The Strange Trial of the Rosenbergs

There have been several books on the Rosenberg case, none of them very satisfactory and at least two (taking diametric views of the case) quite appallingly bad. Invitation to an Inquest is in another category altogether. Mr. and Mrs. Schneir have not only examined the record with care but, going beyond the record and exhibiting the most admirable tenacity, have uncovered significant facts not previously brought to light. The net effect of their researches is to cast considerable doubt on the veracity of Harry Gold and David Greenglass, the principal witnesses against the Rosenbergs, and on that of Max Elitcher, who supplied the only testimony directly linking Morton Sobell to the alleged Rosenberg spy ring. If the information now brought forward by Mr. and Mrs. Schneir had been used by the defense at the time of the trial, the result might have been different. And if their data had been marshalled when application was made for a new trial, some two years after the original trial and on the eve of the scheduled executions, it seems likely that a new trial would have been granted. To say this much, however, is not to say that the Rosenbergs and Sobell were unfairly convicted or that they were innocent of the charges against them. It is their failure to perceive this only superficially paradoxical distinction that deprives the Schneirs’ work of what would otherwise be its strong claim to credibility.

Fairness in the trial process can be judged only in the context of what the participants knew at the time: it is not a matter of hindsight. And innocence, in the face of a jury verdict of guilt, cannot be established merely by showing that this or that item of evidence is not entitled to the weight that it originally was given. But doubts of this sort do not trouble Mr. and Mrs. Schneir. Theirs is not, in the end, an invitation to an inquest; for them, the inquest is over and the results are clear: “Not only were Julius and Ethel Rosenberg—and Morton Sobell—unjustly convicted, they were punished for a crime that never occurred” (p. 403). They may be right, but they have not discharged the heavy burden of proof that rests upon them, a burden which, given their theory, requires the demonstration that officials of this government knowingly participated in a conspiracy quite as infamous as that which resulted in the Dreyfus affair.

The case against the Rosenbergs rested primarily on the testimony of two witnesses: Harry Gold and David Greenglass. Gold, according to his own testimony, was an espionage courier for the Russians, the American contact for Klaus Fuchs, and the person to whom David Greenglass, allegedly recruited by his brother-in-law Julius Rosenberg, delivered data on the atom bomb in June, 1945. Much of the Schneirs’ effort is devoted to showing that both Gold and Greenglass were highly suggestible, vulnerable, mentally unstable men who were brainwashed by the F.B.I. into concocting a story of atomic espionage. The authors’ careful chronological reconstruction of the way in which their stories evolved does indeed suggest that their recollections were mutually reinforced, rather than independently drawn upon. But that is at best inconclusive. The inference that the F.B.I. got Gold and Greenglass to agree to an invented story about a non-existent relationship remains an inference, permitted but not compelled by the chronology. The authors waste a good deal of effort showing that the material which was allegedly transmitted was of little importance. Although that fact, which has been clear for at least a decade, has important implications for the larger issues surrounding the case, it has nothing whatever to do with the question of the Rosenbergs’ guilt or innocence. The annals of espionage are full of instances of wasted effort. It seems that one of the prime occupational hazards of that notably unrewarding occupation is the dry run.

The authors’ most effective fire is concentrated on the few scraps of physical evidence tending to corroborate the self-incriminating accusations of Gold and Greenglass. Much was made at the trial of certain photographs of members of the Greenglass family, identified by David Greenglass as having been taken for passport use at Julius Rosenberg’s direction shortly before the alleged conspirators were arrested. These photographs were introduced at the trial to corroborate testimony that the families were preparing to flee the country. From this, the jury was invited to infer consciousness of guilt. The authors examined the photographs introduced into evidence and concluded that they did not look like passport pictures, finding them to be larger than standard size and to reveal more of their subjects than the usual head-and shoulders. The authors showed copies to the proprietor of the shop where they had been taken, who asserted that they were not what the Greenglasses would have been given if they had asked for passport pictures but were, instead, ordinary family photographs. (As the authors point out in a footnote, the defense at the trial did not contest the characterization of these pictures as passport photographs.) From this, the authors imply that the F.B.I. helped the Greenglasses to concoct this story about pictures which had been innocently taken and that the prosecution, “employ[ing] incredibly audacious tactics, akin to those of a carnival shell game,” connived in the resulting deception. Perhaps so, but the leap from fact to conclusion displays the authors; propensity to resolve all doubts in favor of the Rosenbergs’ innocence and the government’s culpability. In the hands of a skillful defense lawyer at the trial, the point might have had telling effect. But we cannot now try the case de novo.

The most striking of the authors’ discoveries relates to the only physical evidence corroborating the testimony that on June 3, 1945 Gold obtained data about the atom bomb from Greenglass in Albuquerque, New Mexico. This evidence consists of a photostat of a registration card at the Albuquerque Hilton Hotel bearing what purports to be Gold’s signature and the date June 3, 1945. Like the passport photos, it was introduced into evidence without objection or indeed examination by counsel for the defense. When the authors examined this photostat in the trial exhibits they noted that on the reverse side it bore the date stamp “June 4, 1945.” Their suspicions aroused, they embarked on an elaborate search for the truth about the registration card. They were never able to obtain the original from the government, itself a somewhat suspicious circumstance. People who had worked at the hotel were firmly of the view that the date stamp rather than the date on the front of the card was the controlling factor, if the card was a genuine registration card.

