Chapter NINE: The Trial: I (1)

Judge Thayer’s voice rasped as he looked down from the bench at the plump venireman from Brookline, the fourth in succession who had asked to be excused because he did not believe in capital punishment. “Do you set your opinion above the law?” the judge asked caustically. “Have you done anything to get the law changed? Have you seen your local representative about it?” The man did not know who his representative was.

From the look of the odd-lot prospective jurors who were passing through the courtroom on this first morning of the trial it seemed as if most of the able men of Norfolk County had managed to sneak their names off the jury list. The apologetic line filed by the bench—fogies long past the statutory age, invalids, men who had been deaf for years, whose wives were dying and who had certificates to prove it, who were just about to sail for Europe, and finally the objectionable objectors.

Of course there were the occasional better prospects, but every time a man came along who looked educated or respectable, as if he might be somebody, Moore seemed bound to challenge him. That was the way it struck Jerry McAnarney. If Jerry had been going on trial for murder he knew he would rather take his chances with a businessman than with some fellow who dug sewers. But not Fred Moore; he wanted the sewer-digger every time. There was a young fellow Jerry had spotted in the line, a good clean-cut college type; as soon as Moore found out he worked for Page & Company, that finished him. Then there was someone McAnarney recognized from the New England Trust Company, the sort of man any defense lawyer ought to get down on his knees to have on a jury. He told Moore so, but Moore would not have him.

For thirty years Jerry McAnarney had been going in and out of the Dedham courthouse, but he had never seen anything like this morning. State troopers in khaki, some mounted, were deployed all around the courthouse. Other troopers with motorcycles and sidecars swept up and down the High Street, the pop of their exhausts sounding like machine-gun fire. And inside there were police and deputies at the doors, parading up and down the corridors, on the stairs.

When Jerry and Tom arrived at the courthouse just before ten they found the front door locked. The side door was also locked. When they knocked, a guard looked through the glass and waved them off. Finally a court officer recognized them and let them in. Inside, a trooper patted them over for weapons. Then a flashy policeman stopped them at the foot of the stairs, and on the landing they were stopped again. The way the place was guarded, Jerry told his brother, it looked as if Sheriff Capen was getting ready to try the Kaiser.

Entering the courtroom, the brothers glimpsed the backs of the defendants in the waist-high prisoners’ cage. Rosina Sacco, with seven-month-old Ines in her arms, sat close behind her husband, the only ordinary spectator allowed in the courtroom that day. The others present were either reporters or deputies. Fred Katzmann, tanned and glowing from a long week end at golf, spotted the McAnarneys in the doorway and waved to them with casual friendliness. Moore was behind the bar talking with Judge Thayer. The judge’s face seemed frozen. Just before the McAnarneys went in, a deputy sheriff said under his breath: “Tom, I like to see you boys win your cases, but I hope to God you lose this case. These men are no good.”

At the opening Moore filed a motion for severance and a separate trial for Sacco on the grounds that his association with Vanzetti would be prejudiced because of the latter’s conviction for the Bridgewater crime. Similarly, the McAnarneys requested a separate trial for Vanzetti, since his defense was to be “separate and distinct.” Both motions were denied.

During the whole morning not a single juror was picked. By lunchtime it was obvious that the Yankee judge was taking a poor view of the Western lawyer. The McAnarneys could tell that merely by the way Thayer glared at Moore, the lines at each side of his mouth etching into his cheeks before he replied to one of Moore’s objections. Even Rosina Sacco, with her imperfect knowledge of English, sensed it. Moore kept on needling Thayer, objecting to each triviality, challenging each likely juror. The class-conscious Westerner demanded that prospective jurors be asked if they were opposed to organized labor, if they belonged to a union, or if they hired union help. These questions Judge Thayer disallowed. At the noon recess he remarked angrily and audibly as he left the courthouse that no long-haired radical from California was going to tell him how to run his court.

It was midafternoon before the first juror, Wallace Hersey, a real estate dealer from Weymouth, was picked. By the end of the afternoon only two more had been selected: John Ganley, a grocer, and a machinist, Frank Waugh. Each defendant was allowed forty-four challenges, and that day the defense used up twenty-one. Judge Thayer, exasperated by the delays, held an evening session until ten, when he had to leave to catch the last train back to Boston. It took ten hours and 175 veniremen to get the initial three jurymen.

There was, as there usually is in even the most ponderously sustained trial, an occasional lighter moment. At one point a plump sugar dealer from Braintree had the idea of getting himself excused by pretending he was deaf. The courtroom echoed with laughter as Judge Thayer pounced on him. Sacco laughed so hard that tears rolled down his cheeks. Then the courtroom settled down again, the hivelike humming broken only by the squeak of Sheriff Capen’s boots as he walked gingerly across the floor to the upright mace. Behind the judge’s dais the triple-cylindered pendulum of the marble-faced clock ticked away the formal minutes.

From time to time the sallow-faced defendants in the cage whispered to one another. Sacco had aged in the year of his arrest. His hair was thinning. That morning was the first time he and Vanzetti had seen each other in eight months. When they met before court opened, they had kissed each other gravely on the cheek.

