Democratic Justice, page 24
Writing in real time to influence public opinion, Frankfurter wanted the people of Massachusetts to right a wrong and to make up their minds before it was too late. “The Sacco-Vanzetti case has been before the courts and the public for more than six years. It has divided opinion at home and been the cause of demonstration abroad, and the end is not yet,” he wrote in the prefatory note to the book dated February 15, 1927. “This is no ordinary case of robbery and murder. More issues are involved in it than the lives of two men. Had that been all, its history could never have been so prolonged. Other factors, little known and less understood, explain its extraordinary vitality. What they are, these pages seek to make clear, for the first time so far as the general public is concerned.”
An initial complaint about the publication of Frankfurter’s article and book was the timing—with the new trial motion about the Medeiros confession pending before the Massachusetts Supreme Judicial Court. On January 27 and 28, Thompson had argued the motion. He and Frankfurter had agreed to delay publication until March because they figured the court would decide by then. On February 10, Thompson urged Frankfurter to wait to publish until after the court’s decision. The next day by phone, Frankfurter offered to defer to Thompson’s judgment yet insisted that Judge Thayer was not above reproach and the public had a right to know about his conduct during the trial. He also observed that Thayer’s hometown Worcester County Bar Association had passed a formal resolution approving the trial judge’s conduct; Frankfurter’s “scientific discussion” would prevent the debate from being one-sided. After their conversation, Thompson agreed to the March publication date.
The blowback was immediate. Frankfurter’s longtime antagonist at the U.S. Supreme Court, Justice McReynolds, wrote Sedgwick questioning the magazine’s decision to publish the article and attacking Frankfurter’s character: “The purpose of the writer seems plain enough and harmonizes with what he has done in other times.” Sedgwick conceded that Frankfurter could be “hot-headed” yet described him as “upright, courageous, and able” and defended the article. McReynolds replied that Sedgwick’s “estimate of the writer of the article is very much too high & that this misleads you. Other performances by him indicate what lies in the back of his head.” The justice was furious about “unsympathetic assaults upon the courts by men with crooked minds,” defended the Massachusetts courts, and insisted his “faith in them cannot be shaken by ill-natured flings from an exotic mind.”
The people of Old Boston were more polite yet as anti-Semitic as McReynolds. They reacted to Frankfurter’s article and book by shunning him. People whom Frankfurter considered old friends refused to be seen with him. His Atlantic Monthly editor Ellery Sedgwick asked him to lunch not at the Somerset Club, Tavern Club, Union Club, or some other place where he might run into prominent people of Old Boston, but in the far corner of a dining room at an inconspicuous hotel. Frankfurter was amused by such group-think behavior and was not surprised given Old Boston’s opposition to Brandeis’s nomination. He put his name on the article and the book not because he wanted limelight, money, or publicity, but because he believed that public pressure on the governor was the surest way to save Sacco and Vanzetti.
On April 5, the Supreme Judicial Court denied Thompson’s new trial motion about Medeiros’s confession. The court merely said that Judge Thayer had not abused his discretion. In other states but not in Massachusetts, appellate judges inquired into the evidentiary basis for a criminal conviction. Judge Thayer, however, was the only judge who had reviewed the facts of this case.
Four days later at 10:00 a.m., Frankfurter sat in the jury box with members of the press in Judge Thayer’s crowded Dedham courtroom. Sheriff’s deputies armed with shotguns stood inside and outside. Handcuffed together, Sacco and Vanzetti were marched in and sat in a steel cage in the center of the room. The clerk asked the two men if they wanted to say anything before their sentencing. In halting, broken English, Sacco professed his innocence: “As I said before, Judge Thayer know all my life, and he know that I am never been guilty, never—not yesterday nor today nor forever.” Vanzetti, mustachioed and more fluent in English than Sacco, launched into a forty-minute soliloquy. He proclaimed his innocence in the Bridgewater and South Braintree robberies, reviewed the Medeiros confession, and accused Judge Thayer and District Attorney Katzmann of highlighting the defendants’ radical views to prejudice the jury. In a stirring conclusion, he declared: “I am suffering because I am a radical and indeed I am radical; I have suffered because I was an Italian, and indeed I am an Italian; I have suffered more for my family and for my beloved than for myself; but I am so convinced to be right that if you could execute me two times, and if I could be reborn two other times, I would live again to do what I have done already.”
