But there were others, conservatives like Waldo Cook, the editor of the Springfield Republican, who found the report staggering. Speaking of its mention of Thayer’s grave breach of judicial decorum, Cook wrote: “If it was grave, it must taint irretrievably in the record the Sacco-Vanzetti case for all time.” The New York Times questioned the phrase “on the whole” and wondered “whether the ends of justice could not better have been obtained in some other way.” Pulitzer’s New York World, which under its chief editorial writer, Walter Lippmann, had consistently taken the side of Sacco and Vanzetti, gave its entire editorial page to an editorial “Doubts That Will Not Down.” Heywood Broun, as columnist for the World, announced bitterly that “if all the venerable college presidents in the country tottered forward and pronounced the men guilty they would still be innocent.” Broun—reacting to what he considered the general apathy about the case in the United States—became so violent in his comments on President Lowell’s throwing the switch and Harvard as Hangman’s House that Pulitzer finally suspended his columns.
On opinion overseas, even conservative opinion, the Lowell Report had almost no effect.
On Monday morning, August 8, in the Pemberton Square Courthouse, Supreme Court Justice Sanderson listened to Thompson—now merely a witness—testify that the right of the defendants had been violated by Judge Thayer’s prejudice. The justice denied the application for a writ of error and stay of execution. At Dedham in the afternoon, when Judge Thayer opened his special session he found himself in the anomalous position of ruling on his own prejudice. The courthouse was again heavily guarded and the public barred from the courtroom, although Sheriff Capen made no difficulties about admitting Rosina, Mrs. Evans, Mrs. Henderson, and other friends. The prisoners themselves were not present.
Thayer remained stubbornly vulnerable and Hill did not spare him. To the latter’s passionate request that he step down from the bench he observed impassively that the chief justice had assigned him and he was there to hear the motion.
Hill’s anger vibrated through the open-windowed courtroom: “Do you think you can sit on the case and consider the issues? It is beyond human power to do. No man is so wise, clear-headed and dispassionate that he can sit on the question whether he was actuated by prejudice, and it is not fair to ask him. It should be before some other man, not only because of the welfare of the defendants, the welfare of the bench, the welfare of the administration of justice, but the welfare of Your Honor himself.”
In answer to the motions for a new trial, Thayer ruled that according to Massachusetts law he had no jurisdiction to grant one, once sentence had been passed. As to the motion for a revocation of sentence and stay of execution, he agreed to accept Hill’s affidavits and listen to his arguments. With chill and condescending politeness Hill, enumerating the affidavits, pointed out that Judge Thayer’s state of mind at the trial and afterward disqualified him from acting as a judge. Hill insisted that in all the judge’s rulings as well as in his actions off the bench he had shown prejudice.
Thayer stared fixedly at Hill, his eyes hard and bright, a thin glow behind his waxen pallor. When the lawyer had finished he began to speak, his voice more charged with feeling than ever it had been before in that familiar room:
“I agreed and always insisted with the full force of my nature that no matter what race or religion, conservative or radical, conformist or nonconformist was entitled to a fair and impartial trial and as my mind goes back over seven years of lawyers contesting every point, I recall that the case was taken on two occasions to the Supreme Court and the court dealt with two hundred sixty exceptions and ... did not leave one exception.
“That I am willing to be judged by—but prejudice—there isn’t any now and there wasn’t at any time. I do this now as it is the only way a judge can plead his own case. For seven years I have been in a position where I could not say a word. This is the only time I could say anything.”