The McAnarney brothers, seated inside the bar enclosure, saw the unhappy pattern of the morning repeated all through the afternoon and evening. It was clear by now to Jerry McAnarney that Moore, for all his reputation, was doing nobody any good, least of all the men in the cage. Jerry was as convinced as ever that the two men were innocent. He had even brought his wife to the jail after the Decoration Day parade to let her talk with Sacco and get her opinion, and she had felt the same way he did. But now, even before the jury had been picked, he had the feeling of the sands slipping from under his feet, of being beyond his depth. The Italians were never going to get a square deal with Moore running things. Jerry could hear Thayer’s edged voice: “Mr. Moore, that may be the way they practice law out West, but not in the Commonwealth of Massachusetts!”

At the close of the evening session the brothers drove to John McAnarney’s house in Quincy and told him of what was blowing up between Moore and Judge Thayer. They wanted John to get rid of Moore and take charge. John thought it over, and then, even though it was midnight, telephoned William G. Thompson. Thompson was an old Yankee, a lawyer’s lawyer, a lecturer at the Harvard Law School, and whatever he said carried weight in Massachusetts.

In his Chestnut Hill home, Thompson listened to John McAnarney explain the difficulties his brothers were facing at the beginning of the Sacco-Vanzetti trial. John begged him to come to Dedham in the morning, insisting that the lives of two men were at stake, and that in his opinion the men were innocent. Thompson agreed to look in.

As Thompson got off the train in Dedham and walked up from the station past the spent lilac hedges of the High Street, the brim of his Panama flopping with each step, the Phi Beta Kappa key and the Institute of 1770 charm jingling on his heavy watchchain, he looked the very model of a proper Boston lawyer. Even the loose way he held his pipe in his mouth reinforced his assurance. He found John McAnarney, much upset, waiting for him in front of the closed courthouse gates.

They went in through a side door. In the lower corridor the two lawyers found Moore arguing with Rosina Sacco in the center of a group of gesticulating Italians. Thompson could hear Rosina’s voice shrill to the edge of breaking, demanding of Moore by what right he represented her husband. She didn’t want him, she shouted, she didn’t believe in him. She wanted a good lawyer.

Rosina’s outburst was the culmination of months of bitterness. She had neither liked nor approved of Moore from the beginning. Her thrifty peasant nature was affronted by his manner of life, his Beacon Hill house and car with chauffeur—all paid for by poor Italians. Now she was telling him in effect: Get out! And he was refusing.

Thompson and John and Jerry McAnarney talked the matter over in one of the anterooms. “I want either you or John to replace Moore,” Jerry told Thompson. Thompson said it was too late. The next day at latest the jury would be empaneled. “You have got to make the best of it,” he told the brothers.

When Moore joined them in the anteroom, Jerry McAnarney offered to turn back his first payment of two thousand dollars and go on with the case for nothing if Moore would only retire. Moore refused to consider it. He had hired the McAnarneys as subordinates, not to give him orders. With their narrow conservatism, he considered them incapable of the larger view the case demanded.

During the rest of the morning Thompson sat with the McAnarneys watching the resumed parade of prospective jurors. A new lot of 160 veniremen had been brought in, but the selection was going no faster than it had the day before. Moore was again needling Judge Thayer. He could not seem to help it, even though he must have sensed the tensing of the atmosphere. It was a morning Thompson was to remember in all its immediacy years later. “Katzmann would say something,” he recalled to the Lowell Committee in 1927, “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 in his chair 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 ‘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 into the record; he is going to keep his records straight and you have no chance.’”

* * * * *

When John Dever, a Filene’s clothing salesman, received a post card ordering him to report at the Norfolk county courthouse for jury duty, he had expected he might serve on some civil case. Not until the Decoration Day week end did he learn that his summons might be for the South Braintree murder case. Of that case he had only a blurred recollection, something he had read in the papers the year before. It gave him a queer feeling to think he might find himself on a murder jury. His supervisor at Filene’s told him he was lucky—it would be like having time off, with Filene’s paying his salary.

Although Dever was twenty-seven, he could have passed for twenty-one. He had been a poor Irish-Catholic boy brought up on the wrong side of the tracks in the quarry city of Barre, Vermont. As he grew up he had played with many of the children of the Italian immigrant stoneworkers. Some of these workers had been anarchists, or at least radicals. Dever, though a pious adolescent, had had no particular feeling against the local anarchists in their clapboard hall. He was used to them.

At fifteen he had left Barre for Boston, where he first worked as a bellboy in the Parker House. He had volunteered for the Army in 1917 but had not been sent overseas. In 1919 he had gone to work at Filene’s. Unmarried, he lived in a brick rooming house on upper Beacon Street, Brookline.

Inconspicuous as this slight, fair-haired young man may have seemed when he was shepherded into the courtroom with the other veniremen, he was in one respect unique. In the course of the day he would be one of three accepted for the jury, and of the final twelve he alone would write about the trial. His memoirs, although fragmentary and redundant, remain the sole record of the case as seen from the jury box. As a result of the trial Dever became so interested in the judicial process that he enrolled in an evening course at the Suffolk Law School and eventually passed his bar examinations. During the last ten years of his life he prepared his _Memoirs of the Sacco-Vanzetti Case_ and at his death in 1956 the manuscript had reached several thousand pages. Interspersed among the tedious legalities are telling casual incidents, still bright over the years: how the jurors were picked, where they slept, where and what they ate, what they did in their spare time, and how they felt about the case.

