Washington, D.C. December 16, 1982

STATEMENT OF MARSHALL PERLIN

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OF THE HOUSE COMMITTEE ON THE JUDICIARY

(provided by Arlene Tyner)

As a person who has always been vigorously opposed to capital punishment on legal, moral and ethical grounds, I submit this statement in particular in my capacity as an attorney who has been engaged in the Rosenberg-Sobell case since June of 1953. This case epitomized the evils that necessarily flow when the state resorts to the cruel, obscene and indecent instrument of execution in its administration of the criminal justice system. The punishment of death has been imposed upon the innocent as well as the guilty. Such sentences are imposed and carried out all too often for "reasons of state", transitory political objectives in periods of hysteria and social turmoil and indeed in the majority of cases, disproportionately upon those members of minority groups -- the Blacks, the Hispanics, the aliens, the poor as well as the "radical", the "communist", the "anarchist".

On June 17, 1953 Justice Douglas stayed the execution of the death sentence against the Rosenbergs on the grounds that there were substantial questions of law which if sustained would preclude the imposition of the death sentence. Even while Justice Douglas was considering the application for a stay of execution, a secret meeting was called on the initiative of Justice Jackson which was attended by the Attorney General, Herbert Brownell, and Chief Justice Vinson in anticipation of the issuance of a stay, and to plan to vacate the stay which Justice Douglas or Justice Frankfurter might issue so that the execution could be promptly carried out without any further delay. Justice Vinson immediately issued an order reconvening the Supreme Court for the first time in its history for the sole purpose of vacating the stay of execution. Anticipating the result, Emanuel Bloch, attorney for the Rosenbergs, communicated with my office and requested that we attempt to make a new habeas corpus application and in particular that we apply to the United States Court of Appeals for the Second Circuit for a stay of execution immediately after Judge Kaufman would deny it. Along with two other attorneys, I went to New Haven, Connecticut where the judges of the Court of Appeals were then located, and sought a stay either from an individual judge or from a panel of three Circuit Court judges. We first met in the early afternoon with Chief Judge Thomas W. Swan who, after lengthy argument agreed to sit on a panel of three to consider the application for a stay. (1) Judge Swan then made his automobile available so that we might be driven to the home of Judge Frank.

After briefly stating the issues to Judge Frank, he said our motion was valid and should be sustained. If he were in our position, he said, he would have made a similar motion and in the best tradition we were carrying out our duties as lawyers in conformance with the law and in seeking justice under it. He further stated that if the issue had been raised on the initial appeal, he was certain that there would have been a reversal most surely with reference to the imposition of the death sentence, which he himself had opposed. After stating that, he broke into tears, indicated that he wanted to help us and shamefacedly stated that he couldn't do it because "My bosses have spoken", and he was unprepared to challenge. He finally stated that he would consider sitting on a panel of three judges to consider the issue.

Thereafter we sought a third appellate judge, Charles Clark. We did not find him at his home and were subsequently advised that he might be at the golf club. He was finally reached by telephone at the golf club. The request was made of him to sit on a panel. His initial response was in effect that he had nothing to do with the case and he never wanted to have anything to do with the case, but after some importuning, he said he would consider it and speak to the other two judges and advise me of his decision. Sometime at the end of the afternoon we received a phone call from Judge Clark who advised us that no panel would be formed, no argument would be heard and no stay would be issued. Some two hours later, the Rosenbergs were put to death.

Since that time my firm was retained to represent and seek the release of the Rosenbergs' co-defendant, Morton Sobell, who was then incarcerated at Alcatraz Penitentiary. Several habeas corpus applications were made to secure his release, but we were unable to prevail and were denied opportunity for hearings until his release was obtained in January, 1969. I have continued to represent him to this date.

In 1973 I was retained by the sons of the Rosenbergs, Michael and Robert Meeropol and in their behalf instituted a Freedom of Information action in 1975, an action still pending in the United States District Court for the District of Columbia. As a result of that litigation, we have obtained upwards of 200,000 pages of documents from the FBI the CIA, the Department of Justice, the AEC (subsequently ERDA and now the Department of Energy), the U.S. Attorney's Office for the Southern District of New York and from other federal agencies and departments as well. While at least 70,000 pages of those processed have been totally withheld, and hundreds of thousands of pages have never been processed, and many crucial documents and files have been destroyed, nevertheless from the documents obtained, it can be established that the convictions were based upon false and perjured testimony given with the knowledge and at the behest of the prosecution authorities; that exculpatory evidence had been suppressed which if available to the defense at the time of trial would have impeached each and every witness who sought to implicate the Rosenbergs and Sobell and would have resulted in an acquittal or reversal of any conviction on appeal.

