The case of Sacco and Vanzetti : a critical analysis for lawyers and laymen

Prefatory Note

THE Sacco-Vanzetti case has been before the courts and the public for more than six years. It has divided opinion at home and been the cause of demonstration abroad, and the end is not yet.

This is no ordinary case of robbery and murder. More issues are involved in it than the lives of two men. Had that been all, its history could never have been so prolonged. Other factors, little known and less understood, explain its extraordinary vitality. What they are, these pages seek to make clear, for the first time so far as the general public is concerned. There are no legal mysteries about the case which a layman cannot penetrate. The issues that are involved and the considerations relevant to their solution are within the comprehension of anyone who feels responsibility for understanding them.

Be.

CAMBRIDGE, MASSACHUSETTS February 15, 1927

Chapter. I

For more than six years the Sacco-Vanzetti case has been before the courts of Massachusetts. Such extraordinary delay, in a state where ordinarily murder trials are promptly dispatched, in itself challenges attention. A long succession of disclosures has aroused interest far beyond the boundaries of Massachusetts and even of the United States, until the case has become one of those rare causes célébres which are of international concern. My aim is to give in brief compass an accurate résumé of the facts of the case from its earliest stages to its present posture. The following account is based upon the record of the successive court proceedings through which the case has gone, with such references to extrinsic facts as are necessary for understanding what transpired in court. Obviously, to tell the story within limited space requires drastic compression. The necessary selection of material has been guided by canons of relevance and fairness familiar to every lawyer called upon to make a disinterested summary of the record of a protracted trial. The entire record, spread over many thousand pages, is accessible to anyone who desires to examine for himself the ground herein traveled.

At about three o’clock in the afternoon of April 15, 1920, Parmenter, a paymaster, and Berardelli, his guard, were fired upon and killed by two men armed ae nistols, as they were carrying two boxes containing the pay roll of the shoe factory of Slater and Morrill, amounting to $15,776.51, from the company ’s office building to the factory through the main street of South Braintree, Massachusetts. As the murder was being committed a car containing several other men drew up to the spot. The murderers threw the two boxes into the car, jumped in themselves, and were driven away at high speed across some near-by railroad tracks. Two days later this car was found abandoned in woods at a distance from the scene of the crime. Leading away from this spot were the tracks of a smaller car. At the time of the Braintree holdup the police were investigating a similar crime in the neighboring town of Bridgewater. In both cases a gang was involved. In both they made off in a car. In both eyewitnesses believed the criminals to be Italians. In the Bridgewater holdup the car had left the scene in the direction of Cochesett. Chief Stewart of Bridgewater was therefore, at the time of the Braintree murders, on the trail of an Italian owning or driving a car in Cochesett. He found his man in one Boda, whose car was then in a garage awaiting repairs. Stewart instructed the garage proprietor, Johnson, to telephone to the police when anyone came to fetch it. Pursuing his theory, Stewart found that Boda had been living in Cochesett with a radical named Coacci. Now on April 16, 1920, which was the day after the Braintree murders, Stewart, at the instance of the Department of Justice, then engaged in the rounding-up of Reds, had been to the house of Coacci to see why he had failed to appear at a hearing regarding his deportation. He found Coacci packing a trunk and apparently very anxious to get back to Italy as soon as possible. At the time (April 16), Coacci’s trunk and his haste to depart for Italy were not connected in Chief Stewart’s mind with the Braintree affair. But when later the tracks of a smaller car were found near the murder car, he surmised that this car was Boda’s. And when he discovered that Boda had once been living with Coacci, he connected Coacci’s packing, his eagerness to depart, his actual departure, with the Braintree murders, and assumed that the trunk contained the booty. In the light of later discoveries Stewart jumped to the conclusion that Coacci, Boda’s pal, had “skipped with the swag.” As a matter of fact, the contents of the trunk, when it was intercepted by the Italian police on arrival, revealed nothing. In the meantime, however, Stewart continued to work on his theory, which centred around Boda: that whosoever called for Boda’s car at Johnson’s garage would be suspect of the Braintree crime. On the night of May 5, Boda and three other Italians did in fact call.