An emotionless Judge Thayer began to sentence both men. Sacco cried out again proclaiming their innocence. The judge kept going and declared that Sacco and Vanzetti would be killed “by the passage of a current of electricity through your body” during the week of July 10. After the sentencing, Evans and other Sacco and Vanzetti supporters rushed to the cage to whisper words of encouragement.
DEEPLY “MOVED” by Vanzetti’s speech, Frankfurter redoubled his behind-the-scenes efforts to save the two men. He advised the legal team and Sacco-Vanzetti Defense Committee, orchestrated press coverage from the World and other newspapers, and coordinated petitions to the governor.
Frankfurter’s enemies in Old Boston were not fooled. Moorfield Storey, a founding member of the NAACP and a leading opponent of Brandeis’s Supreme Court nomination, accused Frankfurter of serving as pro bono defense counsel while writing the book (which Frankfurter and Thompson denied). Storey falsely charged Frankfurter with initially writing a report declaring Tom Mooney guilty then withdrawing it because of political pressure. Finally, Storey vowed to have nothing to do with the law school as long as Frankfurter was on the faculty. Others claimed that prominent law graduates refused to contribute to the school’s endowment fund because of Frankfurter’s activities. The arch-conservative Boston Evening Transcript reprinted Theodore Roosevelt’s 1917 letter attacking Frankfurter’s Mooney and Bisbee reports as “Bolsheviki”; a few days later, the newspaper was shamed into reprinting Frankfurter’s reply to Roosevelt.
Frankfurter’s biggest disappointment was the “timidity,” “fear,” and lies from his dean, Roscoe Pound. An apologetic Pound privately informed the justices of the Supreme Judicial Court that he had advised Frankfurter to delay publication until after its decision. In private conversations with Frankfurter, Pound had initially disagreed with Frankfurter’s decision to publish. Two days later, however, he changed his mind and praised Frankfurter for publishing when he did. Pound privately defended Frankfurter against charges that the book was “one-sided” yet never publicly defended him. Frankfurter chose not to confront Pound until after the case was over. Their relationship never recovered. Both men held grudges about the other’s conduct during the case.
The most sustained attack on Frankfurter came from one of the most respected members of the legal academy, John Henry Wigmore. The dean of Northwestern University Law School and the nation’s leading expert on the rules of evidence, Wigmore had turned into a superpatriot during his wartime service in the Judge Advocate General’s Corps and opposed anyone who protected the civil liberties of antiwar radicals. He had disagreed with Frankfurter’s 1917 recommendation of a committee to hear the claims of conscientious objectors. He undoubtedly blanched at Frankfurter’s Mooney and Bisbee reports and attacks on the constitutionality of the Palmer raids and privately began referring to Frankfurter as “the most dangerous person in the U.S.”
As soon as Frankfurter’s Atlantic Monthly article appeared, Wigmore began promising colleagues that he planned to write a reply. He considered Sacco and Vanzetti “dangerous enemies to society” and intended to reveal “the character of the men, the influences behind them” in an effort to help the public understand how dangerous they were. When a colleague suggested that Wigmore might be “playing directly into Frankfurter’s hands” by arguing that they were convicted because of their radical beliefs, Wigmore insisted “the facts are not as Frankfurter says they are” and vowed to get the real story from Judge Thayer. Thayer boasted to the New York Times “I have nothing and nobody to fear” and predicted that the article by “Professor Frankenstein [sic]” would be “answered by one of the best authorities in the United States at the proper time.”
With information from Thayer and possibly from J. Edgar Hoover of the Bureau of Investigation, Wigmore published an April 25 response in the Boston Evening Transcript. He never used Frankfurter’s name and repeatedly referred to him as “the plausible pundit.” Wigmore accused him of making “errors and misstatements” and committing “libel on Massachusetts justice.” He alleged that the defense had never objected to the composition of the jury pool; Judge Thayer had never said that the Supreme Judicial Court had “approved” the verdict; and the court had reviewed the facts of the case.
