Orciani was released because his timecard indicated that he was at work during the hold-up. He did, however, attend the trial as a spectator. He also worked as a chauffeur for Fred H. Katzmann believed Orciani to be one of the five members of the Braintree robbery gang, but because of the difficulty of overcoming Orciani's timecard evidence Katzmann believed that Orciani probably had a friend punch in for him , he decided not to prosecute.
Moore was the original lead defense attorney for Sacco during the Dedham trial. He was a Californian who had a reputation for successfully defending radicals. Moore was not, however, well versed with Massachusetts law or procedure. In fact, he had never before tried a case in Massachusetts and would never do it again.
He withdrew from the case shortly after the trial, which pleased Rosa Sacco, who disliked him from the beginning. In , it was revealed by the son of one of the original group of four that hired him as defense lawyer that Moore was a cocaine addict, and had to be constantly supplied with the drug throughout the course of the trial. Thomas was a local judge who was appointed by Calvin Coolidge when Silent Cal was governor of Massachusetts.
They had an older brother, John, who was generally regarded as a superior attorney to the two of them. John declined taking the case due to other business, but did help his younger brothers with trial strategy. Moore withdrew from the case. Thompson, by most accounts, was a conservative and prominent Boston attorney who had been a council member of the Boston Bar Association. Some in the Defense Committee had wanted Thompson to handle the case in trial court rather than Moore.
Thompson argued the post-trial motions before the Supreme Judicial Court of Massachusetts in January of He was an accomplished attorney who was quick, intelligent, and phenomenal in front of a jury. Coacci was an Italian anarchist and worker in a Bridgewater shoe factory scheduled for deportation on April 15, , the very day of the Braintree crime.
He failed to show up for his scheduled deportation, falsely claiming that he had to take care of his sick wife. He was eventually deported on April 18, and, according to accounts, was all too happy to leave the country. Later, as authorities considered the coincidence of Coacci's not showing up on the 15th for deportation and eyewitness accounts of an Italian gang being involved in the Braintree crime, some began to suspect that Coacci may have been involved in the crime.
Investigators visited Coacci's rundown house in Cocheset rented by his friend Mike Boda looking for evidence. The search eventually led to suspicion of Boda, and finally to the arrests of Sacco and Vanzetti. Madeiros was a Portuguese immigrant with a criminal record who had been convicted of murder.
He was in the Dedham jail with Sacco. He sent Sacco a note in November of indicating that he, as a member of the Morelli gang, had been involved in the South Braintree hold-up and affirming that Sacco and Vanzetti were innocent of the crime. A motion for new trial was based on his confession. He was executed with Sacco and Vanzetti. The Morelli Gang is believed by some people to have committed the South Braintree hold-up for which Sacco and Vanzetti were executed. The theory was developed and strongly pushed by post-trial defense lawyer Herbert Ehrmann.
Madeiros confessed to having committed the crime, witness descriptions of the perpetrators generally fit the gang, Mike drove a Buick the make of car used in the hold-up , Joe had a 32 Colt the kind of gun that killed Parmenter and Berardelli. The gang was suspected by the police of New Bedford until Sacco and Vanzetti were arrested. Ricardo Orciani Orciani was an anarchist implicated in the Braintree hold-up with Sacco and Vanzetti.
Eugene Lyons was a regular visitor to see Sacco in prison: "Sacco was the Latin at his most impetuous, a man of emotion rather than logic, driven literally to madness on at least two occasions by the ordeal of imprisonment and waiting. The separation from his pretty red-headed wife and his two children, from friends and work, consumed his flesh and shook his reason. A week of incarceration for a man like Sacco was more terrible than a year for the more phlegmatic and contemplative Vanzetti.
Sacco was a caged and raging animal; Vanzetti seemed a monk in calm seclusion. Under the ferocious Italian mustaches which gave him a look of fierceness in the eyes of the ordinary American, the fishmonger from Piemonte had ascetic features and eyes of a tenderness that haunted one. By the summer of it became clear that Sacco and Bartolomeo Vanzetti would be executed. Vanzetti commented to a journalist: "If it had not been for this thing, I might have lived out my life talking at street corners to scorning men.
I might have died, unmarked, unknown, a failure. Now we are not a failure. This is our career and our triumph.
