Part 2

Now, Sacco and Vanzetti were notorious Reds. They were associates of leading radicals. They had for some time been on the list of suspects of the Department of Justice, and were especially obnoxious because they had evaded the draft. Not only were they living in an overwhelming atmosphere of apprehension, but also the terrorizing methods of the Government had a very real meaning to them. For, as mentioned above, two of their friends had been deported, and one, Salsedo had, they had learned the day before, after having been detained incommunicado by the Department of Justice for a long period of time, been thrown or jumped from a window of a building on Park Row, New York. Sacco and Vanzetti had been urged by their friends to dispose of their radical literature and thus eliminate the most damaging evidence in the deportation proceedings they feared. It was to carry out this advice that Vanzetti and his friends were trying to get Boda’s car from Johnson’s garage on May 5th. And we cannot avoid concluding that Sacco and Vanzetti’s actions after their arrest were dictated, not by fear of arrest for murder, but by fear of deportation, or worse, for radicalism.

We have seen the Commonwealth abandon its first line of attack. It now abandons its second, and finally we shall see how, depending entirely upon its third line, it succeeds, through the cooperation of Judge, District Attorney, and firearms expert, in bamboozling the jury, already eager to convict these Reds, into believing that the “mortal bullet” actually passed through Sacco’s pistol.

[Sidenote: III.

Identification through the “mortal bullet.”]

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?

NO! GOVERNOR FULLER MUST SET THEM FREE!

* * * * *

Write or telegraph Governor Alvin T. Fuller, State House, Boston, Mass., petitioning for their release.

* * * * *

Among those American men and women who have petitioned Governor Fuller for a review of the case by an impartial committee are:

Bishop Lawrence, Dr. Harry Emerson Fosdick, John Hays Hammond, Roscoe Pound, Dean of the Harvard Law School; Robert M. Hutchins, Dean of the Yale Law School; Huger W. Jervey, Dean of the Columbia Law School; Christian Gauss, Dean of Princeton College; Sherwood Eddy, Dr. Richard C. Cabot, Bliss Perry, Charles C. Burlingham, Edgar Lee Masters, Morton Prince, Margaret Deland, Henry S. Canby, John Haynes Holmes, William Lyon Phelps, Charles P. Curtiss, Jr., Dr. Stephen S. Wise, Frank W. Taussig, Prof. E. M. Borchard, Roland W. Boyden, Francis B. Sayre, Dr. Frank G. Goodnow, John Graham Brooks, Bishop Chauncey C. Brewster, Fabian Franklin, President Mary E. Woolley of Mount Holyoke College, Alexander M. Bing, George Gordon Battle, James Myers, Industrial Secretary, Federated Churches of Christ.

These men and women are only a few dozen of many thousands of petitioners. The list goes on to include thirteen members of the Columbia Law School faculty, nine members of the Yale Law School faculty, six members of the Kansas Law School faculty, six members of the Missouri Law School faculty, five members of the Illinois Law School faculty, the entire faculty of the Minnesota Law school, twenty-five members of the faculty of Clark University, 123 members of the faculty of Smith College, members of the faculty and 650 students of the University of California.

Of those in Europe who have petitioned either President Coolidge or Governor Fuller are Romain Roland, Albert Einstein, Henri Barbusse, Anatole France.

Footnotes:

[1] Italics mine.

[2] These are Judge Thayer’s words. He must have meant “guiltily conscious.”

Transcriber’s Notes

pg 16 Changed: men and women who have petioned to: men and women who have petitioned