This essay, in the context of the much discussed and analysed Sacco-Vanzetti case, attempts to study how biases and pre-conceived notions are perpetuated by state mechanisms and lead to serious miscarriage of justice and marginalization of particular groups.
the trial of Sacco-Vanzetti [i] (For a short chronological summary of the events that were in totality known as the Sacco–Vanzetti case, refer to Annexure A) had a huge impact on the social and political landscape of America. The impact of the Sacco and Vanzetti trail can be best understood by what Vanzetti said days before his execution. This is reproduced below:
“If it had not been for these things (the Sacco-Vanzetti trial), I might have lived out my life talking at street corners to scorning men. I might have died unmarked, unknown – a failure. Now we are not a failure. Never in our full lives could we hope to do such work for tolerance, for justice, for man’s understanding of men as now we do by accident. Our words, our lives, our pains Nothing! They taking of our lives… all… That last moment belongs to us. That agony is our triumph.”
It is only a result of Vanzetti and Sacco’s aloofness and dedication to their cause that they could view the gross miscarriage of justice that they were subject to, in such light. Though it is true that a sham of a case like the Sacco-Vanzetti case is required to expose and start a dialogue in respect of the deep insecurities that nations seem to showcase at times of perceived “threats”.
It would not be an over estimation to say that the execution of Sacco and Vanzetti literally sent tremors through most of the North American and European continent. The almost tyrannical manner in which Sacco and Vanzetti were tried with the sole motive of establishing their guilt is what agitated people deeply and attracted wide opposition. H.G. Wells wrote an essay around that time discussing the case at depth. He called it “a case like the Dreyfus case, by which the soul of a people is tested and displayed.” He felt that Americans failed to understand what about the case roused European opinion[ii].
“The guilt or innocence of these two Italians is not the issue that has excited the opinion of the world. Possibly they were actual murderers, and still more possibly they knew more than they would admit about the crime…. Europe is not “retrying” Sacco and Vanzetti or anything of the sort. It is saying what it thinks of Judge Thayer. Executing political opponents as political opponents after the fashion of Mussolini and Moscow we can understand, or bandits as bandits; but this business of trying and executing murderers as Reds, or Reds as murderers, seems to be a new and very frightening line for the courts of a State in the most powerful and civilized Union on earth to pursue.”
The case was clearly therefore instrumental in throwing light over the cracks that existed in the democratic set-up and judicial mechanism that most modern states followed and follow. These were the cracks which allowed for Sacco and Vanzetti to be indicted for crimes that could not be proved they had committed. The crimes Sacco and Vanzetti were indicted for were way too small/ petty in comparison to the militant revolution they advocated, as the prosecution claimed. It is difficult to believe that Nicola Sacco, who was a married man with a son, ran a shoe-making workshop and held a savings bank account would suddenly jeopardize all this to rob a local shoe company and indiscriminately kill another Italian.
To start a dialogue on how state machineries legitimize bias and how this bias works against particular groups, where best to start but from the Sacco-Vanzetti case. To understand how bias worked against Sacco and Vanzetti, I have picked up some obvious and specific examples. There are sure to be many more subtle but effective ways through which bias and prejudice about what Sacco and Vanzetti stood for and their Italian descent came in the way of dispensing justice, which either due to passage of time or the inability of being conveyed have not been recorded.
Metaphors of bias in the Sacco-Vanzetti Case
One noticeable characteristic of the Sacco-Vanzetti case was the unconcealed bias and prejudice showcased by key persons in the trial, like the presiding judge and the jury foreman. The Sacco-Vanzetti case was interspersed by racial and biased comments made by both the jury foreman[iii] as well as the presiding judge, Judge Walter Thayer[iv]. This is clearly only a reflection of the popular sentiment around that time about Italian immigrants. But what is disturbing is the fact that the judge even while being aware, that a trial is required to be a sterile and clinical examination of facts and determination of guilt, allowed such a sentiment to thrive. A motion seeking retrial on the basis of these comments and the question of impartiality of the presiding Judge was decided by none other than Judge Thayer himself and was unsurprisingly dis-allowed. The Supreme Judicial Court upheld the verdict of Judge Thayer in this regard only because its scope of review over the motion was not wide enough[v].
Jury is selected
While the jury was being selected, the defense and prosecution was able to agree on only a few jury members and more were required to reach the required quorum. In such a situation, Justice Walter thought it fit to direct the sheriff to fill in the rest of the jury member seats as the sheriff would consider fit. It is important to note here that as a result a big part of the jury was solely selected by the Sheriff’s deputies from masonic gatherings and from persons whom the deputies deemed to be “substantial” and “intelligent”. The jury members were therefore clearly not the peers of the accused. There was a clear disconnect between the accused and the jury members.
