Sunday, September 25, 2011

Sacco, Vanzetti and Dewey

Reading Dewey's Characters and Events (his so-called "popular" essays, for journals like The New Republic) continues to fascinate me.  One sees in them a wit that is not evident in his philosophical works.  His understated response to Bertrand Russell's rather simple-minded comments about pragmatism being a natural result of American commercialism is devastating, I think.  Also, and far more interesting, is that one sees how a professional philosopher considered the events which crowded Dewey's long life.  He witnessed a great deal of history.

Being a lawyer, I particularly enjoyed reading an article he wrote commenting on the report of the Lowell committee concerning the trial of Sacco and Vanzetti.  As most know, these Italian immigrants had been convicted of murder in the course of an armed robbery.  They were proud radicals and acknowledged this, and were prosecuted during one of the "Red scares" which popped up now and then in those times (the 1920s) and later in the history of this Glorious Republic.  The trial and subsequent appeals were matters of some controversy at the time and many of the famous players of that world weighed in on one side or the other.  Whether they were guilty is apparently still a matter of controversy among historians, or so I glean from a quick Web search.  Governor Dukakis more or less apologized for their execution by the State of Massachusetts some time before his ill-fated campaign for the presidency.  I recall watching a movie about the matter in the days of my increasingly distant youth, when I lived in the Boston area.

Appeals having been exhausted, they were scheduled for execution when Dukakis' predecessor as governor sought to assuage public outrage by appointing a committee made up of the renowned President of Harvard, Lowell, the President of MIT and, rather curiously, a probate judge, ostensibly to report to him on their views of the propriety of the execution.  The committee did an investigation and submitted a report, which can be read on the Internet by those interested.

Dewey addressed the report in one of his articles of the time, and seemingly tears it to pieces, very thoroughly and systematically.  Starting from the premise that the committee's function must be considered extra-judicial, as judicial review had been exhausted and a governor has no judicial authority in our legal system, he demonstrates remorselessly that when so considered the committee was a failure, and its report not only inadequate but even gratuitous.

Having read the report, I have some sympathy for the committee members, because if the report is accurate regarding the issues they were intended to address, those issues seem to be legal ones, or such as to give the impression they were to be addressed from a legal perspective.  Surprisingly, one of the questions they were to answer for the governor was whether they believed that Sacco and Vanzetti were guilty beyond a reasonable doubt.  I'm not sure how anyone could make such a determination without being a member of the jury and witness to the trial itself, but the committee after reviewing the trial transcript and interviewing various and sundry concluded that they were.

The committee's report does, in fact, read as though its members felt they were engaged in a kind of judicial review, as it's conclusions seem based overwhelming on a determination whether there was adequate evidence to overturn the jury's verdict, or hold a new trial, something the appellate courts had already ruled on.  In the law, appellate courts accord a great deal of deference to a jury's verdict.  The testimony of new witnesses and new evidence brought up after the trial is dismissed as being "cumulative", i.e. similar to exculpatory evidence which was admitted at trial.  The presiding judge was apparently one of those judges lawyers dread, a loudmouth who made his contempt for the defendants and his conviction of their guilt well known, though he apparently did so for the most part out of the courtroom.  The committee acknowledges his conduct was contrary to judicial decorum, but decided the fact he had himself judged guilt did not come across in the trial proceedings.  The committee acknowledges that the prosecutor made much of the defendants radical background and that this could have worked to prejudice the jury, but evidently thought the defendants had "opened the door" to such questioning by their own statements.  The members of the committee seemed reassured by the very unsurprising fact the jurors they interviewed felt they had made the appropriate decision.

So, if the governor was looking for something that would have advised him regarding the propriety of the executions that was not, in effect, a legal analysis of the prior proceedings, he did not get it from the committee.

The committee itself has been attacked as being made up of three Boston Brahmans would could be expected to be in favor of execution merely due to the fact that a couple of Italian immigrant anarchists were involved.  That may have been the case, and the defendants may well have been unjustly convicted.

For purposes of this blog post, though, I find two things interesting.  The first is that when clemency is being considered, it would certainly seem appropriate to consider whether there had been a fair trial, but that need not be the only consideration, and as that is ultimately a legal issue it is questionable to what extent that can be determined after appeals have been exhausted.  It is in any case unlikely that when a matter has been considered through the Supreme Court, a committee made up of two academics and a probate judge will find that the reviewing courts made errors of law.

The second is that there was a time when professional philosophers contributed to "popular" journals regarding significant social and political issues, and did so I think intelligently.  I don't do all the reading I should, but I don't think this takes place today in any significant sense, at least in this country.  I wonder why it does not, and wish it did.  Perhaps philosophers are commenting on political and social issues somewhere in cyberspace, though.  If so, I wish they had more of an audience.

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