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Sacco & Vanzetti: Were They Really Innocent?

Recently, the Atlantic Monthly Online published an article by Sanders Kleinfeld in praise of Felix Frankfurter's 1927 book on Sacco and Vanzetti. The magazine has chosen not to publish my response. Editors have that right. Cut off from discussion, I recall how the Atlantic's editor in 1927 introduced readers to Frankfurter's 24-page article on Sacco and Vanzetti in its March issue.

Presuming to have a command of facts in 1927, the Atlantic editor told readers: "This paper by Felix Frankfurter [sic] is the first effort to give the public a complete and accurate resume of the facts of the case. . . . The paper represents a necessary abridgment, . . . but [is] compressed accurately and fairly by a trained and responsible lawyer."

Samuel Stern disputed this opinion in the Outlook (Sept. 7, 1927, p. 18). Stern, formerly Judge of the Superior Court of the State of Washington, perceived a fundamental flaw in Frankfurter's Atlantic Monthly article and book: " . . . Professor Frankfurter is so steeped in what he thinks are the wrongs of the laboring people that he has lost his perspective of what is right and fair, . . ." Any competent lawyer, said Stern, can find small errors in a trial ". . . and yet overlook the main facts and the main controversy."

In one notable error, Frankfurter claimed the Joe Morelli gang of Providence, Rhode Island, murdered two men at South Braintree, not Sacco and Vanzetti. When Herbert B. Ehrmann put the Morelli gang on trial for the South Braintree murders in his book (1933) The Untried Case, Edmund M. Morgan, Harvard Law School professor, reviewed it in the Harvard Law Review (Jan. 1934) and said Morgan failed to prove his case. Morgan called attention to Sacco's brief employment in the Rice and Hutchins factory at South Braintree in 1917. Then Morgan wrote: "When arrested he [Sacco] gave an inaccurate statement as to his whereabouts on April 15 [the crime date], and told a number of deliberate lies upon material matters including an assertion that he had never been in South Braintree."

Ill-informed, Frankfurter called Albert Hamilton, who conducted ballistics test for the defense in 1923, a firearms expert. James E. Starrs, professor of law and forensic sciences at George Washington University, made this observation in the April 1986 issue of the Journal of Forensic Sciences (p. 635): "Hamilton had been discredited in an earlier murder trial of Charles Stielow when his testimony as a so-called firearms expert very nearly sent an innocent man to his death."

Frankfurter, according to Joseph P. Lash, devoured newspapers. So it is puzzling that Frankfurter did not find the New York Times news items on the 1916 Stielow case, recorded in the paper's easily accessible index (1916-18), under “Stielow.”

Moreover, Frankfurter republished his book on Sacco and Vanzetti in 1961 without altering one word. This means he either failed to discover Convicting the Innocent, a Yale University Press book (1932) by Edwin M. Borchard or, finding it, refused to honor Borchard's chapter on Charles Stielow, which reported Hamilton's "clearly erroneous" testimony on the Stielow pistol (p. 252).*

Frankfurter's campaign to get his brilliant pupil at Harvard Law school, Charles E. Wyzanski, Jr., appointed to the federal bench became ironic when Judge Wyzanski wrote to the Sacco and Vanzetti scholar Francis Russell on March 31, 1986: "I myself am persuaded by your writings that Sacco was guilty." Re-loading, Wyzanski vouched for the integrity of Harold P. Williams, the Dedham trial assistant district attorney Frankfurter had attacked in The Case of Sacco and Vanzetti, the book liberals called their bible. More telling, Wyzanski did not mention Postmortem, the 1985 book by Young and Kaiser, in which Kaiser claimed (Young died in 1980) that Williams had helped to introduce a false bullet and a spent shell at the Dedham trial, that the prosecution had practiced subterfuge by showing the jury two false trial exhibits: bullet #3 and shell W. (When Kaiser used an endnote to thank Professor Starrs for sending him a copy of the 30-page article "EXAMINATION OF FIREARM RELATED EVIDENCE: THE NICOLA SACCO AND BARTOLOMEO VANZETTI CASE" from Volume 17 in the AFTE Journal noted below, Professor Starrs responded in an endnote on p. 650 in the Journal of Forensic Sciences (April 1986): "The Young and Kaiser book, although the latest on the subject, is crippled by its failure to take into full account the findings of the 1983 Select Committee, of which this author informed Professor Kaiser well in advance of his book's publication.") Doubling the irony, Wyzanski told Russell that Herbert "Brute" Ehrmann was his friend from boyhood. (See my summary of Wyzanski's letter in the Journal of American History, June 2000, p. 321.)

