The opinion of the court was delivered by: RYAN
Petitions under Section 2255, Title 28 U.S.C.A, have been filed by Julius Rosenberg, Ethel Rosenberg and Morton Sobell praying for an order vacating and setting aside judgments of conviction and sentences imposed upon them on April 5, 1951 after a jury trial at which one of my brothers in this District Court presided as the trial judge. He, for reasons which he has placed upon the record, has disqualified himself from hearing these petitions and they have come on to be heard before me on assignment from the Chief District Judge. Petitioners seek in the alternative a hearing on the petitions 'to determine the issues and make findings of fact and conclusions of law, and upon such findings and conclusions, vacating and setting aside the respective sentences of the petitioners and discharging them from detention and imprisonment.'
I find no relevant or material issue of fact raised by the petitions, which requires a hearing thereon or which renders the taking of oral testimony either necessary or helpful. I have concluded, after affording the attorneys for petitioners full opportunity to argue the legal problems presented by the petitions and to make proffers of proof, that the petitioners are entitled to no relief, that the court which rendered judgment had jurisdiction, that the sentences imposed were authorized by law and are not otherwise open to collateral attack on any of the grounds urged by the petitioners
, and that full and complete enjoyment of the constitutional rights of petitioners has been extended them and has in no way been denied or infringed.
These petitions were filed twenty months after the verdict of guilty was returned by the jury, following a trial which petitioners' attorneys stated 'had been conducted * * * with that dignity and that decorum that befits an American trial' (R.1453),
and that defense counsel had been afforded 'every privilege that a lawyer should expect in a criminal case'.
The trial record reveals a defense intelligently conducted by able counsel of petitioners' own choice and selection. The verdict of the jury has now been challenged, although when it was returned the attorney for petitioners Rosenberg stated that from the length of time the jury had taken in their deliberations, as well as from the questions they had asked during the course of their deliberations, he was satisfied that the jury had examined the evidence very carefully. (R.1583).
Since the petitioners were sentenced, they have had the benefit of an appeal to the Court of Appeals, 2 Cir., 195 F.2d 583, a petition for rehearing of that appeal, a petition to the Supreme Court for a writ of certiorari, 73 S. Ct. 20, and a further petition to the Supreme Court seeking a rehearing, 73 S. Ct. 134. I have annexed, as an Appendix, a schedule showing in detail the points and objections the petitioners have heretofore urged on the various appeals and petitions they have filed. These appeals and proceedings operate to buttress the presumption of regularity and of due process attending judgments of conviction, especially in the complete absence of creditable evidence to the contrary.
I have considered each ground urged by petitioners as the basis for the granting of the relief they now seek.
Petitioners complain of the pre-trial and trial publicity and argue in substance that it so adversely reflected on their innocence and created a trial atmosphere of such prejudice and hostility toward them as to make impossible the selection of an impartial jury and the conduct of a fair trial. They object to the 'newspaper publicity developed by the independent initiative and private enterprise of the newspapers' and say it contributed to a situation by which they were denied the essential requirement of fair play and of justice- a trial by an impartial jury.
We enjoy a free press; neither the policies nor writings of the press may be censored or dictated by the state or government agencies. 'Jurors cannot be treated as unable to withstand any effect of newspaper publications. Indeed such a ruling would make it practically impossible to conduct trials in metropolitan centers and would treat the average skeptical juror as a helpless person.'
Newspapers, unquestionably in response to popular demand, feature with large headlines and considerable space reports of investigations of corruption, crime, vice and espionage activities. The trials of those charged with these offenses have been made 'sensational' and have been the source of what is well-nigh universally considered by the newspapers as 'good copy.' I need not here consider the wisdom of attempts at judicial curtailment of such publications, or the dangers to our constitutional guaranties of freedom of speech and press which would flow in the wake of unwarranted judicial restrictions on free expression.
A reading of the newspaper articles submitted by petitioners reveals nothing of an unusual or inflammatory character. The articles seem but a fair response to a legitimate public interest in a matter of vital concern to all- the atom bomb and atomic energy and the hope for its employment for the benefit and not the destruction of mankind. The accounts of the arrests and subsequent indictments of petitioners tended to allay a public anxiety and to give assurance that those charged with the protection of vital information were alert and diligent in the performance of their obligations.
When these publications are measured against the field in which they were circulated their effect upon the general public is seen as negligible.
