by Howard Fast
When he had answered that question, he more quickly took the next step. The consequences implicit filled him with fear for many days and weeks. He had fought hard for all the success that was his, and in the course of this struggle, he had faced the necessity of conquering a new land, a new tongue, a new people, a new shame, a new contempt; and all of these things, he had conquered.
When he made his decision he knew full well that he might be surrendering all he had won and achieved; nevertheless, he said to himself quite plainly and forth-rightly, “It is too difficult to live in the world as a lie. A lie can exist as a man, but it makes me uncomfortable. Perhaps in time I would have been a very important judge or a very rich lawyer. What I will be now, I have no notion whatsoever, but I will be less uncomfortable.”
Whereupon, he sat down and wrote his essay on the Sacco and Vanzetti case.
All of this he remembered now as he looked at the youthful faces and composed his thoughts and arranged his notes, so that he might begin his lecture. He looked up at the clock over the door, and noticed that it was now just one minute after nine o’clock. He cleared his throat, nodded his big head, and tapped with the point of his pencil upon the speaker’s stand.
“So we begin,” he said, “the last of our lectures concerning the theory of evidence. Over the past weeks, we have dealt with a number of cases taken from what one might call the legal hall of fame—sometimes infamy. All of these cases belong to the past. Today, however, I presume to discuss a case which belongs to the present. The fact that today is the twenty-second of August, makes this particular situation, as well as this case I have chosen, a most important matter. Today is the day appointed by the Governor of this Commonwealth for the execution of Sacco and Vanzetti, the two Italian agitators who await their end in prison in the death house.
“To discuss the evidence upon which these two men were convicted, so few hours before their sentence of death is carried out, might be considered by some as a tactless and impermissible procedure. However, I have not embarked upon this course thoughtlessly, and I consider it neither tactless nor impermissible. A study of history must deal with the living as well as the dead. A good lawyer is a man consciously a part of the motion of history.”
“It is also particularly fitting that such a discussion be the concluding section of what has been known as the Roger Williams Memorial Series. All too often we take and accept a name with neither a memory of its past nor any particular inquiry into its origin. But it is precisely because Roger Williams dedicated his life to resistance against any interference, whether by the laws of the Church or the State, with the conscience of men, that he has been remembered and will be remembered so long as this country shall endure. This places a certain responsibility upon anyone who presumes to take part in these Williams lectures. Freedom of conscience is more than a dead phrase. It is a living way of life which must be fought for relentlessly and unremittingly. Terrible hazards lie in the path of anyone who embarks upon this struggle for human dignity; however, the rewards are commensurate with the venture.”
“Today is not like other days. It is like no other day which I can remember in my life. Today is a day which has been singled out to be remembered and to be made memorable by a sad blow against all who love justice and believe truly in man’s freedom of conscience. Thereby, what I am going to say to you today assumes special importance.”
The Professor looked around the lecture room now, letting his eyes travel from face to face. Almost every one there gave some evidence of the sense of urgency and crisis which he had communicated to them. He had also communicated an additional factor to himself, for he was tense all over, and he could feel the moisture oozing out of his skin. He knew from experience that before he finished lecturing, he would be soaked with sweat, tired, used up. He began to speak now quite slowly, almost haltingly.
“I wish to begin by reviewing some of the facts of this case. We cannot, of course, in the time allotted to us, have a full recapitulation of it. However, I am sure that you have not remained uninformed on this matter. Our problem here is to consider the events in the light of certain rules and practices of evidence. This, we will attempt to do.”
“As you know, the events which led to this pending execution, began a little more than seven years ago, on the fifteenth of April, in the year 1920, in the town of South Braintree, Massachusetts. At that time, Parmenter, a paymaster, and Berardelli, who was the paymaster’s guard, were shot and killed by two armed men. The weapons used were pistols. The paymaster and the guard were carrying two boxes which contained the payroll of the shoe factory of Slater and Morrill, which payroll amounted to $15,776.51. When the double murder occurred, the money was being carried from the shoe company’s office building to the factory, along the main street. Simultaneously with the murder, a car containing two other men, approached and halted at the spot, whereupon the thieves threw the payroll money into the car, leaped in, and drove away at high speed. After two days had passed, this car which had been used in the robbery, was found abandoned in the woods some distance from South Braintree; and the police discovered tracks of a smaller car leading away from that spot. In other words, a separate car had met the murder car, taken on the criminals, and driven them away to safety.”
“At this very time, the police were investigating a crime of like nature in the town of Bridgewater, not far away. The two crimes were linked by the fact that, in each case, a car was used, and in each case, observers expressed the opinion that the criminals were Italians.”
