Democratic justice, p.25
Democratic Justice, page 25
On the evening of August 3, Frankfurter waited in “shirt-sleeves” at the Sacco-Vanzetti Defense Committee headquarters in Boston for news about the governor’s decision. The first word came from the radio; a few minutes later, they received the official word from the state house: Governor Fuller announced that he would not grant clemency because Sacco and Vanzetti had received a fair trial. He based the decision on his own investigation as well as on the Lowell report. The Lowell committee, which had presented its findings to the governor on July 27, unanimously agreed. A few days after the governor’s decision, the Lowell committee released its report. Frankfurter knew the report’s conclusion that the South Braintree murders were an amateur job, as opposed to a professional hit, was unsupported by the evidence. And he wired Lippmann that the governor’s decision was “monstrous.”
During Frankfurter’s final efforts to save Sacco and Vanzetti, the Massachusetts State Police was listening to his every move. On August 1, the state attorney general authorized the tapping of Frankfurter’s telephone and telegraph wires in Duxbury and hired people to transcribe almost every word. Frankfurter knew he was a marked man. Old Boston considered him a “hard-headed lawyer” and “ ‘officious damned radical jew’ who has meddled with this case.” A friend tipped him off that Governor Fuller had ordered the wiretaps and had been spreading lies that he had received $100,000 in “Moscow Gold” for the Atlantic Monthly article and book rather than the $250 magazine fee he split with Sylvester Gates and $413.73 in book royalties he donated to the Sacco-Vanzetti Defense Committee. Frankfurter knew better than to turn it into a fight between him and Lowell or him and Fuller. Instead, he found other people to take the lead.
Frankfurter’s first order of business was recruiting new defense counsel. After the governor’s decision, Thompson and Ehrmann withdrew from the case. They denounced the Lowell committee for interviewing witnesses in secret, disputed the report’s conclusions, and declared their clients innocent. For three years, Thompson had represented the men at enormous financial and emotional cost. At the end, he was exhausted to the point of mumbling to himself in his office and went to New Hampshire to rest. Frankfurter knew the perfect person to take over for Thompson—Arthur Dehon Hill.
The Paris-born son of a Harvard English professor, Hill had founded one of the city’s most respected law firms, Hill, Barlow & Homans, and in 1909 had served as the Suffolk County district attorney. Boyish-looking and quick-witted, Hill had been ostracized from Old Boston’s political establishment for supporting Theodore Roosevelt’s Bull Moose campaign in 1912 and Brandeis’s Supreme Court nomination four years later. Moorfield Storey had retaliated by trying to block Hill’s permanent appointment to the Harvard law faculty. Frankfurter, however, intervened by soliciting a letter of endorsement from Hill’s old family friend, Justice Holmes. A member of the Harvard law faculty from 1915 to 1919, Hill taught evidence and criminal law. During the war, he served in the Judge Advocate General’s Corps and worked for the Red Cross in France. Resigning from the faculty after the war, Hill returned to his Boston law practice and later served as the city’s corporation counsel. Hill and Frankfurter shared a lot in common—Bull Moose political pasts and a love of Holmes, liberal politics, and public service; Ehrmann described them as “brothers under the skin.”
On August 1, Frankfurter phoned Hill and asked to him to consider taking over as Sacco-Vanzetti’s defense counsel. Hill was intimately familiar with the case. In 1923, he had assisted Thompson with some new trial motions. Hill mulled over Frankfurter’s offer for two days then suggested that they meet for lunch at the Somerset Club. After lunch and a walk to the frog pond in Boston Common, Hill agreed to exhaust Sacco and Vanzetti’s appeals for $5000 or “whatever was reasonable.” Hill refused to collect any fees for his time and asked only that the Sacco-Vanzetti Defense Committee cover the fees and expenses of his two associates. Hill accepted the job not because he believed the men to be innocent but out of a sense of duty.
With Hill leading the defense team, Frankfurter outlined what he viewed as the strongest constitutional argument, a due process claim about Judge Thayer’s prejudicial evidentiary rulings during the trial, comments about the defendants and their lawyers outside the courtroom, and rulings on the new trial motions: “The point is this as I see it: An accused is not entitled to a wise judge, or a learned judge, or a wholly calm judge. But, surely, the essence of an Anglo-American trial, particularly in a capital case, implied a judge.” This was especially true in Massachusetts where the trial judge’s evidentiary rulings and factual determinations were unreviewable by the Supreme Judicial Court. Frankfurter emphasized Judge Thayer’s “rooted prejudice against the men” as the key to winning a stay of execution, new trial, or executive clemency on the basis of a violation of their basic due process rights. Hill agreed with Frankfurter’s proposed legal strategy.
