Chapter SEVENTEEN (2)

_You had a crazy judge and jury in Plymouth. You had the same crazy judge with another crazy jury in Dedham. You had a crazy Supreme Court of Massachusetts, sitting in the Court House in Boston, saying it was all right. The whole lot of them ought to be sitting in the insane asylum._

On April 15 James drove to South Braintree to re-enact the crime and demonstrate the innocence of Sacco and Vanzetti. He had planned to recruit his cast from members of the Harvard Liberal Club but at the last minute found himself speeding through the Blue Hills with only a solitary lawyer friend, Abraham Wirin, to play a bandit’s part. At South Braintree their efforts to pick up local volunteer actors drew a blank, and Thomas Fraher, the Slater & Morrill superintendent, refused to let them into the factory. They glimpsed a moment of martyrdom when the chairman of the board of selectmen, Edward Avery, tried to stop their two-man show, but the new police chief, John Heaney, waved Avery back and told them to go ahead. A few days later James returned alone to make some pencil sketches and this time, while heads gawked from all the factory windows, Avery gave him fifteen minutes to leave town. After telling Avery to go to hell, James at last had the satisfaction of being arrested and charged with disturbing the peace. He left twenty dollars as bail money—which he later forfeited—and returned triumphantly to Boston in time for lunch.

The pigmy sparrings of Grabill and James were succeeded by a battle of giants when on April 25 Dean John Wigmore of the Northwestern University Law School commandeered the front page of the _Transcript_ to answer Frankfurter’s _Atlantic_ article. Wigmore was one of the great scholars of his day, and his monumental treatise _The Law of Evidence_ remains one of the classics of Anglo-American law. A Harvard graduate of the class of 1883, he was furious that Frankfurter should have so influenced intellectual and university opinion. He did not once mention Frankfurter by name but referred to him with surly pedantry as the “plausible pundit.”

“To vindicate Massachusetts Justice, I crave the opportunity of your pages to address the lawyers of the Commonwealth,” he wrote the _Transcript_, and that paper obliged by giving his article the largest headlines since those announcing the 1918 armistice. Calling the Frankfurter article “neither fair nor accurate nor complete,” Wigmore protested that the “insinuation of a ‘picked’ jury was baseless and worthy only of unscrupulous yellow journalism.” He drummed on the fact that it was the defendants who had first brought up the subject of radicalism at the trial, asked why Frankfurter had not mentioned Sacco’s cap, accused him of saying nothing about the passport found on Sacco’s person the night of his arrest, proof in itself that the latter did not need to lie from fear of deportation. He asserted that if the Supreme Court had had any doubts of the defendants’ guilt it would have been “astute enough to lay hold of some point of pure law as a ground for ordering a new trial,” and pointed out that the defense at the time had taken no exception to Judge Thayer’s charge. Finally, he set off a series of rhetorical questions that streaked like red rockets across the _Transcript_’s staid pages:

_Is Massachusetts subject to dictates of international terrorists? Where has the like ever been known in modern history? The thugs of India, the Camorra of Naples, the Black Hand of Sicily, the anarchists of czardom—when did their attempts to impose their will by violence ever equal in range of operations and vicious directness, the organized efficiency of this cabal to which Sacco and Vanzetti belong?_

Frankfurter received a copy of the _Transcript_ in the early afternoon and sat down at once to write his answer. Frank Buxton, the _Herald_’s editor, held up the presses so that his reply could appear in the next morning’s edition. In spite of the speed at which he had to write, Frankfurter had the advantages of a controlled temper and a deeper knowledge of the case. With mock mildness he began by suggesting that Wigmore could not have read the record or the opinions of Judge Thayer with care. He pointed out that the prosecution knew all about Sacco’s radicalism before the trial began—that the prosecution’s excuse for the cross-examination did not hold. In his _Atlantic_ article he had challenged Judge Thayer’s statement that the Supreme Court had “approved” the verdict. Wigmore having denied that Thayer had used the word, Frankfurter now pointed to the passage where it occurred in the decision on the Madeiros motion. He also showed that Wigmore had accepted as genuine an erroneous passage about Sacco’s passport. He admitted not having mentioned Sacco’s cap in his article, adding that he had dealt with it in his book.

