Friday, December 19th, 2014

The Trial


In 1951, after several years of televised and front-page parades of thousands of Americans labeled “communists” and “traitors” by loyalty-investigating committees of Congress, the Department of Justice mounted what became known as the Rosenberg-Sobell trial.

Three defendants – Julius Rosenberg, a young engineer, his wife, Ethel, and a friend, Morton Sobell, also an engineer, were indicted for conspiring to commit espionage for the Soviet Union, our military ally in World War II. A fourth defendant, David Greenglass, the brother of Ethel Rosenberg, a machinist, confessed and testified against his sister and her husband. The maximum penalty under the 1918 Espionage Act was death. In exchange for his testimony, Justice officials agreed not to indict Greenglass’ wife, whom he had implicated in his statements to the FBI, and he would later be spared the death penalty.

At the trial, however, the trial record makes clear, the prosecution, with the cooperation of the judge, misled the jurors into believing that the indictment was for espionage on behalf of an enemy, that is, for treason. This deception was later revealed by government documents to have involved numerous perjuries, a revelation further substantiated by two public confessions by the chief witness, who admitted that he had been encouraged by the prosecution to commit the perjuries.

There was no tangible or credible circumstantial evidence relating to any specific secret information passed by the defendants. In the indictment’s list of 12 Overt Acts, there was a single reference, in Overt Act 11, to “a paper containing sketches of experiments conducted at the Los Alamos Project” that Greenglass testified he gave to Julius Rosenberg in January 1945. [1] The prosecution did not introduce the paper at the trial, but did introduce “likenesses” of sketches Greenglass testified he made from memory six years later while awaiting trial. The prosecution did not, however, produce any evidence that these “likenesses” replicated any sketches that had ever been created at the Los Alamos atom bomb development center. An eminent scientist who had been connected with the atom bomb project, on seeing the sketches when they were made public many years after the trial, described them as a “childlike caricature.” [2]

Of 32 Exhibits of evidence introduced at the trial by the prosecution, only Exhibit One – a copy of the security regulations – was traceable to Los Alamos, but no claim was made that any of the defendants had ever had it in their possession.

In respect to one defendant – Ethel Rosenberg – none of the Exhibits connected her in any way to any information the prosecution claimed had been passed to the Soviet Union. David Greenglass, her brother, and Ruth, his wife, both testified that Ethel Rosenberg had typed up Greenglasses’ information, but no evidence, neither tangible nor circumstantial, supported their testimony. Twenty years after the trial, a letter from J. Edgar Hoover, who was the FBI’s Director at the time, to Justice officials, revealed that Hoover had urged Ethel Rosenberg’s indictment solely as “leverage” to compel her husband to confess.

In place of the absent evidence, the prosecution argued to the jurors that the defendants were communists, and that their aim was the destruction of the United States, and the word “treason” was repeatedly charged in the courtroom although never mentioned in the indictment.

The presiding judge echoed the prosecution’s “treason” arguments in his instructions to the jurors before they began their deliberations, telling them that “irrational sympathies must not shield proven traitors.” [3]

The defendants were found guilty. In later years, those jurors available for interviews, said they had been persuaded by the prosecution that the defendants had committed treason. Julius and Ethel Rosenberg were sentenced to death. Morton Sobell was sentenced to 30 years imprisonment. David Greenglass was given a 15-year sentence.  The Supreme Court refused nine times to review the trial record.

During the appeals from the verdicts, a Supreme Court justice issued a stay of execution on the grounds that the Rosenbergs may have been sentenced under the wrong law [4], and that the appropriate law did not permit  the imposition of death sentences without the jury’s consent.

An impeachment motion was quickly entered against the justice in the House of Representatives. At the same time, the Attorney General hastily met in a prohibited ex parte meeting, of which the defense was not informed, with the Chief Justice, who then recalled the Supreme Court justices from their vacations and, in an unprecedented special session, the Court, without ever reviewing the trial record, set aside the stay of execution by a vote of 6-3.

Before sundown that day, Julius and Ethel Rosenberg were executed.

Never before in American history had persons convicted of an espionage crime been put to death in peace time.

Fast forward…

In September 2008, fifty seven years after the trial, a codefendant in the Rosenberg-Sobell case, Morton Sobell, admitted that Julius Rosenberg and he had passed classified military and industrial information to the Soviet Union during World War II, when the Soviet Union was our military ally, and for some time  afterward. He denied that the information had been related to the atom bomb, or that he had any knowledge that Julius Rosenberg had passed such information.