To explain how they came to do so let us recall here the proceedings for the wholesale deportation of Reds under Attorney-General Palmer in the spring of 1920. In particular the case of one Salsedo must be borne in mind—a radical who was held incommunicado in a

1 See letter of Thomas O’Connor in the Boston Herald for November 14, 1926.

room in the New York offices of the Department of Justice on the fourteenth floor of a Park Row building. Boda and his companions were friends of Salsedo. On May 4 they learned that Salsedo had been found dead on the sidewalk outside the Park Row building, and, already frightened by the Red raids, bestirred themselves to “hide the literature and notify the friends against the federal police.”’ For this purpose an automobile was needed and they turned to Boda. Such were the circumstances under which the four Italians appeared on the evening of May 5 at the Johnson garage. Two of them were Sacco and Vanzetti. Mrs. Johnson telephoned the police. The car was not available and the Italians left, Sacco and Vanzetti to board a street car for Brockton, Boda and the fourth member, Orciani, on a motor cycle. Sacco and Vanzetti were arrested on the street car, Orciani was arrested the next day, and Boda was never heard of again.

Stewart at once sought to apply his theory of the commission of the two “jobs” by one gang. The theory, however, broke down. Orciani had been at work on the days of both crimes, so he was let go. Sacco, in continuous employment ! at a shoe factory

1 At the trial Sacco’s employer testified as follows about him: “* * * he was a very steady worker. He worked very steady from seven in the morning until quitting time at night and was on the job every day that you could expect any healthy man to work. There was times when he was two or three hours late on account of sickness, but outside of his getting through and talking of going to the old country, he was absolutely on the job every day.” (R. 460.)

[Author’s Note: In the interest of convenience in the frequent references to the court proceedings the following abbreviations will be used:

in Stoughton, had taken a day off (about which more later) on April 15. Hence, while he could not be charged with the Bridgewater crime, he was charged ° with the Braintree murders; Vanzetti, as a fish peddler at Plymouth and his own employer, could not give the same kind of alibi for either day, and so he was held for both crimes. Stewart’s theory that the crime was committed by these Italian radicals was not shared by the head of the state police, who always maintained that it was the work of professionals.

Charged with the crime of murder on May 5, Sacco and Vanzetti were indicted on September 14, 1920,

“R.” means “Defendants’ Exceptions in Commonwealth of Massachusetts vs. Nicola Sacco and Bartolomeo Vanzetti”; ‘““M. R.” means “Defendants’ Amended Bill of Exceptions on Motion for New Trial, 1926.” ]

+ In an account of the joint trial of Sacco and Vanzetti the details of Vanzetti’s separate trial cannot find a place, but Vanzetti’s prosecution for the Bridgewater job grew out of his arrest for, and was merely a phase of, the Braintree affair. The evidence of identification of Vanzetti in the Bridgewater case bordered on the frivolous, reaching its climax in the testimony of a little newsboy who, from behind the telegraph pole to which he had run for refuge during the shooting, had caught a glimpse of the criminal and “knew by the way he ran he was a foreigner.” Vanzetti was a foreigner, so of course it was Vanzetti! There were also found on Vanzetti’s person, four months after the Bridgewater attempt, several shells, one of which was claimed to be of a type similar to shells found at the scene of the Bridgewater crime. The innocent possession of these shells was accounted for at the Dedham trial. More than twenty people swore to having seen Vanzetti in Plymouth on December 24, among them those who remembered buying eels from him for the Christmas Eve feasts. Of course all these witnesses were Italians. The circumstances of the trial are sufficiently revealed by the fact that Vanzetti, protesting innocence, was not allowed by his counsel to take the witness stand for fear his radical opinions would be brought out and tell against him disastrously. From a verdict of conviction counsel took no appeal. The judge and district attorney were Judge Webster Thayer and Mr. Katzmann, as also in the Braintree trial. The Bridgewater conviction was played up with the most lurid publicity when Vanzetti faced his trial for the Braintree crime.