Added to this was the fact that Sacco and Vanzetti’s lawyer, Moore was known to be a “radical” and was an outsider with no knowledge of the traditions of the Massachusetts bench. Felix Frankfurter in his essay[vi] states that Moore was “a source of irritation” to the bench.
Another Sacco and Vanzetti stood out in the 19th century America, their olive skin and black hair was uncommon in America. So did most Italians and foreign immigrants. To the common American all foreigners more or less looked the same i.e. different from themselves. The immigrants were looked at as “others” in contrast to “us”, the early Anglo-Saxon settlers of America.
It is an accepted norm in most criminal jurisprudence to ask the eye witness to identify the accused in a group of other men who come from similar racial backgrounds or carry the same general appearance to make the identification more objective. This was especially important in this case. But an unprecedented method was adopted in the Sacco-Vanzetti case where the accused were singly shown to the eye-witnesses. Many eye witnesses when put on stand could not positively[vii] say that Sacco and Vanzetti were present on the scene on that fateful day but this, the Judge did not consider important. Though, this seemed to have played a huge role in the jury convicting the accused. In this regard the judge was quoted to have said as follows[viii]:
“These verdicts did not rest, in my judgment, upon the testimony of the eyewitnesses, for the defendants, as it was, called more witnesses than the Commonwealth to testify that neither of the defendants were in the bandit car.
The evidence that convicted these defendants was circumstantial and was evidence that is known in law as ‘consciousness of guilt.’”
Consciousness of guilt
Now it is important to see what this elusive term “consciousness of guilt” is, in the light of which, according to Justice Thayer, the jury convicted Sacco and Vanzetti. As Justice Thayer has stated what determined the fact that Sacco and Vanzetti were conscious of their guilt was the fact that they were carrying firearms and that they lied about the same and their whereabouts on the day and the preceding day of their arrest. However what was not considered important to determine “consciousness of guilt” was in the words of Felix Frankfurter the following[ix]:
“There was no claim whatever at the trial, and none has ever been suggested since, that Sacco and Vanzetti had any prior experience in holdups or any previous association with bandits; no claim that the sixteen thousand dollars taken from the victims ever found its way into their pockets; no claim that their financial condition or that of Sacco’s family (he had a wife and child, and another child was soon to be born) was in any way changed after April 15; no claim that after the murder either Sacco or Vanzetti changed his manner of living or employment. They did not go into hiding; they did not abscond with the spoils; they did not live under assumed names. They maintained their old lodgings; they pursued openly their callings within a few miles of the town where they were supposed to have committed murder in broad daylight.”
It was claimed that men without guilt do not lie about their whereabouts. But when Sacco and Vanzetti were taken into police custody they were not told that they were picked up for the Braintree murder, they were not even given a hint in this regard. They understood their arrest as arising out of them being “suspicious characters”. The arrest to Sacco and Vanzetti, in plain words, meant arrest for radicalism and this they were “guilty” of. In the trial both Sacco and Vanzetti admitted to the fact that they had lied about their whereabouts on the day the police picked them up only to hide their radical activities. What is surprising about this whole issue is the fact that instead of circumstantially or through witnesses determining if Sacco and Vanzetti were at the crime scene (on both these counts the prosecution failed to prove anything) the court sought to through the behaviour of the accused find the guilt of Sacco and Vanzetti. This approach of deciding guilt based on how the person indicted of the crime, behaved at the time and after the arrest is very subjective and susceptible to bias. Here it is pertinent to note what Frankfurter Felix states in his essay[x].
“In striking contrast to this sterile treatment of the issue whether or not Sacco and Vanzetti were in South Braintree on April 15 was his (presiding judge’s) concrete and elaborate treatment of the inferences which might be drawn from the character of their conduct on the night of their arrest”.
As is the matter of possessing firearms, in America this can carry very little weight if any in deciding the consciousness of guilt of Sacco and Vanzetti considering that they are quite common place in America.
Radicalization of the trial
The prosecutor as well as the presiding Judge left no leaf unturned to ensure that the jury knew that Sacco and Vanzetti were radicals and that they believed in the supposedly abhorrent principles of anarchy. The Jury which was selected from the respectable and patriotic families of Dedham knew how to construe this. Essentially, though the trial was for murder and banditry, Sacco and Vanzetti were judged for their belief in anarchy, their radical ideology and their perceived lack of “patriotism” towards America and the American way of life.
