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Legal Questions Before the Federal Courts

1. Were the defendants guilty of conspiring to commit espionage to aid the Soviet Union by providing it, during wartime, with classified information regarding the national defense of the United States?

Yes, the jury found Julius Rosenberg, Ethel Rosenberg, and Morton Sobell guilty of violating the Espionage Act by conspiring to pass classified defense information, including material related to the atomic bomb, to the Soviet Union.

In order to prove a conspiracy under the Espionage Act, the government was required to establish the existence of a common plan among the defendants to transmit to a foreign nation classified information relating to the national defense of the United States, with the intent of advantaging that foreign nation, and at least one overt act in furtherance of that plan. The jury agreed with the prosecution’s contention that the Rosenbergs and Sobell collaborated on a plan to pass stolen defense secrets to the Soviet Union and that they committed several overt acts to further that plan. Sobell was not named in the indictment as committing any of the specific overt acts, but under the law of conspiracy an overt act by any one defendant was sufficient for the conviction of all defendants. The prosecution argued further that the defendants’ Communist affiliations and admiration for the Soviet Union were evidence that they acted with the intent of advantaging that nation, as prohibited by the statute.

On appeal, Sobell’s lawyers argued that the main conspiracy was aimed at transmitting secrets about the atomic bomb, and that Sobell, who was not linked to atomic espionage, should have been charged with a separate conspiracy with Julius Rosenberg to transmit non-atomic defense information. The U.S. Court of Appeals for the Second Circuit rejected this contention by a vote of 2 to 1, with Judge Jerome Frank casting the dissenting vote to grant Sobell a new trial.

2. Did the prosecution deprive the defendants of a fair trial by knowingly using perjured testimony from David Greenglass?

No, according to both the district court and the court of appeals, the testimony of David Greenglass was properly admitted into evidence.

The defense claimed on appeal that David Greenglass had committed perjury. The court of appeals, while acknowledging that “if that testimony were disregarded, the conviction could not stand,” held that it is “the jury’s province,” not that of the court, “to consider the credibility of witnesses or the reliability of testimony.” Moreover, the appellate court pointed out, Judge Kaufman had instructed the jury to view with caution the testimony of witnesses who, like Greenglass, had admitted to participating in espionage.

In a subsequent petition to the district court to overturn their sentences, the defendants further claimed that Greenglass lied on the stand, and that the prosecution had presented his testimony with knowledge that it was false. First, the defense alleged that Greenglass lied when he testified that he had made a full statement to the FBI on the night of his arrest, and that in fact his initial statement was inconsistent with his subsequent testimony. District Judge Sylvester Ryan ruled that because the defense neither attempted to use Greenglass’s initial statement when cross-examining him nor asked for it to be entered into evidence, the court was not obligated to conduct a postconviction review of the statement to see if it was consistent with Greenglass’s trial testimony. Next, the defense submitted affidavits from physicists expressing doubt that Greenglass could have reproduced from memory the sketches he made at trial to illustrate the information he provided to Julius Rosenberg. Judge Ryan found no factual basis for concluding that Greenglass had committed perjury or that the government knew his testimony to be false. Judge Ryan ruled that he could not consider the opinions of experts who had not seen the witness testify. The court of appeals affirmed Judge Ryan’s ruling, echoing his statement that only the jury was capable of evaluating Greenglass’s credibility as a witness.

3. Did the admission of evidence of the defendants’ admiration for the Soviet Union and membership in the Communist Party deprive them of a fair trial?

No, according to the court of appeals, the defendants were not unfairly prejudiced by references to their admiration for the Soviet government and to their membership in the American Communist Party.

While admitting that such evidence could be “highly inflammatory in a jury trial,” the court of appeals nevertheless held that it was properly admitted. Evidence of sympathy for the Soviet Union, while not constituting proof of espionage, was relevant to the defendants’ possible motive for spying. As the court noted, membership in the Communist Party would not have been relevant to the defendants’ motive without evidence tying American Communists to the Soviet Union, but the prosecution presented testimony that the American Communist Party was part of the Communist International and took orders from the Soviet Union. The appellate court acknowledged that Judge Kaufman’s instruction to the jury that the defendants were not on trial for being Communists might have constituted “an empty ritual,” but explained that the defendants could have opted for a nonjury trial in order to avoid the risk of prejudice.