and put on trial May 31, 1921, at Dedham, Norfolk: County. The setting of the trial, in the courthouse» opposite the old home of Fisher Ames, furnished a. striking contrast to the background and antecedents: of the prisoners. Dedham is a quiet residential suburb, inhabited by well-to-do Bostonians with a surviving element of New England small farmers. Part of the jury was specially selected by the sheriff’s deputies from persons whom they deemed “representative citizens,” “substantial” and “‘intelligent.”” The presiding judge was Webster Thayer of Worcester. The chief counsel for these Italians, Fred H. Moore, was a Westerner, himself a radical and a professional defender of radicals. In opinion, as well as in fact, he was an “‘outsider.” Unfamiliar with the traditions of the Massachusetts bench, not even a member of the Massachusetts bar, the characteristics of Judge Thayer unknown to him, Moore found neither professional nor personal sympathies between himself and the Judge. So far as the relations between court and counsel seriously, even if unconsciously, affect the temper of a trial, Moore was a factor of irritation and not of appeasement. Sacco and Vanzetti spoke very broken English, and their testimony shows how often they misunderstood the questions put to them. A court interpreter was used, but his conduct raised such doubts! that the defendants brought their own interpreter to check his questions and answers. The trial lasted nearly seven weeks, and on July 14, 1921, Sacco and Vanzetti were found guilty of murder in the first degree.

1 Some time after the trial this interpreter was convicted of larceny.

Chapter II

So far as the crime is concerned we are dealing with a conventional case of pay-roll robbery resulting in murder. At the trial the killing of Parmenter and Berardelli was undisputed. The only issue was the identity of the murderers. Were Sacco and Vanzetti two of the assailants of Parmenter and Berardelli, or were they not? This was the beginning and the end of the inquiry at the trial; this is the beginning and the end of any judgment now on the guilt or innocence of these men. Every other issue, no matter how worded, is relevant only as it helps to answer that central question.

On that issue there was at the trial a mass of conflicting evidence. Fifty-nine witnesses testified for the Commonwealth and ninety-nine for the defendants. The evidence offered by the Commonwealth was not the same against both defendants. The theory of the Commonwealth was that Sacco did the actual shooting and that Vanzetti sat in the car as one of the collaborators in a conspiracy to murder. Witnesses for the Commonwealth testified to having seen both defendants in South Braintree on the morning of April 15; they claimed to recognize Sacco as the man who shot the guard Berardelli and to have seen him subsequently escape in the car. Expert testimony (the character of which, in the light of subsequent ie) THE CASE OF SACCO AND VANZETTI events, constitutes one of the most important features of the case) was offered seeking to connect one of four bullets removed from Berardelli’s body with the Colt pistol found on Sacco at the time of his arrest. As to Vanzetti, the Commonwealth adduced evidence placing him in the murder car. Moreover, the Commonwealth introduced the conduct of the defendants, as evinced by pistols found on their persons and lies admittedly told by them when arrested, as further proof of identification in that such conduct revealed “consciousness of guilt.”

The defense met the Commonwealth’s eyewitnesses by other eyewitnesses, slightly more numerous than those called by the Commonwealth and at least as well circumstanced to observe the assailants, who testified that the defendants were not the men they saw. Their testimony was confirmed by witnesses who proved the presence of Sacco and Vanzetti elsewhere at the time of the murder. Other witnesses supported Sacco’s testimony that on April 15 — the day that he was away from work — he was in Boston seeing about a passport to Italy, whither he was planning shortly to return to visit his recently bereaved father. ‘The truth of his statement was supported by an official of the Italian consulate in Boston who deposed that Sacco visited his consulate at :2.15 p.m. If this were true, it was conceded that Sacco could not have been a party to this murder. The claim of Vanzetti that on April 15 he was pursuing his customary trade as fish peddler was sustained by a number of witnesses who had been his customers that day.

