“At any rate,” he concluded, in one of the rhetorical flourishes of which he was so proud, “I am not willing to blacken the memory of Mr. Ripley and to pronounce those eleven surviving jurors as falsifiers under oath by claims of counsel that are so weak, so fragile, and so unsatisfactory. If this motion for a new trial based upon hearsay statements made by a deceased juror to a counsel for the defendants under such circumstances as are herein disclosed [were granted], it would result in smirching the honor, integrity, and good name of twelve honorable jurors, by a decision that never could be justified by the simplest rules of sound judgment, reason, truth, and common sense.” As for Daley’s affidavit charging Ripley with the remark, “Damn them, they ought to hang them anyway!” Thayer ruled that he “was not bound to believe him,” nor was he “required to give the reasons for his action. Furthermore, before being sworn as a juror, it must be assumed that Ripley had answered in the negative ... whether he had expressed or formed an opinion or was sensible of any bias or prejudice.” Even if Daley had no reason for lying, it was still hearsay evidence—and Ripley was long since dead. In denying the second motion Thayer expressed doubt that the itinerant Gould could “have carried a correct mental photograph in his mind of Sacco for practically eighteen months, when he had only a glance in which to take this photograph on the day of the murder.” Gould, however, had merely claimed that the man who had put a bullet through his lapel, the man he had seen in that frozen instant of terror when the gun flashed in his face, was not the stocky Italian he had seen eighteen months later in the Dedham jail. Thayer held that Gould was just one more witness in the crowd, and that his evidence, if presented, would have had no effect on the jury—“For the evidence that convicted these men was circumstantial and was evidence that is known in law as ‘consciousness of guilt.’” For a dozen pages Thayer continued this theme with variations, coming back again to the question of whether the defendants had lied because of their consciousness of being radicals or their consciousness of being murderers. This, Thayer maintained, was a matter of fact that had been settled once and for all by the jurors. In passing, he could not resist an aside at those bothersome dissenters “who ever stand ready, through sympathy, prejudice, or some other unaccountable reason, to criticize and assail the verdicts of juries when, in fact, they never have heard a single word of evidence, nor observed a single witness on the stand.” As far as Louis Pelser was concerned, he had admittedly been drinking on the day he signed Moore’s affidavit, and a few days later, when sober, he had retracted it. Thayer accepted the counteraffidavits of Katzmann and Williams that they had not tried to influence Pelser, and ruled that Pelser’s statement provided no justification for a new trial.