The words are ambiguous. Thompson took them to mean that the Department of Justice, if it could not get Sacco and Vanzetti deported as radicals, would cooperate in getting them executed for a crime they had not committed. As a matter of fact, Sacco and Vanzetti, if they had been acquitted at Dedham, would through their own courtroom testimony have then been subject to deportation as anarchists. West’s attitude in cooperating with Katzmann, may have been a callous one, but it seems clear that there was nothing in the Bureau of Investigation files tending to prove either the guilt or the innocence of the two Italians.
On September 13 Thompson again appeared before Judge Thayer in the Dedham courthouse to argue that the verdict against Sacco and Vanzetti should be set aside because of the Madeiros confession and the Weyand and Letherman affidavits. Thayer denied Thompson’s request to have Madeiros examined and cross-examined in open court, but aside from this the judge’s manner was courteous if impassive. From time to time he would even unbend enough to come out with a small witticism. For five days affidavits were read and Thompson argued for, while Assistant District Attorney Ranney argued against, the motion. Sacco and Vanzetti were not in the courtroom. Rosina was there with Mrs. Evans as well as Mrs. Rantoul, Jerry McAnarney, and Professor Frankfurter.
Thompson maintained that if Sacco and Vanzetti had never come into the case, the evidence he had assembled in Providence would have been sufficient to indict the Morellis. Under these circumstances he felt that Judge Thayer should order a new trial. Thompson’s attack on the Department of Justice and his interpretation of its role caused much more of a sensation in Boston than did the twice-told tale of the Madeiros confession. One of his incidental revelations was that a Bureau agent named Shaughnessy who had investigated Sacco and Vanzetti had subsequently been sent to prison for highway robbery.
Assistant District Attorney Ranney admitted that if Madeiros had participated in the South Braintree holdup, Sacco and Vanzetti were innocent, but he considered Madeiros’ confession worthless. The district attorney’s office would “answer, but not investigate, because we know or believe that the truth has been found.” As for Letherman and Weyand, Ranney took the position that the two ex-agents were traitors. “In all police departments, in all detective departments,” he told the court, “secrecy is a watchword, a byword—‘Do not betray the secrets of your departments.’ And if the secrets were broadcast, what would be the result? There would be no crime detected and punished. And yet Letherman and Weyand give their affidavits to these defendants and betray the secrecy of their department. We say on the face of it that there is a breach of loyalty, and we wonder if we cannot conscientiously and logically find that these men, not now in the department, did not leave there with honor but dishonor.”
Thompson flared up at Ranney’s mention of secrets: “I will say to your Honor that a government which has come to value its own secrets more than it does the lives of its citizens has become a tyranny, whether you call it a republic, a monarchy, or anything else. Secrets! Secrets! And he says you should abstain from touching this verdict of your jury because it is so sacred. Would they not have liked to know something about secrets? The case is admitted by that inadvertent concession. There are then secrets to be admitted!”
After studying the documents and affidavits for five weeks Judge Thayer, on October 23, rejected the motion. He could have done so without giving his reasons, but apparently feeling the need for self-justification, he issued a twenty-five-thousand-word opinion.
Being controlled only by judgment, reason and conscience [he wrote], and after giving as favorable consideration to these defendants as may be consistent with a due regard for the rights of the public and sound principles of law, I am forced to the conclusion that the affidavit of Madeiros is unreliable, untrustworthy and untrue. To set aside a verdict of a jury affirmed by the Supreme Judicial Court of this Commonwealth on such an affidavit would be a mockery upon truth and justice. Therefore, exercising every right vested in this Court in the granting of motions for new trials by the law of the Commonwealth, this motion for a new trial is hereby denied.
In his years on the bench Thayer must have told hundreds of juries that it was for them to determine the facts. Yet here, where his function was merely to determine whether the Madeiros evidence was weighty enough to warrant presentation to a jury, he had taken over the jury’s function of determining its truth. But beneath his formalism on the bench and his outward courtesy to Thompson, Judge Thayer was nettled. Why any respectable lawyer should attempt to stretch the law for two properly convicted anarchists was beyond him. He concluded:
Since the trial before the Jury of these cases, a new type of disease would seem to have developed. It might be called “legopsychic neurosis” or “hysteria” which means: “a belief in the existence of something which in fact and truth has no such existence.”