America’s Dreyfus Case

From its obscure beginnings the case of Sacco and Vanzetti developed into the American case of the century, the linked names echoing across the years, a symbol of man’s injustice to man. At the time of their arrest in May 1920, the pair aroused so little interest that Boston papers scarcely mentioned them in a few inaccurate back-page paragraphs as suspects in the South Braintree holdup-murders of the previous month. After their anarchist comrades had formed a defense committee a socialist newspaperman sent from New York to investigate reported back: “There’s no story in it. Just two wops in a jam.” Yet seven years later Stalin called the Sacco-Vanzetti case the most important event since the October Revolution.

Following the conviction of Sacco and Vanzetti a wave of carefully orchestrated demonstrations took place overseas. Then when the guilty verdict was not followed shortly by sentencing and execution—as would have happened in most other countries—the demonstrations faded away. For six years the case smoldered, suddenly blazing up in 1927 with the publication by Harvard Law School Professor Felix Frankfurter of an article in the Atlantic Monthly and a book, The Case of Sacco and Vanzetti. In that moment of illumination the case became a cause. Frankfurter’s was a clarion call to all liberals, all academics, all concerned citizens. Those convinced by the Harvard professor’s eloquence of the innocence of the two anarchists and the outrage of their trial—though most until then had scarcely been aware of the linked names—embraced their belief with the intensity of a religious conversion.

The belief hardened to a dogma. In 1948 G. Louis Joughin, the co-author of The Legacy of Sacco and Vanzetti, could write that “the literary verdict is unanimously sympathetic to the executed men. Prosecution, judges, and the hostile Massachusetts public majority have not in twenty years found a single literary defender of their position.” Intellectual opinion so solidified that it was not until 1958 that the first crack in the monolith of dogma appeared. Singularly enough this occurred in East Germany with the publication of Professor Johannes Zelt’s Proletarian Internationalism in the Battle for Sacco and Vanzetti. Zelt was given access to government files in Moscow and he used these to attack the bourgeois liberals by showing that the European protest movement at the time of Sacco’s and Vanzetti’s execution was organized, led, and directed from the Communist European Central Headquarters in Berlin. Quite innocently, Zelt demolished the myth of European workers rising in spontaneous indignation against American capitalist injustice.

Then in 1960 a conservative Boston lawyer, Robert Montgomery, who had spent years studying the record, made the first direct challenge to the dogma of innocence with his book Sacco-Vanzetti: The Murder and the Myth. After his rigorous analysis of the argument, anyone dogmatically asserting the innocence of Sacco and Vanzetti had a formidable antagonist to reckon with. James Rorty, an earlier Sacco-Vanzetti street demonstrator and poet of the cause, in reviewing Montgomery’s book for The New Leader wrote that it stood like a lion in the path of Sacco-Vanzetti defenders.

Two years after The Murder and the Myth a liberal New York lawyer, James Grossman, writing in Commentary, made his own independent examination of the trial evidence and concluded that Sacco and Vanzetti were indeed guilty. My own book about the case, Tragedy in Dedham, appeared that same year. At the start I believed in the innocence of Sacco and Vanzetti and had hoped finally to prove it beyond dispute. But as I progressed I encountered facts too much at variance with my presumption of innocence, particularly in regard to the ballistics evidence.

After the South Braintree murders, in which a paymaster and his guard had been shot down while carrying a weekly factory payroll, one of the workers picked up four shells near the dead guard. These he gave to the factory superintendent who in turn handed them to the head of the state police, Captain William Proctor. Two shells were Peters, one a Remington, and the last a Winchester of an obsolete type, later to be known as Shell W. Judged by its markings, Shell W could have been fired only from a Colt automatic. The medical examiner recovered four bullets from the guard’s body, marking each with a Roman numeral. Bullet III, the only bullet to have caused a mortal wound, was of the same obsolete variety as Shell W. These bullets were also given to Captain Proctor and remained with the shells in his custody. When Sacco was arrested three weeks later he was carrying a Colt automatic loaded with nine cartridges. In his pocket were twenty-three loose cartridges. Of the thirty-two cartridges, sixteen were Peters, seven US, three Remington, and six were obsolete Winchesters.