“Thereby, we have before us a situation where the police do have certain clues as to the perpetrators of a crime; they are looking for an Italian who owns a car; since in one of these crimes, the Bridgewater crime, the car had driven away in the direction of Cochesett, the police accepted the not unreasonable assumption that the Italian who owned the car might be living in that town.”
“I must interpose at this point, the fact that such a presumption would have been applicable to any New England industrial town; since there is no industrial town in this state which does not have a considerable Italian population, and since the very law of averages guarantees that at least one of the Italian residents would own a car. But this did not deter the police, who discovered in Cochesett, an Italian named Boda, who owned such a car.”
“Eliminating some of the details, we come to a garage owned by one Johnson, where Boda’s car was found—having been brought there for repairs. The police instituted a watch, to determine who would call for the car. On the night of May fifth, about three weeks after the original crime, Boda and three other Italians did, in fact, call.”
“At this point something must be said of the framework, the milieu in which these events occurred, and something of the world as it existed at that time in terms of an Italian radical. I say an Italian radical, because this is an accurate description, philosophically, of both Sacco and Vanzetti, whether we refer to them as anarchists, as communists, or as socialists. In any case, they are radicals. At that time, in the spring of 1920, the life of a radical was a most uneasy life. Attorney General Palmer had undertaken proceedings for wholesale deportation of reds. Actions against radicals of foreign extraction were particularly savage, and very often these actions were taken in such terms as one finds difficult to accept today. For example, and pertinent to this inquiry, is the case of one Salsedo, an Italian, a radical, and a printer, who, in the spring of 1920, was held incommunicado in a room that was one of the offices of the Department of Justice—on the fourteenth floor of a building on Park Row in New York. The Italian Boda, who owned the car, and his comrades, were friends of the printer Salsedo. When they learned, on the fourth of May, that the smashed body of Salsedo had been found dead on the sidewalk outside of the building on Park Row, after having fallen by force or accident, fourteen stories, they felt that a threat against themselves was imminent. They had radical literature which they felt the necessity to hide. There were friends of theirs who they felt were in danger and must
be notified. In order to do these things, Boda’s car would be helpful, and Boda and three friends called to see if the car was ready. They were told that the car was not ready, and no sooner had they left than Mrs. Johnson, the wife of the man who owned the garage, notified the police.”
“Sacco and Vanzetti were two of the men who had come to call for the car with Boda. After leaving the garage, Sacco and Vanzetti got on a street car. A police officer boarded the car with them, and arrested them on the car. They appeared to have no notion as to why they were arrested; they made no resistance; they went with him quietly and peaceably.”
“There, in so many words, we have a picture of the situation which began a series of events which, lasting through seven years, have brought these two unfortunate men to where they are today.”
“Until now, I have spoken of the crime. Even the simplest crime becomes exceedingly complex when approached legalistically. However, the question which I desire to deal with today, has less to do with the nature of the crime than the nature of the evidence. I am sure you have noticed by now that the problem of evidence appears to be a fairly simple one. It consists in the identification of Nicola Sacco and Bartolomeo Vanzetti as two of the four-man gang in the car, or on the street, when the payroll was stolen and the murders were committed. But before we get to details of evidence, it must be noted that at the time of their arrest, Sacco and Vanzetti spoke English very poorly. Neither of them, at the time, could make himself clearly understood in the English language, nor was either of them capable of comprehending the meaning of English directed at him and spoken quickly. In the seven years since then, this situation has changed, and as prisoners, both of these men have applied themselves to the language and have, to a large extent, mastered it. However, at that time, they often misunderstood questions put to them, and answers which they gave were misinterpreted. The court interpreter who was used, indulged in practices which raise grave doubts as to his honesty. Sacco and Vanzetti were brought to trial more than a year after they were arrested. The trial continued for seven weeks. On June 14, 1921, these two men were found guilty of murder in the first degree.”
“I said before that the main issue of evidence was the identification of Sacco and Vanzetti as two of the murder gang. During the course of the trial, fifty-nine witnesses testified for the prosecution, for the Commonwealth of Massachusetts. Their testimony included statements that they had seen the defendants in South Braintree on the morning of the murder, that they had recognized Sacco as one of the murderers, and Vanzetti as one of the people in the car. On the other hand, witnesses for the defense provided both Sacco and Vanzetti with alibis. Sworn witnesses for the defense testified that on April 15, Sacco was in Boston, making inquiries concerning a passport to Italy. These witnesses are supported in their testimony by an official of the Italian consulate, who deposed that Sacco had visited the consulate in Boston at 2:15 p.m., the day that the murder took place. Witnesses for Vanzetti testified that on April 15, the day the murder took place, he was pursuing his trade as a fish peddler, a goodly distance from South Braintree, at the very time the murders were committed. In other words, witness after witness gave sworn testimony to the fact that it would have been utterly impossible for either Sacco or Vanzetti to have been involved in the crime which was committed at South Brain-tree.”