4. Did the behavior of Judge Kaufman deprive the defendants of a fair trial?

No, according to the court of appeals, the judge’s behavior “stayed well inside the discretion allowed him.” Moreover, the court of appeals decided, the defendants’ claim on appeal of improper and prejudicial behavior by the judge was “not compatible” with the defense counsel’s statements during the trial that the judge had behaved fairly and properly.

The defendants claimed that Judge Kaufman improperly questioned the witnesses, reinforced the prosecutors’ arguments, dismissed arguments of the defense counsel, and protected the credibility of witnesses testifying against the defendants. The court of appeals reviewed over one hundred incidents of allegedly unfair behavior by the judge. The court of appeals panel concluded that “in general, we can find no purpose in the judge’s questioning except that of clarification. If, with that purpose, he gave witnesses who had contradicted themselves a chance to resolve that conflict, and took away defendants’ temporary advantage with the jury, it was an unavoidable incident of his unchallenged power to bring out the facts of the case.”

5. Did publicity before and during the trial create an environment in which the defendants could not receive a fair trial?

No, according to both the district court and the court of appeals, the defendants were not unfairly prejudiced by newspaper coverage of the case.

In their petition to the district court to nullify their sentences, the defendants for the first time raised the argument that media coverage of the case was sufficiently extensive and inflammatory to make impossible the selection of an impartial jury or the conduct of a fair trial.

Judge Ryan of the district court found the pretrial newspaper coverage “negligible” and, in reviewing stories published during the trial, found “nothing of an unusual or inflammatory character,” but rather “a fair response to a legitimate public interest in a matter of vital concern to all—the atom bomb and atomic energy and the hope for its employment for the benefit and not the destruction of mankind.” The judge also noted the defendants’ failure to request that the trial be delayed or moved to another court, both of which were common remedies for adverse pretrial publicity. Finally, the attorneys for the defendants did not object to the jury after it was selected and did not use all of the challenges to prospective jurors to which they were entitled. The court of appeals affirmed the district court’s ruling on this issue.

6. Did a press conference given by U.S. Attorney Irving Saypol, in the midst of the trial, regarding the arrest for perjury of an associate of Julius Rosenberg and Morton Sobell, deprive the defendants of a fair trial?

No, according to both the district court and the court of appeals, the defendants were not unfairly prejudiced by Saypol’s statements. Although the court of appeals called Saypol’s conduct “highly reprehensible,” it agreed with the district court that the defendants’ failure to request a mistrial at the time barred them from obtaining relief later.

The defendants argued that the chief prosecutor had acted improperly by announcing to the press, during the trial, the indictment and arrest for perjury of William Perl, a Columbia University physics instructor. Perl had been arrested for lying to the grand jury after he falsely claimed not to know Julius Rosenberg and Morton Sobell. In announcing the indictment, Saypol told the press that Perl had been listed as a trial witness and that his intended role was to corroborate the testimony of David and Ruth Greenglass.

Perl was arrested on the evening of the day Ruth Greenglass took the witness stand, and the defense complained to trial judge Irving Kaufman that Saypol had timed the arrest and indictment to bring about negative publicity for Rosenberg and Sobell. If members of the jury heard about Perl, they could have inferred that had he testified at trial, he would have identified Rosenberg and Sobell as spies. The defense did not request that Kaufman grant a mistrial, however, after Saypol assured the court that the timing of the indictment was not intended to affect the Rosenberg trial.

Later, in asking the district court to overturn their sentences, the defendants argued that Saypol’s failure to bring Perl to trial by late 1952 proved that he had sought the indictment of Perl with the sole aim of affecting the Rosenberg case. Judge Sylvester Ryan, however, accepted Saypol’s explanation that he had not yet tried Perl for fear that his trial would lead to disclosures that could affect other cases. In any event, the judge ruled, the defense’s failure to ask for a mistrial barred them from complaining about Saypol’s actions later. The court of appeals affirmed Ryan’s decision on the same grounds, despite condemning Saypol’s conduct.