Never in our full life can we hope to do such work for tolerance, justice, for man's understanding of man, as now we do by accident. Our words - our lives - our pains - nothing! The taking of our lives - lives of a good shoemaker and a poor fish peddler - all! That last moment belong to us - that agony is our triumph. On 23rd August , the day of execution, over , people took part in a silent demonstration in Boston.
Soon after the executions Eugene Lyons published his book, The Life and Death of Sacco and Vanzetti : "It was not a frame-up in the ordinary sense of the word. It was a far more terrible conspiracy: the almost automatic clicking of the machinery of government spelling out death for two men with the utmost serenity. No more laws were stretched or violated than in most other criminal cases. No more stool-pigeons were used. No more prosecution tricks were played.
Only in this case every trick worked with a deadly precision. The rigid mechanism of legal procedure was at its most unbending. The human beings who operated the mechanism were guided by dim, vague, deep-seated motives of fear and self-interest. It was a frame-up implicit in the social structure. It was a perfect example of the functioning of class justice, in which every judge, juror, police officer, editor, governor and college president played his appointed role easily and without undue violence to his conscience.
A few even played it with an exalted sense of their own patriotism and nobility. Fifty years later, on 23rd August, , Michael Dukakis, the Governor of Massachusetts , issued a proclamation, effectively absolving the two men of the crime. The atmosphere of their trial and appeals were permeated by prejudice against foreigners and hostility toward unorthodox political views. The conduct of many of the officials involved in the case shed serious doubt on their willingness and ability to conduct the prosecution and trial fairly and impartially.
Simple decency and compassion, as well as respect for truth and an enduring commitment to our nation's highest ideals, require that the fate of Sacco and Vanzetti be pondered by all who cherish tolerance, justice and human understanding.
I am no orator. It is not very familiar with me the English language, and as I know, as my friend has told me, my comrade Vanzetti will speak more long, so I thought to give him the chance.
I never knew, never heard, even read in history anything so cruel as this Court. After seven years prosecuting they still consider us guilty. And these gentle people here are arrayed with us in this court today. I know the sentence will be between two classes, the oppressed class and the rich class, and there will be always collision between one and the other.
You know it, Judge Thayer - you know all my life, you know why I have been here, and after seven years that you have been persecuting me and my poor wife, and you still today sentence us to death. I would like to tell all my life, but what is the use? These records have not been made available, nor has their absence been accounted for.
West, the then agent in charge, "be authorized to talk with counsel for Sacco and Vanzetti and to disclose whatever documents and correspondence are on file in his office dealing with the investigation made by the Boston agents before, during, and after the trial of Sacco and Vanzetti. West made no denial whatever and the District Attorney only emphasized his failure to deny the facts charged by the two former agents of the Department of Justice by an affidavit confined to a denial of some of the statements of a former government spy.
The charge that the principal agent of the Department of Justice in Boston and the District Attorney collaborated to secure the conviction of Sacco and Vanzetti is denied neither by the agent nor by the District Attorney. Chief Stewart of Bridgewater takes it upon himself to say that the officials of the Department "had nothing whatsoever to do with the preparation of this case for trial.
Thompson rightly replies, "What are the secrets which they admit? A government which has come to value its own secrets more than it does the lives of its citizens has become a tyranny 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 the secrets?
The case is admitted by that inadvertent concession. There are, then, secrets to be admitted. Not less than twelve times Judge Thayer ridicules the charge of a conspiracy between "these two great Governments—that of the United States and the Commonwealth of Massachusetts"!
He indulges in much patriotic protestation, but is wholly silent about the specific acts of wrongdoing and lawlessness connected with the Red raids of The historian who relied on this opinion would have to assume that the charge of lawlessness and misconduct in the deportations of outlawed radicals was the traitorous invention of a diseased mind. The verdict of guilty was brought in on July 14, The exceptions which had been taken to rulings at the trial were made the basis of an application for a new trial, which Judge Thayer refused.
Subsequently a great mass of new evidence was unearthed by the defense, and made the subject of other motions for a new trial, all heard before Judge Thayer and all denied by him. The hearing on the later motions took place on October 1, l, and was the occasion of the entry into the case of Mr. Thompson, a powerful advocate bred in the traditions of the Massachusetts courts. The espousal of the Sacco-Vanzetti cause by a man of Mr.
Thompson's professional prestige at once gave it a new complexion and has been its mainstay ever since. For he has brought to the case, not only his great ability as a lawyer, but the strength of his conviction that these two men are innocent and that their trial was not characterized by those high standards which are the pride of Massachusetts justice. We have now reached a stage of the case the details of which shake one's confidence in the whole course of the proceedings and reveal a situation which undermines the respect usually to be accorded to a jury's verdict.
By prearrangement the prosecution brought before the jury a piece of evidence apparently most damaging to the defendants, when in fact the full truth concerning this evidence was very favorable to them. 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 by either 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 fatal bullet went through Sacco's Pistol.
Such was not the belief of Proctor; he refused to accede to this view in the course of the preparation of the case, and the District Attorney 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 issue Captain Proctor testified as follows at the trial:—.
The Government placed chief reliance on his expert testimony. 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. In simple English he interpreted the evidence to mean that. Naturally the Court's interpretation became the jury's. By their silence the District Attorney and the counsel for the defense acquiesced in the Court's interpretation, showing that counsel for both sides apparently attached the same meaning to this testimony.
After the conviction Proctor in an affidavit swore to the following account of his true views and the manner in which they were phrased for purposes of the trial. After giving his experience and the fact that he had had the custody of the bullets, cartridges, shells, and pistols in the case, he swore that one of the bullets. He proceeded to state that he is still of the same opinion:—. This affidavit of Proctor was made the basis of Mr. Thompson's motion for a new trial before Judge Thayer.
Here was a charge going to the vitals of the case, made by a high official of the police agencies of the state. How did the District Attorney meet it? Katzmann and his assistant, Mr. Williams, filed affidavits in reply. Did they contradict Proctor? They could not deny his testimony or the weight that the prosecution and the Court had attached to it.
These were matters of record. Did they deny the prearrangement which he charged? Did they deny that he told them he was unable to identify the mortal bullet as Sacco's bullet? Williams's affidavit, after setting forth that Captain Proctor told him before the trial that comparisons of the mortal bullet with bullets "pushed by him through various types of pistols" showed that "the mortal bullet had been fired in a Colt automatic pistol," proceeded:—.
Proctor's disclosures remain uncontradicted: he was unable to identify the murder bullet as Sacco's bullet; he told Katzmann and Williams that he was unable to do it; he told them if he were asked the question on the witness stand he would have to testify that he could not make the identification; a form of words was therefore found by which, without committing perjury, he could convey the impression that he had testified to the identification.
The only contradiction by Katzmann and Williams of Proctor's account affects the number of times that he told them that he was unable to make the identification, he having sworn that he told them "repeatedly" and they denying that he told them "repeatedly. And why? The Judge quotes the Proctor questions and answers and argues that the questions were clear and must have been perfectly understood by Captain Proctor. Of course the questions were clear and clearly understood by Proctor. The whole meaning of Captain Proctor's affidavit was that the questions and answers were prearranged and that by this prearrangement court and jury were misled with terrible harm to the defendants.
The Judge is extraordinarily versatile in misinterpreting the true purport of the Proctor affidavit. Thus he seriously asks why, if Captain Proctor at the trial was "desirous of expressing his true opinion," he used the phrase "consistent with," language selected by himself. The crux of the matter is that Captain Proctor at the trial was not "desirous of expressing his true opinion," that the District Attorney was very desirous that he should not do so, and that between them they agreed on a form of words to avoid it.
The Judge next attempts to belittle the weight of Proctor's testimony two years after he was offered by the Commonwealth with elaborate reliance as a most important expert. We must dwell on one amazing statement of the Court. Why did the Judge charge the jury that Captain Proctor did testify that the mortal bullet passed through Sacco's pistol?
And why, having in October , for the purpose of denying the Proctor motion, minimized the Proctor testimony by saying that Proctor testified that the passing of the mortal bullet through Sacco's pistol was "simply consistent with" the facts, does he two years later, in order to show how strong the case was at the original trial, state that the "experts testified in their judgment it [the mortal bullet] was perfectly consistent with" having been fired through the Sacco pistol?
In charging the jury Judge Thayer misled them by maximizing the Proctor testimony as the prearrangement intended that it should be maximized. When the prearrangement was discovered and made the basis of a motion for a new trial, Judge Thayer depreciated Proctor's qualifications as an expert and minimized Proctor's actual testimony.
Finally, when confronted with new evidence pointing seriously to guilt for the Berardelli murder, not only away from Sacco and Vanzetti, but positively in another direction, in order to give the appearance of impressiveness to the facts before the jury Judge Thayer again relies upon the weightiness of Proctor's expert testimony and maximizes Proctor's evidence at the trial, but not to the extent that he did in charging the jury because Proctor's affidavit now prevents him from doing so!
