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TIME LINE

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THE CONSOLE TABLE
June 6 - 12, 1953: Bloch files appeals based on new evidence (console table is found).
During the trial David Greenglass testified that, as a reward, Julius got a citation and both Ethel and Julius each got watches from the Soviets. In addition he said: "I believe they told me they received a console table from the Russians."  Both David and Ruth Greenglass said they never saw the citation nor the watches, but did see this console table at the Rosenberg's apartment. David testified that the gift console table "was used for photography. . . Julius told me that he did pictures on that table." 
On the witness stand Ruth Greenglass said she noticed "a mahogany console table" in the Rosenberg's apartment. This, Ethel told her was a "gift" and was a special table. A  lamp could fit underneath it so that the table could be used for photographic purposes; that is, the table was used to take "pictures on microfilm of the typewritten notes." Did Ruth actually see a lamp under the table or the hollowed out portion that the lamp was to fit into?
   Julius and Ethel Rosenberg testified that console table was purchased at Macy's for about $21.00. The Rosenbergs did not have any receipts of the purchase. (Saypol said that tables at Macy's in 1944, due to war time shortages, cost at least $85.) The Rosenbergs denied that the table had any special features and had been used for decorative and eating purposes only. In further testimony, Ethel denies photographing any documents.
        Saypol called Evelyn Cox, a part time maid for the Rosenberg's in 1944 and 1945, to the stand as a rebuttal witness. She testified that she saw a table that Ethel Rosenberg said was a gift from a friend. 
        The table could have been the only piece of physical tangible evidence that would connect the Rosenbergs with any sort of espionage. And in prosecutor Saypol's summation he says "it was used for microfilming." This was an important piece of evidence that was never produced in court. 
        In March 1953 the actual console table that the Rosenbergs and Greenglasses had testified about was found, photographed and shown to a Macy's employer  who had been a buyer in 1944 and 1945. He said that it was one of Macy's lower priced tables that sold for $20.37 in 1944. (Contradicting Saypol's statement that they cost at least $85.) No way could this table have been used for any type of photography.
        When presented with this new evidence, Judge Kaufman, after deliberating for fifteen minutes, returns and delivers his opinion. In a thirty minute prepared text, Judge Kaufman denies appeal and refuses to consider the new evidence or to grant a preliminary hearing to establish its validity. The next two days, June 9 and 10, the Rosenbergs' lawyers appear in the Second Circuit Court of Appeals to request a stay of execution.

June 11, 1953: The Second Circuit Court of Appeals rejects the entire defense submission.
The Second Circuit Court of Appeals rejects the entire defense submission, affirms Judge Kaufman's decision, denies stay and orders the executions to go on June 18. (This date is the Rosenbergs fourteenth wedding anniversary.) The next day, June 12, Bloch appeals to the Supreme Court. 
          In a letter to President Eisenhower petitioning for executive clemency , Ethel wrote: "We submitted actual physical evidence (the missing console table) never produced in court against us, to show the Greenglasses and the Government collaborated to bring into the trial false testimony that we had in our home an expensive console table, given to us by the 'Russians' and equipped for microfilming purposes. The table itself belies the Greenglass testimony. It is not a specially constructed table, but one bought by us at R. H. Macy's for about $21.00, as we testified at our trial." 
      In his statement regarding clemency President Eisenhower said:  " . . .  the Rosenbergs have received the benefit of every safeguard which American justice can provide. . . and the tribunal of the United States have adjudged them guilty and the sentence just.. I will not intervene in this matter."
 

