Rosenberg v. United States Appendix

• Court: U.S. Supreme Court
• Writing for the Court: VINSON
• Citation: Rosenberg v. United States Appendix, 346 U.S. 273, 73 S.Ct. 1173, 97 L.Ed. 1607 (1953)
• Decision Date: 17 June 1953
• Parties: ROSENBERG et. ux. v. UNITED STATES No. ____. APPENDIX

346 U.S. 273

73 S.Ct. 1173

97 L.Ed. 1607

ROSENBERG et. ux.

v UNITED STATES

No. ____.

APPENDIX

Decided June 17, 1953.

[Syllabus from pages 273-276 intentionally omitted]

Acting Solicitor General Robert L. Stern, Washington, D.C., for the United States.

Messrs. Emanuel H. Bloch, John F. Finerty, New York City, and Fyke Farmer, Nashville, Tenn., Daniel D. Marshall, Los Angeles, Cal., for the Rosenbergs.

July 16, 1953.

Mr. Chief Justice VINSON delivered the opinion of the Court.

A Special Term of the Court was convened upon the Attorney General's application to review a stay of execution in this case, issued by Mr. Justice DOUGLAS.

Our action was unusual. So were the circumstances which led to it. The Court's action should be considered in the context of the full history of the proceedings which have marked this case.

On August 17, 1950, the defendants were indicted for conspiring to commit espionage in wartime, in violation of the Espionage Act of 1917, 50 U.S.C. §§ 32(a), 34.^* After a lengthy jury trial they were found guilty, and on April 5, 1951, they were sentenced to death. Upon appeal the Court of Appeals affirmed.¹ A petition for rehearing was denied.

A petition for certiorari was filed here. It was denied on October 13, 1952. ² A petition for rehearing was filed October 28, 1952. It was denied on November 17, 1952.³

One week thereafter, a motion was filed in the District Court under § 2255 of the Judicial Code, 28 U.S.C § 2255, 28 U.S.C.A. § 2255, to vacate the judgment and sentence. That motion (hereafter called the first § 2255 motion) did not challenge the power of the District Court to impose the death sentence. It was denied.⁴ The Court of Appeals affirmed. A petition for rehearing was denied.⁵ Certiorari was again sought here, and denied on May 25, 1953. The stay entered by the Court of Appeals was vacated by this Court on the same date.⁶ On the same day, a petition for a stay, pending the consideation of a petition for rehearing, to be filed by June 9, 1953, was denied by The Chief Justice. A petition for rehearing was filed and was pending during the last week of the 1952 Term of the Court, the adjournment of the Term having been announced for June 15, 1953.

In the meantime execution of the sentence was set for the week of June 15th by the District Judge, and two further motions under § 2255 to vacate judgment and sentence were denied in District Court, one on June 1, 1953 and another on June 8, 1953. Those denials were affirmed by the Court of Appeals on June 5 and June 11, 1953, respectively.

In addition to those two motions under § 2255, a petition was also presented to the Court of Appeals asking that a writ of mandamus be issued, directing the sentencing judge to resentence the defendants. On June 2, 1953, the Court of Appeals denied relief by way of mandamus. Thus, as of June 12, 1953, three decisions had been entered by the Court of Appeals is collateral attacks upon the sentence, all three attacks having been instituted by the defendants after our denial of certiorari on May 25, 1953, as to the first motion under § 2255.

On June 12, 1953, an application for a stay or execution was filed with the Clerk of this Court and presented to Mr. Justice Jackson, the appropriate Circuit Justice. This stay was requested to enable the Rosenbergs to seek review of the three most recent decisions of the Court of Appeals 'within the time ordered by the applicable statute.' Mr. Justice Jackson referred this application to the full Court, with a recommendation that oral argument be heard on it. On June 15, 1953, the last session of the 1952 Term, the Court declined to hear oral argument on this application and denied the stay.⁷ The pending petition for rehearing as to the May 25, 1953, denial of certiorari, was also denied.⁸ Thus the Court had in effect, disposed of all collateral attacks upon the sentence then pending in the courts—as to the first § 2255 motion by adhering to its original denial of certiorari and as to the three subsequent decisions of the Court of Appeals in the further collateral proceedings by denying a stay, a decision which showed that the Court saw no substantial question in those proceedings to be preserved for its further consideration.

Just a moment before adjournment of the 1952 Term, a petition for an original writ of habeas corpus, including a request for a stay, was presented to the Court. On account of the imminence of the execution, counsel urged immediate action. They were advised that prompt consideration would be given to the application. The Court met in Special Term on the afternoon of that day and denied the application.⁹ The Special Term was then adjourned.

