Judge Wyzanski Makes History: Sacco and Vanzetti Reconvicted

Edward M. Joffe wrote on p. 184 of his book "Sacco and Vanzetti: Guilty as Charged": In his letter to Harvard Law School professor Felix Frankfurter on March 9, 1927, Justice Louis D. Brandeis said Frankfurter's book, The Case of Sacco and Vanzetti--a copy of which Brandeis obtained on March 7--would cause a stir and perhaps be "a turning point." Justice William O. Douglas and other intellectuals called Frankfurter’s book their "bible." Less impressed, John D. Wigmore, Dean of Northwestern University Law School, called Frankfurss article in the March issue of the Atlantic Monthly--a shortened version of Frankfurter's book--the product of "the plausible pundit of the leading law school." Reviews of Frankfurter by Stumberg, Sherriff, and Ernst should be read.

Frankfurter said in both article and book that members of the Joe Morelli gang and Celestino Madeiros murdered at South Braintree on April 15, 1920, not Sacco and Vanzetti. This thesis Encyclopaedia Britannica placed in their Sacco-Vanzetti article in 1929. The thesis became a staple in many reference books. See Ernst's entry on the Sacco-Vanzetti case in Britannica, 1961-1973. Frankfurter's analysis of Vanzetti's Plymouth trial for assault with intent to rob and murder at Bridgewater on December 24, 1919, deserve scrutiny.

Saddened by the execution of Sacco and Vanzetti in 1927, Herbert Brutus Ehrmann, junior counsel to Thompson in 1926-27, published The Untried Case in 1933, a book that indicts the Morelli gang and Madeiros for the South Braintree crime. Edmund M. Morgan, Frankfurter's Harvard colleague, said Ehrmann had failed to offer "proof of the innocence of Sacco and Vanzetti." See Harvard Law Review, January 1934.

In his Note on Republication, June 5, 1961, Justice Frankfurter observed: "Sacco-Vanzttti have probably the unique distinction for men convicted for robbery-murder of having a favoring account of themselves in the Dictionary of American Biography" (1935 volume). Louis Joughin, in his section of The Legacy of Sacco and Vanzetti (1948), called Sylvester Gates’s 3-column sketch of Sacco and Vanzetti in the DAB "a masterpiece of accuracy and condensation." Later, Gates reviewed Osmond K. Fraenkel’s 1931 book, The Sacco-Vanzetti Case, in The New Republic, and stated: "Fraenkel’s 550 pages are as fair, accurate and well-balanced an account of the case as it is possible to make." Taped by Dr. Philips in 1960, Frankfurter acknowledged Gates had been his "pupil" at Harvard Law School, 1925-27, and said Gates’s article in the DAB was an index to Gates’s "quality." Unfortunately, factual errors crop up in both of Gates’s review efforts.

Gates must have been ill-informed or disingenuous when he left unchallenged Fraenkel’s 1931 portrait of militant anarchist Mike Boda (p. 10):

"Just what this man’s occupation was remains uncertain. Himself perhaps not a radical, he was a friend of radicals, at a time when to be such in one’s associations and a foreigner besides, constituted strong grounds for suspicion."

Undaunted by the DAB and an impressive array of Sacco-Vanzetti defenders--H. G. Wells, Harold Laski, Madame Curie, Albert Einstein, Walter Lippmann, Robert M. Lovett, Arthur M. Schlesinger, Sr., John Dewey, H. L. Mencken, Anatole France, Romain Rolland, Malcolm Cowley, Bennett Cerf, George Seldes (the "media watchdog"), A. M. Schlesinger, Jr., William Allen White (who flip-flopped on the verdict)--Boston attorney Robert H. Montgomery launched the first of four challenges to Frankfurter’s book in the 1960s. Montgomery published Sacco-Vanzetti: The Murder and the Myth in 1960 after his epistolary dispute with Frankfurter in 1958. He justified the guilty verdict at Plymouth, July 1, 1920, and the guilty verdict at Dedham, July 14, 1921.

New York lawyer James Grossman, the second revisioinist of the case (see Professor Nunzio Pernicone’s footnote in JAH, Dec., 1979, p. 535), noted "the force of the facts" in Montgomery’s book (see "The Sacco-Vanzetti Case Reconsidered" in Commentary, Jan.,1962), declared Sacco guilty, rejected the bullet-switching hypothesis made by defense attorneys William Thompson and Herbert Brutus Ehrmann on June 15, 1927, defended Goddard’s ballistic test with a comparison microscope on June 3, 1927, and stressed Gill’s break with Thompson, while scouting Ehrmann’s romantic portrait of convicted murderer Madeiros in The Untried Case. When Michael A, Musmanno challenged Grossman in the September issue of Commentary, Grossman dismissed him politely and praised Russell’s just-published Tragedy in Dedham. Before 1962, Grossman published in Partisan Review and Kenyon Review, and argued in Commentary (December 1953) that Alger Hiss was guilty. Does Grossman establish credentials?