His admission was not to treason, but to espionage on behalf of a nation that had been our military ally. In that same year portions of the verbatim record of the Grand Jury hearings that had indicted the defendants in 1950 were released, and it was found that Ruth Greenglass, the wife of the government’s chief witness, had admitted she typed up material on the atom bomb given to her by David Greenglass, although she later testified at the trial that Ethel Rosenberg had done so. [5]

Sobell’s confession did not bring closure to the case. Two years later, three books appeared, shedding new light on the judge, the prosecution and its witnesses, and on government-documented proof of suborned perjuries, jury manipulation and other deceits that marked the trial. These books were preceded over the years by more than a score of studies based on the trial record and government documents made public under the Freedom of Information Act. Most of the lawyers, historians and investigative reporters drew the conclusion that the trial had not been conducted, as the law requires, solely on the charge in the indictment. The inflammatory oratorical charges in the courtroom that the aim of the defendants was the destruction of the United States in an atomic war, many studies found, was an invention by the prosecution.

The prestigious Columbia Law Review found that inflammatory accusations would “induce the jury more readily to return a verdict of guilty” [6], but if they had not been permitted by the judge, the Review said, “he might also have precluded a verdict of guilty.” [7] On vacating the stay of execution that would have allowed the Supreme Court to consider whether the death sentences were legal, the Review stated, “the action of the Supreme Court in vacating the stay is unprecedented.” [8] The Review concluded that “the rights of the Rosenbergs did not receive the precise and extensive consideration that must characterize the administration of the criminal law.” [9]

That the trial of the defendants on a charge not in the indictment was an extraordinary violation of the Constitution by Justice officials can be seen by the Supreme Court’s decision in a similar case eight years earlier, in which the Court held that “Conviction upon a charge not made would be sheer denial of due process”. [10] Since the trial resulted in wrongful death sentences, Justice officials had also violated the elementary human rights of the couple.

The truth is in the details…

What did the trial record and the thousands of Justice Department, FBI and other government documents reveal?

During the selection of jurors, the candidate jurors were compelled to submit to a political test in which they had to declare their support for the administration’s foreign and domestic policies before being selected. [11]

The prosecution promised the jurors it would call eminent scientists, including Harold Urey, a Nobel prize winner, to testify against the defendants. Not one of these scientists was called, and Nobelist Urey later revealed that he had never even been contacted by the prosecution and that he knew nothing about the defendants. (He subsequently became active in seeking clemency for the Rosenbergs).

Eight months after the trial, a writer friendly to the prosecution inadvertently revealed that an important government witness had perjured himself in his testimony against the Rosenbergs, a revelation supported by the affidavits of two FBI agents. [12]

Eighteen months later, new evidence was discovered:

1) a memorandum in the prosecution’s chief witness’ handwriting in which he admitted agreeing to describe events he had not witnessed, but that had been described to him by the FB, [13];

2) tangible evidence that the chief witness had falsely testified that a console table in the Rosenbergs’ apartment had been adapted for espionage. [14] The newly found memorandum and the perjuriously described console table made headlines throughout the world.

Twenty years later, the minutes of a meeting of Department of Justice officials, Congressional members of the Joint Committee on Atomic Energy and of the Atomic Energy Commission one month before the trial, revealed that the three agencies had agreed to coach the chief witness by supplying him with information about the atom bomb he hadn’t had and could not have passed to Julius Rosenberg, although he claimed to have done so in his testimony.

The FBI arranged a meeting at which another key witness was persuaded to substitute, in his testimony, the name ‘Julius’ for the name of another espionage agent.

So wrong was the trial and execution of the Rosenbergs that an effort to obtain clemency for the Rosenbergs in 1951-1953 drew the support of 3000 American Protestant ministers, the American ambassador to France, Pope Pius XII and heads of state and officials of democratic nations allied with the United States, and several million petitions for clemency to the White House.

In the aftermath of a tragedy…

In 1993, at a mock trial of the Rosenbergs, conducted at the annual meeting of the conservative American Bar Association, presided over by a sitting Federal judge, two juries brought in Not Guilty Verdicts. [15]

In 1995, the famous Venona messages were made public by the CIA, in which there was no mention of the Rosenbergs or Morton Sobell being involved in atomic espionage, as the prosecution had charged at the trial. [16]

In 2001, David Greenglass, the government’s chief witness, confessed to a New York Times reporter that he had perjured himself at the trial. [17] In December 2001 he repeated his confession on the CBS television program 60 Minutes. [18] In both confessions he admitted that he had been encouraged or pressured by the prosecution to commit his perjuries.

An understandable question…

Is it really possible that officials who took an oath of fidelity to the Constitution would conduct trials in which they would knowingly prevent the seating of an impartial jury, beguile the jury with the names of eminent witnesses who would never be called, encourage perjured testimony by the state’s witnesses, and practice other deceptions in order to get Guilty verdicts?