Captain Proctor told Assistant District Attorney Harold Williams before the trial that Bullet III had been fired from a Colt automatic. Whether or not it came from Sacco’s Colt he could not say, and he suggested that Williams ask him at the trial merely if Bullet III was “consistent” with being fired from Sacco’s Colt. To this he could, and did, reply that it was. When he sent a bill for $500 for his testimony and the district attorney refused to approve it, a feud developed between them.

Still nursing his grudge, Proctor some years later signed a defense affidavit, on which one of the motions for a new trial was based, stating that though Bullet III had passed through a Colt, he had found no evidence that it had passed through Sacco’s Colt. Nor indeed had he found any evidence that it had not passed through Sacco’s Colt. As Williams explained: “We felt we had to put Proctor on to identify the exhibits because he was head of the state police. He knew very little about bullets and he used the word ‘consistent’ because he wasn’t competent to testify to more than that—he wasn’t saying that this particular bullet came from that particular—Sacco’s—pistol. He hadn’t made the actual test—didn’t know how.”

In 1927 Colonel Calvin Goddard, the inventor of the comparison microscope for judging ballistics evidence, compared Bullet III and Shell W with test cartridges fired in Sacco’s Colt. Such a double-image microscope matches up the striations of a suspect shell or bullet with that of a test shell or bullet, fusing the edges of the two images. Goddard’s conclusion was that Bullet III and Shell W had been fired in Sacco’s pistol and could have been fired in no other. On looking through Goddard’s microscope two defense experts repudiated their earlier testimony.

The ballistics exhibits continued to remain in the custody of Captain Proctor until his retirement, when they were taken over by his successor, Captain Charles van Amburgh, and later by van Amburgh’s son, who took them with him when he retired. They were restored to the state police in 1959. Two years later two new experts conducted comparison microscope tests, comparing Bullet III and Shell W with the test bullets and shells fired at the time of the trial and, in addition, with bullets and shells that they then fired in Sacco’s Colt. Their conclusion, like Goddard’s, was that Bullet III and Shell W had been fired in Sacco’s pistol and could have been fired in no other.

The question has been raised whether a fraudulent bullet and shell were possibly substituted for Bullet III and Shell W. Captain Proctor, having had custody of the ballistics evidence from the beginning, was the only person who could have made such a substitution. If he had done so he might have felt guilty afterward, but in that case he would have to have known—as he did not—that Bullet III had come from Sacco’s pistol. At the time of the trial it was not realized that the markings on the base of a shell are as telltale as the scorings on a bullet, so there would have been no motive then for any shell substitution. I myself looked through the microscopes during the 1961 tests and could see how exactly Bullet III and Shell W matched up with test bullets and shells. After seeing these and after considering the additional facts of the obsolete Winchester cartridges—and the parallel variety of cartridges—found on Sacco, I could only conclude that he was guilty. Vanzetti at most possessed guilty knowledge, which would have made him an accessory after the fact.

Professor David Felix’s Protest: Sacco-Vanzetti and the Intellectuals, published in 1965, is another landmark in re-evaluation. With no emotional commitment to either side, Felix has concerned himself chiefly with the dogma in relation to the intellectuals. After reading the trial record and its aftermath of appeals and hearings, after interviewing almost everyone still living who was concerned with the case, he has concluded—although he does not specifically say so—that the men were guilty. He considers that the trial was fair, that the judge—whatever his lapses outside the courtroom—conducted himself on the bench with propriety, and that in the light of the dubious post-trial evidence produced as exceptions, “the Supreme Court and the Governor had no alternative but to uphold the verdict.”