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THE 1917 LAW vs. THE 1946 LAW
The devastating power of the atomic bomb and its dramatic role in ending the war with Japan moved many military and governmental officials to propose tight control over atomic energy. Many of the top scientists however, wanted an international body that would disseminate and share nuclear information. The compromise that came to pass was the Atomic Energy Act of 1946. 
        Scientist  thought that the newly created Atomic Energy Commission, a civilian agency, would enable a free academic exchange of information. But in the final version of the Atomic Energy Act of 1946, Congress established a special category of information called "Restricted Data." Restricted Data (RD) was defined to encompass "all data concerning the manufacture or utilization of atomic weapons, and the production of fissionable material. . ."  Thus, by operation of law, nearly all atomic (nuclear) energy information became classified and fell within the definition of RD. Instead of encouraging a free scientific interchange of knowledge, this act, under harsh penalties, prohibited it.
          The controls imposed by Congress were unusually rigorous. Those found guilty of dissemination or disclosure of RD could be punished by death or life imprisonment, provided either of these punishments was recommended by the jury that convicted the violator. If the jury did not make any recommendations then the penalty was a maximum of 20 years in jail and a fine up to $20,000. For the death penalty to happen the jury had to have determined that the violator intended to harm the United States.

The 1917 Espionage Act. Section 2. The Rosenbergs, however, were tried and convicted not under the aegis of the 1946 act, but under the Espionage Act or 1917. Under this act the death penalty can be applied, without jury recommendation, if in time of war the violator intended to secure an advantage of a foreign nation. The statute reads:
         (a) Whoever, with intent or reason to believe that it is to be used to the injury or the United States or to the advantage of a foreign nation, . . . shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years. . .
       Thus, Judge Kaufman, when pronouncing sentence under the 1917 act lawfully sent the Rosenbergs to the electric chair without any recommendation from the jury. (Note that Morton Sobell, a co-defendant in the case received the maximum sentence of 30 years.) Under this act no recommendation from the jury was necessary. All the jury had to determine was that the Rosenbergs intended to secure an advantage to a foreign nation in time of war. (No matter that the Soviet Union was our ally in 1944 -45.)
        Under the Atomic Energy Act of 1946 act, for the death penalty to be passed it would have to be recommended by the jury. Moreover, it would have been necessary to show that the Rosenberg's intended to harm the United States. This might have been difficult to prove since the Soviet Union was our ally in 1944 and an advantage to an ally cannot be an injury to the United States. In any case, these arguments never got to be made because the Rosenbergs were tried under the 1917 law.
 

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THE FINAL WEEK
June 12, 1953: Before the Supreme Court.
Armed with new evidence (the console table), Manny Bloch, the Rosenberg's lawyer, asks the Court for a stay of execution and to reconsider its May 25 rejection of his petition for certiorari. To grant certiorari or cert is the decision by the Court to review  a particular case. A vote of only four out of the nine justices in favor of a cert is all that is needed for a case to be opened for review by the Court. Obviously if the Court denies cert (refuses to review the case), that it cannot in effect determine the merits of the case.
        In a conference by the Supreme Court justices on Saturday afternoon, June 13, certiorari is denied. Up until that day the Supreme Court had not reviewed the Rosenberg case. The decision concerning the cert and the stay would be announced June 15.

