Chapter V: Act II: Scene III

_Scene: The court room._

_There is no jury present; the Judge is on the bench, the Attendants in place, and Macready and Capraro face the judge. Aside from the lawyers Rosalie is the sole spectator._

GLUCKSTEIN. If the court please I should like to move for a new trial
before sentence is pronounced. My motion is based on the depositions
of four witnesses. Your Honor has these depositions before you.

JUDGE VAIL. I have read them.

GLUCKSTEIN. I shall make only a brief summary of the evidence they
disclose. Mrs. Lubin, a chief witness for the prosecution, swears
that her identification of Macready was obtained under duress. She
retracts that identification. Her son, a witness for the defense,
corroborates that retraction by evidence tending to show that his
mother was threatened with the exposure of certain facts in her
history of which he himself had been ignorant. Jerome Bartlet, the
only witness to identify Capraro as at the scene of the crime,
retracts that identification—

SALTER. You will find that he has retracted that retraction, Mr.
Gluckstein—

GLUCKSTEIN. I know nothing of that. No doubt the attorney for the
prosecution has seen him again—

SALTER. I have.

GLUCKSTEIN. The other affidavit is signed by the ballistic expert, Mr.
Howard, who appeared in the trial. He states that his answers to the
State’s questions were pre-arranged to mislead the jury—

SALTER. Pre-arranged?

GLUCKSTEIN. Pre-arranged between himself and the district
attorney—that he did not intend to say that the mortal bullet was
fired from the pistol in the possession of Macready, but only that
it might have been fired from that weapon.

JUDGE VAIL. Does this affidavit indicate that Mr. Howard committed
perjury during the trial?

GLUCKSTEIN. No, your Honor. It merely amplifies the statements made
during the trial, which were so worded as to create a false
impression.

JUDGE VAIL. If the witness amplifies but does not alter his statements
his affidavit cannot be accepted as basis for a new trial. Such a
motion strikes at the jury’s competence to decide.

GLUCKSTEIN. But the jury was deliberately misled.

JUDGE VAIL. Can it be proved that it was misled? Even if there was
intention to mislead?

GLUCKSTEIN. Your Honor, I believe this addition to the expert
testimony of sufficient importance to rank as new evidence. And it
appears incontrovertible that the identifications are rendered null
by the first three affidavits.

JUDGE VAIL. I have considered the additions to the ballistic evidence
and I find them in entire accordance with the evidence already in
the record. As for the identifications, it does not astonish me that
the identification witnesses have withdrawn their testimony. It was
obvious to me, and was no doubt obvious to the jury, that the
identifications were completely discredited by the defense. The
verdict of guilty was brought in on other grounds. In my opinion
those grounds must have been the defendant’s consciousness of guilt,
as shown by their actions after the crime, and, furthermore, the
general principles of the defendants, tallying, as they did, with
the circumstantial evidence. These affidavits do not attack those
grounds for the verdict, and the motion is therefore denied.

GLUCKSTEIN. Does your Honor mean that these men were convicted on
circumstantial evidence and consciousness of guilt—?

JUDGE VAIL. There was no other evidence which was not disposed of most
ably during the trial.

GLUCKSTEIN. But in that case, your Honor— [_He pauses._]

JUDGE VAIL. Yes?

GLUCKSTEIN. In that case there was no real evidence against these men!
And you make that fact the basis for denying a new trial!

JUDGE VAIL. There was sufficient evidence to convict.—If you have no
further motion we will proceed to the sentence.

THE CLERK. James Macready, have you anything to say why sentence of
death should not be passed upon you?

MAC. Well—no, I guess not. The only reason I can think of is that I’m
not guilty of the murder, and that doesn’t seem to have anything to
do with this case. I’m not guilty as charged but I am guilty—I’m
guilty of being a radical—and that’s what I was convicted for and
that’s what you’re sentencing me for. I’m guilty of thinking like a
free man and talking like a free man and acting like a free man—and
the jury didn’t like it and you don’t like it—and so the logical
thing is to put me where I can’t do it any more. I’m guilty of
spreading unrest among the slaves and raising hell with slave
morality. I’m guilty of exercising my rights under the constitution
and I guess the constitution’s gone out in this country. It isn’t
being done. So you go right ahead and sentence me, and don’t let
your conscience bother you at all, because you’re doing exactly what
you were put there for.

JUDGE VAIL. You have quite finished?

MAC. Oh, quite.

THE CLERK. Dante Capraro, have you anything to say why sentence of
death should not be passed upon you?

CAPRARO. What I say is that I am innocent, not only of this crime but
of all crimes. I have worked, I have worked hard, and those who know
these two hands will tell you they have never needed to kill to earn
bread. I have earned by labor what I wanted to live, and I have
refused to be a member of any class but the working class, even when
it could have been, because to be in business is to take profits, to
be a parasite, to take what you have not deserved, and that I could
not do. All my life I have worked against crime, against the murder
of war, against oppression of the poor, against the great crime
which is government—. Do not do this thing, Judge Vail. It has been
a long time and I have suffered too much to be angry. I know that
you have been an unjust judge to us, that you have fear for us, and
therefore hate for us—that you have wanted us dead and have taken
advantage to kill us. You have ruled to help us in the little things
so that you could safely rule against us at the last. But you are an
old man, and wearier than we, even if we have been in prison; and
you too will die sometime, even if you kill us first. So I say to
you, do not do this thing, not because the world looks at us and
knows that you are wrong, but because if you do it you will prove
that I was right all the time. If you kill us in this one-time free
city, in this one-time free country, kill us for no wrong we have
done but only for passion of prejudice and greed, then there is no
answer to me, no answer to the anarchist who says the power of the
State is power for corruption, and in my silence I will silence you.

JUDGE VAIL. Under the law the jury says whether a defendant is guilty
or innocent. The court has nothing to do with that question. It is
considered and ordered by the court that you, James Macready, and
you, Dante Capraro,—

CAPRARO. I am innocent!

MAC. You know he’s innocent! You couldn’t listen to him without
knowing that!

CAPRARO. One more moment, your Honor,—I want to speak to Mr.
Gluckstein.

GLUCKSTEIN. It’s too late, Capraro.

JUDGE VAIL. I think I should pronounce the sentence. That you, James
Macready, and you, Dante Capraro, suffer the punishment of death by
the passage of a current of electricity through your body within the
week beginning on Monday, the tenth day of August, in the year of
our Lord one thousand nine hundred and twenty-seven. This is the
sentence of the law.

CURTAIN