More recently defenders of Sacco and Vanzetti have retreated to their second line of defense. In 1972 at a conference of the American Italian Historical Society, G. Louis Joughin stated that Sacco may or may not have been guilty but the principal issue in the case was the fairness of the trial. Katherine Anne Porter in her Never-Ending Wrong, published at the fiftieth anniversary of the two men’s deaths, also admitted the possibility—if not probability—of Sacco’s guilt.

Yet was the trial unfair? The question was not raised until six years afterward with the publication of Frankfurter’s article. Fred Moore, chief counsel for Sacco and Vanzetti and former general counsel for the IWW, who with his zeal and international left-wing connections transformed “two wops in a jam” to generic figures of the persecuted radical, never raised the question then or later. While the jury was still out he told the judge that no matter what the verdict might be, no one could say that the defendants had not had a fair trial. With one eccentric demurral the newspaperman who had covered the trial considered it unexceptionable. None of the jurors ever changed his mind about its fairness.

Fred Moore had been sent to Boston to take charge of the defense by the anarchist leader Carlo Tresca, after the deportation of Luigi Galleani the most conspicuous anarchist in the United States. The ebullient Tresca was one to whom the anarchists turned naturally when they were in trouble. Moore transformed an obscure case into a cause, gave it the solid foundation that Frankfurter would build on so successfully half a dozen years later. Yet before Moore left the case he had come to doubt the innocence of his clients. And Tresca, some months before his 1943 murder either by a Mafia hit man or a GPU agent, told a group at the home of Norman Thomas that Sacco was guilty but Vanzetti was not.

In 1969 the last surviving Sacco-Vanzetti counsel, Herbert Ehrmann, published The Case That Will Not Die, a compendious lawyer’s brief more significant for its title than for its 576 pages of forensic argument. The case is indeed one that will not let itself be forgotten. Articles and books continue to appear. Yet each new publication on Sacco and Vanzetti provokes the inevitable questions: What does it add to the enigma of guilt or innocence, to the social background, the matter of the fairness of the trial, to the knowledge about the two doomed men themselves?

The latest addition to the voluminous Sacco-Vanzetti literature, Brian Jackson’s The Black Flag, provides no novel answers but it is unique in several respects. Mr. Jackson, an Englishman in his fifties, had never heard of Sacco and Vanzetti until a few years ago when he came across their names while preparing a study on martyrdom. Intrigued by the reference, he took out all the books on the case he could find in Cambridge’s University Library. These he carried over to Ireland while on a holiday with his family. Absorbed by the fate of the two Massachusetts anarchists, he evolved his own account. However, he did not visit the United States until he was ready to write a looking-backward section that he entitled “Half a Century Later.”

Mr. Jackson’s detachment far from being of value, gives him a blurred perspective. He also suffers from a flawed knowledge of American history. A good copy editor might have corrected some of his incidental mistakes: The Case That Will Not Die attributed to Katherine Anne Porter; Tragedy at instead of in Dedham; the Boston “Athaneum”; Harvard’s Harry Elkins Widener Memorial Library appearing as the Charles Weidener Library; “Falls River”; Americans “playing craps”; Sacco’s grandson Spenser referred to throughout as Spencer; Guy Emprey—really the forgotten World War I author Guy Empey; half a dozen grossly misspelled Italian names; and so on. Sacco and Vanzetti in the Scales of Justice was not written by a juror but by the Massachusetts Supreme Court’s recorder of decisions. There is no such thing as a Bishop of Massachusetts, though among other denominations there is an Episcopal bishop. Charlestown Prison was not on the far bank of the Charles. The Ingwell Lecture at Harvard no doubt refers to the Ingersoll Lecture, and “si, beta, kappa” to Phi Beta Kappa. “One if by land and two if by sea” is obviously not a commonplace to English schoolchildren, for Mr. Jackson refers to the “North Church where Paul Revere rang the bell.”

Charles Lowell and A. Lawrence Lowell make sequential appearances in The Black Flag, though I am not sure whether Mr. Jackson considers there are two Harvard presidents from that family or is merely name-dropping. In any case he has President Lowell take “a very good American college” and make it into “a World university of the utmost distinction.” Lowell of course did nothing of the kind. It was Charles W. Eliot who in his long tenure as president (1869-1909) transformed Harvard from a college to a university. To come down to this century, Professor Frankfurter, while playing the role of gray eminence in the final months before the execution of Sacco and Vanzetti, was never their last counsel. Though recruited by Frankfurter, the last counsel was an inbred proper Bostonian, Arthur Hill. Robert Montgomery was not a counsel in the case.

I do not wish to be hard on Mr. Jackson, but such a proliferation of subsidiary errors casts doubt on his ability to re-evaluate this much evaluated case. His book, he claims, is not a text but an experience, and he “states the bare story as fairly as [he] can.” Unfortunately his experience and background limit him. Unfamiliarity with the Massachusetts landscape keeps tripping him up. He confuses Boston with the small shoe manufacturing city of Brockton twenty miles to the south. Of Boston he writes that “it was here that Sacco and Vanzetti were arrested, tried and executed.” As any elementary student of the case knows, they were arrested in Brockton, tried in Dedham, and executed in Charlestown. Yet Mr. Jackson, remembering the 1919 Boston police strike, clings to the notion that the “Boston Police who sought out, arrested, and built up the evidence against Sacco and Vanzetti were all ones who had replaced the older force…. It was the long arm of this rickety force which, rightly or wrongly, pinioned Sacco and Vanzetti.” As a matter of plain fact the Boston police at no time had anything to do with the Sacco-Vanzetti case. Sacco and Vanzetti were arrested by the Brockton police, previously unaware of them, and the case was prepared by the district attorney and the Bridgewater chief of police with some help from the minuscule Massachusetts state police.

When Mr. Jackson first arrived in Boston on the fiftieth anniversary of the execution he came convinced of the innocence of Sacco and Vanzetti. Once here, he concluded that the case for both innocence and guilt was stronger than he had anticipated. He gives his reasons but adds nothing to what is already known. Thanks to the Freedom of Information Act he was able to consult the state police files on the case, files that he insists on labeling as belonging to the Boston police. And in over a thousand pages of trivia he learns little more than that after the South Braintree murders a state police investigator was on the trail of Italian professional criminals, without even a notion about Sacco and Vanzetti.

A telling gap is Mr. Jackson’s failure to use the Freedom of Information Act to gain access to the FBI files. Professor Frankfurter had made his main charge—one that Mr. Jackson accepts—that “the case against Sacco and Vanzetti for murder was part of a collusive effort between the District Attorney and the agents of the Department of Justice to rid the country of these Italians because of their Red activities.” The FBI files demonstrate that there was no such collusion, that the Department of Justice was not even aware of the existence of Sacco and Vanzetti before their arrest, and that after their arrest neither cooperated nor was asked to cooperate with the Massachusetts prosecutors.

There are other such gaps. Mr. Jackson’s treatment of the ballistics evidence is scanty and inaccurate. He devotes a chapter to the verbatim cross-examination of Sacco, but fails to observe that the district attorney demolished the two men’s alibi of having gone out to collect incriminating radical literature from their friends on the night of their arrest. “Was it your intention not to take any literature on the night of May fifth?” the district attorney finally asked Vanzetti who, caught in the tangle of his own contradictions, could only agree.

Is there anything in this misfortuned book that helps to explain the Sacco-Vanzetti case? Yes, I think there is. Mr. Jackson has brought up one deep question that has merely been hinted at before and that is well worth the pondering. With only a “ripple of uncertainty” about their innocence, he wonders if it might be possible that Sacco and Vanzetti had come to believe in their own innocence even though guilty. “Might you not commit a murder and then deny it not only to the court but to yourself?” he asks. “Might you not forge a new identity in that furnace, and emerge a phoenix of our time…that guilt which self-deceives and is purged?” It could be so.