Two weeks later Wigmore came charging back with another piece for the _Transcript_ in which he accused his opponent—this time referred to as the “contra-canonical critic”—of violating Canon 20 of the American Bar Association’s Code of Professional Ethics, which condemns “newspaper publication by a lawyer as to pending or anticipated legislation,” and of being behind-the-scenes counsel for Sacco and Vanzetti. He had also determined that while Judge Thayer used the word _approved_ once, he had on eight other occasions used _affirmed_ or some similar neutral word. Insisting that the real issue was whether the trial had been unfair—“a riot of political passion” through the misconduct of the district attorney and the judge—Wigmore held that it had not been. “If the Bar of Massachusetts should take this body-blow lying down,” he concluded, “they would deserve to suffer their profession polluted and their bench bolshevized by agitators financed and led as this case has been.”

In writing to William Howard Taft some months after the executions, President Lowell of Harvard commented that “Wigmore’s ridiculous article looked as if there was nothing serious to be said on the side of the courts.”

Frankfurter was not to be drawn out by Wigmore’s name-calling. His second reply in the _Herald_ was as detached and temperate as before. He observed that Wigmore had answered nothing at all about Judge Thayer’s mistaken interpolation about Sacco’s passport. And it was still a fact, however Wigmore might feel about it, that Thayer had used the word _approved_. Frankfurter denied that the Massachusetts Supreme Court had the power the Northwestern dean attributed to it, and he concluded with the statement that “in no sense in which lawyers responsibly use the term have I ever been of counsel for Sacco and Vanzetti.”

* * * * *

Through May Governor Fuller continued his investigation to the exclusion of all other state business, sometimes spending twelve to fourteen hours a day interviewing witnesses and reading documents. Since the imposition of the death sentences he had received over 17,000 protesting letters and telegrams. Whatever he decided, he knew there would be an uproar. It was too much for one man.

On June 1, when rumor had all but settled the matter the other way, Secretary MacDonald announced that the governor had named a three-man advisory committee to go over all the aspects of the Sacco-Vanzetti case. The three were President Lowell; Robert Grant, a retired probate judge; and President Samuel Stratton of the Massachusetts Institute of Technology.

Several weeks before this appointment Lowell—possibly at the suggestion of his cousin, Bishop Lawrence—had written Fuller to the effect that men with no sympathy for anarchists were troubled by the charges that the Sacco-Vanzetti trial had been unfair and the verdict unwarranted by the evidence. But even if the president of Harvard had not so written, he would have seemed to the governor the logical first choice for any such committee. Lowell incarnated to Fuller what he most admired: status, family, academic learning, inherited assurance—the things his Packard money could not buy.

Abbott Lawrence Lowell—the Massachusetts spindle cities of Lowell and Lawrence were named for his forbears—was the tenth-generation descendant of the Bristol merchant-trader Percival Lowle who in 1639 at the age of sixty-seven had protested against the ship-money tax by sailing for America with his family of fifteen. Second of the two armigerous families in early New England, the Lowells became one of the few truly dynastic families in America. Abbott Lawrence was a worthy if not extraordinarily distinguished member of his clan. Although in his early middle years he had written the solid, pedestrian _The Government of England_ and been appointed Professor of the Science of Government at Harvard, without the prestige of his family name he would never have succeeded Charles W. Eliot in 1907 to the presidency of America’s oldest university.

He was born in 1856, but his mind was a throwback to a decade earlier than that—before the Irish invasion—when Boston was still a mellow self-contained brick town to which he and his sisters and his cousins and his aunts belonged, and which in turn belonged to them. To Lowell the mass newcomers—the Famine Irish and the later Italians and Jews—were an intrusion on the Athens of America that Boston might have been. Dismayed at the appearance among his undergraduates of increasing numbers of Polish-born Jewish day students, he at one time planned to limit their admission to Harvard to a small fixed quota.

Yet Lowell, whatever the limitations of his outlook and sympathies, inherited a rectitude impervious to external pressures. When, during the Boston police strike of 1919, Harold Laski—then a temporary lecturer in political science at Harvard—spoke out in favor of the strikers, many local Harvard graduates denounced him as a traitor and a Bolshevik and demanded his dismissal. Lowell himself had opposed the policemen and even helped furnish strikebreakers from the undergraduates, but at the hint that the governing boards were considering getting rid of Laski he announced that if they exercised this undoubted legal right his own resignation would immediately and irrevocably follow. In that same year he took the side of United States entry into the League of Nations in a debate at Boston’s Symphony Hall with the irreconcilable Henry Cabot Lodge.

When Lowell agreed to serve on Fuller’s committee he did so reluctantly. From what he had read of the case in Frankfurter’s _Atlantic_ article, he told Judge Grant, he rather expected to find that injustice had been done.