Around 3:00 p.m. on April 25, Frankfurter received a phone call alerting him to Wigmore’s article. He and his secretary rushed to Harvard Square to buy a copy of the newspaper and brought a typewriter with them to the Frankfurters’ home at 192 Brattle Street. Marion saw the front-page article while riding a streetcar and rushed home by taxi to tell her husband. By the time she arrived, Frankfurter, who did not type, was already writing a response. Boston Herald editor Frank Buxton was holding the presses to include the response on the next morning’s front page. Taking to his bed, an anxious Sedgwick phoned Frankfurter and told him to “be temperate, be cool” in the rejoinder. Given his replies about the Mooney and Bisbee reports to Theodore Roosevelt and Solicitor General Beck, Frankfurter knew to stick to the facts. He also knew that Wigmore had not read the trial record and instead relied on Judge Thayer’s word. Frankfurter, on the other hand, had read the record twice and had relied on the bill of exceptions, the prosecution’s and defense’s objections at trial and on appeal. Long on facts and short on invective, Frankfurter quoted from the record and bill of exceptions to show that the defense had objected to the composition of the jury pool and that Judge Thayer had claimed the Supreme Judicial Court had “approved” the verdict. He also schooled Wigmore on the limited appellate review of criminal cases in Massachusetts. “I say without fear of contradiction that Dean Wigmore could not have read the record, could not have read with care the opinion of Judge Thayer, on which his article is largely based, could not even have examined my little book,” Frankfurter wrote.
Two weeks later, Wigmore returned to the Evening Transcript with more half-truths and name calling, referring to Frankfurter only as “the plausible pundit” and “the contra-canonical critic.” He accused Frankfurter of violating the American Bar Association canon of ethics by commenting on a pending case, though the case was on appeal and not before a jury. He continued to defend Judge Thayer’s honor. “I shall continue to leave vituperation to Dean Wigmore, while I stick to facts,” Frankfurter replied, then reviewed, point by point, the “serious charges” in Wigmore’s April 25 article and how each of “his original charges have evaporated.” Frankfurter again denied allegations that he was Sacco and Vanzetti’s co-counsel; Thompson published a letter insisting Frankfurter had never been part of the defense team.
Frankfurter’s triumph over Wigmore was so complete that enemies in Old Boston took notice. Emory Buckner considered Wigmore’s attacks “very fortunate” because they “brought for the first time portions of the ‘conservative’ element into the controversy on the side of the defendants, or at least on the side of urging a board of review.” Even Frankfurter’s nemesis President Lowell declared him the winner. “Wigmore is a fool! Wigmore is a fool!” Lowell said. “He should have known that Frankfurter would be shrewd enough to be accurate.” Frankfurter’s “shrewdness” continued to rankle Lowell and Old Boston, who became the real adversaries in the fight to get Sacco and Vanzetti a new trial.
Frankfurter’s replies to Wigmore were his last public pronouncements during the case; all he cared about was saving Sacco and Vanzetti from the electric chair. He and Thompson shifted the campaign from the Massachusetts Supreme Judicial Court to Governor Alvan T. Fuller. At 2:00 p.m. on April 7, Thompson met with a group of concerned citizens about the next steps in the case. He declared that Sacco and Vanzetti were innocent and had not received a fair trial, blaming District Attorney Katzmann for suppressing evidence and secretly collaborating with Attorney General Palmer and Judge Thayer for his prejudicial rulings. Thompson and Frankfurter were pessimistic that an appeal to the Supreme Court of the United States would be successful and believed that all legal remedies had been exhausted. Backed by Frankfurter, Thompson proposed a committee of three distinguished citizens who would investigate the allegations against Katzmann and Thayer in an effort to persuade the governor to commute the sentences. The governor’s clemency power, Thompson and Frankfurter told the group, was their best shot. Only Vanzetti signed the clemency petition; Sacco had given up hope.
The clemency petition, Thompson revealed to the concerned citizens, contained new information about the depths of Judge Thayer’s prejudices. Thayer had commented on the pending case at the University Club, where he had stayed during the trial, to members of the press, and to his friends at a Worcester country club. The defense submitted sworn affidavits from upstanding citizens that Thayer had referred to the defendants as “those bastards down there” and their lawyers as “those damn fools.” “Just wait until you hear my charge,” he boasted and referred to the defense’s trial counsel, Fred H. Moore, as “that long-haired anarchist.” After denying Sacco and Vanzetti a new trial a few years later, Thayer told a Dartmouth College professor: “Did you see what I did with those anarchistic bastards the other day? I guess that will hold them for a while. Let them go to the Supreme Court now and see what they can get out of them.”
