Boston a novel
and testified that Lola had spoken to no man in or near an automobile.
A policeman and a reporter testified that she had told them she had not
seen the bandits. Harry Kurlansky, a small shopkeeper of Quincy, had
talked with her on his doorstep and heard her tell how the police were
hounding her to testify against Sacco and Vanzetti. “‘The government
took me down and they want me to recognize those men,’ she says, ‘and
I don’t know a thing about them. I have never seen them and I can’t
recognize them.’”
That testimony looked so bad for Lola, it was one of the times when
Judge Thayer felt it necessary to jump to the rescue. He began to
cross-question the witness: why hadn’t he set to work as a good
citizen to find out who it was that was trying to make Lola give false
testimony? Such an obvious thing for a small shopkeeper, a foreigner in
a New England town, to tackle the police and the district attorney’s
office, and make them stop framing a witness! Said the judge, “Did you
attempt to find out who this person was who represented the government
who was trying to get her to take and to state that which was false?”
Naturally Kurlansky was taken aback by such a question, and could only
say, “Well, it didn’t come into my mind. I wasn’t sure, you know. It
didn’t--” The judge pinned him down, as to why he didn’t think of it,
why he didn’t do it--thus leaving him completely discredited before
patriotic jurors, who gave all their spare time to supervising the work
of police chiefs and district attorneys.
VI
Presiding over a murder trial is a complicated and exacting business.
Common sense and humanity have nothing to do with the procedure; it
is a matter of rules and decisions, millions of intricate and subtle
details, the interwoven and organized history of the trials which have
been held in New England for three hundred years, and in Old England
for twice as long. All this you have to have at your finger-tips, for
each decision must be rendered immediately, you cannot take it under
advisement and look up the precedents overnight. Your reputation
depends upon your decisions being such that the highest court,
reviewing your work, will sustain you. The strain is incessant, and may
last for many weeks; the rules allow ten days’ rest to a judge after
each ordeal.
“Web” Thayer had been playing this game for many years, and knew all
the tricks; including the one of favoring his own side while seeming to
be impartial. His spoken words would go into the record, to be studied
by the higher judges; but his manner would not go in--so the art was to
keep his words fair, and do the damage otherwise. Every time Swenson or
Moore would make an objection, “Web” would turn and look at him over
his spectacles with a kind of ironical curiosity. “What is this that
has come out of the wild west to teach us how to conduct a court in
Massachusetts?” Then his eyes would turn to the jury, and give half a
wink; with a bored drawl, he would say, “Objection overruled,” and jury
and court officials would be all one grin.
Within its narrow limits the judge’s mind was quick and cunning. He was
instantly on the alert to spoil any advantage his enemies were gaining,
and ingenious to find reasons to interrupt, to block questions, to
bar out evidence and confuse witnesses. Frequently he sat with some
of the prosecutors in public places, and he always knew what the
prosecutor was aiming at, and if he missed a point, would prompt him.
Once, realizing that he had gone too far, he apologized blandly: “I
am always telling the district attorney what to say.” The naïve court
reporter put that into the record!
And later came the incident of the cap which had been picked up at the
scene of the crime, and which the prosecution sought to identify as
Sacco’s. It was too small for him, but the jury would overlook that.
When the son of Sacco’s employer was on the stand, Judge Thayer tried
to get him to say that this cap resembled Sacco’s. Naturally, when a
man runs a factory with many workers, he can’t remember the details of
all the caps they wear; young Kelley was embarrassed, not liking to
displease a great judge, but he had to say, “I can’t answer it when
I don’t know right down in my heart that that is the cap.” “Web” was
determined to get something more damaging than that; and at the same
time he tried to fix it so that his questions would seem to be coming
from Assistant District Attorney Williams. Said the judge, “I would
like to ask the witness one question: whether--” then he turned to Mr.
Williams: “I wish you would ask him, rather.”
The defense lawyers tried to break up this game, but “Web” stuck to it:
“I would rather it came from Mr. Williams. Will you put that question?”
The somewhat slow Mr. Williams--“Web” came to hate him bitterly for
this and other faults--asked the witness whether the cap was “alike in
appearance to the cap worn by Sacco.” The witness replied, “In color
only,” which would seem clear enough; but “Web” refused to be defeated.
Said he, “That is not responsive to the question”--meaning, of course,
that it wasn’t what he wanted. He went on, telling the witness what
to say: “In its general appearance it is the same.” Those words came
from the just and upright judge, and the witness would have had to be
very rude indeed to contradict them. “Yes, sir,” he said. When the
defense objected to this singular method of “framing” evidence in open
court, the judge made it all right by directing the court reporter to
falsify the record. “You may put the question so it comes from counsel
rather than from the Court.” Mr. Williams then obediently put the
question, and the witness obediently answered again. But the court
reporter, whether from stupidity or malice, failed to take the judge’s
instructions, and copied out the whole dialogue, and there it stands in
cold print, to be handed down to the scorn and fury of all future times.
