Europe and felt uncritically grateful to the International Labor
Defense for its belligerent propaganda. Both felt at times that—as
the Communists had said all along—only direct revolutionary action
by the masses could save them. Both were divided between the
class-struggle interpretation of their dilemma and their attachment
to bourgeois partisans like Mrs. Evans. Both were inconsistent in
their attitudes—as who might well not be after seven years in the
shadow of the electric chair.
Sacco, in particular, with his more dogmatic mentality and limited
outlook, tended to distort the possibilities of justice that could
transcend class.
_Let us tell you sincerely, dear comrade_ [_he wrote a member of the
International Labor Defense_], _that for hereafter I will never fall
into another new delusion again, if I don’t see first the day of my
freedom. Even when Mrs. Elizabeth G. Evans—that through all these
struggle years she has been kind to me as kind as good mother can be,
come to tell me “Nick! you again.” No! No! Six long torment years
gives me enough experience because it is a great masterpiece for me
and to anybody else not to be disappointed any more. Poor mother! She
is so sincere and faithful to the law of the man that she has forgot
very early that the history of all the government it were always and
everytime the martyrdom of the proletariat. But, however, we will
stick like a good Communard soldier to the end of the battle and
looking into the eyes of our enemy, face to face, to tell them our
last breath—which I had always faith—that you, the comrades and all
the workers of the world solidarity, would free Sacco and Vanzetti
tomorrow._
Yet in spite of such sentiments he would continue to prefer the
conservative Thompson to the radicals.
Vanzetti, in his enthusiasm for the éclat of the International Labor
Defense activities, could write to Cannon in an almost similar tone:
_The echo of your campaign in our behalf has reached my heart. I
repeat, I will repeat to the last, only the people, our comrades, our
friends, the world revolutionary proletariat can save us from the
powers of the capitalist reactionary hyenas, or vindicate our names
and our blood before history._
Nevertheless, Vanzetti was as harsh in his judgments of the new
Russia as he was of the old America. To his mind all governments were
oppressive, whether they ruled in the name of proletariat, king, or
constitution. His frequently expressed disbelief in the progress of
the Russian Revolution, his contrary belief that “the Bolsheviki
leaders’ dictatorship is an increased perfectioned exploitation
of the proletariat,” constantly embarrassed the editors of the
_Daily Worker_ and the _Labor Defender_. The anti-revolutionary,
anti-Marxist individualistic anarchist, Proudhon, remained his ideal,
and the Frenchman’s ringing words: “Liberty of conscience, freedom of
the press, freedom of labor, of commerce, and of teaching, the free
disposal of the products of labor and industry—liberty, infinite,
absolute, everywhere and forever,” are often echoed in Vanzetti’s
letters.
The first reaction of Sacco and Vanzetti to Cline’s proposal was to
accept it and let the International Labor Defense see what it could
do. However they might differ theoretically from the Communists,
such potent help was not to be spurned. And for all the Defense
Committee’s efforts, they were still in jail after six years.
Clarence Darrow—the untidy colossus who had slipped the noose from so
many necks—appeared as a sudden new hope, a more certain guide than
Thompson out of their legal labyrinth. Even though their trust and
confidence in the Boston lawyer remained intact, they felt that they
had nothing to lose by the change and much to gain.
Felicani, with whom they talked it over, felt otherwise. His distrust
of the Communists was innate, and he, as the organizer of the Defense
Committee, had a much clearer view of the Party’s reasons for taking
up the case than did his two comrades. Darrow himself, in Felicani’s
opinion, could do no more than Thompson had done and would do.[24]
Sacco and Vanzetti finally agreed to reject Cannon’s offer. When
Cline reported this to Chicago, the _Labor Defender_ struck back at
the Defense Committee savagely, accusing it of “trying to represent
the martyrdom of Sacco and Vanzetti as an ‘unfortunate’ error which
can be rectified by the ‘right’ people proceeding in the ‘right’
way.” When Shachtman claimed that it was the Communists’ “campaign
for international solidarity that has so far saved Sacco and Vanzetti
from the death chair,” Jackson’s _Bulletin_ announced angrily that
“the Sacco-Vanzetti Defense Committee has no official relationship
with the International Labor Defense, the Communist Party, or the
Sacco-Vanzetti Conferences, which we understand were organized
through the ILD.”