An examiner of questioned documents compared the photostat with what was conceded to be a genuine registration card made out by Harry Gold on September 19, 1945 and discovered by the F.B.I. in the files of the Albuquerque Hilton. She concluded that the two cards were differently printed and that the hotel clerk’s initials on the June 3rd card did not appear to correspond to samples of her handwriting secured by the authors, although her initials on the September 19th card did. The authors ask us to infer that after the F.B.I. discovered the genuine September 19th card in their search of the hotel files, they caused a forgery to be produced for which they obtained the signature of their compliant catspaw Harry Gold in order to buttress his trumped-up story. They do not offer an explanation of why the forgers were so clumsy as to have one date on the front and another on the back of the fake card, a discrepancy which only the incredible obtuseness of the defense kept from coming to light at the trial. Nor do they tell us whether their expert examiner was forewarned as to which card was suspected to be a forgery, an omission which, as I have pointed cut elsewhere with respect to a similar conclusion by this same expert,^* renders the conclusion suspect.

The authors are (and rightly so) unsparingly rigorous in their scrutiny of the government’s evidence. They are far less so in their appraisal of things said or done by the defendants. A single example from many that might be adduced will have to suffice. David Greenglass testified at the trial that Julius Rosenberg had stolen a proximity fuse for espionage purposes while he was working at Emerson Radio during the war. No testimony was introduced by either the prosecution or the defense tending to corroborate or disprove this assertion. After the conviction, Rosenberg suggested to his lawyer that this could be proven false because Emerson Radio kept records which would have shown whether any proximity fuses were unaccounted for during the period of his employment. The authors conclude that the prosecution’s failure to introduce such evidence shows that Rosenberg was right. They did not themselves follow up this lead by checking Emerson’s records. This is certainly excusable, but what is not excusable is their willingness to accept that if Julius Rosenberg said Emerson Radio had complete records then Emerson Radio had complete records. In short, their account scores this as a point for the innocence of the Rosenbergs; an impartial account would not have treated it as conclusive. Mr. and Mrs. Schneir may have started out with an open mind, but by the time they came to write their book they were so far committed that one seeking light on the case must view all their statements with the utmost reserve.

I cannot view as successful the authors’ attempt to present the Rosenberg case as the result of a malignant conspiracy among law enforcement officials. The “truth” about the case remains obscure, although one could wish that the moment had arrived for an impartial investigation of the troubling factual aspects of the case. Armed with the valuable investigative leads supplied by the industry of Mr. and Mrs. Schneir and with the subpoena power and the open mind that they did not possess, it is not fanciful to suppose that an official body (like the Warren Commission) might possibly be able to get to the bottom of this murky affair. Of course, if such an official body were to conclude that these leads led nowhere and that the Rosenbergs were after all guilty, its report (like the Warren Commission’s) would be viewed by many of those who are not convinced as supplying additional proof of official mendacity and conspiracy in high places. The revisionist impulse is not that easily satisfied.

Did the Rosenbergs receive a fair trial? The authors do not really address themselves to this question, but I think it more important to the concerns of a civilized society than an attempt to discover what “really” happened. It seems tolerably clear to me that they did not, that a total assessment of the legal process as it operated in their case reveals unacceptable shortcomings. I am not convinced that the Rosenbergs were the victims of a conspiracy. But the Government’s principal attorneys are not my idea of the kind of prosecutors that our system of justice ought to seek; and the trial judge seems to have been carried away, in his sentence if not in his conduct of the trial, by a subjective and quite extra-judicial assessment of the seriousness of their offense. The Rosenbergs were far more seriously prejudiced, in my view, by the spectacular incompetence of their trial counsel, which may well have deprived them of a fair trial. We will never know why he moved to impound David Greenglass’s sketch of the lens mold that he allegedly turned over to Harry Gold, thereby impressing the jury, far more than the prosecution ever could have done, with the extreme secrecy and importance of the data that was the subject of his clients’ alleged espionage conspiracy; or why he put Julius Rosenberg on the witness stand only to have him invoke the Fifth Amendment in response to questions about Communist affiliation. Nor will we know why he chose not to cross-examine Harry Gold at all, even though he must have known that only a few months earlier Gold’s credibility had been quite seriously shaken in the Brothman-Moskowitz trial. We can only guess that his failure, so far as the record shows, even to inspect the “passport photos” or the Hilton registration card, may have been motivated by a pathetic desire not to appear, to the judge or to the jury, to be resorting to obstructionist tactics. Of course, if one were interested in constructing conspiracy theories, the defense counsel’s behavior would afford the basis for a very startling one. More likely, the Rosenbergs were the victims of the kind of disparity in resources and talents between prosecution and defense that has been so acutely analyzed by Professors Kaplan and Waltz in their important book, The Trial of Jack Ruby.

Whatever one’s conclusion about the soundness of the jury’s verdict in the Rosenberg case, the subsequent events seem in retrospect individually lamentable and cumulatively disastrous. It seems clear, for example, that the death sentence was imposed on the basis of a false evaluation of the contribution made by the conspiracy (assuming its existence) to the Soviet development of the bomb. In this, the Rosenbergs were only the most spectacular victims of the hysteria of the times. Taking everything alleged against them as proven, one can only describe as barbaric the penalties imposed on Brothman, on Slack, and on the Rosenbergs’ co-defendant Sobell, whose continued incarceration measures the magnanimity and the political courage of three successive Presidents.

In the whole sorry affair the sorriest failure is that of the Supreme Court. Faced with an important and novel point of law, it acted hastily and (it must be said) supinely to dissolve the stay granted by one of its members and to permit the execution to proceed, without affording an adequate opportunity to set at rest the question whether the death sentence imposed on the Rosenbergs had been authorized by law. Only Justices Black, Douglas, and Frankfurther escape the odium of the judgment that seems as valid today as it was when made eleven years ago: “…the rights of the Rosenbergs did not receive the precise and extensive consideration that must characterize the administration of the criminal law.” For this one must have the keenest regret, even if one is not persuaded by the industry, the passion, and the bias of Mr. and Mrs. Schneir.