There was no unseemly rush to bring the petitioners to trial. Julius Rosenberg was arrested on July 17, 1950; Ethel Rosenberg on August 11, 1950 and Morton Sobell on August 18, 1950. The trial began on March 6, 1951, shortly less than seven months after the arrest of Sobell, the last defendant to be taken into custody. Any public prejudice which might be ascribed to newspaper publicity incident to the arrest of these defendants had long since been dissipated among the populace of the area from which talesmen were drawn- an area where occurrences no matter how sensational lose their news value and no longer attract public interest after a much shorter space of time than seven months.
When the indictment was called for trial no application was made for a continuance and the petitioners announced that they were ready. No objection was then urged that newspaper publicity had produced so hostile an atmosphere or so prevalent a public preconception of guilt as to make the selection of a fair and impartial jury either difficult or impossible. Although I recognize that a defendant 'is not obligated to forego his constitutional right to an impartial trial in the district wherein the offense is alleged to have been committed'
, I feel that the failure of the petitioners to apply for a change of venue has added significance when considered with their omission to make application for an adjournment of the trial. This neglect of the petitioners to avail themselves of long-established remedies supports the conclusion that the publicity of which they now complain was neither so damaging nor widespread in effect as they now urge. The petitioners and their attorneys were no strangers to the great metropolitan district in which the trial took place. It would be ridiculous to hold that if the publicity before the trial had been so prejudicial as to inflame and infect the public mind they could have been entirely ignorant of it.
The voir dire examination of the prospective jurors was fully and fairly conducted by the trial judge.
The petitioners were granted ten additional peremptory challenges; they did not exercise all of these and informed the court that the jury was satisfactory.
This was the considered judgment and decision of the 'highly competent and experienced'
attorneys who represented the petitioners on the trial.
Quite aside from the question of whether this objection may now for the first time be advanced as a ground for a new trial
I find no evidence to support the claim that the trial proceeded under conditions which deprived the petitioners of the opportunity for a fair trial before an impartial jury.
In fact, an examination of the chart which petitioners have submitted purporting to analyze 'Quantitative Reportage, Feb. 1, 1950 to April 3, 1951' dealing with news items classified in four groupings- 'Atomic Espionage', 'Communists as Spies', 'Atomic Bomb' and Rosenberg-Sobell Case'- sustains this conclusion. I find that from the latter part of August 1950 to November 1950 there was only minor and sporadic coverage and that from November 1950 until February 21, 1950, which was approximately two weeks prior to the commencement of the trial, there were no news items whatsoever concerning the pending prosecution. During the following week from February 21 to 28, 1951, the publicity was negligible, and when the trial proceeded, the attendant publicity reveals nothing extraordinary or unusual.
Petitioners next object to publicity which resulted from 'press-releases' and 'statements' emanating from the office of the United States Attorney and the Department of Justice.
It appears from the exhibits submitted by petitioners that as the trial proceeded there were daily reports in the newspapers of the progress of the trial, the witnesses called and the testimony given. On a few occasions during the trial 'statements' were made to the press by those charged in law with conducting the prosecution. It appears further that following the arrest of the petitioners and prior to trial 'press-releases' were issued by the prosecuting and law enforcement agencies of the Government.
The issuance of 'releases' and 'statements' by the quasi-judicial officials entrusted with the heavy burden and grave responsibility of prosecution giving in advance of trial details of evidence which it is expected will be introduced at trial is an all too prevalent practice, which should not be encouraged. It does not aid in the administration of justice and often hampers and impedes complete investigation of the crime, which might be productive of further evidence if not of other crimes. It is opposed to all fundamental concepts of due process and, if carried to an extreme, might result in conviction by public opinion without the benefit of jury. Due process requires compliance not only with the outward form of the law but with 'all that is 'implicit in the concept of ordered liberty"
and with the immutable principles of justice. But, even though the 'press-releases' and 'statements' of public officials may have prompted, encouraged or generated publicity, there is no evidence that these publications resulted in 'manifestations of public sentiment, or any other form of disorder, calculated to influence court or jury'
There is no evidence that any juror after being sworn violated the trial judge's instruction and read any newspaper report or article concerning the trial of petitioners. There is no proof to sustain a finding that the judgment of the jurors was in any manner influenced or swayed adversely to the petitioners, either prior to or during the trial. This is not an instance where 'the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which is generated.'
The petitioners also claim that the publicity attending the indictment for perjury and the arrest of William Perl, which occurred while the trial was in progress, had the effect of prejudicing the minds of the jurors against the petitioners.
The facts concerning the Perl indictment and arrest are not in dispute. He had been a witness before a Grand Jury in this district; he was indicted by that Grand Jury on March 13, 1951 and when the indictment had been returned it was ordered sealed. Late the following day the indictment was unsealed upon application to the judge presiding at petitioners' trial; the application was made to him because the judge then assigned to that duty was not available. Perl was then arrested and arraigned on March 15, 1951, not before the trial judge, but in the part where such arraignments are held. There was nothing unusual in the procedure followed. The indictment against Perl charged perjury before the Grand Jury; it contained four counts: the first count was with respect to his testimony concerning the petitioner Sobell; the second count contained charges with respect to his testimony concerning Helene Elitcher, the wife of Max Elitcher who had appeared as a Government witness on the trial of the petitioners before the return of the Perl indictment; the third count concerned his testimony as to his knowledge of the petitioner Julius Rosenberg; and the fourth count concerned his testimony as to his knowledge of Ann and Michael Sidorovich, who had been listed as prospective Government witnesses on the trial of petitioners. The allegedly false testimony upon which counts one, two and three of the indictment were based, it is charged, was given before the Grand Jury on August 18, 1950; the fourth count was predicated upon testimony given by Perl on September 11, 1950.
The petitioners argue that the filing of the indictment and the arrest of Perl were deliberately scheduled so as to provide an occasion during the trial for publicity unfavorable to the petitioners. They ask that this inference be drawn from the foregoing facts and from the circumstance that Perl has not yet been brought to trial on this indictment.
By affidavit, the United States Attorney now reveals that it was not until March 6, 1951 that he came into possession of evidence sufficient in law to sustain Perl's indictment for perjury. This satisfactorily explains why Perl was not indicted until March 13, 1951 for perjury alleged to have been committed on August 18, 1950 and on September 11, 1950. The United States Attorney further states that the Perl indictment has not yet been brought to trial because of a purpose on his part to prevent disclosures which would interfere with other prosecutions. I may not on this hearing pry into the reasons which prompted the prosecutor to adjourn the trial of the Perl indictment. I accept the explanation given; certainly the delay does not warrant drawing the inference which petitioners press.
Again as to this indictment of Perl, there is not the slightest proof that any of the trial jurors read of the arrest or indictment of Perl or that it came to their attention in any manner.
A defendant may not demand that a machinery of law enforcement be stopped while his trial proceeds, or that the prosecution of others, who, as he, are charged with violating the law, be held in abeyance until his trial has been completed. If an incident occurs during his trial arising either from the prosecution of another or from any other cause which acts to his prejudice, the law provides that steps be taken by the defendant. The matter should first be called to the attention of the trial judge with a request for appropriate action. The judge is not 'confined within mechanical rules' but has authority to exercise wide discretion to correct any situation harmful to a defendant.
The trial judge upon proper application by the petitioners might have 'caution(ed) the jury not to be influenced by anything seen in the newspapers or to declare a mistrial.'
The petitioners did bring the matter of Perl's indictment before the trial judge but they elected not to move for a mistrial; they may not now object.
The petitioners also urge that the United States Attorney 'knowingly used false testimony' on the trial. Three specifications are made in support of this claim: (1) that the witness David Greenglass, called by the Government, testified falsely concerning his cooperation with the law enforcement agencies; (2) that the same Greenglass testified falsely concerning the preparations he had made to equip himself to testify relating to the subject matter and the information unlawfully transferred by him; and (3) that the Government witness Ben Schneider falsely testified that up to his appearance as a witness he had not seen the petitioner Julius Rosenberg since his visit to Schneider's photography store to have passport photographs taken. I shall consider each specification of this claim-
1. Greenglass testified that he had been arrested on June 15, 1950 (R.567) by four agents of the Federal Bureau of Investigation, who had come to his home at about 1 P.M. on that day; that the agents had remained with him in his home until 7 or 7:30 p.m.; that once in a while one of them questioned him; that he was then taken down to the office of the Federal Bureau of Investigation where he later stated that he would make a statement; that a stenographer was brought in and that his statement was stenographically recorded (R.575). When he was pressed on the trial as to the exact time when he had said he would make the statement, Greenglass testified: 'You can't pinpoint me on when I said I was going to give a statement, because I don't remember those things.' (R.575). Questioned further on the subject he added that he hadn't 'read that statement since and I certainly don't know exactly what I put in it' (R.577), but he added that he hadn't 'conscientiously' withheld any facts that night and that the statement he had then made was substantially the same as his testimony on the trial. (R.577).
At no time did petitioners' attorneys call for the production of the statement, or ask the trial judge to examine it for the purpose of determining whether it did in fact contain statements contradictory to the testimony he had given on the trial. No request was made for a direction that the statement be delivered to petitioners' attorneys for use on their extensive and searching cross-examination of Greenglass (R.537 to 676).
