Madeiros said that the gang "had been engaged in robbing freight cars in Providence." Was there such a gang? There was the Morelli gang, well known to the police of Providence and New Bedford as professional criminals, several of whom at the time of the Braintree murders were actually under indictment in the United States District Court for Rhode Island for stealing from freight cars. Five out of nine indictments charging shoe thefts were for stealing consignments from Slater and Morrill at South Braintree and from Rice and Hutchins, the factory next door. In view of their method of operations, the gang must have had a confederate at South Braintree to spot shipments for them. The Slater and Morrill factory was about one hundred yards from the South Braintree railroad station and an accomplice spotting shipments would be passed by the paymaster on his weekly trip. It will be recalled that the pay roll was that of the Slater and Morrill factory and that the murder and the robbery occurred in front of these two factories. The Morellis under indictment were out of jail awaiting trial. They needed money for their defense; their only source of income was crime. They were at large until May 25, when they were convicted and sent to Atlanta.

Madeiros did not name the gang, but described the men who were with him at South Braintree. How did his descriptions fit the Morelli gang? The leader of the gang was Joe, aged thirty-nine. His brothers were Mike, Patsy, Butsy, and Fred. Other members were Bibba Barone, Gyp the Blood, Mancini, and Steve the Pole. Bibba Barone and Fred Morelli were in jail on April 15, 1920. According to Madeiros there were five, including himself, in the murder car, three of whom were Italians, and the driver "Polish or Finland or something northern Europe." The shooting was done by the oldest of the Italians, a man of about forty, and another called Bill. A fourth Italian brought up the Buick car for exchange at Randolph. As far as his descriptions carry, Madeiros's party fits the members of the Morelli Gang. But the testimony of independent witnesses corroborates Madeiros and makes the identification decisive. One of the gravest difficulties of the prosecution's case against Sacco and Vanzetti was the collapse of the Government's attempt to identify the driver of the murder car as Vanzetti. The District Attorney told the jury that "they must be overwhelmed with the testimony that when the car started it was driven by a light-haired man, who gave every appearance of being sickly." Steve the Pole satisfies Madeiros's description of the driver as well as the testimony at the trial. To set the matter beyond a doubt, two women who were working in the Slater and Morrill factory identified Steve the Pole as the man they saw standing for half an hour by a car outside their window on that day. Two witnesses who testified at the trial identified Joe Morelli as one of the men who did the shooting and another identified Mancini. The Morellis were American-born, which will explain the testimony at the trial that one of the bandits spoke clear and unmistakable English, a thing impossible to Sacco and Vanzetti.

Plainly the personnel of the Morelli gang fits the Braintree crime. What of other details? The mortal bullet came out of a 32 Colt; Joe Morelli had a 32 Colt at this time. Mancini's pistol was of a type and calibre to account for the other five bullets found in the victims. The "murder car" at the trial was a Buick. Madeiros said a Buick was used; and Mike Morelli, according to the New Bedford police, at this time was driving a Buick, which disappeared immediately after April 15, 1920. In fact, the police of New Bedford, where the Morelli gang had been operating, suspected them of the Braintree crime, but dropped the matter after the arrest of Sacco and Vanzetti. Shortly after the Braintree job, Madeiros was imprisoned for five months for larceny of an amount less than $100. But immediately after his release he had about $2800 in bank, which enabled him to go on a pleasure trip to the West and Mexico. The $2800 is unaccounted for otherwise than as his share of the Braintree booty. Joe Morelli, as we know, was sent to Atlanta for his share in the robbery of the Slater and Morrill shoes. While confined he made an arrangement with a fellow prisoner whereby the latter was to furnish him with an alibi, in case of need, for April 15, 1920, placing Morelli in New York.