* * * * *
During the summer and autumn of 1926 a whole new aspect of the case
was opened up by the defense’s belated discovery that Pinkerton
Detective Agency reports had been filed on both the South Braintree
and the Bridgewater holdups. The existence of these primal documents
became known largely through the efforts of Tom O’Connor, a State
House News Service reporter who had first become interested in the
case in 1920 after reading about it in the _New Republic_.
O’Connor kept in touch with developments after the trial, dropping
in from time to time at Moore’s office and at the Hanover Street
headquarters. Making his own investigations in Providence and
elsewhere, he finally became so engrossed in the case that he gave up
his State House job to work for Thompson without pay.
O’Connor was aware—it was common newspaper knowledge—that the
Travelers Insurance Company had insured the South Braintree
payroll. Searching the back numbers of _Protection_, the Travelers
publication, he found what he had assumed—an account of the South
Braintree crime and a statement that the company had hired the
Pinkerton Agency to investigate it. O’Connor realized that the agents
must have made day-by-day reports of what they found, but what
interested him even more was the obvious fact that these reports,
which would have been submitted long before Sacco and Vanzetti were
arrested, would be uncolored by preconceptions. If they could be
located, O’Connor was certain they would prove to be the raw material
of the case.
A week after the May Supreme Court decision O’Connor went to
Thompson, then preoccupied with the Madeiros confession. Just what
had occurred, he asked—well aware that Thompson did not have the
answer—between the evening the Buick was stolen in Needham and the
evening almost six months later when Sacco and Vanzetti were picked
up on the streetcar? How did it happen they were arrested? All
Thompson could do was to gesture helplessly and answer that he did
not know. O’Connor then told him about the South Braintree Pinkerton
report. Thompson, who had not heard of it before, banged his desk in
his excitement.
Some days later, following Thompson’s request, a copy of the report
arrived at the Travelers Boston office. Thompson was then away, but
O’Connor managed to borrow the report and copy it. As he had hoped,
it gave a picture of the case as it appeared before and just after
Sacco and Vanzetti were picked up. O’Connor was particularly struck
by Henry Hellyer’s notes on the fair brown-haired man Jenny Novelli
had seen in the murder car who, by the time Hellyer testified at
Dedham, had become black-haired with a dark complexion.
After this report came to light, O’Connor, while going through the
files of the Bridgewater _Independent_, discovered references to a
Pinkerton report on the Bridgewater holdup. But this second report,
with its even more glaring discrepancies between the immediate
impressions of witnesses and the evidence subsequently offered at the
Plymouth trial, was not to come to light until 1927.
* * * * *
It had been common knowledge at the Dedham trial that the United
States Department of Justice and District Attorney Katzmann’s office
had cooperated in getting evidence for the prosecution. What was
still not known was the degree of cooperation, for when Thompson
raised the issue, the Bureau of Investigation followed its customary
policy of refusing to open its files. Thompson increasingly came to
feel that there might be evidence in the files indicating that Sacco
and Vanzetti were innocent, and in any case he was outraged when he
learned that the Bureau had placed spies in the Dedham jail and on
the Defense Committee and had even planned to introduce one into
Rosina Sacco’s house. He wrote to United States Attorney General
John Sargent requesting that William West of the Boston office
show him whatever documents and correspondence he had covering the
investigations made before, during, and after the trial. In indirect
answer to this, Thompson received a call from the Boston Bureau
asking what information he was after. When he said that he wanted to
go through whatever files the department had on Sacco and Vanzetti,
West informed him that this would not be allowed.
If one can judge by a memorandum now in the National Archives and
prepared by the Department of Justice at the request of the State
Department on October 17, 1921, Sacco and Vanzetti, before their
trial, were known merely as subscribers to Galleani’s _Cronaca
Sovversiva_ and a New Jersey anarchist paper, _La Jacquerie_. In the
files Thompson particularly wanted to see there were of course the
reports of the agents attending the trial, as well as the reports
of Harold Zorian, who had infiltrated the committee, and Anthony
Carbone, who had been planted in the Dedham jail.