——

THE CASE OF SACCO AND VANZETTI II

From this summary it must be evident that the trustworthiness of the testimony which placed Sacco and Vanzetti in Braintree on April 15 is the foundation of the case.

f. As to Sacco: —

The character of the testimony of the five witnesses who definitely identified Sacco as in the car or on the spot at the time of the murder demands critical attention. ‘These witnesses were Mary E. Splaine, Frances Devlin, Lola Andrews, Louis Pelzer, Carlos E. Goodridge.

1. Splaine and Devlin were working together on the second floor of the Slater and Morrill factory, with windows giving on the railroad crossing. Both heard the shot, ran to the window, and saw an automobile crossing the tracks. Splaine’s identification of Sacco, as one of the occupants of this escaping car, was one of the chief reliances of the prosecution. Splaine, viewing the scene from a distance of from 60 to 80 feet, saw a man previously unknown to her, in a car traveling at the rate of from 15 to 18 miles per hour; she saw him only for a distance of about 30 feet, that is to say, for from one and a half to three seconds; and yet she testified: —

The man that appeared between the back of the front seat and the back seat was a man slightly taller than the witness. He weighed possibly from 140 to 145 pounds. He was muscular, an active looking man. His left hand was a good sized hand, a hand that denoted strength.

Q. So that the hand you said you saw where? A. The left hand, that was placed on the back of the front seat, on the back of the front seat. 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. Through here [indicating] was 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 a white, peculiar white that looked greenish. (R. 114-5.)

Q. Is that the same man you saw at Brockton? A. It is.

Q. Are you sure? A. Positive. (R. 115.)

The startling acuity of Splaine’s vision was in fact the product of a year’s reflection. Immediately after Sacco’s arrest the police, in violation of approved police methods for the identification of suspects, brought Sacco alone into Splaine’s presence. (R. 121, 130.) Then followed in about three weeks the preliminary hearing at which Sacco and Vanzetti were bound over for the grand jury. At this hearing Splaine was unable to identify Sacco: —

Q. You don’t feel certain enough in your position to say he is the man? A. I don’t think my opportunity afforded me the right to say he is the man. (R. 132.)

When confronted with this contradiction between her uncertainty forty days after her observation and her certainty more than a year after her observation, she first took refuge in a claim of inaccuracy in the transcript of the stenographer’s minutes. This charge she later withdrew and finally maintained: —

From the observation I had of him in the Quincy court and the comparison of the man I saw in the machine, on reflection I was sure he was the same man. (R. 133.)

THE CASE OF SACCO AND VANZETTI 13 Then followed this cross-examination: —

Q. You now say that on reflection you feel sure he is the man? A. I feel most certain he is.

Q. You were answering in the lower court from your observation, were n’t your A. Yes, sir.

Q. From what you saw? A. Yes.

Q. Your answer now is that you feel most certain that he is? pe LES.

Q. That is not the position that you are sure beyond any doubt, is it? You are most certain now, aren’t your? A. Tam positive he is the man; certain he is the man. I admit the possibility of an error, but I am certain I am not making a mistake.

Q. Your answer in the lower court was you didn’t have opportunity to observe him. What did you mean when you said you did n’t have opportunity sufficient, kindly tell us, you did n’t have sufficient opportunity to observe him? <A. Well, he was passing on the street.

Q. He was passing on the street and you did n’t have sufficient opportunity to observe him to enable you to identify him? A. That is what I meant.

