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The historical details below about the Sacco and Vanzetti case and some of the analysis found below are taken from J. Kadane & D. Schum, A Probabilistic Analysis of the Sacco and Vanzetti Evidence (1996).

On April 15, 1920, an armed robbery was committed in South Braintree, Massachusetts. Two men -- Parmenter and Berardelli -- were murdered during the course of that robbery. Sacco and Vanzetti were charged with committing those two murders.

There was no dispute that the armed robbery was committed. There was also no dispute that the perpetrators of the robbery murdered Parmenter and Berardelli while committing the armed robbery. The issue at trial was identity: Were Sacco and Vanzetti the men who killed Parmenter and Berardelli?

The two perpetrators -- whoever they were -- took and carried away $15,773.51 in payroll money. Parmenter and Berardelli were killed because they were in the way; they had the job of delivering the payroll money to a payroll office in South Braintree. The perpetrators -- whoever they were -- shot and killed Parmenter and Berardelli to get the payroll money.

At trial two police officers -- Michael Connolly and Merle Spear -- testified that when they arrested Sacco on May 5, 1920, Sacco moved one of his hands in a suspicious or furtive manner and put (or attempted to put) his hand under the coat that he was wearing.

This is proposition 149, which can also be expressed as

{ G , Gc }

where

G = Sacco did make a furtive motion with his hand in an attempt to put his hand under his overcoat

Gc = It is not true that Sacco made a furtive motion with his hand in an attempt to put his hand under his overcoat

Is the testimony of Officers Connolly and Spear to G -- their sworn assertion G*, their testimony that Sacco did make a furtive motion with his hand in an attempt to put his hand under his overcoat --, is their testimony to this effect relevant? If so, does their testimony perceptibly increase the odds that Sacco participated in the murders of Parmenter and Berardelli?

Kadane & Schum write (at p. 110) (edited):

... [L]et us walk verbally through the chain of reasoning we have constructed in our attempt to defend the relevance of just the evidence from Connolly and Spear. For the moment, let us assume that Connolly and Spear were credible in their testimony. ...

1. If Sacco put his hand under his coat, he might have been reaching for the revolver hidden under his coat.

 

2. If he was reaching for this revolver, he might have intended to use or threaten to use it on the arresting officers.

 

3. If he used or threatened to use this revolver on the officers, he did so with the intent to escape from them.

 

4. If Sacco wanted to escape from the officers, then he knew [believed] that he had committed a criminal act.

 

5. The criminal act Sacco was conscious of committing was a robbery and shooting.

 

6. The robbery and shooting of which Sacco was conscious was the one that took place in South Braintree on April 15, 1920.

There is uncertainty or doubt lurking at every link in this chain of reasoning.

Sacco and Vanzetti were political activists. They were radicals. They were anarchists. They believed in the use of violence to further their ends. They had almost certainly committed a variety of crimes, including bomb-throwing. Sacco may have been carrying radical "subversive" anarchist literature at the time of his arrest by Officers Michael Connolly and Merle Spear on May 5, 1920.

How are these possible facts relevant to an assessment of the probative force of the testimony by Officers Connolly and Spear that G -- that Sacco moved one of his hands in a suspicious or furtive manner and put (or attempted to put) his hand under the coat that he was wearing?

The following chart, taken from Kadane & Schum (p. 232), suggests some of questions and propositions that bear on the probative value of the testimony by Officers Connolly and Spear:

From my reading of Kadane and Schum I am not absolutely certain that either Officer Connolly or Officer Spear ever uttered the word "furtive" or the word "suspicious" to describe Sacco's hand movement at the time of his arrest. (Do you see the delicious irony in this confession of mine?) But suppose that the police officers did use a word or words of that sort. What is a "furtive" hand motion? Is a testimonial report of such a hand motion a report of an observation? Does such a report involve or require an inference by the witness about the intentions of the person making the motion? If so, does an assessment of the probative worth of the testimony of Officers Connolly and Spears require that the trier of fact draw inferences (conclusions) about the quality of the inferences (conclusions) about the thoughts in the head of Sacco that motivated or led Sacco to move his hand underneath his coat?

•Should witnesses be required to limit their testimony to observable physical facts? Are witnesses in fact so limited? (No.)

Should jurors, judges, and lawyers be require to spell out the line of reasoning upon which the relevance and probative value of evidence such as escape and furtive hand motions depend? Would any such requirement reflect an excessive faith in rational analysis and atomistic dissection of evidence? If so, should jurors, judges, and lawyers just eyeball all evidence -- just take it in -- without trying to talk or reason about it, without trying to pick it apart, without trying to dissect how or why the evidence might or might not show this or that? Whatever jurors, judges, and lawyers should do, can a trial lawyer avoid dissecting evidence and making arguments (and counter-arguments) about its implications?

After writing the above notes about possible testimony in the Sacco and Vanzetti case about a "furtive" gesture by Sacco at the time of his arrest, I received a message from David Schum (on May 28, 2001) saying that the trial transcript shows that Officer Connolly gave the following testimony:

Q: Go ahead then.

A. I put Sacco and Vanzetti in the back seat of our light machine, and Officer Snow got in the back with them. I took the front seat with the driver, facing Sacco and Vanzetti.

Q All right.

A. I told them when we started that the first false move and I would put a bullet in them. On the way to the station sacco reached his hand to put under his overcoat and I toll him to keep his hands outside of his clothes and on his lap.

Q Will you illustrate to the jury how he placed his hand?

A. He was sitting down with his hands that way [indicating], and he moved his hand up to put it under his overcoat.

Q. At what point?

A. Just about the stomach there, across his waistband, and I says to him, "Have you got a gun there?" He says: "No". he says, "I ain't got no gun". "Well, I says, keep your hands outside of your clothes". We went along a little further and he done the same thing. I gets up on my knees on the front seat and I reaches over and I puts my hand under his coat but I did not see any gun. "Now, I says, Mister if you put your hand in there again you are going to get into trouble". He says, "I don't want no trouble". We reached the station, brought them up to the office, searched them.

After quoting the preceding testimony by Officcer Connolly, David Schum added:

"As we [Kadane & Schum] noted in our book, Officer Spear, who corroborated Connolly's testimony, said at an earlier investigative hearing that this all took place after the cops had frisked Sacco and Vanzetti and had removed their weapons."

So, no mention of a furtive gesture, right? And the weapons had already been removed when Sacco supposedly made his hand movements? If all this was clearly true, what happens to the elaborate analyses above of the implications of Sacco's possible hand movements at the time of his arrest?