Before he sought relief in federal court, Hill exhausted Sacco and Vanzetti’s appeals in state court. On August 6, he filed motions for a new trial and to revoke the death sentences. The chief justice designated Judge Thayer to hear the motions. Two days later, Thayer denied Hill’s objections that he was too prejudiced to hear the case and denied the new trial motions. Hill appealed to the Supreme Judicial Court and individually to Justice George Sanderson, who refused to intervene.
On August 10, Frankfurter boarded a train from Kingston to Boston to confer with Hill at 10:00 a.m. about legal strategy before Sacco and Vanzetti’s midnight executions. The immediate goal was to find someone to stay the executions so that Hill could litigate the pair’s constitutional claims in federal court. After meeting with Frankfurter, Hill prepared to appeal Justice Sanderson’s ruling to the Supreme Judicial Court. Shortly after noon, Hill arrived at the statehouse to ask the governor and his parole board–like executive council to delay the executions to allow him to exhaust Sacco and Vanzetti’s appeals in state and federal court. Around 1:30 p.m., he realized that the governor and the council had no intention of seeing him. Hill, Thompson, and two other lawyers sped off in two cars twenty-nine miles north of the city to Beverly Farms to seek relief from Justice Holmes.
Frankfurter, who returned to Duxbury that afternoon, had no intention of joining the defense team at Beverly Farms. He agreed that Holmes was the ideal judge to hear the due process claims. In 1915, Holmes had dissented in Leo Frank’s case, arguing that Frank’s due process rights had been violated by a criminal trial so mob-dominated that for his own safety he had been barred from attending his sentencing. The lynch mob, Holmes contended, had made it impossible for the jury to acquit Frank, the Jewish superintendent of an Atlanta, Georgia, pencil factory. Eight years later, Holmes wrote the Court’s majority opinion in Moore v. Dempsey declaring that mob-dominated criminal trials violated the Due Process Clause. The decision had saved the lives of black sharecroppers who had been subjected to sham trials and sentenced to death after Arkansas’s Elaine massacre. Moore v. Dempsey, Frankfurter and the defense team agreed, was Sacco and Vanzetti’s best hope. Hill and Thompson asked Holmes to grant them a writ of habeas corpus declaring that Sacco and Vanzetti’s conviction violated their constitutional rights. In a more likely alternative, they requested a stay of execution so the entire U.S. Supreme Court could hear the case in October.
Frankfurter waited by the phone as Hill and Thompson arrived at the justice’s large Victorian house near Manchester Bay at 2:50 p.m. They argued their case in the first-floor parlor. Holmes knew this day was coming. In April, he had read Frankfurter’s book, privately praised Frankfurter for writing it, and heard how the case had divided Old Boston. He knew that Frankfurter was behind the plea. In Holmes’s parlor, Hill and Thompson argued that a trial before a prejudiced judge was like having no judge at all and violated due process as much as the sham trials of the Arkansas sharecroppers with an angry mob outside. Mentally sharp, the 86-year-old Holmes distinguished between an angry lynch mob and a prejudiced judge. Hill and Thompson saw no difference “whether the motive was fear or the prejudices alleged in this case.” Holmes countered “most differences are differences of degree” and distinguished between “external force” and “prejudice—which could be alleged in any case.” After two and a half hours, the justice denied the writ or stay in a one paragraph decision, said goodbye to Hill and Thompson, and went straight to bed. “I know of no human power at this time that can save them,” Hill told a reporter. Nonetheless, he and Thompson returned to Boston to seek relief from Judge George W. Anderson. The liberal federal judge who had invited Frankfurter and Chafee to defend the rights of Boston immigrants after the Palmer raids, Anderson learned about Holmes’s decision and refused to intervene.
The Frankfurters canceled their plans that night to see the Jitney Players, a traveling theatrical troupe, to wait for a phone call from the defense team. Felix told Marion to go to the theater, but as invested in the case as her husband, she stayed home, too. At 8:00 p.m., he learned that Holmes had denied any relief and the governor had not granted a stay of execution. Frankfurter rejected a request to come to Boston that night to assist defense counsel but offered one final piece of advice:
“You know where the other Justice is?” Frankfurter asked.