And this partisanship and cunning combined with the cheapest vanity and
craving for display! The photographers were constantly making pictures
of Judge Thayer, and he was never too busy to pose for them. On the
front page of the papers you saw Judge Thayer sitting on the bench
with a legal tome open before him; Judge Thayer with a palm leaf fan
standing in front of the court-house; the twelve gentlemen of the jury
being entertained by a victrola, with Judge Thayer in the center of the
picture.
And then, sitting in his chambers, spitting on the floor, and talking
about the case with Tom, Dick and Harry; with court officials,
interpreters, policemen, newspaper reporters, photographers--incredible
as it might seem, even with ladies of social prominence who were
there as friends of Sacco and Vanzetti. So furious was his hatred
against these “anarchistic bastards,” he was not content to send them
to the electric chair, but must throw mud at them on their journey.
To Cornelia Thornwell it seemed that the poor old man had literally
gone out of his mind; so also it seemed to dignified “blue-bloods”
when she told them what was happening. But what could be done about
it? The Commonwealth makes the proud boast that no judge has ever
been impeached. Were they going to break that record, tarnish that
scutcheon, for the sake of two Italians who were anarchists, infidels
and draft-dodgers, even if they were not bandits and murderers?
VII
Carlos E. Goodridge to the stand: the man who had managed to exchange
a jail sentence of several years for aid in sending Sacco to the
electric chair. Judge Thayer knew all about that situation; and just as
Swenson had predicted, he refused to permit any questions to be asked
of Goodridge, to reveal the fact that he had pleaded guilty to larceny
in Massachusetts. Moreover, the judge called the lawyers to the bench
while he was discussing the matter, so that the jury might have no hint
that they were listening to the testimony of a crook. Thayer would not
even permit the discussion to get into the record, and when he saw the
court reporter starting to take down his words he exclaimed, “Get the
hell out of here!” So the proprieties were preserved, and the glib and
plausible Goodridge took the stand, and told the trusting jury how he
had run out of the pool-room, and seen the bandit car go by, close to
the curb, and how a bandit “poked a gun over towards” him, and this man
was Sacco and nobody else.
The defense was hog-tied and helpless. Concerning the rest of
Goodridge’s record, the fact that his very name was an act of perjury,
they had no evidence. The court-room rang with the cries of the several
fine women whom Erastus Corning Whitney had married and betrayed, of
the owners of horses he had stolen, of others whom his glib tongue
had swindled; but the fates which held Sacco and Vanzetti at their
choice allowed no sound to be heard. When later these sounds had been
duly transcribed upon legal paper, and sworn to before notaries, and
laid before Judge Thayer in the form of a motion for a new trial,
that Daniel come to judgment would repeat his deadly formula: “Motion
denied!” When the matter was carried before the Supreme Judicial Court,
that august body would apply its vast learning to the problem, and
decide, first, that the failure to let the jury know of Goodridge’s
record was not ground for reversal, and second, that the discovery of
new facts about Goodridge was not basis for a new trial. “Decision
sustained.”
Blocked and thwarted at every turn! Police officers took the stand to
tell how witnesses had identified Sacco and Vanzetti in the Brockton
police station immediately after their arrest; but when the defense
tried to ask them about witnesses who had refused to identify, “Web”
Thayer held up his mighty hand and cut him short. No witness could be
asked about what any other witness might have said! By this device
the defense would be kept from using the trial proceedings to fish
for evidence. The bare idea that they should try to do it was so
preposterous that both the judge and the jury burst out laughing.
Again the voices shrieked. Roy Gould, the salesman of shaving paste,
the man with the bullet hole in his overcoat, who had been within ten
feet of the bandits, and would swear that Sacco was not the man! Mrs.
Kelly and Mrs. Kennedy, the only persons who had had an extended view
of the driver of the car, and whose written statements that he was
not Vanzetti were in the hands of the district attorney! All those
witnesses who had been taken to the police station by Henry Hellyer
and Captain Proctor, and had identified photographs of other bandits,
but had refused to identify Sacco and Vanzetti--in spite of the posing,
and pulling down of caps over the eyes, and pretending to aim pistols!
So many voices crying warnings, filling the court-room with their
clamor--in vain!
VIII
In the papers Cornelia read news of great concern to her family; the
demurrer to the suit of Jerry Walker had been overruled; the last
bar was down, the tremendous case was to be tried out before a jury.
“Fifteen Million Dollar Conspiracy Charge!” said the newspapers. To
Cornelia it meant a family agony; all three of her sons-in-law, two
of her nephews-in-law, two or three cousins, were going to have to
take the witness stand, and be questioned for weeks and months as to
the details of their business procedures. Jerry Walker’s lawyers had
not minced words in setting forth what they expected to prove: the
great bankers, headed by Rupert Alvin and Henry Cabot Winters, had
“entered into a secret combination and conspiracy to carry into effect
by their combined power and influence, by duress of the plaintiff, by
fraudulent concealments, false representations and by wrongful, illegal
and fraudulent means which are hereinafter stated with certainty