Frankfurter had not concerned himself with the Sacco-Vanzetti case during the trial or immediately following it. Only when he saw the headlines in the autumn of 1923 that Thompson had accused the prosecution of a frame-up in regard to Captain Proctor’s testimony did he begin to take an interest. After he read that Proctor had sworn that when he said “consistent with” he did not really think the bullet had gone through the gun, his neutrality evaporated. And when Katzmann, in reply to Proctor, said he had not “repeatedly” asked the question, that settled it. Frankfurter wrote his Atlantic article with, as he himself boasted, the intention of jolting minds.
On April 5, in the Pemberton Square courthouse, the Supreme Court handed down its decision. Guards took their places all through the cavernous building; deputy sheriffs and court officers patrolled the corridors. Guards were also placed in front of the railings of Governor Fuller’s Beacon Street mansion and sent to Judge Thayer’s home in Worcester.
The decision upheld Judge Thayer at every point. Through the late afternoon the news, first chalked up on the bulletin boards of Newspaper Row on Washington Street, spread through the business district like wildfire. Everyone wanted to know just one thing: What could the two Italians do now?
According to Massachusetts law the court was limited to determining whether the trial judge had committed any errors of law or abuses of discretion. These were the limitations rigidly held to by Justice Wait in his opinion. Could Thayer conscientiously, intelligently, and honestly have reached the result he has reached? the court asked itself collectively, and answered, through Justice Wait, that he could have.
The granting or the denial of a motion for a new trial of an indictment for murder rests in the judicial discretion of the trial judge, and his decision will not be disturbed unless it is vitiated by errors of law or abuse of discretion.
The question of the guilt or innocence of the defendants was not a matter for consideration. Citing a civil case, Davis v. Boston Elevated Railway, as precedent, the court ruled:
It is not imperative that a motion for a new trial of an indictment for murder based on newly discovered evidence be granted, even though the evidence is newly discovered, and, if presented to a jury, would justify a different verdict.
The Massachusetts tradition, sternly enforced by Chief Justice Rugg, was that Supreme Judicial Court decisions were unanimous, but that behind the ruling of April 5 there may have been some suppressed stirrings of doubt was indicated by an incident related by Herbert Ehrmann. In 1938, as he was addressing a Boston Bar Association memorial meeting in honor of Thompson, he noticed Justice Pierce in the audience. Pierce had been a member of the Massachusetts Supreme Court during the entire period of the Sacco-Vanzetti case, and Ehrmann felt uneasy over the critical remarks he was about to make. When, however, the meeting was over, the justice came forward with tears pouring down his cheeks, grasped Ehrmann’s hand, and said in a broken voice, “Thank you! Thank you! Thank you!”