The start of the funeral procession.
In weighing the testimony of the identifying witnesses, the jurors would have to consider the latter’s intelligence, “their opportunity for observations, their reasons for making such observations, the duration of such observations, and the mental or nervous condition of the witness at the time.” Turning to the ballistics testimony, Thayer fell into the crucial error of McAnarney and Katzmann, for he, too, accepted Van Amburgh’s “I am inclined to believe” as a direct assertion that the Berardelli death bullet had come from Sacco’s automatic. “You must determine this question of fact,” he told them. In speaking of the Vanzetti revolver, he first said that it had had a new hammer and spring, then later corrected himself.
The emphasis of the latter part of the charge was on the question of consciousness of guilt, to which Judge Thayer gave much more space than he did to the other testimony. “If the defendants were only consciously guilty of being slackers,” he informed the jurors, “liable to be deported, fearing punishment therefore, and were not consciously guilty of the murder of Berardelli and Parmenter, then there is no consciousness of guilt during the time they were at the Johnson house, because the defendants were solely being tried for the murder of Berardelli and Parmenter, and for nothing else.”
This was a question of fact for the jurors to decide, just as it was for them to decide whether or not the defendants had “the desire and purpose and intention” of drawing their weapons when they were arrested on the streetcar. The court decided questions of law, but only the jury could decide on the facts. Alibis were always questions of fact. “Therefore,” he instructed them finally, “all testimony which tends to show that the defendants were in another place at the time the murders were committed tends also to rebut the evidence that they were present at the time and place the murders were committed. If the evidence of an alibi rebuts evidence of the Commonwealth to such an extent that it leaves reasonable doubt in your minds as to the commission of the murders charged against these defendants then you will return a verdict of not guilty. On the other hand, if you find that the defendants or either of them committed the murders and the Commonwealth has satisfied you of such fact beyond a reasonable doubt from all the evidence in these cases, you will return a verdict of guilty.”
Thayer had been talking for several hours. He shifted a vase of pinks slightly to his right so that he could eye the jury more emphatically before beginning his peroration, his particular pride:
“My duties, gentlemen, have now closed and yours begun. From this mass of testimony introduced you must determine the facts. The law, as I have told you, places the entire responsibility in your hands. I therefore call upon you to constantly bear in mind these parting words of the Court that here, in this temple of justice, before God and man, you made oath that you would ‘well and truly try the issue between the Commonwealth and the defendants according to your evidence. So help you God.’
“I have now finished my charge. My duties are now at an end. I have tried to preside over the trial of these cases in a spirit of absolute fairness and impartiality to both sides. If I have failed in any respect you must not, gentlemen, in any manner fail yours. I therefore now commit into your sacred keeping the decision of these cases. You will therefore take them with you into yonder jury room, the silent sanctuary where may the Great Dispenser of justice, wisdom and sound judgment preside over all your deliberations. Reflect long and well so that when you return, your verdict shall stand forth before the world as your judgment of truth and justice. Gentlemen, be just and fear not. Let all the end thou aimest at be thy country’s, thy God’s and truth’s.”
There was a moment’s silence, then a murmur went through the courtroom like a collective sigh, followed by a shuffle of feet as spectators and jury began to file from the room, while the lawyers worked their way to the back for another consultation. Vanzetti bent over and whispered to Sacco as a deputy with handcuffs opened the cage door.
Moore, observing legal etiquette, remarked formally to the Court that whatever the jury’s verdict no one could say that the defendants had not had a fair trial.