While Grossman found Vanzetti innocent, Francis Russell, third revisionist, declared both defendants innocent in the Antioch Review (Winter 1955). In Tragedy in Dedham (1962), Russell called Sacco guilty, Vanzetti innocent. In Sacco and Vanzetti: The Case Resolved (1986), Russell said Sacco was guilty, Vanzetti an accessory after the fact, believing now that Vanzetti was carrying, upon his arrest, the 38 H. & R. revolver of the slain Berardelli. (Compare that hypothesis with the hypothesis built on the testimonies of Atwater, Slater, and Falzini--re the migratory gun from Maine.) After a time, Russell no longer let Vanzetti seduce him. In 1988 he expressed to me his desire to get his two books on the case published in paperback, with new introductions and photos from the 1983 ballistic test. He died in 1989.

David Felix, fourth revisionist, called Sacco and Vanzetti guilty of murder at South Braintree in Protest: Sacco-Vanzetti and the Intellectuals (1965). Reviews of this book stir a host of questions about champions of Sacco and Vanzetti. Why did Bickel, for example, review Felix’s book in The New Republic?

Ehrmann replied to these four attacks on Frankfurter with his second book, The Case That Will Not Die (1969). In a footnote on p. 173, Ehrmann wrote of Frankfurter’s book: "[I]ts complete accuracy has never been successfully challenged." He also said (p. 534) Montgomry and Felix had failed "to discredit Frankfurter’s great authority." Both Ehrmann’s book and the bibliography have curious omissions.

On March 31, 1986, Charles E. Wyzanski, Jr., Senior District Judge of the U. S. District Court in Boston, where he had presided for 45 years, wrote to Russell: "I myself am persuaded by your writings that Sacco was guilty. Wyzanski underlined.

Frankfurter said of Wyzanski: "He was one of the most brilliant students I ever had." (See NY Times obit., Sept. 5, 1986, A20.) Frankfurter helped Wyzanski to enter government service; and after Roosevelt put Frankfurter on the U. S. Supreme Court, Justice Frankfurter campaigned to get Wyzanski appointed to the federal bench. The Times called Wyzanski a profound legal thinker, while Max Lerner dubbed him one of Frankfurter’s "Hot Dogs." Joseph Lash dedicated his book, From the Diaries of Felix Frankfurter (1975), to Frankfurter and his "Hot Dogs."

Whereas Wyzanski said Vanzetti was "not proven guilty," he vouched for the integrity of Assistant District Attorney Harold P. Williams, whom he knew slightly. Ironically, Frankfurter implied in his book that Williams and District Attorney Frederick Katzmann schemed to deceive the Dedham jury on Sacco’s gun and bullet 3. Deepening the irony, Wyzanski said that "Brute" Ehrmann had been his friend " from boyhood."

Wyzanski did not mention Postmortem: New Evidence in the Case of Sacco and Vanzetti (1985) by William Young and David E. Kaiser. Hugh Brogan said in TLS ("New Convictions," Dec 27, 1985) that Kaiser must answer for this book since Young died in 1980. Brogan’s stance in the TLS review of Kaiser is absent in his letter to me. Kaiser (p. 110) imputes evil action to Williams and renews the 1927 allegation of a substitute bullet and spent crime-scene shell. Something in Kaiser’s book brought a rebuke from James E. Starrs, professor of law and forensic sciences, The George Washington University (see "Once More Unto the Breech:The Firearms Evidence in the Saccoand Vanzetti Case Revisited: Part I (Journal of Forensic Sciences, p. 650). Starrs rebuked Ehrmann (and the defense in general) in the July issue (p. 1063), and said that Albert H. Hamilton, a "defense expert . . . has been quite reliably proved accountable for a switching of the barrel in the Sacco Colt for another, . . ." (p. 1053). Further, he said Thompson, in 1927, engaged in "minutiae-specking" (p. 1056). He concluded: "Sacco can be linked to the crime, and even more to the crime scene, through the cartridges found in his possession on his arrest" (p. 1050). Starrs rejected the bullet-switching hypothesis. Dates make clear that Wyyzanski’s letter was writtten before the two articles by Starrs appeared in print.

One page prior to announcing Sacco’s guilt, Wyzanski wrote to Russell: "As a friend, and associate in the Solicitor General’s Office (1935-7), of Alger Hiss I had testified in both trials of U. S. v Hiss, whom I initially had supposed innocent but as to whom I now share the views of his former counsel, William L. Marbury . . . that Hiss was guilty." It would seem that Wyzanski’s final judgment of Hiss came after Grossman’s 1953 judgment.