June 15, 1953: Supreme Court denies stay of execution. 
June 15, 1953 was a Monday and is the last day of the Court term and perhaps the Rosenbergs' last chance to seek redress from the Supreme Court. (The Court would reconvene in October after their summer vacation.) At noon that day the nine justices appear from behind their curtained partitions and take their places. After reading the Court's opinion on some pending cases, they get to U.S. v. Rosenberg: cert denied and stay denied (by a 5 to 4 vote).
         After some commotion, a colleague of Bloch, John Finerty petitions the Court for a writ of habeas corpus. A special session considers the request. It was during this session that the nine justices agreed that any new motions, regardless of merit, pertaining to the Rosenberg case, will not be considered. This gentleman's agreement  was no doubt due to  external events and the bitter internal haggling about the Rosenberg case that had persisted for so long. The nine gentlemen felt it would be in the best interests of the Court and the country if the case was to be disposed of quickly and without further delay. Expediency prevails over justice. 
         Several hours later at about 6:00 pm, the Supreme Court rejects Finerty's writ of habeas corpus. The only judicial hope now for the Rosenbergs is to have an individual Supreme Court Justice grant a stay. Bloch chooses Justice William O. Douglas. But will Douglas violate the gentleman's agreement made earlier that day?
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New Players. Fyke Farmer, a Tennessee lawyer and a firm believer of international control of nuclear energy, had watched the Rosenberg case with great interest. He was sure that the federal judicial processes were skewed; that justice was not done. Farmer was also very knowledgeable
about nuclear fission and power and its regulatory laws, namely the Atomic Energy Act of 1946. 
          He concluded that the Rosenbergs were tried under the wrong law. This was the main thrust of a 61 page petition for writ of habeas corpus that he drafted and was going to submit to Judge Kaufman. Farmer wrote: "If the defendants [Rosenbergs] had been prosecuted under the Atomic Energy Act the death penalty could not have been inflicted for the offense which they were charged. . . the penalty for death under the Atomic Energy Act can only be imposed on recommendation of the jury and then only when the jury finds that the accused had the intent to injure the United States. . . the case at bar did not charge that the defendants conspired with intent to injure the United States." 
        Sunday, June 14 at 10:40 am Fyke Farmer stands with all 61 pages of his petition before the doorman to Judge Kaufman's exclusive Park Avenue apartment. The doorman has instructions to say that Kaufman is not seeing anyone. Farmer has no choice; he gives the doorman the petition and his calling card. When Farmer later returns to his hotel he finds that Kaufman had the petition delivered back him, unread. 
        Sunday, June 14 at 1:30 pm Fyke Farmer stands again with all 61 pages of his petition before the doorman to Judge Kaufman's exclusive Park Avenue apartment - the second time that day. This time there is a letter to Kaufman stating that if he does not review the petition another judge will. Kaufman receives the petition.

June 15, 1953: Kaufman summarily dismisses Farmer's petition.
The only thing positive from the Kaufman incident is that it ended quickly. Or at least relatively quickly. He waited until the Supreme Court decision was announced over the radio at 2:30 pm before he would release his own ruling. Kaufman charged that both Farmer and his newly arrived assistant Daniel Marshall were "interlopers" and "intruders."  Their petition he said apparently had "no merit" and "verged upon contemptuousness."
      Since Kaufman did not wait days to give his ruling, Farmer and Marshall had an opportunity to present their arguments to some one else. They were not that enthusiastic about submitting their brief to judges from the Court of Appeals. Then they heard that Bloch was able to see Justice Douglas that afternoon and perhaps even the next day. Maybe they had a chance of also seeing a Supreme Court judge? Why not. Farmer and Marshall were on the midnight train to Washington DC.

June 16, 1953: Farmer and  Marshall appear before Justice Douglas.
Farmer and Marshall hoped to see justice Hugo Black, but settled for Douglas. After Douglas conferred with Bloch's colleagues at 10:30 that morning, he agree to hear the points of the Farmer/Marshall brief. They meet in Douglas' chambers at 11:30 am. Farmer presented the two major points of the brief: there were no atomic secrets and the Rosenbergs were tried under the wrong law. Douglas was interested and agreed to read the Farmer/Mashall brief. A flicker of light. The long vigil began: into the afternoon with no word from Douglas; into the night and still no word. Late that evening it became apparent that no decision by the Justice was to be given that day.
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June 16, 1953: Brownell meets with Vinson.
While Douglas was considering the Farmer/Marshall petition, Justice Jackson was brokering a meeting on that day between Chief Justice Vinson and the attorney general of the United States Herbert Brownell. What took place at the meeting is in an FBI memorandum that came to light in 1975. (This was done because of a Freedom of Information suit initiated  by the Rosenberg's sons, Robert and Michael Meeropol.) The memorandum reads: "Jackson felt that . . . Farmer's motion was ridiculous and that Douglas should turn it down. . . .Vinson said that if a stay is granted he will call the full Court into session."  This was to be done by having the Justice Department file a motion with the Supreme Court to reconvene itself. And during that session the Court will have the opportunity to consider vacating a possible stay by Douglas.
          This ex parte communication (private discussion of a case still being argued) between Vinson and Brownell was highly improper and condemned by the American Bar Association. This meeting taking place while the Rosenberg case was still pending, violates basic judicial fairness. The abuse is taken a step further when these two men, the Chief Justice of the Supreme Court and the Attorney General of the United States, formulate a strategy between themselves. This strategy was a contingency plan that would come into play if Douglas breaks the gentleman's agreement  and grants a stay for the Rosenbergs. 

