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?