Sacco and Vanzetti: Was the Trial Fair?



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

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 obModern Age

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


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 ob32

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 o commerce and busif nessmen’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 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 al but disappeared before the spring l
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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 - probable Braintree suspect-had been a 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

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
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 pic34

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

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


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 al that,” King told Felix. l “The jury didn’t mention it when we dism s e d the evidence I’m a church

The Judge



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-

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


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

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 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 W l iliams 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 demonstraModem Age

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


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 W l iliam 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

Defense Expert Fitzgerald: My OpinioB is that the bullet was not fired from the !Colt given me22

Two defense experts contradicted this testimony: 1
Defense Expert Burns (on the bullet being fired from Sacco’s Colt) : Not in my opinion.21 ’

‘‘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 il the b l 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 w l i g to swear in an iln &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-



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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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.

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

.. .


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.


Rinter 1975

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, 2120. p. “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.

Modem Age


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