The Last Appeal

It was Monday, the last day of judgment before the U.S. Supreme Court recessed for summer vacation. It was also, or so it seemed, the last hope before the bar of justice for Julius and Ethel Rosenberg. For the sixth time, the mousy little engineer and his wife, waiting in Sing Sing's death house, had petitioned the highest tribunal, this time for a stay of execution and review of their trial. For the sixth time, a majority of the nine Justices rejected a Rosenberg appeal.

Across town at the White House gate, hundreds of picketers marched with pro-Rosenberg placards; opposing demonstrators carried signs that read "Kill the Dirty Spies." A stream of mail from every quarter of the globe flowed to the President's desk. The Red campaign to "save the Rosenbergs" may have inspired the pleas, but many of them came from non-Communist clergymen and scientists, from liberals and humanitarians, from those who thought it bad politics to let the Communists have "martyrs" for their propaganda. At the focus of pressure, Dwight Eisenhower did not flinch.

Then, as the clock ticked on toward 11 p.m. Thursday, the hour of death for the spies, Supreme Court Justice William Douglas acted alone. Unexpectedly, the court having recessed for the summer, he granted the stay of execution that the full court had denied. That touched off, within the next 24 hours, one of the most dramatic and novel episodes in all the august annals of the U.S. Supreme Court.

Two "Interlopers." On Tuesday morning, while most of his fellow Justices were packing their vacation bags, Douglas had listened in his chambers to two sets of lawyers: the Rosenbergs' regular counsel, and a couple of earnest, frenetic newcomers to the case, Fyke Farmer of Nashville and Daniel Marshall of Los Angeles.

The newcomers won Douglas' ear. They were an interesting pair. Farmer, 51, a well-to-do corporation lawyer, an Episcopalian and a Yaleman, gave up his legal practice about five years ago, devoted himself to the cause of world government, is suing the U.S. Government for recovery of two-thirds of his income tax because the two-thirds are used for war purposes. Marshall, 50, a Roman Catholic and equally a crusader, mostly for liberal causes (against restrictive racial covenants in real-estate deals, for Negroes in the Los Angeles Bar Association, etc.), is described by his wife as a "lifelong Franklin Roosevelt Democrat."

Both Farmer and Marshall got interested in the Rosenbergs through correspondence with a professional soapbox orator and left-wing pamphleteer, Irwin Edelman of Los Angeles. Technically hired as counsel by Edelman who claimed legal status as "next friend" of the Rosenbergs, the two lawyers developed a special argument. Its gist: the Rosenbergs were wrongly sentenced under the Espionage Act of 1917, which allows the judge to fix the death penalty; they should have been sentenced under the Atomic Energy Act of 1946, which provides the death penalty for atomic espionage only when a jury so recommends.

Months ago, when Farmer and Marshall tried to sell their point of law to Rosenberg Chief Counsel Emanuel Bloch, they were put off and ignored. When last week Farmer and Marshall submitted their arguments to the federal district court at New York before Judge Irving Kaufman, who had passed sentence on the Rosenbergs, Kaufman rebuked them as "intruders . . . interlopers . . . reckless in . . . charges as to verge on contemptuousness . . ." But Associate Justice Douglas was impressed by the arguments of Farmer and Marshall.

Far into Tuesday night, Douglas stayed on in his Supreme Court office. On Wednesday morning his decision was announced, stunning the legal world: an indefinite stay of the Rosenbergs' execution. The Farmer-Marshall argument, he ruled, raised a new point of law that should be carefully weighed in the lower courts. "It is . . . important," he wrote, "that before we allow human lives to be snuffed out we be sure--emphatically sure--that we act within the law . . ."

Then Douglas rushed off to a vacation in Washington.

A Swift Countermove. He was only as far as Uniontown, Pa. when, on Wednesday night, word reached him of a swift countermove initiated by federal Attorney General Herbert Brownell. On Brownell's petition, Chief Justice Fred Vinson had ordered an immediate (noon Thursday) sitting of the Supreme Court to rule on Douglas' order. At the appointed hour, all the nine Justices were in their chairs. Douglas had flown back to the capital. Even the big, red-draped, air-conditioned, crowded court chamber had felt the impact of events. Cleaning crews had already battened it down for the summer under mothproof dust covers; they had hurried back and labored all Wednesday night to remove the dust covers again from seats, table, the long bench and the nine black chairs.