“No.”
“In Chatham. Phone 330.”
“330?”
“Yes. You will be kind enough not to talk about this talk between us. Laymen cannot sometimes appreciate.”
The eleventh-hour effort, however, would be made not with the justice in Chatham, but at the statehouse.
BACK IN BOSTON, the Sacco-Vanzetti Defense Committee was losing hope. At 9:00 p.m., three hours before the men were supposed to die at Charlestown State Prison, Sacco’s wife had collapsed in distress. Eight hundred police officers armed with high-pressure hoses and machine guns guarded the prison; thirty-nine protesters, including writers John Dos Passos and Dorothy Parker, were arrested for illegally picketing the statehouse. Hill arrived at the statehouse after his visits with Holmes and Anderson and could not find anyone to grant a stay. The governor and his executive council were furious that Hill had circumvented their authority by seeking relief in federal court. Later that night, they agreed to hear Hill’s final plea for a stay to exhaust the appeals process. Governor Fuller favored granting the stay; his executive council did not. Finally, at 11:27 p.m., thirty-three minutes before their executions, the governor’s executive council granted Sacco and Vanzetti a stay until August 22.
With another twelve days to save Sacco and Vanzetti from the electric chair, Frankfurter stifled every impulse to speak out about their innocence, the unfairness of their trial, and the erroneous conclusions in the Lowell report. He resisted entreaties from Thompson and others to answer the report and explained “for me publicly now to intervene in this matter would hurt the cause of the men and not help them.” He knew that people in Old Boston despised him and tried to discredit his book. “To a considerable extent I was on trial and the Lowell report is in part a report against me, although not a single fact in my book is controverted by that report,” he wrote Thompson. “Therefore, much as it goes against the grain, my role for the present is silence.”
Silence did not mean inaction. Frankfurter was determined to create a groundswell of public support for a stay of execution and a new trial and believed the best way to influence Governor Fuller and President Lowell was through the press. He started with the New York World. Still unwilling to come to Boston, Lippmann sent a reporter to Duxbury. For many hours, Frankfurter showed the reporter new evidence he had not seen before. Not willing to take the reporter’s word that he would show the evidence to Lippmann and knowing how ambivalent Lippmann had been throughout the case, Frankfurter took matters into his own hands. He boarded the train for New York City and grabbed a notable reinforcement in C. C. Burlingham. A leading New York admiralty lawyer who had represented the White Star Line after the sinking of the Titanic, Burlingham joined Frankfurter in an August 18 session with Lippmann lasting many hours. They “did a job” on him. The next day, under the headline “Doubt that Will Not Down,” Lippmann devoted the World’s entire editorial page to reviewing the evidence, refuting the Lowell committee’s report, and calling for a new trial in front of a new judge. “They thought Lowell was Lowell,” Felix told Marion, “but when doubts appeared they began to go the other way.”
With Lippmann and the World on his side, Frankfurter searched for other ways to reach Lowell’s conscience. He asked Julian Mack for names of influential Harvard alumni who could speak with him. Mack, Thompson, Calvert Magruder, and other lawyers wrote the president questioning the report’s conclusions. The New Republic published a full-page advertisement in the New York Times reviewing the evidence and challenging Lowell to reconsider his report. Meanwhile, Frankfurter holed up at Burlingham’s Connecticut summer home drafting a letter to the editor at the request of the New York Times. The August 20 letter, “The Advisory Report: A Review of Some of the Findings of the Lowell Committee; With Indication of Errors,” picked apart Lowell’s report through references to the record. It was signed only by Burlingham.
In addition to co-authoring Burlingham’s letter, Frankfurter helped the Sacco-Vanzetti Defense Committee assemble a group of distinguished professionals to sign a final petition to Governor Fuller asking him to commute Sacco and Vanzetti’s death sentences or stay their executions. A who’s who of American liberals—Jane Addams of Hull House, historian Charles Beard, New Republic editor Bruce Bliven, Burlingham, Springfield Republican editor Waldo Cook, Columbia philosopher John Dewey, University of Chicago law professor Ernst Freund, Harvard Medical School professor Alice Hamilton, journalist Norman Hapgood, The Survey editor Paul Kellogg, and Columbia economics professor Henry Seager—signed the petition, but not Frankfurter. A meeting with Governor Fuller went haywire when he interrupted them and accused them with great “hostility” of doing Frankfurter’s bidding.