This is the attitude of mind which has guided the conduct of this case from the beginning; this is the judge who has for all practical purposes sat in judgment upon his own conduct. English criminal justice is constantly held up to us, and rightly so, as an example. One ventures confidently to say that conduct like that revealed by the Proctor incident is inconceivable in an English prosecution.
But if it did take place, there is no possible doubt that the corrective resources of the English courts would not allow a verdict secured by such means to stand. Such behavior surely violates the standards which the Massachusetts Supreme Judicial Court has laid down for district attorneys:—. If the Proctor situation does not come within the condemnation of these requirements, language certainly has strange meaning. Yet the Massachusetts Supreme Court held that Judge Thayer's decision could not "as a matter of law" be reversed.
The guilt or innocence of the defendants was not retried in the Supreme Court. That court could not inquire whether the facts as set forth in the printed record justified the verdict. In those jurisdictions a judgment upon the facts as well as upon the law is open, and their courts decide whether convictions should stand in view of the whole record.
A much more limited scope in reviewing connections prevails in Massachusetts. What is reviewed in effect is the conduct of the trial judge; only so called questions of law are open. The merits of the legal questions raised by the exceptions cannot be discussed here. Suffice it to say, with deference, that some of the Supreme Court rulings are puzzling in the extreme. One question of law, however, can be explained within small compass, and that is the question which is the crux of the case: Did Judge Thayer observe the standards of Anglo-American justice?
In legal parlance, was there abuse of "judicial discretion" by Judge Thayer? What, then, is "judicial discretion"? Is it a legal abracadabra, or does it imply standards of conduct within the comprehension of the laity in whose interests they are enforced? The present Chief Justice of Massachusetts has given an authoritative definition:—. This is the test by which Judge Thayer's conduct must be measured. The Supreme Court found no abuse of judicial discretion on the record presented at the first hearing before it.
In other words, the Court was satisfied that throughout the conduct of the trial and the proceedings that followed it Judge Thayer was governed by "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.
The reader has now had placed before him fairly, it is hoped, however briefly, the means of forming a judgment. Let him judge for himself! Hitherto the defense has maintained that the circumstances of the case all pointed away from Sacco and Vanzetti. But the deaths of Parmenter and Berardelli have remained unexplained.
Now the defense has adduced new proof, not only that Sacco and Vanzetti did not commit the murders, but also, positively, that a well-known gang of professional criminals did commit them.
Hitherto a new trial has been pressed because of the character of the original trial. Now a new trial has been demanded because an impressive body of evidence tends to establish the guilt of others. Celestino F. Madeiros, a young Portuguese with a bad criminal record, was in confined in the same prison with Sacco.
On November 18, while his appeal from a conviction of murder committed in an attempt at bank robbery was pending in the Supreme Court, he sent to Sacco through a jail messenger the following note:—. The confession of a criminal assuming guilt for a crime laid at another's door is always suspect and rightly so. But, as we cannot too strongly insist, the new evidence is not contained in the Madeiros confession. His note to Sacco was only the starting point which enabled the defense to weave the network of independent evidence implicating the Morelli gang of Providence.
As soon as Sacco's counsel was apprized of this note he began a searching investigation of Madeiros's claim. It then appeared that Madeiros had tried several times previously to tell Sacco that he knew the real perpetrators of the Braintree job, but Sacco, fearing he was a spy, had disregarded what he said. An interview with Madeiros revealed such circumstantiality of detail that an examination of Madeiros, both by the defense and by the Commonwealth, was plainly called for. The various affidavits given by Madeiros and the deposition of one hundred pages, in which he was cross-examined by the District Attorney, tell the following story.
In Madeiros, then eighteen years old, was living in Providence. He already had a criminal record and was associated with a gang of Italians engaged in robbing freight cars. One evening, when they were talking together in a saloon in Providence, some members of the gang invited him to join them in a pay-roll robbery at South Braintree.
A holdup was a new form of criminal enterprise for him, but they told him "they had done lots of jobs of this kind" and persuaded him to come along.
As an eighteen-year-old novice he was to be given only a subordinate part. He was to sit in the back of a car with a revolver and "help hold back the crowd in case they made a rush. In the party, besides Madeiros, were three Italians and a "kind of a slim fellow with light hair," who drove the car. In order to prevent identification they adopted the familiar device of using two cars. They started out in a Hudson, driving to some woods near Randolph.