This was the first time Dever had ever been to Dedham. As he walked from the railroad station through the square he kept thinking what a pleasant town it was. Above the masking elms he could see a white dome with round windows in it like portholes. That, he supposed, was the courthouse. He wandered up and down several of the side streets before heading for the domed building.

Never before had he been inside a court, and the neoclassic building with its marble-tiled floors and marble stairs and marble-paneled walls awed him. With the other veniremen he was taken to the courthouse, where Judge Thayer first explained the procedure and then exhorted them to perform their disagreeable duties as patriotically as the American soldier boy in France.

“What, gentlemen, does the law seek to accomplish?” he concluded. “It seeks to select twelve jurors who will stand between these parties, the Commonwealth on the one hand and these defendants on the other, with an unyielding impartiality and absolute fairness and unflinching courage in order that truth and justice shall prevail, for, gentlemen, verdicts must rest upon truth and justice in order that the life, the liberties, and the properties of the people of the Commonwealth, including the defendants, shall be secure and protected.”

John Dever was impressed not only by the rhetoric but by the whole formalized proceedings. To him Judge Thayer seemed “a sincere, honest, absolutely fair and impartial man.” Dever was not called during the morning. At one o’clock he ate a sandwich and a piece of pie at Gilbert’s Lunch, a one-arm in the square. When he returned to the courthouse it was still too early for the afternoon session. He sat on the back grass plot with some of the other men. Dever said he hoped he would not be picked, because he might lose his two weeks’ vacation. “Don’t worry,” a man wearing a Red Men’s badge told him. “You’ll be challenged. You’re too young. Besides they don’t want any of you fellows on this jury.” He pointed to the ex-serviceman’s pin in Dever’s buttonhole. “They’ll show you right out the front door,” he concluded.

Afterward Dever could not remember much about the afternoon. One by one the names were called, one by one the veniremen disappeared. No jurymen had been picked during the morning and only two after lunch: Frank Marden, a mason from Weymouth; and a slightly deaf, slightly senile retired farmer with a handlebar mustache, Walter Ripley, who raised bulldogs and called himself a stockkeeper. For all his challenging, Moore did not spot the fact that Ripley had once been chief of the police and fire departments in Quincy. It was not until eight o’clock that Dever’s name was finally called. He was led into the courtroom. Thayer asked him a few questions and then announced, “The juror stands indifferent.”

_I looked in front of me [Dever recalled] and saw a whole battery of attorneys, eight or nine in all, I should say. Before I had a chance to orient myself a man whom I was to know as District Attorney Katzmann stood on his feet and said “the Commonwealth accepts the juror.” Well, I thought to myself, the defense will now challenge me. I looked at the defense table and saw four attorneys looking at a very large book. They would look in the book, then look hard at me; and then whisper to each other. That went on for what seemed to be six or seven minutes. I began to feel I was on trial. I turned in the witness stand getting ready to leave, Judge Thayer glanced at me and said, “Stay right where you are, young man, we are waiting for these gentlemen,” and looked at the defense table. After about two more looks at me, Mr. Jeremiah McAnarney stood up and said, “If your Honor please, both defendants accept the juror.”_

Dever was the sixth juror accepted. A few minutes later the court adjourned. The six jurors were taken to the ground floor room of the Court of Probate and Insolvency, where twelve iron cots from the county jail had been set up. There they were locked in for the night.

When Dever woke the next morning, he thought at first he was in a lecture hall. Then he remembered. He got up, washed, and fixed his hair with the brush and comb the sheriff had given each juror. He was not given a razor. At eight o’clock a deputy appeared and took them to breakfast.

Almost at the beginning of the morning session the seventh juror, Lewis McHardy, an elderly quiet-mannered mill worker from Milton, was selected. Seventeen more veniremen filed past the bench. Then the sheriff informed the judge that his list of five hundred was exhausted.

According to the General Laws of Massachusetts, if such a situation occurs in a murder case after seven jurors have been chosen, “the Court shall cause jurors to be returned from the bystanders or from the county at large to complete the panel.” Judge Thayer cited the statute and ordered Sheriff Capen to have two hundred more men present by ten the next morning. The sheriff was doubtful. “They will jump,” he remarked, “when they see me coming.” He was right. The news got round, and almost before the afternoon session closed, the streets of Dedham and the adjoining towns were deserted.

Capen spread his deputies that evening through Brookline, Needham, Dedham, Norwood, Millis, Medway, Stoughton, and Quincy. They struck at random, ringing doorbells when they saw lights in windows, sometimes summonsing luckless veniremen from their beds. They consulted assessors’ lists, voting lists, any list they could get their hands on. In Needham nine unsuspecting men were picked up coming out of a Masonic meeting. Deputy Allen Loring broke up a band concert at Hollis Field, Braintree. Norman Gardenier of Quincy was whisked away from his wedding supper. In spite of all this, Capen managed to seine in only 175 indignant additions. He hoped they would suffice. The defense still had twenty-nine challenges left.

