The Rosenbergs: A Case of Love, Espionage, Deceit and Betray
Act Five: The Appeals
The Russian quoted by Rebecca West was quite right: The legal proceedings were indeed prolonged and confused. The date of execution was stayed until the appeals could run their course. This was a little over two years, a period that began slowly, but, like all classic dramas, accelerated to a conclusion.
- Judge Jerome Frank, Second Circuit Court of Appeals
- Fyke Farmer, attorney
- Daniel Marshall, attorney
- William O. Douglas, Associate Justice, United States Supreme Court
- Fred Vinson, Chief Justice, United States Supreme Court
- other lawyers, clerks, etc.
The first significant appeal was almost nine months after the sentencing, January 10, 1952. The Rosenbergs were hopeful, for the Second Circuit Court of Appeals had on it the liberal jurist Jerome Frank. Judge Frank was noted for his opposition to the death penalty. However, he could find no basis for appeal on points of law, which were, after all, the only substantive issues upon which the Court of Appeals could rule. They allowed the verdict and the sentence to stand, although Judge Frank's opinion suggested that the sentence could be commuted by the U.S. Supreme Court.
Eight months later, the Supreme Court denied certiorari, that is, refused to hear the case.
For the next eight months, while the Rosenbergs and Emanuel Bloch were on an emotional roller coaster, dipping between hope and despair, a number of things were happening.
The Communist Party of the United States had been uncharacteristically silent about the fate of the Rosenbergs. Then, after summary executions of political dissidents in Poland by the Communists almost all of them Jews things changed. In order to deflect world-wide criticism of anti-Semitism, communist parties throughout Europe and the United States began to defend the Rosenbergs' innocence. Demonstrations of many thousands were held in the major cities of Europe.
These demonstrations and the reversal of the Communist Party's position were fueled by a series of articles in the National Guardian, which eventually led to the formation of the National Committee to Secure Justice in the Rosenberg Case. Similar committees were founded in Britain, France, and Italy. As the magazine's series developed, Ethel contributed letters from prison to the National Guardian. Prominent individuals, such as Albert Einstein and the chemist Harold Urey,were enlisted for their support.
After the failure of their appeals, the Rosenbergs pinned their hopes on a groundswell of public support.
With an execution date now set for June 17, 1953, the Supreme Court was petitioned for a stay of execution. On June 13th, it refused.
President Eisenhower was petitioned for clemency. He refused, privately repeating the now generally accepted myth that Ethel was the true force behind the espionage ring.
Then, two lawyers, Fyke Farmer and Daniel Marshall, enter the drama. They had been brought into the Rosenberg case by a wealthy supporter of radical causes, Irwin Edelman. Farmer and Marshall, previously repulsed by Bloch in their efforts to help, took it on their own to approach Supreme Court Associate Justice William O. Douglas. The date was June 16, 1953, the day before the Rosenbergs were to be executed.
Douglas was in his office, packing books to be taken down to his waiting car, about to leave for the summer. Farmer and Marshall were able to have a few words with Douglas about a point of law that would place the death sentence in question. The Rosenbergs, tried under the Espionage Act of 1917, should not have been sentenced to death by Judge Kaufman, since the later law, the Atomic Secrets Act of 1946, held that only the jury could pronounce the death penalty.
The intrigued Douglas asked if Farmer and Marshall could produce a brief of their argument, and a record of the trial. They raced to the hotel room where Bloch and his colleagues had established a gloomy command post, desperately trying to produce one more appeal for presidential clemency. Within an hour, Farmer and Marshall returned to the Supreme Court, and Douglas, canceling his waiting car, took the materials from them. He and his clerks began to work.
Taking no chances, Bloch took the new petition for presidential clemency and the Rosenberg children and flew to Sing-Sing. The petition had to be signed by both Julius and Ethel. A tearful farewell was held between the children and their parents, and between the lawyer and his clients. The petition was signed, and Bloch and the children returned to Washington.
The next morning, Douglas announced his decision. The execution would be stayed. Since the U.S. Supreme Court would not be in session again until the first Monday in October, the Rosenbergs could now live for at least another six months.
The Attorney General, Herbert Brownell, challenged the stay. Then, in an unprecedented act, Chief Justice Fred Vinson called the entire court back in session for June 19th, in order to rule on the Attorney General's challenge to Justice Douglas's stay. Douglas heard the news on his car radio, already on the road toward his vacation destination. Justice Hugo Black, in the hospital for minor surgery, left the hospital for the session.
In a presentation marked by groveling, emotionalism, and vituperation, the Rosenberg lawyers challenged the integrity of the prosecution, the government, and the court. The government responded by carefully arguing the 1917 and 1946 laws. They concluded that the acts of espionage fell under the 1917, not the 1946, interpretation, and that Judge Kaufman was indeed permitted to pronounce a sentence of death. What if, the government argued, had the terms of the two laws been reversed? Would it be just to claim privilege under one law, and not the other? Can one law supersede another when both are in force?
After an hour, the Court ruled. Justice Douglas's stay of execution would be put aside.
The execution, scheduled for 11:00 p.m., was to go forth. While the petition for clemency was rushed to the White House and again refused, Bloch pointed out that it was Friday, and the Sabbath would begin at sundown. Could the execution be rescheduled? Much to his horror, it was moved up to 8:00 p.m..
Julius went to his death pale, shaken, but quietly. Ethel's execution was to follow, and she walked calmly to the electric chair, gently kissed one of the prison matrons on the cheek, and was electrocuted. However, Ethel was not dead after the first jolt. She had to be electrocuted a second time.