IN THE CASE OF SACCO AND VANZETTI, Professor Frankfurter summarizes the history, now seven years long, of a celebrated criminal proceeding which has assumed some of the aspects of an American Dreyfus case. His book may be taken as a special plea to justify the point of view of those who have interested themselves in the cause of the defendants; but it is composed with fairness, and, if read in the same spirit, should do much to dispel misunderstandings which have befogged and embittered the controversy from the beginning. After reading what he has written, one must at least be forced to admit that the persistent efforts to get a new trial for these defendants need not be regarded in the light of an effort to justify or excuse their "red" radicalism, or to bring the administration of justice in the Commonwealth into contempt; but rather as an effort to see that all the safeguards are employed with the judicial system itself provides to protect its reputation for fairness by keeping men from being executed for one crime because they may perchance have shown themselves guilty of another. It has been hard for the public to understand this because some of the central issues in the case turn on important but technical principles of the law of evidence, while the material to, which these principles must be applied is of a kind to arouse strong prejudices which overwhelm the judgment.

The ultimate issue in the case is obviously whether the two defendants were or were not members of a murder gang which drove into South Braintree one day in April, 1920, killed a paymaster, and made off with a payroll. The evidence directly connecting them with the crime was of the slightest. It is generally admitted that no connection has ever been established between them and any gang, and they have shown no signs of sudden enrichment. Their identification as persons who participated in the crime rested solely on the contradicted testimony of unreliable witnesses who claimed to have seen them for a fleeting moment from unconvincing distances. The trial judge has stated that the verdicts did not rest on evidence of personal identification but on later conduct of the defendants which indicated "consciousness of guilt". It was the evidence introduced on this question of "consciousness of guilt" which let into the case its disturbing elements. Sacco and Vanzetti could not deny that on their arrest they had acted suspiciously, and to rebut the inference from this behavior they expected at the time to be arrested for another offense--for "radical" activities. The opening which they thus gave was "played up" by the prosecuting attorney and much of the trial was devoted to exploiting the radicalism of the defendants at a time when the public mind was in a state bordering on panic fear of alien revolutionaries. They were convicted, motions for a new trial were denied by the trial judge, and an appeal to the Supreme Judicial Court based on the denial of these motions and on errors of law alleged to have been committed at the trial, was dismissed.

Professor Frankfurter points out that on this question of the "consciousness of Supreme Court under the practice in this state to consider whether or not sufficient evidence had been introduced at the trial to justify a conviction. In Massachusetts that apparently remains a question to be determined solely by the discretion of the trial judge, which the appellate tribunal is not at liberty to correct. Mr. Frankfurter has nothing to say about the interesting ruling of the Supreme Court that it is permissible to question a man about unconventional and unpopular political opinions that he may hold in order to test for the jury his credibility as a witness in his own behalf when he is on trial for murder.

After the case went to the Supreme Court new evidence was produced in the form of a confession by a member of a notorious criminal gang that the crime was committed by this gang. This was made the basis of another motion for a new trial which was likewise denied by the trial judge and from this ruling another appeal is now pending in the Supreme Court; but once more the Supreme Court will be faced only with the extremely narrow question of whether or not it can say that the trial judge in derying the motion went so far as to abuse his discretion.

In emphasizing the latter point Professor Frankfurter has done a service to the public and to the cause of the administration of justice. People in general naturally have so little knowledge of the details of legal practice that they are apt to misunderstand the scope of a court's power and consequently the effect of its decision. Much unwarranted criticism of the courts is apt to be the result. The effect of Professor Frankfurter's study from the standpoint of the lawyer is to focus attention on the practically unlimited discretion of the trial judge in Massachusetts on matters which vitally affect the lives of accused persons and the fairness and adequacy of the administration of justice