It has been stated that the outside of the courtroom, America was gripped by the “Red Scare” this was allowed to penetrate and dominate within the courtroom where the discourse of justice is required to dispassionate, clinical and unbiased. The real implication of the “Red Scare” can be understood only by looking at the political and social climate of America during this period. The United States of America then was experiencing an anti-radical and anti-anarchist hysteria as it is now but in regard to a different politico-religious ethnic groups.
The Red Scare
Shortly after the end of World War I and the Bolshevik revolution, the red scare took hold of America. It has been noted widely that a nationwide fear of communists, socialists, anarchists and other dissidents suddenly grabbed the American psyche in 1919 following a series of anarchist bombings. This led to the popular belief that all radical and anarchists are bomb throwers. This was hardly the reality. While some radicals did adopt the methods of domestic terrorism, few were in actuality bomb throwers. Most radical groups from the same time did not espouse violence as a legitimate tactic of social change. Instead, they were known to condemn violence as a weapon of the oppressor[xi].
In the years immediately before the Sacco-Vanzetti trial America also witnessed a chain of strikes by steel workers, lumber and shipyard workers. Boston also had its police going on strike in 1919[xii].The Red Scare was best described by Dorotea Manuela, an immigrant-rights activist in Boston as follows[xiii]:
“This Red Scare meshed neatly with the xenophobes, nativists and reactionaries who loathed and feared the masses of immigrants coming from Southern and Eastern Europe. In the public view these were the “great unwashed”, Catholics, Orthodox and Jews, people who spoke no English, who had no skills or education, uncivilized heretics, pagans and Christ killers who would sap the few existing social services, cause taxes to rise and take jobs from the “real Americans”.”
Boston, around where the crime and trial took place is said to have been worst affected by the Red Scare. The Red Scare in turn resulted in the state going into the mode of over actively persecuting and deporting the immigrants. In the words of Felix[xiv]:
“Boston was one of the worst centres of the lawlessness and hysteria that characterized the campaign of the Department of Justice for the wholesale arrest and deportation of Reds. Its proximity to industrial communities having a large proportion of foreign labour and a history of past industrial conflicts lent to the lawless activities of the government officials the widespread support of influential public opinion. Mr John F. Moors, himself a banker, has called attention to the fact that “the hysteria against ‘the reds’ was so great, at the time when these men were convicted, that even the most substantial bankers in this city [Boston] were carried away to the extent of paying for full-page advertisements about the red peril.”
This being the political and social context in which Sacco and Vanzetti were tried, it is clear that they had been judged way before they had been put on trial. Things are different now in America now but bias still figures in America’s narrative of adjudicating matters and dispensing justice. Now the marginalized and targeted political and ethnic group is different. The mode utilised by the state to indict these groups are different but the operation of bias is the same.
Post 9/11, the Bush government proclaimed war against al-Qaeda. Bush was given an open ended Authorisation to Military Use (AMU) considering that the nation at that period was under imminent threat[xv]. It’s been thirteen years since then and America is still at war with al-Qaeda. A state of exception is justified in a situation where a palpable and imminent threat exists against the citizens of a Nation. But for a state of exception to be normalised and for it to become a general rule is a deviation in itself. In the post 9/11 phase there have been some blatant violations of Human Rights through “legitimate” (the Patriot Act) ways and some not so blatant but in subtle ways. Here is where bias operates in a more nuanced manner. One such case could be the Tariq Mehanna case[xvi] (For a short summary of the case please refer to Annexure B).
The trial of Tariq Mehanna (wrongly spelled as Tareek on almost all state documents) has been subject to wide criticism. It is important to realise that the trial was held and guilt was decided by a jury in times when the popular media in America portrayed any Muslim let alone a fundamentalist one as a terrorist. It is not my case to say that Tariq is innocent of the crimes he has been alleged to have committed but to question if these acts can be termed as crimes at all. Tariq was alleged to be providing material support to the al-Qaeda by virtue of, out of his own volition, translating materials put out by not just al-Qaeda but also other religious Islamic texts into English.
There is a thin line between the states responsibility of protecting persons’ right to discussing and disseminating unpopular political and religious beliefs and controlling and limiting speech that might push people to resort to violence. A clear co-relation needs to be established between the material put out by a person and the probative effect it might have in pushing people to resort to violence. To “radicalize” cannot be a crime but to push a person towards terrorism and violence should be. These discourses was neither considered by the presiding judge at the trial stage nor by the three judge bench at the appellate stage as their roles were only to determine the accused’s guilt on the basis of a legislation, the language and the import of which was such that it made dissemination of particular beliefs a crime in itself.