June 17, 1953, 11:00 am: Supreme Court Justice William O. Douglas grants stay of execution.
Waiting nervously in the Lawyers' Lounge in the Supreme Court building is Emanuel Bloch who has a petition pending with Douglas. In the same room is Fyke Farmer and Daniel Marshall. They also have a petition pending with Douglas. The room is soon filed with press photographers and reporters. Some climatic announcement is about to happen.
          Supreme Court clerk Harold Willey emerges from Justice Douglas's chambers and drops a two word bomb: "Stay granted!" The charged atmosphere of depression and grief is instantly changed to one of joy, laughter and tears. When the commotion died down the lawyers had a chance to examine Douglas's order. Douglas based his stay on the Farmer/Marshall petition that the case should have been tried under the Atomic Energy Act of 1946. This statute required the recommendation from the jury before the violators could be put to death. And additionally the government had to prove that espionage was done "with and intent to injure the United States." Douglas also noted that the since the indictment covered the dates from 1944 to 1950, most of the case against the Rosenbergs was related to conduct that occurred after August 1, 1946. That is the date that the Atomic Energy Act became law.
         Bloch and Farmer shake hands and  pose before the cameras. Little did these players know that this moment of victory was fleeting.
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June 17, 1953, 6:00 pm: Chief Justice Vinson orders the Supreme Court to reconvene at noon the next day.
Farmer and Marshall had saved the day for the Rosenbergs;  but winning one battle did not mean they won the war. The other side struck fast. First, members of Congress were bringing impeachment proceedings against Justice William O. Douglas for "high crimes and misdemeanors" by subverting the Constitution and the laws of the United States. Douglas, who began his vacation, leaves the capital and is in his car driving to the west coast.
       Second, the contingency plan that was made the day before in that private meeting between Brownell, Jackson and Vinson would now be put into effect. The Justice Department files a motion to have the Supreme Court reconvene. (The third time in its 164 year history.) Later that evening Vinson notifies the seven members of the Court, that are still in Washington, that there will be a special session the next day at 12 noon. By now Douglas, who has started his vacation is somewhere in Pennsylvania. Though he left a memorandum with the chief justice outlining his itinerary, no attempt is made to contact him. He hears the news on the car radio and returns to Washington. The Rosenberg lawyers, Bloch and Finerty, of course are not  notified. 

June 18, 1953, 2:00 pm: Supreme Court in special session.
Chief Justice Vinson convenes a special term of the Court to consider the Rosenberg case. As soon as the clerk recited the number to the case, Daniel Marshall rose and addressed the Court. He protested the speed with which the Court reconvened itself and vociferously charged  that the Court was not prepared to do justice. The Government argued that the crimes were committed in 1944 and 1945 before the enactment of the 1946 Atomic Energy Act. And by applying to the 1944 and 1945 acts was applying the law ex post facto and unconstitutional. The Rosenbergs had "their day in court"  and the new issue under discussion was nothing more than a frivolous delaying tactic. Did anyone point out that the Rosenbergs' were charged with a continuing conspiracy from June, 1944 to June, 1950?
       Bloch spoke next and asked that more time be given to decide these issues. John Finerty then rose to unload his frustration by attacking Brownell, the Department of Justice and prosecuting attorney Irving Saypol. The next speaker was Daniel Marshall who Justice Jackson, by half-truth and innuendo, tried to discredit. Marshall shook his finger at Jackson and harshly reprimanded the Supreme Court Justice. The armed guards in the room were aroused and on their feet. But Chief Justice Vinson quieted both parties down and kept the peace. 
       Fyke Farmer, the next speaker, was fully prepared to argue the legal significance of the 1946 Atomic Energy Act, and proceeded to do so. He finished his argument by telling the Court to vacate the Rosenbergs' death sentence, vacate the indictment against them, and send the case back to the New York grand jury.
       Soon after 4:00 pm on this Thursday afternoon, the nine robed judges made their exit. The fate of the Rosenbergs is in their hands.