Obviously in this statement, I cannot set forth all of the relevant data and the thousands of pages of documents which would fully support the conclusions stated herein. Nevertheless there are a few aspects of the case which I wish to address in this statement and I am sure the other witnesses appearing before you today will at least touch on some of the others.

The indictment charged that the Rosenbergs and Sobell had conspired to transmit information relating to the national defense to a foreign nation. A conspiracy charge permits the prosecution to introduce third party statements made out of the presence of the defendants into evidence on the claim that it was all part of the general conspiracy or in furtherance of the conspiracy. In fact, it was the prosecution's claim that the essence of the crime was that the Rosenbergs had stolen the "secret of the atom bomb" and given it to the Soviet Union. That was the claim of the prosecution in the opening and summation to the jury. That was the claim that permeated the media prior, during and subsequent to the trial.

The three witnesses the prosecution relied upon to implicate the Rosenbergs were David Greenglass, his wife, Ruth, and Harry Gold. The other evidence submitted by the prosecution assumedly to establish "motive" was that they had been members of the Communist Party, they had signed petitions to place the Communist Party on the ballot in 1938 and they had a collection can issued by a committee which was engaged in collecting funds for the children of Spanish loyalists, exiles and prisoners.

The last branch of the government's case was that the alleged information and sketches given to the Rosenbergs and to Harry Gold concerning the atom bomb contained the "secret of the atom bomb" which permitted the Soviet Union to develop that weapon by the summer of August, 1949. To support this contention, the government called Walter Koskie and John Derry, then two employees of the Atomic Energy Commission, to "authenticate" the government's claim.

The Rosenbergs testified and denied each and every one of the charges made against them and the testimony of the Greenglasses. The credibility of their testimony in the eyes of the jury was effectively destroyed by the prosecution's eliciting the fact that Ethel Rosenberg had asserted the Fifth Amendment when she appeared before the grand jury the day before she was arrested. It was the prosecution's claim as well as the trial judge, Irving R. Kaufman, that she either had incriminating evidence to hide which would establish her guilt, or that she was falsely invoking the Fifth Amendment privilege. In turn, Julius' testimony was assaulted on the grounds that he had asserted the Fifth Amendment in response to questions as to whether or not he had been a member of the Communist Party.

The sole evidence introduced against Sobell was the testimony of Max Elitcher, who in substance stated that they "talked espionage". He gave no evidence of alleged transmission of any information on the part of Sobell. (2)

The jury rendered its verdict of guilty against all three defendants on March 29,1951. On April 5, 1951 Judge Kaufman in imposing the sentence against the Rosenbergs stated that they had put "into the hands of the Russians the A-bomb years before our best scientists predicted the Russians would perfect the bomb", they had caused the "Communist aggression in Korea with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason". He stated that they had "altered the course of history to the disadvantage of our country" and had passed "what they knew was this nation's most deadly and closely guarded secret weapon to Soviet agents". (R-1615) He then imposed the sentence of death upon Julius and Ethel Rosenberg. At the time of imposing that sentence he had stated that the had "refrained from asking the government for a recommendation" and that the responsibility "is so great that I believe the court alone should assume this responsibility". (R-1612)

From the facts obtained since April 5, 1951 both prior and subsequent to the execution on June 19, 1953 as a result of investigations and consultations with the scientists who were directly engaged in the conceiving and constructing of the atomic bomb, as well as from information obtained in the FOIA action instituted in 1975, the entire premise upon which the sentence was imposed turned out to be a cruel hoax having no foundation in fact whatsoever and this was known to the government and the prosecution as well. (see infra)

The information obtained from government records and persons having intimate knowledge of the facts reveals that this cruel hoax against the defendants and the nation itself was not an accident or a mistake but rather a claim that was conceived and fostered even prior to the time of the trial to achieve certain political objectives, feed the public hysteria existent and serve as a justification for repressive conduct at home and unfortunate exploits overseas.

Prior to the trial, a secret meeting was held attended by representatives of the Atomic Energy Commission, a member of the Joint Committee on Atomic Energy of the United States Congress, a member of the prosecution staff, and representatives of the Department of Justice. This meeting was held purportedly to determine what evidence should be admitted at the time of the trial. A reading of the transcript now available to the public, dated February 8, 1951, reveals that the true purpose of the conference was to get a prior commitment that the prosecution would seek and obtain the death sentence which would be imposed against Julius Rosenberg as "leverage" to extract a confession and cooperation. It was the sense of the meeting that a second hostage would be Ethel Rosenberg, who would be sentenced to prison. The prosecution indicated that any case against her was "very weak". (3) The final objective of the meeting was to get an appropriate judge who would obtain the results desired.

To this latter end, an extract of the Gordon Dean diary reveals that Assistant Attorney General McInerney spoke to the judge less than a month prior to the time of the trial who in turn indicated that the death sentence would be imposed "if the evidence warranted it ". During the course of the trial the representative of the Department of Justice advised the FBI that Judge Kaufman would impose the death sentence "if he doesn't change his mind". (Document No. 894 dated March 16, 1951) The record further reveals that on April 3, 1951, two days prior to sentencing, Roy Cohn secretly spoke to Judge Kaufman, advising him he personally favored sentencing Julius and Ethel Rosenberg to death with a prison term for Morton Sobell. Cohn further advised the FBI that Judge Frank opposed any death sentence, but that Judge Weinfeld favored the death sentence to be imposed upon Julius Rosenberg, Ethel Rosenberg and Morton Sobell. At Cohn's suggestion, Saypol, the U.S. Attorney, was to go to Washington and confer with the Attorney General and J. Edgar Hoover as to the proposed sentence. Hoover recommended that Julius Rosenberg and Morton Sobell should be executed.

Saypol learned that there was division within the Department of Justice as to whether or not a death sentence should be imposed and transmitted that information secretly to Judge Kaufman who in turn asked him to stand silent and to make no recommendation as to sentencing.

FBI documents further reveal that the trial judge interfered with the appellate process on appeals from his decisions, denying habeas corpus relief without hearing, by communicating secretly with members of the prosecution staff, the FBI and through them, with the Department of Justice.

The record reveals that the last application of the Rosenbergs to set aside their sentences was made in June, 1953. It came on to be heard before Judge Kaufman and was summarily denied without affording any evidentiary hearing. The record also reveals that prior to the time the motion was even filed the subject matter of the motion was secretly discussed at a meeting between Hoover and Judge Kaufman in May of 1953. The prosecution thereafter briefed him as to the issues that might be raised before the motion was made, thus permitting the summary denial. (4) Since there are a wealth of documents that can be submitted with reference to the role of the played by the trial judge both prior and subsequent to the execution of the Rosenbergs and well into 1975, and those documents will be submitted to the Committee herewith, they will not be discussed in further detail.

Appellate Review and Post Trial Proceedings

On June 2, 1952 the petition for certiorari was denied. Nevertheless the record reveals, including the archival records of Justice Frankfurter and Burton, that three of the justices favored granting the petition, i.e., Mr. Justices Black, Frankfurter and Burton. The petition for rehearing was denied in November, 1952.

Thereafter the defendants filed a 2255 motion, which was assigned to District Judge Ryan to hear, raising several questions as to perjury on the part of the Greenglasses, the climate in which the trial was held and misconduct on the part of the prosecution in handing down an indictment, charging perjury against William Perl, which appeared in headlines in the newspapers while the trial was in process. While the defense counsel had objected to the entire procedure, there had been no motion for a mistrial. Judge Ryan denied the defendants any evidentiary hearing on the factual issues. On appeal on December 31, 1952, the decision of Judge Ryan was affirmed but with serious reservation expressed privately by Judge Frank and more openly by Judge Swan, both of whom condemned the behavior of Saypol with reference to the timing of the release of the Perl indictment. The Court of Appeals found Saypol’s conduct "wholly reprehensible" but since there had been no motion for a mistrial, or a hearing requested as to the impact upon the jury, the Court held that the defendants had lost their grounds for setting aside the conviction.

A new date for carrying out the execution was set by Judge Kaufman. A stay of execution was granted by the Appellate Court on February 18, 1953 to afford the defendants time to petition for certiorari. This was vigorously opposed by the government which then was chastised by Judge Learned Hand, who felt that there was a substantial point on appeal and advised the prosecution "to seek justice and not to act as a timekeeper." (6)

The petition for certiorari was thereafter filed, Black and Frankfurter once again urged the granting of certiorari and by April 22, 1953 four judges of the Supreme Court were disposed to grant review, i.e. Black, Frankfurter, Douglas and Jackson. After some disputes between Douglas and Jackson, Jackson changed his vote and on May 25, 1953 certiorari was denied.

On June 5, 1953 on the basis of newly-discovered evidence impeaching the testimony of the Greenglasses, an application for an evidentiary hearing was made by a habeas corpus petition (§2255). This was an application on which Judge Kaufman had consulted with the prosecution and the FBI and which he decided to deny even prior to the filing of the motion.

An application for a stay pending the filing of a petition for certiorari from the denial of that motion by Judge Kaufman and whose opinion was affirmed by the Court of Appeals was made to the Supreme Court. On that occasion at one time or another five judges voted in support of the stay, but no more than four judges at any one time, i.e. Black, Frankfurter, Douglas, Burton and Jackson. The stay and the petition were denied on June 15, 1953.

A petition for writ of habeas corpus was filed in the Supreme Court on June 16, 1953. The application for a stay was granted on June 17, 1953 and vacated on June 19,1 1953.

At no time was an evidentiary hearing ever granted to the defendants. The Supreme Court never granted review at any time, notwithstanding the fact that on various applications, five of the nine judges felt the matter warranted review by the Supreme Court.

Michael E. Parrish, an historian who has recently written a book on the life of Justice Frankfurter, in an article printed in the American Historical Review on October 17, 1977, after reviewing all of the relevant documents relating to the role of the courts in this case, stated:

The Alleged Secret of the Atom Bomb

The alleged plan of the atom bomb was said to be contained in two or three pages of testimony of Greenglass and an exhibit which he had drawn while in custody, which purported to be the Nagasaki atomic bomb. The defense, so intimidated and deceived by the representations of the prosecution, asked that the exhibit (Exhibit 16) and the testimony should be sealed and impounded in order to protect the national security.

The secret evidence remained impounded until an application was made in behalf of Sobell in 1966 to unseal the evidence, and to make it available to Sobell, his counsel and scientists, subject to some restrictions.

Upon receipt of the material, the evidence was shown to leading atomic scientists to render their opinion as to the meaning or worth of the testimony and the sketch said to contain the secret of the atomic bomb. It was seen by Harold Urey, Nobel Laureate, leading participant in the atom bomb project; Henry Linschitz, deeply involved in developing the implosion mechanisms; Robert Christie, the designer of the initiator critical to the operation of the nuclear core of the bomb and Philip Morrison, co-holder of the secret patent of the bomb and in charge of nuclear assembly of the weapon.

Each of the scientists referred to submitted affidavits, copies of which can be made to this Committee, which establish the utter worthlessness of the Greenglass description and sketch which could not in any way aid or abet the Soviet Union in their development of the atomic bomb. The affidavit of Dr. Morrison was endorsed by Dr. Robert J. Oppenheimer, the director in charge of the development of the weapon at Los Alamos. In addition, the sketch and description was made available to Dr. George Kistiakowsky who was in charge of the explosives division of the atomic project and adviser to President Eisenhower on scientific and weapons matters; and to Dr. Victor Weisskopf, part of the theoretical division of the project at Los Alamos, former president of the American Physical Society and past Chairman of the Physics Department of the Massachusetts Institute of Technology. The sum and substance of the opinion of this eminent body of scientists was that the drawing and sketch was an ignorant, crude, childlike miscomprehension of the nature, constituents and the mechanisms of the atomic bomb. In characterizing the Greenglass testimony and sketch, such phrases as "uselessly crude", "ridiculous, a baby drawing, it doesn't tell you anything"; a caricature " of the bomb; "authenticated" by the government's "expert" witness, John Derry, who was neither a scientist nor had any knowledge of the design, construction or theory of the atomic bomb and who was in no way associated with its design, mechanism or content.

Based upon this scientific evidence, Sobell instituted a habeas corpus proceeding in 1966 in the course of which the government essentially acknowledged the worthlessness or minimal significance of the Greenglass testimony and sketch. Their argument was in essence that notwithstanding that fact, even if worthless information was given to the Soviet Union that was illegally obtained and transmitted, that constituted a technical violation of the law in any event. Moreover, General Leslie R. Groves, the director of the entire Manhattan Project, testified in 1954 in the course of the hearings in the Oppenheimer matter, that the material "'was of minor value" but he would like that fact to be kept secret in that he did not want anybody to know that he thought that the information did not do "much damage after all", and the claims with respect thereto "were greatly exaggerated". His statements were classified as secret and not released to me in the FOIA action until 1979. The authorities felt the supporters of the Rosenbergs and Sobell would make use of his truthful statements.