Even so compressed a precis of the evidence of many witnesses will have made it clear that the defense has built up a powerful case, without the resources at the command of the State in criminal investigations. The witnesses other than Madeiros of themselves afford strong probability of the guilt of the Morellis. What of the intrinsic credibility of Madeiros's confession, which, if believed, settles the matter? A criminal's confession, as we have noted, must be scrutinized with the utmost skepticism. A man who assumes guilt for one crime while about to undergo the penalty of death for another does not carry the least conviction. The circumstances of Madeiros's confession, however, free it from suspicion and furnish assurances of its trustworthiness. Far from having nothing to lose by making the confession, Madeiros stood to jeopardize his life. For while, to be sure, at the time of his confession he was under sentence for another murder, an appeal from this conviction was pending, which was in fact successful in getting him a new trial. Could anything be more prejudicial to an effort to reverse conviction for one crime than to admit guilt for another? So clearly prejudicial, in fact, was his confession that by arrangement with the District Attorney it was kept secret until after the outcome of his appeal and the new trial which followed it. Moreover, the note of confession sent by Madeiros to Sacco on November 18 was not, as we have seen, his first communication to Sacco. Nor was it his first explicit confession. The murder for which he had been convicted, together with a man named Weeks,—the Wrentham bank crime,—was a holdup like the Braintree job. Weeks, under life sentence in another jail, when questioned revealed that in planning the Wrentham job Madeiros drew on his experience at South Braintree. During their partnership Madeiros had frequently referred to the Braintree job, saying it was arranged by the Morelli gang (whom Weeks knew), and at one time identifying a speak-easy in which they found themselves as the one the gang visited before the Braintree holdup. In planning the Wrentham job Madeiros further told Weeks that he "had had enough of the Buick in the South Braintree job." Before the Wrentham crime he had talked to the couple who kept the roadhouse where for a time he was a "bouncer" of his part in the Braintree crime and said "that he would like to save Sacco and Vanzetti because he knew they were perfectly innocent."

These earlier disclosures by Madeiros completely refute the theory that he was led to make his latest confession in 1925 by the hope of getting money. It is suggested that in November 1925 he had seen the financial statement of the Sacco-Vanzetti Defense Committee. But, in the first place there is no proof that Madeiros saw this statement before he made the confession. Secondly, he could not have had knowledge of this statement before he talked to Weeks and the others and when he attempted the prior communications to Sacco, because it was not then in existence. It is incredible that a man fighting for his life on a charge for one murder would, in the hope of getting money, falsely accuse himself of another murder. Madeiros knew the danger of a confession, for his conviction in the Wrentham case largely rested upon confessions made by him. Why should he be believed and suffer death when he confesses one crime and not be believed when he confesses another of the same character? Is not his own statement in accordance with the motives even of murderer?

I seen Sacco's wife come up here with the kids and I felt sorry for the kids.

Let us compare the two hypotheses. The Morelli theory accounts for all members of the Braintree murder gang; the Sacco-Vanzetti theory for only two, for it is conceded that, if Madeiros was there, Sacco and Vanzetti were not. The Morelli theory accounts for all the bullets found in the dead men; the Sacco-Vanzetti theory for only one out of six. The Morelli explanation settles the motive, for the Morelli gang were criminals desperately in need of money for legal expenses pending their trial for felonies, whereas the Sacco-Vanzetti theory is unsupported by any motive. Moreover, Madeiros's possession of $2800 accounts for his share of the booty, whereas not a penny has ever been traced to anybody or accounted for on the Sacco-Vanzetti theory. The Morelli story is not subject to the absurd premise that professional holdup men who stole automobiles at will and who had recently made a haul of nearly $16,000 would devote an evening, as did Sacco and Vanzetti the night of their arrest, to riding around on suburban street cars to borrow a friend's six-year-old Overland. The character of the Morelli gang fits the opinion of police investigators and the inherent facts of the situation, which tended to prove that the crime was the work of professionals, whereas the past character and record of Sacco and Vanzetti have always made it inherently incredible that they should spontaneously become perpetrators of a bold murder, executed with the utmost expertness. A good mechanic, regularly employed at his trade, but away from work on a particular day which is clearly accounted for, and a dreamy fish peddler, openly engaged in political propaganda, neither do nor can suddenly commit an isolated job of highly professional banditry.

Can the situation be put more conservatively than this? Every reasonable probability points away from Sacco and Vanzetti; every reasonable probability points toward the Morelli gang.

How did these facts appear to Judge Thayer?

VIII.