They then exchanged the Hudson for a Buick brought them by another member of the gang. In the Buick they proceeded to South Braintree, arriving there about noon. When the time came the actual shooting was done by the oldest of the Italians, a man about forty, and one other. The rest of the party remained near by in the automobile. As the crime was being committed they drove up, took aboard the murderers and the money, and made off. They drove back to the Randolph woods, exchanged the Buick again for the Hudson, and returned to Providence.
The arrangement was that Madeiros should meet the others in a saloon at Providence the following night to divide the spoils. Whether this arrangement was kept and whether he got any of the Braintree loot Madeiros persistently refused to say. This refusal was in pursuance of Madeiros's avowed policy. From the outset he announced his determination not to reveal the identity of his associates in the Braintree job, while holding back nothing which seemed to implicate himself alone.
To shield them he obstinately declined to answer questions and, if necessary, frankly resorted to lies. Thus, examination could not extort from him the surnames of the gang, and he further sought to cover up their identity by giving some of them false Christian names.
Madeiros showed considerable astuteness in evading what he wanted to conceal. But in undertaking to tell the story of the crime without revealing the criminals he set himself an impossible task. In spite of his efforts, a lawyer as resourceful as Mr. Thompson was able to elicit facts which, when followed up, established the identity of the gang and also strongly corroborated the story of Madeiros.
Madeiros said that the gang "had been engaged in robbing freight cars in Providence. There was the Morelli gang, well known to the police of Providence and New Bedford as professional criminals, several of whom at the time of the Braintree murders were actually under indictment in the United States District Court for Rhode Island for stealing from freight cars. Five out of nine indictments charging shoe thefts were for stealing consignments from Slater and Morrill at South Braintree and from Rice and Hutchins, the factory next door.
In view of their method of operations, the gang must have had a confederate at South Braintree to spot shipments for them. The Slater and Morrill factory was about one hundred yards from the South Braintree railroad station and an accomplice spotting shipments would be passed by the paymaster on his weekly trip. It will be recalled that the pay roll was that of the Slater and Morrill factory and that the murder and the robbery occurred in front of these two factories.
The Morellis under indictment were out of jail awaiting trial. They needed money for their defense; their only source of income was crime. They were at large until May 25, when they were convicted and sent to Atlanta. Madeiros did not name the gang, but described the men who were with him at South Braintree.
How did his descriptions fit the Morelli gang? The leader of the gang was Joe, aged thirty-nine. His brothers were Mike, Patsy, Butsy, and Fred. Bibba Barone and Fred Morelli were in jail on April 15, According to Madeiros there were five, including himself, in the murder car, three of whom were Italians, and the driver "Polish or Finland or something northern Europe.
A fourth Italian brought up the Buick car for exchange at Randolph. As far as his descriptions carry, Madeiros's party fits the members of the Morelli Gang. But the testimony of independent witnesses corroborates Madeiros and makes the identification decisive. One of the gravest difficulties of the prosecution's case against Sacco and Vanzetti was the collapse of the Government's attempt to identify the driver of the murder car as Vanzetti.
The District Attorney told the jury that "they must be overwhelmed with the testimony that when the car started it was driven by a light-haired man, who gave every appearance of being sickly. To set the matter beyond a doubt, two women who were working in the Slater and Morrill factory identified Steve the Pole as the man they saw standing for half an hour by a car outside their window on that day. Two witnesses who testified at the trial identified Joe Morelli as one of the men who did the shooting and another identified Mancini.
The Morellis were American-born, which will explain the testimony at the trial that one of the bandits spoke clear and unmistakable English, a thing impossible to Sacco and Vanzetti.
Plainly the personnel of the Morelli gang fits the Braintree crime. What of other details? The mortal bullet came out of a 32 Colt; Joe Morelli had a 32 Colt at this time.
Mancini's pistol was of a type and calibre to account for the other five bullets found in the victims. The "murder car" at the trial was a Buick. Madeiros said a Buick was used; and Mike Morelli, according to the New Bedford police, at this time was driving a Buick, which disappeared immediately after April 15, In fact, the police of New Bedford, where the Morelli gang had been operating, suspected them of the Braintree crime, but dropped the matter after the arrest of Sacco and Vanzetti.