Q. That is the only opportunity you had? A. Yes, sir.

Q. You have had no other opportunity but that one fleeting glance? A. The remembrance of that. (R. 133.)

Let Dr. Morton Prince, professor of abnormal and dynamic psychology at Harvard University, comment on this testimony : —

I do not hesitate to say that the star witness for the government testified, honestly enough, no doubt, to what was psychologically impossible. Miss Splaine testified, though she had only seen Sacco at the time of the shooting from a distance of about 60 feet for from 1¥% to three seconds in a motor car going at an increasing rate of speed at about 15 to 18 miles an hour; that she saw and at the end of a year she remembered and described

16 different details of his person, even to the size of his hand, the length of his hair as being between two and 2% inches long, and the shade of his eyebrows! Such perception and memory under such conditions can be easily proved to be psychologically impossible. Every psychologist knows that — so does Houdini. And what shall we think of the animus and honesty of the state that introduces such testimony to convict, knowing that the jury is too ignorant to disbelieve?

How came Miss Splaine to become acquainted with these personal characteristics of Sacco?

The answer is simple. Sacco had been shown to her on several occasions. She had had an opportunity to study him carefully. More than this, he sat before her in the court. At the preliminary hearing in the police court she was not asked to pick Sacco from among a group of other men. Sacco was shown alone to her. Every one knows that under such circumstances the image of a person later develops, or may develop, in an observer’s mind and becomes a false memory. Such a memory is produced by suggestion. Every lawyer knows the unconscious falsification of memory due to later acquired knowledge, though ignorant of the psychology of the phenomenon. And yet Miss Splaine’s testimony was offered by the state to the jury.

Why was not Miss Splaine asked to pick out Sacco from among a group of men? If this had been done, this unconscious falsification of memory would have been avoided.

As a matter of fact “the good-sized hand” by which Splaine identified Sacco and on which, in a later affidavit, she rests her identification almost entirely, did not exist. Sacco has hands smaller than the average. (M.R. 165.) Also, since the trial it has been shown that Splaine had identified another person as the man whom she later identified as Sacco, after it appeared

1 Letter, ““A Psychologist’s Study,” Boston Herald, October 30, 1926.

that the person previously identified by her was in jail on April 15, 1920. (M. R. 180.)

2. Devlin, a little over a month after the murders, thus testified: —

He (Sacco) looks very much like the man that stood up in the back seat shooting. (R. 274.)

“Q. Do you say positively he is the man?” and you answered: “A. I don’t say positively.” (R. 275.)

At the trial, over a year later, she had no doubt, and when asked: “Have you at any time had any doubt of your identification of this man?” (R. 276) replied: “No.” The obvious discrepancy of an identification reaching certainty by lapse of time, without any additional opportunity for verification, she explained thus: —

At the time there I had in my own mind that he was the man, but on account of the immensity of the crime and everything, I hated to say right out and out. (R. 276.)!

1 The process by which casual observation of a stranger is in process of being translated into positive identification is illustrated in a recent New York case in which conviction for murder, based on tenuous identification, was reversed. In the course of his opinion the Chief Judge of the New York Court of Appeals wrote as follows: —

“Thus in a final analysis the conviction of defendant must basically rest upon the asserted similarity of his eyes to those of a man whom the witness momentarily saw looking at her through a window when she had no occasion to exercise a complete and careful scrutiny. That is a pretty small basis upon which to rest a conviction and, as we read the testimony of the witness as it proceeds from the friendly atmosphere of direct and redirect examination to the hostile one of cross-examination with its more exacting and insistent questions, it seems to us that she, acting upon a small foundation, has rather reasoned herself, conscientiously we have no doubt, into the belief that defendant is the man whom she saw at the farm and that her attempted identification is the result of a conclusion thus developed and clouded by more or less doubt and uncertainty rather than

The inherent improbability — not to say, as does Dr. Prince, “impossibility” — of making any such accurate identification on the basis of a fleeting glimpse of an unknown man in the confusion of a sudden alarm is affirmed by the testimony of two other eyewitnesses. Ferguson and Pierce, from a window above Splaine and Devlin, on the next floor of the factory, had substantially the same view as the two women. They found it impossible to make any identification.

Thus Ferguson: —

He thinks that he did testify at the inquest in response to the question “How did that man look?” as follows: — “I can’t tell it [sc] all. I only had a quick glimpse of him. He looked like an Italian with a growth of beard. It seems just as he shot he just got up from the front seat, and it seems to me he was pulling his cap over his hair.”

