Berrett-Molway Trial: 1934

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Berrett-Molway Trial: 1934

Defendants: Louis Berrett and Clement F. Molway
Crime Charged: Murder
Chief Defense Lawyers: Charles W. Barrett, Charles E. Flynn, John P. Kane, and Frank Tomasello
Chief Prosecutors: Hugh A. Cregg, Charles E. Green, and John S. Wilson
Judge: Thomas J. Hammond
Place: Salem, Massachusetts
Dates of Trial: February 12-27, 1934
Verdict: Not guilty

SIGNIFICANCE: The Berrett-Molway trial is a classic case of mistaken identity. It proved that eight eyewitnesses who had been in close proximity to the "defendants" for two hours could all wrongly identify them, pushing them perilously close to the electric chair. The trial wiped out the jury foreman's firm belief in capital punishment.

Arriving home on Friday, January 5, 1934, Boston taxi driver Louis Berrett, 29, found a stranger in the hallway outside his apartment. The man grabbed him. Suddenly the hall was filled with strangers pointing guns at him and asking who he was. At gunpoint they backed Berrett into his kitchenette. Then one showed a police badge and Berrett recognized him. "I had seen him before," he said later. "A taxicab driver gets to know a lot of cops."

Next, the police wanted to know where Clement F. Molway was. Molway, 22, was a taxi-driver friend of Berrett. The police sought him, they said, in connection with a holdup. "I knew he was a good kid from a respectable family," said Berrett afterward. He told the cops they were crazy, that Molway "was never mixed up in any holdups," and that he would go to police headquarters with them if it would help Molway.

At headquarters, Berrett soon found himself and Molway booked. Next, handcuffed, they were driven to Lynn, Massachusetts, where the chief police inspector asked Berrett for a statement of where he had been from Sunday night to Wednesday night of the preceding week. Only after Berrett had signed a five-page statement that the chief wrote out did the chief tell him there had been a holdup and murder at the Paramount Theatre in Lynn on Tuesday morning. Berrett then insisted on writing a second statement, in his own handwriting, like the first. By the time he was locked in a cell, it was 3:00 a.m. on Saturday.

"Boys, You've Been Picked by Five People"

Morning brought more officials and more questions, while Berrett vainly asked to phone friends and the police laughed at him. Late Saturday afternoon, unwashed, unshaven, unfed, and having slept in their clothes on hard board "beds" in separate cells, Berrett and Molway found themselves in a lineup as strangers inspected them. "A girl picked me out," said Berrett later. "When she placed her hand on my shoulder, I all but passed out. I knew I had never seen her before in my life, but what could I do?"

After the lineup, the chief inspector said, "Boys, you've been picked by five people. We are changing the charge from suspicion of murder to murder."

On Sunday night, the police phoned lawyer Charles W. Barrett on Berrett's behalf, then told Berrett that Molway had cracked and "told everything." Berrett laughed at them and promised to "give them a true statement for Tuesday. When they came down, all excited, I gave them the same statement I had given them before. Gee, they were mad."

As the trial opened on Monday, February 12, the defendants challenged 19 prospective jurors to get a jury composed of laborers, mechanics, and machine operators, including a janitor, a clerk, a truck driver, and a foreman, who was made foreman of the jury. Engineers, businessmen, and professionals were excused.

In the courtroom, Berrett and Molway found themselves shackled together in a green wire cage. In front of them sat a deputy sheriff, his back to the courtroom, staring in the defendants' faces. Defense attorney Charles E. Flynn protested to the court that the prisoners' situation represented "the most prejudicial atmosphere possible" in an attempt "to impress the jury with the guilt of the defendants at the bar." Judge Thomas J. Hammond waited until the second day of the trial to have the deputy sheriff moved to the side of the prisoners' cage.