Frankfurter was busy trying to keep the Sacco-Vanzetti Defense Committee from meddling with the legal strategy of Arthur Dehon Hill. Gardner Jackson, the publicity manager for the committee, was the prime offender. A former Boston Globe reporter, Jackson left the newspaper in 1926 to enroll in Harvard history classes and befriended historian Arthur Schlesinger, Sr. After a few months and with Schlesinger’s encouragement, Jackson stopped attending class and joined the defense committee full-time. Frankfurter reminded Jackson that Hill, who had taken on the representation for only $5000, had cost himself financially and socially by taking the case. “He is an outcast—,” Frankfurter told Jackson, “he is worse than Thompson, because he took up the fight when Thompson said nothing could be done—there was an end to the matter.” On August 19, the state Supreme Judicial Court rejected Hill’s latest appeal; a federal trial judge also refused to intervene in the case. Frankfurter knew the men were going to die but also knew that Hill was not giving up.
On August 20, two days before Sacco and Vanzetti’s execution, Hill returned to Beverly Farms to see Justice Holmes. A few weeks earlier, Holmes had granted a stay in the case of two black Kentucky men, Nathan Bard and Bunyan Fleming, who had been sentenced to death for the rape of a white woman. Bard and Fleming had not received pretrial access to defense counsel; their wives were prevented from testifying as alibi witnesses; and an all-white jury convicted the men in ten and eight minutes, respectively. During their second trip to Beverly Farms, Hill and two attorneys raised the Bard and Fleming case in their briefs and argued that Sacco and Vanzetti deserved a similar opportunity for the full U.S. Supreme Court to consider their petition seeking a writ of habeas corpus in October. After two hours of argument, Holmes denied the request for a stay. In a three-page opinion, he distinguished Sacco and Vanzetti’s case from Moore v. Dempsey because the trial of the Italian anarchists had not been “invaded by an infuriated mob ready to lynch prisoner, counsel and jury if there is not a prompt conviction.” He said their case might be “voidable” by the state Supreme Judicial Court, but not by him. He explained that federal judges were reluctant to interfere with state criminal trials except in extreme circumstances. And, in an allusion to the case of Bard and Fleming, he wrote: “Far stronger cases than this have arisen with regard to the blacks when the Supreme Court has denied its power.” Privately, Holmes critiqued Frankfurter and his liberal friends’ obsession with the case of two Italian anarchists by suggesting that they cared “more for red than for black.” In his opinion, Holmes permitted Hill to approach other judges.
At 7:40 p.m. on August 20, Frankfurter learned that Holmes had turned them down and knew where Hill was headed next—to Chatham to seek a stay from Louis Brandeis. Gardner Jackson pleaded with Frankfurter not to discourage Hill and to accompany him to see the justice. Frankfurter knew things that Jackson did not—Brandeis’s wife had contributed $50 to the Sacco-Vanzetti Defense Committee; Brandeis family friend Elizabeth Glendower Evans had allowed Sacco’s family to stay at Brandeis’s Dedham home during the trial; Evans and Frankfurter had been discussing the case with the justice for years; and Brandeis paid Frankfurter $3500 in 1926 and $4500 in 1927 for public interest work on Sacco-Vanzetti and other matters. On August 5, Brandeis had written Frankfurter lamenting that the case delayed Frankfurter’s annual trip to Chatham and remarked: “You & Auntie B. have played noble parts.” Fifteen days later, Frankfurter conferred with Hill, who was staying overnight at the Chatham Bars Inn and who understood that Brandeis “may feel himself disqualified from sitting for reasons you can divine.” At 1:00 a.m., former New York attorney general W. S. Jackson phoned Frankfurter and asked him to reconsider going to see Brandeis. Frankfurter reminded him what Holmes had said in his August 10 opinion that “a statement of prejudice, no matter however strong,” was not enough to intervene in the case. “I read it and I don’t agree with it,” W. S. Jackson replied. Frankfurter tried to manage his expectations: “I haven’t the slightest idea what will happen tomorrow—what Brandeis will do with it. I would not be a bit surprised if he disqualified [himself] from sitting and nothing more could cinch it than for me to go down to Chatham. I can’t say anything more.”