He did testify at the inquest in response to the question “Tf you saw a picture, could you recognize him?” as follows: — “T feel pretty sure I could not.”

Q. And you can’t recognize him now? A. No; siz, “(Ge 548-9.)

Then Pierce: —

Q. Would you be able to tell the men, the chauffeur, and the man in the front seat? A. I don’t think so. I have had pictures shown me by the state police and if it was a matter of looking at a million pictures I could n’t say. I just saw a dark man with a gun, that is all. (R. 544.)

an identification based upon reliable and decisive observations carried by a definite recollection to a conclusion whose correctness admits of no reasonable doubt. If this is a correct estimate of her testimony the conviction ought not to stand and the man be executed.” People v. Klvana, 241 N. Y. 481, 487-8 (1926).

3. Pelzer, a young shoe-cutter, swore that when he heard the shooting he pulled up his window, took a glance at the scene, and saw the man who murdered Berardelli: —

Q. How long did you stay in the window? A. Oh, about, — I would say about a minute. * * *

Q. Then what did you do? A. I seen everything happen about that time, about ina minute. (R. 157.)

This was the foundation for the following identification: —

Q. Do you see in the court room the man you saw shooting Berardelli that day? A. Well, I would n’t say it was him but he is a dead image of him.

Witness points out Mr. Sacco.

Q. Have you seen him since that time until you saw him in the court room? A. No, sir.

Witness was shown picture of him by Mr. Williams today.

Q. You say you would n’t say it is him, but he is the dead image of him? What do you mean by that? A. Well, he has got the same appearance. (R. 155.)

On cross-examination Pelzer admitted that immediately after Sacco’s arrest, on May 6 or 7, he was unable to make any identification: —

I did not see enough to be able to identify anybody. (R. 175.)

Pelzer’s inability in May 1920 to make the identification which he did make in June 1921 was confirmed by three fellow workmen, at work in the same room on the day of the murder. Two of them testified that instead of pulling up the window he took shelter under a bench, and the third added: —

Q. Did you hear him later talk about the shooting? A. I think I did, but I am not sure.

Q. What did you hear Pelser say? A. Well, I heard him say that he did not see anybody. . . . That is all. Q. Is that all you recollect that you heard him say? A. Yes,

Pelzer’s tergiversations and falsifications extracted from the District Attorney, Mr. Katzmann, the following eulogy: —

He was frank enough here, gentlemen, to own that he had twice falsified before to both sides, treating them equally and alike, and he gave you his reason. I think he added that he had never been in court before. If not, somebody has and I confused him. It is of little consequence. He is big enough and manly enough now to tell you of his prior falsehoods and his reasons for them. If you accept them, gentlemen, give such weight to his testimony as you say should be given. (R. 1130.)

4. Lola Andrews, a woman of doubtful reputation, testified that at about 11 a.m. on the day of the murders, while in company with a Mrs. Campbell, she saw an automobile standing outside the Slater and Morrill factory. She saw a “‘very light” man inside the car (concededly neither Sacco nor Vanzetti) and another man “bending over the hood of the car,” whom she characterized as a “dark-complexioned man.” She went into the factory in search of a job and at the time “had no talk with either of the men.” When she came out “fifteen minutes later” the dark man ‘was down under the car like he was fixing something” and she asked him the way to another factory. He told her. That was the whole conversation between them. After Sacco’s arrest she was taken to the Dedham jail and identified Sacco as the dark-complexioned man. She again identified him at the trial.

How came she to connect the dark man under the car with the murder which took place four hours later?

Q. Would you say that the man had a fuller or more slender face [than the man in a photograph shown to the witness]? A. I don’t know. He had a funny face. * * *

Q. Meaning by that a face that was not a kindly face, a kind of brutal face? A. He did not have a real good looking face. (R. 108.)