Case for the Defense
There were many violations of law that occurred before, during and after the trial. We shall summarize just a few of the many acts of governmental
abuse of human rights and liberties which occurred in this case.
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The Rosenbergs were sentenced for crimes for which that they were not tried. They were neither tried nor convicted of treason 
or any form of espionage.
In effect the Rosenbergs were denied the right of confrontation, (a right guaranteed throughout the democratic, non-totalitarian world). This right guarantees that a defendant will be confronted with the charges against him and will be given the opportunity to reply in a court of law! Kaufman's charges were first voiced seven days after  the trial had ended. The defendants never had an opportunity to reply.
        The Trial Record shows that Judge Kaufman made it clear to the jurors that the charge against the defendants was only for conspiring  to commit espionage, and not for passing classified material. Seven days after the jury convicted them with that understanding, Kaufman said
". . .death. . . for putting the A Bomb in the hands of the Russians" and for causing the war in Korea and the 50,000 GI casualties. Yet the indictment under which they were tried contained no charge that they had ever passed classified information. Thus they were being punished for crimes for which they never had a trial. 
        From Kaufman's  sentencing speech: " . . . millions of . . . innocent people may pay the price of your treason."  A charge of treason is the only crime defined in the U.S. Constitution. Treason consists of aiding the enemy in time of war. (Whereas the accusation against the Rosenbergs was helping a wartime ally.) Its successful prosecution requires the corroboration of at least two independent witnesses describing at least one overt act of treason. Nothing like this was either charged or proven at the Rosenberg trial. 
        Thus the Rosenbergs were sentenced not on the basis of what the trial or the jury had established, but on Kaufman's personal, imagined beliefs that the defendants committed treason by passing classified material that had caused the war in Korea; 50,000 American casualties; and the death of untold millions.

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The prosecution used accomplice (not independently corroborated) and perjured testimony. The Rosenbergs 
were convicted primarily on the testimony of self-confessed co-conspirators: the Greenglasses and Harry Gold. 
Accomplice testimony, by its very nature, has to be less trustworthy than that of a neutral, disinterested person. The main witnesses against the Rosenbergs were Ethel's brother David Greenglass and his wife Ruth. The government had evidence against these witnesses which could have had them sentenced to death. With this threat hanging over them, and with the government's aid (and advice from their lawyers), they perjured themselves. The FBI and the prosecutors arranged this. One example is the perjured testimony of David Greenglass regarding the typing of David's notes by Ethel. 
        Another, is the recognition phrase "I come from Julius". This was an important part of the government's case because it seemingly tied Harry Gold to the Rosenbergs. (Gold testified that he had neither met nor heard of the Rosenbergs.) This phrase, "I come from Julius", was supposedly used when Harry Gold met the Greenglasses in Albuquerque, New Mexico. In fact it was concocted a few months preceding the trial during a December 28, 1950 meeting in prison between the FBI, Gold and Greenglass. Gold had originally stated that he used the phrase "Greetings from Ben in Brooklyn". During this meeting, according to the notes of one of the FBI agents who was present at the time: "Greenglass says that he had no recollection of such a statement by Gold, pointing out further that the name Ben would mean nothing to him. Greenglass proposed that possibly Gold had said 'greetings from Julius' which would of course make sense to Greenglass. Gold's spontaneous comment to this was that possibly Greenglass was right and that he had mentioned the name of Julius rather than Ben. Gold, however, is not at all clear on this point."
 

         Gold would remain unclear on this point throughout January and February. According to FBI reports it was not until March 5, 1951, one day before the trial began, that Gold finally reported he was convinced "that on the occasion of the first meeting he had with Greenglass he brought greetings from Julius, and that such was done under the direction of Yakovlev."  Rather convenient timing, from the prosecution's point of view. [Note: One might ask the question: why would an "accomplished spy" such as Harry Gold use the real name of a co-conspirator as part of a recognition phrase? Any name but  "Julius" would have been more suitable.]
        Oftentimes the "riveting detail" of a witness' statements seems to add credibility to their testimony. However, all this indicates is that the witness had a penchant for detail. As an example, when David Greenglass perjured himself in testifying about Ethel's typing, he noted ". . . my wife had remarked to Ethel that she had looked kind of tired. . .", and then further stated: "And Ethel remarked that she was tired between the child and staying up late at night, keeping - typing over notes that Julius had brought her . . ."  Lots of details, all admitted lies.
        The testimony of the Greenglasses was coerced under the threat of death: "cooperate or die". Furthermore, their testimonies and that of Harry Gold included last minute changes that contradicted earlier statements made to the FBI, grand jury or prosecution before the trial began. Naturally, these earlier statements were never mentioned in court. Now that they have come to light, years after the trial ended, they serve to further illustrate the inherent flaws of this type of witness. 