Sadly, the answer is Yes. The character flaws of the Department of Justice’s appointed prosecutors became manifest not only at the trial but in later years. In 1976, the chief prosecutor, Irving Saypol, after he became a judge, was indicted by the State of New York for perjury, bribery and other offenses in. His chief assistant at the trial in 1951, Roy Cohn, was eventually disbarred for defrauding clients, perjury and other unethical practices.

The presiding judge, Irving Kaufman, who took the same oath of fidelity to the Constitution as did the prosecutors, narrowly escaped a true investigation of his conduct. Twenty years after the trial, a petition by a hundred law school professors for an investigation of Judge Kaufman by the Senate was detoured by his supporters into an “investigation”, chaired by a former federal judge who was Kaufman’s close friend, by the American Bar Association.  Not surprisingly, Judge Kaufman was cleared of any impropriety.

The long-term impact of the Rosenberg-Sobell Trial on American justice…

We have pointed out the illegalities at the 1951 trial: manipulation of jury selection, the prosecution’s fraudulent promises of eminent witnesses, the suborned perjuries, the coaching of the chief witness to commit perjury in respect to information on the atom bomb, the prosecution’s substitution of inflammatory oratory for tangible evidence, the judge’s reference, in the presence of the jury, to the defendants as “proven traitors” before the jury deliberations began, and the death sentences to which the jurors had not given their consent.

Many of those illegalities have been made “legal” over the past six decades by unconstitutional Congressional legislation and by Presidential Orders in which laws are interpreted, not according to the Constitution, but according to the policy goals of the transient occupants of the White House.

In short, the tricks and deceits used by opportunistic prosecutors to obtain convictions have been written into law. What was once condemned by courts as inflammatory references to religion, political beliefs and ancestry, is now procedurally “correct”. What was once repugnant to American ideals of justice has now been made “patriotic”.

Printing the truth becomes a crime…

In the Rosenberg-Sobell case, a committee to aid the defendants published the complete trial record and distributed it to the media, members of Congress and to civil liberties and religious organizations.

Today, in “loyalty” and “terrorism” cases, it could be a felony crime to print and distribute the record of a trial.

Exoneration…

Our Committee believes that because of the Justice Department’s misconduct in deceptively obtaining treason verdicts against the defendants, and then wrongfully putting the Rosenberg couple to death, it must yield to the enormity of the evidence of the past misconduct of its officials in this case. Because the Department has the power of  taking the freedom and life of other Americans, it must accept accountability for its past and present actions and for the rigid faithfulness its officials swore under oath to the Constitution. It must reopen the case, and erase the stain of treason from those it wrongfully labeled traitors by exonerating them of what the Department’s highest officials know was a false accusation.

The defendants did not commit treason. They should not have been executed. The Attorney General in 1953 should not have obstructed justice by holding a secret ex parte meeting with the Chief Justice of the Supreme Court to get the Court to wrongfully set aside a stay of execution. Nor should he and other Justice officials have opposed the defendants’ right to have the trial record reviewed by the Supreme Court.

Exoneration, late and bitter sweet though it might be, would still be justice.

Notes:

1 Trial record,  p. c-1-c3

2 The opinion of the scientist, Henry Linschitz , may be found at: 08/22/66:Morton Sobell v. U.S./amended petition to the U.S. District Court, p. 34

3 Trial record, p. 2338

4 Ibid

5 Transcript Federal Grand Jury, Southern District New York, Ruth Greenglass, 08/03/50, p. 9142

6 “The Rosenberg Case”: Columbia Law Review, Vol. 54, No. 2, February 1954 p. 223

7 Ibid, p. 227

8 Ibid, p. 244

9 Ibid, p. 260

10Schneiderman v U.S., 320 U.S.,118 (1943), at 155.  See also Stirone v. United States, 361 U.S. 212 (1960).

11 Trial record pp. 38-65

12 Trial record 2124-2131; Pilat, Oliver, The Atom Spies, Putnam’s,  NY, 1952, pp. v, 287; FBI   Agents Affidavits 12/01/52 (AN 2674-148-9) and AN 2674x, available at Boston U., Emily & David Aman collection, Howard Gotlieb Archival Research Center.

13 See above, Boston U. reference, AN 222

14 Ibid, AN 691-25-26

15 Ibid, AN 798

16Benson, Robert Louis; Warner, Michael, Venona – Soviet Espionage and the American Response 1939-1957, National Security Agency, Washington, DC, 1996, pp. 199-450

17 Roberts, Sam, The Brother, Random House, NY, 2001, pp. 196-7, 417, 482-3

18 12/05/01:60 Minutes/CBS/The Traitor