SCENE III

_Scene: The court room._

_There is no jury present; the Judge is on the bench, the Attendants in place, and Macready and Capraro face the judge. Aside from the lawyers Rosalie is the sole spectator._

GLUCKSTEIN. If the court please I should like to move for a new trial before sentence is pronounced. My motion is based on the depositions of four witnesses. Your Honor has these depositions before you.

JUDGE VAIL. I have read them.

GLUCKSTEIN. I shall make only a brief summary of the evidence they disclose. Mrs. Lubin, a chief witness for the prosecution, swears that her identification of Macready was obtained under duress. She retracts that identification. Her son, a witness for the defense, corroborates that retraction by evidence tending to show that his mother was threatened with the exposure of certain facts in her history of which he himself had been ignorant. Jerome Bartlet, the only witness to identify Capraro as at the scene of the crime, retracts that identification—

SALTER. You will find that he has retracted that retraction, Mr. Gluckstein—

GLUCKSTEIN. I know nothing of that. No doubt the attorney for the prosecution has seen him again—

SALTER. I have.

GLUCKSTEIN. The other affidavit is signed by the ballistic expert, Mr. Howard, who appeared in the trial. He states that his answers to the State’s questions were pre-arranged to mislead the jury—

SALTER. Pre-arranged?

GLUCKSTEIN. Pre-arranged between himself and the district attorney—that he did not intend to say that the mortal bullet was fired from the pistol in the possession of Macready, but only that it might have been fired from that weapon.

JUDGE VAIL. Does this affidavit indicate that Mr. Howard committed perjury during the trial?

GLUCKSTEIN. No, your Honor. It merely amplifies the statements made during the trial, which were so worded as to create a false impression.

JUDGE VAIL. If the witness amplifies but does not alter his statements his affidavit cannot be accepted as basis for a new trial. Such a motion strikes at the jury’s competence to decide.

GLUCKSTEIN. But the jury was deliberately misled.

JUDGE VAIL. Can it be proved that it was misled? Even if there was intention to mislead?

GLUCKSTEIN. Your Honor, I believe this addition to the expert testimony of sufficient importance to rank as new evidence. And it appears incontrovertible that the identifications are rendered null by the first three affidavits.

JUDGE VAIL. I have considered the additions to the ballistic evidence and I find them in entire accordance with the evidence already in the record. As for the identifications, it does not astonish me that the identification witnesses have withdrawn their testimony. It was obvious to me, and was no doubt obvious to the jury, that the identifications were completely discredited by the defense. The verdict of guilty was brought in on other grounds. In my opinion those grounds must have been the defendant’s consciousness of guilt, as shown by their actions after the crime, and, furthermore, the general principles of the defendants, tallying, as they did, with the circumstantial evidence. These affidavits do not attack those grounds for the verdict, and the motion is therefore denied.

GLUCKSTEIN. Does your Honor mean that these men were convicted on circumstantial evidence and consciousness of guilt—?

JUDGE VAIL. There was no other evidence which was not disposed of most ably during the trial.

GLUCKSTEIN. But in that case, your Honor— [_He pauses._]

JUDGE VAIL. Yes?

GLUCKSTEIN. In that case there was no real evidence against these men! And you make that fact the basis for denying a new trial!

JUDGE VAIL. There was sufficient evidence to convict.—If you have no further motion we will proceed to the sentence.

THE CLERK. James Macready, have you anything to say why sentence of death should not be passed upon you?

MAC. Well—no, I guess not. The only reason I can think of is that I’m not guilty of the murder, and that doesn’t seem to have anything to do with this case. I’m not guilty as charged but I am guilty—I’m guilty of being a radical—and that’s what I was convicted for and that’s what you’re sentencing me for. I’m guilty of thinking like a free man and talking like a free man and acting like a free man—and the jury didn’t like it and you don’t like it—and so the logical thing is to put me where I can’t do it any more. I’m guilty of spreading unrest among the slaves and raising hell with slave morality. I’m guilty of exercising my rights under the constitution and I guess the constitution’s gone out in this country. It isn’t being done. So you go right ahead and sentence me, and don’t let your conscience bother you at all, because you’re doing exactly what you were put there for.

JUDGE VAIL. You have quite finished?

MAC. Oh, quite.

THE CLERK. Dante Capraro, have you anything to say why sentence of death should not be passed upon you?

CAPRARO. What I say is that I am innocent, not only of this crime but of all crimes. I have worked, I have worked hard, and those who know these two hands will tell you they have never needed to kill to earn bread. I have earned by labor what I wanted to live, and I have refused to be a member of any class but the working class, even when it could have been, because to be in business is to take profits, to be a parasite, to take what you have not deserved, and that I could not do. All my life I have worked against crime, against the murder of war, against oppression of the poor, against the great crime which is government—. Do not do this thing, Judge Vail. It has been a long time and I have suffered too much to be angry. I know that you have been an unjust judge to us, that you have fear for us, and therefore hate for us—that you have wanted us dead and have taken advantage to kill us. You have ruled to help us in the little things so that you could safely rule against us at the last. But you are an old man, and wearier than we, even if we have been in prison; and you too will die sometime, even if you kill us first. So I say to you, do not do this thing, not because the world looks at us and knows that you are wrong, but because if you do it you will prove that I was right all the time. If you kill us in this one-time free city, in this one-time free country, kill us for no wrong we have done but only for passion of prejudice and greed, then there is no answer to me, no answer to the anarchist who says the power of the State is power for corruption, and in my silence I will silence you.

JUDGE VAIL. Under the law the jury says whether a defendant is guilty or innocent. The court has nothing to do with that question. It is considered and ordered by the court that you, James Macready, and you, Dante Capraro,—

CAPRARO. I am innocent!

MAC. You know he’s innocent! You couldn’t listen to him without knowing that!

CAPRARO. One more moment, your Honor,—I want to speak to Mr. Gluckstein.

GLUCKSTEIN. It’s too late, Capraro.

JUDGE VAIL. I think I should pronounce the sentence. That you, James Macready, and you, Dante Capraro, suffer the punishment of death by the passage of a current of electricity through your body within the week beginning on Monday, the tenth day of August, in the year of our Lord one thousand nine hundred and twenty-seven. This is the sentence of the law.

CURTAIN