Judge Thayer spent that evening at the University Club in Boston working on his charge. Like most intermediate judges, he tended to make his charges set pieces formed out of the accumulated mosaics of the law, varying in detail according to the particular case, but in general outline the same. The basic function of a charge is to enable the jury to sift the relevant from the irrelevant. In his Sacco-Vanzetti charge of twenty-four pages, only ten were given to the specific aspects of the case. The formula was based on a standard set of legal truisms: that a man is innocent until proved guilty, that reasonable doubt is the doubt of a reasonable man, that no inference of guilt shall be drawn from an indictment, that circumstantial evidence can at times be as weighty as direct evidence, that English common law as adopted by American practice is one of the glories of the world, and so on. Thayer’s first childhood memories were of the boys in blue of the Civil War; he had been appointed to the bench the year that the United States entered the World War, and his attitude toward soldiers was that of a sentimental civilian. Ever since his appointment he had peppered his charges and his less formal addresses with references to “our soldier boys.” It was a habit that still continued three years after the Armistice, and that could have somewhat sinister connotations in the trial of two draft-dodging anarchists.
With the fervor of a poet Thayer worked at his manuscript late into the night. He was proud of his literary efforts. Like most Americans whose school course included the elocution lessons of the post-Civil War period, his taste ran to the flamboyant. Vague metaphorical phrases blossomed under his hand. “Let the star of a sound judgment and profound wisdom guide your footsteps into that beautiful realm where conscience, obedience to law and to God, reigneth supreme.” Such phrases he found reassuring. And his indwelling sense of insecurity made him need assurance, turned him at times garrulous, biased him against foreigners, and drove him to indiscretions that were later to become notorious.
When Judge Thayer went down to breakfast early Thursday morning and looked hopefully around the club’s almost empty dining room, his eye fell on the frosty George Crocker at a table by the window and he walked over and sat down opposite him. Crocker, an elderly codfish Bostonian, greeted Thayer with a noticeable lack of cordiality. Several times during the month the judge had waylaid him in the lounge and filled his unwilling ears with news about the Dedham trial, insisting that Americans must now stand together to protect themselves against anarchists and Reds. Conservative lawyer that he was, Crocker felt offended at Thayer’s violation of the legal proprieties in even mentioning a current case. Oblivious of the other’s disapproval, Thayer would say that it was nonsense that the defendants were being prosecuted as radicals. Just the same, in his opinion, they were anarchists and draft-dodgers, and they had failed to establish alibis.
This morning, before Crocker had finished his grapefruit, Thayer pulled some sheets of paper out of his pocket saying proudly: “I want to read you part of the charge I am going to deliver today.” He talked on, quoting part of Moore’s argument, and then reading more of his charge, smacking his lips at the end with “That will hold them!” Crocker replied sniffily or not at all. On leaving the dining room he warned the steward, “For Heaven’s sake, don’t put me with that man again!”
Court opened late. Judge Thayer had again timed it that way for dramatic effect. Every seat was taken and the bar enclosure was filled with lawyers as Sacco and Vanzetti took their place in the cage, for it had been noised about in State Street that the judge’s charge would make legal history. The opening, however, had more the air of a graduation ceremony than a murder trial. The judge’s desk was buried in flowers—a huge vase of gladioli sent by the sheriff, and large bouquets of pinks from Mrs. Katzmann and the wife of Assistant District Attorney Kane. Among the spectators were the Marquis Ferrante, Rosina Sacco with the boy Dante, and of course Mrs. Evans and her inevitable notebook. In spite of the heat Sheriff Capen had resumed his blue cutaway.
With the clerk’s cry, Judge Thayer rustled in and sat down behind the bank of flowers. For the last time the ritual was intoned, the jury was polled, the defendants answered “Present.” Jerry McAnarney approached the bench with a motion for a directed verdict on the grounds that the district attorney in his argument had disclaimed that Vanzetti was driving the getaway car as it crossed the railroad track. Moore made the conventional request that the court order the jury upon all the evidence to return a not-guilty verdict for Sacco. Neither motion, they knew, would be granted. There were a few more words added to the record about the Berardelli revolver, then the judge’s brittle voice began:
“Mr. Foreman and gentlemen of the jury—you may remain seated—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.’ For he who is loyal to God, to country, to his state and to his fellow men, represents the highest and noblest type of true American citizenship, than which there is none grander in the entire world. You gentlemen have been put to the real test, and you have proven to the world, and particularly to the people of Norfolk County, that you truly represent such citizenship. For this loyalty, gentlemen, and for this magnificent service that you have rendered to your State and to your fellow men, I desire, however, in behalf of both to extend to each of you their profoundest thanks, gratitude and appreciation.”
It was of course conventional to butter up a jury at the end of a long trial, but Thayer enjoyed the convention. His mind slipped easily among the sententious moralizings, the hortatory appeals to truth, the assurances of equality before the law: