J. Edgar Hoover: The Man and the Secrets (68 page)

Lane told the group that Julius Rosenberg was the “keystone to a lot of other potential espionage agents” and that the Justice Department believed that the only thing that would break Rosenberg was “the prospect of a death penalty or getting the chair.” He added, “If we can convict his wife too, and give her a stiff sentence of 25 to 30 years, that combination may serve to make this fellow disgorge and give us the information on these other individuals. It is about the only thing you can use as a lever against these people.”

Though Lane admitted that the case was “not too strong” against Mrs. Rosenberg, it was, he said, “very important that she be convicted too, and given a stiff sentence.”
^*

G
ORDON
D
EAN
(
CHAIRMAN OF THE
AEC): “It looks as though Rosenberg is the king pin of a very large ring, and if there is any way of breaking him by having the shadow of a death penalty over him, we want to do it.”

S
ENATOR
B
RICKER
: “You mean before the trial?”

M
R
. D
EAN
: “After the trial.”

Lane also told the committee, “No judge has been assigned. We hope to get the strongest judge possible.”
⁴⁷
Lane was not leveling with the committee. A judge had already been picked, although his assignment had not yet been announced: he was the Honorable Irving R. Kaufman, a federal court justice for the Southern District of New York, who had once worked as an assistant attorney general for Tom Clark and who, according to a former FBI official, “worshipped J. Edgar Hoover.”
⁴⁸

And, if Gordon Dean’s diary is to be believed, the judge had already stated, the previous day, more than a month before the trial, in an ex parte conversation with the prosecution, that he was willing to impose the death penalty as a lever to break Julius Rosenberg “if the evidence warrants.”

There is little question that Judge Kaufman badly wanted the Rosenberg case. Roy Cohn’s later assertion that he had pulled strings to get the case assigned to Kaufman, however, has to be submitted to the same skepticism accorded any of Cohn’s boasts, particularly since, at that time, Cohn was a junior, if hyperactive, member of the prosecution team and had not yet met his mentor Joseph R. McCarthy.
^*

On February 7, 1950, the day before the secret congressional committee meeting, Dean wrote in his office diary that he had conferred by phone with James McInerney, chief of the Justice Department’s Criminal Division, and asked whether Julius Rosenberg might break and make a full confession. In response, quoting the diary, “McInerney said there is no indication [of a confession] at this point and he doesn’t think there will be unless we get a death sentence. He talked to the judge and he is prepared to impose one if the evidence warrants.”
⁵⁰

An ex parte communication—private contact between a judge and only one side of a legal proceeding—is forbidden under Canon 3A (4) of the American Bar Association’s Code of Judicial Conduct, adopted in 1972. However, in 1951, when the above took place, such conduct was not prohibited. It was, however, considered permissible only in case of an extreme emergency (such as a death threat). There was no emergency, extreme or otherwise, in this and the
numerous
other ex parte conversations Kaufman held with the prosecution.

The problem of the weak case against Ethel Rosenberg was solved on February
23 and 24, 1951—nearly six months after her arrest and just ten days before the start of the trial—when both David and Ruth Greenglass were “reinterviewed.” Earlier, in a July 17, 1950, statement, David had claimed that he’d passed the atomic data he’d collected to Julius on a New York street corner. But now he stated that he’d given this information to Julius in the living room of the Rosenberg’s New York apartment and that Ethel, at Julius’s request, had taken his notes and “typed them up.” In her reinterview Ruth expanded on her husband’s version: “Julius then took the info into the bathroom and read it and when he came out he called Ethel and told her she had to type this info immediately. [Ruth] said Ethel then sat down at the typewriter which she placed on a bridge table in the living room and proceeded to type the info which David had given to Julius.”

Finally the FBI had an overt act involving Ethel in the conspiracy.

Ruth further implicated Ethel by recalling that on still another occasion she’d asked Ethel why she looked so tired and that Ethel had replied that she’d been up late typing material that David had given to Julius. Ethel told Ruth, according to Ruth’s revised statement, “that she always typed up Julius’s material…and that occasionally she had to stay up late at night to do this.”
^*
51

All that was missing was Woodstock No. 230099.

The Greenglasses weren’t the only witnesses to change their testimony prior to the trial. On December 28, 1950, the FBI had arranged for Harry Gold and David Greenglass to meet secretly in a conference room in the Tombs to work out some of the discrepancies between their accounts.
^†

The trial, which began on March 6, 1951, lasted less than three weeks. It was generally agreed that Emanuel Bloch, chief counsel for the two Rosenbergs, adopted the wrong defense strategy. Bloch did not deny that espionage had been committed, only that his clients had committed it. He declined to cross-examine Harry Gold, he told the jury in summation, “because there is no doubt in my mind that he impressed you as well as he impressed everybody that he was telling the absolute truth.”
⁵²
He didn’t question the value of the atomic data that Greenglass had stolen—a number of scientists, including Albert Einstein and Harold Urey, later did—but instead emphasized it, by demanding that it be impounded, “so that it remains secret from the Court, the jury and counsel.”
⁵³
He attacked the testimony of the Greenglasses but neglected to request the one thing that would have discredited them, their pretrial statements.

Ten days into the trial, Belmont memoed Ladd, “While talking with Ray Whearty of the Department on the afternoon of March 16, he commented that with regard to the Rosenberg case if Rosenberg is convicted he thought Judge Kaufman would impose the death penalty. I inquired as to why he thought Kaufman would impose the death penalty and he said, ‘I know he will if he doesn’t change his mind.’ ”
⁵⁴

The prosecution pared down its case to a few key witnesses but managed to work in one “expert” on Soviet espionage, Elizabeth Bentley, who testified that in the early 1940s a man who identified himself as “Julius” had called her five or six times late at night asking her to relay messages to her spymaster-lover Golos.

The defense called only two witnesses, and neither Julius nor Ethel Rosenberg helped their case. Although both proclaimed their innocence, Julius’s invoking the Fifth Amendment to any questions regarding his beliefs, associations, and alleged membership in the American Communist party did not sit well with the jury, while Ethel’s demeanor, more than her responses, worked against her. As a loyal wife and the mother of two children, from whom she was cruelly separated, Ethel might have been expected to arouse a certain amount of sympathy. Instead she came across as cold and unfeeling, her contempt for the proceedings barely concealed. On the advice of his attorney, their codefendant, Morton Sobell, did not take the stand.

It took the jury less than a day to reach its verdict. On March 29, 1951, the three defendants were found guilty on all counts. Judge Kaufman postponed sentencing for one week, until April 5.

Early on the morning of April 2, three days before the sentencing, Deputy Attorney General Peyton Ford called Hoover. Normally unflappable, Ford was very disturbed by the widely spreading rumor that Judge Kaufman was going to sentence
both
Rosenbergs, Julius
and
Ethel, to death.

Hoover too was disturbed by the talk. While he thought the arguments against executing a woman were nothing more than sentimentalism, it was the “psychological reaction” of the public to executing a wife and mother and leaving two small children orphaned that he most feared. The backlash, he predicted, would be an avalanche of adverse criticism, reflecting badly on the FBI, the Justice Department, and the entire government.

Ford agreed. Sure that Kaufman would ask for them, he requested the FBI prepare its sentencing recommendations.

The FBI was not a democratic institution. But in this instance, possibly to diffuse blame should the decision later be questioned, Hoover asked for the opinions of his subordinates, including the men who had actually handled the case, Belmont, Lamphere, and the other members of the Espionage Section.

From all of the FBI memorandums which have been released to date, it is apparent that no one in the hierarchy of the FBI, including its director, favored a death penalty for Ethel. As Mickey Ladd put it in his memorandum, apparently
forgetting the typewriter testimony, “Our evidence against her at the trial shows her participation consisted only in assisting in the activation of David Greenglass,” while the director himself viewed Ethel Rosenberg only as an accomplice “presumed to be acting under the influence of her husband.” Thus both Hoover and Ladd tacitly admitted there was no real case against Ethel.