Whatever the criticisms that dogged Lowell afterward, he would always feel that he had done his duty. No man would ever be able to accuse him of temporizing with what he thought was right. The only question centered in that qualifying word _thought_. Ferris Greenslet, the well-disposed chronicler of the Lowell generations, remarked that although President Lowell had shown all his life an open mind, “it was perhaps closed at one point only, against any action or consideration tending to show a flaw in the administration of justice in the Commonwealth of Massachusetts.” John Moors, Lowell’s Harvard classmate, was blunter; he told Frankfurter that Lowell was “incapable of seeing that two wops could be right and the Yankee judiciary wrong.”

At the time Lowell acceded to the governor’s request he was in his seventy-second year, still briskly vigorous in walk and manner, although his Lowell features had begun to droop. It has been said that people as they grow older tend to resemble their dogs. Lowell, with his paunched and brooding face, seemed more and more to take on the look of the sad-eyed cocker spaniel that was the companion of his walks.

At the outset of the committee deliberations he assumed, as did everyone else except Judge Grant, that his was to be the controlling voice, and indeed the officially designated Governor’s Advisory Committee became known almost at once as the Lowell Committee. Each day when the three men returned together to the State House after lunch, Grant and Stratton would head for the basement elevator while Lowell would spring up the forty-one granite steps leading to the porticoed entrance to the executive chambers. By the time the other two arrived they would find him already seated at the head of the table preparing the agenda.

Grant and Lowell had played together as children on Beacon Hill, and Grant for all his self-effacing manner resented the automatic assumption of authority by his younger playmate. Alphabetically his name had come first on the governor’s list and he had, he felt, more right than Abbott Lawrence to head the committee even if the latter had suggested his name to the governor. For thirty years Grant had been Judge of the Suffolk Court of Probate and Insolvency. From the cut of his mustache to the cut of his voice he was a wispy man, with shoe-button eyes and an English accent once removed, part of the genteel desiccated Boston that after its brief literary flowering had been withering away for two generations under the cloud of immigrants. A light versifier and wit, in hours filched from his not-too-arduous judicial duties he had written unreadable novels about Boston that were at one time much read in the city. In 1908, while he was traveling in Italy, some of his luggage was stolen, whereupon he sent outraged appeals not only to the American ambassador but to the State Department in Washington; several years later in his autobiographical _The Convictions of a Grandfather_ he was still spluttering about Italian thievery. Before accepting his place on the committee he did have the common sense to ask Fuller what he would do if he got a divided report. The governor replied that he would then consider that there was ground for doubt.

Stratton, chosen by Fuller at Lowell’s suggestion so that the committee would not seem too much of a Back Bay family affair, was an Illinois farm boy who had made himself into a mathematician, physicist, and engineer. As president of one of the country’s great scientific schools he inhabited a Cambridge divorced from the old literary associations. It was predicted that he would be of great help in evaluating the ballistics evidence and other technical points. So far as can be determined he never opened his mouth during the sixteen days that the committee met.

* * * * *

When it turned to the ballistics evidence, the Lowell Committee was undoubtedly greatly influenced by the findings of Major Calvin Goddard, a New York expert who came to Boston at the end of May on his own initiative, bringing with him a comparison microscope and offering to make what he maintained would be conclusive tests on the shells and bullets offered in evidence at Dedham. He was accompanied by William Crawford, a reporter from the New York _World_, who called on Thompson to ask if he would cooperate in the holding of the tests. Resentful of Crawford’s contemptuous remarks about Dr. Hamilton, Thompson declined but said he would put no obstacles in Goddard’s way. Ranney, for the district attorney’s office, had no objections.

When, in preparation, Goddard demonstrated his double-image microscope to Hamilton’s supporting expert, Professor Gill, the latter was so taken with “the simplicity and accuracy of its findings” that he not only recommended its use to the governor but announced that he himself would abide by the results.

With Gill, Ranney, and Ehrmann present, as well as a stenographer and Frank Buxton and Thomas Carens of the _Herald_, Goddard examined the evidence in the clerk of courts’ office at Dedham on the afternoon of June 3. Comparing Bullet III with a test bullet fired from Sacco’s pistol, he suggested that Gill make the same comparison. “Well, what do you know about that?” Gill muttered to himself as he looked into the microscope. Goddard’s conclusion was that the mortal bullet taken from Berardelli’s body had been fired through Sacco’s pistol and could have been fired through no other. Gill, too, now became convinced of this, despite his earlier findings to the contrary. Ehrmann, examining the identifying scratches on the base of Bullet III, remarked that they were irregular and almost indecipherable compared with the scratches on Bullets I, II, and IV.

Looking at the shells through his microscope, Goddard concluded that Shell W had been fired in Sacco’s pistol and could have been fired in no other. Ehrmann, Buxton, and Carens did not find the comparison of the shells conclusive.