The American jurisprudence has an established test to determine when a speech delivered before gathering or otherwise becomes criminal. It is known as the “Brandenburg test” The rule essentially stipulates that speech can’t be criminalized unless it is deliberately meant to incite “imminent lawless action” and there’s a reasonable belief that action could take place.
Amna Akbar, a professor at the Ohio State University and visiting professor at Moritz College of Law had the following to say about the Tariq Mehanna case[xvii].
“In effect, the appeals court gave the government license to prosecute speech that is critical of the United States and supportive of ideas a terrorist group might embrace. Yet there is an important distinction between opposing US presence in Pakistan and Somalia—even in believing that Muslims in those countries have a right to armed resistance—and supporting the views of Al Qaeda. At trial, Mehanna’s defense put forth evidence that he disagreed with many of Al Qaeda’s views. But even if Mehanna did support the views of Al Qaeda, and even if he spent time trying to convince others of the righteousness of its positions, that should not be enough to invite criminal prosecution. Nor is it sufficient under Humanitarian Law Project, where the Supreme Court went to pains to protect independent advocacy. Even strident critical speech cannot and should not be considered material support.”
Tariq himself said the following:
“……But one day, America will change and people will recognize this day for what it is. They will look at how hundreds of thousands of Muslims were killed and maimed by the US military in foreign countries, yet somehow I’m the one going to prison for “conspiring to kill and maim” in those countries – because I support the Mujahidin defending those people.
Bias when legitimized by the State is more problematic than when it is only in the minds of the public officials, though both conditions are unfavorable. In the first situation (Sacco-Vanzetti case) the public officials went to great lengths to frame persons who they felt were of suspicious nature. It’s become much easier to do so now that the American state has internalized the bias by regulations and legislations.
Brief facts of the Sacco-Vanzetti Case:
In the month of April, 1920 a paymaster and his guard were carrying an amount of $15,776 through the main street of South Braintree, Massachusetts, a fairly small town in the south of Boston. Two men, who were standing nearby, suddenly pulled out guns and started to fire at them. The gunmen later snatched up the cash boxes dropped by the pair and jumped into a waiting automobile. This murder and robbery has said to have aroused only local interest at the start.
Weeks thereafter in the month of May, Nicola Sacco and Bartolomeo Vanzetti, are said to have fallen into a police trap that had been set up for a suspect in the Braintree crime. Both Sacco and Vanzetti were carrying weapons the presence of which they could not explain. Eventually thereafter they were indicted for the Braintree crime. Vanzetti was also charged with an earlier robbery attempt that had taken place in Bridgewater, a nearby town. These two incidents marked the start of the controversial trial of Sacco and Vanzetti.
Vanzetti was first tried in the summer of 1920 for the failed Bridgewater robbery. Despite a strong alibi supported by many witnesses, Vanzetti was found guilty and sentenced to an unprecedented period of 10 to 15 year for a first time offense in which no-one was hurt. It is believed that one of the main reasons why the case went against him was because most of the witnesses put up by the defense were Italians and they failed to convince a mostly Anglo-Saxon jury. Further Vanzetti’s Case was seriously damaged when he out of the fear of revealing his radical activities did not take the stand in his own case.
This case was only a glimpse of the hostile bias that was working against Sacco and Vanzetti and the group that they represented. This therefore called for a new defense strategy. This was the time when, on the advice of the anarchist editor Carlo Tresca, a new legal counsel was brought in – Fred H Moore a well known socialist lawyer.
Braintree trial (also known as the Dedham trial):
Sacco and Vanzetti’s new lawyer, Moore is said to have completely changed the nature of the legal strategy. He decided that it was no longer sufficient to defend Sacco and Vanzetti solely against criminal charges of murder and robbery as they were being tried because they were “reds”. This changed the nature of the trial and politicised it. Moore wanted to establish that Sacco and Vanzetti were arrested for their radical activities and dispute the hard prosecution’s insistence that only non-political evidence had implicated the two men. In principle this strategy might have worked but in a traditional Massachusetts it was too controversial and confrontational. This politicising of the case might have worked to antagonise the jury. It was viewed by many Americans as an attack upon the “American way of life” itself. On July 14, 1921 at 7:30 in the evening the jury returns with its verdict and both Sacco and Vanzetti are found guilty of murder. This was only the start of a long legal battle fought by the defense in an attempt to seek a fair trial. Many motions were filed over the next few years seeking for a retrial based on mishandling of evidence, tutoring and staging witnesses, bias on the part of the judge etc. All these motions were heard and adjudicated by Judge Thayer himself.