It is now argued that Greenglass falsely testified concerning his disclosures on the night of his arrest and that he did not in fact make full disclosure as to his activities until a later date. This argument the petitioners predicate upon a statement by the United States Attorney made when Greenglass appeared for sentence on April 6, 1951 (R.1623). When this is read in context with all the proceedings had that morning, and particularly the statement of Greenglass' attorney that Greenglass 'did cooperate with the Government and almost from the outset' (R.1628), we do not take it as an admission unwittingly made that Greenglass had committed perjury. I do not have to consider the affidavits of Special Agents Lewis and Frutkin to arrive at a finding that there is no factual basis for inferring that Greenglass' testimony was perjurious or 'that it was knowingly, wilfully and intentionally used'
Full opportunity during the trial was available to petitioners' attorneys to demand at least a preliminary examination of Greenglass' statement; no such application was made. I do not feel called upon to now examine the statement on the flimsy showing made.
2. The second objection centers around Government's Exhibits 2, 6, 7 and 8, which were introduced in evidence during and on the basis of the Greenglass testimony.
Exhibit 2- according to Greenglass- was a copy of a sketch of the lens mold which Greenglass testified he had delivered to Julius Rosenberg in January 1945 (R.439-40). He had prepared this copy of the sketch during the trial (R.440).
Exhibit 6- according to Greenglass- was his recollection of the sketch of the face view of the flat type lens mold which he had given to Gold in June, 1945 (R.460, 461).
Exhibit 7- Greenglass testified- was his recollection of a sketch of a schematic view of the lens mold shown on Exhibit 6 being used on experiment (R.462), which he also gave to Gold in June, 1945.
Exhibit 8- Greenglass testified- represented his recollection of a sketch of a cross-section of the atom bomb, which he gave to Rosenberg in September, 1945. (R.498).
Greenglass testified that 'high explosive lens molds' were made in his shop (R.495); that the one from which he had acquired his knowledge was of a different type from that used at Hiroshima, and was a type that worked on an 'implosion effect' and which had been manufactured at Los Alamos. (R.495). Greenglass also testified that when he had given Gold the sketches of which Exhibits 6 and 7 were replicas, he also 'gave some scientists' names' and 'some possible recruits for espionage' (R.497). He testified that it all took up about 12 pages of written material including the sketch of the cross-section of the atom bomb.
On cross-examination, Greenglass testified that when drawing Exhibits 2, 6 and 7 he had relied solely on his memory of information he had acquired while working at the Los Alamos project, and that he had last worked there in February, 1946,- four and one-half years before he testified (R.461, 463, 609); and, that since his arrest and during his confinement in jail he had not been given any reference work, texts or scientific books. (R.610). He further testified that he had not received help from anybody in the preparation or drawing of these exhibits.
Exhibit 8 was impounded by the trial judge after being introduced as evidence.
Petitioners now submit affidavits from three individuals, represented as experts in the field of physics, who express the opinion that it is 'improbable' that Greenglass could have reproduced the sketches from memory. A fourth affidavit from a scientific writer or correspondent for a newspaper records his opinion as to the 'impossibility' of Greenglass' being able to make these sketches from memory. It is upon these 'opinions' that petitioners would have me find that Greenglass gave perjurious testimony concerning the circumstances surrounding the drawing by him of these exhibits. None of these four affiants could possibly have seen Exhibit 8, which had been impounded.
There may be some rare instances when a trial judge permits testimony by medical experts as to the competence or probity of a witness when appraised solely on his mental ability to testify truthfully,- that is, whether the witness is a pathological liar or mentally incapable of telling the truth. But it is hornbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury. Opinion evidence when offered by one who has neither observed the witness while he testifies nor ever seen him is inadmissible on any trial and may not be considered by me as the basis for a conclusion that perjury was committed.
3. The next objection as to the knowing use of perjurious testimony concerns the witness Ben Schneider, who was called in rebuttal by the Government.
Schneider testified that he was a photographer and that he had a store at 99 Park Row, where his main business was taking photographs for passport and identification purposes; that in May or June, 1950 the petitioners Rosenberg and two children visited his shop and ordered and paid for three dozen photographs, passport-size, for which he was paid $ 9.; that Julius Rosenberg at the time told him that he was going to France; that some property had been left his wife and that they were going to take care of it. (R.1428-29). Schneider further testified that he had first been told he would be a witness at about 11:30 A.M. on the day before he testified when he had been visited by some agents of the Federal Bureau of Investigation (R.1425).
Just prior to the close of his direct examination, Schneider was asked, with reference to the last time he had seen Julius Rosenberg, the following question ...