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There were no atomic secrets that David Greenglass had the knowledge to transmit. The Commander of the Manhattan Project, General Leslie Groves, and an Atomic Energy Commission spokesman, James Beckerly, have agreed that the crime was fictitious.
"We have evidence that within recent weeks an atomic explosion occurred in the U.S.S.R."  This is the statement made by President Truman on September 23, 1949. Did the Rosenbergs steal the secret of the atom bomb and deliver it to the Soviet Union? The Bulletin of Atomic Scientists, and leading atomic scientists, including Oppenheimer, Urey, Kistiakowsky and Linschitz maintained that there was no such thing as a secret formula or recipe for making the A-bomb. There were hundreds of "little secrets", all of which could be solved any number of ways.
        Dr. Phillip Morrison, co-holder of a patent on the atomic bomb: "the secret of atomic fission was discovered and made known to the world by Hahn and Strassman . . . in the early part of 1939."  The secret that nuclear fission can produce a terrible bomb was made known to the world on August 6, 1945 at Hiroshima. Morrison under oath: ". . . The entire testimony of Greenglass concerning the bomb is confused and imprecise. . . he had neither the scientific background . . . nor was he closely associated with the technical aspects of the project. . . The drawing [Greenglass' sketch] was completely insufficient and could not be used for any construction purposes. . ."
        Nine months after the Rosenbergs were electrocuted, Atomic Energy Commission spokesman James Beckerly was quoted in the New York Times, March 17, 1954, to the effect that is was time Americans "stopped kidding ourselves" about the atom bomb having been stolen from us by spies. "Atom bombs and Hydrogen bombs,"  he said, "are not matters that can be stolen and transmitted in the form of information."  That  statement actually refuted the basic charge in the Rosenberg Case and the so-called justification for the outrageous sentences.
          Also in 1954, General Leslie Groves, the military liaison in charge of the Manhattan Project, stated at a hearing: "I consider the information passed in the Rosenberg Case of minor value."  Because it so thoroughly repudiated the positions of Judge Kaufman and President Eisenhower in support of the electrocutions, Groves urged that his statement be kept secret. And it was, for 25 years, until the Rosenberg sons' Freedom of Information Act law suit in 1979 made these statements open to public scrutiny. 

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Judge Kaufman contaminated the judicial process. This occurred before, during and after the trial.
Any semblance of judicial impartiality ended before the start of the trial. Judge Kaufman, a known hater of Communists, actively campaigned to be assigned to this case. An FBI document (Document No. 894 dated March 16, 1951) indicates that part of the reason that he was chosen to adjudicate this case was that he assured officials in the Justice Department that he would impose the death sentence if warranted. Indeed this same document shows that this kind of unlawful ex parte communication, where a judge discusses the case with the prosecution but without the presence of the defense, continued throughout the trial. 
     His strong bias is next demonstrated during the jury selection process. During the trial, Judge Kaufman behaved as if he was an additional member of the prosecution team. In the example below, Julius Rosenberg is being questioned by the chief prosecutor Irving Saypol:

SAYPOL: Did you think it was unusual to see an agent of the FBI, after he had talked with you at an interview, looking up at your shop? 
ROSENBERG: That is his business, Mr. Saypol, not mine. 
SAYPOL: What did you think about it?
ROSENBERG: The possibility he was looking for something. 
SAYPOL: Somebody else? 
ROSENBERG: I have no idea what he was looking for.
SAYPOL: You were not concerned about his presence outside your shop? 
ROSENBERG: No, I wasn't concerned, Mr. Saypol, because I wasn't guilty of any crime. 
JUDGE KAUFMAN: The question is, did you think about what he was 
doing there?
ROSENBERG: No, it didn't enter my mind. It was his business. 
JUDGE KAUFMAN: The fact that you saw an FBI agent looking into your place of business--
ROSENBERG: He wasn't looking; he was across the street from the Pitt Machine works and he was walking by nonchalantly looking in. 
JUDGE KAUFMAN: That was the same agent who had talked to you? 
ROSENBERG: Yes. 
JUDGE KAUFMAN: You say it made no impression whatsoever upon you?
ROSENBERG: It didn't concern me. 
JUDGE KAUFMAN: I say, it made no impression on you? 
ROSENBERG: I knew he may have been looking for something. 
JUDGE KAUFMAN: You didn't think it had anything to do with you? 
ROSENBERG: It might have and it might not have, but it didn't concern me.
JUDGE KAUFMAN: I am asking you whether you thought it had anything to do with you. 
ROSENBERG: Maybe yes and maybe no. It didn't enter my mind as to 
what his purpose was. 
JUDGE KAUFMAN: Is that the best answer you could give? 
ROSENBERG: Yes. 
JUDGE KAUFMAN: Maybe yes and maybe no? 
ROSENBERG: Yes.

