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Killing for Leverage

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23 Responses

  1. Brett Bellmore says:

    “And so, at long last, we know that Ethel’s execution was the result of a “Soviet spy who’d rather die and see her children orphaned, than expose her network.

    Yes, in some technical sense this was an injustice, but if you want reform, you really ought to look harder for a sympathetic victim.

  2. Susan says:

    Note: The Rosenbergs were not convicted of espionage. They were convicted of conspiracy to commit espionage, and executed for conspiracy, not espionage.

  3. david says:

    Doesn’t actual innocence of a specific charge make the victim as “sympathetic” as necessary? Why would justice care about anything else?

  4. Orin Kerr says:

    Mark,

    I’ve never studied the Rosenberg trial in any depth, but can you explain in a bit more detail how the grand jury testimony proves that “the Justice Department” knew of the perjury? First, can you say who “the Justice Department” is in terms of the specific people involved? Also, is there any chance that you can you explain how the inconsistent grand jury testimony proves that the government knew the trial testimony was surely false, and more broadly that she was not guilty of the crime charged? To be clear, I’m not saying you’re wrong, I’m just not sure I yet understand how all the pieces fit.

  5. Mark Edwards says:

    Brett — To me, the sympathetic victims here are two innocent children who were orphaned at ages 3 and 6. Frankly, I can’t imagine why Ethel wouldn’t have told prosecutors everything she knew, in detail, to prevent that. But that can’t excuse the fact that our government executed her based on what it knew was perjured testimony, because of a reckless gamble that it lost.

    Orin — Great questions. A team lead by U.S. Attorney Irving Saypol and including Asst. U.S. Attorneys Myles Lane and Jame Kilsheimer conducted the examinations of Ruth Greenglass and other witnesses before the Grand Jury and the trial court. The Saypol team worked together throughout the case, both before the Grand Jury and the U.S. District Court (SDNY). They examined Greenglass before both. Greenglass’s testimony before the court in April 1951 that Ethel was present and typed up the information for the Soviets contradicted her earlier testimony, to the same prosecutors, before the Grand Jury August 1950. I am imputing their knowledge, as U.S. Attorneys, to the Justice Department, the agency which they represented. I am also imputing the knowledge of Saypol’s team members to the team as a whole. Since Greenglass specifically testified to the Saypol team before the Grand Jury in August 1950 that she gave a document written “in longhand” to Julius and he “took it with him” to his Soviet handler, the Saypol team have known that her trial testimony in April 1951 that she gave the information to Ethel, who typed it up for the Soviets, was contradictory.

    More broadly, Ethel may well have been guilty of the crime charged — conspiracy to commit espionage — regardless of the perjured testimony. But that testimony was by far the most important offered against her, was cited in summation as the main evidence of her guilt, and was cited by the judge as justifying her execution. Without that evidence, and in the absence of other evidence (which may or may not have been available), it is highly unlikely she would have been either convicted or executed.

  6. Michael Lee says:

    What’s the big deal. Unfair leverage is used all the time in our legal industrial complex. I use it, opposing counsels, prosecutors and judges use it too. It works much more often that not.

  7. Mark Edwards says:

    By the way, Orin, since much of what I know about criminal procedure I actually learned from your work, I am more than willing to defer to your expertise on this!

  8. Mark Edwards says:

    Michael — In this case, the leverage was based on perjured testimony, backfired and resulted in two orphaned children. And it was done on our behalf. To me, that’s a very big deal.

    Moreover, to me, it’s a cautionary tale about the danger of fear.

  9. Brett Bellmore says:

    “Frankly, I can’t imagine why Ethel wouldn’t have told prosecutors everything she knew, in detail, to prevent that.”

    Um, devoted agent of a murderous, totalitarian foreign power? They weren’t spying for Luxumberg, after all. You’ve got to expect anybody who’d betray their country for a nation as nasty as we knew the USSR to be even then would have warped values.