Although he was unable to see the files, Thompson discovered that
two former Bureau agents, Lawrence Letherman and Fred Weyand, were
willing to sign affidavits as to what had taken place in the Boston
office in regard to Sacco and Vanzetti during 1920 and 1921. Weyand
explained quite frankly that the purpose of the Boston agents in
going to the trial was to obtain enough evidence there to deport the
accused as anarchists in case they were not convicted of murder.
Letherman, in his affidavit, corroborated Weyand:
_The Department of Justice in Boston was anxious to get sufficient
evidence against Sacco and Vanzetti to deport them, but never
succeeded in getting the kind and amount of evidence required for
that purpose. It was the opinion of Department agents here that a
conviction of Sacco and Vanzetti for murder would be one way of
disposing of these two men. It was also the opinion of such of the
agents in Boston as had any actual knowledge of the Sacco-Vanzetti
case, that Sacco and Vanzetti, although anarchists and agitators,
were not highway robbers, and had nothing to do with the South
Braintree crime. My opinion, and the opinion of most of the older men
in the Government service, has always been that the South Braintree
crime was the work of professionals._
The words are ambiguous. Thompson took them to mean that the
Department of Justice, if it could not get Sacco and Vanzetti
deported as radicals, would cooperate in getting them executed for
a crime they had not committed. As a matter of fact, Sacco and
Vanzetti, if they had been acquitted at Dedham, would through their
own courtroom testimony have then been subject to deportation as
anarchists. West’s attitude in cooperating with Katzmann, may have
been a callous one, but it seems clear that there was nothing in the
Bureau of Investigation files tending to prove either the guilt or
the innocence of the two Italians.
* * * * *
On September 13 Thompson again appeared before Judge Thayer in
the Dedham courthouse to argue that the verdict against Sacco and
Vanzetti should be set aside because of the Madeiros confession and
the Weyand and Letherman affidavits. Thayer denied Thompson’s request
to have Madeiros examined and cross-examined in open court, but aside
from this the judge’s manner was courteous if impassive. From time to
time he would even unbend enough to come out with a small witticism.
For five days affidavits were read and Thompson argued for, while
Assistant District Attorney Ranney argued against, the motion.
Sacco and Vanzetti were not in the courtroom. Rosina was there with
Mrs. Evans as well as Mrs. Rantoul, Jerry McAnarney, and Professor
Frankfurter.
Thompson maintained that if Sacco and Vanzetti had never come into
the case, the evidence he had assembled in Providence would have been
sufficient to indict the Morellis. Under these circumstances he felt
that Judge Thayer should order a new trial. Thompson’s attack on the
Department of Justice and his interpretation of its role caused
much more of a sensation in Boston than did the twice-told tale of
the Madeiros confession. One of his incidental revelations was that
a Bureau agent named Shaughnessy who had investigated Sacco and
Vanzetti had subsequently been sent to prison for highway robbery.
Assistant District Attorney Ranney admitted that if Madeiros had
participated in the South Braintree holdup, Sacco and Vanzetti
were innocent, but he considered Madeiros’ confession worthless.
The district attorney’s office would “answer, but not investigate,
because we know or believe that the truth has been found.” As
for Letherman and Weyand, Ranney took the position that the two
ex-agents were traitors. “In all police departments, in all
detective departments,” he told the court, “secrecy is a watchword,
a byword—‘Do not betray the secrets of your departments.’ And if
the secrets were broadcast, what would be the result? There would
be no crime detected and punished. And yet Letherman and Weyand
give their affidavits to these defendants and betray the secrecy of
their department. We say on the face of it that there is a breach of
loyalty, and we wonder if we cannot conscientiously and logically
find that these men, not now in the department, did not leave there
with honor but dishonor.”
Thompson flared up at Ranney’s mention of secrets: “I will say to
your Honor that a government which has come to value its own secrets
more than it does the lives of its citizens has become a tyranny,
whether you call it a republic, a monarchy, or anything else.