“One would think, in the light of this, that questions of the guilt or innocence of Sacco and Vanzetti could not readily arise or find any support among thoughtful people. However, it is not quite so simple, nor are all people thoughtful in that sense. There were also numerous witnesses for the Commonwealth of Massachusetts, who swore under oath that Sacco and Vanzetti took part in the crime. Thus we are faced with the question of totally contradictory evidence.”
“I will not and cannot, in the time I have here, go into a witness by witness examination of the evidence or of the character of those who gave evidence. I desire instead to establish some general conditions as to the trustworthiness of evidence funneled through the eyes of angry or prejudiced people. One witness, for example, gave a most extraordinary performance in powers of observation, memory and recollection. It is worth repeating here, because it is so typical of the manner in which these identifications of Sacco and Vanzetti as the criminals were obtained. This witness’ name is Mary E. Splaine. Shortly after the crime was committed, the Pinkerton Detective Agency showed Miss Splaine some rogues’ gallery pictures of criminals, and Miss Splaine selected a picture of one Tony Palmisano as a bandit she saw in the automobile. However, fourteen months later, she identified Nicola Sacco as the person seen in the automobile.”
“The circumstances of her original observation of the crime are equally interesting. She was working on the second floor of a building across the street from where the murder occurred. When the explosion of shots sounded, she dropped her work and rushed to the window. You can imagine with what excitement such an action was accompanied. When she reached the window, the murder car was already pulling away, and thus, she had just a momentary glimpse of the car before it vanished. But fourteen months after she had that momentary glimpse, here is how she exercised her powers of recollection as a witness. I now quote from the trial record.”
“‘Question: Can you describe him to these gentlemen here?’”
“Whereupon, Miss Splaine answered: ‘Yes, sir. He was a man that I should say was slightly taller than I am. He weighed possibly from 140 to 155 pounds. He was a muscular—he was an active looking man. I noticed particularly the left hand was a good-sized hand, a hand that denoted strength or a shoulder that—’
“‘Question: So that the hand you said you saw where?’”
“‘Answer: The left hand, that was already 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 he 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.’”
“There is her description of what she had seen in that brief glimpse fourteen months before. Also, in the course of this recollection, she identified Nicola Sacco as the man she had seen. One would say, in the normal course of normal things, that such recollection under the circumstances, and such identification, is not only impossible, but to some extent, monstrous. Monstrous, that is, in a manner better explained through the experience of one Lewis Pelser. Like Miss Splaine, Pelser at first could not identify Sacco and Vanzetti, but again like Miss Splaine, he recovered remarkable powers of recall. At the time that Sacco and Vanzetti were arrested, Pelser was taken by the police to look at them. He stated that he could not possibly identify them as the criminals. Whereupon, Pelser, who worked for a shoe company closely associated with Slater and Morrill, the firm which had been robbed, was suddenly discharged and found himself jobless. A few weeks later, his power of recall freshened. He was re-employed by the same shoe company, and now he was suddenly able to identify Sacco and Vanzetti as the criminals. He was not the only one. In case after case, recollection and joblessness were intimately linked. Sometimes, when the weapon of discharge could not be employed, the District Attorney and those who cooperated with him on such matters, in their zealousness to bring the criminals to justice, used every manner of threat, both directly and by innuendo. Sometimes this procedure was so bare-faced that the proof of it remains for us in the trial record itself.”
“It is indeed a bitter thing to have to give voice to accusations such as these, and enumerate conclusions such as I have enumerated, but they are to the point in the case of Sacco and Vanzetti. The execution scheduled for tonight is the logical outcome of that incredible and merciless trial. Certain people believe with great intensity that Sacco and Vanzetti cannot be allowed to remain alive. I state this gravely but unhesitatingly.”
“Gentlemen, what, precisely, does this mean in terms of legal evidence?” It is a part of what so many of us proudly refer to as Anglo-Saxon law, that a man is not to be convicted of murder, with his life in jeopardy, unless there is indisputable eye-witness evidence. Even though people have been convicted on circumstantial evidence, the fact remains, and the gravity, the profound gravity involved in the legal taking of human life, demands such precautions. Sacco and Vanzetti were convicted through eye-witness evidence. The rub is, gentlemen, that it was impossible for the eye-witness to be telling the truth; that far more trustworthy eye-witness evidence proves that Sacco and Vanzetti were miles from the scene of the crime when it was committed, and that one piece of circumstantial evidence remains quite unshakable.