    But I will grant that there’s a serious problem when the government lies in court, which they do way too often. I just think you’ve got to find another case to bring up, if you want to get the sympathy of anybody who doesn’t view spying for communism as a reasonable career option.

  10. Orin Kerr says:

    Thanks , Mark! Much appreciated. I’ve never really followed this case, so I don’t feel I have any expertise (especially as it sounds pretty fact intensive). Interesting issues, though — I really should try to learn more about this case.

  11. Carol Eblen says:

    I always thought that it was unnecessary to execute Ethel Rosenberg, the Mother of two young children. But, at the time, I didn’t give it that much thought. I was dumb enough at that time of my life to believe that MY country always did the RIGHT thing for the right reasons.

    In those times, in the climate of the country where Communism was perceived to be such a threat to the values of democracy and Capitalism and Christianity, the public was prepared by the Press and other media for executions of those from the “evil empire” whose ideology was so repugnant to the powers that be. In that time, didn’t the FBI spend a lot of time looking for Communists in the trade unions?

    It was public policy in the United States to paint a vivid picture of the evils of Communism and Communists, and the threat this imposed to our free democratic Capitalistic Republic. Any thought of “spreading the wealth” was truly unAmerican as, apparently, it is today in our country for many.

    The Press, who generally always support the power structure and government, did paint a picture of the evil Jews who would sell out their country for an evil ideology —that might become attractive to the American masses?

    In later times, after the event of Aldridge Ames and others who would spy for money, those with the ideology of the Rosenbergs who spied because of their convictions and not for money would only be imprisoned or deported, isn’t this true?

    Thanks, Mark Edwards, for “Killing for Leaverage” which could have been entitled “Killing for Democracy and Capitalism” —depending on your point of view!

  12. Mark Edwards says:

    Brett — I think you have a valid point. That said, as a history buff, I would love for just a moment to experience the flavor of the time the Rosenbergs found themselves in.

    I have absolutely no desire to act as an apologist for Soviet spies. History has shown how foolish that enterprise was.

    That said, consider the world from the perspective of a Julius Rosenberg in his time. At the time Rosenberg began spying for the Soviet Union, capitalism as an economic system had collapsed, and there was no way of knowing whether it could ever be rebuilt. Every day Rosenberg would have seen hundreds of people in NYC who were literally starving and without hope. The world offered two alternatives to the failed capitalist economic system: fascism and communism. The fascists were openly dedicated to murdering every person who shared Julius’s ethnic heritage and religion — everyone he was related to, and him. By 1940, only one country was fighting them on the ground in Europe — the Soviet Union. For an intelligent guy like Julius, eager to help repair a broken world, which system seemed to offer the best alternative? It must have been incredibly tempting to help the Soviets defeat the Nazis by sending them whatever information he could scrounge up that would help them build better bombs and airplanes.

    In retrospect, he was a fool. Plenty of others faced the same world, and made much better choices. But it is interesting and useful to imagine the world from his perspective.

  13. Larry Rosenthal says:

    The fact that Ruth Greenglass’s trial testimony was inconsistent with her grand jury testimony does not establish that her trial testimony was perjurious — much less than the prosecutors knew it was perjurious. Accomplice witnesses frequently withhold a great deal of what they know when they first begin cooperating. The prosecutors might have believed that Ruth Greenglass’s grand jury testimony was false — an effort on her part to protect her sister-in-law.

    I have no wish to condone the government’s conduct. Under contemporary standards, Ruth Greenglass’s grand jury testimony should have been disclosed to the defense, and that testimony could well have created a reasonable doubt about Ethel’s guilt. I have no expertise on prevailing ethical standards at the time of the Rosenberg prosecution; perhaps even under the pre-Brady, pre-Jencks Act standards of the day, the government should have disclosed Ruth Greenglass’s grand jury testimony. Still, the evidence in this post does not persuade me that the government knew that Ruth Greenglass’s trial testimony was false.

