrepancies of the defense witnesses and
not neglecting by innuendo to tie in Orciani. There was Burke who
had said that Sacco and Vanzetti were not in the car as it passed
him, Burke who had ridden to court in Callahan’s Hudson and called
it a Buick, who had described the driver of the getaway Buick as a
thickset dark man—when both sides now admitted that the driver was
pale and fair. There was Chase, on the truck at the Co-operative
Society, a man with permanently impaired eyesight. There were Sacco’s
alibi witnesses in Boston and Vanzetti’s in Plymouth. Katzmann
agreed that Corl had painted his boat, that Williams had taken his
advertising orders, that Dentamore had gone to a banquet for the
_Transcript_ editor. “But what in logic is the connection between any
of these things that they say helps mark the time?”
The district attorney did not miss the fact that Vanzetti claimed
that on the night of May 5 they were just going to get the car,
whereas Sacco first said they were going to pick up radical
literature. In the matter of picking up literature, if it was so
urgent to get rid of it, why did Vanzetti do nothing for a week
after coming back from New York? Why did he not warn his friends
in Plymouth? Why did Sacco, after he heard from Vanzetti, take no
steps to get rid of what he himself owned and so protect his home?
Why would Sacco be so afraid of deportation when he was leaving the
country in two days? What were they afraid of, anyhow, the night of
May 5 when they had no incriminating papers with them?
As for the weapons, Katzmann argued: “They had arsenals upon them.
Vanzetti had a loaded 38-caliber revolver, this man who ran to Mexico
because he did not want to shoot a fellow human being in warfare,
a loaded 38-caliber revolver, any one of the cartridges instantly
death-dealing. This tender-hearted man who loved this country and who
went down to Mexico because he did not believe in shooting a fellow
human being, going down to get a decrepit old automobile, had a
38-caliber loaded gun on him.
“And his friend and associate, Nicola Sacco, another lover of
peace, another lover of his adopted country who abhorred bloodshed
and abhorred it so that he went down to Mexico under the name of
Mosmacotelli ... had with him, this lover of peace, thirty-two
death-dealing automatic cartridges, nine of them in the gun ready for
action and twenty-two more of them in his pocket—carried it where the
ordinary citizen carries it there? No, gentlemen, carried where those
who have occasion to use it quickly and want to slip it out and use
it quickly would be prone to carry it, that death-dealing instrument.
“But more than that, gentlemen, and ammunition enough to kill
thirty-seven men if each shot took effect, they had or Vanzetti
had four shells—no weapon in which to fire them at the moment that
we found, but you will remember, gentlemen, that sticking out of
the back of the bandit’s car on April 15 was either a rifle or a
shotgun, and in Vanzetti’s pocket were four 12-gauge shells loaded
with buckshot that they were going out to shoot little birds with....
Maybe, gentlemen, you think that is the way men would be armed who
were going on an innocent trip, innocent so far as death-dealing
matters are concerned at night time after closing hours of the garage
and when the man who ran it was in bed, going to make a social trip
down to see Pappi, the friend of Vanzetti, and he did not know where
he lived, save that it was in East Bridgewater, gentlemen.”
The district attorney admitted that Pelser had lied at first both to
the defense and the Commonwealth, because he did not want to be a
witness, but afterward he was “manly enough to tell you of his prior
falsehoods and his reasons for them.” On the subject of Splaine and
Devlin, Katzmann became almost lyrical: “Gentlemen, do you think that
two young women, presumably endowed with Christian instincts, young
ladies who could have no enmity against the defendant Sacco, who
could have no reason for committing the most damnable of perjuries,
would bespeak evidence against a human being that would take his
life away? Gentlemen, that passes the bounds of human credulity. You
can’t believe that. You cannot have looked on Mary Splaine, a smart
businesswoman, you cannot have looked on the gentle Frances Devlin
and have seen the truth shining like stars out of her young womanly
eyes and believe for a moment that either or both of them would dare,
before a court of justice or before God their Maker, condemn Sacco
to his death with a willful lie. You cannot believe that, gentlemen,
having seen those women.”
He agreed that Levangie, the gate-tender, was wrong in saying that
Vanzetti had driven the car. The probability was that Vanzetti was
directly behind the driver, was leaning forward, and Levangie had
given just a quick transposing glance. Lola Andrews conjured up a
briefer burst of lyricism: “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.” As for Julia
Campbell, she was “Aunt Julia, the elderly lady with the cataracts.”
The district attorney underlined the fact that the Buick getaway
car was found only a mile or so from Elm Square. “You don’t find the
car in Worcester. You don’t find it in Pittsfield. You don’t find
it in South Boston, nor do you find it in Fall River. You find it
in West Bridgewater, and the night these men were arrested, they
were arrested within hailing distance of it. Can you put two and two
together?”
In contrast to Moore’s objection to the microscope’s evidence,
Katzmann declaimed: “Heaven speed the day when proof in any important
case is dependent upon the magnifying glass and the scientist.” He
marshaled the evidence of the guns and the bullets carefully in the
Commonwealth’s favor. “What is the reason Captain Van Amburgh gives
for saying that bullet number three was fired by the Colt of Sacco?”
he asked, thus compounding Jerry McAnarney’s error.