Joe Morelli, as we know, was sent to Atlanta for his share in the robbery of the Slater and Morrill shoes. While confined he made an arrangement with a fellow prisoner whereby the latter was to furnish him with an alibi, in case of need, for April 15, , placing Morelli in New York. Even so compressed a precis of the evidence of many witnesses will have made it clear that the defense has built up a powerful case, without the resources at the command of the State in criminal investigations.
The witnesses other than Madeiros of themselves afford strong probability of the guilt of the Morellis. What of the intrinsic credibility of Madeiros's confession, which, if believed, settles the matter? A criminal's confession, as we have noted, must be scrutinized with the utmost skepticism. A man who assumes guilt for one crime while about to undergo the penalty of death for another does not carry the least conviction. The circumstances of Madeiros's confession, however, free it from suspicion and furnish assurances of its trustworthiness.
Far from having nothing to lose by making the confession, Madeiros stood to jeopardize his life. For while, to be sure, at the time of his confession he was under sentence for another murder, an appeal from this conviction was pending, which was in fact successful in getting him a new trial.
Could anything be more prejudicial to an effort to reverse conviction for one crime than to admit guilt for another? So clearly prejudicial, in fact, was his confession that by arrangement with the District Attorney it was kept secret until after the outcome of his appeal and the new trial which followed it. Moreover, the note of confession sent by Madeiros to Sacco on November 18 was not, as we have seen, his first communication to Sacco.
Nor was it his first explicit confession. The murder for which he had been convicted, together with a man named Weeks,—the Wrentham bank crime,—was a holdup like the Braintree job. Weeks, under life sentence in another jail, when questioned revealed that in planning the Wrentham job Madeiros drew on his experience at South Braintree.
During their partnership Madeiros had frequently referred to the Braintree job, saying it was arranged by the Morelli gang whom Weeks knew , and at one time identifying a speak-easy in which they found themselves as the one the gang visited before the Braintree holdup.
In planning the Wrentham job Madeiros further told Weeks that he "had had enough of the Buick in the South Braintree job. These earlier disclosures by Madeiros completely refute the theory that he was led to make his latest confession in by the hope of getting money. It is suggested that in November he had seen the financial statement of the Sacco-Vanzetti Defense Committee.
But, in the first place there is no proof that Madeiros saw this statement before he made the confession. Secondly, he could not have had knowledge of this statement before he talked to Weeks and the others and when he attempted the prior communications to Sacco, because it was not then in existence. It is incredible that a man fighting for his life on a charge for one murder would, in the hope of getting money, falsely accuse himself of another murder. Madeiros knew the danger of a confession, for his conviction in the Wrentham case largely rested upon confessions made by him.
Why should he be believed and suffer death when he confesses one crime and not be believed when he confesses another of the same character? Is not his own statement in accordance with the motives even of murderer? Let us compare the two hypotheses. The Morelli theory accounts for all members of the Braintree murder gang; the Sacco-Vanzetti theory for only two, for it is conceded that, if Madeiros was there, Sacco and Vanzetti were not.
The Morelli theory accounts for all the bullets found in the dead men; the Sacco-Vanzetti theory for only one out of six. The Morelli explanation settles the motive, for the Morelli gang were criminals desperately in need of money for legal expenses pending their trial for felonies, whereas the Sacco-Vanzetti theory is unsupported by any motive. The character of the Morelli gang fits the opinion of police investigators and the inherent facts of the situation, which tended to prove that the crime was the work of professionals, whereas the past character and record of Sacco and Vanzetti have always made it inherently incredible that they should spontaneously become perpetrators of a bold murder, executed with the utmost expertness.
A good mechanic, regularly employed at his trade, but away from work on a particular day which is clearly accounted for, and a dreamy fish peddler, openly engaged in political propaganda, neither do nor can suddenly commit an isolated job of highly professional banditry. Can the situation be put more conservatively than this? Every reasonable probability points away from Sacco and Vanzetti; every reasonable probability points toward the Morelli gang. At the outset the scope of Judge Thayer's duty toward the motion for a new trial based upon this new evidence must be kept in mind.
It was not for him to determine the guilt of the Morellis or the innocence of Sacco and Vanzetti; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. Judge Thayer's duty was the very narrow one of ascertaining whether here was new material fit for a new jury's judgment. May honest minds, capable of dealing with evidence, reach a different conclusion, because of the new evidence, from that of the first jury?
Do the new facts raise debatable issues? Could another jury, conscious of its oath and conscientiously obedient to it, be sufficiently impressed with the new evidence to reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adduceable by the defense at the time of the original trial?