    Larry Rosenthal

    Chapman University School of Law

  14. Larry Rosenthal says:

    The fact that Ruth Greenglass’s trial testimony was inconsistent with her grand jury testimony does not establish that the former was perjurious — and it surely does not establish that the government knew that the trial testimony was perjurious. As experienced prosecutors know, accomplice witnesses frequently withhold a great deal of information when they start cooperating. Perhaps the prosecutors concluded that Rugth Greenglass’s grand jury testimony was false — an effort to protect her sister-in-law.

    That said, I do not want to be understood to condone the government’s conduct. Under contemporary standards, it is quite clear that Ruth Greenglass’s grand jury testimony should have been disclosed to the defense. It also seems likely that her grand jury testimony creates a reasonable doubt about Ethel’s guilt — althought it would be nice to learn more about how Ruth came to change her account before reaching any firm conclusions on this point. Still, in a pre-Brady, pre-Jencks Act world, the decision to discount Ruth’s grand jury testimony and proceed to trial on Ruth’s subsequent account may well have seemed reasonable, and consistent with then-prevailing legal and ethical standards.

    Larry Rosenthal

    Chapman University School of Law

  15. Mark Edwards says:

    I think those are excellent points, Larry. After all, what we can say for sure is that Ruth Greenglass was lying either earlier to the Grand Jury or later to the trial court. It does not follow that (a) she was lying to the trial court, but telling the truth to the Grand Jury, or (b) prosecutors believed she was lying to the trial court.

    However, there is other evidence that strongly suggests that both (a) and (b) are true. The first time either Ruth or David Greenglass ever mentioned Ethel’s presence and involvement in the meeting was just 10 days before Ethel’s trial, during a re-interview with the FBI. David Greenglass later said that he invented those details entirely at the urging of prosecutor Roy Cohn, a member of the Saypol team, in return for a promise that Ruth would not be prosecuted. Ruth was, in fact, never prosecuted. Years later he said he had no knowledge of Ethel’s presence or involvement at that meeting. Roy Cohn’s reputation speaks for itself, of course. If we conclude that Cohn did, in fact, urge the Greenglass’s to change their testimony, and had the authority to guarantee Ruth would not be prosecuted, then I think we can reasonably conclude that the Justice Dept. (through Cohn) knew that Ruth’s inconsistent testimony was perjured.

    Finally, we have independent confirmation from the VENONA cable that the information received from Julius was handwritten, not typed. That strongly suggests that Ruth was telling the truth before the Grand Jury and lying at trial. It says nothing about whether the Saypol team believed Ruth was lying at trial, however.

  16. Carol Eblen says:

    It took much too long a time to disbar Roy Cohn, the representative of our Justice Department who did misuse his power and license to practice law to gain political favor from those in high office. Obviously, he was in business for himself his whole life and the law was just “product” that he sold to the highest bidders. At least he didn’t make it to the bench.

    The ideal of a Justice Department separated from politics remains just an ideal, as demonstrated by recent history and the firing of so many US Attorneys.

    Ruth and David Greenglass no doubt were willing to give false witness against Ethel for assurances that Ruth wouldn’t be prosecuted. I’m sure they didn’t believe that Ethel would be executed and they were only trying to escape the great power of the government to imprison Ruth.

    Roy Cohn went on to prove that he was pond scum and went on to wherever it is that we go in the afterworld without his license to practice law.

    Hopefully the children of Ruth and David Greenglass take some satisfaction from the death in disgrace of Roy Cohn.

  17. Brett Bellmore says:

    That would be nice, I suppose. It would be nicer if we could establish a general principle that the government can’t lie in court, especially under oath. Not just a principle that they can’t lie to convict traitorous liberal icons.

    After all, most of the people convicted as a result of government lies in court are guilty of a hell of a lot less than Ethel Rosenberg. Often they’re guilty of nothing.