By now Hoover had begun to have some doubts as to whether his “lever” strategy was going to work—thus far neither Julius nor Ethel Rosenberg had shown any sign of confessing—but others still believed in it. Assistant U.S. Attorney James B. Kilsheimer, for example, argued, “Whether or not the death penalty is actually carried out, I do not think is the important consideration at this time. However, I do think it should be imposed in an attempt to induce these defendants to reveal the extent of their illegal activities.”
⁵⁵
Kilsheimer favored a triple death sentence.

In his report to the attorney general, drafted later that same day, Hoover recommended that both Julius Rosenberg and Morton Sobell be sentenced to death and Ethel Rosenberg and David Greenglass be given prison sentences. He suggested thirty years for Ethel and fifteen for Greenglass.
^*

The next day Hoover learned there was some substance to the rumors. His source was the assistant prosecutor Roy Cohn, who had held an ex parte conversation with Judge Kaufman, which Cohn later reported to Ray Barloga of the New York field office. According to Cohn, Judge Kaufman had consulted with two other justices as to what sentence he should impose. Circuit Court of Appeals Judge Jerome M. Frank was against the death penalty for any of the defendants, while District Court Judge Edward Weinfeld reportedly favored the death penalty for all three.

Judge Kaufman himself, Cohn reported, “personally favored sentencing Julius and Ethel Rosenberg to death and [said] that he would give a prison term to Morton Sobell.”

As for himself, Cohn told Kaufman that he thought all three should be given the death sentence, but “at the same time he was of the opinion that if Mrs. Rosenberg was sentenced to a prison term there was a possibility that she would talk and additional prosecutions could be had on the basis of her evidence.”
^†
57

The following day, April 4, the day before sentencing, Judge Kaufman held another ex parte conversation, this one with the chief prosecutor, Irving Saypol. Asked for his recommendations, Saypol replied that he favored a death sentence for both Rosenbergs and a thirty-year sentence for Sobell but admitted that he hadn’t checked with his Justice Department superiors. Kaufman urged him to do so—he especially wanted the recommendations of J. Edgar Hoover—and on his urging Saypol flew to Washington that same day to confer with McInerney and Ford.

He found opinions divided, but that “capital punishment for one or both was in not out.”
⁵⁹
Hoping to get a uniformity of opinion, Ford told Saypol to call him that evening, after his return to New York. That night both Saypol and Kaufman attended the same social function, and Saypol made the call in Kaufman’s presence. Learning that opinions were still divided, Kaufman asked Saypol not to make any recommendations for sentencing in court the next day.

The decision would be solely his.

Judge Kaufman, in pronouncing sentence, described the defendants’ crime as “worse than murder.” By “putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but what that millions more innocent people may pay the price of your treason. Indeed, by your betrayal, you undoubtedly have altered the course of history to the disadvantage of our country.”
⁶⁰

There was no evidence, of any kind, that linked the Rosenbergs’ activities to the Communist aggression in Korea, no evidence really that the data Greenglass provided had been instrumental in giving the Russians the “secret” of the atomic bomb. If anyone deserved that credit, it was May and Fuchs. But Kaufman was not concerned with such technicalities. He sentenced both Julius and Ethel Rosenberg to death, gave Morton Sobell thirty years and David Greenglass fifteen.
^*

After meeting with the press, Judge Kaufman placed a call to Edward Scheidt of the New York field office and asked him to pass on his thanks and highest compliments to Director Hoover.

Kaufman had scheduled the executions for the week of May 21, 1951. The appeals, however, took two years, and not until June of 1953 did the agents make their trek to Ossining. Even then there was another delay, Justice Douglas granting a stay of execution, only to be overruled by the full Court, and the time was rescheduled for 11:00
P.M.
on Friday, June 19.

In a final appeal to Judge Kaufman, Attorney Bloch, hoping for at least a week’s postponement, pointed out that if the executions proceeded as scheduled they would occur on the Jewish Sabbath. Kaufman, himself Jewish, was sympathetic, but he didn’t change the date, only the time, moving up the executions to 8:00
P.M.
, shortly before sundown.