To all these questions Judge Thayer says, "No. We wish for nothing more than that every reader who has proceeded thus far should study the full text of this latest Thayer opinion.
Space precludes its detailed treatment here. To quote it, to analyze it, adequately to comment upon it would require a book. Having now put the materials for detailed judgment at the disposal of readers, we are compelled to confine ourselves to a few brief observations.
By what is left out and by what is put in, the uninformed reader of Judge Thayer's opinion would be wholly misled as to the real facts of the case. Speaking from a considerable experience as a prosecuting officer, whose special task for a time it was to sustain on appeal convictions for the Government, and whose scientific duties since have led to the examination of a great number of records and the opinions based thereon, I assert with deep regret, but without the slightest fear of disproof, that certainly in modern times Judge Thayer's opinion stands unmatched for discrepancies between what the record discloses and what the opinion conveys.
His 25,word document cannot accurately be described otherwise than as a farrago of misquotations, misrepresentations, suppressions, and mutilations.
The disinterested inquirer could not possibly derive from it a true knowledge of the new evidence that was submitted to him as the basis for a new trial. The opinion is literally honeycombed with demonstrable errors, and a spirit alien to judicial utterance permeates the whole. A study of the opinion in the light of the record led the conservative Boston Herald, which long held the view that the sentence against these men should be carried out, to a frank reversal of its position.
Morton Prince writes that any expert psychologist reading the Thayer opinion "could not fail to find evidences that portray strong personal feeling, poorly concealed, that should have no place in a judicial document. Thompson is one of the leaders of the Boston bar.
Yet Judge Thayer thus characterized Mr. Thompson's activities in behalf of these two Italians:—. And this from a judge who gives meretricious authority to his self-justification by speaking of the verdict which convicted these men as "approved by the Supreme Judicial Court of this Commonwealth. The Supreme Court passed on technical claims of error, and, "finding no error, the verdicts are to stand.
No wonder that Judge Thayer's opinion has confirmed old doubts as to the guilt of these two Italians and aroused new anxieties concerning the resources of our law to avoid grave miscarriage of justice. The courageous stand taken by the Boston Herald has enlisted the support of some of the most distinguished citizens of Massachusetts. The Independent has thus epitomized this demand:—. It is important to note that the appeal is being made on the basis of new evidence never passed on before the Supreme Court.
No narrow, merely technical, question is thus presented. The Supreme Court of Massachusetts will be called upon to search the whole record in order to determine whether Judge Thayer duly observed the traditional standards of fairness and reason which govern the conduct of an Anglo-American judge, particularly in a capital case. This court has given us the requirements by which Judge Thayer's decision is to be measured and the tests which it will use in determining whether a new trial shall be granted:—.
Nor must a new trial be withheld where in justice it is called for because thereby encouragement will be given to improper demands for a new trial. For, as the Chief Justice of Massachusetts has announced, courts cannot close "their eyes to injustice on account of facility of abuse.
With these legal canons as a guide, the outcome ought not to be in doubt. Skip to content Site Navigation The Atlantic. Popular Latest. The Atlantic Crossword. Sign In Subscribe. The man that appeared between the back of the front seat and the back seat was a man slightly taller than the witness. He weighed possibly from to pounds. He was muscular, an active-looking man. His left hand was a goodsized hand, a hand that denoted strength. So that the hand you said you saw where?
The left hand, that was placed on the back of the front seat. He had a gray, what I thought was a shirt—had a grayish, like navy color, and the face was what we would call clear-cut, clean-cut face. Through here [indicating] was a little narrow, just a little narrow. The forehead was high. The hair was brushed back and it was between, I should think, two inches and two and one-half inches in length and had dark eyebrows, but the complexion was a white, peculiar white that looked greenish.
Is that the same man you saw at Brockton? It is. Are you sure? You don't feel certain enough in your position to say he is the man? I don't think my opportunity afforded me the right to say he is the man. From the observation I had of him in the Quincy court and the comparison of the man I saw in the machine, on reflection I was sure he was the same man.
Your answer in the lower court was you didn't have opportunity to observe him. What did you mean when you said you didn't have opportunity sufficient, kindly tell us, you didn't have sufficient opportunity to observe him? Well, he was passing on the street. He was passing on the street and you didn't have sufficient opportunity to observe him to enable you to identify him?
That is what I meant. That is the only opportunity you had? Yes, sir.
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