Secrets! Secrets! And he says you should abstain from touching this
verdict of your jury because it is so sacred. Would they not have
liked to know something about secrets? The case is admitted by that
inadvertent concession. There are then secrets to be admitted!”
After studying the documents and affidavits for five weeks Judge
Thayer, on October 23, rejected the motion. He could have done so
without giving his reasons, but apparently feeling the need for
self-justification, he issued a twenty-five-thousand-word opinion.
_Being controlled only by judgment, reason and conscience [he wrote],
and after giving as favorable consideration to these defendants as
may be consistent with a due regard for the rights of the public
and sound principles of law, I am forced to the conclusion that the
affidavit of Madeiros is unreliable, untrustworthy and untrue. To
set aside a verdict of a jury affirmed by the Supreme Judicial Court
of this Commonwealth on such an affidavit would be a mockery upon
truth and justice. Therefore, exercising every right vested in this
Court in the granting of motions for new trials by the law of the
Commonwealth, this motion for a new trial is hereby denied._
In his years on the bench Thayer must have told hundreds of juries
that it was for them to determine the facts. Yet here, where his
function was merely to determine whether the Madeiros evidence was
weighty enough to warrant presentation to a jury, he had taken
over the jury’s function of determining its truth. But beneath his
formalism on the bench and his outward courtesy to Thompson, Judge
Thayer was nettled. Why any respectable lawyer should attempt to
stretch the law for two properly convicted anarchists was beyond him.
He concluded:
_Since the trial before the Jury of these cases, a new type of
disease would seem to have developed. It might be called “legopsychic
neurosis” or “hysteria” which means: “a belief in the existence of
something which in fact and truth has no such existence.”_
_This disease would seem to have reached a very dangerous condition,
from the argument of counsel, upon the present Motion, when he
charges Mr. Sargent, Attorney-General of the United States and his
subordinates, and subordinates of former Attorney-General of the
United States Mr. Palmer and Mr. Katzmann and the District Attorney
of Norfolk County, with being in a conspiracy to send these two
defendants to the electric chair, not because they are murderers but
because they are radicals.... In these cases, from all the developed
symptoms, the Court is rather of the opinion that the disease is
absolutely without cure._
Until Thayer’s decision was published, the only Massachusetts
newspaper to take the side of Sacco and Vanzetti was the Springfield
_Republican_, a paper that, though conservative in outlook, never
altered its outraged opinion that “a dog ought not to be shot on
the weight of the evidence brought out in the Dedham Trial.” As
the waning months of 1926 whetted the issue, the Boston newspapers
at first reacted predictably. The independent _Globe_ kept to its
traditional wary policy of not taking sides on divisive issues.
Frank Sibley, in spite of his standing, was taken off the case,
and on the day of the executions found himself covering a flower
show. Federalist pre-immigrant Boston spoke with two voices: the
McKinley-minded _Herald_, the breakfast voice of State Street; and
the genealogical _Transcript_, the teacup voice of Beacon Hill.