The charges against Judge Thayer gave new life to Frankfurter’s campaign to persuade Governor Fuller to intervene. He coordinated petitions to the governor, one led by Robert Morss Lovett of the New Republic and another by Professor Karl Llewellyn of Columbia Law School, asking for the appointment of a review board. Frankfurter declined to sign any of the petitions out of an abundance of caution. At the same time, he pleaded with Lippmann and the World to take the lead on national media coverage. The conservative New York Herald Tribune attacked Frankfurter’s book for “partisan distortions” and accused him of “fanning anarchistic flames.” The New York Times refused to publish an article about the case by H. G. Wells even after having Frankfurter review it for factual accuracy because the newspaper feared a libel suit. And Boston newspapers, despite the Herald’s prize-winning editorial in 1926, remained silent. Only the Springfield Republican called for a new trial or clemency. For a time, Lippmann and the World stepped up with an editorial, “The Prejudices of Judge Thayer,” and Rollin Kirby’s cartoon depicting a wave of protest breaking over Thayer’s outstretched arm. “One courageous paper” was all Frankfurter needed to change public opinion. Time and again, however, Lippmann refused to come to Boston, wrote equivocating editorials about the case, and let Frankfurter down.
On June 1, Governor Fuller acceded to requests for a three-member review board to reconsider the case; the governor, however, stacked the deck against Sacco and Vanzetti with the people he chose to review it. The chair of the committee was Frankfurter’s nemesis and a leader of Old Boston, A. Lawrence Lowell. Joining Lowell was another reactionary member of Old Boston, Judge Robert Grant. A retired Suffolk County probate judge and novelist, Grant had been expressing “hostility” to Sacco and Vanzetti before Fuller’s appointment. The third member, MIT president Samuel Wesley Stratton, was a mathematician, not a lawyer like Lowell and Grant, and “unquestionably conservative” and “not very bright.” Of the three members, Frankfurter placed his faith in Lowell and described the Harvard president as Sacco and Vanzetti’s “only hope.”
With the executions stayed until August 10, the Frankfurters escaped the tense atmosphere in Boston by renting a summer home thirty-five miles away on the South Shore in Duxbury. The small white house with light green blinds and blue plant pots was next to the Bay Farm, where they bought fresh milk, eggs, and chickens, and a short walk to an inlet on Kingston Bay. Duxbury was close enough for him to take the train from Kingston to Boston, yet far enough to keep the press and members of the Sacco-Vanzetti Defense Committee at bay. The Frankfurters tried to relax there, kept tabs on the Lowell committee’s investigation, and awaited the governor’s decision.
From Duxbury, Frankfurter began to hear unsettling things about the Lowell committee’s review process. Over the defense’s objection, the committee conducted its investigation and heard from witnesses in secret with no opportunity for cross-examination. The committee refused to allow Thompson to watch its two-hour interview of Judge Thayer and the prosecutors. Lowell reacted to Thompson’s argument with alarming “instances of impatiences” and “lack of understanding and indifference” about the facts of the case. On July 14, Lowell threatened Sacco’s two alibi witnesses with perjury when Lowell was the one who had been confused about the facts. Despite all these disturbing events, Frankfurter remained optimistic and believed Lowell could not overlook Judge Thayer’s prejudices throughout the case. “I still have hope in him,” Frankfurter wrote, “because it is simply inconceivable to me how, upon the facts, they can dare send Sacco and Vanzetti to the electric chair.”
New information from the defense team dampened Frankfurter’s bleak hopes. Elizabeth Glendower Evans confided that the “situation is pretty grim.” Thompson and Ehrmann had no “hope of the men’s freedom”; only Ehrmann believed there was a “chance” of life imprisonment. Evans tried to boost Thompson’s spirits by telling him “that his children and children’s children would live to be proud” of his efforts. Frankfurter tried to invigorate Thompson’s younger co-counsel. “Thompson is fearfully frayed out,” he wrote Ehrmann and urged him to pick up the slack. “After all, no fight is lost until it is lost. And you cannot possibly know either what is in Lowell’s mind or what the Governor may finally decide upon. I know the outlook is very gloomy indeed.”