June 19, 1953, 12 noon: Supreme Court by a 6 to 3 vote vacates Justice Douglas's stay of execution.
The nine judges ascend to the bench. Chief Justice Vinson presents the majority ruling. He says that the only reason he convened this special session (on the application of the Attorney General) was to determine if the question posed by Farmer/Marshall (on which the stay had been granted) "was substantial". Justice Vinson reads: "We think the question is not substantial. We think further proceedings to litigate it are unwarranted."   The stay is vacated by a 6 to 3 vote; Justices Black, Douglas and Frankfurter dissenting. The executions are to proceed. The Rosenbergs are scheduled to die at 11:00 pm that day, Friday, June 19. Justice Clark then Justice Jackson read their concurring opinions.
        After the reading of the dissenting opinions, Bloch and Marshall plead with the Court for a stay in order to brief and argue some of the legal questions. They also want time to make another attempt to secure clemency from President Eisenhower. The Justices disappear behind the partitions in back of each of their chairs and return within ten minutes. Before they are even seated, Vinson announces that both motions are denied. This is the final moment. Vinson then signals the Court clerk, who rises and announces that this special session on the application of Attorney General Herbert Brownell is now adjourned. The Justices are also on their feet and make their exit. The battle in the Supreme Court has ended. The executions are to proceed. The Rosenbergs are scheduled to die at 11:00 pm that day, Friday, June 19. Bloch submits a formal petition for Presidential clemency to the Justice Department. 
         Till this last day, the Supreme Court never considered the Rosenberg case on it merits alone; decisions were made without affording any evidentiary hearing or review. During the rest of that afternoon, all attempts by other defense lawyers in their petitions to appeal court judges to postpone the executions fail. The executions are to proceed. The Rosenbergs are scheduled to die at 11:00 pm that day, Friday, June 19. Time is running out. 
        Bloch later learns by a radio news bulletin that President Eisenhower again, for the second time, refused clemency. Bloch now out of  desperation attempts to see the President and deliver a "mercy" letter written by Ethel Rosenberg. At the White House he is denied a personal interview with the President. Bloch returns to his hotel room in Washington D.C. The only spark of hope left is that the executions would be delayed to the evening of the next day. This is done so as not to violate the Jewish Sabbath which starts at Friday, sundown. But when Bloch speaks to the warden at Sing Sing, he learns that the killing time has been moved ahead from 11:00 pm to 8:00 pm. The executions are to proceed. The Rosenbergs are scheduled to die now at 8:00 pm that day, Friday, June 19. A large vigil for the Rosenbergs is held in lower Manhattan as well as over 50 other places world wide.

June 19, 1953, 8:00 pm: Julius and Ethel Rosenberg are executed in the electric chair at Sing-Sing Prison.
 

Ethel and Julius Rosenberg. Brooklyn, New York, June 20, 1953.

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FOR THE RECORD
w  First time and only time in a civil court that any person was sentenced to death for espionage.
w  First time a stay of execution by a Supreme Court Justice was 
vacated.
w  Second time a woman was executed by the Federal Government. (First woman executed was Mary Surratt in 1886 for taking part in Lincoln's assassination.)
w  Third time the Supreme Court was called from vacation to a special session.
w  First time that the Supreme Court upheld a death penalty sentence, but added (in a memo) that its decision must not be construed as implying that the death sentences were wise or appropriate.
w  The maximum number of times the Supreme Court refused to review a particular case.
w  This was the first time that the Supreme Court had ever been asked to consider a possible conflict involving the application of the 1917 Espionage Act and the Atomic Energy Act of 1946.
w  The Rosenbergs take their place with other Americans executed for political beliefs: the Chicago Haymarket union organizers; Joe Hill; and Sacco and Vanzetti.
w  In the period just before the execution of the Rosenbergs, our government ignored the clemency pleas from the world's great leaders: Pope Pius XI , President of France Vincent Auriol, Albert Einstein, Nobel Laureates; and clergymen, scientists, workers, artists, and housewives. The entire world pleaded and watched and waited - and eventually mourned.