Late on June 15, 1953, counsel for the defendants applied to Mr. Justice DOUGLAS for a stay. On June 16, 1953, counsel representing one Edelman, who described himself as 'next friend' to the Rosenbergs, presented to Mr. Justice DOUGLAS a petition for habeas corpus. That petition included a prayer for a stay. More than two months before their appearance before Mr. Justice DOUGLAS, Edelman's attorneys had asked counsel for the Rosenbergs to raise the very question which they urged upon Mr. Justice DOUGLAS. The argument was not adopted at that time by counsel for the defendants.¹⁰ In this recitation of facts, we do not hold in this case that a waiver of this claim precluded its consideration.

On the morning of June 17, 1953, Mr. Justice DOUGLAS denied the stay requested by counsel for the defendants, since it raised questions already passed upon by the Court.

Edelman's counsel raised the claim that the Atomic Energy Act of 1946, 42 U.S.C. § 1810(b)(2) and (3), 42 U.S.C.A. § 1810(b)(2, 3), superseded the Espionage Act and rendered the District Court without power to impose the death sentence. Mr. Justice DOUGLAS was of the opinion that this contention posed a substantial question; he denied the application for habeas corpus, but granted a stay, effective until the applicability of the Atomic Energy Act could be determined in the District Court and the Court of Appeals.

The Attorney General then applied to the Court, asking that we convene a Special Term of Court and vacate the stay. The Court was convened in Special Term on June 18 1953, Mr. Justice Black objecting.

Thus we were brought to this particular proceeding. The case was argued for several hours on June 18. The Court then recessed and deliberated in conference for several hours. During the next morning the Court held another conference, and then met at noon and announced its decision in a per curiam opinion. We vacated the stay.

Immediately following the announcement of this decision, counsel for the Rosenbergs moved for a further stay asking that the Court grant them an additional period in which they might seek executive clemency. Counsel for Edelman moved that the Court reconsider the question of its power to vacate the stay. After a recess and deliberation, the Court denied both motions, with Mr. Justice Black noting dissents, and Mr. Justice Frankfurter appending a separate memorandum to each order.¹¹

The Special Term was adjourned. Thereafter executive clemency was denied. The sentence of death was carried out.

We have recited the history of this unusual case at length because we think a full recitation is necessary to a proper understanding of the decision rendered. We proceed to discuss two questions of power: the power of Mr. Justice DOUGLAS to issue the stay; and the power of this Court to decide, in this proceeding, the question preserved by the stay and the vacation of the stay.

Mr. Justice DOUGLAS had power to issue the stay. No one has disputed this, and we think the proposition is indisputable.

Stays are part of the 'traditional equipment for the administration of justice'. Scripps-Howard Radio, Inc., v. Federal Communications Commission, 1942, 316 U.S. 4, 9—10, 62 S.Ct. 875, 880, 86 L.Ed. 1229. The individual Justices of this Court have regularly issued them, and the exercise of that power is vital to the proper functioning of our jurisdiction.

Confronted with the question of the applicability of the Atomic Energy Act, Mr. Justice DOUGLAS wrote:

'I have serious doubts whether this death sentence may be imposed for this offense except and unless a jury recommends it. The Rosenbergs should have an opportunity to litigate that issue.

'I will not issue the writ of habeas corpus. But I will grant a stay effective until the queston of the applicability of the penal provisions of § 10 of the Atomic Energy Act to this case can be determined by the District Court and the Court of Appeals, after which the question of a further stay will be open to the Court of Appeals or to a member of this Court in the usual order.'

After hearing argument on this question we did not entertain the serious doubts which Mr. Justice DOUGLAS had.

We turn next to a consideration of our power to decide, in this proceeding, the question preserved by the stay. It is true that the full Court has made no practice of vacating stays issued by single Justices, although it has entertained motions for such relief.¹² But reference to this practice does not prove the nonexistence of the power; it only demonstrates that the circumstances must be unusual before the Court, in its discretion, will exercise its power.

The power which we exercised in this case derives from this Court's role as the final forum to render the ultimate answer to the question which was preserved by the stay.

Thus Mr. Justice DOUGLAS, in issuing the stay, did not act to grant some form of amnesty or last-minute reprieve to the defendants; he simply acted to protect jurisdiction over the case, to maintain the status quo until a conclusive answer could be given to the question which had been urged in the defendants' behalf. In the exercise of our jurisdiction to decide the question which was preserved for decision, it lay within our power to bring the new claim before us and...