(WOODY GUTHRIE) (1945-'46)

Judge Webster Thayer


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The deliberate effort to excite the emotions of jurors still in the grip of war fever is not unparalleled in the legal history of the times.... What is unparalleled is that such an abuse should have succeeded in a Massachusetts court.

As things were, what wonder the jury convicted? The last words left with them by Mr. Katzmann were an appeal to their solidarity against the alien:

"Gentlemen of the jury, do your duty. Do it like men. Stand together, you men of Norfolk."
The first words of Judge Thayer's charge revived their memories of the war and sharpened their indignation against the two draft-dodgers whose fate lay in their hands:
"The Commonwealth of Massachusetts called upon you to render a most important service. Although you knew that such service would be arduous, painful, and tiresome, yet you, like the true soldier, responded to that call in the spirit of supreme American loyalty. There is no better word in the English language than 'loyalty.'"
It had been to the accompaniment of this same war motif that the jurors were first initiated into the case: by the license allowed to the prosecution it had remained continuously in their ears throughout the trial; and now by the final and authoritative voice of the Court it was a soldier's loyalty which was made the measure of their duty.

The function of a judge's charge is to enable the jury to find its way through the maze of conflicting testimony, to sift the relevant from the irrelevant, to weigh wisely, and to judge dispassionately. A trial judge is not expected to rehearse all the testimony; in Massachusetts he is not allowed to express his own opinion on it. But in drawing the disconnected threads of evidence and marshaling the claims on both sides he must exercise a scrupulous regard for relevance and proportion. Misplaced emphasis here and omission there may work more damage than any outspoken comment. By his summing up a judge reveals his estimate of relative importance. Judge Thayer's charge directs the emotions only too clearly.

What guidance does he give to the mind? The charge occupies twenty-four pages; of these, fourteen are consumed in abstract legal generalities and moral exhortations. Having allowed the minds of the jurors to be impregnated with war feeling, Judge Thayer now invited them to breathe "a purer atmosphere of unyielding impartiality and absolute fairness."

Unfortunately the passion and prejudice instilled during the course of a long trial cannot be exorcised by the general, placid language of a charge after the mischief is done. Every experienced lawyer knows that it is idle to ask jurors to dismiss from their memory what has been deposited in their feelings.

In this case the vital issue was identification. That the whole mass of conflicting identification testimony is dismissed in two pages out of twenty-four is a fair measure of the distorted perspective in which the Judge placed the case. He dealt with identification in abstract terms and without mentioning the name of any witness on either side. The alibi testimony he likewise dismissed in two paragraphs, again without reference to specific witnesses.

In striking contrast to this sterile treatment of the issue whether or not Sacco and Vanzetti were in South Braintree on April 15 was his concrete and elaborate treatment of the inferences which might be drawn from the character of their conduct on the night of their arrest. Five pages of the charge are given over to "consciousness of guilt," set forth in great detail and with specific mention of the testimony given by the various police officials.... The disproportionate consideration which Judge Thayer gave to this issue, in the light of his comments during the trial, must have left the impression that the case turned on "consciousness of guilt." ...Judge Thayer himself did in fact so interpret the jury's verdict afterward.

As to motive, the Court expatiated for more than a page on his legal conception and the undisputed claim of the Commonwealth that the motive of the murder of Parmenter and Berardelli was robbery, but made no comment whatever on the complete failure of the Commonwealth to trace any of the stolen money to either defendant or to connect them with the art of robbery. Undoubtedly, great weight must have been attached by the jury, as it was by the Court, to the identification of the fatal bullet taken from Berardelli's body as having passed through Sacco's pistol. The Court instructed the jury that Captain Proctor and another expert had testified that "it was his [Sacco's] pistol that fired the bullet that caused the death of Berardelli," when in fact that was not Captain Proctor's testimony. Of course, if the jury believed Proctor's testimony as interpreted by Judge Thayer, Sacco certainly was doomed.

In view of the temper of the times, the nature of the accusation, the opinions of the accused, the tactics of the prosecution, and the conduct of the Judge, no wonder the "men of Norfolk" convicted Sacco and Vanzetti!

Felix Frankfurter, The Case of Sacco and Vanzetti, Atlantic Monthly, March 1927.

Lyrics as reprinted in liner notes for "Ballades de Sacco & Vanzetti" (French edition of "Ballads of Sacco & Vanzetti", Folkways/Le Chant du Monde, LDX 74467, 1960s); minor corrections by Manfred Helfert.

Old Judge Thayer, take your shackle off of me;
Old Judge Thayer, take your shackle off of me.
Turn your key and set me free,
Old Judge Thayer, take your shackle off of me.
The monkey unlocked the courthouse door,
An' the elephant oiled the hardwood floor;
In did jump the kangaroo,
An' in did hop the rabbits, too.

Next in come the two baboons,
Next in rolled a dusty storm,
Next in waddled the polar bear
To keep the judge and jury warm.

Ever'body knows the mockingbird
Wrote down ever' word he heard;
The lawyers all were foxy-sly,
With a foxy nose an' a foxy eye.

The 'possum used the big stiff broom,
Then he polished the new spitoon;
Up did smile the crocodile,
Said, "Here comes the jury down the aisle."

Old momma catfish asked the trout,
"What's this trial here all about?"
Little baby suckerfish upped and said,
"The Judge has caught him a couple of Reds."

Well, the rattlesnake asked the bumble bee,
"Who's this Sacco an' Vanzetti?"
"Are they the men," asked the momma quail,
"That shot the clerks at the Slater Mill?"

The mosquito sung out with his wings,
Said, "I was there an' seen the whole durn thing;
Saw the robbers fire their guns,
But I didn't see these men, neither one."

Well, the big-eyed owl looked around,
"They said that Sacco's cap was found
Down on Pearl Street, on the ground,
Where the payroll guards both got shot down."

"That cap don't fit on Sacco's head,"
The big black crow flapped up and said,
"They tried that cap on Sacco here,
And it fell down around both his ears."

Well, the camel asked the old giraffe,
"Did these two fellas duck the draft,
By runnin' down below the Mexican line?
To keep from fightin' on the rich man's side?"

The lumber duck did rattle his bill,
"All the ducks and geese are flyin' still
Down toward Mexico's warm sun
To try to dodge the rich man's gun."

Up did waddle a lucey goose,
"I think these men ought to be turned loose.
But old Judge Thayer, he swore to his friends
These men'll get a chair or the noose."

When the guilty verdict came,
An' seven years in jail they'd laid,
When these two men there did die,
The animals met on the earth and sky.

"See what fear and greed can do,
See how it killed these sons so true.
Us varmints has got to get together, too,
Before Judge Thayer kills me and you."

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