Judge Thayer decided to remain in session until the jury was finally chosen, no matter what the hour. Not until after midnight was the selection finished. The five additional jurors were Harry King of Millis, a shoemaker; George Gerard, a Stoughton photographer; Alfred Atwood, a Norwood real estate dealer; Frank McNamara, a Stoughton farmer; and Seward Parker, a Quincy machinist. By the time Parker’s name was called the defense had used up all its challenges. Katzmann affably offered to challenge Parker if Moore had any objection to him, but Moore declined.

No sooner had the left-over veniremen been excused than Moore objected to the five new jurors of the completed panel on the grounds that none of them were bystanders, according to the meaning of the statute. In the clammy courtroom the attendants and deputies yawned and the district attorney fiddled with a blotter while Moore developed his lengthy quibble. Judge Thayer overruled Moore on every point. At 1:20 A.M. he ordered the jurymen brought in and sworn. “The jury is in bed,” a deputy sheriff told him.

Thayer’s voice rose two notes. “Who allowed them to go to bed? Bring them in!”

A few minutes later, bleary-eyed and bristly, the twelve trudged in to take their seats in the box. Several of them were collarless, their shirts open. Two wore felt slippers. Thayer gave them the conventional warning. He also advised them to get plenty of exercise. In conclusion he told them that they must “see to it that a trial is held according to American law and according to American justice and nothing must be done by anybody to mar or impair a fair, honest trial.” The jurors then took their oath and the court adjourned until Monday morning at ten o’clock.

* * * * *

The jurors slept late on Saturday, June 4, took a walk by the Charles River in the afternoon accompanied by a squad of deputies, and in the evening read the Boston papers. All references to the trial had been snipped out, and they made the unhappy discovery that most of the sports news had been on the back of what was cut.

The twelve soon formed their habit patterns. Dever found himself going to bed at nine and waking at five. He spent a lot of time reading old _National Geographics_. The older jurors usually played cards; Dever preferred listening to the Victrola. There were a lot of records that he liked: Van and Schenk, and the All-Star Trio; songs like “Dardenella,” “Whispering,” “I’m Forever Blowing Bubbles.” After he had cranked the Victrola a few times, though, the card-players would begin to look over at him as if to say “Don’t you think you’ve played enough for tonight?” Then he would go back to the _Geographics_.

On their first Sunday they just sat around their made-over courtroom. Since they all had to stay together and could go only to one church, they decided not to go to any. They had breakfast at the Dedham Inn on Court Street beyond the Episcopal church and dinner at the Haven House just across the way; in the afternoon they went for a bus ride.

Monday was hot, a blue clear prelude to summer. The jury, after being polled in the courtroom, spent the rest of the day viewing the various locations connected with the South Braintree crime. A cavalcade of eight cars drove from place to place, carrying not only the jury but also the judge, the district attorney, and two carloads of newspaper reporters.

The jurors arrived at their first stop, South Braintree, just as the noon whistles were blowing, and at once the cars were surrounded by curious factory workers. Katzmann had to order a retreat to Braintree for lunch. When the cavalcade returned, the factory windows were filled with faces but Pearl Street itself was free. From the railroad crossing the procession followed the route of the bandit car along the side roads through Randolph and Stoughton and Brockton to West Bridgewater. The dust churned, covering the men in the cars, coating their faces like masks. The jurors were shown Simon Johnson’s house, the Elm Square Garage, the house where Coacci and Boda had lived, and then the Manley Woods. A motorcycle was parked beside the bridle path, and as the assorted jurors, lawyers, police, and newspapermen made their way to where the Buick had been found, they surprised the cyclist and his girl making love under a bush. Their last stop was the gate-tender’s shanty at the Matfield crossing. At the end of the day they had covered ninety-one miles, and Dever thought each of them had absorbed about a pint of dust. There was no place for the jurors to get a bath, either—he noted ruefully—after they got back to the courthouse.

* * * * *

Tuesday morning, June 7, when Assistant District Attorney Williams made the opening statement for the Commonwealth, set the pattern for the month to follow. Sacco and Vanzetti, handcuffed to each other and to a deputy, with three blue-uniformed policemen in front, three to the rear, and two on either side, were marched from the jail down Village Street past the cemetery, then up Court Street to the courthouse. A trooper, with a bandolier of a hundred rounds slung across his shoulder and a rifle in his saddle boot, rode sternly ahead of them, while a second mounted trooper followed as a rear guard. At the midday recess the prisoners were marched back to the jail. This martial procession took place four times a day.

Once in the courtroom the defendants were placed in the cage and their handcuffs removed. Then followed a pause of some minutes until the diminutive judge in his built-up heels strode through the door, his black silk gown billowing behind him. At his appearance Clerk Worthington rapped with his gavel and gave the peremptory command “_Court!_” Everyone stood up. For the first time the public was allowed in the courtroom. Among the spectators were Mrs. Glendower Evans, representing the New League for Democratic Control; Cerise Carman Jack, the wife of a Harvard professor, representing the New England Civil Liberties Committee; and Lois Rantoul of the Federated Churches of Greater Boston, a relative of Harvard’s President Lowell. Felicani was present, as were most of the members of the Defense Committee and the Italian consul, the aloof pince-nezed Marquis Ferrante di Ruffano, on instructions from his government.

In informal preliminary discussions the prosecution and the defense had come to an agreement not to bring up the subject of radicalism during the trial. Katzmann had also offered to agree “that no particular bullet came from any particular gun” and refrain with the defense from trying to prove one way or the other whether the murder bullets had been fired from Sacco’s automatic or Vanzetti’s revolver. Moore had refused, exclaiming melodramatically that he was being asked to turn his sword into a shield, and insisting on being free to have the bullets and guns examined by experts. Officially Moore, assisted by William Callahan—the lawyer engaged for Sacco and Vanzetti in the Brockton police court—represented Sacco, and officially the McAnarney brothers represented Vanzetti, but this was merely a maneuver to give both Jerry McAnarney and Moore the right to argue before the jury and to cross-examine. In reality Moore was as completely in charge as if he had been captain of a ship.

The contention of the Commonwealth, Assistant District Attorney Williams said in his explanatory statement,

_is that this crime was committed by five men; that use was made of this stolen Buick car which after its theft from Dr. Murphy of Natick had been kept in the curtained shed of the Coacci house in West Bridgewater; that on the morning of the murder it was taken from the Coacci house and was driven to South Braintree; that they picked up Vanzetti at the East Braintree station; that the men who guided and drove that car were very familiar with the localities of West Bridgewater and the roads leading to and from that section; that they went down to the railroad crossing after the shooting, and made that hairpin turn to throw their pursuers off the scent ... that they proceeded by those back roads, Oak Street and Chestnut Street, until they got to the old turnpike, which, though a rough road, furnished a direct means of access to the West Bridgewater locality; and they tore down there and either started to take Vanzetti over to Plymouth and for that reason went over the Matfield crossing or went over there with the idea of perhaps disposing of something in the Matfield River ... found it inadvisable to do that which they intended to do, came back over the Matfield crossing and subsequently abandoned their car in the region adjacent to the Coacci house._

Williams claimed he would later show that Mike Boda was seen driving a Buick touring car during the winter of 1920. Reminding the Jurymen of Puffer’s Place, the house they had seen the day before, he gave an unsubstantiated account of the police visiting the shed and finding traces of a hole recently dug in the dirt floor as well as tire marks to the left of the boards on which Boda had kept his Overland.

Although Judge Thayer later excluded references to the shed, and although no evidence was brought forward connecting Coacci, Boda, or Orciani with the South Braintree crime, Williams in his opening nevertheless managed to link them with it by innuendo.

The first witness to take the stand was Boston photographer John Farley, who had photographed the various buildings, places, and objects covered in the case and whose pictures were now offered to the jury as exhibits. Moore objected to the angles at which several of the pictures had been taken and there followed an inconclusive wrangle with the prosecution, to the visible annoyance of Judge Thayer.

During the noon recess, while Sacco and Vanzetti were marched back to the jail for their meal, Judge Thayer walked down the street to the Dedham Inn. Whenever he was in Dedham he took his midday meal there, as did the newspapermen and most of those connected with the courthouse. Returning from the inn, Thayer could not conceal his scorn at the sight of the coatless Moore taking a nap on the grass plot in front of the courthouse. Moore was always doing things like that, offending the New England sense of decorum without even realizing he had offended. Once in court on a hot afternoon he took off his shoes and stepped before the bench to make an exception in his stocking feet. Jerry McAnarney, watching Judge Thayer’s bottled-up indignation as it approached the uncorking point, was fearful as well as dismayed. “For God’s sake,” he warned Moore, “keep your coat and vest on in the courtroom, can’t you?”

Ripley, the dodderer with the tobacco-stained mustache, had been appointed foreman of the jury, possibly because at sixty-nine he was the oldest of the twelve. When on that first day he returned to the courtroom from lunch, he paused with self-conscious rectitude and—to the embarrassment of the others—saluted the American flag that stood beside the jury box.

The photographer was followed by Edward Hayward, the surveyor who had made the large-scale map of the South Braintree scene that hung to the right of the flag. Then the medical testimony began, the reiterative technicalities that the law requires to prove the indisputable fact that a man is dead. Indifferently the jury followed the course of the bullets through the bodies, listened to Dr. Hunting, who had operated on the dying Parmenter; Dr. Jones, who had picked up the bullet shaken out of Parmenter’s jacket; Dr. Frazer, who had examined Berardelli’s body in the front room of the Colbert house. The medical evidence was summed up and concluded by Dr. Magrath, whose boast was that he had performed more autopsies and attended more symphony concerts than any other medical examiner in New England. His toupee, the most obviously artificial in Massachusetts, was equally familiar to Symphony Hall, city morgues, and the Harvard Medical School. Dr. Magrath was a character. There was an iron quality about him that did not brook contradiction. Even Moore had no questions to ask him.

Such preliminaries took up the first week. Meanwhile Judge Thayer, irritated enough by the sight of the squint-eyed California lawyer bobbing up in front of him, found a more pervasive irritant in the printed broadsides of the Defense Committee denouncing the unfairness of the trial even before it started. “I am here to see the defendants get a fair trial,” he announced from the bench. And one day he asked a group of reporters at the Dedham Inn if they had ever seen a case in which so many leaflets had been spread around saying that people could not get a fair trial in the State of Massachusetts. As he went out onto the porch his face was flushed and his voice rose. “You wait till I give my charge to the jury,” he told the reporters, shaking his fist. “I’ll show ’em!” Even the monarchist Ferrante, whose chief regret was that Sacco and Vanzetti had not become American citizens so that he could have washed his hands of them, sensed within the first few days that Thayer was sure they were guilty.

Not until Wednesday morning, June 8, did the South Braintree express agent, the Commonwealth’s first important witness, take the stand. Considerably embellishing the story he had told in the Quincy court the year before, Shelley Neal again described his payroll delivery, the pale man in the doorway of the Hampton House, his brief view of the car that he was again to see jolting over the railroad crossing after the holdup. But Neal did not attempt to identify Sacco or Vanzetti as anyone he had seen that day. Margaret Mahoney, the paymistress, followed Neal; she told of making up the payroll boxes and handing them over to Parmenter and Berardelli just before three o’clock.

Mark Carrigan, the shoe-cutter, was next. From his window on the third floor of the Hampton House he had watched the paymaster and the guard go down the street; then he had heard the shots and seen the car cross the tracks with the gunman crouched in the front seat. But from that glimpse Carrigan had not been able to identify the defendants in the Brockton police station and he was not now able to identify them in the courtroom.

So far the trial was going in the routine manner that Katzmann had planned. These early witnesses were not expected to identify anyone. They were there merely to set the scene. Something more, however, was expected of Jimmy Bostock, the repairman, who had talked with Parmenter and Berardelli at the crossing, had seen the two men fall, and afterward had held the dying guard in his arms. The getaway car with the Italian-looking man who was leaning out shouting had passed so close to Bostock on Pearl Street that he could have reached out and touched it. Nevertheless, when asked in the Brockton station if he could tell whether Sacco and Vanzetti were the bandits he had answered, “No sir, I could not tell whether or not they was, no sir.” On the stand Bostock testified that Berardelli usually carried a 38-caliber revolver. He had seen it several times, the last time the Saturday before the murder. He had joked with Berardelli about it and asked him if he carried it to shoot rats. The mention of the revolver seemed irrelevant—especially as nobody had seen it on April 15—and Moore objected. Judge Thayer held a conference at the bench. There Assistant District Attorney Williams revealed for the first time the Commonwealth’s contention that the revolver found on Vanzetti had been taken from Berardelli’s body by the man who shot him.

When Lewis Wade was taken by Katzmann to the Brockton station he had pointed out Sacco as the wavy-haired man he had seen standing over Berardelli. At the preliminary hearing in the Quincy court three weeks later he was not quite as certain. “I don’t want to make a mistake,” he had said, looking at Sacco. “This is too damn serious, but he looks like the man.” Since then Katzmann had given Wade a pep talk and was now counting on him for a positive identification. Williams, leading the witness along, became stutteringly disconcerted when Wade balked, maintaining that although Sacco looked to him somewhat like the man who did the shooting, he “had a doubt.” Several weeks ago, Wade explained, he had seen a man in Damato’s barbershop who looked just like the man who had shot Berardelli. Since that time he had decided that Sacco was not the man. Williams managed to recover his composure, but though he did his forensic best, he could get no further in persuading the intractable Wade.

As Wade left the stand one of the police officers at the door called him a piker and another muttered: “We’re not through with you yet.” It was a remark borne out a few weeks later when Wade was dismissed from his job at Slater & Morrill. He had it coming to him. That was the way people felt in South Braintree.

John Dever, in the first row of the jury box, glancing from time to time at the defendants in the cage, was so far not impressed by the Commonwealth’s case. Sometimes he felt frightened at having to decide whether two men should live or die. Sacco and Vanzetti, he thought,

_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 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.”_

The reasonable doubt became more shadowy after the spinsterish Hampton House bookkeepers, Mary Splaine and Frances Devlin, appeared. Both pointed to Sacco as the man they had seen leaning out of the murder car. Mary Splaine told how, after they had heard the shots, she and Frances Devlin had gone first to the front window, then to the one looking out on Pearl Street, just in time to catch the car as it careered across the railroad tracks. From sixty feet away she had watched the bareheaded bandit for the three seconds the car took to pass. “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 ... 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 white, peculiar white that looked greenish.” She had particularly noticed his left hand resting on the back of the front seat. It was “a good-sized hand that denoted strength.”

Dever thought Mary Splaine seemed honest, but he did not see how anyone could have remembered all those details from such a distant glimpse, and he decided that she must have refreshed her memory on her visits to the Brockton police station. At the Quincy hearing the year before, when her memory was greener, Mary Splaine had not been so certain of her identification. There she had said of Sacco: “I am almost sure I saw him at Braintree, but I saw him at the Brockton police station afterward.” When Moore, with the Quincy transcript in his hand, pressed her about her negative answers then, she belligerently denied making them but was finally forced to admit that she had said: “I don’t think my opportunity afforded me the right to say he is the man.” This she now qualified by saying that her observation of him for several hours in the Quincy court had convinced her that Sacco was the man in the car. “I am positive, certain he is the man,” she concluded, her voice ringing and determined. “I admit the possibility of an error, but I am certain I am not making a mistake.” As she said this Sacco thrust his head forward, smiling at her with fixed bitterness.

Frances Devlin’s story was almost the same as her friend’s, although not so detailed. She had seen the car spurt over the hill with a man leaning out firing at the crowd. She described him as “a dark man, and his forehead, the hair seemed to be grown away from the temple, and it was blown back and he had clear features, and rather good looking, and he had a white complexion and a fairly thickset man, I should say.” Sacco was that man. She was positive. Like Mary Splaine, in the Quincy court she had been less positive. There, the most she had said of Sacco was: “He looks very much like the man that stood up in the back seat shooting.”

McGlone, the young teamster who had caught the staggering Parmenter, was another disappointing witness for the Commonwealth. A ferret-faced, stubborn man, he said that the two bandits he had seen were Italians, but that was all he would say about them. Assistant District Attorney Williams could not bring him to say that Sacco and Vanzetti were the gunmen, any more than Moore could bring him to say that they were not. “Well,” McGlone kept on telling them, “I did not get a good look at them to see what they did look like.”

Edgar Langlois, the Rice & Hutchins foreman who had looked down from the second-floor window at the two gunmen below him, described them in court as short and dark-complexioned, full-chested, clean-shaven, with curly or wavy hair. He had not been able to identify either Sacco or Vanzetti at Brockton as the men he had seen from the window, nor was he now willing to identify them in court.

The only witness of the actual shooting to make any such identification was the young Jewish shoe-cutter Louis Pelser, who had been working on the first floor of Rice & Hutchins. After hearing shots outside, he said, he had opened the middle window and looked out at a bareheaded man with a gun, only seven feet away, shooting at Berardelli. “I seen this fellow shoot this fellow,” he told the court. “It was the last shot. He put four bullets in him.” The gunman had “wavy-hair—pushed back ... dark complexion,” and was wearing dark green pants and an army shirt. He had then seen the gunman climb into the car. Pelser pointed to Sacco as the man. Katzmann twice asked him, over Moore’s objections, if he had any question in his mind but that Sacco was the man. Pelser hesitated. In the heat of the day, in his blue serge suit, he was an abject sight. John Dever thought he “looked and acted like a man who was doing something he didn’t want or like to do.” Looking at Sacco, pressed by the district attorney, Pelser reluctantly came out with it: “I wouldn’t say he is the man, but he is the dead image of the man I seen.” He added that he had thrown open the factory window and watched there from the time the gunman shot Berardelli until the car disappeared up Pearl Street.

The day that Pelser testified, June 10, was the hottest of the year. Outside the sun was molten and inside the air had become so humid that the walls and marble floor were beaded. Judge Thayer allowed the jurors to take off their coats, and finally ordered the sheriff to bring them fans.

Moore, beginning his cross-examination, was like a cat with a not overly nimble mouse. Pelser sweated so that the drops fell. Some months earlier, when interviewed by Robert Reid, a white-bearded Boston constable who had become a defense investigator, Pelser had denied seeing any of the shooting. “They were shooting while I was at the window,” he had told Reid, “and I got under the bench, and that is all I seen of them.” Now he claimed that he had lied to Reid because he did not want to be called as a witness. Moore, driving him into a corner, made him admit that he had, after all, ducked under the bench. He also admitted that he had avoided going to the Brockton station with the other witnesses by telling the police he had not seen enough to identify anyone. However, Moore could not shake Pelser’s insistence that he had seen the gunman and the getaway car—and it was a fact that Pelser was the only person in South Braintree who had written down the car’s license number.

William Brenner, Peter McCullum, and Dominic Constantino, all of whom worked at the front benches with Pelser, were brought in as defense witnesses to contradict Pelser’s story, but their effect was lessened by the tidy mechanics of legal procedure that postpones the appearance of rebuttal witnesses until the prosecution has finished its case. So it was not until two weeks later, when the details of Pelser’s testimony were overlaid by that of a score of other witnesses, that Brenner took the stand. He too, after he had heard shots, looked through the partially opened center window and saw a man “sinking—sinking.” Pelser had not been near the window. After McCullum had raised the sash he had slammed it down again and yelled “Duck!” and they had all got down behind the benches. Under cross-examination Brenner admitted he really did not know where Pelser was when he himself was looking through the window.

McCullum, following Brenner, was not sure where Pelser was either, but Constantino was certain that when the shooting started Pelser was “right down under the bench.” Afterward Pelser had told them: “I did not see any of the men but I got the number of the car.” Constantino admitted he had not given any thought to where Pelser was until he had read the latter’s testimony in the newspaper two weeks before. Then he had gone to the Sacco-Vanzetti Defense Committee and volunteered his information. At first he maintained that Pelser was at his workbench three windows down when McCullum had thrown up the sash, but Katzmann finally forced him to admit that he really did not know where Pelser was or whether he might have opened another window.

The appearance of Hans Behrsin, the Slater chauffeur, was unsatisfactory to the prosecution. All he could say was that the two men he had seen sitting on the Rice & Hutchins fence as he drove past in the Marmon “seemed to be pretty well light-complexioned fellows.” He had not noticed their features, and the district attorney did not even bother to ask him to identify the defendants.

It was generally agreed by the newspapermen covering the trial that Lola Andrews was the prosecution’s star witness, since she was the only one who had actually talked with any of the gunmen. She was an unpredictable woman. When Moore and two assistants had gone to Quincy on January 14 with a stenographer to interview her as a prospective defense witness, he found her calm and pleasant. According to the stenographer’s record she told Moore that she could not identify the two men she had seen near the car in front of the Rice & Hutchins factory. When she was shown pictures of Sacco and Vanzetti, she said they were not the men. Although she did not mention it to Moore on January 14, she later claimed that two evenings before, a dark one-eyed man in a sailor’s reefer had appeared at her door, spoken incomprehensibly about the South Braintree crime, and then, when she refused to listen to him, followed her into the hall toilet and assaulted her.

The evening before Lola appeared in court, Jerry McAnarney had gone to see her in Quincy, and she had told him that she could not and would not identify Sacco or Vanzetti as the men she had seen near the automobile in front of Slater & Morrill. Moore had even considered using her as one of his own witnesses and was surprised when she took the stand for the Commonwealth. She wore a stiff-crowned hat with a flat brim that shadowed her face. It was a coarse apprehensive face which, though faded, still managed to preserve a physical appeal.

Again she told her story of walking down Pearl Street to the Slater & Morrill factory, of seeing the pale man and the dark man by the touring car, of asking directions from the dark man on the way back. “He told me—he asked me,” she said, looking at the defendants in the cage, “which factory I wanted, the Slater? I said ‘No, sir, the Rice and Hutchins.’ He said to go in the driveway and told me which door to go in, it would lead me to the factory office.”

Williams then asked her dramatically if she had seen the man since. She replied that she had seen him in the courtroom. It was the climax to which the assistant district attorney had been building. “Do you see him in the courtroom now?” he asked. She paused, raised a bare, fleshy forearm, and pointed to Sacco.

“I think I do. Yes, sir. That man, there.” Sacco jumped to his feet in the cage, his eyes flashing. “I am the man?” he demanded in his thick accent. “Do you mean me? Take a good look!”

Moore in his cross-examination went back at once to the January evening when he had shown her a selection of photographs including one of Sacco holding a derby in his hand. According to the stenographer’s record she had said that the man with the derby was not the one she had talked with in South Braintree. Now, on the stand, she denied that she had said any such thing, claiming on the contrary that she had then identified the man in Moore’s picture as the man who had got up from under the car.

Though Moore could not shake her story he brought out that in February Stewart and Brouillard had taken her to the Dedham jail. There she had looked through a grating at a cell tier on a lower level. For about ten minutes she had watched a dark muscular man pacing up and down, the man—she finally decided—whom she had talked with in front of the factory on the day of the murder. That man, she was told, was Nicola Sacco.

At one o’clock Judge Thayer suspended the session for the week end. Lola Andrews’ cross-examination would continue Monday and into Tuesday. Moore was determined to drive her to the wall. But in his determination he overlooked the one question that should have occurred to any trained legal mind. Lola Andrews had been given detailed directions to Rice & Hutchins by a man who spoke English easily. Sacco’s command of English was so slight that he would not have been capable of such fluent talk. His heavy accent was at times almost incomprehensible. Yet Moore in his two days of hammering at Lola Andrews never once brought up the question of the speech and accent of the man who had directed her.

Judge Thayer’s weekend instructions to the jury seem, at least from the record, judicious and temperate. “Drop this case now,” he told them, “to be taken up Monday morning at ten o’clock. Don’t discuss this case among yourselves. You haven’t heard all the evidence; you haven’t heard any of the evidence of the defense. You haven’t heard the argument; you haven’t heard the charge. Just keep your minds open, absolutely open, fair and impartial, so that when you finally cross the threshold of the jury room for your final determination of this case your mind will be as impartial and as open as it is humanly possible for any man’s mind to be.”

The trial was now beginning to look like a long one, and most of the jurors were concerned about getting back to their families. They talked about asking the judge to hold longer sessions. Dever was worried that Filene’s might cancel his summer vacation after he had been away so long. Saturday morning he had just opened a _Geographic_ when Sheriff Capen stuck his head in the door and asked if anyone wanted to take a bath. At first they thought it was his idea of a joke, but the sheriff marched them up to the jail and there in the basement they found twelve bathtubs all set up and waiting. For over an hour they soaked and splashed and tossed cakes of soap back and forth. Dever could see a rim of dirt forming all along the edge of his tub. The water felt great. So did the clean clothes his sister had sent him.