Dramatically, the 1983 ballistics test directed by the renowned forensic scientist Dr. Henry Lee demonstrated that six Peters cartridges taken from Sacco when he was arrested "were made on the same machine that made the two Peters fired cartridge cases (Fraher shells) that were recovered from the crime scene.” (Details are in the AFTE Journal [Volume 17, Number 3] July 1985, p. 28.)

Dr. James E. Starrs, in the July 1986 issue of the Journal of Forensic Sciences wrote, " . . . Sacco can be linked to the crime, and even to the crime scene, through the cartridges found in his possession on his arrest."

A new inculpatory item is the fire that gutted Frank Morgridge's grocery store in Dexter, Maine, on February 1, 1914. Revelation of this fire, which I discovered in May 2003, sharpens the debate on Exhibit 27, the .38 caliber H.&. R. revolver police took from Vanzetti when they arrested him with Sacco on a Brockton streetcar on May 5, 1920.

The prosecution claimed Exhibit 27 belonged to the murdered guard Berardelli, on whose bullet-ridden body police found no gun on April 15, 1920. The defense claimed Vanzetti owned an innocent revolver. Allegedly, five persons owned it before Vanzetti bought it in 1920: Frank Morgridge (1913), his widow Abbie (1916), Rexford Slater (1918), Ricardo Orciani (1919), Luigi Falzini (1919). Only three defense witnesses gave testimony on the revolver: Atwater, Slater, and Falzini. Elbridge Atwater testified he fired Exhibit 27 in Dexter in 1913, the revolver he swore his father-in-law Frank Morgridge owned. (Frank died on October 30, 1916, having no property listed in his name in the assessment office, a circumstance not known to the jury.) Atwater also swore he saw Exhibit M, a leather holster, with Exhibit 27 in Dexter. Crucially, Atwater failed to mention the Morgridge fire.

The February 5 issue of the Eastern Gazette, a Dexter weekly, recounts Atwater’s escape from his second-floor apartment over the Morgridge grocery: “In an adjoining room were Elbridge Atwater and wife and the room was filled with smoke so that Mr. Atwater was obliged to carry his wife to a place of safety. A moment after they got out the room was filled with flame.” Headlines in the Gazette and the Bangor Daily News (Feb. 2) say a pet coon cat saved lives of occupants in Morgridge's upstairs apartments.

Historians must judge whether the unmentioned fire refutes Atwater, whether McAnarney's reference to Exhibit M in his closing argument is helpful in that judgment. Historians surely recall that McAnarney held the leather holster in his hand and told the jury how Rexford Slater, Morgridge's other son-in-law, had mended a tear--an identifying feature for Slater--cited eight times on page 1637 of the Dedham transcript. About Slater, McAnarney said: "There is your holster, there is where you stitched it, plain as day. . . . He made a stitch right on there" (transcript, p. 2169). Relevant to the closing argument is the photograph of Exhibit M on page 32 of the AFTE Journal mentioned above.

Page 27 in the same journal reveals that Dr. Lee's Select Committee on Sacco and Vanzetti examined Exhibit 27 in 1983. Ignorant of the fire like McAnarney, district attorney Katzmann did not comment on Exhibit M in his closing argument, promoting instead the prosecution's theory of the Berardelli revolver (transcript, pp. 2183-2184). Having these facts, historians must decide if revolver and holster were in the 1914 fire. If they were in the fire, were marks of the fire visible on revolver or holster?

The Ur-document that proclaims the myth of Sacco and Vanzetti innocence is the ACLU fund-raising letter of February 19, 1921. Placed on pages 61-63 in Robert H. Montgomery's book Sacco-Vanzetti: The Murder and the Myth, it purports to be a letter by Anna N. Davis, Secretary-Treasurer. But the more likely author of this ACLU letter, Felix Frankfurter, is listed on the letterhead. (I established that some nineteen items in Frankfurter's 1927 book -- phrases, clauses, sentences -- were printed earlier in the unsigned editorial "The Sacco-Vanzetti Case" in the New Republic of June 9, 1926. This TNR opinion of June 9 is the "splendid editorial" Vanzetti cited in his Sunday letter to Comrade Blackwell from the Charlestown prison on June 13, 1926. Vanzetti told Blackwell that Mrs. Evans "gave me a copy of the New Republic" on Thursday, June 10. Vanzetti's exuberant praise of "that writer" of the editorial is a splendid illustration of dramatic irony.)