Appeal to the Supreme Judicial Court (“SJC”)
The defense thereafter appealed Justice Thayer’s denial of their motion to the SJC. Both sides presented arguments before the five judge bench between January 11 and 13 of 1926. The SJC returned with a unanimous verdict on May 12, 1926 upholding the decision of Judge Thayer. It has been observed that the SJC purview over the trial was very limited and it could only pass a ruling on whether or not Justice Thayer had abused his discretion while ruling on the motions.
Second Appeal to the SJC
In November 1925, in a significant development to the case, Celmatter estino Madeiros, an ex- convict confessed to committing the Braintree crimes. On investigation in regard to the Medeiros statements the possibility that the Morelli gang of which Madeiros involvement in the case loomed large. The defense filed a motion for a retrial on the basis of the Medeiros confession. This motion was also struck down by Justice Thayer. The defense thereafter promptly appealed to the SJC and presented its arguments. During this many prominent jurists opined that the SJC had on the last occasion taken a very limited and should broaden its judicial review over the case. This appeal was rejected by the SJC. The SJC while rejecting the appeal stated as follows:
“It is not imperative that a new trial be granted even though evidence is newly discovered and, if presented to a jury, would justify a different verdict”.
On August 23, 1927 Sacco and Vanzetti were electrocuted after Governor Fuller announced that he will not intervene.
Brief facts of the Tariq (also known as Tarek) Mehanna Case
Tariq Mehanna a pharmacist from a suburb near Boston was convicted for providing and conspiring to provide material support to al Qaeda, for lying to the federal officers and on one count for conspiring to commit murder outside America.
In 2004 Mehanna spent two weeks in Yemen. He returned soon thereafter and resumed his education at the Massachusetts college of Pharmacy. He also took a keen interest in Islamic studies and started translating Arabic material into English. He was known to be critical of the foreign policy adopted by America specifically in Iraq and Afghanistan. Mehanna has also been quoted to have said that he supports the rights of Muslims to defend themselves.
After he was arrested in the year 2006 while he was boarding a plane to Saudi Arabia en-route Boston with family, he was kept in jail without bail during the trial. In April 2012 Mehanna was sentenced to imprisonment for 17 ½ years. Following Mehanna’s sentencing, the American Civil Liberties Union released a statement saying that the suppression of unpopular ideas is contrary to American values, and that the verdict undermines the First Amendment.
Thereafter he appealed his case to the First Circuit Court of Appeals where the three judge bench upheld the conviction. Mehanna on the 17th of March filed an appealed b Supreme for the Supreme Court. The Supreme Court is yet to decide the matter.
[i] For a short chronological summary of the events that were in totality known as the Sacco–Vanzetti case, refer to Annexure A
[iii] The jury foreman had allegedly said of Sacco and Vanzetti, “Damn them, they ought to hang them anyway!”
[iv] Judge Webster Thayer, notoriously called the defendants “anarchist bastards” – Paul Avrich, Sacco and Vanzetti: The Anarchist Background, Princeton: Princeton University Press,1991, Pg. 3-4
[v] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927
[vi] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927
[vii] One of the prosecution witnesses during cross-examination that Sacco was a dead image of the person he saw on the crime scene. Another said he could not positively say if the person on the crime scene was Sacco or not. See Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927.
[viii] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927.
[ix] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927.
[x] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927.
[xi] Stephanie E. Yuhl “Sculpted Radicals: the problem of Sacco and Vanzetti in Boston’s public memory” The Public Historian, Vol. 32, No. 2 (Spring 2010), pp. 9-30
[xii] Speech by Manuela on the Sacco- Vanzetti commemoration day (http://saccoandvanzetti.org/index.php) last visited August 13, 2014.7: 45 AM
[xiii]Speech by Manuela on the Sacco- Vanzetti commemoration day (http://saccoandvanzetti.org/index.php) last visited August 13, 2014.7: 45 AM
[xiv] Frankfurter Felix, The case of Sacco-Vanzetti, Atlantic Monthly, March 1927.
[xv] Klien Adam, “The end of Al Qaeda? Rethinking the legal end of the war on terror” Columbia Law Review, Vol. 110, No. 7 (NOVEMBER 2010), pp. 1865-1910
[xvi] For a short summary of the case please refer to Annexure B
[xvii] Akbar Amna, “How Tareek Mehanna went to prison for a thought crime”, The Nation, December 31st 2013 (http://www.thenation.com/article/177750/how-tarek-mehanna-went-prison-thought-crime)