The Commonwealth of Massachusetts has admitted its part in the wrongful convictions of Nicola Sacco and Bartelomeo Vanzetti. In 1977, fifty years after their execution, Governor Dukakis declared August 23 as a state memorial day commemorating the unfair trial and horrifying deaths of both men. Their names live on.
Many know the story – briefly: Sacco and Vanzetti were Italian immigrants. They belonged to an anarchist political group. Indeed, when the draft ensued as America entered WWI, they and their group encouraged people not to register and not to fight. Despite their commitment to such an organization, the men themselves carried on in their lives, keeping gainful employment, and generally blending into society. After 2 men were killed during an armed robbery of a shoe company in Braintree in April,1920, Sacco and Vanzetti were arrested for their murder.
Two days after their indictment, a fellow anarchist, Mario Buda, orchestrated a bombing in Wall Street in NYC that killed dozens of people. The bombing was in revenge for the accusations against his friends, Sacco and Vanzetti. Additional violent acts occurred over the ensuing years as Sacco and Vanzetti were jailed.
The trial was, to put it mildly, a travesty. Judge Webster Thayer held an extreme bias against the politics of Sacco and Vanzetti, a bias against immigrants, a bias against their lawyers, and a bias against the idea that judges exist in court to facilitate justice. Indeed, he called them Bolsheviks and said he would "get them good and proper"; of the lawyers, he was overheard saying "I'll show them that no long-haired anarchist from California can run this court!" and "You wait till I give my charge to the jury. I'll show them." Apparently he did because the jury took only 5 hours to convict both Sacco and Vanzetti, Sacco as principal and Vanzetti via felony-murder. Even at the time, it was widely believed that the trial violated due process of law.
Sacco and Vanzetti lost their appeals and petitioned a single Justice of the Supreme Court to stay their executions and offer some relief. Justice Oliver Wendell Holmes lamented that, “. I have absolutely no authority as a Judge of the United States to meddle with it.” Sacco v. Massachusetts, 1927 WL 27838 at *1
He noted that if the trial had been void, then he would intervene. By way of explanation of that idea he noted that if there had been an angry mob ready to lynch the prisoners surrounding the courthouse resulting in their conviction, that trial would be so obviously unfair that it would be void (note: the angry mob did exist, but it wanted their acquittal). The lawyers had argued that the trial should be void due to the extreme bias of the judge. Justice Holmes disagreed. Because this was merely voidable, which apparently mean that it was unfair in the usual way trials are unfair, he had no authority as a federal judge, to challenge the ruling of the highest state court and would not grant a stay or stop the executions.
Stop the execution rabbit hole: A few years after this tragedy against Sacco and Vanzetti, nine young – some very young - black men were convicted of raping two white women on a train in Alabama in 1931. Some were sentenced to prison terms, others to death. They were all innocent. Unlike in the matter of Sacco v. Massachusetts, where Justice Holmes declared that he really had no authority to intervene in a state court matter, when these defendants petitioned the Court, it went in another direction. Interesting to note that by this time, Justice Holmes had been replaced by Justice Cardozo. It is unclear if Holmes would have been persuaded to side with the majority or if he would have stood pat on his interpretation of the Constitution as not applying to state court convictions in the usual course of events. It would not have mattered; only the horrific Justice McReynolds and the regressive Justice Butler dissented – hard to see Holmes in their camp on this one, but we’ll never know. Justice Cardozo was, in any event, solidly with the majority. the case was Powell v. Alabama, 287 U.S. 45 (1932). It was the first time the Supreme Court reversed a state court conviction based upon a violation of the United States Constitution. In Powell v. Alabama, the defendants were, essentially, denied the assistance of counsel, what we would see as a 6th Amendment right. However, the case was not directly decided on the 6th Amendment (indeed the case never mentioned the 6th Amendment). Instead, the case ruled that the Due Process clause of the 14th Amendment guaranteed a "guiding hand of counsel"to criminal defendants. Query whether there are two constitutional rights to counsel; one under the 6th Amendment, made available to state litigants through the incorporation doctrine of the 14th Amendment, and one entirely lodged within the 14th Amendment alone whether that be as a matter of due process of law or one of equal protection. In any event – it is likely that the Holmes declination to grant a stay as the sitting single justice in the Sacco and Vanzetti case influenced the determination to grant the stay and reverse the convictions in Powell v. Alabama.
There were tears and protests and editorials denouncing the guilty verdicts and the denial of the new trial motions. Pleas directly made to Governor Fuller were ignored. Judge Thayer, absolving himself from the fate these men would suffer by eluding to the fact that the jury convicted them and it was really only his job to impose a sentence, then nonchalantly sentenced the men to death by electrocution. The execution was carried out 97 years ago this week and, like all executions, particularly of the innocent, echoes to this day.
Mourners lined the streets for the funerals of these two men. More violence and bombings by anarchists and others continued. More protests followed. Indeed, in one peaceful march to the State House, a man held a sign calling Governor Fuller a murderer of Sacco and Vanzetti. He was arrested and questioned by the police. He answered that Sacco and Vanzetti were unlawfully put to death and that Governor Fuller could have stopped their execution. By failing to act, this man, Canter (whose first name is lost to history) averred that their blood was indeed on the hands of the governor, certainly in a moral sense. This was his defense when tried for libel against the governor where the Commonwealth’s argument was that he intended to defame the sitting Governor and to ruin his reputation. He moved for a required finding of not guilty which was denied. Astonishingly, his conviction was upheld on appeal.
Governor Fuller rabbit hole: There is a reason you do not know the name Alvan Fuller even though he was a very successful businessman and was elected to several positions including to the United States House of Representatives and as both Lieutenant Governor and Governor of the Commonwealth. As an elected official, he famously never cashed his paycheck and he never used the congressional franking privilege. But, his handling of the Sacco and Vanzetti case – by refusing to commute their sentences or grant them a pardon or any one of a number of things he easily could have and should have done as Governor – ruined his future career. It had nothing to do with a placard held by a man in a march to the State House. It was, instead, Fuller’s lack of concern about the state killing innocent men that doomed him. Indeed, when there was talk of him becoming Ambassador to France, the French government said it could not guarantee his safety due to the Sacco and Vanzetti issue. He never held another elected office again.
So this week we commemorate the travesty of biased judges, of prejudice based on politics, of fear of the “other", of brutality toward immigrants, of a judicial system that can always do much better, of community involvement and compassion for those wrongfully accused, of capital punishment even as a concept, let alone as a sentence by a civilized society, of people in authority who claim they cannot do anything to right a wrong. It was not that long ago and not that far away.
We must remember, lest we forget, that injustice anywhere is a threat to justice everywhere – and – that this is on all of us, all the time.
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