United States v. Rosenberg

• Decision Date: 10 December 1952
• Citation: 108 F. Supp. 798
• Parties: UNITED STATES v. ROSENBERG et al.
• Court: U.S. District Court — Southern District of New York

108 F. Supp. 798

UNITED STATES v. ROSENBERG et al.

United States District Court S. D. New York.

December 10, 1952.

Myles J. Lane, U. S. Atty., New York City, James B. Kilsheimer III, and Robert Martin, Asst. U. S. Atty., New York City, for the Government.

Emanuel M. Bloom, Cleveland, Ohio, for Julius Rosenberg and Ethel Rosenberg.

Howard N. Meyer, New York City, Harold M. Phillips and Edward Kuntz, New York City, for Morton Sobell.

RYAN, District Judge.

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 petitioners¹, 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),² 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.³

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 sceptical juror as a helpless person."⁴

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.⁵ 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"⁶, 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 trial had been so prejudicial as to inflame and infect the public mind they could have been entirely ignorant of it.⁷

The voir dire examination of the prospective jurors was fully and fairly conducted by the trial judge.⁸ The petitioners were granted ten additional peremptory challenges; they did not exercise all of these and informed the court that the jury was satisfactory.⁹ This was the considered judgment and decision of the "highly competent and experienced"¹⁰ 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 trial¹¹ 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 State 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...