At the outset the scope of Judge Thayer's duty toward the motion for a new trial based upon this new evidence must be kept in mind. It was not for him to determine the guilt of the Morellis or the innocence of Sacco and Vanzetti; it was not for him to weigh the new evidence as though he were a jury, determining what is true and what is false. Judge Thayer's duty was the very narrow one of ascertaining whether here was new material fit for a new jury's judgment. May honest minds, capable of dealing with evidence, reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Could another jury, conscious of its oath and conscientiously obedient to it, be sufficiently impressed with the new evidence to reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adduceable by the defense at the time of the original trial? To all these questions Judge Thayer says, "No." This amazing conclusion he reached after studying the motion "for several weeks without interruption" and set forth in an opinion of 25,000 words! We wish for nothing more than that every reader who has proceeded thus far should study the full text of this latest Thayer opinion. Space precludes its detailed treatment here. To quote it, to analyze it, adequately to comment upon it would require a book. Having now put the materials for detailed judgment at the disposal of readers, we are compelled to confine ourselves to a few brief observations. By what is left out and by what is put in, the uninformed reader of Judge Thayer's opinion would be wholly misled as to the real facts of the case. Speaking from a considerable experience as a prosecuting officer, whose special task for a time it was to sustain on appeal convictions for the Government, and whose scientific duties since have led to the examination of a great number of records and the opinions based thereon, I assert with deep regret, but without the slightest fear of disproof, that certainly in modern times Judge Thayer's opinion stands unmatched for discrepancies between what the record discloses and what the opinion conveys. His 25,000-word document cannot accurately be described otherwise than as a farrago of misquotations, misrepresentations, suppressions, and mutilations. The disinterested inquirer could not possibly derive from it a true knowledge of the new evidence that was submitted to him as the basis for a new trial. The opinion is literally honeycombed with demonstrable errors, and a spirit alien to judicial utterance permeates the whole. A study of the opinion in the light of the record led the conservative Boston Herald, which long held the view that the sentence against these men should be carried out, to a frank reversal of its position.

Dr. Morton Prince writes that any expert psychologist reading the Thayer opinion "could not fail to find evidences that portray strong personal feeling, poorly concealed, that should have no place in a judicial document." One or two illustrations must suffice. William G. Thompson is one of the leaders of the Boston bar. Yet Judge Thayer thus characterized Mr. Thompson's activities in behalf of these two Italians:—

Since the trial before the jury of these cases a new type of disease would seem to have developed. It might be called 'lego-psychic neurosis' or hysteria, which means: 'A belief in the existence of something which in fact and truth has no such existence.

And this from a judge who gives meretricious authority to his self-justification by speaking of the verdict which convicted these men as "approved by the Supreme Judicial Court of this Commonwealth." The Supreme Court never approved the verdict; nor did it pretend to do so. The Supreme Court passed on technical claims of error, and, "finding no error, the verdicts are to stand." Judge Thayer knows this, but laymen may not. Yet Judge Thayer refers to the verdict as "approved by the Supreme Judicial Court."

No wonder that Judge Thayer's opinion has confirmed old doubts as to the guilt of these two Italians and aroused new anxieties concerning the resources of our law to avoid grave miscarriage of justice. The courageous stand taken by the Boston Herald has enlisted the support of some of the most distinguished citizens of Massachusetts. The Independent has thus epitomized this demand:—

"Because of the increasing doubt that surrounds the question of the guilt of these men, springing from the intrinsic character of Judge Thayer's decision, and instanced by the judgment of the herald editorial writer and other observers whose impartiality is unquestioned, we strongly hope that a new trial will be granted. It is important to note that the appeal is being made on the basis of new evidence never passed on before the Supreme Court."

No narrow, merely technical, question is thus presented. The Supreme Court of Massachusetts will be called upon to search the whole record in order to determine whether Judge Thayer duly observed the traditional standards of fairness and reason which govern the conduct of an Anglo-American judge, particularly in a capital case. This court has given us the requirements by which Judge Thayer's decision is to be measured and the tests which it will use in determining whether a new trial shall be granted:—

The various statements of the extent of the power and of limitations upon the right to grant new trials...must yield to the fundamental test, in aid of which most rules have been formulated, that such motions ought not to be granted unless on a survey of the whole case it appears to the judicial conscience and judgment that otherwise a miscarriage of justice will result.

Nor must a new trial be withheld where in justice it is called for because thereby encouragement will be given to improper demands for a new trial. For, as the Chief Justice of Massachusetts has announced, courts cannot close "their eyes to injustice on account of facility of abuse."

With these legal canons as a guide, the outcome ought not to be in doubt.