It was after six before Katzman, facing a weary jury and a long-since
emptying courtroom, made his last points. He asked who knew better
about the Harrington & Richardson revolver, the man who had put in a
new hammer or an expert who had never seen it before. He questioned
the disorder and general lack of dates in Affe’s grocery account
books. He wondered why the defense had produced no witnesses from
Rice & Hutchins, where Sacco had worked, to say he was not the
man. He concluded with a flourish: “You are the consultants here,
gentlemen, the twelve of you, and the parties come to you and ask
you to find out what the truth is on the two issues of guilt or
innocence. Men of the jury, do your duty. Do it like men. Stand
together, men of Norfolk!”
Nothing was left but the judge’s charge and the jury’s verdict.
* * * * *
Judge Thayer spent that evening at the University Club in Boston
working on his charge. Like most intermediate judges, he tended to
make his charges set pieces formed out of the accumulated mosaics
of the law, varying in detail according to the particular case,
but in general outline the same. The basic function of a charge
is to enable the jury to sift the relevant from the irrelevant.
In his Sacco-Vanzetti charge of twenty-four pages, only ten were
given to the specific aspects of the case. The formula was based
on a standard set of legal truisms: that a man is innocent until
proved guilty, that reasonable doubt is the doubt of a reasonable
man, that no inference of guilt shall be drawn from an indictment,
that circumstantial evidence can at times be as weighty as direct
evidence, that English common law as adopted by American practice is
one of the glories of the world, and so on. Thayer’s first childhood
memories were of the boys in blue of the Civil War; he had been
appointed to the bench the year that the United States entered the
World War, and his attitude toward soldiers was that of a sentimental
civilian. Ever since his appointment he had peppered his charges and
his less formal addresses with references to “our soldier boys.” It
was a habit that still continued three years after the Armistice, and
that could have somewhat sinister connotations in the trial of two
draft-dodging anarchists.
With the fervor of a poet Thayer worked at his manuscript late into
the night. He was proud of his literary efforts. Like most Americans
whose school course included the elocution lessons of the post-Civil
War period, his taste ran to the flamboyant. Vague metaphorical
phrases blossomed under his hand. “Let the star of a sound judgment
and profound wisdom guide your footsteps into that beautiful realm
where conscience, obedience to law and to God, reigneth supreme.”
Such phrases he found reassuring. And his indwelling sense of
insecurity made him need assurance, turned him at times garrulous,
biased him against foreigners, and drove him to indiscretions that
were later to become notorious.
When Judge Thayer went down to breakfast early Thursday morning and
looked hopefully around the club’s almost empty dining room, his eye
fell on the frosty George Crocker at a table by the window and he
walked over and sat down opposite him. Crocker, an elderly codfish
Bostonian, greeted Thayer with a noticeable lack of cordiality.
Several times during the month the judge had waylaid him in the
lounge and filled his unwilling ears with news about the Dedham
trial, insisting that Americans must now stand together to protect
themselves against anarchists and Reds. Conservative lawyer that
he was, Crocker felt offended at Thayer’s violation of the legal
proprieties in even mentioning a current case. Oblivious of the
other’s disapproval, Thayer would say that it was nonsense that the
defendants were being prosecuted as radicals. Just the same, in his
opinion, they were anarchists and draft-dodgers, and they had failed
to establish alibis.
This morning, before Crocker had finished his grapefruit, Thayer
pulled some sheets of paper out of his pocket saying proudly: “I
want to read you part of the charge I am going to deliver today.” He
talked on, quoting part of Moore’s argument, and then reading more of
his charge, smacking his lips at the end with “That will hold them!”
Crocker replied sniffily or not at all. On leaving the dining room
he warned the steward, “For Heaven’s sake, don’t put me with that
man again!”
* * * * *
Court opened late. Judge Thayer had again timed it that way for
dramatic effect. Every seat was taken and the bar enclosure was
filled with lawyers as Sacco and Vanzetti took their place in the
cage, for it had been noised about in State Street that the judge’s
charge would make legal history. The opening, however, had more the
air of a graduation ceremony than a murder trial. The judge’s desk
was buried in flowers—a huge vase of gladioli sent by the sheriff,
and large bouquets of pinks from Mrs. Katzmann and the wife of
Assistant District Attorney Kane. Among the spectators were the
Marquis Ferrante, Rosina Sacco with the boy Dante, and of course Mrs.
Evans and her inevitable notebook. In spite of the heat Sheriff Capen
had resumed his blue cutaway.
With the clerk’s cry, Judge Thayer rustled in and sat down behind
the bank of flowers. For the last time the ritual was intoned, the
jury was polled, the defendants answered “Present.” Jerry McAnarney
approached the bench with a motion for a directed verdict on the
grounds that the district attorney in his argument had disclaimed
that Vanzetti was driving the getaway car as it crossed the railroad
track. Moore made the conventional request that the court order the
jury upon all the evidence to return a not-guilty verdict for Sacco.
Neither motion, they knew, would be granted. There were a few more
words added to the record about the Berardelli revolver, then the
judge’s brittle voice began: