Chapter ELEVEN: The Trial: III (2)

Following Hayes, Antonio Dentamore of the foreign-exchange department of the Haymarket National Bank took the stand to corroborate Professor Guadagni. On April 15, just before three o’clock, he had been talking with Guadagni in Giordani’s Café when Sacco came in. He had never met Sacco until Guadagni introduced them. They had talked together for about twenty minutes, mostly about passports. The reason Dentamore remembered the day was that he had just come back from the banquet for the _Transcript_ editor, and in fact he and Guadagni were discussing it as Sacco appeared. Katzmann took him over the customary hurdles. Dentamore could not recall what he had been doing at ten minutes to three the day before or the day after the banquet, or twenty days ago, or twenty-one days ago. He could not say where he had had lunch twenty-two days before. “I am not a fortune teller,” he told Katzmann.

The defense tried to get the information into the record that Dentamore and Sacco came from the same district in Italy. Judge Thayer excluded the references. Thwarted at each turn, Moore tried to explain that “through this witness the defense offers to prove that in the conversation that was had between the witness and Mr. Sacco it became known to the witness that Mr. Sacco and himself were both from the same section of Italy, that they were both mutual friends and acquaintances of Mr. Mucci,[13] and that the witness, after learning that Sacco was returning to Italy at an early date ... asked Mr. Sacco to convey to Mr. Mucci his good wishes and the fact that they had met one another in Boston.” At once the district attorney objected and his objection was sustained.

As Monday drifted into afternoon there was a feeling of the wheels running down, of impatience for the hour of decision. Everyone in the court sensed there would be no more surprises, no more climaxes. Half the reporters’ desks were empty. The _Post_ sent its cartoonist over to the Middlesex courthouse to sketch the juicier proceedings in the Mishawum Manor scandal. The remaining witnesses, including the handful to be offered by the Commonwealth in rebuttal, were like odd bits of string, useful only for tying up loose ends. Speaking through an interpreter, Carlos Affe, a grocer whom some of the Italians jokingly called the mayor of East Boston, told of selling $15.67 worth of groceries to Sacco on March 20, 1920. On April 15 he had again seen Sacco, who had paid him $15.50. Affe had made a record of this in his account book and marked the date. That book he now produced.

Luigi Quintiliano appeared briefly to say that he had seen Vanzetti in New York on April 27 and 28 and had talked over the problem of getting rid of radical literature. The Spanish anarchist Frank Lopez refused to take an oath and affirmed instead that he had talked to Vanzetti both before and after his New York trip about getting incriminating literature out of their friends’ houses.

Then Rosina Sacco came forward, glancing at her husband with as much courage as she could muster. She stood there, a slight pathetic, determined figure, her red-gold hair softening her fine, slightly archaic features so that with her sprinkling of freckles she looked almost adolescent. Her story was simple. She told of her husband’s receiving the black-bordered envelope containing the news of his mother’s death one noon just after he had eaten. He had gone back to the factory, but after half an hour came home again. She remembered how on the day of his arrest she had been cleaning out a closet and found the shotgun shells. Vanzetti had picked them up and said he would sell them for fifty cents to a friend. Then, going through the bureau drawers, she had found a pistol and some more shells. These she placed on top of the bureau and asked her husband what he was going to do with them. That same day Orciani and Boda had come to supper. After supper her husband left with Vanzetti to catch the Brockton streetcar. Boda and Orciani started out later after fixing a tire on the motorcycle. When Vanzetti had said good-by to her, he had given her a message to take back to Italy. She did not learn of her husband’s arrest until twelve the next day when officers Connolly and Scott and two or three others arrived at the house. On April 15 a man from Milford named Iacovelli had come to see about taking over Sacco’s job and stayed a quarter of an hour.

Jerry McAnarney showed Rosina the caps that had been exhibited before. The gray cap, she thought, looked like her husband’s, like the cap the police had taken from her house on May 6. As for the dark one with the earflaps, her husband had never owned such a cap “because he never liked it ... he don’t look good in them positively.”

When Katzmann questioned her, she told him that even before the death of Sacco’s mother they had been planning to return to Italy. “That’s why we were saving our money, because we wanted to go across in the old country, but since the mother died, we hurried more because he was sorry about his mother died without seeing him.” Sabino’s letter telling of the mother’s death had arrived March 23 or 24. Thirteen or fourteen days later Sacco had gone in to the consulate with his photograph. Katzmann wanted to know how thirteen or fourteen days after March 24 could make the date April 15. “Well, you count up from the twenty-third or twenty-fourth of March,” she told him, “and going to the fifteenth, I says thirteen or fourteen days, and I don’t think it is much different, because it is over a year he is in prison, and I don’t remember everything.” Katzmann asked her nothing more. Sacco’s savings-bank book, introduced as evidence, showed that from December 9, 1918, he had deposited amounts from $30 to $270 for a total of about $1500.

The Milford shoe-worker Henry Iacovelli was the last defense witness. In April 1920 he received a letter from Michael Kelley telling him there was a job open in the Three-K factory. He had gone to Stoughton on April 15, first seen George Kelley, then gone to Sacco’s bungalow. Rosina told him that Sacco had gone to Boston, but this hearsay evidence Jerry McAnarney could not bring out in court. On this fading note the defense rested.

Among the residual rebuttal witnesses were Angelo Ricci, the foreman of the railroad gang near the crossing; a Mary Gaines, who knew Lola Andrews and Julia Campbell; Henry Hellyer, the Pinkerton agent; Chief Stewart; Lieutenant Guerin; and a belated identification witness by the name of Frank Hawley.

Ricci maintained that when the getaway car went over the tracks he did not see any of his gang at the crossing, but he admitted under cross-examination: “When you got to control twenty-four men, what to hell, one fly away. I could not tie them up with string and hold them all as one. If they went around, sneaked around the pile of dirt or something like that, I could not hold them.”

Mary Gaines of Quincy was brought in to show that “the statement Mrs. Andrews made about making inquiry of the man under the car is not of recent contrivance.” She had visited Julia Campbell and her sister and Lola Andrews in the Alhambra Block the week following the shooting. Lola had then told them “she seen this man underneath the automobile, and she taps this man on the shoulder, she asks him to please direct her to the Rice and Hutchins shoe shop, and he got up and directed her to it.”

Hellyer gave his altered account of what Jenny Novelli had told him. As the existence of his written report was not then known, his statements passed unchallenged. Lieutenant Guerin told of going to Sacco’s house and picking up the gray cap with a rip in the lining from the kitchen table. Moore objected to the cap being admitted as an exhibit on the grounds of unlawful search and seizure. He also objected to the jury’s seeing the Buick and demanded that all references to it be struck out. As usual his objections were overruled.

Hawley, a salesman and a former Brockton special police officer, said that on April 15 he was driving his Ford in Brockton. In starting to turn around on School Street to go to Whitman, he had forced a Buick touring car to come to a stop. It was a dirty car with flapping side-curtains and as it stopped the driver stuck his head out and asked the way to Whitman. The man Hawley had seen sitting next to the unidentified driver was Vanzetti.

Chief Stewart resumed the stand briefly to add a few more passages of the Brockton interrogatory that he had previously omitted. There followed a discussion about the admission as evidence of the books found in Sacco’s house and whether they should be translated. Finally both sides agreed to let them in as they were, Moore remarking that the titles spoke for themselves. Shortly after lunch both sides rested.

There was a pause, a rustle in the courtroom, as the lawyers gathered up their documents and the spectators eyed Judge Thayer. He cleared his throat, looked dryly at Moore, then turned to the jury.

“Well, gentlemen,” he said in his toneless voice, “the book of fate in these cases has been closed. You will undoubtedly get these cases for final determination Thursday forenoon, or Thursday morning. During your absence quite a number of things have been settled between counsel, one of which is that arguments will be made tomorrow, beginning at nine o’clock. It has been agreed that four hours shall be given to each side—that is four hours for the defendants and four hours for the Commonwealth. They may run a little over that time.

“I must again suggest to you to still keep your minds open. The evidence has simply closed now. You have not heard the arguments of both counsel. You have not heard the charge of the Court. You must hear what the law is of the Commonwealth in order that you may apply the law to established facts found by you to be true, and therefore with this request, which is kindly made by the Court, I trust you will do what you can to see to it that it is fully carried into effect.”

Edmund Morgan, in his study of the trial published in 1948, considered it an act of incomprehensible folly for the defense to agree to any such four-hour limitation. But in agreeing to the limitation, Moore and the McAnarneys were from long practical experience aware of the dangers of taxing a jury’s patience. Jurymen who had already sat through thirty uncomfortable days of testimony might react against an argument running several days. Besides, it was common bar knowledge that by the time the summations were reached, a jury, despite any judge’s hortatory injunctions, had pretty well made up its collective mind.

Moore and Jerry McAnarney agreed to divide their allotted morning, with Moore appearing first. But the ingenious and aggressive general counsel of the I.W.W., the victor of so many underdog courtroom battles, was that Wednesday morning like a speaker who has lost rapport with his audience. He rambled. The telling points escaped him. Jerry McAnarney, tripping over his grammar, made a far better follow-up.

Moore opened by remarking wryly that in the six weeks of the trial, he, as a Californian, had felt almost an alien in the Dedham court. He then went on to develop his argument, claiming that the primary—in fact the only—issue was one of identification. Taking the Commonwealth’s witnesses in order, he asked why it was that the expressman Neal, when he felt his life was in danger, had not bothered to look at the number of the threatening car directly in front of his door? How was it that Faulkner, on the train, could remember the man he said was Vanzetti leaning over from the rear seat and yet could not remember the man in the seat beside him? Moore recalled to the jury the Italian railroad worker, Nicola Gatti, the one witness who had known Sacco before the crime, and begged them not to be prejudiced by the fact that the man was an Italian. He pointed out that Mary Splaine’s elaborate identification must have derived from the times she saw Sacco at the police station and not from the fleeting glimpse she had had from the upper window of the Hampton House, and he brought up again her indecisive statements in Quincy, so opposed to her Dedham positiveness. As for Lola Andrews, “even though we had not offered a single witness against her, she killed herself on the witness stand by her own personality, but Campbell, Fay, La Brecque finished her up.” Pelser was unemployed when he told defense investigator Robert Reid that he had seen nothing of the shooting, but a few months after he got a job with Rice & Hutchins he was willing to testify for the Commonwealth. Goodridge, the poolroom man, was in the courtroom for some other purpose when he identified Sacco. Why?

“Gentlemen,” Moore summed up, “there isn’t a single witness called by the government who had an unqualified opportunity of observation who gives an identification. Bostock had the opportunity and wouldn’t. McGlone had the opportunity and wouldn’t. So on down the line. But it is the Lola Andrews, the Goodridges, the Pelsers that made the identification. Miss Splaine and Miss Devlin I reject, because their testimony is utterly unreasonable. They did not have the opportunity. They could not. You know it and I know it.”

Moore asked the jury to consider again whether or not the defendants believed on the night of May 5 they were in fear of deportation or that they believed their lives or liberties were in danger, and whether Stewart’s questions about anarchism had not inflamed Sacco’s suspicions. There were, too, Sacco’s alibi witnesses for April 15—Bosco, Dentamore, Williams, Affe, Kelley, Hayes. Had all these men committed perjury?

Only in passing did Moore mention the guns and bullets. “If,” he said, “the time has come when a microscope must be used to determine whether a human life is going to function or not and when the users of the microscope themselves can’t agree, when experts called by the Commonwealth and experts called by the defense are sharply defined in their disagreements, then I take it that ordinary men such as you and I should well hesitate to take a human life. You are the responsible men,” he concluded. “You are the judges of the facts.” And he stood there a moment staring somberly at the jurors.

“Take a recess of five minutes,” Judge Thayer told the courtroom, then nodding curtly to the Californian, added, “You ran over your time twenty minutes, Mr. Moore.”

Jerry McAnarney, in his two hours, did not confine himself to his ostensible client, Vanzetti, but proceeded to go over the same ground that Moore had just covered. He criticized the Splaine-Devlin contradictions, he asked why Sacco and Vanzetti had not been shown to witnesses in Brockton in a lineup, he speculated as to what Goodridge had been doing in Dedham when he first identified Sacco. Then he asked why Sacco, already recognizable in South Braintree as Mosmacotelli, would have spent a morning standing in front of the drugstore or hanging around the depot or finally leaning on the fence under the window of the very factory where he had once worked.

The testy little lawyer warned the jurors about Katzmann: “He can stand up to this rail and say to you gentlemen ‘What have we been here for six weeks for, for two slackers, for two men who did not think enough of their country but what they would go to Mexico—murderers, slackers, anarchists?’ Ring the changes, gentlemen, and you can play any tune you want to on that. And you have got to be very careful that you don’t vibrate in unison with those words. They are fearful, they are potent, they are laden to the limit.”

McAnarney poked fun at the bravado of the Brockton officer, Connolly, “listening to the sweetest music of his young life, the sound of Connolly’s voice when he was telling you what he did.” But when McAnarney mentioned Levangie, the man he had interviewed and who two weeks later had denied under oath talking with him, his face reddened. Captain Van Amburgh he referred to as the “circles” man, but he had obviously not grasped the implications of his testimony, for he reminded the jury: “Van Amburgh said that that number three shell, the fatal bullet that killed Berardelli, came from ... the Colt revolver that was found on Sacco.” In the question of Berardelli’s revolver McAnarney pointed out that if the defense had planned to falsify evidence, it would not have been too difficult to have the various witnesses memorize the number of Vanzetti’s Harrington & Richardson and afterward recite it on the witness stand.

McAnarney asserted, as had Moore, that the primary fact was in the end identification, and that there was not sufficient evidence to prove beyond a reasonable doubt that the two men had been in South Braintree that day. “I want every man on this panel to treat these two defendants as if they were your own individual brother,” he concluded with sincere irrelevance. “Take that as the text, not the other that we feel and what this evidence would make them out, treat them as though, as your brother. He came to this world by the same power that created you, and may he go from this world by the same power that takes you. I thank you, gentlemen.”

* * * * *

After the lunch hour Katzmann approached the jury box for his final argument. As usual his debonair appearance was unaffected by the heat. Confident of the game he was playing, sure of his arguments, he faced the jury in the floridity of his top form. But though his verbiage was lush, his mind was sharp.

He began with provincial urbanity by complimenting the jury, the defending lawyers, and the judge. Then he covered the case point by point, missing none of the discrepancies of the defense witnesses and not neglecting by innuendo to tie in Orciani. There was Burke who had said that Sacco and Vanzetti were not in the car as it passed him, Burke who had ridden to court in Callahan’s Hudson and called it a Buick, who had described the driver of the getaway Buick as a thickset dark man—when both sides now admitted that the driver was pale and fair. There was Chase, on the truck at the Co-operative Society, a man with permanently impaired eyesight. There were Sacco’s alibi witnesses in Boston and Vanzetti’s in Plymouth. Katzmann agreed that Corl had painted his boat, that Williams had taken his advertising orders, that Dentamore had gone to a banquet for the _Transcript_ editor. “But what in logic is the connection between any of these things that they say helps mark the time?”

The district attorney did not miss the fact that Vanzetti claimed that on the night of May 5 they were just going to get the car, whereas Sacco first said they were going to pick up radical literature. In the matter of picking up literature, if it was so urgent to get rid of it, why did Vanzetti do nothing for a week after coming back from New York? Why did he not warn his friends in Plymouth? Why did Sacco, after he heard from Vanzetti, take no steps to get rid of what he himself owned and so protect his home? Why would Sacco be so afraid of deportation when he was leaving the country in two days? What were they afraid of, anyhow, the night of May 5 when they had no incriminating papers with them?

As for the weapons, Katzmann argued: “They had arsenals upon them. Vanzetti had a loaded 38-caliber revolver, this man who ran to Mexico because he did not want to shoot a fellow human being in warfare, a loaded 38-caliber revolver, any one of the cartridges instantly death-dealing. This tender-hearted man who loved this country and who went down to Mexico because he did not believe in shooting a fellow human being, going down to get a decrepit old automobile, had a 38-caliber loaded gun on him.

“And his friend and associate, Nicola Sacco, another lover of peace, another lover of his adopted country who abhorred bloodshed and abhorred it so that he went down to Mexico under the name of Mosmacotelli ... had with him, this lover of peace, thirty-two death-dealing automatic cartridges, nine of them in the gun ready for action and twenty-two more of them in his pocket—carried it where the ordinary citizen carries it there? No, gentlemen, carried where those who have occasion to use it quickly and want to slip it out and use it quickly would be prone to carry it, that death-dealing instrument.

“But more than that, gentlemen, and ammunition enough to kill thirty-seven men if each shot took effect, they had or Vanzetti had four shells—no weapon in which to fire them at the moment that we found, but you will remember, gentlemen, that sticking out of the back of the bandit’s car on April 15 was either a rifle or a shotgun, and in Vanzetti’s pocket were four 12-gauge shells loaded with buckshot that they were going out to shoot little birds with.... Maybe, gentlemen, you think that is the way men would be armed who were going on an innocent trip, innocent so far as death-dealing matters are concerned at night time after closing hours of the garage and when the man who ran it was in bed, going to make a social trip down to see Pappi, the friend of Vanzetti, and he did not know where he lived, save that it was in East Bridgewater, gentlemen.”

The district attorney admitted that Pelser had lied at first both to the defense and the Commonwealth, because he did not want to be a witness, but afterward he was “manly enough to tell you of his prior falsehoods and his reasons for them.” On the subject of Splaine and Devlin, Katzmann became almost lyrical: “Gentlemen, do you think that two young women, presumably endowed with Christian instincts, young ladies who could have no enmity against the defendant Sacco, who could have no reason for committing the most damnable of perjuries, would bespeak evidence against a human being that would take his life away? Gentlemen, that passes the bounds of human credulity. You can’t believe that. You cannot have looked on Mary Splaine, a smart businesswoman, you cannot have looked on the gentle Frances Devlin and have seen the truth shining like stars out of her young womanly eyes and believe for a moment that either or both of them would dare, before a court of justice or before God their Maker, condemn Sacco to his death with a willful lie. You cannot believe that, gentlemen, having seen those women.”

He agreed that Levangie, the gate-tender, was wrong in saying that Vanzetti had driven the car. The probability was that Vanzetti was directly behind the driver, was leaning forward, and Levangie had given just a quick transposing glance. Lola Andrews conjured up a briefer burst of lyricism: “I have been in this office, gentlemen, for now more than eleven years. I cannot recall in that too long service for the Commonwealth that ever before I have laid eye or given ear to so convincing a witness as Lola Andrews.” As for Julia Campbell, she was “Aunt Julia, the elderly lady with the cataracts.”

The district attorney underlined the fact that the Buick getaway car was found only a mile or so from Elm Square. “You don’t find the car in Worcester. You don’t find it in Pittsfield. You don’t find it in South Boston, nor do you find it in Fall River. You find it in West Bridgewater, and the night these men were arrested, they were arrested within hailing distance of it. Can you put two and two together?”

In contrast to Moore’s objection to the microscope’s evidence, Katzmann declaimed: “Heaven speed the day when proof in any important case is dependent upon the magnifying glass and the scientist.” He marshaled the evidence of the guns and the bullets carefully in the Commonwealth’s favor. “What is the reason Captain Van Amburgh gives for saying that bullet number three was fired by the Colt of Sacco?” he asked, thus compounding Jerry McAnarney’s error.

It was after six before Katzman, facing a weary jury and a long-since emptying courtroom, made his last points. He asked who knew better about the Harrington & Richardson revolver, the man who had put in a new hammer or an expert who had never seen it before. He questioned the disorder and general lack of dates in Affe’s grocery account books. He wondered why the defense had produced no witnesses from Rice & Hutchins, where Sacco had worked, to say he was not the man. He concluded with a flourish: “You are the consultants here, gentlemen, the twelve of you, and the parties come to you and ask you to find out what the truth is on the two issues of guilt or innocence. Men of the jury, do your duty. Do it like men. Stand together, men of Norfolk!”

Nothing was left but the judge’s charge and the jury’s verdict.

* * * * *

Judge Thayer spent that evening at the University Club in Boston working on his charge. Like most intermediate judges, he tended to make his charges set pieces formed out of the accumulated mosaics of the law, varying in detail according to the particular case, but in general outline the same. The basic function of a charge is to enable the jury to sift the relevant from the irrelevant. In his Sacco-Vanzetti charge of twenty-four pages, only ten were given to the specific aspects of the case. The formula was based on a standard set of legal truisms: that a man is innocent until proved guilty, that reasonable doubt is the doubt of a reasonable man, that no inference of guilt shall be drawn from an indictment, that circumstantial evidence can at times be as weighty as direct evidence, that English common law as adopted by American practice is one of the glories of the world, and so on. Thayer’s first childhood memories were of the boys in blue of the Civil War; he had been appointed to the bench the year that the United States entered the World War, and his attitude toward soldiers was that of a sentimental civilian. Ever since his appointment he had peppered his charges and his less formal addresses with references to “our soldier boys.” It was a habit that still continued three years after the Armistice, and that could have somewhat sinister connotations in the trial of two draft-dodging anarchists.

With the fervor of a poet Thayer worked at his manuscript late into the night. He was proud of his literary efforts. Like most Americans whose school course included the elocution lessons of the post-Civil War period, his taste ran to the flamboyant. Vague metaphorical phrases blossomed under his hand. “Let the star of a sound judgment and profound wisdom guide your footsteps into that beautiful realm where conscience, obedience to law and to God, reigneth supreme.” Such phrases he found reassuring. And his indwelling sense of insecurity made him need assurance, turned him at times garrulous, biased him against foreigners, and drove him to indiscretions that were later to become notorious.

When Judge Thayer went down to breakfast early Thursday morning and looked hopefully around the club’s almost empty dining room, his eye fell on the frosty George Crocker at a table by the window and he walked over and sat down opposite him. Crocker, an elderly codfish Bostonian, greeted Thayer with a noticeable lack of cordiality. Several times during the month the judge had waylaid him in the lounge and filled his unwilling ears with news about the Dedham trial, insisting that Americans must now stand together to protect themselves against anarchists and Reds. Conservative lawyer that he was, Crocker felt offended at Thayer’s violation of the legal proprieties in even mentioning a current case. Oblivious of the other’s disapproval, Thayer would say that it was nonsense that the defendants were being prosecuted as radicals. Just the same, in his opinion, they were anarchists and draft-dodgers, and they had failed to establish alibis.

This morning, before Crocker had finished his grapefruit, Thayer pulled some sheets of paper out of his pocket saying proudly: “I want to read you part of the charge I am going to deliver today.” He talked on, quoting part of Moore’s argument, and then reading more of his charge, smacking his lips at the end with “That will hold them!” Crocker replied sniffily or not at all. On leaving the dining room he warned the steward, “For Heaven’s sake, don’t put me with that man again!”

* * * * *

Court opened late. Judge Thayer had again timed it that way for dramatic effect. Every seat was taken and the bar enclosure was filled with lawyers as Sacco and Vanzetti took their place in the cage, for it had been noised about in State Street that the judge’s charge would make legal history. The opening, however, had more the air of a graduation ceremony than a murder trial. The judge’s desk was buried in flowers—a huge vase of gladioli sent by the sheriff, and large bouquets of pinks from Mrs. Katzmann and the wife of Assistant District Attorney Kane. Among the spectators were the Marquis Ferrante, Rosina Sacco with the boy Dante, and of course Mrs. Evans and her inevitable notebook. In spite of the heat Sheriff Capen had resumed his blue cutaway.

With the clerk’s cry, Judge Thayer rustled in and sat down behind the bank of flowers. For the last time the ritual was intoned, the jury was polled, the defendants answered “Present.” Jerry McAnarney approached the bench with a motion for a directed verdict on the grounds that the district attorney in his argument had disclaimed that Vanzetti was driving the getaway car as it crossed the railroad track. Moore made the conventional request that the court order the jury upon all the evidence to return a not-guilty verdict for Sacco. Neither motion, they knew, would be granted. There were a few more words added to the record about the Berardelli revolver, then the judge’s brittle voice began:

“Mr. Foreman and gentlemen of the jury—you may remain seated—the Commonwealth of Massachusetts called upon you to render a most important service. Although you knew that such service would be arduous, painful and tiresome, yet you, like the true soldier, responded to that call in the spirit of supreme American loyalty. There is no better word in the English language than ‘loyalty.’ For he who is loyal to God, to country, to his state and to his fellow men, represents the highest and noblest type of true American citizenship, than which there is none grander in the entire world. You gentlemen have been put to the real test, and you have proven to the world, and particularly to the people of Norfolk County, that you truly represent such citizenship. For this loyalty, gentlemen, and for this magnificent service that you have rendered to your State and to your fellow men, I desire, however, in behalf of both to extend to each of you their profoundest thanks, gratitude and appreciation.”

It was of course conventional to butter up a jury at the end of a long trial, but Thayer enjoyed the convention. His mind slipped easily among the sententious moralizings, the hortatory appeals to truth, the assurances of equality before the law:

“Let your eyes be blinded to every ray of sympathy or prejudice but let them ever be willing to receive the beautiful sunshine of truth, of reason and sound judgment, and let your ears be deaf to every sound of public opinion or public clamor, if there be any, either in favor of or against these defendants. Let them always be listening for the sweet voices of conscience and of sacred and solemn duty efficiently and fearlessly performed.”

Warning the jury not to be influenced or prejudiced by the fact that the defendants were Italians, he went on to a brief history of murder in common law, the development of degrees of murder, the definition of malice aforethought. He pointed out that there was no vital distinction between circumstantial and other evidence, that the important thing was the degree of proof. He must have puzzled the jurors with his remark that “over-positiveness in identification might under some circumstances and conditions be evidence of weakness in the testimony rather than strength.”

There was the expected truism—none the less true—that “guilt or innocence of crime do not depend upon the place of one’s birth; neither should the place of one’s birth, the proportion of his wealth, his station in life, social or political, or his views on public questions prevent an honest judgment and impartial administration and enforcement of the law, for when the time comes that these conditions exist to an extent that men, because of these conditions, cannot be indicted, tried, acquitted or convicted according to the laws of the Commonwealth in a court of justice, the doors to our courthouses should then be closed and we should announce to the world the impotency of our courts and the utter failure of constitutional or organized government.”

Not until he had passed the halfway mark did Judge Thayer abandon generalities for facts. Then he summed up the case adequately enough: “The Commonwealth claims that these defendants were two of a party of five who killed the deceased. The defendants deny it. What is the fact? As I have told you, the Commonwealth must satisfy you of that fact beyond reasonable doubt. The defendants are under no obligation to satisfy you who did commit the murders, but the Commonwealth must satisfy you beyond reasonable doubt that the defendants did. If the Commonwealth has failed to so satisfy you, that is the end of these cases and you will return verdicts of not guilty. This is so because the identity of the defendants is one of the essential facts to be established by the Commonwealth. On the other hand, if the Commonwealth has so satisfied, you will return a verdict of guilty against both defendants or either of them that you so find to be guilty.”

(Center) _The bullets removed from Berardelli’s body. The mortal Bullet III, deformed by impact, is third from left._

(Bottom) _The bullets as marked by Dr. Magrath. Note deformation of Bullet III, third from left._]

_Vanzetti’s Harrington & Richardson revolver._ ]

_Composite photograph of Shell W_ (left) _and test shell_ (right), _showing continuous breechblock markings above and below firing pin indentation_.

AMERICAN HERITAGE MAGAZINE ]

_The jury’s Fourth holiday at North Scituate._

_Ripley_ _King_ _Marden_

_Gerard_ _McNamara_ _Parker_ _Dever_ _McHardy_

_Fales_ (Sheriff) _Capen_ (Sheriff) _Hooper_ (Sheriff) _Ganley_ _Hersey_ _Waugh_ _Atwood_ ]

BOSTON HERALD
]

BOSTON GLOBE

_The start of the funeral procession._]

In weighing the testimony of the identifying witnesses, the jurors would have to consider the latter’s intelligence, “their opportunity for observations, their reasons for making such observations, the duration of such observations, and the mental or nervous condition of the witness at the time.” Turning to the ballistics testimony, Thayer fell into the crucial error of McAnarney and Katzmann, for he, too, accepted Van Amburgh’s “I am inclined to believe” as a direct assertion that the Berardelli death bullet had come from Sacco’s automatic. “You must determine this question of fact,” he told them. In speaking of the Vanzetti revolver, he first said that it had had a new hammer and spring, then later corrected himself.

The emphasis of the latter part of the charge was on the question of consciousness of guilt, to which Judge Thayer gave much more space than he did to the other testimony. “If the defendants were only consciously guilty of being slackers,” he informed the jurors, “liable to be deported, fearing punishment therefore, and were not consciously guilty of the murder of Berardelli and Parmenter, then there is no consciousness of guilt during the time they were at the Johnson house, because the defendants were solely being tried for the murder of Berardelli and Parmenter, and for nothing else.”

This was a question of fact for the jurors to decide, just as it was for them to decide whether or not the defendants had “the desire and purpose and intention” of drawing their weapons when they were arrested on the streetcar. The court decided questions of law, but only the jury could decide on the facts. Alibis were always questions of fact. “Therefore,” he instructed them finally, “all testimony which tends to show that the defendants were in another place at the time the murders were committed tends also to rebut the evidence that they were present at the time and place the murders were committed. If the evidence of an alibi rebuts evidence of the Commonwealth to such an extent that it leaves reasonable doubt in your minds as to the commission of the murders charged against these defendants then you will return a verdict of not guilty. On the other hand, if you find that the defendants or either of them committed the murders and the Commonwealth has satisfied you of such fact beyond a reasonable doubt from all the evidence in these cases, you will return a verdict of guilty.”

Thayer had been talking for several hours. He shifted a vase of pinks slightly to his right so that he could eye the jury more emphatically before beginning his peroration, his particular pride:

“My duties, gentlemen, have now closed and yours begun. From this mass of testimony introduced you must determine the facts. The law, as I have told you, places the entire responsibility in your hands. I therefore call upon you to constantly bear in mind these parting words of the Court that here, in this temple of justice, before God and man, you made oath that you would ‘well and truly try the issue between the Commonwealth and the defendants according to your evidence. So help you God.’

“I have now finished my charge. My duties are now at an end. I have tried to preside over the trial of these cases in a spirit of absolute fairness and impartiality to both sides. If I have failed in any respect you must not, gentlemen, in any manner fail yours. I therefore now commit into your sacred keeping the decision of these cases. You will therefore take them with you into yonder jury room, the silent sanctuary where may the Great Dispenser of justice, wisdom and sound judgment preside over all your deliberations. Reflect long and well so that when you return, your verdict shall stand forth before the world as your judgment of truth and justice. Gentlemen, be just and fear not. Let all the end thou aimest at be thy country’s, thy God’s and truth’s.”

There was a moment’s silence, then a murmur went through the courtroom like a collective sigh, followed by a shuffle of feet as spectators and jury began to file from the room, while the lawyers worked their way to the back for another consultation. Vanzetti bent over and whispered to Sacco as a deputy with handcuffs opened the cage door.

