“Let your eyes be blinded to every ray of sympathy or prejudice but let them ever be willing to receive the beautiful sunshine of truth, of reason and sound judgment, and let your ears be deaf to every sound of public opinion or public clamor, if there be any, either in favor of or against these defendants. Let them always be listening for the sweet voices of conscience and of sacred and solemn duty efficiently and fearlessly performed.”
Warning the jury not to be influenced or prejudiced by the fact that the defendants were Italians, he went on to a brief history of murder in common law, the development of degrees of murder, the definition of malice aforethought. He pointed out that there was no vital distinction between circumstantial and other evidence, that the important thing was the degree of proof. He must have puzzled the jurors with his remark that “over-positiveness in identification might under some circumstances and conditions be evidence of weakness in the testimony rather than strength.”
There was the expected truism—none the less true—that “guilt or innocence of crime do not depend upon the place of one’s birth; neither should the place of one’s birth, the proportion of his wealth, his station in life, social or political, or his views on public questions prevent an honest judgment and impartial administration and enforcement of the law, for when the time comes that these conditions exist to an extent that men, because of these conditions, cannot be indicted, tried, acquitted or convicted according to the laws of the Commonwealth in a court of justice, the doors to our courthouses should then be closed and we should announce to the world the impotency of our courts and the utter failure of constitutional or organized government.”
Not until he had passed the halfway mark did Judge Thayer abandon generalities for facts. Then he summed up the case adequately enough: “The Commonwealth claims that these defendants were two of a party of five who killed the deceased. The defendants deny it. What is the fact? As I have told you, the Commonwealth must satisfy you of that fact beyond reasonable doubt. The defendants are under no obligation to satisfy you who did commit the murders, but the Commonwealth must satisfy you beyond reasonable doubt that the defendants did. If the Commonwealth has failed to so satisfy you, that is the end of these cases and you will return verdicts of not guilty. This is so because the identity of the defendants is one of the essential facts to be established by the Commonwealth. On the other hand, if the Commonwealth has so satisfied, you will return a verdict of guilty against both defendants or either of them that you so find to be guilty.”
Dedham, April 9, 1927, just before sentence was passed.
(Top) The shells Bostock gave to Fraher; Shell W third from left.
(Center) The bullets removed from Berardelli’s body. The mortal Bullet III, deformed by impact, is third from left.
(Bottom) The bullets as marked by Dr. Magrath. Note deformation of Bullet III, third from left.