        Thus, in one of their appeal briefs, the defense stated that the Judge had taken too active and biased a role in the proceedings, depriving the defendants of a fair trial. Legally however, a federal judge can take a much more active role in a trial than a state judge can. Although the appellate court opinion actually cited many incidents similar to the one above, it still ruled that Judge Kaufman stayed within the discretion allowed him. 
        FBI documents show that Kaufman made extraordinary efforts to expedite the executions and to frustrate the appeal process by 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.
       For example: the record reveals that the last application of the Rosenbergs to set aside their sentences was made in June, 1953. It came 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, 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. 
        And Kaufman's interference did not stop there. Even after the executions took place his need for vindication continued for over 20 years. He used the FBI to register distress over ongoing legal efforts to free Morton Sobell (co-defendant); any changes in the law which tended to weaken the legal underpinnings of the trial and appellate process; and all hearings in Congress and other efforts to have the case reopened. He even went so far as to discredit books, plays, records, etc. that were favorable to the Rosenbergs' advocates point of view. In one case he actually asked the FBI to investigate the author of a play about the trial. Indeed, his obsession with justifying the execution of the Rosenbergs continued until the day he died.
 

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The McCarran Act was used to prejudice the jury selection process and the Rosenbergs' Testimony. 
The McCarran Internal Security Act of 1950 was passed just months after the Rosenbergs were arrested. This act was passed by Congress (84%) over President Truman's veto. (Truman considered the Act unconstitutional which was later confirmed in the courts by 1971.) The Act held that all members of the Communist Party, and all members of  100 organizations listed by the Attorney General as Communist Front organizations (over half of a million Americans), are in effect agents of the Soviet Union. 
        Kaufman was one of the first judges to utilize the McCarran Act in the courtroom. In eliminating potential jurors *, Kaufman not only used the criteria of membership in the list of organizations specified by the McCarran Act, but added several "communist front" organizations of his own choosing. He then further extended dismissal to include former members and friends and family of any members of these organizations. Thus, thousands of potential jurors with liberal or progressive viewpoints were eliminated from consideration.
        When the Rosenbergs were on the witness stand and asked if they had been members of the Communist Party, they took the 5th Amendment. Because of the McCarran Act, the jurors were then able to form the equation: 

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Ethel's death sentence was a "lever" against Julius. The government knew she was innocent. 
On December 5, 2001, David Greenglass admitted on the nationally televised 60 Minutes II that he had committed perjury during the Rosenberg trial, and was encouraged to do so by special assistant prosecutor Roy Cohn. Further details of David's recantation of this and other testimony (David also admits to lying about the console table, one of the key pieces of prosecution evidence at the trial) can be found in Sam Roberts' book The Brother. David states that regarding his sister typing up his handwritten notes, "Yeah, I don't remember that at all. I frankly think my wife did the typing, but I don't remember."  Unknown to David at the time of the trial, was that without this crucial perjured testimony, the government had no case against his sister Ethel. If not for this testimony (and the corroborating testimony of his wife Ruth), Ethel Rosenberg might not have been convicted. 
       Ethel Rosenberg had not have been a target for FBI investigation until it became apparent that Julius, who was still insisting on his innocence, would not confess nor implicate others. Her arrest on August 11, 25 days after Julius', was intended as a lever to elicit testimony from her husband. Before the Joint Congressional Committee on Atomic Energy, assistant U.S. Attorney Myles J. Lane said: ". . . the only thing that will break this man Rosenberg is the prospect of . . . getting the chair, plus that if we can convict his wife, too and give her . . . 25 to 30 years."
The problem for Saypol was how to convict Ethel. On what evidence? The prosecuting team had to overcome their lack of proof of Ethel's guilt. When reviewing her work experience, the FBI noted that she had been a typist. Perhaps she was instrumental in the typing of A-bomb secrets? That's it. On re-questioning, Ruth Greenglass stated that Ethel, in September of 1945, had typed up David's espionage data. (Ethel denied this on the witness stand.) Ruth's testimony implicating Ethel as a spy was developed 10 days before the trial. 
         David Greenglass quickly confirmed his wife's new evidence: Ethel typed A-bomb secrets. However, when questioned six months earlier by Lane about the September 1945 meeting, David Greenglass denied that Ethel was even there. 
LANE: Was Ethel present in any of these occasions?
DAVID: Never.
LANE: Did Ethel talk to you about it?
DAVID: Never spoke about it to me . . .that's a fact.

David amended his story eight days before the opening of the Rosenberg/Sobell trial on Tuesday, March 6, 1951. Fifty years later, David Greenglass has changed his story again. If David Greenglass is now an admitted perjurer regarding his testimony about Ethel, is it not likely that he also perjured himself in testifying against Julius? 
 

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FBI documents show that the Supreme Court was compromised by the Justice Department.
It is Monday, June 15, 1953; just three days before the scheduled electrocutions of the Rosenbergs. It is also the last day the Supreme Court would meet before adjourning for its summer vacation. In a highly improper "gentleman's agreement", the nine justices agreed that any new motions, regardless of merit, pertaining to the Rosenberg case, will not be considered. This agreement was no doubt due to the tremendous pressure exerted upon the court by external events and the bitter internal haggling about the Rosenberg case that had persisted for so long. However, this collusion was not just an unorthodox oddity at the end of a trying term. Joseph Sharlitt, author of Fatal Error, comments: " . . . private agreements among judges that dispose of serious points of law before they are made do violence to our system of justice." In the coming days, things would get much worse.

Seated, left to right: Justices Felix Frankfurter, Hugo Black, Fred Vinson,   Stanley Reed, and William Douglas. Standing, left to right: Justices Tom Clark,   Robert Jackson, Harold Burton, and Stanley Reed. (see SUPREME COURT)

          In meetings documented by the FBI, Justices Vinson and Jackson privately met with the Attorney General Brownell to discuss what actions would be taken if Justices Douglas or Frankfurter were to break the gentleman's agreement. They knew that Douglas or Frankfurter was considering a petition by Fyke Farmer and Daniel Marshall pertaining to the Rosenberg case. On Tuesday, June 16, Vinson, Jackson, and Brownell agreed that if Douglas submitted a stay of execution in order to have the Farmer-Marshall petition considered, they would immediately convene a special session of the court to overturn the stay. Furthermore, at Brownell's suggestion, Chief Justice Vinson agreed to meet privately with Douglas and try to convince him not to decide the merits of the new motion himself, but to submit the motion for consideration in conference (Brownell knew that in conference, the petition would be dismissed by a majority of the judges).
        Meetings of this type (between Brownell and Vinson) are called ex parte communication, and are strictly forbidden by the canons of ethics for both judges and lawyers. Any meeting between judge and prosecutor, pertaining to a case at hand, which does not also include a member of the defense, is unethical and improper.
        The repercussions of these meetings were to result in perhaps a low point of judicial conduct by the court. Vinson actually met with Douglas and tried to persuade him to not consider the merits of the Farmer-Marshall petition himself. After this failed, and Douglas issued a stay on June 17th, the ex parte Brownell-Jackson-Vinson contingency plan was put into motion. 
        On June 18th, for only the third time  in its history, the Supreme Court was reconvened after adjournment for vacation. (Neither the defense attorneys nor Justice Douglas were notified that this meeting was to take place.)  And for the first time in its history, a stay by one of the judges was vacated by the other members of the court. Supreme Court scholars are still unclear as to whether such an action is even legal.
        But for the Rosenbergs, such debates are moot. Their executions were carried out on Friday, June 19th, just one day after this unprecedented action by the Supreme Court. The corruption in the Rosenberg case had reached the highest court in our land. 
 

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The Rosenbergs were tried under the wrong law in order to facilitate the use of the death penalty.
Fyke Farmer and Daniel Marshall had filed amicus curiae ("next friend") petitions with Judge Kaufman, the Appellate Court and the Supreme Court. They contended that the Rosenbergs, who were tried under the Espionage Act of 1917, should have been tried under the Atomic Energy Act of 1946. The death sentence could only be imposed under the 1946 act if two conditions were met. The first is that the prosecution had to demonstrate that the defendants' actions had "harmed the United States", not just that they had "aided a foreign power" (as is true under the 1917 act). Secondly, the death penalty could be imposed only upon recommendation by the jury. 
        Farmer and Marshall argued that the charge against the Rosenbergs was conspiracy to commit espionage during the period from June 1944 through June 16, 1950. And that conspiracy is a continuing offense. It did not matter when the Rosenberg conspiracy began as long as it continued past August 1, 1946, the date the Atomic Energy Act was enacted. The indictment said that the so called conspiracy lasted into 1950, removing any constitutional argument that the 1946 act did not apply. The government applied and emphasized post 1946 conduct in convicting the Rosenbergs. Much of the testimony dealt with events after August 1, 1946. 
          There are at least two other points of law that the Supreme Court could have considered regarding this case. It is a precedent that where two conflicting penal statutes may apply, the judge has no choice but to impose the law with the lesser penalty. And, if a subsequent law contains statutes whose application conflicts with an earlier law, then the the conflicting statutes of the previously enacted law are effectively repealed. 
         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. It is customary that when deciding an important point of law such as this, especially when lives are at stake, that the Court would have to either refer the case to a lower court or itself decide on the issues at hand. After all, how could the Court make a just and fair decision if it does not review the case? Yet, this is exactly what happened. The Supreme Court decided on the merits of the Farmer/Marshall motion without ever reviewing the Rosenberg case or remanding it to a lower court.