Hellyer gave his altered account of what Jenny Novelli had told him. As the existence of his written report was not then known, his statements passed unchallenged. Lieutenant Guerin told of going to Sacco’s house and picking up the gray cap with a rip in the lining from the kitchen table. Moore objected to the cap being admitted as an exhibit on the grounds of unlawful search and seizure. He also objected to the jury’s seeing the Buick and demanded that all references to it be struck out. As usual his objections were overruled.
Hawley, a salesman and a former Brockton special police officer, said that on April 15 he was driving his Ford in Brockton. In starting to turn around on School Street to go to Whitman, he had forced a Buick touring car to come to a stop. It was a dirty car with flapping side-curtains and as it stopped the driver stuck his head out and asked the way to Whitman. The man Hawley had seen sitting next to the unidentified driver was Vanzetti.
Chief Stewart resumed the stand briefly to add a few more passages of the Brockton interrogatory that he had previously omitted. There followed a discussion about the admission as evidence of the books found in Sacco’s house and whether they should be translated. Finally both sides agreed to let them in as they were, Moore remarking that the titles spoke for themselves. Shortly after lunch both sides rested.
There was a pause, a rustle in the courtroom, as the lawyers gathered up their documents and the spectators eyed Judge Thayer. He cleared his throat, looked dryly at Moore, then turned to the jury.
“Well, gentlemen,” he said in his toneless voice, “the book of fate in these cases has been closed. You will undoubtedly get these cases for final determination Thursday forenoon, or Thursday morning. During your absence quite a number of things have been settled between counsel, one of which is that arguments will be made tomorrow, beginning at nine o’clock. It has been agreed that four hours shall be given to each side—that is four hours for the defendants and four hours for the Commonwealth. They may run a little over that time.
“I must again suggest to you to still keep your minds open. The evidence has simply closed now. You have not heard the arguments of both counsel. You have not heard the charge of the Court. You must hear what the law is of the Commonwealth in order that you may apply the law to established facts found by you to be true, and therefore with this request, which is kindly made by the Court, I trust you will do what you can to see to it that it is fully carried into effect.”
Edmund Morgan, in his study of the trial published in 1948, considered it an act of incomprehensible folly for the defense to agree to any such four-hour limitation. But in agreeing to the limitation, Moore and the McAnarneys were from long practical experience aware of the dangers of taxing a jury’s patience. Jurymen who had already sat through thirty uncomfortable days of testimony might react against an argument running several days. Besides, it was common bar knowledge that by the time the summations were reached, a jury, despite any judge’s hortatory injunctions, had pretty well made up its collective mind.
Moore and Jerry McAnarney agreed to divide their allotted morning, with Moore appearing first. But the ingenious and aggressive general counsel of the I.W.W., the victor of so many underdog courtroom battles, was that Wednesday morning like a speaker who has lost rapport with his audience. He rambled. The telling points escaped him. Jerry McAnarney, tripping over his grammar, made a far better follow-up.
Moore opened by remarking wryly that in the six weeks of the trial, he, as a Californian, had felt almost an alien in the Dedham court. He then went on to develop his argument, claiming that the primary—in fact the only—issue was one of identification. Taking the Commonwealth’s witnesses in order, he asked why it was that the expressman Neal, when he felt his life was in danger, had not bothered to look at the number of the threatening car directly in front of his door? How was it that Faulkner, on the train, could remember the man he said was Vanzetti leaning over from the rear seat and yet could not remember the man in the seat beside him? Moore recalled to the jury the Italian railroad worker, Nicola Gatti, the one witness who had known Sacco before the crime, and begged them not to be prejudiced by the fact that the man was an Italian. He pointed out that Mary Splaine’s elaborate identification must have derived from the times she saw Sacco at the police station and not from the fleeting glimpse she had had from the upper window of the Hampton House, and he brought up again her indecisive statements in Quincy, so opposed to her Dedham positiveness. As for Lola Andrews, “even though we had not offered a single witness against her, she killed herself on the witness stand by her own personality, but Campbell, Fay, La Brecque finished her up.” Pelser was unemployed when he told defense investigator Robert Reid that he had seen nothing of the shooting, but a few months after he got a job with Rice & Hutchins he was willing to testify for the Commonwealth. Goodridge, the poolroom man, was in the courtroom for some other purpose when he identified Sacco. Why?
“Gentlemen,” Moore summed up, “there isn’t a single witness called by the government who had an unqualified opportunity of observation who gives an identification. Bostock had the opportunity and wouldn’t. McGlone had the opportunity and wouldn’t. So on down the line. But it is the Lola Andrews, the Goodridges, the Pelsers that made the identification. Miss Splaine and Miss Devlin I reject, because their testimony is utterly unreasonable. They did not have the opportunity. They could not. You know it and I know it.”