Soon after these tests, Gill told Thompson that he now doubted his original findings and wished to sever all connection with the case. His disavowal was followed by one from James Burns, another of the defense experts, who had recently become convinced, after studying certain microphotographs made earlier for Captain Van Amburgh, that the Fraher shell had been fired in Sacco’s gun.

Goddard’s report was forwarded without comment to Governor Fuller and to the Lowell Committee. Goddard claimed afterward that his tests would have been even more satisfactory if a sticky substance coating the bullets could have been removed. Ranney had been willing to have the bullets cleaned but Thompson refused to approve of this under any circumstances, adding that he believed there had been trickery and that the prosecution had made a substitution of bullets and shells among the exhibits. Goddard in turn said he had no opinion as to the genuineness of the exhibits, although he agreed that the scratches on Bullet III were less clear than on the others.

Before leaving Boston, in a deflating interview with Thompson, Goddard admitted that he had come to town with an adverse opinion about Sacco already formed, the result of studying Van Amburgh’s microphotographs. When he went on to express doubts about Hamilton, Thompson produced a letter that the aspiring Goddard had written the druggist-expert in 1924, asking his advice about starting a career in ballistics identification. Goddard’s reply was that he knew more about Hamilton now than he had known in 1924, and the interview ended with Thompson angrily defending Hamilton as a man of honor.

The uncertainty that eventually clouded the reputations of all the ballistics experts in the case enveloped Goddard three months after he left Boston. In Cleveland, several weeks after a bootlegger, Ernest Yorkell, was shot to death, the police arrested a Frank Milazzo with a revolver in his possession similar to the murder weapon. Two bullets from Yorkell’s body and several test bullets from Milazzo’s gun were submitted to Major Goddard in New York. When Goddard reported that one of the murder bullets and one of the test bullets had been fired from the same gun, Milazzo was charged with the murder. Unfortunately for Major Goddard, though not for his comparison microscope, Milazzo was able to prove that he had bought the revolver new a month after the shooting. Goddard attributed his mistake to a bullet mixup by the Cleveland police. Although it was never determined whether the fault was his, he had apparently compared the two murder bullets.

* * * * *

In the unconfessed course of events, Madeiros, following his second trial, would have been electrocuted during the week of September 5, 1926, but the motion and appeal based on his confession brought him a series of reprieves. Not until late in Governor Fuller’s Sacco-Vanzetti investigation did he see Madeiros personally and then for only fifteen minutes.

_In his testimony to me_ [_the governor reported_] _he could not recall the details or describe the neighborhood. He furthermore stated that the Government had double crossed him and he proposed to double cross the Government. He feels that the District Attorney’s office has treated him unfairly because his two confederates who were associated with him in the commission of the murder for which he was convicted were given life sentences, whereas he was sentenced to death. He confessed the crime for which he was convicted. I am not impressed with his knowledge of the South Braintree murders._

Madeiros gave a different interpretation of the interview to Thompson when the lawyer next visited him. Over a year later in connection with another case Thompson related on the witness stand what Madeiros had told him:

“Madeiros said that Governor Fuller began the interview by saying that he understood that Madeiros said that he thought he had been given—I think the expression was, ‘a raw deal,’ or something indicating double-dealing or improper dealing by the Government, and that Madeiros said that Officer Ferrari of the State Police had given him a promise of second-degree murder if he confessed the murder.... The Governor said if he was satisfied that any such promise had been made he would do something for Madeiros. The Governor then said, before waiting for any reply from Madeiros, according to Madeiros’ statement to me, ‘You do not know anything about the Sacco-Vanzetti case, do you?’ And Madeiros said he did, and the Governor asked him if he was in the car with the other men who committed the murder in South Braintree, the South Braintree murder, and Madeiros said that he was, and the Governor then said, ‘So you are a double murderer; I will do nothing for you.’”

Fuller unquestionably said something of the kind to Madeiros, although the meaning remains double-edged. Defenders of Sacco and Vanzetti have interpreted it as an offer to trade Madeiros a commutation for a recantation of his South Braintree confession. Others have maintained that the governor would not have been foolish enough to risk his reputation by making any such offer to an admitted liar like Madeiros.

But there is still another possible explanation. From the governor’s attitude to the later witnesses appearing at his investigation, it seems fairly certain that at this stage he had come to believe Sacco and Vanzetti were guilty. And if he felt they were guilty, Madeiros’ confession could only have seemed a fraud. When Fuller talked with Madeiros and the latter still stuck to his story, the governor might well have snapped back that he would do nothing for him. If so, it was a remark spoken in anger rather than a premeditated offer.