Finally, Wyzanski told Russell that Governor Fuller asked Jeremiah Smith, Jr. "to serve on the Commission to Advise the Governor." This request was made "before A. L. Lowell" was asked to serve. Wyzanski underlined. On the advice of his doctor, Smith declined Fuller’s offer. But Smith later read the entire record of the case "and concluded that both Sacco and Vanzetti were guilty." Thus did Broun attack Lowell, not Smith.

Wyzanski said nothing of Vanzetti’s Plymouth trial, choosing not to rule on Vanzetti’s version of why he did not take the stand. Encyclopaedia Britannica has never mentioned the Plymouth trial, Sacco’s gun/bullets, Vanzetti’s gun/bullets, or lies Sacco and Vanzetti told about them to Katzmann on May 6, 1920. For years, Britannica’s editorial staff allowed a biased bibliography on the case to be published. Their gatekeeping of history and their explanatory letter to me in June 1988 invite Clio’s scorn. On this disputed case, all encyclopedias fail as disinterested historians,as do numerous books of reference.

A Midwest manuscript has 52 research questions on the Sacco-Vanztti case--and other tests.

Wyzanski’s 5-page letter is filed with the Francis Russell Papers at the Boston Athenaeum. Stephen Z. Nonack, Head of Reference, grants "permission to quote from or publish Judge Wyzanski’s letter."

REFERENCES

  • The Sacco-Vanzetti Case: Transcript of the Record of the Trial of Nicola Sacco and Bartolomeo Vanzetti in the Courts of Massachusetts and Subsequent Proceedings, 1920-7. 5 volumes. With a supplemental volume on the Bridgewater Case. Prefatory essay by William O. Douglas. Mamaroneck, N.Y.: Paul P. Appel, 1969.

  • Frankfurter, Felix. The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen. Boston: Little, Brown, 1927. See Note on Republication in Universal Library Edition, January 1962.

  • Ehrmann, Herbert Brutus. The Untried Case. New York: Vanguard Press, 1933.

  • Morgan, Edmund M. Rev. of The Untried Case, by Herbert B. Ehrmann. Harvard Law Review (January 1934): 538-547.

  • Fraenkel, Osmond K. The Sacco-Vanzetti Case. New York: Alfred A. Knopf, 1931.

  • Gates, Sylvester G. "A Formidable Shadow." Rev. of The Sacco-Vanzetti Case, by Osmond K. Fraenkel. The New Republic (December 9, 1931): 103-104.

  • Joughin, G. Louis, and Edmund M. Morgan. The Legacy of Sacco and Vanzetti. Harcourt, Brace, 1948. Reprint with an Introduction by Arthur M. Schlesinger. Princeton Univ. Press, 1978.

  • Montgomery, Robert H. Sacco-Vanzetti: The Murder and the Myth. New York: Devin-Adair, 1960.

  • Grossman, James. "The Sacco-Vanzetti Case Reconsidered." Commentary (January 1962): 31-44.

  • Russell, Francis. Tragedy in Dedham: The Story of the Sacco-Vanzetti Case. New York: McGraw-Hill. 1962.

  • Felix, David. Protest: Sacco-Vanzetti and the Intellectuals. Bloomington: Indiana University Press, 1965.

  • Ehrmann, Herbert Brutus. The Case That Will Not Die. Boston: Little, Brown, 1969.

  • Pernaicone, Nunzio. "Carlo Tresca and the Sacco-Vanzetti Case." Journal of American History (December 1979): 535-547. [Footnotes 6 and 7 are helpful in evaluating Pernicone.]

  • Young, William, and David E. Kaiser. Postmortem: New Evidence in the Case of Sacco and Vanzetti. Amherst: Univ. of Massachusetts Press, 1985.

  • Russell, Francis. Sacco and Vanzetti: The Case Resolved. New York: Harper & Row, 1986.

  • Starrs, James E. "Once More Unto the Breech: The Firearms Evidence in the Sacco and Vanzetti Case Revisited." Journal of Forensic Sciences (April 1986): 630-654; (July 1986): 1050-1078.

  • Avrich, Paul. Sacco and Vanzetti: The Anarchist Background. Princeton: Princeton Univ. Press, 1991.

  • Pernicone, Nunzio. "Sacco, Nicola . . . and Bartolomeo Vanzetti. American National Biography. Eds. John A. Garraty and Mark C. Carnes. 24 vols. New York: Oxford University Press. Pernicone says The Case That Will Not Die is "[t]he most thorough and well-balanced study of the case."

  • Newby, Richard. Manuscript. Kill Now, Talk Forever: Debating Sacco and Vanzetti. September 1999.

Richard Newby

Emeritus Associate Professor of English
Illinois State University
Normal, IL

E-mail: r.newby@worldnet.att.net
sent: August 29, 1999

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