Moore, observing legal etiquette, remarked formally to the Court that whatever the jury’s verdict no one could say that the defendants had not had a fair trial.

* * * * *

Judge Thayer was in a good mood as he walked briskly to the Dedham Inn for lunch. The trial that had cut so deep into his summer was over. He would no longer have to endure the daily sight of that long-haired California radical. His charge had gone off well.

Inside the dining room he stopped at the reporters’ table where Frank Sibley, with his Windsor tie, sat at the head. “Did you see that jury when I finished my charge?” Thayer asked of no one in particular. “Three of them in tears!” Sibley and the others said nothing. The silence nettled the judge. He looked them up and down and then said pettishly, “I think I am entitled to have a statement printed in the newspapers that this trial was fairly and impartially conducted.” Again there was silence. Sibley looked down at the tablecloth in embarrassment.

Finally Thayer spoke to him directly. “Sibley, you are the oldest. Don’t you think this trial was fairly and impartially conducted?”

Sibley stared at him above his wilted tie. “Well,” he said quietly, “I don’t know whether to express their opinion, but of course we have talked it over, and I think I can say I have never seen anything like it.”

Thayer looked down scornfully, turned on his heel, and walked away.

* * * * *

As the defendants arrived for the afternoon session and the courtroom filled, Rosina and Dante were allowed briefly inside the cage. While Sacco talked to his wife, Vanzetti rumpled the boy’s hair playfully, his deep eyes glowing, a smile wrinkling across his face. The jury was brought in, polled, and then retired. The defendants were again led away. Lawyers, reporters, and most of the spectators went outside. Those wise in the ways of juries did not expect a verdict until after the evening meal. Sheriff Capen predicted five hours. It was then three o’clock.

Much in the preceding weeks had seemed a legal game, but now the verbiage had been swept away, leaving nothing but the bone-bare interlude like time suspended, a feeling somehow intensified by the paper-littered courtroom and the ticking marble-faced clock and the summer brightness filtering through the maple trees.

* * * * *

From the courtroom the sheriff led the jurymen down the corridor to a room on the left with the word jury stenciled on the frosted glass of the door. He closed the door behind them and locked it. They found themselves alone in a room containing nothing but a long table and twelve leather-cushioned chairs. Another door at the side led to the lavatory. John Dever noticed that all the doorknobs had the county seal embossed on them.

In their six weeks of close association the twelve men had developed a sense of camaraderie that would bind them together for the rest of their lives. Over thirty years later, Dever, destitute in a veteran’s hospital, would find himself visited by Atwood and Gerard, and there again they would talk over the case. But in this first moment of being alone no one quite knew how to begin.

Dever finally suggested that first of all they take an informal ballot, nothing binding, just to get an idea how they felt. Sitting around the table, each marked a slip of paper and handed it down to Ripley who, as foreman, occupied the end seat. Dever believed the defendants guilty but he voted for acquittal on the first ballot to open up a discussion. The vote was ten to two for conviction. “Then,” Dever told a reporter long afterward, “we started discussing things, reviewed the very important evidence about the bullets, and everybody had a chance to speak his piece. There never was any argument, though. We just were convinced Sacco and Vanzetti had done what the prosecution had charged them with.” The Winchester bullet taken from Berardelli’s body had, they felt, been fired from Sacco’s pistol. And the same three kinds of shells that Thomas Fraher had picked up in front of Rice & Hutchins had been found in Sacco’s pocket. Seward Parker remarked that you couldn’t depend on the witnesses—“but the bullets, there’s no way of getting round that.” Alfred Atwood agreed with him. John Ganley was impressed by what Reed, the Matfield gate-tender, said about seeing Vanzetti at the crossing. The twelve did not even bother to ballot again. They talked over various aspects of the case but no longer debated guilt or innocence. Someone suggested that they ask for a reading glass to examine the bullets. A deputy brought them one. It would have been possible for them to bring in their verdict at the end of the afternoon. They decided, however, that it would look better if they waited until after supper. Shortly after six Judge Thayer sent them out to eat. By half-past seven they were back.

The shadows of the trees and the buildings were long across the High Street, but the setting sun brought no relief from the heat. A scattering of spectators waited in the courtroom. There were groups of white-shirted figures on the steps, on the grass, on the sidewalk across the street, restless groups that joined together, broke apart, or receded in the direction of Dedham Square. Always there was a corporal’s guard of newspapermen to keep a careful eye on the upper rear window where, behind the plate glass, the overhead light had now been turned on.

At 7:55 Deputy Sheriff Fales heard a triple knock on the jury-room door. It was sharp, final, not the tentative knock meaning that a reading glass or some such thing was wanted. He unlocked the door and Ripley told him the verdict was ready. Fales’ face kept its professional impassivity. He took the message, locked the door again, then went downstairs to telephone the warden at the jail. To the newsmen who looked at him questioningly as he passed, he nodded.

A few minutes before, a slight breeze had sprung up. Harold Williams, the McAnarneys, several state troopers, and deputy sheriffs were standing near the columns enjoying the coolness when someone came out and whispered the news. An invisible telegraph seemed to flash the word through Dedham. The white-shirted groups on the grass dissolved, the loungers vanished, from all directions running figures converged on the courthouse. The High Street echoed with footsteps. Upstairs the courtroom windows suddenly blazed with light.

In the ten minutes that it took to bring the defendants over from the jail the gates had been closed and a guard of troopers thrown around the courthouse. On the steps a crowd that by now stretched across the street forced its way up to the iron barrier. Those who had gone up to the courtroom earlier were allowed to stay, but, except for the lawyers and the newspapermen, no one else was admitted.

Sacco and Vanzetti were brought in through the side entrance, taken up the back stairs, their handcuffs removed, and the door of the cage closed behind them. Sacco looked pale, almost ill. Vanzetti spoke a few words to him, a frown scoring his forehead. Rosina sat close by, making quick birdlike movements, managing to smile each time her husband glanced at her.

The pause before the jury entered the room was so oppressive that it became almost tangible. Inside the bar enclosure the lawyers waited, Moore fiddling with a pencil, his hair dank. The deputies stood at the entrances, the stenographers had their notebooks open, Judge Thayer sat in his place. From time to time everyone in the courtroom glanced at the twelve empty seats flanked by the American flag. Then the door opened.

The jurors filed in, their eyes fixed on the floor. Seeing their mood, Tom McAnarney raised his arm in a gesture of despair. The lines between Vanzetti’s eyes were like cords. Sacco glanced from one face to another as the jury passed.

The jurors settled in their seats. Judge Thayer nodded obliquely at Clerk Worthington who, precise and impersonal, asked them if they had agreed on a verdict. Then, scarcely waiting for the foreman’s reply, he called out “Nicola Sacco.” Sacco rose to his feet as if he were in a trance, and Worthington’s singsong voice continued:

“Hold up your right hand, Mr. Foreman; look upon the prisoner. Prisoner, look upon the foreman. What say you, Mr. Foreman, is the prisoner at the bar guilty or not guilty?”

Ripley’s voice was like a croak as he spoke the one word. “Guilty.”

“Guilty of murder?” Worthington went on.

“Murder,” Ripley answered him.

“In the first degree?”

“In the first degree.”

While the impact of the verdict was still in transit, Worthington rapidly repeated the formula for Vanzetti.

“What say you, Mr. Foreman; is Bartolomeo Vanzetti guilty or not guilty of murder?”

“Guilty,” Ripley croaked again.

“In the first degree, upon each indictment?”

“In the first degree.”

“Hearken to your verdicts as the Court has recorded them,” Worthington hurried on, his words falling limply in the hush. “You, gentlemen, upon your oath, say that Nicola Sacco and Bartolomeo Vanzetti is each guilty of murder in the first degree upon each indictment. So say you, Mr. Foreman? So, gentlemen, you all say?”

There were murmurs of “We do, we do,” from the jury box. Vanzetti stood in the cage, his arm still raised in the air. Then suddenly Sacco’s voice rang through the courtroom: “_Sono innocente!_”

“_Sono innocente!_” he shouted again, and behind the cage Rosina cried loudly, ran to him breaking through the ring of guards and throwing her arms around his neck. Her hat fell off and her copper-red hair tumbled about her neck. “You bet your life,” she babbled. Then she cried out as if overwhelmed, “What am I going to do? I’ve got two children. Oh, Nick. They kill my man.” She clung to him sobbing, burying her face in his neck, the torrent of her words unintelligible. Sacco stood upright, paler than ever, stroking her head and occasionally whispering to her. Vanzetti, next to them, said nothing, but his face was drawn with sympathy. Moore tried gently to disengage her. Finally a policeman removed her from Sacco’s shoulder and led her away.

Judge Thayer nodded to the clerk for adjournment. No one was even aware of his few words of thanks to the jury.

“They kill an innocent men!” Sacco called out in a shaken voice as judge and jury were leaving. Several of the jurymen looked back at him but none of them paused. “Don’t forget. Two innocent men they kill!” he shouted at them.

Within ten minutes the police and deputies had delivered the defendants back to the jail. On their way there the loiterers on the courthouse steps pushed forward and Sheriff Capen threatened to draw his gun if they came any closer.

Now the darkened streets were as empty as the courtroom. Lawyers, deputies, public, all had gone except Tom McAnarney, who was rummaging among some papers on the oak table. As he closed his brief case he noticed Assistant District Attorney Williams in the doorway, and observing the customary legal etiquette he stepped toward him with extended hand.

“Congratulations,” he said, “on a brilliant victory.” Then he noticed that the other’s face was wet with tears.

“For God’s sake, don’t rub it in,” said Williams, without taking his hand. “This is the saddest thing that ever happened to me in my life.” And with the tears still streaming down his cheeks he walked on through the courtroom.

FOOTNOTES:

[10] The two shells that had not been tampered with during the Plymouth trial were admitted in evidence at Dedham after several witnesses claimed to have seen what they thought was a shotgun protruding from the rear of the getaway car.

[11] Long after the trial Sacco admitted privately to Thompson, his later counsel, that he was carrying the Colt that night “because we were at war with the government.”

[12] During the trial Ross’s wife gave birth to a son. To the immense delight of the judge, he was named Webster Thayer Ross. Katzmann became the child’s godfather. As it did for Mrs. DeFalco, the calling of court interpreter eventually proved too much for Ross: In 1926 he was sentenced to the Middlesex House of Correction after pleading guilty to attempting to bribe a judge.

[13] Leon Mucci, the deputy from the district that included Torremaggiore.