7. Did the Rosenbergs’ death sentences violate the constitutional ban on cruel and unusual punishment?

No, according to the court of appeals, the trial judge acted within his discretion when he sentenced Julius and Ethel Rosenberg to death.

In their appeal, the Rosenbergs claimed that although the Espionage Act authorized a death sentence for wartime spying, the particular circumstances of their case made such a punishment cruel and unusual in violation of the Eighth Amendment. Specifically, the Rosenbergs pointed out that they had no prior criminal history, had not acted out of greed, and were accused of conspiring to pass information not to an enemy nation, but to a wartime ally. Furthermore, other wartime spies were sentenced to prison or avoided punishment entirely, and no civil court had ever imposed a death sentence in an espionage case. The court of appeals held that it had no power to modify a sentence allowed by a statute that had not been found unconstitutional. Judge Jerome Frank, who authored the opinion, added on his own behalf that even if a statutorily authorized punishment could be cruel and unusual, a death sentence in this case was not a punishment that “shocks the conscience and sense of justice of the people of the United States.” This was especially true, wrote Judge Frank, because the espionage conspiracy had lasted beyond the time when the Soviet Union was an ally and into the Cold War, when hostility between the United States and the Soviet Union had become readily apparent.

8. Should the defendants have been sentenced under the Atomic Energy Act of 1946 rather than the Espionage Act of 1917?

No, according to the Supreme Court, the defendants were properly charged and sentenced under the Espionage Act.

Only in the final week of their appeals did lawyers for the defendants raise the claim that they had been sentenced under the wrong statute. Attorneys who did not formally represent the Rosenbergs raised the issue on June 16, 1953, three days before the Rosenbergs were put to death, in petitioning Supreme Court Justice William Douglas for a stay of execution. These lawyers claimed that the Atomic Energy Act of 1946 had superseded the Espionage Act of 1917 with respect to conduct covered by both laws and did not allow a court to impose a death sentence for espionage without the recommendation of the jury and proof that the espionage had been committed with the intent to injure the United States. The prosecutors’ decision to charge the defendants under the Espionage Act was not binding on the trial court, which was responsible for deciding points of law.

Justice Douglas, believing the petition to have raised a substantial question, granted the stay on June 17 with the intent that the issue be resolved by the district court and then the court of appeals. In his decision, Douglas cited the fact that the alleged conspiracy did not end until several years after the passage of the Atomic Energy Act as well as the Act’s purpose of ameliorating the penalties for atomic espionage. The attorney general requested that the stay be vacated, and the Supreme Court held oral argument on June 18. The full Court, by a vote of 6 to 3, vacated the stay the next day, noting in the majority’s brief written opinion that “the question is not substantial” and “further proceedings to litigate it are unwarranted” because the latter statute had not repealed or limited the prior one in any way. The following month, Chief Justice Fred Vinson authored a longer opinion for the majority, explaining why the Court resolved the matter itself rather than allowing the case to return to the lower courts. Justices Douglas, Hugo Black, and Felix Frankfurter filed dissenting opinions. Explaining that when two statutes covered the criminal conduct in question, a court was obligated to apply the one with the lesser penalty, Douglas insisted, “I know deep in my heart that I am right on the law.”

9. Did the Supreme Court have the power to vacate the stay of execution issued by Justice Douglas?

Yes, according to the Supreme Court, the stay was properly vacated.

The Supreme Court had never before vacated a stay granted by an individual justice, but the Court held that to do so was nevertheless permissible and was proper under the circumstances of this case. The sole reason for the stay was to preserve the opportunity to resolve the underlying issue raised by the petition—in this instance, the applicability of the Atomic Energy Act of 1946 to the defendants. Because the question presented was strictly legal and did not require findings of fact, which would have been the province of the district court, the Supreme Court held that it was competent to resolve the issue immediately without adding months to the process by allowing the case to return to the district court and then the court of appeals. Chief Justice Vinson also wrote that the Supreme Court’s responsibility to supervise the administration of justice in the federal courts included a “duty to see that the laws are not only enforced by fair proceedings, but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty.” In their separate dissents, Justices Black and Frankfurter decried the haste of the Court in vacating the stay.