    That’s my question here: Is this about getting the government to stop lying in court, (Something they do today, and in some contexts almost routinely.) or is it about rehabilitating a liberal icon who inconveniently turned out to be a genuine spy?

    ‘Cause you only get to do one of those, and you’ve got to pick. Once you decide to concentrate on Ethel, you’re going to drive off most of your potential support for doing something about government lying in court, and people who’ve never given up on thinking Marxism was a noble cause aren’t going to be enough base of support.

  18. Mark Edwards says:

    This is definitely not about rehabilitating Ethel Rosenberg, but it is also about something broader than the government use of perjured trestimony.

    It is about the insidious power of fear to make us recklessly gamble away our standards of justice and decency. That creates real, if mostly unnoticed, victims, like the two orphaned little boys in Rosenberg case.

    Unchecked, it also can turn us into the caricature our enemies paint of us. The last thing we want to do is prove them right.

  19. Carol Cross says:

    Just how would you go about getting the government to stop lying in court?

    Officers of the Court are disbarred when rarely found guilty of committing or subborning perjury but not necessarily disgraced. Citizens face jail time for lying to the government as we see by recent examples, but are not disgraced and banished from society.

    Perjury is one of the moral absolutes of the law but perjury in modern times and modern law has been redefined in the context of whether or not the perjury amounts to moral turpitude in the mind of the purjurer, and in the eyes of the judge or the jury, or the public.

    The “good lies” and the “bad lies” concept embraced in modern culture and in politics and government invades the court rooms. The oath sworn on the “bible” or another book of “truth” no longer means anything to those who define their own truth from their own perspective, that has nothing to do with God.

    It is not surprising that the government fights back with lies of their own to achieve their goals, which they believe contribute to order and the public good.

  20. Brett Bellmore says:

    “This is definitely not about rehabilitating Ethel Rosenberg, but it is also about something broader than the government use of perjured testimony.”

    I’m going to raise an analogy, and then drop it: The abuses of government infiltrators, who are often more complicit in the crimes of those they go after than most people would be comfortable with, is something we ought to crusade against.

    Should we use Timothy McVeigh as our poster child in this crusade? His case is certainly relevant, and is also about something broader than just abusive government infiltrators.

    Somehow I don’t think broadening an issue we can pretty much all agree on in it’s narrow form is always good. McVeigh, like the Rosenbergs, is only a sympathetic character in the eyes of a relatively narrow segment of society. Outside that segment he’s radioactive, and rightly so.

    “Just how would you go about getting the government to stop lying in court?”

    I suppose it would be helpful if we could somehow make lying in court a strict liability offense, with all issues of moral turpitude off the table. We’d need to strip judges of discretion in the matter, of course; They’re the ones who’ve been tolerating the lies in the first place.

  21. ParatrooperJJ says:

    If she knew he was a spy and didn’t report him, then she is guilty of treason. The end result would be the same, justice was served in this case.

  22. Mark Edwards says:

    Justice would have been equally served by lynching them, under your standard. I’d prefer the rule of law. But maybe you’d rather prove our country’s enemies right?

  23. Carol Cross says:

    Those who are married are considered “one” in the eyes of God and in the eyes of the law?

    Can a wife be compelled to testify against her husband?

    Was Ethel a spy or merely the wife of a spy who was drawn into this nightmare because she was THERE and could be used as leverage?

    If the government used perjured testimony in order to acquire the leverage to obtain more information about “others” and then their bluff was called, this perverted “due process of law” was perverted by those who are sworn to protect and uphold the law.

    Mark Edwards is right. Out of fear, government sometimes reacts in unjustified ways and resorts to unlawful means that are rationalized and represented as serving “good” and “noble” ends — and we do become our own worst enemy.

    How can justice be served when “due process” is perverted by perjured testimony procured by the representative of the Justice Department? —-which appears to be the case? Ruth was never prosecuted and she never reported anyone and wasn’t she guilty of treason under the reasoning of Paratrooper JJ?

    Expediency was served! But, not justice, from my point of view!