“At any rate,” he concluded, in one of the rhetorical flourishes of which he was so proud, “I am not willing to blacken the memory of Mr. Ripley and to pronounce those eleven surviving jurors as falsifiers under oath by claims of counsel that are so weak, so fragile, and so unsatisfactory. If this motion for a new trial based upon hearsay statements made by a deceased juror to a counsel for the defendants under such circumstances as are herein disclosed [were granted], it would result in smirching the honor, integrity, and good name of twelve honorable jurors, by a decision that never could be justified by the simplest rules of sound judgment, reason, truth, and common sense.”
As for Daley’s affidavit charging Ripley with the remark, “Damn them, they ought to hang them anyway!” Thayer ruled that he “was not bound to believe him,” nor was he “required to give the reasons for his action. Furthermore, before being sworn as a juror, it must be assumed that Ripley had answered in the negative ... whether he had expressed or formed an opinion or was sensible of any bias or prejudice.” Even if Daley had no reason for lying, it was still hearsay evidence—and Ripley was long since dead.
In denying the second motion Thayer expressed doubt that the itinerant Gould could “have carried a correct mental photograph in his mind of Sacco for practically eighteen months, when he had only a glance in which to take this photograph on the day of the murder.” Gould, however, had merely claimed that the man who had put a bullet through his lapel, the man he had seen in that frozen instant of terror when the gun flashed in his face, was not the stocky Italian he had seen eighteen months later in the Dedham jail.
Thayer held that Gould was just one more witness in the crowd, and that his evidence, if presented, would have had no effect on the jury—“For the evidence that convicted these men was circumstantial and was evidence that is known in law as ‘consciousness of guilt.’” For a dozen pages Thayer continued this theme with variations, coming back again to the question of whether the defendants had lied because of their consciousness of being radicals or their consciousness of being murderers. This, Thayer maintained, was a matter of fact that had been settled once and for all by the jurors. In passing, he could not resist an aside at those bothersome dissenters “who ever stand ready, through sympathy, prejudice, or some other unaccountable reason, to criticize and assail the verdicts of juries when, in fact, they never have heard a single word of evidence, nor observed a single witness on the stand.”
As far as Louis Pelser was concerned, he had admittedly been drinking on the day he signed Moore’s affidavit, and a few days later, when sober, he had retracted it. Thayer accepted the counteraffidavits of Katzmann and Williams that they had not tried to influence Pelser, and ruled that Pelser’s statement provided no justification for a new trial.
Often while Judge Thayer sat on his porch at Falmouth preparing his findings he found himself thinking of Moore, and the thought of that “damned anarchist” lawyer was enough to cloud the brightest summer day. There, for example, was the whole Goodridge business. Goodridge had been discredited at the trial. That was obvious to anyone. Yet here was Moore chasing him all over Maine, locking him up in jail, blackmailing him with indictments ten years old. “It is perfectly manifest,” Thayer wrote, with a cloud-dispersing mental picture of Moore’s discomfort, “that here was another bold and cruel attempt to sandbag Goodridge by threatening actual arrest, to blacken the name of the district attorney’s office of Norfolk County, by compelling Goodridge to testify as he did on account of the influence of said district attorney’s office. He did not succeed simply because Goodridge would not be intimidated. Was this conduct on the part of Mr. Moore performed in furtherance of public justice, or was it a cruel and unjustifiable attempt to scare Goodridge into swearing to something that was false against the District Attorney’s office?” For Thayer the question was rhetorical. “I have tried to look at this conduct of Mr. Moore with a view of finding some justification or excuse of it,” he concluded. “I can find none.”
He was equally severe with Moore in denying the Andrews motion. Perhaps smiling to himself, he wrote, “My relationship with [Moore] has been very pleasant, although at times it would seem, as was very natural, that he was quite unfamiliar with our trial evidence and practice in this state.” Then he let the Californian have both barrels: “Mr. Moore, judging him by his conduct as disclosed under his own motion, signed by him, seems to be laboring under the view that an enthusiastic belief in the innocence of his clients justifies any means in order to accomplish the ends desired.” He accused Moore of a “more intense desire to procure a confession of perjury from Mrs. Andrews than a profound desire to seek the truth.”
When Thayer came to the Hamilton motion, he was undoubtedly convinced by the episode of the switched gun-barrels that the self-styled doctor from Auburn was a sharper. He did not elaborate, but in each instance he ruled that Hamilton’s claim was not sustained.
Captain Proctor’s affidavit was more of a problem, for there were no two ways about it. Proctor had signed his name to his own impeachment, and Katzmann and Williams had never denied the substance of it. Nevertheless, it was Thayer’s opinion that Proctor had meant what he said in court, and that the jury had so understood it. “If Captain Proctor found no facts to believe that the mortal bullet passed through the Sacco pistol, why, when he had a perfect opportunity so to do, did he not say that his opinion was then, as it is now, that it was not consistent with it?” Thayer did not feel there had been any conniving by Katzmann and Williams to shape the question in advance. He did not try to explain why Proctor had afterward made the refuting statement.
“If I have erred in my judgment (and I fully realize I am human),” Thayer concluded with a sense of relief at freeing himself from the burden, “let me express the assurance that the supreme judicial court of this Commonwealth in due time will correct such error.”