We have read the full decision in which Judge Webster Thayer, who presided at the original trial, renders his decision against the application for a new trial, and we submit that it carries the tone of the advocate rather than the arbitrator. At the outset he refers to "the verdict of a jury approved by the supreme court of this commonwealth," and later he repeats that sentence. We respectfully submit that the supreme court never approved that verdict. What the court did is stated in its own words thus: "We have examined carefully all the exceptions in so far as argued, and, finding no errors, the verdicts are to stand." The supreme court did not vindicate the verdict. The court certified that, whether the verdict was right or wrong, the trial judge performed his duty under the law in a legal manner. The supreme court overruled a bill of exceptions, but expressed no judgment whatever as to the validity of the verdict or the guilt of the defendants. Judge Thayer knows this, yet allows himself to reer to the verdict as "approved by the supreme court."
We submit, also, that Judge Thayer's language contains many innuendos which surely are unfortunate in such a document. The petition for a new trial is based in part on the afidavits of two men, Letherman and Weyand, connected respectively with the United States government for 36 years and eight years, and both now holding responsible positions out of the federal service. Judge Thayer says that one of these men "seems for some reason to be willing to go the limit in his affidavits against the government of the United States," and he refers to "prejudiced affidavits, which appear to be quite easily obtained nowadays." The changes are rung on certain phrases also, as "fraudulent conspiracy between these two great governments," meaning the governments of the United States and Massachusetts. The judge asserts a conspiracy charge which was not made by counsel for the defense; he asks "who pumped this curiosity into Madeiros"; he compliments the prosecution and refers slightingly to counsel for the defense.
We submit that evidence, if any, in the files of the Department of Justice having any bearing on this case ought to be examined in open court, or examined in private by the United States attorney general and reported upon by him before this case shall finally be decided. We have no idea what the files may contain. Mr. Weyand said in his affidavit: "The conviction was the result of cooperation between the Boston agents of the Department of Justice and the district attorney." We do not know that this is true, but we know there was cooperation; the department and the attorney joined in placing a spy in the cell next to Sacco's, and the prosecution admitted the fact in court.
Now as to Madeiros: A criminal with a bad record, true, and under sentence of death. But the government relied in part on one of his confessions to convict him of a murder. His evidence was accepted against himself when his own life was at stake. His evidence now is offered in behalf of two other men whose lives also are at stake. We submit that Madeiros should be placed on the stand in open court, facing a jury and a judge, and subjected to examination and cross-examination. He may be lying, but the criterion here is not what a judge may think about it, but what a jury might think about it. The question is, Would the new evidence be a real factor with a jury in reaching a decision?
We submit that doubt is cast on the verdict of the jury by the important affidavit made after the trial by Captain C.H. Proctor of the state police. On the stand, testifying as an expert, his evidence was understood by the jury and the judge to be that the fatal bullet issued from Sacco's pistol. Careful examination of the record discloses curious facts. Captain Proctor did not here reply to direct questions. His affidavit states what the record implies, that a device was fixed up in advance for dodging direct answer to a direct question. His replies were understood to mean that he believed the bullet came from that weapon. He allowed that impression to go abroad. But his affidavit contradicts that testimony. Now, when the supreme court dealt with that point it expressed no opinion as to whether or not an "ambiguous answer" had been arranged to "obtain a conviction." The court ruled only that the trial judge had decided that no such prearrangement had been made, and that the supreme court could not "as a matter of law" set aside the ruling of the trial judge.
For these and other reasons we hope that the resources of our laws will prove adequate to obtain a new trial. Let it be remembered that the new trial is asked for on the basis of evidence never before the supreme court previously. The court has ruled on exceptions to the old trial, never on all evidence for a new one. If on a new trial the defendants shall again be found guilty we shall be infinitely better off than if we proceed to execution on the basis of the trial already held; the shadow of doubt which abides in the minds of large numbers of patient investigators of this whole case will have been removed. And if on second trial Sacco and Vanzetti should be declared guiltless everybody would rejoice that no monstrous injustice shall have been done. We submit these views with no reference whatever to the personality of the defendants, and without allusion now to that atmosphere of radicalism of which we heard so much in 1921.
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