The totality of evidence establishes that the Rosenbergs were implicated and a verdict of guilty was obtained on the basis of false, perjured testimony given with the knowledge, consent and initiative of the prosecution. Further, the sentence of death was imposed upon the basis of false claims and representations by the prosecution and false testimony by alleged expert witnesses. Further, the trial judge justified the death sentence on the basis that the defendants had stolen the secret of the atom bomb, caused the Korean War and changed world history to the peril of the United States.

The sole witness who testified that any information was ever transmitted to the Soviet Union was Harry Gold. But evidence obtained from the records of government agencies not only establishes that his testimony was false and contrived at the specific request of the prosecution, and the participation of the FBI, but further the government suppressed evidence within its possession which serves to establish that he was not the alleged courier of Klaus Fuchs or of David Greenglass. This fact was further confirmed by my meetings and conversations with Klaus Fuchs in 1959 while he was in the custody of the British authorities and thereafter.

The motives underlying the entire proceedings were political and not based upon any desire to seek the truth, to aid justice and permit the courts to function as an independent impartial tribunal. The highest authorities knew that the entire claim of the theft of the secret of the atomic bomb and the alleged injury done to the security of the United States by reason thereof had no foundation in fact. The authorities knew that they had perverted the entire judicial process to obtain an unjust verdict and to impose a cruel and obscene punishment.

The document which perhaps most clearly reveals the objectives of the goverment comes from the CIA and was transmitted to the prosecuting authorities through the FBI in February, 1953. That document reflects the fact that the government was prepared to grant "generous commutation" of the sentence, to encourage others to defect, and "to utilize the Rosenbergs as figures in an effective international psychological warfare campaign against communism primarily on the Jewish issue". The substance of this document, which is being submitted herewith, expresses no concern about peril to the national security because of the passage of the secret information. It expresses no concern to know who the other alleged co-conspirators were. What they wanted the Rosenbergs to do is set forth in the first paragraph of the document:

Notwithstanding the fact that the government withholds further evidence which would establish the fraudulent nature of the conviction of all of the defendants and the unjustness of the sentences, enough has been exposed to the world that requires that a hearing now be held where all of the evidence can be adduced about the functioning of the judicial process, the roles of the various individuals and agencies can be revealed and the evidence can be evaluated and adjudged de novo. It mandates that this Committee call upon Congress to create a special investigative body to hold open hearings at which time all of the relevant evidence may be presented.

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Notes

1) Judge Swan along with Judge Jerome N. Frank and Judge Harry Brigham Chase had sat on the initial appeal from the judgment and conviction.

2) The documents obtained pursuant to the FOIA action reveal that unbeknownst to the Rosenbergs or Sobell, Elitcher himself for two or more years was being carefully scrutinized and surveilled, electronically & otherwise, as a suspected espionage agent.

3) As other documents reveal, in order to "strengthen" the case against Ethel, ten days prior to the time of the trial they induced the Greenglasses to alter their testimony by saying Ethel had typewritten the secret of the atom bomb at the time it was transmitted. This "additional testimony" was obtained notwithstanding the fact that identical inquiries had been made of the Greenglasses and denials given to such inquiries over a period of seven and a half months.

4) A similar procedure was followed when Sobell made a habeas corpus motion pursuant to §2255 in 1956. There, too, the judge met with representatives of the U.S. Attorney's office, and advised them that he would deny the motion without an evidentiary hearing even before the matter was put down for oral argument.

5) Judge Frank wrote the opinion for the Court of Appeals but he dissented as to Sobell and in the opinion affirming the conviction suggested to the Supreme Court that it should consider determining whether under §2106 of Title 28 U.S.C. the Supreme Court had jurisdiction to modify the punishment and sentence imposed, and further suggested that had the Court of Appeals felt empowered to alter the sentence it might well have done the same.

6) Notwithstanding the granting of the stay, Kaufman communicated on his own initiative with the prosecution, urging that they immediately go to the Supreme Court to vacate the stay granted by the Second Circuit, expressing a fear that if they failed to do so, the case may go over to the fall, during which time the defendants and their supporters "would have an excellent opportunity to completely air the matter". Kilsheimer, an Assistant U.S. Attorney, communicated this message to the Department of Justice. The FBI felt it appropriate to stay out of the matter.