Saying nothing of Vanzetti's conviction at Plymouth for assault with intent to rob and assault with intent to murder at Bridgewater on December 24, 1919, Anna N. Davis (Frankfurter?) assured readers that the ACLU legal staff had determined "the evidence against them [Sacco and Vanzetti] is 'unsubstantial.'" Sacco and Vanzetti, wrote Davis, are going to be put on trial at Dedham because they "are 'foreigners' and are active and influential radicals."

Persistently, authors of U. S. history textbooks and editors of reference works pay deference to the ACLU opinion of 1921, editing out Dr. Lee's 1985 report, Starrs's two articles, and other items that tend to inculpate the defendants. Rarely do they mention Vanzetti's Plymouth conviction. Not atypical, the author of the entry on Sacco and Vanzetti in The Oxford Companion to United States History commits three factual errors and quotes Vanzetti's opinion of the Dedham jury.

This is the Vanzetti who wrote of "the criminals who testify against us" (Letters, May 15, 1926). About Vanzetti, Edmund M. Morgan wrote in 1948: " . . . Vanzetti makes statements concerning both this trial and the trial of himself and Sacco at Dedham which are not sustained by the printed record. He attributes low motives to witnesses against him and virtue to all who favored him. His readiness to ascribe corruption to all who did not support him seriously impairs the value of all his assertions about the Plymouth trial" (Joughin and Morgan, The Legacy of Sacco and Vanzetti, pp. 48-49).

What will bear watching is Michael Miller Topp's forthcoming reader on Sacco and Vanzetti in the series Bedford Studies in History and Culture (Bedford/St. Martin's). The bibliography on Sacco and Vanzetti in Professor Topp's 2001 book--Those without a Country--deserves scrutiny. In 1988 I battled Encyclopaedia Britannica on their biased S-V bibliography. The account of that battle is in my book on Sacco and Vanzetti.

For the record, the leading living authority on Sacco and Vanzetti is David Felix. Felix's 1965 book is listed in my bibliography.

A final compelling item is Harvard University's Freshman Seminar 46k (Spring 2004) taught by Professor Lisa McGirr. Quite telling is Professor McGirr's decision to invoke Edmund Wilson's opinion on Sacco and Vanzetti in her introduction to the course titled"The Sacco and Vanzetti Case: Culture, Politics and Memory."

*Note: Osmond K. Fraenkel refers to the “experience of Stielow and Green” in his review of Borchard’s book in the New Republic (Vol. 71, May 25, 1932, p. 52). See Frankfurter’s closeness to the New Republic in Lash, From the Diaries of Felix Frankfurter, pp. 16, 32-33; and see “Borchard” on p. 158. A larger perspective on Borchard’s 1932 book is provided by William G. Thompson’s review of it in the Columbia Law Review (Vol. 32, December 1932, pp. 1460-1462). Thompson, chief counsel for Sacco and Vanzetti in 1924-1927, uses a paragraph in his review (p. 1461) to repeat his vigorous 1927 argument that Sacco and Vanzetti were innocent defendants wrongfullly convicted of murder. But Thompson does not mention Borchard’s “Stielow and Green” chapter or Borchard’s reference to “Mr. Hamilton” on p. 252. To keep up with Thompson, historians need to revisit the Transcript of the Record, V: 5017- 5018. At the State House in Boston on July 13, 1927, Thompson defended the character of Albert H. Hamilton before Governor Fuller’s Advisory Committee, noting that Judge Thayer had made an attack on Hamilton. Thompson then heard assistant district attorney Dudley P. Ranney challenge Hamilton in cross-examination: “Q. And you testified in the case of the people of New York against Charles Stielor?” Notice the misspelling of Stielow on p. 5018 in the Holt publication of 1928. Hamilton answered “Yes,” then directed members of Fuller’s committee to “two exhibits on file” that would confirm “my veracity and integrity.” Francis Russell notes that “this reference to the Stielow case . . . made Hamilton jump” (Tragedy in Dedham, p. 402). A useful gloss on Hamilton’s testimony at the Strewl trial of 1934 appears in Joughin and Morgan’s book, The Legacy of Sacco and Vanzetti, p. 537.