District Attorney Hugh A. Cregg opened with a description of the crime: how Berrett and Molway, with an unknown third man (named as "John Doe" in the indictment), carrying out a well-planned robbery in mid-morning at the Paramount Theatre, were interrupted by the arrival of the Paramount's bill poster, Charles F. Sumner. When Sumner turned to run, eyewitnesses would testify, he was shot down.

"That Rare Element in Murder Trials"

The state's first witness to identify Berrett and Molway was Michael Ford, a former soldier in the Irish Republican Army, who described how he was cleaning the Paramount lobby when the men came in. "Here," reported the Boston Globe, "was that rare element in murder trials, confident eyewitness testimony." After pointing out the defendants in the courtroom, Ford testified that upon arrival they asked for the Paramount's manager and assistant manager. When he said they wouldn't be in for two hours, the two pushed him at gunpoint into the office and warned him to make no noise. Next, they grabbed Harry Condon, an employee who came up from the basement. He broke away. "Molway said, 'Get him, "testified Ford. "Then I saw Molway raise the gun and fire at Condon." Wounded, Condon was pushed into the office with Ford.

Next, said Ford, the men rounded up eight other Paramount employees who were in the building, tying them to chairs in the office. One was forced to phone the Paramount's manager and, on a ruse, hurry him to the office to open the safe.

"Head Him Off"

Then, testified Ford, Molway asked about two men he saw out in the parking lot. He was told they were bill posters. "We'll leave them there," said Molway. But presently Molway saw bill poster Sumner coming into the lobby. "Head him off," he ordered. Sumner was beaten with a gun butt, said Ford, then shot after he had been felled.

When assistant manager Stephen Bresnahan arrived, he was forced to open the safe. The robbers emptied it, took the manager's wallet (which contained $4), locked the 10 Paramount employees in a cloakroom, and departed.

Seven other eyewitnesses corroborated Ford's identification of Berrett and Molway as the robbers and murderers. One, Leo Donahue, pounded the rail of the witness box with his closed fist as he shouted, "I absolutely identify them as the men who held up the Paramount Theatre."

Prosecution and defense had rested and final arguments in the case were scheduled for Monday when defense attorney Flynn, in Judge Hammond's chambers, informed the court that the defense intended to show that the persons who committed the Lynn murder had committed similar holdups and murders recently in Needham and in Fitchburg, and had been convicted in Needham. The judge said he was not going to try the Needham and Fitchburg cases at this trial. Flynn pointed out that shells found at each site proved that a gun used at Lynn had been used earlier at Fitchburg.

Instead of final arguments, prosecutor Cregg asked the judge to reopen the evidence. Paramount Assistant Manager Bresnahan took the stand.

Question: Mr. Bresnahan, were you in Dedham with me today?
Answer: I was.
Question: There you were shown a defendant connected with the Needham holdup?
Answer: Yes, sir.
Question: You were shown certain statements and pictures?
Answer: Yes, sir.
Question: And as a result of what you were shown, you desire to make a statement to the jury?
Answer: I do. As a result of the pictures and statements shown me today at Dedham I feel sure that these two defendants were not at the theatre that morning.

Next, janitor Leo Donahue refuted in one minute the eyewitness testimony that, with pounding fists, he had taken nearly a full trial day to tell.

While he had taken all eight eyewitnesses to Dedham, Cregg spared the six others this moment of embarrassment. He moved for a directed verdict of not guilty. The defense made the same motion. The judge made notes for a full minute, then addressed the jury:

It may surprise you, Mr. Foreman and jury, to learn that you have agreed upon your verdict. I instruct you now that as the names are read by the clerk you will return verdicts of not guilty.

"Not guilty," said each juror in turn. The judge then ordered the defendants released from their cage. As the taxi drivers rushed into the arms of families and friends, prosecutor Cregg released a full confession to the Lynn holdup and murder by one Abraham Faber, along with photographs of two members of his gang who could easily have been mistaken for Louis Berrett and Clement Molway.

—Bernard Ryan, Jr.