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Post Sacco and Vanzetti: The OJ Trial of the 1920s
Created by John Eipper on 08/26/19 2:25 PM

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Sacco and Vanzetti: The OJ Trial of the 1920s (David Duggan, USA, 08/26/19 2:25 pm)

The Sacco-Vanzetti case divided the US in more ways than any legal case before OJ Simpson's. It divided the country along immigrant-nativist lines, liberal-conservative lines, and even legal positivist v. legal realist lines. A great account can be found in Gerald Gunther's masterful biography of the Hon. Learned Hand, who risked his friendship with Harvard Law Professor Felix Frankfurter by arguing that the process had been fair, and that "Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime." (LH letter to FF, quoted at p. 391, Gunther, Learned Hand.)

Many years ago, I was defending a former U of Chicago contracting officer in federal court, accused in a kick-back scheme (how novel), and used this vignette in my sentencing argument as to how great legal minds could differ over interpretations as to the application of the law to the facts. The judge, the Hon. James Zagel, one of the luminaries of the Chicago federal bench (he presided over the Blagojevich trial, and numerous organized crime trials in his 30-years on the bench), acknowledged the divide between these luminaries, and then offered that he thought one was guilty and the other innocent of the murder charges tried in a Massachusetts state court (the Hon. Webster Thayer, as New England a name as you can get, presiding). I forget who Judge Zagel thought innocent and who guilty, but Zagel would be as competent a jurist as any to come to the correct conclusion: he had been the back-office legal expert researching the insanity defense during the prosecution of Richard Speck in the late 1960s. Convicted of the murder of eight nurses, Speck was the all-time mass-murder leader until his later Stateville Penitentiary fellow guest, John Wayne Gacy came along 10 years later.

My historical scholarship did my client little good: he still got 48 months for his delicts, which was the precise amount I had predicted.

JE comments:  I would never question a Learned Hand, but isn't "watery sentiment" the cornerstone of US criminal law--innocent until proven guilty and all that?  (Alright, I just questioned His Learnedness.)

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