The Government's argument was simple: The Rosenbergs' atomic espionage was carried out in 1944 and 1945 before the passage of the Atomic Energy Act, and therefore they had been properly tried and sentenced under the 1917 Espionage Act. The Government did not question the authority of Justice Douglas to order a stay of execution. But it urged that the stay be promptly rescinded.

Oratorical fireworks, unusual for the high tribunal, came from the Rosenberg lawyers.

Dan Marshall grabbed the counsel's stand with both hands, rocked back & forth like an evangelist, as he raised the new point of law. He wanted more time to develop the issue. He doubted if even a justice of the peace would call "the meanest pimp" before the bar on such short notice. Suddenly, from his seat in the back, Fyke Farmer jumped up. He disagreed with his colleague Marshall. "I'm not maintaining we're not ready," he said loudly. "I'm anxious to get up before the bar and argue."

Justice Robert Jackson wanted to know if "Next Friend" Edelman was once involved in a vagrancy case before the court. Marshall banged the stand with his fist. "Let's get this straight," he shouted. "It was a free-speech case." He pointed at Jackson. "It is improper to call it vagrancy . . . shocking." Chief Justice Vinson leaned forward with calming advice: "Don't let your temperature rise . . ."

Fyke Farmer, far less pyrotechnical than Marshall, stuck safely to his argument that the Rosenbergs were sentenced under the wrong law. Chief Rosenberg Counsel Manny Bloch was needled by the bench for his belated urging of Farmer's new point of law. "I now adopt it as my own." he said, but he wanted at least a month to prepare adequate argument.

Then came the turn of Bloch's co-counsel, New Yorker John Finerty, an old hand at celebrated cases (he argued for Sacco and Vanzetti, aided Tom Mooney). Finerty assailed the judgment against the Rosenbergs as "fraud" arranged by a "crooked" prosecution. Rebuked by the court, he retorted: "If you lift the stay [of the execution], then . . . God save the U.S. and this honorable court ..."

The Seventh Decision. Next day (noon Friday) Chief Justice Vinson read the majority decision, the court's seventh action on the Rosenberg case. "We think further proceedings ... are unwarranted. A conspiracy was charged and proved . . . the Atomic Energy Act [of 1946] did not repeal or limit the provisions of the Espionage Act [of 1917]. Accordingly, we vacate the stay entered by Mr. Justice Douglas ..." Concurring with Vinson, were: Associate Justices Harold Burton, Tom Clark, Robert Jackson, Sherman Minton, Stanley Reed. Against were Justices Douglas and Hugo Black. Justice Felix Frankfurter could not make up his mind.

Justices Jackson and Clark read fuller opinions supporting the majority view.

Main points:

P: "The Constitution . . . prohibits passage of an ex post facto act." To try the Rosenbergs for crimes committed in 1944 and 1945 under the Atomic Energy Act of 1946 would be an ex post facto procedure.

P: "The Atomic Energy Act, instead of repealing the penalty provisions of the Espionage Act, in fact preserves them in undiminished force."

Justice Douglas in his dissent admitted the Government's contention that it "would have been laughed out of court" if it had attempted to indict and try the Rosenbergs under the 1946 law. Douglas insisted, however, that the sentencing procedure of the 1946 law was the only one that could be applied to the case. He said: "Where two penal statutes may apply . . . the court has no choice but to impose the less harsh sentence . . . I know deep in my heart that I am right . . ."

At the White House, Dwight Eisenhower, as he had done last February, again turned down a plea for clemency. Said he: "This case has aroused grave concern both here and abroad in the minds of serious people, aside from the considerations of the law. I can only say that, by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of millions of innocent people all over the world . . . When democracy's enemies have been judged guilty of a crime as horrible as that of which the Rosenbergs were convicted, when the legal processes of democracy have been marshaled to their maximum strength to protect the lives of convicted spies, when in their most solemn judgment the tribunals of the U.S. have adjudged them guilty and the sentence just, I will not intervene in this matter."

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