The _Transcript_ held and would continue to hold that Sacco and
Vanzetti had been given a fair trial, that the verdict was just,
the defendants had been given every opportunity of appeal, and
any further delay was an unworthy concession to foreign radicals,
long-haired men, and short-haired women. But doubts had begun to
creep into the editorial rooms of the _Herald_. They crystallized in
the editorial “We Submit” that appeared three days after Judge Thayer
denied the Madeiros motion. It was written by the chief editorial
writer, F. Lauriston Bullard, with editor-publisher O’Brien neither
suggesting nor objecting, and it is indicative of the national
interest the case was now arousing that it was awarded a Pulitzer
Prize. The paragraphs that appeared on October 26 must have goggled
eyes at many a Back Bay breakfast table:
_In our opinion Nicola Sacco and Bartolomeo Vanzetti ought not to be
executed on the warrant of the verdict returned by a jury on July 14,
1921. We do not know whether these men are guilty or not. We have
no sympathy with the half-baked views which they profess. But as
months have merged into years and the great debate over this case has
continued, our doubts have solidified slowly into convictions, and
reluctantly we have found ourselves compelled to reverse our original
judgment. We hope the supreme judicial court will grant a new trial
on the basis of new evidence not yet examined in open court. We
hope the Governor will grant another reprieve to Celestino Madeiros
so that his confession may be canvassed in open court. We hope, in
case our supreme bench finds itself unable legally to authorize a
new trial, that our Governor will call to his aid a commission of
disinterested men of the highest intelligence and character to make
an independent investigation in his behalf, and that the Governor
himself at first hand will participate in that examination, if, as a
last resort, it shall be undertaken. We have read the full decision
in which Judge Webster Thayer, who presided at the original trial,
renders his decision against the application for a new trial, and
we submit that it carries the tone of the advocate rather than
the arbitrator. At the outset he refers to “the verdict of a jury
approved by the supreme court of this commonwealth” and later he
repeats that sentence. We respectfully submit that the supreme court
never approved that verdict. What the court did is stated in its
own words thus: “We have examined carefully all the exceptions in
so far as argued, and finding no error the verdicts are to stand.”
The court certified that, whether the verdict was right or wrong,
the trial judge performed his duty under the law in a legal manner.
The supreme court overruled a bill of exceptions but expressed no
judgment whatever as to the validity of the verdict or the guilt of
the defendants, Judge Thayer knows this._
Bullard went on to object to Thayer’s innuendoes, to say that the
files of the Department of Justice should be opened, and to charge
that Captain Proctor’s affidavit stood as a condemnation of the
Dedham verdict. He concluded:
_If on a new trial the defendants shall again be found guilty we
shall be infinitely better off than if we proceed to execution on
the basis of the trial already held; the shadow of doubt, which
abides in the minds of large numbers of patient investigators of this
whole case, will have been removed. And if on second trial Sacco and
Vanzetti should be declared guiltless, everybody would rejoice that
no monstrous injustice shall have been done. We submit these views
with no reference whatever to the personality of the defendants, and
without allusion now to that atmosphere of radicalism of which we
heard so much in 1921._
Here was the first breach in the Commonwealth’s fortifications. The
defenders of Sacco and Vanzetti now pressed forward in the paper war
that thundered through the correspondence columns of the _Herald_ and
the _Transcript_.
Bullard’s attack received formidable support. Dr. Morton Prince,
the internationally famous Harvard professor of psychiatry, wrote
to the _Herald_ that, after reading the evidence, he “had come
to the conclusion that the trial was a miscarriage of justice,
that the government had not proved its case and probably Sacco
and Vanzetti had not committed the murder charged.” Dr. Prince
particularly questioned a verdict to which Mary Splaine’s evidence
had substantially contributed:
_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 60 feet for from
1½ to three seconds in a motor car going at an increasing rate of
speed at about 15 to 18 miles an hour; that she saw and at the end
of a year she remembered and described 16 different details of his
person, even to the size of his hand, the length of his hair as being
between two and 2½ inches long and the shade of his eyebrows! Such
perception and memory under such conditions can easily be proved to
be psychologically impossible. Every psychologist knows that—so does
Houdini. And what shall we think of the animus and honesty of the
state that introduces such testimony to convict, knowing that the
jury is too ignorant to disbelieve?_
_How came Miss Splaine to become acquainted with these personal
characteristics of Sacco?_
_The answer is simple. Sacco had been shown to her on several
occasions. She had had an opportunity to study him carefully. More
than this, he sat before her in court. At the preliminary hearing in
the police court she was not asked to pick Sacco from among a group
of other men. Sacco was shown to her alone. Everyone knows that under
such circumstances the image of a person later develops, or may
develop, in an observer’s mind and becomes a false memory. Such a
memory is produced by suggestion. Every lawyer knows the unconscious
falsification of memory due to later acquired knowledge, though
ignorant of the psychology of the phenomenon. And yet Miss Splaine’s
testimony was offered by the state to the Jury._
_Why was not Miss Splaine asked to pick out Sacco from among a group
of men? If this had been done, this unconscious falsification of
memory would have been avoided._